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920 F.2d 1108
UNITED STATES of America, Appellee,v.Giuseppe GAMBINO, a/k/a "Joe," and Matteo Romano,Defendants-Appellants.
Nos. 1344, 1345, Dockets 90-1104, 90-1106.
United States Court of Appeals,Second Circuit.
Argued May 7, 1990.Decided Dec. 10, 1990.
Judd Burstein, New York City (Wendy A. Rothstein, New York City, of counsel) for defendant-appellant Gambino.
Gerald L. Shargel, New York City (Gail E. Laser, New York City, of counsel) for defendant-appellant Romano.
Andrew C. McCarthy, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., S.D.N.Y., Frances M. Fragos and Helen Gredd, Asst. U.S. Attys., New York City, of counsel) for appellee.
Before ALTIMARI and MAHONEY, Circuit Judges, and POLLACK,* Senior District Judge.
ALTIMARI, Circuit Judge:
1
Giuseppe Gambino and Matteo Romano appeal from an order, entered in the United States District Court for the Southern District of New York (Peter K. Leisure, Judge), denying their motions to dismiss a sixth superceding indictment, SSSSSS 88 Cr. 919 (PKL), which charges them with conspiracy to import heroin and cocaine and conspiracy to distribute heroin and cocaine. 729 F.Supp. 954. The indictment also charges Gambino with conducting a continuing criminal enterprise ("CCE"), and charges both Gambino and Romano with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"). In previous prosecutions, Gambino and Romano were acquitted of conspiracy to import heroin and of conspiracy to import and distribute heroin and cocaine, respectively. According to Gambino and Romano, prosecution under the sixth superceding indictment is barred by double jeopardy principles. For the reasons set forth below, the order of the district court is affirmed, in part, reversed, in part, and remanded for the district court's consideration of whether to dismiss, with leave to re-present, Counts One and Two of the indictment against Gambino or to order redaction of the offending portions of the indictment. We affirm the court's order in all other respects.
BACKGROUND
2
A. Gambino I.
3
In 1981, Gambino was acquitted by a jury of charges that he conspired, between August 1, 1979 and March 18, 1980, to import heroin to the United States. United States v. Gambino, 80 Cr. 131 (E.D.N.Y.) (Neaher, J.) ("Gambino I "). In Gambino I, the government alleged that defendant Gambino supervised and financed a conspiracy to import in excess of forty kilograms of heroin from Italy to the United States. At trial, the government focused on a fifteen-day period, from March 3, 1980 to March 18, 1980, during which Gambino and his co-conspirators allegedly planned an ultimately unsuccessful trip to Italy for that purpose.
4
The government's evidence in Gambino I consisted primarily of testimony from Frank Rolli, a government informant who allegedly conspired with Gambino and co-defendant Emanuele Adamita in the heroin importation scheme. Rolli testified that he met with Gambino and Adamita in Brooklyn on two occasions in March 1980; that the three men discussed a plan to smuggle heroin through customs at Kennedy Airport; that Gambino agreed to pay him $30,000 for his assistance; that Rolli and Adamita travelled to Italy in order to obtain the heroin; and that, once in Italy, the amount of heroin to be imported increased from ten kilograms to forty kilograms. This heroin was seized at Kennedy Airport and Gambino was subsequently arrested, prosecuted and acquitted.
5
B. Adamita.
6
In 1989, Romano was acquitted by a jury of charges that he conspired to import and distribute heroin and cocaine. United States v. Adamita, SSS 88 Cr. 217 (S.D.N.Y.) (Sprizzo, J.) ("Adamita "). The indictment in Adamita alleged that Romano, along with 26 co-defendants, conspired to import narcotics from Italy to various cities in the United States between January 1, 1985 and June 30, 1988. The indictment cited some 105 overt acts, including the use of couriers to transport cocaine to Italy in order to exchange the cocaine for heroin and return the heroin to the United States. The indictment also alleged that legitimate businesses, including pizza parlors and a clothing store, were used as fronts to distribute the narcotics. Romano was named in four of the indictment's overt acts, including several meetings with co-defendant Adamita. Romano was eventually tried, along with thirteen co-defendants, and was acquitted.
7
C. The present indictment.
8
On December 14, 1989, the Grand Jury returned a sixth superceding indictment, SSSSSS 88 Cr. 919, charging seven counts against some fifteen defendants, including Gambino and Romano. The indictment alleged a large-scale narcotics conspiracy, spanning almost fifteen years, and involving an international organization known as "the Mafia" or "La Cosa Nostra." Originally, both Gambino and Romano were named in Counts One and Two of the indictment. However, during the pendency of this appeal, the government determined not to pursue its prosecution on Counts One and Two against Romano. The government filed a motion, which was granted, to remand those counts to enable it to file a nolle prosequi as to Romano. This nolle prosequi will also result in the deletion of Romano's name from the corresponding RICO predicate acts.
9
Count One of the sixth superceding indictment charges that, between January 1, 1975 and the date the indictment was filed, the defendants participated in a conspiracy to import heroin and cocaine into the United States, in violation of 21 U.S.C. Sec. 963 (1988). This conspiracy allegedly involved the international smuggling, as well as primary and secondary wholesale distribution, of narcotics. Count One enumerates 172 overt acts, including specific narcotics transactions, meetings, and communications between defendants and their co-conspirators. Gambino is named in more than forty of those overt acts, including two overt acts related to his participation in the March 1980 heroin importation scheme. In a seventh superceding indictment, filed shortly before the district court rendered its decision on the underlying motion, the government alleged eleven additional overt acts, all of which name Gambino.
10
Count Two of the indictment alleges that the defendants conspired to distribute or to possess with intent to distribute heroin and cocaine, in violation of 21 U.S.C. Sec. 846 (1988). This count incorporates the overt acts alleged in Count One.
11
Defendant Gambino is charged in Count Three of the indictment with organizing and supervising a CCE, in violation of 21 U.S.C. Secs. 848(a) & (b) (1988). This count incorporates the violations alleged in Counts One and Two and alleges that Gambino supervised the CCE from January 1, 1975 to the date of the indictment.
12
Count Seven of the indictment charges that Gambino and Romano, along with their co-defendants, conspired to conduct a racketeering enterprise, in violation of RICO, 18 U.S.C. Sec. 1962(d) (1988). Count Seven alleges a pattern of racketeering activity consisting of forty-two predicate acts, including narcotics transactions, bribery, extortion, gambling, murder, and obstruction of justice, occurring between January 1, 1970 and the date of the indictment. The predicate acts in which Gambino and Romano are both named include: possessing more than 500 grams of cocaine with intent to distribute on or about June 29, 1987; bribing a public official in February 1987 in order to facilitate the escape from federal custody of a co-defendant; travelling interstate in March 1987 in aid of racketeering activities; conspiring to make extortionate extensions of credit from January 1, 1975 to September 1, 1989; and conspiring during the same time period to use extortionate means to collect extensions of credit. In the seventh superceding indictment, the government alleged five additional predicate acts to support the racketeering conspiracy alleged in Count Seven.
13
D. The motion to dismiss.
14
On September 29, 1989, Gambino and Romano each moved to dismiss various counts of the sixth superceding indictment on the ground that prosecution on those counts violates the double jeopardy clause of the fifth amendment. According to Gambino, the overt acts alleged in the Count One importation conspiracy reflect conduct for which he was prosecuted in Gambino I. Further, Gambino argued that his prosecution for the Count Two distribution conspiracy is barred under the collateral estoppel principle. Gambino also argued that the Count Three continuing criminal enterprise charge is a lesser included offense of Counts One and Two and, therefore, should be dismissed. Finally, Gambino contended, in the alternative, that the government should be collaterally estopped from introducing any evidence of the March 1980 attempted importation of heroin since he was acquitted of that offense.
15
According to Romano, his prosecution for Counts One, Two and Seven of the sixth superceding indictment is barred by his acquittal in Adamita. His challenge to the prosecution of Counts One and Two is rendered moot by the government's decision to file a nolle prosequi on those counts. However, Romano maintains his argument that the prosecution for conspiracy to violate RICO (Count Seven) is barred by the previous prosecution of various alleged predicate acts.
16
In response to Gambino's motion, the government argued that Gambino I concerned a single, fifteen-day narcotics conspiracy, while Counts One and Two of the sixth superceding indictment allege an extensive narcotics conspiracy spanning nearly fifteen years. The government also contended that, since Count Two (conspiracy to distribute) and Count Three (CCE) are statutorily distinct offenses from the offense charged in Gambino I, double jeopardy does not bar prosecution on those counts. Finally, the government argued that Gambino had not met his burden of proving that his acquittal in Gambino I entailed a finding that he had no involvement in the March 1980 importation scheme. In support of these arguments, the government proffered much of the evidence that it intended to introduce at trial. It also summarized the evidence presented in Gambino I and submitted the available transcripts from that trial to the court.
17
With respect to Romano's challenge to Count Seven, the government argued that Romano could be prosecuted under RICO because he had never before been charged with a RICO conspiracy, nor had he previously been charged with several of the alleged predicate acts.
18
On January 25, 1990, the district court issued an opinion and order denying the defendants' double jeopardy challenges to the indictment. The court conducted a thorough analysis of defendants' double jeopardy claims, applying the factors set forth in United States v. Korfant, 771 F.2d 660 (2d Cir.1985) (per curiam). It concluded that, under Korfant, Gambino's prosecution on Count One was not barred by his acquittal in Gambino I. It further determined that Gambino could be prosecuted on Count Two since it alleged a statutory offense different from that alleged in Gambino I. Finally, since Gambino's challenge to Count Three rested on his attacks on Counts One and Two, the court rejected that challenge. The court did, however, partially grant Gambino's motion to preclude the introduction of evidence of his involvement in the March 1980 plan to import heroin. Finding that the jury's verdict in Gambino I reflected a judgment about the credibility of Frank Rolli's testimony, the court ruled that this evidence could not be introduced to establish the conspiracy to import narcotics alleged in Count One. Evidence of the March 1980 scheme remained admissible in the government's prosecution of the conspiracy to distribute narcotics charged in Count Two, however, because the factual issues raised by this charge differ from those raised by the importation conspiracy charged in Gambino I.
19
The district court denied Romano's motion to dismiss Count Seven, finding that it alleged significant criminal activity for which he was not prosecuted in Adamita.
20
This appeal followed.
DISCUSSION
21
I. Counts One and Two.
22
In reaching its decision, the district court applied the principle that the successive prosecution of conspiracies is barred by double jeopardy if "the offenses charged [are] in fact and in law the same." United States v. Armedo-Sarmiento, 545 F.2d 785, 792 (2d Cir.1976), cert. denied, 430 U.S. 917, 97 S.Ct. 1330, 51 L.Ed.2d 595 (1977). Its determination was guided by the Korfant factors, which include:
23
(1) the criminal offenses charged in successive indictments; (2) the overlap of participants; (3) the overlap of time; (4) similarity of operation; (5) the existence of common overt acts; (6) the geographic scope of the alleged conspiracies or location where overt acts occurred; (7) common objectives; and (8) the degree of interdependence between alleged distinct conspiracies.
24
Korfant, 771 F.2d at 662; see United States v. Reiter, 848 F.2d 336, 340 (2d Cir.1988). Based on these factors, the court concluded that prosecution on Counts One and Two was not barred by the defendants' previous prosecutions.
25
On May 29, 1990, some twenty-two days after this appeal was heard, the Supreme Court announced its decision in Grady v. Corbin, --- U.S. ----, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In Grady, the Court held that a state prosecution for vehicular homicide was barred by the defendant's previous misdemeanor convictions for driving while intoxicated and failing to keep right of the median--conduct specified in the homicide bill of particulars to establish the element of negligence or recklessness. Id. 110 S.Ct. at 2094. The Court noted, however, that the prosecution would have been permissible "if the bill of particulars revealed that the State would not rely on proving the conduct for which Corbin had already been convicted." Id.
26
Grady significantly altered the jurisprudential landscape of double jeopardy, supplementing the traditional inquiry required by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and its progeny.1 According to Grady: "[T]he Double Jeopardy Clause bars a subsequent prosecution if, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted." Grady, 110 S.Ct. at 2087. The Court rejected a "same evidence" approach, id. at 2093 n. 12, and instead focused on the government's use of previously prosecuted conduct "to establish an essential element" of the offense charged in the second prosecution, id. at 2087.
27
This "same conduct" test applies equally to successive prosecutions in "single transaction" cases, such as Grady itself, and conspiracy cases. United States v. Calderone, 917 F.2d 717, 721 (2d Cir.1990). In Calderone, a divided panel held that defendants' acquittal on charges of participating in a wide-ranging, multi-drug conspiracy barred a subsequent prosecution alleging a narrower, single-drug conspiracy. The Court reasoned that the "conduct that constitutes an offense" in a conspiracy prosecution is that conduct from which the jury may infer the existence of an agreement. Id. at 721. It concluded that "[u]nder Grady, this conduct may not be prosecuted a second time in order to establish an 'agreement' that differs from the first crime only in that the indictment happens to describe it differently." Id. at 721. Accordingly, the Korfant factors applied by the district court are inadequate to satisfy double jeopardy concerns after Grady. Id. at 721 ("To the extent that Korfant and our other opinions in this area conflict with Grady, they are no longer good law.").
28
With these principles in mind, we believe it appropriate to vacate the district court's order and remand for the court's consideration of whether to dismiss, with leave to re-present, Counts One and Two of the indictment against Gambino or to order redaction of the offending portions of the indictment. Because these counts rest, at least partially, on overt acts for which Gambino has been previously prosecuted, they may not remain in the indictment against Gambino.
29
II. Counts Three and Seven.
30
The infirmity of Counts One and Two does not extend to Counts Three and Seven. While Grady announces a significant change in our approach to most successive prosecutions, we decline to read into Grady a disavowal of all prior double jeopardy precedent. Thus, our view on the propriety of proving previously prosecuted conduct as predicate acts in a subsequent CCE or RICO prosecution is unaltered. See United States v. Scarpa, 913 F.2d 993, 1014 n. 8 (2d Cir.1990). The permissibility of such subsequent prosecutions, in cases involving alleged predicate acts occurring after the initial prosecution, is well-established in this Circuit. See United States v. Persico, 774 F.2d 30, 32 (2d Cir.1985); United States v. Amen, 831 F.2d 373, 381 (2d Cir.1987), cert. denied, 485 U.S. 1021, 108 S.Ct. 1573, 99 L.Ed.2d 889 (1988). These decisions rest on the Supreme Court's holding in Garrett v. United States, 471 U.S. 773, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985), that, if the government shows conduct subsequent to a prosecution, "it does not violate the Double Jeopardy Clause ... to prosecute the CCE offense after a prior conviction for one of the predicate offenses." Id. at 793, 105 S.Ct. at 2418. See also id. at 798, 105 S.Ct. at 2421 (O'Connor, J., concurring). In other words, "[o]ne who insists that the music stop and the piper be paid at a particular point must at least have stopped dancing himself before he may seek such an accounting." Id. at 790, 105 S.Ct. at 2417.
31
That the principles underlying Garrett survive Grady is rooted in the admonition that double jeopardy principles developed in the "classically simple situation presented in" single transaction cases not be readily transposed to the "multilayered conduct, both as to time and to place involved" in CCE and RICO cases. Id. at 789, 105 S.Ct. at 2416. CCE and RICO are "compound-complex felonies," United States v. Pungitore, 910 F.2d 1084, 1109 (3d Cir.1990), which often cannot be charged until after their individual predicate acts have been prosecuted. See Garrett, 471 U.S. at 788-89, 105 S.Ct. at 2416-17 (at time of initial prosecution, "it could not then have been said with any certainty that [defendant] would necessarily go ahead and commit the other violations required to render him liable on a CCE charge"). A similar exception was addressed in Grady:
32
We recognized in Brown v. Ohio, 432 U.S. 161, 169, and n. 7 [97 S.Ct. 2221, 2227, and n. 7, 53 L.Ed.2d 187] (1977), that when application of our traditional double jeopardy analysis would bar a subsequent prosecution, "[a]n exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain that charge have not occurred or have not been discovered despite the exercise of due diligence."
33
Grady, 110 S.Ct. at 2090 n. 7.
34
This case presents just such a situation because several of the predicate acts constituting the CCE charged against Gambino and the RICO conspiracy charged against Gambino and Romano occurred after their previous prosecutions.2 Gambino's alleged criminal conduct, which underpins the CCE and RICO charges, continued well past his 1981 acquittal in Gambino I. This activity includes participating, in 1987 and 1988, in obtaining some twenty kilograms of cocaine, facilitating the escape, in 1987, of a co-defendant from INS detention in Florida, and negotiating narcotics transactions through March 1988. Romano's alleged criminal activity continued beyond his 1989 acquittal in Adamita, and includes participating in an extortionate credit conspiracy, using the telephone to facilitate narcotics trafficking, and continuing to conspire to import and distribute narcotics. It should be noted that this case is unlike United States v. Russo, 906 F.2d 77 (2d Cir.1990) (per curiam), in which the government conceded that a subsequent prosecution for conduct that constituted predicate acts in a previous RICO conspiracy prosecution was barred. But see United States v. Esposito, 912 F.2d 60, 64-65 (3d Cir.1990) (prosecution for individual predicate acts following acquittal on RICO charge not barred by double jeopardy).
35
Grady does not disturb this rationale. In fact, given the opportunity to expressly overrule Garrett, the Court in Grady cited the case with apparent approval. See Grady, 110 S.Ct. at 2090-91, 2094 n. 15; see also Pungitore, 910 F.2d at 1111 n. 29 ("We dismiss out of hand the possibility that Grady overruled Garrett. If the Supreme Court on such grossly dissimilar facts intended to abandon Garrett, we think it would have said so. Instead, both the majority and the dissent in Grady cited Garrett without ever hinting that Garrett no longer was good law.").
36
Accordingly, Count Three's CCE charge and Count Seven's RICO conspiracy charge may properly be prosecuted under the present indictment. It should be noted that, while the prosecution of Counts Three and Seven is not barred by double jeopardy, the rules of evidence remain applicable. The district court recognized this constraint by precluding the introduction of Frank Rolli's testimony against Gambino on Count One and by "forewarn[ing]" that it would consider at trial the admissibility under Fed.R.Evid. 403 of this testimony on Count Two. We leave to the district court's wise discretion the continued application of the rules to ensure the fair prosecution of Counts Three and Seven.
CONCLUSION
37
For the reasons discussed above, we hold that the prosecution of Gambino on Counts One and Two is barred by double jeopardy. We further hold that the prosecution of Gambino on Count Three and the prosecution of Gambino and Romano on Count Seven is not barred by double jeopardy. Accordingly, the order of the district court is affirmed, in part, and reversed, in part, and remanded. Upon remand, the district court shall consider whether to dismiss, with leave to re-present, Counts One and Two of the indictment or to order redaction of the offending portions of the indictment.
*
The Honorable Milton Pollack, United States District Court for the Southern District of New York, sitting by designation
1
At the Court's request, the parties submitted letter-briefs addressing the impact of Grady on the present case
2
In his letter-brief, filed at the Court's request, Gambino challenges the RICO charge on the basis that it includes, as predicate acts, conduct for which he was previously prosecuted. Though this claim was not made in Gambino's initial brief, we address it along with the identical claim of Romano
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Filed 8/20/15 P. v. Patton CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B258914
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA048679)
v.
PERRELL C. PATTON,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles County. William C.
Ryan, Judge. Reversed and remanded.
Wayne C. Tobin for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Stephanie C.
Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
******
In 2003, this division affirmed the judgment following defendant Perrell C.
Patton’s convictions for carjacking, attempted kidnapping for carjacking, evading police
officers, and possession of cocaine. Defendant was sentenced to three consecutive
indeterminate terms of 25 years to life. The court also imposed sentences for various
enhancements and stayed the sentence for attempted kidnapping for carjacking pursuant
to Penal Code section 654.
After the voters passed Proposition 36, the Three Strikes Reform Act of 2012
(now codified at Pen. Code, § 1170.126), defendant filed a petition for recall of sentence.
Defendant acknowledged that two of the four triggering offenses were serious or violent
felonies (carjacking and attempted kidnapping), but he sought resentencing on the
two felonies that were not serious or violent (evasion of a peace officer and possession of
cocaine). The trial court denied the petition.
Recently, in People v. Johnson and People v. Machado (2015) 61 Cal.4th 674, 695
(Johnson/Machado), the Supreme Court held “an inmate is eligible for resentencing with
respect to a current offense that is neither serious nor violent despite the presence of
another current offense that is serious or violent.” This court requested that counsel
submit letter briefs stating how Johnson/Machado affects the disposition of this appeal.
We have received the parties’ briefs. There is no dispute that defendant is entitled to a
hearing on his petition for recall of sentence. Respondent requests that we order the trial
court on remand to make further eligibility findings to determine whether defendant
poses an unreasonable risk of danger to public safety with respect to the counts that are
not serious or violent felonies. We decline to tell the trial court how to proceed, apart
from reversing the order denying the petition and remanding for further proceedings in
conformance with Johnson/Machado.
DISPOSITION
The order denying the petition for recall of sentence under Penal Code
section 1170.126 is reversed. The matter is remanded for further proceedings in
conformance with Johnson/Machado.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J. FLIER, J.
2
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
CAMERON LEEZELL TAYLOR, Appellant.
No. 1 CA-CR 16-0600
FILED 8-29-2017
Appeal from the Superior Court in Maricopa County
No. CR2014-000910-001
The Honorable Michael W. Kemp, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee
Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
STATE v. TAYLOR
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Randall M. Howe joined.
M c M U R D I E, Judge:
¶1 Cameron Leezell Taylor appeals his convictions and
sentences for drive-by shooting, aggravated assault, assisting a criminal
street gang, second-degree murder, and endangerment. For the following
reasons, we affirm.
FACTS AND PROCEDURAL BACKGROUND 1
¶2 Shortly before noon on March 23, 2009, J.M., Antwone C.,
Arkeem C., and Taylor were driving through a south Phoenix
neighborhood in J.M.’s Honda Accord. At some point, the men, all
documented gang members, began following a Chevrolet Caprice occupied
by two rival gang members, T.C. and E.M., and two women, S.M. and A.B.
As J.M. drove, Taylor, the front-seat passenger, withdrew a handgun from
his waistband. When the Accord pulled within two or three car lengths
behind the Caprice, Taylor extended his arm outside the front-passenger
window and began shooting. At the same time, backseat passenger Arkeem
C. stood upright through the Honda’s sunroof and began firing a rifle at the
Caprice. Initially, the handgun bullets ricocheted off the road, but Taylor
quickly adjusted his aim upward and he and Arkeem C. shot at their rivals’
vehicle for approximately twenty seconds before the Caprice’s driver, A.B.,
maneuvered through traffic and sped away.
¶3 Notwithstanding A.B.’s evasive actions, a bullet hit E.M. in
the back. Another bullet pierced the rear window of an unrelated vehicle,
striking and killing G.L. A third bullet hit the tire of another unrelated
vehicle, but that driver, N.M., was not injured.
¶4 Following these events, Taylor was the target of an extensive,
multi-agency law enforcement investigation, but he eluded capture until
November 21, 2013. Once he was apprehended, the State charged Taylor
1 We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).
2
STATE v. TAYLOR
Decision of the Court
with one count of drive-by shooting (Count 1), four counts of aggravated
assault (Count 2 – victim E.M.; Count 3 – victim T.C.; Count 4 – victim S.M.;
and Count 5 – victim A.B); one count of assisting a criminal street gang
(Count 6); one count of first-degree, premeditated murder (Count 7 – victim
G.L.); and one count of endangerment (Count 8 – victim N.M.). The State
also alleged numerous aggravating factors.
¶5 Eight days into the first trial, the court granted Taylor’s
motion for a mistrial. After the State’s presentation of evidence at the
second trial, Taylor moved for a judgment of acquittal on Counts 3 and 4,
which the trial court granted. The jury then found Taylor not guilty of
first-degree murder, guilty of the lesser-included offense of second-degree
murder, and guilty of the remaining charges. The jury also found multiple
aggravating factors for each count. The superior court sentenced Taylor to
an aggravated term of 12 years’ imprisonment on Count 1, a concurrent,
aggravated term of 3.5 years’ imprisonment on Count 6, a concurrent,
aggravated term of 22 years’ imprisonment on Count 7, a consecutive (as to
Counts 1, 6, and 7), aggravated term of 12 years’ imprisonment on Count 2,
a consecutive (as to Count 2), aggravated term of 12 years’ imprisonment
on Count 5, and a consecutive (as to Count 5), aggravated term of 3 years’
imprisonment on Count 8. Taylor timely appealed and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1). 2
DISCUSSION
A. Alleged Double Jeopardy Bar to Second Trial.
¶6 Taylor argues the trial court should have barred retrial
pursuant to the Double Jeopardy Clauses of the United States and Arizona
Constitutions. See U.S. Const. amend. V; Ariz. Const. art. 2, § 10.
¶7 Before his first trial, Taylor moved in limine to preclude any
evidence that he fled or concealed his whereabouts after the shooting. The
State opposed the motion, explaining the search for Taylor “became local
and national news” and included multiple profiles on the television
program America’s Most Wanted. At a hearing on the motion, defense
counsel argued any evidence regarding the manhunt to find Taylor was
inadmissible hearsay. In response, the prosecutor acknowledged the U.S.
Marshal who led the manhunt was not available to testify, but argued a
2 Absent material revision after the date of an alleged offense, we cite
to the current version of applicable statutes and rules.
3
STATE v. TAYLOR
Decision of the Court
local detective who assisted the U.S. Marshal should be permitted to testify
regarding events he witnessed firsthand. After hearing from the parties, the
trial court precluded as unfairly prejudicial any evidence regarding
Taylor’s profiles on America’s Most Wanted. The court further held,
however, other non-hearsay evidence regarding Taylor’s capture was
admissible.
¶8 Notwithstanding the evidentiary ruling, during the first trial,
the prosecutor asked a local police detective whether he “personally
contact[ed] America’s Most Wanted regarding [Taylor].” The detective
responded in the affirmative, and defense counsel objected and asked to
approach the bench. During the ensuing bench conference, defense counsel
argued the prosecutor violated the court’s pretrial order. The prosecutor
denied violating the order, maintaining the court’s evidentiary ruling
precluded only evidence regarding the U.S. Marshal who led the manhunt.
At that point, defense counsel moved for a mistrial. To allow the court
reporter time to prepare a transcript of the motion in limine hearing, the trial
court delayed ruling on the motion for mistrial.
¶9 The following morning, after reviewing the transcripts of
both the motion in limine hearing and the relevant testimony from the
previous day, the trial court asked the prosecutor to explain why he asked
“that question” in contravention of the court’s order. The prosecutor stated
he erroneously believed the trial court’s evidentiary ruling excluded only
hearsay evidence. Having just reviewed the motion in limine transcript, the
prosecutor avowed he “never would have asked the question” had he
realized the trial court’s ruling, with respect to America’s Most Wanted
evidence, was predicated on unfair prejudice rather than hearsay. After the
prosecutor acknowledged that nothing could ameliorate the resulting
prejudice, the court declared a mistrial. In doing so, the court found the
prosecutor’s violation was negligent, not intentional. The matter then
proceeded to a second trial.
¶10 Taylor argues the trial court’s remedy of mistrial was
insufficient. Indeed, asserting the prosecutor intentionally “crafted”
questions “to elicit the exact information” precluded by court order, Taylor
contends the court should have “barred a retrial.”
¶11 “Whether double jeopardy bars retrial is a question of law,
which we review de novo.” State v. Moody, 208 Ariz. 424, 437, ¶ 18 (2004).
Although a defendant “ordinarily waives” his “right to be free from
multiple trials” when he “seeks a new trial because of error in the original
trial,” there is no such waiver “when the need for a second trial is brought
4
STATE v. TAYLOR
Decision of the Court
about by the state’s egregiously intentional, improper conduct.” State v.
Jorgenson, 198 Ariz. 390, 391, ¶ 6 (2000). Stated differently, when the
prosecutor’s intentional misconduct is the reason the defendant seeks a new
trial, “the State has intentionally exposed the defendant to multiple trials
for the same crime,” the precise harm the Double Jeopardy Clauses were
“intended to prevent.” Id. at 392, ¶ 6. Accordingly, jeopardy attaches when
a mistrial is granted on a defendant’s motion if: (1) the motion is predicated
on the prosecutor’s improper conduct; (2) “such conduct is not merely the
result of legal error, negligence, mistake, or insignificant impropriety, but,
taken as a whole, amounts to intentional conduct which the prosecutor
knows to be improper and prejudicial”; and (3) the conduct causes
prejudice that cannot be cured by means short of a mistrial. Pool v. Superior
Court (State), 139 Ariz. 98, 108–09 (1984).
¶12 In this case, the prosecutor admitted he violated the trial
court’s evidentiary ruling and acknowledged it was impossible to “unring
[the] bell.” Therefore, the only question remaining is whether the
prosecutor’s conduct was intentional. We review a trial court’s finding
regarding a prosecutor’s intent for clear error. See State v. Lamar, 205 Ariz.
431, 440, ¶ 45 (2003) (the trial court’s finding that the prosecutor did not
engage in intentional misconduct was not “clearly erroneous”); see also State
v. Cuffle, 171 Ariz. 49, 51 (1992) (“Appellate review of a trial court’s findings
of fact is limited to a determination whether those findings are clearly
erroneous.”); State v. Korovkin, 202 Ariz. 493, 495, ¶ 8 (App. 2002) (“We defer
to the trial court’s finding that the prosecutor’s comment here, if improper,
was not intentionally so.”).
¶13 On this record, we cannot say the trial court’s finding that the
prosecutor negligently, rather than intentionally, violated the evidentiary
order was clearly erroneous. The prosecutor avowed that he
misunderstood the legal basis for the trail court’s ruling, and thereby
mistakenly believed he was foreclosed only from introducing hearsay
evidence regarding the U.S. Marshal’s investigation. Although the
evidentiary ruling was clearly broader in scope, and precluded any
reference to Taylor’s profiles on America’s Most Wanted, the trial court had
the opportunity to assess the prosecutor’s credibility firsthand, and nothing
in the record suggests that the prosecutor was less than forthcoming when
he explained he had simply misunderstood the nature of the evidentiary
ruling. See State v. Garcia, 224 Ariz. 1, 10, ¶ 22 (2010) (a reviewing court
defers to the trial court’s assessment of a prosecutor’s credibility).
Accordingly, jeopardy did not attach when the trial court granted the
mistrial, and Taylor’s double jeopardy rights were not violated by a second
trial.
5
STATE v. TAYLOR
Decision of the Court
B. Alleged Jury Panel Taint.
¶14 Taylor contends the trial court should have stricken the entire
jury panel after a prospective juror intimated that he knew either defense
counsel or Taylor through his ministry outreach program at a local jail.
¶15 While conducting voir dire on the first day of the second trial,
the court introduced Taylor and defense counsel to the venire panel and
inquired whether any prospective jurors knew either man. In response, two
jurors raised their hands. The first juror (“Juror No. 18”) explained defense
counsel had previously represented him in a criminal matter, and the men
had subsequently become friends. At that point, the court explained the
jury would be required to assess Taylor’s culpability solely based on the
evidence presented in court, and Juror No. 18 stated he could follow that
instruction. Turning to the second juror (“Juror No. 54”), the court asked,
“[W]ho do you know?” Without directly answering the question posed,
Juror No. 54 stated, “I’m a lay minister. I’ve just come off a ministry in
Sheriff Joe’s 4th Avenue Jail where I was privileged to preach the gospel.”
Without asking any follow-up questions, the court stated that the parties
would speak with Juror No. 54 privately.
¶16 Later, after excusing the other prospective jurors from the
courtroom, the court and parties met privately with Juror No. 54. When
asked whether he knew Taylor, Juror No. 54 stated, “I don’t recognize him.”
The court then excused Juror No. 54 from the courtroom and expressed
concern that the other prospective jurors may nonetheless believe Juror No.
54 recognized Taylor from his jail ministry. Defense counsel discounted any
possible prejudice, and suggested Juror No. 54 may have recognized him
rather than Taylor. But Taylor, through counsel, expressed a residual
concern that Juror No. 54’s remarks may have improperly influenced the
other jurors. Given this concern, defense counsel suggested the court excuse
Juror No. 54 as a precautionary measure. Noting the prosecutor did not
object, the trial court struck Juror No. 54 accordingly.
¶17 Although Taylor claims he urged the trial court to strike the
entire jury panel, the record reflects that he moved to strike only Juror No.
54. We therefore review his challenge to the impartiality of the entire panel
only for fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561,
567, ¶ 20 (2005); see also State v. Garza, 216 Ariz. 56, 63, ¶ 20 (2007) (reviewing
a defendant’s challenges to the voir dire process, raised for the first time on
appeal, for fundamental error).
6
STATE v. TAYLOR
Decision of the Court
¶18 A defendant has a constitutional right to a fair and impartial
jury, but he is not entitled to a “particular jury.” State v. Greenawalt, 128 Ariz.
150, 167 (1981). As the party challenging the impartiality of a jury panel, a
defendant bears the burden of showing that a juror’s voir dire statements
prejudiced empaneled jurors. See State v. Doerr, 193 Ariz. 56, 61, ¶ 18 (1998).
To meet this burden, the defendant must present “objective indications of
jurors’ prejudice.” State v. Tison, 129 Ariz. 526, 535 (1981). In reviewing such
a claim, an appellate court does not presume prejudice because the trial
court is in the “best position” to assess a remark’s “impact on the jurors.”
Doerr, 193 Ariz. at 62, ¶ 23.
¶19 Applying these principles here, Taylor has failed to
demonstrate that he was denied his right to a fair and impartial jury. He
does not identify anything in the record that suggests an empaneled juror
was prejudiced by Juror No. 54’s ambiguous, isolated, and fleeting remark.
Relying primarily on Mach v. Stewart, 137 F.3d 630, 632–33 (9th Cir. 1997),
Taylor speculates that Juror No. 54’s comments may have improperly
influenced one or more jurors. However, speculation is insufficient to
demonstrate prejudice for purposes of fundamental error review. See State
v. Trostle, 191 Ariz. 4, 13–14 (1997). Moreover, unlike the circumstances in
Mach, in which a juror had repeatedly made “expert-like” statements
regarding “material issues” related to “the defendant’s guilt and the
victim’s truthfulness,” Doerr, 193 Ariz. at 62, ¶ 19 (quoting Mach, 137 F.3d
at 633), here, Juror No. 54 did not state he recognized Taylor from jail, much
less profess expert knowledge or comment on Taylor’s guilt or innocence.
Furthermore, the trial court instructed the jurors to evaluate Taylor’s
culpability solely based on the evidence presented at trial and not speculate
or “guess about any fact.” We presume jurors follow the trial court’s
instructions, and Taylor has not provided any evidence to rebut this
presumption. See State v. Newell, 212 Ariz. 389, 403, ¶ 68 (2006). Therefore,
Taylor has failed to present the requisite objective evidence of juror
prejudice, and the trial court did not err, much less commit fundamental
error, by failing to sua sponte strike the entire jury panel. 3
3 In his reply brief, Taylor argues for the first time that the empaneled
jurors may have also been improperly influenced by Juror No. 43’s voir dire
remarks. Because arguments raised for the first time in a reply brief are
waived, we do not address this claim. State v. Brown, 233 Ariz. 153, 163, ¶ 28
(App. 2013).
7
STATE v. TAYLOR
Decision of the Court
C. Inclusion of Lesser-Included Offense Instruction.
¶20 Taylor contends the trial court improperly instructed the jury,
over objection, on the lesser-included offense of second-degree murder. He
asserts no evidence supported the instruction.
¶21 During the settling of final jury instructions, the prosecutor
requested lesser-included offense instructions for second-degree murder
and manslaughter explaining, “the facts in this case suggest that the
shooting . . . could have happened all of a sudden.” Defense counsel
objected to either lesser-included offense instruction, arguing the projectile
evidence showed Arkeem C., not Taylor, caused G.L.’s death. Overruling
the objection, the trial court found evidence supported both instructions,
and explained the jury could reasonably find Taylor “was the shooter” but
“did not premeditate,” or that he acted sufficiently reckless to satisfy the
mens rea component of either lesser-included offense.
¶22 We review a trial court’s decision “to give a particular
instruction” for an abuse of discretion. State v. Sprang, 227 Ariz. 10, 12, ¶ 5
(App. 2011). A trial court may instruct the jury on any lesser-included
offense that is supported by the evidence. State v. Gipson, 229 Ariz. 484, 487,
¶ 17 (2012). A lesser-included offense instruction is warranted when a
reasonable jury could find: (1) the State failed to prove an element of the
greater offense, and (2) the evidence is sufficient to support a conviction on
the lesser offense. State v. Wall, 212 Ariz. 1, 4, ¶ 18 (2006).
¶23 To convict Taylor of second-degree murder in this case, the
State was required to prove that, acting without premeditation: (1) Taylor
intentionally or knowingly caused G.L.’s death, or (2) under circumstances
manifesting extreme indifference to human life, he recklessly engaged in
conduct that created a grave risk of death and thereby caused G.L.’s death.
See A.R.S. § 13-1104. Taylor does not dispute that the jury could reasonably
find the State failed to prove premeditation, the distinguishing element
between first-degree and second-degree murder. See Sprang, 227 Ariz. at 12,
¶ 6 (“Second-degree murder is a lesser-included offense of premediated
first-degree murder, the difference between the two being premeditation.”).
Instead, he argues no reasonable jury could find he caused the victim’s
death or acted recklessly, and therefore no evidence supported an
instruction on second-degree murder.
¶24 While it is true that a detective testified G.L. was shot in the
head by a “rifle round,” and J.M. testified Arkeem C., not Taylor, fired a
rifle on the day in question, the detective explained that his testimony was
8
STATE v. TAYLOR
Decision of the Court
based on the autopsy and lab reports, not a firsthand analysis. Contrary to
this detective’s testimony, the medical examiner who conducted the
autopsy of G.L. testified the projectile recovered from the body was too
“fragmented” to determine the caliber of the firing weapon. Likewise,
another detective, who processed the fragmented projectiles retrieved from
G.L.’s vehicle, testified he was unable to discern the weapon used.
Therefore, as noted by the State, the evidence did not rule out the possibility
that Taylor fired the fatal shot.
¶25 More importantly, the evidence reflects that Taylor and
Arkeem C. acted in concert to shoot at the Caprice. Immediately before the
shooting commenced, J.M. heard one of the men say, “Are you ready?”
Because their conduct was coordinated, and the trial court provided an
accomplice liability instruction, the jurors could reasonably find Taylor was
culpable for Arkeem C.’s actions during the drive-by shooting. See A.R.S.
§ 13-301 (defining “accomplice” as a person, acting “with the intent to
promote or facilitate the commission of an offense,” who solicits,
commands, aids, or counsels another person to commit an offense). In other
words, under a theory of accomplice liability, Taylor “caused” G.L.’s death
even if Arkeem C. fired the fatal shot. See State v. Baldenegro, 188 Ariz. 10, 13
(App. 1996) (jurors can find the defendant “guilty as an accomplice” even
if they “believed that [the defendant] drove the car and [a passenger] fired
the shots”).
¶26 Moreover, contrary to Taylor’s additional claims, substantial
evidence supports a finding that either he or Arkeem C. fired the fatal
bullet. Without equivocation, J.M. testified that: (1) Taylor directed him to
follow the Caprice, withdrew a handgun, leaned out the passenger
window, and repeatedly shot at the Caprice, and (2) Arkeem C. stood
upright through the sunroof and repeatedly fired a rifle at the Caprice.
Given this testimony and the uncontroverted evidence that G.L. sustained
his fatal head injury during the brief period that Arkeem C. and Taylor fired
their weapons, a reasonable jury could find that either Arkeem C. or Taylor
fired the fatal shot, and that both men were culpable.
¶27 With respect to the mens rea element, Taylor’s challenge is
likewise without merit. The location of the shooting was a “busy,”
high-traffic area. Shooting into a crowd, or in this case numerous occupied
vehicles, is quintessential recklessness. State v. Garnica, 209 Ariz. 96, 102,
¶ 24 (App. 2004) (the discharge of a weapon into a group was, “at the least,
reckless”). Although the record reflects that Taylor targeted only the
occupants of the Caprice, his reckless conduct endangered the lives of every
9
STATE v. TAYLOR
Decision of the Court
person in the vicinity, and took G.L.’s life. Therefore, the trial court did not
abuse its discretion by giving the second-degree murder instruction.
CONCLUSION
¶28 We affirm Taylor’s convictions and sentences.
AMY M. WOOD • Clerk of the Court
FILED: AA
10
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13 N.Y.3d 890 (2009)
2009 NY Slip Op 91237
921 N.E.2d 604
893 N.Y.S.2d 837
In the Matter of ALPHEAUS MARCUS, Appellant,
v.
NEW YORK STATE DIVISION OF PAROLE, Respondent.
Motion No: 2009-1113
Court of Appeals of New York.
Submitted October 19, 2009.
Decided December 15, 2009.
Motion for leave to appeal dismissed upon the ground that this motion does not properly lie to the Court of Appeals directly from the judgment of Supreme Court (see CPLR 5602).
| {
"pile_set_name": "FreeLaw"
} |
276 B.R. 206 (2002)
In re Krishan CHARI, and the Chari Group, Ltd., LLC, Debtors.
John Paul Rieser, Chapter 7 Trustee, Plaintiff,
v.
Karen Milford and Kevin Milford, Defendants.
Bankruptcy Nos. 99-35862, 99-35867. Adversary No. 01-3257.
United States Bankruptcy Court, S.D. Ohio, Western Division.
February 4, 2002.
*207 *208 *209 John Paul Rieser, Patricia J. Friesinger, Dayton, OH, for Chapter 7 Trustee.
Vincent DePascale, Diane Kappeler DePascale, Columbus, OH, for Defendants.
DECISION AND ORDER DENYING DEFENDANTS' MOTION TO DISMISS BUT REQUIRING TRUSTEE TO AMEND COMPLAINT TO PROVIDE MORE DEFINITE STATEMENT
WILLIAM A. CLARK, Bankruptcy Judge.
The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a) and 1334, and the standing General Order of Reference in this District. This proceeding constitutes a core proceeding pursuant to 28 U.S.C. §§ 157(b)(2)(E), (F) and (H).
This matter is before the court on Motion of Defendants Karen and Kevin Milford for Appropriate Relief Pursuant to F.R.C.P. 12(b)(2), 12(b)(6), 12(e) [Adv. Doc. # 8-1]; and the Trustee's Memorandum Contra [Adv. Doc. # 9-1]. After careful review of these documents and the Trustee's complaint, the court is prepared to render its decision.
FACTUAL AND PROCEDURAL BACKGROUND
On November 9, 2001, Chapter 7 Trustee John Paul Rieser filed his complaint to recover prepetition preferential and fraudulent transfers from the Defendants under bankruptcy and state law, to obtain an accounting, to obtain disgorgement of all monies received by Defendants from the Debtors beyond the transfers known by the Trustee to have occurred, to object to any present or future proofs of claim filed by the Defendants and to recover prejudgment interest, costs, expenses and attorney fees.
The Trustee's claims arise from the following fact allegations in the Trustee's complaint. Defendants Kevin and Karen Milford (collectively "the Milfords") were friends of Debtor Krishan Chari and Karen Milford worked as a bookkeeper for Debtors Krishan Chari and Chari Group, Ltd., LLC (collectively "Debtors"). [Adv. Doc. # 1-1, ¶ 7.] The Trustee alleges that the Milfords netted approximately $41,500.00 from two sales of real property to the Debtors for overinflated prices and without adequate consideration. [Id., ¶¶ 11-12.] On or about May 5, 1998, the Milfords purchased real property at 234 Virginia Avenue in Dayton Ohio for $37,000.00 which was sold to the Debtors less than three months later on July 31, 1998, for a price of $54,000.00. [Id., ¶ 11.] On or about June 6, 1998, the Milfords purchased a second piece of real property at 1532 Meriline Avenue in Dayton, Ohio for $49,500.00 and sold that property less than two months later to the Debtors for $74,000.00 on July 31, 1998. [Id., ¶ 12.] The Trustee further alleges that Defendants Kevin and Karen Milford each received a $5,000.00 check from the Debtors on December 31, 1998 within a year of the bankruptcy. [Id., ¶ 13.] The Trustee asserts that these transfers were for less than adequate consideration or were gifts. [Id., ¶ 19.] The Trustee's complaint contains several causes of action to recover these transfers as fraudulent or preferential transfers.
In addition to the above, the Trustee's complaint contains vague allegations that the Milfords benefitted from other presently unknown transactions with the Debtors. [Id., ¶ 14.] However, due to the lack *210 of cooperation from the Debtors, the Trustee does not know what kind or how many transfers are involved at the present time. [Id.] Thus, the Trustee's complaint contains causes of actions to recover transfers presently unknown, but that may be adduced after discovery and a full accounting. [Id., ¶¶ 23, 30, 40, 48, and 55-57.]
On December 11, 2001, the Milfords filed a motion to dismiss or, in the alternative, motion for a more definite statement. Although vague, the Milfords' motion appears to assert that the court lacks personal jurisdiction over them because they have been residents of New Hampshire for more than one year. [Adv. Doc. # 8-1, p. 2.] In addition to the above, the Milfords request that the court: 1) dismiss claims based on the Milfords' status as "insiders"; 2) dismiss claims to recover fraudulent transfers/preferences that do not fall within the one year statutory look back period; and 3) dismiss fraud claims for the Trustee's failure to plead fraud with particularity, or, in the alternative, require a more definite statement from the Trustee. The court will analyze these issues below.
LEGAL ANALYSIS
A. Rule 12(b)(2): Personal Jurisdiction
In the caption of their motion, the Milfords list Fed.R.Civ.P. 12(b)(2) as a basis for dismissal of the Trustee's complaint. Rule 12(b)(2), incorporated into bankruptcy proceedings by Fed. R. Bankr.P. 7012, covers dismissal based on a "lack of jurisdiction over the person." Nowhere within the motion and supporting memorandum do the Milfords raise an argument to support the court's lack of personal jurisdiction beyond their assertion that they have lived in New Hampshire for more than one year. [Adv. Doc. # 8-1, p. 2.]
The court begins by reminding the Milfords that it does not have a duty to research and construct legal arguments available to them. Helms v. Arboleda (In re Arboleda), 224 B.R. 640, 648 (Bankr.N.D.Ill.1998). Instead, arguments suggested by the Milfords within the caption of their motion should be fully addressed and analyzed by them within the supporting memorandum.
As to personal jurisdiction, the Milfords' residence in New Hampshire does not provide them with a basis for contesting this jurisdiction. Like a majority of the circuits, the Sixth Circuit holds that when a federal court sitting with federal question jurisdiction exercises personal jurisdiction pursuant to a national service of process provision, its jurisdiction is nationwide and it need not rely on a forum state's long-arm statute to establish extra-territorial jurisdiction outside the forum state. Medical Mutual of Ohio v. deSoto, 245 F.3d 561, 566-67 (6th Cir.2001). In bankruptcy adversary proceedings, national service of process is authorized pursuant to Fed. R. Bankr.P. 7004. Id. at 568 n. 4; Warfield v. KR Entertainment. Inc. (In re Federal Fountain, Inc.), 165 F.3d 600, 601 (8th Cir.1999). Thus, the relevant question to be asked is not whether defendants have minimum contacts with the forum state, but whether the defendants have sufficient contacts with the United States for the exercise of personal jurisdiction to comport with traditional notions of fair play and substantial justice. Medical Mutual, 245 F.3d at 566; Warfield, 165 F.3d at 602; Highway Equipment Co. v. Alexander Howden Limited (In re Highway Equipment Co.), 120 B.R. 910, 915 (Bankr.S.D.Ohio 1990) (holding that minimum contacts with the forum state are not necessary to establish personal jurisdiction in the bankruptcy context). The Milfords' residence within New Hampshire establishes *211 the minimum contacts with the United States necessary for this court to exercise personal jurisdiction over them.
B. Rule 12(b)(6): Stating a Claim Upon Which Relief Can Be Granted
The Milfords further request that the court dismiss the Trustee's complaint under Fed.R.Civ.P. 12(b)(6), incorporated in bankruptcy adversary proceedings by Fed. R. Bankr.P. 7012, for the Trustee's alleged failure to state a claim upon which relief can be granted. In considering the Milfords' motion to dismiss, the court is directed to construe the complaint in a light most favorable to the Trustee, accept as true all of the Trustee's well-pleaded factual allegations and determine whether the Trustee can prove no set of facts supporting his claims that would entitle him to relief. See Board of Trustees of Painesville Township v. City of Painesville, Ohio, 200 F.3d 396, 398 (6th Cir.1999); Coyne v. American Tobacco Co., 183 F.3d 488, 492 (6th Cir.1999).[1]
The Milfords dispute the sufficiency of the Trustee's fraudulent transfer and preferential transfer claims under the Bankruptcy Code[2] on several grounds. First, they assert that the Trustee has failed to allege facts supporting that the Milfords meet the definition of "insiders" under 11 U.S.C. § 101(31). Second, the Milfords argue that two of the alleged fraudulent or preferential transfers described in the complaint did not occur within 90 days or even within one year of the bankruptcy filing as required under the relevant statutes. Finally, the Milfords contest the speculative nature of some of the Trustee's claims and assert that the Trustee has not demonstrated any fraud on the part of the Milfords with particularity. The court will deal with each of these issues separately.
1. Insider Status Under § 101(31)
According to the Milfords' motion, the Trustee's assertions that Karen Milford was a bookkeeper of the Debtors with knowledge of the inner workings of the Debtors' business are insufficient to support that the Milfords are "insiders" under 11 U.S.C. § 101(31). Although not clear in the motion to dismiss, the Milfords' status as insiders is important to the Trustee's preferential transfer claims because it extends the "look back" period so that the Trustee may recover transfers made up to one year prior to the bankruptcy filing. 11 U.S.C. § 547(b)(4).
Section § 101(31) states that:
"insider" includes
(A) if the debtor is an individual
*212 (i) relative of the debtor or of a general partner of the debtor;
(ii) partnership in which the debtor is a general partner;
(iii) general partner of the debtor; or
(iv) corporation of which the debtor is a director, officer, or person in control;
(B) if the debtor is a corporation
(i) director of the debtor;
(ii) officer of the debtor;
(iii) person in control of the debtor;
(iv) partnership in which the debtor is a general partner;
(v) general partner of the debtor; or
(vi) relative of a general partner, director, officer, or person in control of the debtor;
(C) if the debtor is a partnership
(i) general partner in the debtor;
(ii) relative of a general partner in, general partner of, or person in control of the debtor;
(iii) partnership in which the debtor is a general partner;
(iv) general partner of the debtor; or
(v) person in control of the debtor;
(D) if the debtor is a municipality, elected official of the debtor or relative of an elected official of the debtor;
(E) affiliate, or insider of an affiliate as if such affiliate were the debtor; and
(F) managing agent of the debtor;
11 U.S.C. § 101(31).
The Milfords assert that none of the relationships in § 101(31) includes an employee-bookkeeper of a debtor. However, the relationships listed in the statute are not exhaustive, but only illustrative examples of "insider" relationships. In re Krehl, 86 F.3d 737, 741 (7th Cir.1996); Concord Square Apartments of Wood County, Ltd. v. Ottawa Properties, Inc. (In re Concord Square Apartments of Wood County, Ltd.), 174 B.R. 71, 75 (Bankr.S.D.Ohio 1994). In addition to the relationships named, "the term also encompasses anyone with `a sufficiently close relationship with the debtor [so] that [his/her] conduct is made subject to closer scrutiny than those dealing at arm's length with the debtor.'" Krehl, 86 F.3d at 741 (citing S.Rep. No. 989, 95th Cong.2d Sess., reprinted in 1978 U.S.C.C.A.N. 5787, 5810). The Trustee's complaint includes assertions that Karen Milford was an employee-bookkeeper of the Debtors with knowledge of the inner workings of the business. These factual assertions of a close working relationship between Karen Milford and the Debtors are sufficient to survive the motion to dismiss.
2. Timing of the Transfers under 11 U.S.C. § 547 and § 548
Next, the Milfords take issue with the timing of the transfers delineated in the Trustee's complaint. Specifically, the Milfords assert that two of the transfers occurred more than one year prior to the bankruptcy and, thus, cannot be recovered by the Trustee as preferential transfers under 11 U.S.C. § 547 or fraudulent transfers under 11 U.S.C. § 548. Both of these statutes have a maximum one year "look back" period for the recovery of such transfers. See 11 U.S.C. § 547(b)(4) and 11 U.S.C. § 548(a)(1).
The two transfers involve the Milfords' alleged sale of real estate on Virginia and Meriline Avenues to the Debtors for an overinflated price. According to the complaint, the sales of these properties to the Debtors occurred on or about July 31, 1998 [Adv. Doc. # 1-1, ¶¶ 12-13], which was *213 more than one year prior to the Debtors' bankruptcy filings on November 12, 1999. Yet the Trustee refers to these transfers, as well as others, collectively within his claims for relief. Thus, in his claims under 11 U.S.C. § 547 and § 548, the Trustee suggests that the real estate transactions, as part of the collective "transfers," occurred within one year prior to the bankruptcies. [See Adv. Doc. # 1-1, ¶¶ 23, 48.]
Because some of the alleged transfers, other than the real estate transactions, did take place within a year prior to the Debtors' bankruptcies[3], the Trustee has stated valid claims for relief under 11 U.S.C. § 547 and § 548. Thus, the Milfords' motion to dismiss on these grounds will be denied. However, the court agrees with the Milfords that the Trustee's vague reference to all of the transfers collectively, including ones that appear to fall outside the elements of certain claims for relief, makes the complaint difficult to answer. For these reasons, the court will grant the Milfords' alternative motion for a more definite statement and require the Trustee to delineate which of the specific transfers discussed in the complaint he is attempting to recover under each Bankruptcy Code or state statute claim for relief. In addition, if the Trustee is attempting to recover the Virginia and Meriline Avenue real estate transactions under 11 U.S.C. § 547 and § 548, the Trustee should explain how the transfers fall within the statutory "look back" period.
3. Pleading Fraud With Particularity
Finally, the Milfords argue that many of the Trustee's fraudulent transfer claims are speculative and that the Trustee has failed to plead these claims, as well as any fraud on the part of the Milfords, with particularity. Fed. R. Bankr.P. 7009(b) requires that:
In all averments of fraud or mistake, the circumstances constituting the fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.
Fed. R. Bankr.P. 7009(b) (incorporating into bankruptcy proceedings Fed.R.Civ.P. 9(b)).
First, the Milfords assert that the Trustee has failed to allege any fraud on their part as the transferees, with particularity. However, the Trustee's fraudulent transfer claims are based on the Debtors' actual or constructive fraud and do not require proof of fraud on the part of the transferees or that misrepresentations be made by the transferees. Kaler v. McLaren (In re McLaren), 236 B.R. 882, 889 (Bankr.D.N.D.1999) (noting that under § 548, "it is the intent of the Debtor as transfer or rather than that of the transferee or third parties, that is critical."). Because specific acts of fraud on the part of the transferees are not a required element of the Trustee's claims for relief, the Trustee's failure to plead fraud on the part of the Milfords with particularity does not form a basis for dismissal or require a more definite statement.[4]
Second, the Milfords take issue with the lack of specificity regarding some *214 of the transactions alluded to in the Trustee's complaint. The Trustee states that prepetition preferential and/or fraudulent transfers between the Debtors and the Milfords may exist beyond those delineated in the complaint, but are presently unknown to the Trustee because of the Debtors' lack of cooperation. [Adv.Doc. #1-1, ¶ 14.] Thus, the Trustee includes general averments of additional transfers planning to make the averments more specific after discovery and a full accounting. [Adv.Doc. #1-1, ¶¶ 23, 30, 40, 48 and 55-57.]
Although these claims of additional transactions are vague, the court understands the Trustee's limited ability to access information at the pleading stage and will not require the Trustee, "to include in [his] pleadings information only available from the defendants through discovery." Board of Trustees v. Illinois Range, Inc., 186 F.R.D. 498, 503 (N.D.Ill.1999); U.S. Trust Co. v. Raritan River Steel Co., Inc. (In re American Spring Bed Manufacturing Co.), 153 B.R. 365, 374 (Bankr.D.Mass.1993) (noting that less stringent requirements for pleading fraudulent transactions are appropriate in a bankruptcy proceeding involving a trustee suing a third party since essential facts would be solely within the knowledge of the defendants and the trustee would have to rely on second hand information to plead his case). For these reasons, the court will not grant the Milfords' motion to dismiss or motion for a more definite statement on the Trustee's speculative claims at this stage. However, after the passage of sufficient time for discovery, the court will require the Trustee to amend his complaint to include more specific averments of any additional relevant facts uncovered during discovery. The court reminds the Trustee that his amendments must meet the requirements of both Fed.R.Bankr.P. 7009 and Fed.R.Bankr.P. 7015.
CONCLUSION
The Milfords' motion to dismiss is denied. The Milfords' motion for a more definite statement is denied in part, but granted to the extent that the Trustee is required to detail which transfers he is attempting to recover under each of his claims for relief. Furthermore, if the Trustee is attempting to recover the Meriline and Virginia Avenue real estate transfers under either 11 U.S.C. § 547 or 11 U.S.C. § 548, he must explain how those transfers fall within the statutory "look back" period.
It is so ordered.
NOTES
[1] Failing to heed the standard for a 12(b)(6) motion to dismiss, the Milfords use a significant portion of their motion to deny factual allegations within the Trustee's complaint as "unfounded" or unsupported by the "evidence" or "known facts." The court would remind the Milfords that at this stage, the Trustee is not required to produce evidence to support his factual allegations. Instead, the standard for a 12(b)(6) motion requires the court, and the parties, to assume that the Trustee's factual allegations within the complaint are true. Only if no set of facts or circumstances would entitle the Trustee to relief should a motion to dismiss be granted. If the Milfords wish to test the support for the Trustee's factual allegations, that should be done through a properly supported motion for summary judgment or at trial.
[2] The Milfords do not take issue with the Trustee's other claims or with the Trustee's fraudulent transfer counts under Ohio law except to state in one sentence that "[t]here is no evidence that the commercial transactions met the definition under O.R.C. § 1336.04." [Adv. Doc. # 8-1, p. 4.] Because the Milfords do not further explain the transactions to which they refer or analyze what definition those transactions fail to meet, the court concludes that this assertion does not rise to the level of an argument and will disregard it.
[3] For example, the transfer of two $5,000.00 checks to the Milfords in December of 1998 occurred within a year of the bankruptcy filings.
[4] The Trustee does aver within the complaint, that the Milfords had actual or constructive knowledge of the Debtors' fraudulent acts and schemes. [See e.g., Adv.Doc. #1-1, ¶ 43.]. However, knowledge and intent may be averred generally under Fed.R.Bankr.P. 7009(b). Thus, these general averments do not form a basis for either dismissal or a more definite statement.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 14a0286p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SUNNY RIDGE MINING COMPANY, INC., ┐
Petitioner, │
│
│ No. 14-3010
v. │
>
│
HERBERT KEATHLEY and DIRECTOR, OFFICE OF │
WORKERS’ COMPENSATION PROGRAMS, UNITED │
STATES DEPARTMENT OF LABOR, │
Respondents. │
┘
On Petition for Review of an Order
of the Benefits Review Board.
No. 13-0211 BLA.
Argued: September 30, 2014
Decided and Filed: December 4, 2014
Before: DAUGHTREY, ROGERS, and DONALD, Circuit Judges.
_________________
COUNSEL
ARGUED: H. Brett Stonecipher, FOGLE KELLER PURDY, Lexington, Kentucky, for
Petitioner. Miller Kent Carter, CARTER & LUCAS, Pikeville, Kentucky, for Respondent
Keathley. Ann Marie Scarpino, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Federal Respondent. ON BRIEF: H. Brett Stonecipher, FOGLE KELLER PURDY,
Lexington, Kentucky, for Petitioner. Miller Kent Carter, CARTER & LUCAS, Pikeville,
Kentucky, William L. Roberts, Pikeville, Kentucky, for Respondent Keathley. Ann Marie
Scarpino, Sean G. Bajkowski, UNITED STATES DEPARTMENT OF LABOR, Washington,
D.C., for Federal Respondent.
1
No. 14-3010 Sunny Ridge Mining Co. v. Keathley, et al. Page 2
_________________
OPINION
_________________
ROGERS, Circuit Judge. In this black lung benefits case the administrative law judge
and the Benefits Review Board discounted the opinion of a doctor who, opining that
pneumoconiosis had not caused Herbert Keathley’s total disability, assumed that “bronchitis
associated with coal dust exposure usually ceases with cessation of exposure.” The ALJ and the
Board determined that this assumption was contrary to federal regulations, which state that
“pneumoconiosis” may be “latent and progressive” and may arise after exposure ceases. Sunny
Ridge Mining Company challenges this determination. Sunny Ridge also argues that the ALJ
improperly weighed pulmonary function tests while determining that Keathley was totally
disabled. The grant of black lung benefits must be upheld, however, because the ALJ could
properly conclude that the doctor’s opinion rested on a premise inconsistent with a federal
regulation and that this inconsistency warranted discrediting the doctor’s opinion.
Herbert Keathley worked at strip mines for sixteen-and-a-half years. He retired and his
health deteriorated. Believing he had pneumoconiosis attributable to his work as a coal miner,
he applied for benefits under the Black Lung Benefits Act, 30 U.S.C. § 901 et seq., which
provides money payments and medical benefits to coal miners totally disabled from
pneumoconiosis arising from their employment in coal mines. An ALJ denied Keathley’s
application for benefits, Keathley v. Sunny Ridge, 2009 BLA 5081 (Dep’t of Labor, Nov. 18,
2010), but later the Benefits Review Board vacated the denial and remanded the case to the ALJ
for further consideration of both of the issues raised on this appeal, Keathley v. Sunny Ridge
Mining Co., BRB No. 11-0205 BLA/A (Nov. 16, 2011) (unpub.). On remand, the ALJ awarded
benefits, Keathley v. Sunny Ridge, 2009 BLA 5081 (Dep’t of Labor, Jan 17, 2013), and this time
the Board affirmed, Keathley v. Sunny Ridge Mining Co., BRB No. 13-0211 BLA (Nov. 13,
2013) (unpub.). Sunny Ridge petitions for review of that award.
During the initial hearing, Keathley established his eligibility for benefits by triggering
30 U.S.C. § 921(c)(4)’s “fifteen-year presumption.” This presumption is triggered if the miner
(1) “was employed for fifteen years or more in one or more underground coal mines” or in
No. 14-3010 Sunny Ridge Mining Co. v. Keathley, et al. Page 3
surface mines with conditions “substantially similar to conditions in an underground mine” and
(2) suffers from a totally disabling respiratory or pulmonary impairment[.]” 30 U.S.C.
§ 921(c)(4). Proving these two conditions creates a rebuttable presumption that the miner has
pneumoconiosis caused by coal mining. Keathley proved both; he had worked in coal mines for
sixteen-and-a-half years and he was able to show a totally disabling impairment through a
combination of medical opinion testimony and tests showing poor pulmonary function.
Keathley’s pulmonary function had been tested seven times; five tests produced results
indicating total disability, while two did not. The ALJ found this preponderance of test results
sufficient to establish total disability. Once these conditions for the presumption were satisfied,
it was presumed that Keathley’s totally disabling pulmonary impairment was pneumoconiosis
caused by coal mining.
Sunny Ridge was originally successful in rebutting this presumption by offering medical
opinion evidence that Keathley did not suffer from pneumoconiosis caused by coal mine
employment, in the form of testimony by Dr. Bruce Broudy. Dr. Broudy diagnosed Keathley
with “a combination of chronic obstructive asthma and pulmonary emphysema and chronic
bronchitis” caused by smoking. While Dr. Broudy conceded that “coal dust may have
contributed to this gentleman’s impairment,” he concluded that “it’s far more likely that the
impairment was due to obstructive airways disease from cigarette smoking and some
predisposition to asthma or bronchospasm.” When asked how he ruled out coal dust exposure as
a cause, Dr. Broudy replied “coal dust exposure can cause chronic bronchitis. But for one thing,
the bronchitis associated with coal dust exposure usually ceases with cessation of exposure.” Dr.
Broudy agreed that “[c]linical or medical” pneuomoconiosis can progress without further
exposure, but he also agreed that “if chronic bronchitis is caused by coal dust exposure, when
you remove the exposure it should dissipate[.]” When asked whether he believed coal dust
exposure was a secondary cause, Dr. Broudy stated that he “wouldn’t rule it out completely as
being a possible cause,” but that it was not within “reasonable medical probability.” In the
ALJ’s 2010 decision, the ALJ found that Dr. Broudy’s testimony was sufficient to rebut the
presumption. The ALJ denied Keathley’s application for benefits.
No. 14-3010 Sunny Ridge Mining Co. v. Keathley, et al. Page 4
On appeal, the Benefits Review Board identified two errors in the ALJ’s decision: the
ALJ’s weighing of the pulmonary function test results was improperly based solely upon a count
of the disability-indicating versus non-disability-indicating results, and the ALJ had erred in not
addressing whether Dr. Broudy’s reasoning for excluding coal mine dust exposure as a cause
was inconsistent with the implementing regulations of the Black Lung Benefits Act. The Board
vacated the ALJ’s decision and remanded.
On remand, the ALJ reevaluated the pulmonary function tests. The ALJ noted that all the
tests met the Department of Labor’s regulatory standards and that no doctor had questioned the
validity of any result. Therefore, the ALJ found that all the test results were “clearly valid
representations of Keathley’s pulmonary function at the time of each test.” The ALJ also found
that the tests, which were all taken within a seven-month period, were “sufficiently
contemporaneous to provide a probative assessment.” Against the argument that the pulmonary
function test with the highest (and non-qualifying) value was the best because it represented peak
pulmonary capacity, the ALJ concluded that all the tests conforming to the regulatory standard,
where no other basis for invalidation existed, were sufficiently probative to establish total
disability, and that such a blanket preference for non-qualifying values was contrary to
regulations. Moreover, “on three out of four days of pulmonary testing over the course of seven
months, on two of three more recent test dates, and on the most recent test day, Keathley’s
pulmonary function met the total disability thresholds.” The ALJ concluded that all seven of the
tests were “equally probative” and that because five of the “conforming, valid, and probative”
tests indicated total disability, Keathley had met his burden of proof of establishing total
disability.
The ALJ also reconsidered Dr. Broudy’s diagnosis. The ALJ found that Dr. Broudy’s
diagnosis was indeed inconsistent with the regulations and discredited it. According to the ALJ,
Dr. Broudy’s statement—that “coal mine dust-related chronic bronchitis should dissipate with
cessation of coal mine dust exposure and usually stops with exposure cessation”—was
“inconsistent with the regulatory definition of pneumoconiosis in 20 C.F.R. § 718.201(c) as a
latent and progressive disease that may first become detectable only after the cessation of coal
mine dust exposure.” Additionally, the ALJ observed “the notable absence of any explanation
No. 14-3010 Sunny Ridge Mining Co. v. Keathley, et al. Page 5
by Dr. Broudy of how he specifically determined that Keathley’s coal mine dust exposure played
no role in his pulmonary impairment,” as well as Dr. Broudy’s concession that “coal mine dust
may have contributed to” the impairment. The ALJ concluded that these flaws in Dr. Broudy’s
analysis were “significant reasoning deficiencies that diminish the probative value of his
assessment to such extent that” it failed to rebut the presumption.
On appeal, the Board affirmed the ALJ’s weighing of the pulmonary function tests as
being based upon substantial evidence. The Board’s decision in this regard consisted entirely of
its rejection of Sunny Ridge’s arguments for giving greater weight to the two non-qualifying
tests. First, Sunny Ridge argued that the non-qualifying tests deserved greater weight because
they were more recent and more reliable. The Board approved the ALJ’s reliance on the lack of
any evidence calling into question the reliability of any test, and the Board determined that the
ALJ had permissibly concluded that the tests were equally reliable. The Board upheld the ALJ’s
finding that the tests established total disability as based upon substantial evidence.
The Board also affirmed the ALJ’s decision to discredit Dr. Broudy’s testimony as
inconsistent with 20 C.F.R. § 718.201(c)’s “latent and progressive” provision. Here, the Board’s
reasoning was conclusory; the Board stated only that the ALJ “rationally discounted” Dr.
Broudy’s opinion and then affirmed the ALJ’s decision.
Sunny Ridge now petitions for review. The Director of the Office of Workers’
Compensation Programs has filed a brief urging denial of Sunny Ridge’s petition.
The ALJ did not err by discounting Dr. Broudy’s testimony for being inconsistent with
20 C.F.R. § 718.201(c). When the sole reason given for a medical opinion about the cause of
pneumoconiosis conflicts with the Black Lung Benefits Act or its implementing regulations, an
ALJ may discount that opinion. See A & E Coal Co. v. Adams, 694 F.3d 798, 802 (6th Cir.
2012); Cumberland River Coal Co. v. Banks, 690 F.3d 477, 488 (6th Cir. 2012); Greene v. King
James Coal Mining, Inc., 575 F.3d 628, 638 (6th Cir. 2009) (discussing the “hostility-to-the-Act
rule”). The sole reason given by Dr. Broudy in support of his conclusion regarding the cause of
Keathley’s chronic bronchitis was inconsistent with federal regulations. When asked how he
ruled out coal dust exposure as a cause, Dr. Broudy replied that “the bronchitis associated with
coal dust exposure usually ceases with cessation of exposure.” This statement conflicts with the
No. 14-3010 Sunny Ridge Mining Co. v. Keathley, et al. Page 6
determination of the Department of Labor expressed in 20 C.F.R. § 718.201(c) that
pneumoconiosis is “a latent and progressive disease which may first become detectable only
after the cessation of coal mine dust exposure.”
Dr. Broudy’s statement about coal mine dust-related chronic bronchitis was a statement
about a form of legal pneumoconiosis. Legal pneumoconiosis is not medical pneumoconiosis; it
is a legal fiction—long recognized by courts and later codified in regulations—designed to
facilitate the remedial purposes of the Black Lung Benefits Act. The term goes beyond mere
“clinical pneumoconiosis,” which is the set of chronic lung diseases recognized by the medical
community as being characterized by the permanent deposition of particulate matter in the lungs
and the subsequent fibrotic reaction of the lungs. 20 C.F.R. § 718.201(a)(1). “Legal
pneumoconiosis” is a broad category encompassing “any chronic lung disease or impairment”
arising out of employment as a coal miner. 20 C.F.R. § 718.201(a)(2) (emphasis added).
Chronic bronchitis, when caused by exposure to coal mine dust, is a form of legal
pneumoconiosis.
Federal regulations recognize pneumoconiosis, including legal pneumoconiosis, as a
latent and progressive disease that may first become detectable after cessation of coal dust
exposure. This conclusion is compelled by previous decisions of this circuit. For instance, in
Cumberland River, we upheld an ALJ’s decision to discredit the testimony of a doctor who
opined that the miner’s chronic bronchitis was not caused by coal dust when the doctor justified
that opinion by reference to the time passed since the miner’s last exposure to coal dust.
690 F.3d at 487–88. These decisions are consistent with a plain reading of the regulation.
Subsection (a) of 20 C.F.R. § 718.201 defines “pneumoconiosis” as “includ[ing] both medical, or
‘clinical’, pneumoconiosis and statutory, or ‘legal’, pneumoconiosis.” The word
“pneumoconiosis” in subsection (c) of that same section is not specifically limited to either type
of pneumoconiosis. 20 C.F.R. § 718.201(c). It therefore applies to both. As the Fourth Circuit
stated in Barber v. Director, Office of Workers’ Compensation Programs, 43 F.3d 899, 901 (4th
Cir. 1995), “[t]he legal definition of ‘pneumoconiosis’ is incorporated into every instance the
word is used in the statute and regulations.” Further, it is the interpretation of the Director of the
Office of Workers’ Compensation Programs, as expressed in his brief in this case, that the “latent
No. 14-3010 Sunny Ridge Mining Co. v. Keathley, et al. Page 7
and progressive” provision applies to “legal” pneumoconiosis, and Sunny Ridge does not contest
the exercise of deference usually afforded to agencies’ interpretations of their own regulations.
Such a conclusion may seem implausible, since it states a categorical medical claim about a
category that is a legal fiction, but it is the conclusion that this court and others have reached.
E.g., Midland Coal Co. v. Dir., Office of Workers’ Comp. Programs, 358 F.3d 486, 490 (7th Cir.
2004).
Sunny Ridge contends that Dr. Broudy’s testimony is consistent with the regulations
because the regulations nowhere state that “chronic bronchitis” is “a latent and progressive
disease.” But the testimony at issue was about “chronic bronchitis caused by coal dust
exposure,” which fits neatly within the definition of legal pneumoconiosis—as Dr. Broudy
knew.1
The ALJ could reasonably find that Dr. Broudy’s medical opinion about legal
pneumoconiosis was based on a premise inconsistent with the Act. When asked how he ruled
out coal dust exposure as a cause, Dr. Broudy replied that “for one thing, the bronchitis
associated with coal dust exposure usually ceases with cessation of exposure.” But this was not
just “one thing”; it was the only thing. It was the sole reason Dr. Broudy gave for eliminating
coal dust exposure as the cause of Keathley’s chronic bronchitis. The ALJ considered the
possibility that the statement “may have just represented a generalized comment upon which Dr.
Broudy did not rely,” but Dr. Broudy never disclaimed reliance on the statement and gave no
other reason for ruling out coal dust exposure during the deposition. Sunny Ridge argues that the
words “usually ceases with cessation of exposure,” when properly read, are not inconsistent with
the Act. But the ALJ’s interpretation of Dr. Broudy’s testimony is nonetheless supported by
substantial evidence, even if there are other ways of interpreting the testimony.
Notwithstanding Sunny Ridge’s alternative argument, the ALJ properly weighed the
pulmonary function tests because he considered more than the mere quantitative differences in
1
Dr. Broudy’s knowledge of this is apparent from the transcript of his deposition: “Q[:] But legal
pneumoconiosis is any condition not medical pneumoconiosis; is that right? It’s any pulmonary condition caused by
coal dust exposure? A[:] Well, as defined by the Statute, that’s correct, yes. Q[:] So, chronic bronchitis is a
condition, as I understand you’re saying, that – if chronic bronchitis is caused by coal dust exposure, when you
remove the exposure it should dissipate; is that right? A[:] Yes, it usually does.”
No. 14-3010 Sunny Ridge Mining Co. v. Keathley, et al. Page 8
the test results. All parties agree that if the ALJ’s determination was based solely upon a count
of the test results, then the ALJ erred under Woodward v. Director, Office of Workers’
Compensation Programs, 991 F.2d 314 (6th Cir. 1993). It is unnecessary to decide whether
Woodward should be extended to cover the evaluation of pulmonary function tests, because even
if Woodward applies, the ALJ satisfied Woodward’s standard.2
In his 2013 decision awarding benefits, the ALJ performed a qualitative analysis of the
pulmonary function tests that was sufficient under Woodward. While the Benefits Review Board
ruled that the ALJ’s 2010 decision denying benefits “was improperly based solely upon a count
of the . . . studies,” the same criticism cannot be leveled against the ALJ’s 2013 decision. In that
decision, the ALJ determined that every test conformed to the Department of Labor’s regulatory
standards; that no doctor had questioned the validity of any result; that all the tests, which were
taken within a seven-month period, were “sufficiently contemporaneous to provide a probative
assessment”; and that tests representing peak pulmonary capacity should not be preferred
because such a preference would be contrary to regulations. Looking at the days on which the
tests were performed, “on three out of four days of pulmonary testing over the course of seven
months, on two of three more recent test dates, and on the most recent test day, Keathley’s
pulmonary function met the total disability thresholds.” The ALJ concluded that all seven of the
tests were “equally probative” and that because five of the “conforming, valid, and probative”
tests indicated total disability, Keathley had met his burden of proof of establishing total
disability.
As the Director notes in his brief, Sunny Ridge does not challenge the ALJ’s evaluation
of the individual tests, identify any factor the ALJ overlooked, or offer any basis for
distinguishing among the tests. The only alternative argued by Sunny Ridge is that, if all the
studies are equally probative, then the evidence is in equipoise and Keathley has failed to carry
his burden of proof. But this result is not required by Woodward, which contemplated the
2
Woodward concerned the evaluation of x-rays and x-ray readings. The parties had introduced eight
different x-rays and 38 different x-ray readings. Woodward, 991 F.3d at 316. Both sides hired multiple experts and
some experts read the same x-ray numerous times. Id. at 320. The ALJ found that the “voluminous readings”
presented an “equivocal picture” and determined that the miner had failed to carry his burden of proof. Id. at 321.
The court reversed, relying in part on a provision of the Administrative Procedure Act requiring the exclusion of
“unduly repetitious evidence.” 5 U.S.C. § 556(d).
No. 14-3010 Sunny Ridge Mining Co. v. Keathley, et al. Page 9
consideration of quantitative differences in the evidence so long as qualitative differences were
also considered. Woodward involved an application of the Administrative Procedure Act’s
provision for the exclusion of “unduly repetitious” evidence, not a per se ban on using
differences in the quantity of evidence to reach conclusions. Woodward, 991 F.2d at 321 (citing
5 U.S.C. § 556(d)). Furthermore, the evidence was not in equipoise because the ALJ found that
medical opinion evidence also supported a finding of total disability. Sunny Ridge asserts that
the ALJ’s finding on the medical opinion evidence was predicated on his finding on the
pulmonary function tests, but this is a misreading of the ALJ’s decision, which states that the
finding of total disability was “further supported by a preponderance of the probative medical
opinion.”
For the reasons given above, we deny the petition for review.
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Daniel Moore v. The State of Texas
IN THE
TENTH COURT OF APPEALS
No. 10-98-304-CR
     DANIEL MOORE,
                                                                              Appellant
     v.
     THE STATE OF TEXAS,
                                                                              Appellee
From the 54th District Court
McLennan County, Texas
Trial Court # 97-898-C
                                                                                                               Â
MEMORANDUM OPINION
                                                                                                               Â
      On August 12, 1998, the appellant, Daniel Moore, pled guilty to the sexual assault of J.F.,
a second degree felony. See Tex. Pen. Code Ann. § 22.011 (Vernon 1994 & Supp. 1998). The
trial court assessed the agreed punishment of 5 yearsâ incarceration in the Institutional Division
of the Texas Department of Criminal Justice, probated for 10 years, and a fine of $2,000. See id.
§ 12.33 (Vernon 1994). Moore filed a general notice of appeal within the requisite time period.
See Tex. R. App. P. 26.2(a)(1) (notice of appeal must be filed within 30 days after the day
sentence is imposed or suspended in open court). However, we conclude that a general notice of
appeal is insufficient to invoke our jurisdiction over this cause and dismiss for want of jurisdiction.
      For a notice of appeal to be sufficient when an appeal is sought from a plea bargain
agreement, the notice must:
(A)specify that the appeal is for a jurisdictional defect;
(B)specify that the substance of the appeal was raised by written motion and ruled on
before trial; or
(C)state that the trial court granted permission to appeal.
Tex. R. App. P. 25.2(3).
      Moore filed a general notice of appeal from a judgment based on a negotiated plea agreement.
We sent Moore a letter on September 30, 1998, informing him that his notice of appeal appeared
to be defective and that his case was subject to dismissal for want of jurisdiction if grounds were
not shown for continuing the appeal within 10 days from the date of the letter. See Tex. R. App.
P. 25.2(d), 44.3. Those 10 days have passed, and we have received no correspondence from
Moore. Consequently, we must conclude that Mooreâs general notice of appeal did not confer
jurisdiction on this court and dismiss the cause for want of jurisdiction.
                                                                         PER CURIAM
Before Chief Justice Davis,
      Justice Cummings, and
      Justice Vance
Appeal dismissed for want of jurisdiction
Opinion delivered and filed October 28, 1998
Do not publish
odman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001). The evidence is not factually insufficient merely because
the factfinder resolved conflicting views of evidence in favor of the State. Cain,
958 S.W.2d at 410.
The Evidence
In July 2004, after receiving a report
that accused Abbott of indecency, Lt. Molly Dox of the Ovilla Police Department
set up a videotaped interview at the childrenÂs advocacy center with the
complainant, W.T., and her mother, Sharon. Abbott was later arrested and
indicted.
Sharon
and W.T.Âs father, Randy, were divorced. Randy had remarried Janice, whose
twin sister Jane is AbbottÂs wife. The twin sisters were close, and as a
result, Randy and Janice spent much time around the Abbotts. Randy had
possession of W.T. two weekends a month, and on those weekends, W.T. usually
went to the Abbotts home in Ovilla in Ellis County to visit. Sharon, the
StateÂs outcry witness, testified that W.T. told her that Abbott had touched
her Âprivates several times. W.T. specifically related that Abbott had been
showing her how to do something on his home computer when he put his hands in
her pants and rubbed her privates.
W.T., who was age nine and in the third
grade at the time of trial, testified at trial that Abbott had touched her
private spots more than one time, but she could specifically remember only two
occasions. The first incident that she could remember happened at his house in
the computer room. When everyone else had left the room, Abbott unzipped her
pants and touched her privates. W.T. sometimes called this area her Âbladder,Â
and she explained that bladder and private meant the same thing, which she
identified in a picture as the female sexual organ. She said that Abbott had
placed his hand inside her underwear, with the skin of his hand touching her
skin.[1]Â
When Abbott touched her, he would move his hand in a circular motion; he would
not speak to her while he was touching her, and afterwards he would act as if
nothing had happened. She felt sad and scared when Abbott touched her.
Lt. Dox and Sharon admitted that W.T.Âs
father was always with W.T. on these visits to the Abbotts when the acts
occurred, but W.T. never reported anything to him or to Janice. There was no
allegation that Abbott had groomed or favored W.T., that Abbott had told W.T.
to keep the acts a secret, or that he had threatened to harm W.T. if she told
anyone. There was no physical or medical evidence. Nor were there any
eyewitnesses; W.T. said that Abbott touched her only when they were alone.Â
W.T. never mentioned anything about AbbottÂs being aroused while he was
touching her.
Sharon
said that W.T. had not been exhibiting unusual or scared behavior before W.T.
reported the incidents to her, and W.T. never evidenced any hesitancy to go to
AbbottÂs home. W.T. did exhibit scared behavior after the report, but she continued
to do well in school, which had not reported any behavioral problems, such as
sexually acting out.
Abbott testified; he said that W.T. had
been to his home many times with her father over a period of about six years.Â
He denied ever touching her genitals. W.T. could have been in the room while
he was loading photographs on the computer, but he was not alone with her. He
never showed W.T. favoritism or gave her gifts, except on special occasions.
Legal Sufficiency
AbbottÂs fourth issue asserts that the
evidence is legally insufficient to prove that he committed the acts with the
intent to arouse and gratify his sexual desire. An essential element of the
offense of indecency with a child is the intent to arouse or gratify the sexual
desire of any person. See Tex.
Pen. Code Ann. § 21.11(a)(1), (c)(1); Duwe v. State, 642 S.W.2d
804, 805 (Tex. Crim. App. 1982). Abbott is correct that there is no direct
evidence, other than the mere touching, that he acted with the intent to arouse
and gratify his sexual desire. But the requisite specific intent can be
inferred from the defendantÂs conduct and remarks and all the surrounding
circumstances. Robertson v. State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993); McKenzie v. State, 617 S.W.2d 211, 216 (Tex. Crim. App.
[Panel Op.] 1981); Gottlich v. State, 822 S.W.2d 734, 741 (Tex. App.ÂFort Worth 1992, pet. refÂd) (finding requisite intent to arouse and gratify
sexual desire when defendant placed his hand inside complainantÂs panties and
played with her ÂprivateÂ), abrogated on other grounds by Arevalo v. State,
943 S.W.2d 887, 888-90 (Tex. Crim. App. 1997). An oral expression of intent is
not required; the conduct itself is sufficient to infer intent. C.F. v.
State, 897 S.W.2d 464, 472 (Tex. App.ÂEl Paso 1995, no writ). Nor is there
a requirement that a defendantÂs penis be erect. Gregory v. State, 56
S.W.3d 164, 171 (Tex. App.ÂHouston [14th Dist.] 2001, pet. denied).
Thus, the jury could infer from
AbbottÂs conduct of touching W.T.Âs genitals that it was done with the intent
to arouse and gratify his sexual desire. See Gottlich, 822 S.W.2d at
741; Fetterholf v. State, 782 S.W.2d 927, 933 (Tex. App.ÂHouston [14th
Dist.] 1989, pet. refÂd) (requisite intent to arouse and gratify sexual desire
found from defendantÂs touching sleeping childÂs breast). And the evidence
that Abbott committed the same conduct on other occasions is additional
evidence of intent. See Morgan v. State, 692 S.W.2d 877, 881 (Tex. Crim. App. 1985) (extraneous offense evidence that defendant had touched complainant
in same manner on night before the charged offense and on previous occasions
had Âindubitable probative value of defendantÂs intent). Adhering to our duty
to view the evidence in the light most favorable to the verdict, we find that a
rational trier of fact could have found beyond a reasonable doubt that Abbott touched
W.T.Âs genitals with the intent to arouse or gratify his sexual desire. Issue
four is overruled.
Â
Factual Sufficiency
Issue three asserts that the evidence
is factually insufficient to support the juryÂs verdict. Abbott argues that
the evidence is extremely weak because there is no evidence that typically
occurs with sexual allegations, such as physical or medical evidence,
eyewitnesses, and grooming. He also points to W.T.Âs delay in reporting, her
failure to report the incidents to her father, the absence of changes in her
behavior, the absence of a hesitancy to go to AbbottÂs home, and his denial of
the offense.
The lack of physical or medical
evidence in this touching case is reasonably explainable and does not render
the evidence factually insufficient. See Murphy v. State, 4 S.W.3d 926,
930 (Tex. App.ÂWaco 1999, pet. refÂd). Likewise, the absence of eyewitnesses
is easily explainable; W.T. testified that the touching occurred only when no
one else was around. Furthermore, a complainantÂs testimony alone is
sufficient to support a conviction for indecency with a child. Tex. Code Crim. Proc. Ann. art. 38.07
(Vernon 2005) (requirement that victim inform another person within one year
does not apply to person under 17 at time of offense); see Garcia v. State,
563 S.W.2d 925, 928 (Tex. Crim. App. 1978). W.T. testified that Abbott committed
the offense as alleged, and her mother testified about W.T.Âs outcry. The jury
was able to judge W.T.Âs demeanor and credibility, and it was free to believe
W.T. and to disbelieve AbbottÂs testimony.
Considering all of the evidence in a
neutral light, we cannot say that the jury was not rationally justified in
finding Abbott guilty. Zuniga, 144 S.W.3d at 484. The evidence
supporting the finding of guilt, considered alone, was not too weak to support
the finding beyond a reasonable doubt, and the contrary evidence was not so
strong that guilt could not be proved beyond a reasonable doubt. See id.
at 484-85. Â We overrule AbbottÂs third issue.
Jury Selection Error
In his fifth issue, Abbott asserts that
the trial court erred in failing to grant a new trial after a juror revealed
for the first time during trial that she knew W.T. and Sharon. Immediately
after Sharon had testified, a juror informed the trial court that she
recognized Sharon and that her son had gone to kindergarten with W.T. Later in
the trial, the trial court questioned the juror, L.L., about it further. L.L. stated
that she did not recognize Sharon and W.T. by their names during voir dire,
that before trial she had not formed an opinion on SharonÂs and W.T.Âs
credibility, that she had not had contact with Sharon and W.T. since
kindergarten (over three years ago), and that her knowledge of Sharon and W.T.
would not influence her verdict.
Abbott raised this issue in his motion
for new trial. L.L., who was the jury foreperson, testified at the hearing,
reiterating the above and adding that she had recognized W.T. when W.T.
testified, that she had no mutual friends with Sharon and that her son had no
mutual friends with W.T. L.L. had not seen Sharon or W.T. in over three years,
and when their children were in kindergarten together, Sharon and L.L. had not
socialized and had not had contact outside of school activities. She had never
spoken to Sharon or W.T., had not formed an opinion about either, and her
recognition of them made no difference to her in the trial.
The Court of Criminal Appeals recently
addressed a similar situation in a case in which a juror realized that the
child sexual assault victim was a member in the girl scout troop of which the
juror was the assistant leader and the jurorÂs daughter was also a member. See
Franklin v. State, 138 S.W.3d 351 (Tex. Crim. App. 2004).
The Sixth Amendment guarantees the
right to a trial before an impartial jury. Part of the constitutional
guarantee of the right to an impartial jury includes adequate voir dire to
identify unqualified jurors. And we have consistently held that essential to
the Sixth Amendment guarantees of the assistance of counsel and trial before an
impartial jury Âis the right to question veniremembers in order to intelligently
exercise peremptory challenges and challenges for cause.ÂÂ In Salazar v.
State, [562 S.W.2d 480, 482 (Tex. Crim. App. 1978)], we held that Âwhere a
juror withholds material information during the voir dire process, the parties
are denied the opportunity to exercise their challenges, thus hampering their
selection of a disinterested and impartial jury.ÂÂ We also found Â[t]hat a
juror will state that the fact that he withheld information will not affect his
verdict is not dispositive of the issue where the information is material and
therefore likely to affect the jurorÂs verdict.ÂÂ The fact that the juror did
not intend to intentionally withhold information Âis largely irrelevant when
considering the materiality of information withheld.Â
Â
Id. at 354-55 (footnotes omitted). ÂUnder Texas law, the
defendant must show that the juror withheld material information during voir
dire, and the information is withheld despite due diligence exercised by the
defendant. Id. at 355-56. Abbott has shown jury-selection error and
that he was deprived of the opportunity to exercise a peremptory strike or challenge
L.L. for cause.
We thus turn to harm; we must reverse
the judgment of conviction unless we determine beyond a reasonable doubt that
the error in jury selection did not contribute to the conviction or
punishment. Tex. R. App. P.
44.2(a); Franklin, 138 S.W.3d at 354. On this step, Franklin is
dissimilar because there the trial court disallowed the defendant an
opportunity to question the juror to show actual bias or prejudice, and on
appeal the defendant was thus not held to that burden. See Franklin, 138 S.W.3d at 355-56. Because the error in jury selection was compounded by
the trial courtÂs disallowance of an opportunity to develop a record, the court
found a violation of the constitutional right to a trial by an impartial jury.Â
Id. at 354-57.
Here, Abbott was able to question L.L. to
show actual bias or prejudice, and the result of that questioning showed no actual
bias or prejudice. See Decker v. State, 717 S.W.2d 903, 907 (Tex. Crim.
App. 1983) (acquaintance through employment was not relationship with potential
for bias or prejudice); Brown v. State, 183 S.W.3d 728, 737-40 (Tex.
App.ÂHouston [1st Dist.] 2005, no pet. h.) (jurorÂs distant acquaintance with
witness did not suggest bias or prejudice). The record demonstrates beyond a
reasonable doubt that the error in jury selection did not contribute to
AbbottÂs conviction or punishment. We overrule AbbottÂs fifth issue.
Closing Argument
In issues one and six, Abbott complains
of prosecutorial misconduct and trial court error during closing argument at
the guilt-innocence stage. In closing argument, the defense asserted that the
State had not met its beyond-a-reasonable doubt burden of proof and argued that
a not-guilty verdict would not endorse child molestation or condemn the
victim. In rebuttal, the prosecutor responded:
Ladies and gentlemen, donÂt put your
head in the sand. The defense is trying to encourage you to engage in some
mental gymnastics and do some flip-flops to make yourself feel better for
letting a child molester go. . . .
We are not here today to make ourselves
feel better. We are here today to see that justice is done. And justice
demands that Johnny Ray Abbott be convicted of molesting [W.T.]. ThatÂs what
justice demands.
There is no gray area here. He did it,
or he didnÂt do it. ThatÂs the only choice here.
           There is no gray area
here. There is no notion that I believe he did it, but you didnÂt prove it.Â
Â
[Emphasis added].
Â
           At that point the defense
objected that the prosecutor was misstating the law. The trial court overruled
the objection. The prosecutor continued:
           . . . And you donÂt want
to believe a 50-something year-old man would stick his hands in the pants of a
little girl.
           You donÂt want to believe
that. I understand that. But folks, this is indecency with a child. It is
what it is. And each and every one of you told me that if the State proves
all elements of our case beyond a reasonable doubt through the testimony of
only one witness, you could convict someone of that crime. And that is what
the State has done. We have proven each and every element of this offense.Â
Â
[Emphasis added].
Â
AbbottÂs first issue complains of the
following:Â ÂThere is no notion that I believe he did it, but you didnÂt prove
it.ÂÂ He asserts that the prosecutorÂs statement misstated the law on the
burden of proof and undermined the presumption of innocence.
Jury argument is limited to: (1)
summation of the evidence; (2) reasonable deduction from the evidence; (3)
answers to argument of opposing counsel; or (4) a plea for law enforcement. Guidry
v. State, 9 S.W.3d 133, 154 (Tex. Crim. App. 1999). But even when
answering opposing counsel or making a plea for law enforcement, a prosecutor cannot
misstate the law. See, e.g., Whiting v. State, 797 S.W.2d 45, 48 (Tex.
Crim. App. 1990) (prosecutor misstated StateÂs burden of proof on defensive
issue).
Zuniga teaches that evidence of guilt can
preponderate in favor of conviction but still be insufficient to prove the
elements of the crime beyond a reasonable doubt. Zuniga, 144 S.W.3d at
485. Thus, contrary to the prosecutorÂs argument, the notion exists
that a jury can believeÂby a preponderance of the evidenceÂthat the defendant
is guilty but the State did not prove the elements of the crime beyond a
reasonable doubt, the burden of proof that must be met. We conclude that the trial court erred
in overruling AbbottÂs objection to the prosecutorÂs statement. Cf. Gore v.
State, 719 So. 2d 1197, 1200 (Fla. 1998) (holding that the following
prosecutorÂs argument misstated the burden of proof and was error:Â ÂItÂs simple and it comes down to this in simplicity: If you
believe his story, heÂs not guilty. Â If you believe heÂs lying to you, heÂs
guilty. Â ItÂs that simple.Â).
The law on the burden of proof is
constitutional: Â The Due Process Clause of the Fourteenth Amendment to the
United States Constitution requires that every state criminal conviction be
supported by evidence that a rational factfinder could find as sufficient to
prove all the elements of the offense beyond a reasonable doubt. In re
Winship, 397 U.S. 358, 362-64, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); Coit
v. State, 808 S.W.2d 473, 475 (Tex. Crim. App. 1991). Although the
presumption of innocence is guaranteed by a Texas statute, the statute itself
arises from the constitutional guarantee of a fair and impartial trial. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03
(Vernon Supp. 2005); see Miles v. State, 154 S.W.3d 679, 680-81 (Tex.
App.ÂHouston [14th Dist.] 2004, pet. granted). Because the error is
constitutional, we must reverse the judgment of conviction unless we determine
beyond a reasonable doubt that the prosecutorÂs and the trial courtÂs errors did
not contribute to the conviction. Tex.
R. App. P. 44.2(a); see Miles, 154 S.W.3d at 681.
In making this determination, we do not
focus on the propriety of the outcome of the trial. McCarthy v. State,
65 S.W.3d 47, 56 (Tex. Crim. App. 2001). Instead, our task is to calculate, as
nearly as possible, the probable impact of the error on the jury in light of
the record as a whole. Id. The question is whether the State has proved
beyond a reasonable doubt that the error complained of did not contribute to
the verdict obtained. Satterwhite v. Texas, 486 U.S. 249, 256-57, 108 S.Ct. 1792, 1797-98, 100 L.Ed.2d 284 (1988); Wesbrook v. State, 29
S.W.3d 103, 119 (Tex. Crim. App. 2000). To assess harm, we consider: the
source and nature of the error; the extent to which the State emphasized it; the
probable collateral implications of the error; the weight a juror would
probably place upon it, giving consideration to whether the record contains
overwhelming evidence supporting the finding in question; and whether declaring
the error harmless would encourage the State to repeat it with impunity. Roberson
v. State, 100 S.W.3d 36, 44 (Tex. App.ÂWaco 2002, pet. refÂd).
           The trial court overruled
AbbottÂs objection, but the prosecutor was the source of the improper comment, which
misstated a basic tenet of criminal lawÂthe StateÂs burden of proof of beyond a
reasonable doubt. Because the prosecutor made the comment only once, he did
not emphasize the error. Rather, just a few sentences later in the argument,
the prosecutor emphasized that the State had met the beyond-a-reasonable-doubt
burden of proof.
           The probable collateral
implication to be drawn from the comment was that the jury could convict Abbott
if it believed W.T. and disbelieved Abbott, regardless of whether the State
proved all the elements of the criminal offense beyond a reasonable doubt.Â
However, the comment could also have been reasonably construed as a comment on
the credibility of the witnesses.
          While this case does not present
Âoverwhelming evidence of guilt, we have held above that the evidence is
legally and factually sufficient. The jury was properly instructed in the jury
charge on the burden of proof beyond a reasonable doubt, and we presume the
jury followed the trial courtÂs instructions. Resendiz v. State, 112
S.W.3d 541, 546 (Tex. Crim. App. 2003); Miles, 154 S.W.3d at 682-83. Abbott
presents no evidence to rebut this presumption. See Colburn v.
State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998) (appellant pointed to no
evidence to rebut presumption that jury followed instructions and did not file
motion for new trial alleging juror misconduct or obtain hearing to adduce
facts not in record). Because the jury was told of the correct burden of proof
literally dozens of times throughout voir dire, closing argument, and the jury
charge, we cannot say that the jury placed undue weight on one misstatement of
the law.
           Finally, we examine whether
declaring the prosecutorÂs misstatement of the law harmless will encourage the
State to repeat it with impunity. We conclude that it will not. The misstatement
here appears to have been inadvertent; the prosecutor did not repeat it and
soon thereafter referred to the correct burden of proof. Â In conclusion, we find
beyond a reasonable doubt that the error did not contribute to AbbottÂs
conviction. See Tex. R. App. P. 44.2(a);
cf. Miles, 154 S.W.3d at 682-83. Accordingly, we overrule AbbottÂs
first issue.
The sixth issue complains about the
prosecutorÂs argument that the State did Ânot have to prove why [Abbott] did
what he did and that the trial court erred in overruling his objection. Abbott
argues that this statement eliminated the element of intent to gratify sexual
desire. In complete context, the prosecutor argued:
I also want to explain to you the
language that sexual contact means touching of any part of the genitals of
another person with intent to arouse or gratify the sexual desire of any
person. Intent can be inferred from the facts and circumstances.
. . .
And thatÂs the case in this case. Why
else is a man going to touch a little girlÂs genitals? For his jollies, thatÂs
why. And the facts and the circumstances allow you to infer that intent.
Now, though that may be his intent for
his sexual gratification and you can infer that, the State does not have to
prove why a man would do that because that, frankly, is one of the great
mysteries of the universe. Why would a man do something like that to a little
girl? We donÂt know. And we donÂt have to know. We only have to know that he
did.
. . .
We do not have to prove why he did what
he did. But I submit
to you that if they are going to sit up here before you and call a little girl
a liar, say she fabricated this story, why would she do that? They better
provide you with a legitimate motive for a little girl to subject herself to
this.Â
[DEFENSE COUNSEL]:Â Object, Your
Honor. ThatÂs improperly shifting the burden.
THE COURT:Â Overruled.
Â
[Emphases added.]
Â
           The State responds that
Abbott has not preserved this complaint for appeal. A complaint on appeal must
comport with the objection made in the trial court to preserve it for appellate
review. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.
1995); Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). It
is clear that trial counsel objected only to the prosecutorÂs statement that
the defense should provide a motive for W.T.Âs allegation. Thus, Abbott did
not preserve the complaint in his sixth issue.[2]
 We overrule AbbottÂs sixth issue.
Â
Discovery of VictimÂs Videotaped Interview
           In issue eight, Abbott
asserts that the trial court abused its discretion in denying his request to
inspect or copy W.T.Âs videotaped interview before trial. W.T. testified at
trial, and the State did not offer the videotape into evidence.
           A defendant does not have a
general right to discovery of evidence in the StateÂs possession. Quinones
v. State, 592 S.W.2d 933, 940 (Tex. Crim. App. 1980); see Tex. Code Crim. Proc. Ann. art. 39.14 (Vernon Supp. 2005). A
defendantÂs right to discovery is limited to exculpatory or mitigating
evidence. Dickens v. Court of Appeals, Second Supreme Jud. Dist. of Tex., 727 S.W.2d 542, 551 (Tex. Crim. App. 1987). Beyond that, the scope of discovery
is within the trial courtÂs discretion. Quinones, 592 S.W.2d at 940; Tex. Code Crim. Proc. Ann. art. 39.14. Because there is no
showing or argument that the videotape contains exculpatory evidence and the
videotape is not part of the record (it was not offered at trial), we cannot
say that the trial court abused its discretion in denying Abbott discovery of
the videotape. See Dickens, 727 S.W.2d at 544. Issue eight is
overruled.
Mistrial
           Abbott also testified in
the punishment phase, denying that he had committed the offense and saying that
he had no prior felony or misdemeanor convictions. On cross-examination, the
following exchange occurred:
Q:Â Who is [S.B.]?
A:Â My stepdaughter.
           [DEFENSE COUNSEL]: Your
Honor - -
Q:Â Has [S.B.] accused you of molesting
- -
           [DEFENSE COUNSEL]: Your
Honor, may we approach the bench?
           THE COURT: Yes.
Â
           Outside the juryÂs
presence, the trial court was informed that S.B. had accused Abbott of
molesting her, that she had recanted at one time, and that the prosecutor had
her written statement but that she was not present to testify. While the jury
was still not present, the trial court allowed the prosecutor to ask Abbott if
he had in fact molested S.B., and Abbott answered that he did not molest her.Â
The court ruled that, because S.B. was not going to testify that Abbott had
molested her, the prosecutorÂs questions about S.B. could not be asked in the
presence of the jury merely to place the accusation before the jury and get a
denial from Abbott.
           Abbott requested a jury
instruction to disregard. The trial court agreed to, stating:
Ladies and gentlemen, the prosecutor
began to ask a question before you were sent out of the courtroom which an
objection was made [to], and they approached the bench.
           And most of the question
was unintelligible to me, but the jurors may have heard part or all of the
question propounded at the time. And the Court is ruling that you are not to
consider the question that you may have heard, the last question you may have
heard from the prosecutor, for any purpose whatsoever. Disregard it completely.
Â
           Abbott moved for a
mistrial, which the trial court overruled. In his second issue, Abbott
complains that the trial court abused its discretion in failing to grant a
mistrial. The denial of a motion for mistrial, which is appropriate for Âhighly
prejudicial and incurable errors, is reviewed under an abuse of discretion
standard. See Simpson v. State, 119 S.W.3d 262, 272 (Tex. Crim. App.
2003) (quoting Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App.
2000)); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).
[T]he question of whether a mistrial
should have been granted involves most, if not all, of the same considerations
that attend a harm analysis. A mistrial is the trial courtÂs remedy for
improper conduct that is Âso prejudicial that expenditure of further time and
expense would be wasteful and futile.ÂÂ In effect, the trial court conducts an
appellate function:Â determining whether improper conduct is so harmful that
the case must be redone. Of course, the harm analysis is conducted in light of
the trial courtÂs curative instruction. Only in extreme circumstances, where
the prejudice is incurable, will a mistrial be required.
Â
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). Thus, the appropriate test for evaluating whether the trial court
abused its discretion in overruling a motion for mistrial is a tailored version
of the test originally set out in Mosley v. State, 983 S.W.2d 249,
259-60 (Tex. Crim. App. 1998), a harm analysis case. See Hawkins,
135 S.W.3d at 77. The Mosley factors that we consider in determining
whether the trial court abused its discretion in denying a mistrial during the
punishment phase are: (1) the prejudicial effect, (2) curative measures, and
(3) the likelihood of the same punishment being assessed. Hawkins, 135
S.W.3d at 77; see Mosley, 983 S.W.2d at 259.
In the punishment phase, the State may
introduce evidence of an Âextraneous crime or bad act that is shown beyond a
reasonable doubt by evidence to have been committed by the defendant or for
which he could be held criminally responsible, regardless of whether he has
previously been charged with or finally convicted of the crime or act.ÂÂ Tex. Code Crim. Proc. Ann. art. 37.07,
§ 3(a)(1) (Vernon Supp. 2005). Before admitting extraneous-offense evidence in
the punishment phase, the trial court must initially determine that a jury
could find beyond a reasonable doubt that the defendant committed the
extraneous offense.[3]
 Huizar v. State, 12 S.W.3d
479, 484 (Tex. Crim. App. 2000); see
also Ex parte Varelas, 45 S.W.3d 627, 631
(Tex. Crim. App. 2001); Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996) (plurality).
At the hearing on AbbottÂs motion for
new trial, the prosecutor and S.B. testified. Their testimony, along with the
discussions and arguments made during trial outside the presence of the jury,
leads us to conclude the following:
The
prosecutor had spoken to S.B. about her accusation that Abbott had
molested her.
Â
The
prosecutor knew that S.B. had recanted the accusation at one time.
Â
The
prosecutor knew that if S.B. testified in the punishment phase, S.B. could
be impeached with her recantation.
Â
The
prosecutor did not subpoena S.B. or ask her to appear and testify
voluntarily.
Â
Knowing
that S.B. was not going to be testifying, the prosecutor asked Abbott if
S.B. had accused him of molesting her.
Â
The
prosecutor knew or should have known that, if the trial court allowed him
to ask Abbott if S.B. had accused him of molestation and Abbott denied it,
S.B. would not be available to be impeached with her recantation.
Â
Two other matters are noteworthy. First,
during jury deliberations on guilt-innocence, the jury sent a note asking if
they could find out if Abbott had any prior convictions, to which the trial
court replied that the jury was to consider only the evidence that had been
submitted. Second, during punishment-phase argument, the prosecutor asked the
jury to assess the maximum twenty-year sentence but no fine, which is exactly
what the jury did.
Prejudicial effect. Applying the Hawkins/Mosley
factors, we first observe that the prosecutorÂs questionÂwithout S.B. present
to testifyÂappears to have been calculated to inflame the minds of the jury.Â
The intent appears to have been to inform the jury, without admissible evidence,
that Abbott had previously been accused of child molestation. This flagrancy compounds
the obvious prejudicial effect of the question in this case. See Roberson,
100 S.W.3d at 40-44 (flagrancy and persistence compounds prejudicial effect).Â
With the jury just having found Abbott guilty of indecency with a child, we
cannot conceive of information that would be more prejudicial than the improper
suggestion that he may have molested his stepdaughter.[4]
Curative measures. In most instances, an instruction to
disregard will cure the prejudicial effect. Wesbrook v. State, 29
S.W.3d 103, 115-16 (Tex. Crim. App. 2000). An instruction to disregard is
presumptively inadequate only in the most blatant cases; only offensive or
flagrantly improper conduct warrants reversal when there has been an
instruction to disregard. Â Wilkerson v. State, 881 S.W.2d 321, 327 (Tex.
Crim. App. 1994); Roberson, 100 S.W.3d at 41. In other words, an
instruction to disregard will be presumed effective unless the facts of the
case suggest the impossibility of removing the impression produced on the minds
of the jury. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App.
1988); Veteto v. State, 8 S.W.3d 805, 811 (Tex. App.ÂWaco 2000, pet. refÂd).Â
The effectiveness of a curative instruction is determined on a case-by-case
basis. Veteto, 8 S.W.3d at 811.[5]Â
The trial courtÂs instruction in this case was adequate (cf. Veteto, 8
S.W.3d at 812), but the severity of the prejudicial effect leads us to conclude
that the instruction could not remove from the jurors minds the impression
that the question was designed to createÂthat Abbott was a repeat offender.[6]
Likelihood of the same punishment being
assessed. Finally, we
consider the likelihood of the same punishment being assessed and the harm to Abbott
as measured by the severity of his sentence. Abbott testified in this
vigorously contested case, and we know that during guilt-innocence the jury
wanted to know if Abbott had committed similar offenses. Despite his having no
prior convictions and there being no other punishment evidence of extraneous
offenses or bad acts, Abbott received the maximum prison sentence of twenty
years, as the prosecutor had requested. We believe that it is highly unlikely
that, but for the prosecutorÂs question suggesting AbbottÂs molestation of his
stepdaughter, the jury would have assessed the maximum twenty-year sentence.Â
The severity of AbbottÂs sentence strongly suggests that the trial courtÂs
instruction did not cure the error and that Abbott was harmed by the improper
question.
We conclude that the trial court abused
its discretion in denying the mistrial motion. We sustain AbbottÂs second
issue and will reverse and remand the case for a new punishment hearing. Because
we are remanding for a new punishment hearing, we need not address AbbottÂs
seventh issue, which complains that the twenty-year sentence is cruel and
unusual because it is grossly disproportionate to the offense.
Â
Â
Cumulative Error
           Issue nine asserts that cumulative
error denied Abbott a fair trial. See Chamberlain v. State, 998 S.W.2d
230, 238 (Tex. Crim. App. 1999) (ÂIt is conceivable that a number of errors may
be found harmful in their cumulative effect.Â). We have found three errors, two
that are harmless and the other warranting a new punishment hearing. Cumulative
error is not present, and issue nine is overruled.
Conclusion
           We affirm the judgment of
conviction. We reverse that portion of the judgment assessing punishment of a twenty-year
sentence and remand this cause to the trial court for a new punishment
hearing. Tex. Code Crim. Proc. Ann.
art. 44.29(b) (Vernon Supp. 2005).
Â
BILL VANCE
Justice
Â
Before
Chief Justice Gray,
Justice Vance, and
Justice Reyna
           (Chief
Justice Gray concurring and dissenting)
Judgment
of conviction affirmed
Punishment
reversed, cause remanded
Opinion
delivered and filed June 7, 2006
Publish
[CR25]
Â
(Chief
Justice Gray concurs and dissents, noting he would affirm the trial courtÂs
judgment in its entirety. While there are a number of statementÂs in the opinion
that I cannot join, I concur in affirming the trial courtÂs judgment of
conviction. I cannot, however, find error in the trial courtÂs denial of the
motion for mistrial based upon what was before the trial court at the time of
the ruling, which of necessity must disregard the evidence obtained at the
motion for new trial hearing. Further, the evidence from that hearing, only a
summary of which is presented, does not convince me, like it has the majority,
that the prosecutor had no basis for asking the question that, from this
record, it is doubtful that the jury ever heard. I also note that there is no
issue arguing error in the denial of the motion for new trial.)
   [1]          She also described a similar incident
at AbbottÂs lake house, which was not in Ellis County. On that occasion, while
others were shooting fireworks, W.T. said that she and Abbott were alone on the
porch and she was reading a book when Abbott placed his hand inside her pants.Â
Abbott testified about an occasion at his lake house when he and W.T. were on
the porch and she read a book to him.
   [2]          We
would find that the State was not arguing that it did not have to prove
specific intent to arouse or gratify sexual desire. Plainly, the State was
merely stating that it did not have to prove why a grown man would be sexually
aroused or gratified by touching a little girlÂs genitals.
   [3]          The
State suggests that the prosecutorÂs attempt to obtain a judicial admission
from Abbott that he had molested his stepdaughter is no different than obtaining
a judicial admission from a defendant that he is the same person previously
convicted. See Laday v. State, 685 S.W.2d 651, 652 (Tex. Crim. App.
1985). The difference, of course, is that in those situations, the prosecutor
has (or should have) an admissible pen packet that proves the prior conviction
beyond a reasonable doubt, while in this case the prosecutor admittedly had no
admissible evidence to prove the extraneous offense.
   [4]          The
State appears to suggest that, because the trial court did not hear the entire
question due to defense counselÂs interjection during the prosecutorÂs
question, perhaps the jury did not hear it either. Before the jury returned,
the trial court had the court reporter read back the question, ÂHas [S.B.]
accused you of molesting - -.ÂÂ While the question was not completed, the
prejudicial words had been spoken, and because the court reporter heard them,
we assume that the jury did as well.Â
Â
  Â
[5]Â Â Â Â Â Â Â Â Â Â We
have determined that we will gauge the effectiveness of an instruction to
disregard by considering the following factors:Â (1) the nature of the error;
(2) the persistence of the prosecutor; (3) the flagrancy of the violation; (4)
the particular instruction given; (5) the weight of the incriminating evidence;
and (6) the harm to the accused as measured by the severity of the sentence. Roberson,
100 S.W.3d at 41. We will incorporate these factors, as applicable to
punishment-phase error, into our Hawkins/Mosley analysis.
Â
   [6]          ÂIt
is better to follow the rules than to try to undo what has been done.Â
Otherwise stated, one cannot Âunring a bellÂ; Âafter the thrust of the saber it
is difficult to say forget the woundÂ; and finally Âif you throw a skunk into the jury box, you
can't instruct the jury not to smell
it.ÂÂÂ Walker v. State, 610
S.W.2d 481, 486 n.6 (Tex. Crim. App. [Panel Op.] 1980) (quoting Dunn v.
United States, 307 F.2d 883, 886 (5th Cir. 1962)); see also Bruton v. United States, 391 U.S. 123, 129, 88 S.Ct. 1620, 1624, 20 L.Ed.2d 476 (1968) (ÂThe naive assumption
that prejudicial effects can be overcome by instructions to the jury . . . all
practicing lawyers know to be unmitigated fiction.Â) (citing Krulewitch v.
United States, 336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790 (1949)
(Jackson, J., concurring)).
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Case: 13-14989 Date Filed: 02/26/2014 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________
No. 13-14989
Non-Argument Calendar
__________________________
D.C. Docket No. 4:11-cv-00145-BAE-GRS
THOMAS UHLIG,
Plaintiff - Appellant,
versus
DARBY BANK & TRUST CO., et al.,
Defendants,
DRAYPROP, LLC,
DRAYPARK, LLC,
MICHAEL BROWN,
MARLEY MANAGEMENT, INC.,
REUBEN CROLL,
Defendants – Appellants.
__________________________
Appeal from the United States District Court
for the Southern District of Georgia
__________________________
(February 26, 2014)
Case: 13-14989 Date Filed: 02/26/2014 Page: 2 of 10
Before TJOFLAT, MARCUS, and FAY, Circuit Judges.
PER CURIAM:
The District Court granted appellee’s motions for summary judgment on
appellant’s claims for breach of contract, negligent misrepresentation, and
fraudulent misrepresentation, and entered judgment for appellees. Appellant
appeals. We affirm the District Court’s judgment, finding no merit in appellant’s
claims for the reasons stated in the District Court’s dispositive order of October 4,
2013, which is attached as an appendix.
AFFIRMED.
2
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1776
In re: MAURICE PARKER,
Petitioner.
On Petition for Writ of Mandamus. (5:16-hc-02078-BO)
Submitted: December 12, 2016 Decided: January 5, 2017
Before SHEDD and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Maurice Parker, Petitioner Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Parker petitions for a writ of mandamus seeking an
order directing the district court judge to order the North
Carolina Attorney General to investigate Parker’s claim of
actual innocence. We conclude that Parker is not entitled to
mandamus relief.
Mandamus relief is a drastic remedy and should be used only
in extraordinary circumstances. Kerr v. U.S. Dist. Court, 426
U.S. 394, 402 (1976); United States v. Moussaoui, 333 F.3d 509,
516-17 (4th Cir. 2003). Further, mandamus relief is available
only when the petitioner has a clear right to the relief sought.
In re First Fed. Sav. & Loan Ass’n, 860 F.2d 135, 138 (4th Cir.
1988). Mandamus “has traditionally been used in the federal
courts only to confine an inferior court to a lawful exercise of
its prescribed jurisdiction or to compel it to exercise its
authority when it is its duty to do so.” Moussaoui, 333 F.3d at
516 (internal quotation marks omitted).
The relief sought by Parker is not available by way of
mandamus. Accordingly, although we grant leave to proceed in
forma pauperis, we deny the petition for writ of mandamus. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
PETITION DENIED
2
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259 Cal.App.2d 855 (1968)
BRIAN FARNON, Plaintiff and Appellant,
v.
MARIA COLE, as Executrix, etc., Defendant and Respondent.
Civ. No. 30866.
California Court of Appeals. Second Dist., Div. Five.
Mar. 8, 1968.
Volney F. Morin, Robert B. Lisker, Morris T. Johnson and Harlean M. Carroll for Plaintiff and Appellant.
Leo Branton, Jr., for Defendant and Respondent.
AISO, J. pro tem. [fn. *]
[1a] The sole question for our determination is whether the death on February 15, 1965, of defendant's testator Nathaniel Cole, more popularly known as "Nat King Cole," excused further performance of a written contract between Cole and the plaintiff Brian Farnon wherein Cole agreed to employ Farnon and Farnon agreed to render services to Cole as a musical director for a period of one year commencing August 31, 1964.
The agreement, as set forth in the margin, was entered into on August 10, 1964. [fn. 1]plaintiff Farnon rendered performance *857 thereunder through January 31, 1965. Cole became ill in December of 1964, was hospitalized on December 8th, and his illness was diagnosed as being caused by cancer. Cole was disabled from thereafter making any public appearances, but payments were made to Farnon pursuant to paragraphs 4b and 4c of the contract to and through January 31, 1965. On February 1, 1965, Cole underwent surgery and on the same date a letter was sent giving plaintiff notice of termination of the contract. Cole died on February 15, 1965, and defendant Maria Cole became the duly appointed, qualified and acting executrix of Cole's estate. On March 31, 1965, plaintiff filed a claim against the estate upon the theory that the contract did not terminate with Cole's death, that paragraph 4f thereof guaranteed $25,000 for the term of the agreement, and that deducting the $11,900 paid to him through January 31, 1965, there remained due and payable to him the unpaid balance of $13,100. Defendant executrix did not act on the claim within 10 days of its filing; plaintiff elected to treat the claim as rejected and filed this action against defendant on May 25, 1965.
The trial court, sitting without a jury, found in favor of defendant executrix and against plaintiff on February 2, 1966. The court found "that as a result of the illness and resulting death of Nathaniel Cole, on February 15, 1965, the contract ... was terminated by Act of God; that the obligations *858 of the parties thereunder were suspended by operation of law, and there was a complete failure of consideration in connection with the completion of said contract."plaintiff appeals from the adverse judgment thereafter entered on February 3, 1966.
We agree with the result reached by the trial court.
Under the rule enunciated by Chief Justice Traynor in Parsons v. Bristol Dev. Co. (1965) 62 Cal.2d 861, 865 [44 Cal.Rptr. 767, 402 P.2d 839], we proceed to make our independent construction of the contract which is in writing and concerning which the extrinsic evidence is not in conflict.
[2] Where one engages another to render services to him personally for a specified period of time, his death before the end of the agreed time terminates the contract. (Harrison v. Conlan (1865) 92 Mass. (10 Allen) 85, 86.) [3] Where the terms of a contract and the surrounding circumstances indicate that each party entering into the agreement relied upon personal skills, talents or characteristics which no one other than the other contracting party could provide, the death of either terminates the contract prior to the termination date set forth in the agreement. (Blakely v. Sousa (1900) 197 Pa. 305, 330- 331, 332 [47 286, 80 Am.St.Rep. 821].)
[4] "Where distinctly personal considerations are at the foundation of the contract, the relation of the parties is dissolved by the death of him whose personal qualities constituted the particular inducement to the contract. The whole question in each case is one for construction, and depends upon the intention of the parties. [Citation.] In contracts in which performance depends upon the continued existence of a certain person ..., a condition is implied that the impossibility of performance arising from the perishing of the person ... shall excuse the performance. The implication arises in spite of the unqualified character of the promissory words, because, from the nature of the contract, it is apparent the parties contracted upon the basis of the continued existence of the particular person ... [citations.]" (Smith v. Preston (1897) 170 Ill. 179, 185 [48 N.E. 688] and see Potts Drug Co. v. Benedict (1909) 156 Cal. 322, 332 [104 P. 432, 25 L.R.A. N.S. 609]; cf. Masterson v. Sine (1968) 68 Cal.2d 222, 230 [65 Cal.Rptr. 545, 436 P.2d 561]; and LaRue v. Groezinger (1890) 84 Cal. 281, 285 [24 P. 42, 18 Am.St.Rep. 179].)
[1b] Since the contract contains the clause, "It is further understood and agreed that your [plaintiff's] services are rendered in the capacity of an employee ...," the following *859 from 6 Corbin on Contracts (1962) section 1335, page 381 is also pertinent: "The death of the master or employer does not necessarily have the same effect as the death of the servant. If an essential part of the master's duty is to direct and supervise the work personally, his death makes this impossible. Likewise, it makes performance of the agreed work by the servant impossible, for the work was to be work specified and directed by the master. The master's duty to pay wages does not require his personal performance and has not become impossible; but it is nevertheless discharged, because its condition precedent--the rendition of the service--has become impossible."
The wording of the contract explicitly conveys an intent of the parties that the contract be conditioned upon Cole's continued existence and personal participation. No doubt Nat King Cole's artistic skill, talent and renown were inducements to plaintiff to enter into the contract.plaintiff's services were to be rendered exclusively to Cole personally or to such corporation or company to which Cole would be rendering services, and at such times and places as Cole was to designate. Cole's personal appearance or personal recording was an implied condition precedent to plaintiff's rendition of services as a musical director. With Nat King Cole's untimely demise, both parties were excused from further performance and the contract terminated.
The only instance in which plaintiff rendered services in Cole's absence was a performance in connection with the dedication of the Music Center (Dorothy Chandler Music Pavilion) in Los Angeles Civic Center on December 11, 1964. Frank Sinatra appeared in lieu of Nat King Cole as a "last minute substitute" and plaintiff, who conducted performances while Cole was off stage in the past, conducted this particular performance. This arrangement was devised at Cole's request as his hospitalization on December 8, 1964, just three days prior to the scheduled performance permitted no complete change of program. This single instance of plaintiff rendering services in absence of Nat King Cole's personal participation cannot serve to alter the basic personal nature of the contract implicitly conditioned upon Cole's continued existence and personal activity.
The judgment is affirmed.
Kaus, P. J., and Hufstedler, J., concurred.
"Mr. Brian Farnon"
12221 Hillslope Street
Studio City, California
Dear Mr. Farnon:
"The following shall constitute an entire agreement between us."
"I agree to employ you, and you agree to render services to me as my musical director subject to the following terms and conditions:"
"1. The term of this agreement shall be for one year commencing August 31, 1964."
"2. Your services shall be exclusive to me, at such times and places as I may designate, unless I shall advise you that your services shall not be needed during any specific period."
"3. I agree to provide transportation for yourself only, from Los Angeles to any place of engagement, and return, but shall not be responsible for your lodging, meals, or other costs of living away from Los Angeles, nor for your wardrobe costs or the maintenance thereof."
"4. I agree to pay as full compensation for your services in the following manner:"
"a. Gross salary of $650.00 per week while you are away from Los Angeles in my employ."
"b. Gross salary of $650.00 per week while you are working in Los Angeles."
"c. Gross salary of $325.00 per week while you are not working."
"The Employer agrees to make contribution for the credit of the Musical Director to the AFM-Employers Pension Welfare Fund, by separate check payable to the AFM-EPW Fund at the end of each week in the sum of $13.65 per week."
"d. It is understood and agreed that the above compensation is for your services as musical director in connection with my personal appearances. Should my services be rendered in connection with either television or the making of phonograph recordings, it is understood and agreed that you will be compensated at not less than union scale for television and not less than twice union scale for phonograph recordings, whether or not you actually render services."
"e. Should your services be required as arranger or copyist, you will be compensated at not less than union scale for your services."
"f. Notwithstanding the amounts set forth in a., b., c., d., and e. above, your minimum gross compensation for the term of this agreement shall be $25,000.00."
"g. It is further understood and agreed that your services are rendered in the capacity of an employee and the amounts set forth in a., b., c., and d. above are gross amounts, and as such are subject to withholding of applicable Federal and California taxes."
"h. It is also understood and agreed that your services may be called upon to be rendered to me individually or to any corporation or company for whom I may render services and that your compensation may be paid by any such other corporation or company and shall constitute payment under this agreement. In arriving at the total amount guaranteed under section f. of this paragraph, the total of any such amounts shall be considered as if paid by me."
"Your signature in the space provided below acknowledges that you have read and understood this agreement in its entirety and that you have accepted the terms as fully set forth above."
"Very truly yours,"
"Nat King Cole"
"Accepted and Agreed to:"
"Brian Farnon"
NOTES
[fn. *] *. Assigned by the Chairman of the Judicial Council.
[fn. 1] 1. "August 10, 1964
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512 F.Supp. 511 (1980)
CROSS ELECTRIC COMPANY, INC., Plaintiff,
v.
UNITED STATES of America (Appellant) et al., Defendants.
Civ. A. No. 7-80-01033.
United States District Court, W. D. Virginia, Roanoke Division.
November 13, 1980.
*512 M. Lanier Woodrum, Roanoke, Va., for plaintiff.
Thomas R. King, Jr., Asst. U. S. Atty., Olin R. Melchionna, Roanoke, Va., for defendants.
TURK, Chief Judge.
Defendants are appealing the order of the bankruptcy judge in a Chapter 11 bankruptcy proceeding. Plaintiff, Cross Electric Company, Inc. (Cross) is the Chapter 11 debtor. Cross has an account receivable due from defendant James D. Fralin, d/b/a J. H. Fralin & Sons (Fralin). The Internal Revenue Service (IRS) served a notice of levy on Fralin for the account receivable before the Chapter 11 proceeding was instituted by Cross. In the bankruptcy court, the judge held that the account receivable which was subjected to an IRS levy before the bankruptcy suit was commenced ought to be considered as property of the debtor's estate. Therefore, after ensuring that the interests of the IRS were adequately protected, the court ordered Fralin to turn over the funds to the debtor's estate. The order of the bankruptcy judge is affirmed.
Several times during 1978, 1979 and 1980 the IRS filed liens against Cross, pursuant to 26 U.S.C. § 6321, for unpaid withholding and Federal Insurance Contributions Act (FICA) taxes. By June 30, 1980, Cross owed the IRS $43,297.15. On August 21, 1980, the IRS used its power under 26 U.S.C. § 6331 to levy against the funds held by Fralin for Cross. Cross filed a Chapter 11 petition with the bankruptcy court on September 18, 1980. The exact amount that Fralin owes is in dispute. Fralin acknowledges that it owes $5,672.75 to Cross. According to Cross, the sum is closer to $10,000.00.
Cross states that without these funds it will not have sufficient liquid capital to pay the wages and operating costs for the continuation of its current projects. If these debts cannot be paid, Cross would be forced to abandon its current projects and go through the liquidation procedures of the Bankruptcy Code. Cross is unable to secure third party financing to get the necessary liquid capital because the IRS liens on all of Cross' assets preclude Cross from offering security for such financing. Cross urges this court to find that, at least to a limited extent, the fund is property of the estate and should be turned over pursuant to 11 U.S.C. § 542 so that it can be used by Cross for its own benefit.
The IRS claims that as of the date of the levy, it has full legal right to the funds. Although the IRS concedes that Cross still has some limited interest in the funds, it states that because it owns the fund it can't be forced to turn over the fund to Cross. Basically, the IRS wants this court to find that the IRS has a very strong interest in this property and that Cross has a very weak interest. Further, because Cross' interest is so weak, the property ought not to be considered property of the estate under 11 U.S.C. § 541.
Before the new Bankruptcy Code (Code) was enacted, there always arose in cases such as this, the issue of whether or not the bankruptcy court had jurisdiction to hear the suit. Congress has enacted 28 U.S.C. § 1471 which makes it clear that the bankruptcy court has jurisdiction to hear cases of this sort. The role of this court is to sit as an appellate court to review the decisions of the bankruptcy judge. Unless it appears that there was no basis in the evidence for the factual findings, or that there was an erroneous conclusion of law, the decisions of the bankruptcy judge will not be disturbed. Stein v. Hemker (in re Embassy Co.), 157 F.2d 740 (8th Cir. 1946).
The purpose of Chapter 11 proceedings is to provide an arrangement in which a company has the opportunity to rehabilitate its business operations and to become a profit making company despite its past financial *513 difficulties. Citicorp Business Credit, Inc. v. Blazon Flexible Flyer, Inc., (in re Blazon Flexible Flyer, Inc.), 407 F.Supp. 861 (N.D. Ohio 1976). There is a strong public policy which favors rehabilitation of failing concerns to make them viable contributors to society once again, rather than liquidating the companies quickly to turn over a reduced sum to all creditors. In re Aurora Cord and Cable Company, 2 B.R. 342, 5 B.C.D. 1310 (Bkrtcy.N.D.Ill.1980). Under the rehabilitative plan which is approved by the court, the debtor can, hopefully, pay off all of its creditors in full and continue to be an asset to the community.
To provide a business with an adequate start on its rehabilitative plan, it is necessary to include in the debtor's estate all property in which the debtor has an interest. With all of the property at hand, the trustee can make a coherent evaluation of the situation and logically make use of or dispose of all of the debtor's property. H.R. Rep.No. 95-595, 95th Cong., 1st Sess. 176 (1978), U.S.Code Cong. & Admin.News 1978, p. 5787. The Code recognizes this point and provides in 11 U.S.C. §§ 541-2 for all property of the debtor to come into the estate. Section 541 of 11 U.S.C. is all embracing and requires that all legal or equitable interests, tangible or intangible property, or beneficial rights and interests that the debtor has in the property of another be included in the estate. 4 Collier on Bankruptcy ¶ 541.01 (15th ed. 1980). The underlying theory of 11 U.S.C. § 541(a)(1) is to bring into the estate all interests of the debtor in property as of the date the case is commenced. 4 Collier on Bankruptcy ¶ 541.06 (15th ed. 1980) (emphasis supplied). There is no balancing test involved. Those creditors who hold a significantly greater interest in a particular item cannot automatically have the item excluded from the estate if the debtor still retains some interest in it. Troy Industrial Catering Service v. Michigan (in re Troy Industrial Catering Service), 2 B.R. 521, 525 (Bkrtcy.E.D.Mich. 1980).
Although 11 U.S.C. § 541 encompasses all property rights of the debtor, it does not provide for an expansion of the debtor's rights. The trustee will receive no more interest in the property than the debtor had at the commencement of the case. To the extent an interest is limited in the hands of the debtor, it is similarly limited in the hands of the trustee. 4 Collier on Bankruptcy ¶ 541.01 (15th ed. 1980).
To determine how to apply the provisions of 11 U.S.C. § 541 it is necessary, of course, to define what is "property of the estate." Although the answer to this question is guided by the federal standards of the Bankruptcy Code, we must look to the Internal Revenue Code in this case to determine the nature and extent of the debtor's rights. 4 Collier on Bankruptcy ¶ 541.01 (15th ed. 1980). Two sections of the Internal Revenue Code are particularly pertinent here. Under 26 U.S.C. § 6321, the IRS can attach a lien to all property and rights to property of the debtor. A levy on specific property is allowed pursuant to 26 U.S.C. § 6331 after the lien has attached. It is the effect of this levy that is at issue in this case.
The IRS claims that the levy transferred all property rights in the account receivable to the IRS. The authority which the IRS heavily relies on is Phelps v. United States, 421 U.S. 330, 95 S.Ct. 1728, 44 L.Ed.2d 201 (1975) (Phelps). Phelps dealt with the issue of the bankruptcy court's summary jurisdiction powers. The court held that when an assignee for the benefit of creditors is holding funds which belong to the creditors, but which have been subjected to an IRS levy before the bankruptcy case was commenced, the bankruptcy court lacks jurisdiction to summarily adjudicate the controversy. At 337, 95 S.Ct. at 1732, Phelps states, "The levy, therefore, gave the United States full legal right to the $38,000 levied upon as against the claim of the petitioner receiver." The IRS bases its case on this statement. The argument the IRS makes is that because a pre-bankruptcy levy transfers full legal right in the property to the United States, no property rights of significance are left for the debtor to include in his estate under 11 U.S.C. § 541. *514 Therefore, turnover of the fund is not warranted.
The sentence from Phelps quoted above which speaks of the transfer of full legal rights is followed in the very next paragraph by the last sentence of the case which states, "Here the assignee held as custodian for the United States, a bona fide adverse claimant." Phelps at 337, 95 S.Ct. at 1732. It is inconsistent for a party to hold full legal rights yet only be classified as an adverse claimant. The Phelps case dealt mainly with the jurisdictional powers of the bankruptcy court. At best, its statement regarding the transfer of full legal rights can be considered dicta.
That a levy does not transfer full legal rights in property to the IRS is clear from the cases which purport to follow and support Phelps. In the case of In re Pittsburgh Penguins Partners, 598 F.2d 1299 (3rd Cir. 1979) (Pittsburgh Penguins) the court specifically states that the crucial quote from Phelps is dicta and that the levy only gives the government a substantial adverse claim of ownership. Pittsburgh Penguins is, like Phelps, a case which dealt with the summary jurisdiction power of the bankruptcy court. It held that the bankruptcy court did not have the jurisdiction to summarily decide cases dealing with pre-bankruptcy petition levies. That Phelps did not authoritatively rule on post-levy ownership rights is clear from the statement of the Pittsburgh Penguins court at 1302 that "We need not decide, therefore, the further question whether the levy was effective to transfer full title to the assets to the United States." The reliance of the IRS on Pittsburgh Penguins is misplaced because that case dealt only with the jurisdictional question and expressly refused to decide the issue of the effect of the levy on ownership rights.
Another case which the IRS relies on is In re Bush Gardens, Inc. v. United States, 10 B.R. 506, 5 B.C.D. 1023 (D.N.J.1979) (Bush). In this case the IRS levied on the liquor license held by Bush. The levy was effective before the Chapter 11 bankruptcy proceeding had been commenced. The court held that property levied upon and seized by the United States prior to filing a bankruptcy petition is not property of the estate under 11 U.S.C. § 541. A significantly greater interest in the liquor license was held by the United States than by the debtor. Therefore, turnover under 11 U.S.C. § 542 was not required. The decision in Bush is faulty for two reasons. First, the court misstated the issue at 1025. The question is not whether the debtor's interests are such that the license itself is property of the estate. Under 11 U.S.C. § 541 the question ought to be if the debtor has any legal or equitable rights in the property at all. If so, those rights shall be transferred to the debtor's estate. Second, the Bush court states that because the IRS had a significantly greater interest in the liquor license, the estate was not entitled to the possession of the license. No balancing test is contemplated by 11 U.S.C. § 541. The underlying theory of 11 U.S.C. § 541 is to bring into the estate all interests of the debtor in property. 4 Collier on Bankruptcy ¶ 541.06 (15th ed. 1980). If the debtor has any rights to the property, that property ought to be transferred to the estate. The creditor can be adequately protected under 11 U.S.C. § 361 and 11 U.S.C. § 363.
That the debtor retains significant rights in the property can be seen from the Internal Revenue Code. The debtor is entitled to receive notice of the seizure of the property and notice of the impending sale of the property pursuant to 26 U.S.C. § 6335. Under 26 U.S.C. § 6337 the debtor may pay any sums due to the IRS before the sale and retain ownership of the property. Also, according to 26 U.S.C. § 6337, the debtor may redeem the property within 120 days of the sale. Pursuant to 26 U.S.C. § 6342 the debtor shall receive any surplus proceeds remaining after the cost of the sale and the sum due the IRS have been subtracted from the proceeds of the sale. In cases such as Bush and In re Winfrey Structural Concrete Co. v. Internal Revenue Service, 5 B.R. 389, 6 B.C.D. 695 (Bkrtcy.D. Colo.1980), which is a case similar to Bush, the courts recognized that the debtor still *515 retains these significant rights, yet chose to ignore the mandate of 11 U.S.C. § 541 that all of these rights be adequately represented in the debtor's estate.
The reliance of the IRS on Phelps and its progeny is misplaced for two reasons. First, Phelps cannot be read as stating that the levy transfers complete ownership rights to the IRS. The last sentence of that case which speaks of the IRS as an adverse claimant makes this point clear. No other cases flatly state that the levy absolutely transfers ownership. Phrases such as "the United States does acquire a substantial interest that approaches that of an owner" in Bush (emphasis supplied), or that the levy results in a "virtual transfer" to the government, in United States v. Eiland, 223 F.2d 118 (4th Cir. 1955) (emphasis supplied), show that the levy does not transfer full legal rights to the IRS.
In order to reach the decision in this case, it is unnecessary to find that Phelps is irrelevant to the issue before us. In In re Aurora Cord and Cable Company, Inc., 2 B.R. 342, 5 B.C.D. 1310 (Bkrtcy.N.D.Ill.1980) (Aurora), the court refused to use Phelps as a precedent because Phelps only dealt with the issue of the bankruptcy court's summary jurisdiction powers. While this court suspects that the court in Aurora held the better view of the usefulness of Phelps, the acceptance of Phelps at face value does not change the result in this case. Although Phelps stated that the levy transferred full legal rights in property, it is clear from the use of the term bona fide adverse claimant to describe the status of the United States that the court meant that the levy transferred significant legal rights to the United States.
The second reason for discounting the usefulness of Phelps is that the Internal Revenue Code specifically states that the debtor still retains significant rights in the property which may be of value or benefit to the estate. This court does not doubt that a pre-bankruptcy levy gives the IRS a superior interest in the account receivable. United States v. Eiland, 223 F.2d 118 (4th Cir. 1955). However, the debtor still retains some interests in the property and these interests ought to be turned over to the debtor's estate pursuant to 11 U.S.C. §§ 541-2.
The Internal Revenue Code, by its own terms, also lends support to our holding. In 26 U.S.C. § 6337(a) the Internal Revenue Code speaks of the need for "further proceedings in connection with the levy." If the levy were to transfer all ownership rights, no further proceedings would be necessary to perfect the rights of the IRS. A levy is merely a step in the collection process. Troy Industrial Catering Service v. Michigan (in re Troy Industrial Catering Service), 2 B.R. 521 (Bkrtcy.E.D.Mich.1980). In 26 U.S.C. §§ 6335-6, the Internal Revenue Code refers to the debtor after the levy as the "owner". The use of the word owner in these sections is inconsistent with the claim of the IRS that it is the owner of the property after the levy.
Once it has been determined that the debtor has interests in certain property, 11 U.S.C. § 542 comes into play. An entity which has possession, custody or control over property that the trustee may use, sell, or lease shall deliver that property to the trustee unless it is of inconsequential value or benefit to the estate. There are two other exceptions to the turnover provisions which are not applicable in this case. The IRS is an "entity" which is subject to the provisions of 11 U.S.C. § 542. Bush at 1024. The fact that the use of the account receivable could be of value or benefit to the estate is made clear by the complaint and all subsequent documents filed by Cross. Cross needs the liquid capital to complete its ongoing projects and successfully rehabilitate itself. Even if the debtor is not entitled to use the funds, but merely to retain title and the rights conferred by the Internal Revenue Code, these rights are of significant value and benefit to the estate and cannot be deemed to be inconsequential. In re VanDeVeer, 2 B.C.D. 1590 (W.D.Va. 1976).
The standard for whether or not the property can be turned over to the trustee for the trustee to use, sell, or lease, is *516 governed by 11 U.S.C. § 363. In a Chapter 11 proceeding the trustee has the authority to operate the business of the debtor. 2 Collier on Bankruptcy ¶ 363.04 (15th ed. 1980). If the account receivable is turned over to the estate it would become cash collateral under the definition supplied in 11 U.S.C. § 363(a). A trustee may not use cash collateral in the ordinary course of business without either getting the consent of all entities with an interest in the cash collateral, or getting court approval after all entities have received notice and a hearing. 11 U.S.C. § 363(c)(2). At this hearing the court may provide for the entity to receive adequate protection of its interests. That the use of the property may be authorized so long as adequate protection is provided can be seen in 2 Collier on Bankruptcy ¶ 361.01[1]:
The most important message of the Code with respect to the treatment of entities with an interest in property of the estate is that their remedies may be suspended, even abrogated, their right of recourse to that collateral may be terminated as it is consumed in the business, but the value of their secured position as it existed at the commencement of the case is to be protected throughout the case when adequate protection is required.
According to 11 U.S.C. § 361, one way in which adequate protection can be provided is by allowing the IRS to hold additional liens or replacement liens to the extent that the use, sale, or lease of the property may destroy the interests of the IRS in the property. 11 U.S.C. § 361(2). The public policy involved in allowing the substitution of collateral is that giving the creditor absolute right to the benefit of his earlier bargain may impair the goal of Chapter 11 proceedings to rehabilitate the debtor. Therefore, alternate means of protection are allowable. H.R.Rep.No. 95-595, 95th Cong., 1st Sess. 339 (1978). In the bankruptcy court below, the judge held that the IRS was adequately protected after the turnover by the liens it already held on all of the presently held and after acquired assets of Cross.
A case similar to the one at bar arose in Citicorp Business Credit, Inc. v. Blazon Flexible Flyer, Inc. (in re Blazon Flexible Flyer, Inc.), 407 F.Supp. 861 (N.D.Ohio 1976) (Blazon). In that case the court allowed a Chapter 11 debtor to continue to use the accounts receivable and inventory which were under a perfected security interest held by Citicorp. The continued use was authorized even though it destroyed the affect of the security interest in the accounts receivable and inventory because other collateral was substituted which adequately protected Citicorp. Allowing Citicorp to maintain its stranglehold on the accounts receivable would require Blazon to close down and liquidate. Because the purpose of Chapter 11 proceedings is to rehabilitate the business, the court stated that the forced liquidation of Blazon would be an unconscionable and inequitable result. Other collateral was provided which would adequately protect Citicorp's interest so there was no taking of property without due process of law which would be inconsistent with the Fifth Amendment to the Constitution.
Several other cases support the decision in the case at bar. In re Aurora Cord and Cable Company, Inc., 2 B.R. 342, 5 B.C.D. 1310 (Bkrtcy.N.D.Ill.1980) (Aurora) held that after a pre-bankruptcy IRS levy, the debtor still has rights in the property so that turnover is appropriate. The Aurora court dismissed the usefulness of Phelps as a precedent and severely criticized the Bush decision. Without the assets that were subject to the levy, the debtor may have been forced to liquidate. The court made certain that the IRS was adequately protected to the extent of its interest in the property.
United States v. Smith (in re Smith), 2 B.R. 417 (Bkrtcy.W.D.Mo.1979) (Smith) is a case dealing with a Chapter 13 wage earner plan. The court compared the situation of the debtor whose home had been subjected to a levy before the bankruptcy proceeding, with the situation of a mortgagor with an equity interest in the mortgaged property. Neither the levy nor the mortgage would *517 transfer away the full range of rights held by the owner. The Smith court did not determine the validity or extent of the IRS claim. Rather, it stayed the government's power to put itself in possession to allow the debtor to use his interests in the property to fashion an appropriate wage earner plan. If the debtor does come up with a successful rehabilitation plan, the government and the rest of the creditors will be paid in full.
In Troy Industrial Catering Service v. Michigan (in re Troy Industrial Catering Service), 2 B.R. 521 (E.D.Mich.1980) (Troy) the court ordered a turnover of property in a Chapter 11 proceeding. Citing Bennett v. Hunter, 76 U.S. (9 Wall.) 326, 19 L.Ed. 672 (1869) the court stated a levy is merely a step in the collection process and does not in itself operate to transfer title to the government. The Troy court correctly and succinctly stated the issue in this case when it said at 525:
[T]he question is not whether the government acquired an interest in the property, or the extent of the interest, but whether it is property which the debtor may use, sell, or lease and which has more than "inconsequential value or benefit" to the debtor to justify the court directing that the property be returned to the debtor.
According to the Internal Revenue Code, Cross still has a significant interest in the account receivable. Since Phelps recognized the status of the United States as an adverse claimant, saying that the debtor still has an interest in the property is not inconsistent with Phelps. The account receivable is of great value and benefit to the financial health of Cross under the rehabilitation plan. Therefore, the defendants will be required to turn over the funds to the estate. The interests of the IRS have been adequately protected. The order of the bankruptcy judge is affirmed.
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IN THE COURT OF APPEALS OF IOWA
No. 13-1832
Filed October 15, 2014
STATE OF IOWA,
Plaintiff-Appellee,
vs.
TAMRA SCHROCK,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Scott County, Cheryl E. Traum,
District Associate Judge.
Tamra Schrock appeals her conviction for fourth-degree criminal mischief,
asserting error in the district court’s refusal to issue Schrock’s requested
spoliation jury instruction. AFFIRMED.
Mark C. Smith, State Appellate Defender, and Melinda J. Nye, Assistant
Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Michael J. Walton, County Attorney, and Elizabeth Cervantes and
Robert Bradford, Assistant County Attorney, for appellee.
Considered by Potterfield, P.J., and Tabor and Mullins, JJ.
2
POTTERFIELD, P.J.
Tamra Schrock appeals her conviction for fourth-degree criminal mischief,
asserting error in the district court’s refusal to issue Schrock’s requested
spoliation jury instruction.
I. Factual and Procedural Background
On June 26, 2013, Schrock was shopping at Wal-Mart. The method in
which she was loading items into her cart caught the attention of an “asset
protection associate” charged with loss prevention. Schrock pushed her cart out
the front entrance of the store. Two asset protection associates immediately
approached her. Schrock claimed to have gone outside to get mulch from the
outdoors lawn and garden section of the store. She testified she had been
walking east toward that department. One of the asset protection associates
testified she had been walking north, directly to the parking lot. The other
associate’s testimony fluctuated between a recollection of Schrock going either
north or east. The associates called law enforcement, and Schrock was arrested
for shoplifting.
The store had video recordings of the incident, including video of Schrock
inside and outside the store. However, the State did not request that footage or
present it at trial. Because the State did not request the footage from the store, it
was erased as part of Wal-Mart’s sixty-day neutral record-destruction policy.
Schrock claims the footage would have been exculpatory by showing she was
headed for the lawn and garden section of the store rather than trying to steal the
items in her cart by taking them to her car.
3
At trial, Schrock requested a spoliation jury instruction, claiming the
exculpatory recorded footage was intentionally abandoned by the State so that it
would be destroyed and could not be used at trial. The district court refused to
give the instruction. Schrock was convicted. She now appeals, asserting error in
the court’s refusal to instruct the jury on spoliation of evidence.
II. Scope and Standard of Review
We review a district court’s refusal to instruct a jury on the spoliation
inference for correction of errors at law. State v. Hartsfield, 681 N.W.2d 626, 631
(Iowa 2004).
III. Discussion
Spoliation is the intentional destruction of evidence. State v. Langlet, 283
N.W.2d 330, 333 (Iowa 1979). A jury instruction on spoliation of evidence is “a
direction to the jury that it could infer from the State’s failure to preserve
[evidence] that the evidence would have been adverse to the State.” State v.
Vincik, 398 N.W.2d 788, 795 (Iowa 1987).
A spoliation instruction must be given when there is substantial evidence
to support four facts about the evidence in question: “(1) the evidence was ‘in
existence’; (2) the evidence was ‘in the possession of or under control of the
party’ charged with its destruction; (3) the evidence ‘would have been admissible
at trial’; and (4) ‘the party responsible for its destruction did so intentionally.’”
Hartsfield, 681 N.W.2d at 630 (quoting Langlet, 283 N.W.2d at 335). If “a jury
could appropriately deduce . . . the adverse fact sought to be inferred[,] . . . the
4
trial court does not have discretion[1] to refuse a spoliation instruction.” Id. at
630–31.
The parties agree there is substantial evidence supporting the first and
third prongs of the test. They disagree regarding the evidence supporting the
second and fourth. Schrock argues there is substantial evidence that the State
exercised control over the recording because it was within its purview to preserve
the evidence by requesting it from Wal-Mart or to indirectly destroy the evidence
by electing not to request it, which would result in its routine deletion.2 She
further argues there is substantial evidence the State intentionally destroyed the
recording by intentionally failing to prevent its deletion.3
There is some precedent supporting Schrock’s contentions. In Hartsfield,
our supreme court held that the fourth prong of the test—intentional destruction—
was satisfied when the State “knowingly allowed the recording to be destroyed.”
Id. at 633. Though the State did not proactively erase the recording, its knowing
1
If the defendant has sufficiently created a question for the jury of each of the necessary
elements of spoliation, the district court has no discretion to withhold the requested
instruction; we therefore do not review for an abuse of discretion. Hartsfield, 681
N.W.2d at 631. Prior to Hartsfield, we reviewed for abuse of discretion in spoliation
instruction cases. See Vincik, 398 N.W.2d at 795; Langlet, 283 N.W.2d at 336. Our
supreme court corrected this erroneous standard of review in Hartsfield, 681 N.W.2d at
630–31.
2
The State asserts that it exercised no control over the recording because it did not
possess the recording. However, the law contemplates the possibility that a party might
exercise control over evidence without possessing it by referencing control and
possession as distinct methods with which to satisfy the requirement.
3
“Ordinarily evidence destroyed under a neutral record destruction policy is not
considered intentionally destroyed so as to justify a spoliation instruction.” Hartsfield,
681 N.W.2d at 632 (citing State v. Bowers, 661 N.W.2d 536, 543 (Iowa 2003)). However
in this case, as in Hartsfield, the appellant argues that the neutral record destruction
policy was purposefully relied upon to destroy the evidence, which constitutes an
exception to the usual rule. See id. at 632–33.
5
failure to preserve the tape was sufficient to satisfy the fourth prong. 4 Id. This
result was justified because the State had actual knowledge that the defendant
had requested access to the tape in question. Id. at 632.
However, in the case before us, Schrock has presented no evidence that
she requested the recording or that the State actually knew the recording existed
or knowingly allowed it to be erased. Schrock instead prospectively relies upon a
jury’s intuition the State should have known there was a recording and should
have known it would be destroyed. But optimistic reliance on a jury’s possible
assumptions does not satisfy the requirement of substantial evidence. It is true
under Hartsfield that the State need not destroy the evidence itself, but it must
nevertheless have had some knowledge that its inaction would result in the
destruction of the evidence. Schrock has made no such showing here, so there
was no evidence from which a jury could have deduced that the video recording
was destroyed intentionally—directly or indirectly. The district court did not err by
declining to give the requested jury instruction.
AFFIRMED.
4
It is possible that, as a corollary to the Hartsfield decision, the second prong could be
satisfied if the State knowingly elected not to take possession of the evidence in order to
avail itself of the third-party possessor’s neutral record destruction policy. Schrock
characterizes the second prong in precisely such a manner in this case. However, since
we find that the fourth prong is not satisfied, we need not determine whether that
argument is valid to answer the issue before us.
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80 F.Supp.2d 911 (2000)
Camuel CROSS, Plaintiff,
v.
CHICAGO SCHOOL REFORM BOARD OF TRUSTEES, Defendant.
No. 98 C 8416.
United States District Court, N.D. Illinois, Eastern Division.
January 4, 2000.
*912 Lewis W. Powell, III, Law Offices of Lewis W. Powell, III, Chicago, IL, Kimberly Joy Seymore, Law Offices of Kimberly J. Seymore, Chicago, IL, H. Yvonne Coleman, Chicago, IL for plaintiff.
Taryn Springs, Rohit Sahgal, Marilyn F. Johnson, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
CASTILLO, District Judge.
Camuel Cross sued the Chicago School Reform Board of Trustees ("Board") for sexual harassment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). The Board has filed a motion for summary judgment, which we grant for the reasons stated below.
RELEVANT FACTS
Cross failed to submit a proper response to the Board's Statement of Undisputed Material Facts. Under Local Rule 56.1(a) (formerly Local Rule 12(M)), the moving party must submit a statement of undisputed *913 material facts. In response, the nonmovant must submit: (1) "a response to each numbered paragraph in the moving party's statement, including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon"; and (2) "a statement ... of any additional facts that require the denial of summary judgment, including references to the affidavits, parts of the record, and other supporting materials relied upon." Local Rule 56.1(b)(3)(A)-(B) (formerly Local Rule 12(N)). The Seventh Circuit has upheld severe consequences for a nonmovant's failure to comply with these rigorous requirements:
[A] failure to properly contest in the 12(N) statement of material facts set out in the movant's 12(M) statement, constitutes a binding admission of those facts. In such a case, we "depart from our usual posture of construing all facts in favor of the nonmoving party; rather we accept as true all material facts contained in [the moving party's] 12(M) statement."
Brasic v. Heinemann's Inc., 121 F.3d 281, 284 (7th Cir.1997) (quoting Johnson v. Gudmundsson, 35 F.3d 1104, 1108 (7th Cir.1994)).
In his response to the Defendant's Statement of Facts, Cross denies the truth of twenty-eight of the Board's seventy-six numbered paragraphs. None of Cross' denials, however, is supported by any references to the record. See Garrison v. Burke, 165 F.3d 565, 567 (7th Cir.1999); Brasic, 121 F.3d at 284. As a result, all material facts contained in the Board's Statement of Facts are accepted as true for the purposes of summary judgment. Id.
Plaintiff Cross was a music teacher at Gordon Hubbard High School ("Hubbard"), a Chicago Public School, from August 1992 to May 1996. Cross alleges that, for part of the time that he was teaching at Hubbard, Charles Vietzen, the principal, sexually harassed him. Beginning sometime before 1994, Cross was bothered by Vietzen's conduct toward him, which he believed constituted "harassment." (R. 19, Def.'s Statement of Material Facts. Ex. A, Cross Dep. at 116.) Cross told Vietzen that he did not approve of Vietzen's conduct. Even after this conversation, Cross claims that Vietzen sexually harassed him on a number of occasions, specifically: (1) Vietzen showed Cross a sexually explicit birthday card in 1994 in the presence of other people, (2) Vietzen touched him sometime during the 1994-95 school year in the school cafeteria; (3) Vietzen put his arm around Cross during the same school year in the lunchroom; (4) in September 1994, Vietzen, in the presence of other teachers, asked Cross to join him for cocktails; and (5) in January 1995, Vietzen asked Cross to take off his clothes. In addition, Cross alleges that Vietzen put his knee in Cross' behind and that Vietzen told him sexually explicit jokes, but Cross cannot recall when these alleged incidents occurred. In spite of Vietzen's alleged conduct, Cross had no difficulty in performing his duties teaching band.
In January 1995, one of the school counselors informed Vietzen that two female students accused Cross of having inappropriate relationships with them. The Cook County Attorney's office investigated the allegations, but took no action against Cross. During the course of the investigation, Cross admitted to Vietzen that he had engaged in inappropriate activities, such as going to a student's house, having a student ride in his car, and going to a restaurant with a student. As a result of Cross' inappropriate conduct, Vietzen lowered Cross' efficiency rating to satisfactory for the 1994-95 school year. During the same school year, Cross' high rate of absenteeism prompted Vietzen to speak with him four or five times.
Vietzen left Hubbard for a short time, between December 1995 and March 1996, during which time Valerie Doubrawa was the acting principal of the school. On March 11, 1996, Doubrawa issued an oral and written reprimand to Cross because of *914 his excessive absences and failure to give prior notification of absences. On March 20, 1996, Cross wrote a letter to Dr. Jordan, the Region Five Superintendent and Vietzen's superior, criticizing the administration at Hubbard; specifically, he complained that the reprimand he received was unjustly issued. In that letter, however, Cross made no mention of being subjected to sexual harassment or that Vietzen had engaged in inappropriate conduct toward him. Sometime in May 1996, after Vietzen's return, Cross filled out a leave of absence form, but he did not receive approval for the leave. Notwithstanding the lack of approval, Cross took a leave. He returned to school with his union representative on May 28, 1996 to try to meet with Vietzen, who refused to see them. Vietzen never told Cross that he could not return to work at Hubbard, nor did he terminate Cross' employment. On June 18, 1996, Cross filed a charge of sexual harassment and retaliation against the Board with the Illinois Department of Human Rights ("IDHR") and the EEOC. In August 1996, Cross left Chicago; on July 7, 1997, Cross executed a CPS resignation form indicating that his resignation was effective November 4, 1996, that he was on medical leave, and that he wanted early retirement. Thereafter, the EEOC issued a Notice of Right-to-Sue Letter, and Cross filed this action, alleging sexual harassment and retaliation under Title VII. Currently pending before this Court is the Board's motion for summary judgment. For the reasons that follow, the motion is granted.
ANALYSIS
I. Standard of Review
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue for trial exists only when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A plaintiff cannot rest on mere allegations of a claim without any probative evidence supporting his complaint. Id. at 249, 106 S.Ct. 2505. The non-moving party is required to go beyond the pleadings and designate specific facts showing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Court must view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in the non-movant's favor. Crim v. Board of Educ. of Cairo Sch. Dist. No. 1, 147 F.3d 535, 540 (7th Cir.1998). However, if the evidence is merely colorable, is not significantly probative, or merely raises "some metaphysical doubt as to the material facts," summary judgment may be granted. Liberty Lobby, 477 U.S. at 261, 106 S.Ct. 2505.
II. Sexual Harassment
A. Statute of Limitations
In Illinois, a complainant must file a charge with the Equal Employment Opportunity Commission or the appropriate state agency within 300 days of the alleged discriminatory act; failure to do so renders the charge untimely. Filipovic v. K & R Express Systems, Inc., 176 F.3d 390, 396 (7th Cir.1999). Thus, Cross must allege sexual harassment occurring between August 24, 1995 and June 18, 1996, the day he filed his charge. Because all of the alleged acts of sexual harassment occurred before August 24, 1995, Cross' claim is time-barred.
Cross argues that the harassment was ongoing, and, therefore, his claim was timely filed. A "continuing violation" exists when "it would be unreasonable to expect the plaintiff to perceive offensive conduct as Title VII harassment before the limitations period runs, or the earlier discrimination may only be recognized as actionable in light of events that occurred *915 later, within the period of the statute of limitations." Hardin v. S.C. Johnson & Son, Inc., 167 F.3d 340, 344 (7th Cir.1999). Thus, the doctrine "allows a plaintiff to get relief for a time-barred act by linking it with an act that is within the limitations period." Garrison, 165 F.3d at 569. Where the plaintiff knows long before he sues that he was a victim of actionable harassment, however, the continuing violation doctrine does not apply. In such a case, the plaintiff "cannot reach back and base [his] suit on conduct that occurred outside the statute of limitations." Galloway v. General Motors Serv. Parts Operations, 78 F.3d 1164, 1167 (7th Cir.1996).
Contrary to Cross' assertion, the continuing violation doctrine does not apply in this case. The most recent harassing act of which Cross complains occurred during the 1994-95 school year and therefore took place outside of the 300-day limitations period. The only mention of any harassment occurring within the limitations period is Cross' bare allegation, in his EEOC charge, that the period of harassment did not end until April 1996. Cross, however, does not support this allegation by citing any specific examples of harassment that occurred anytime within the limitations period, as he must to defeat summary judgment. See Liberty Lobby, 477 U.S. at 249, 106 S.Ct. 2505 (plaintiff cannot rest on mere allegations without any significant probative evidence to support his complaint). Therefore, Cross' sexual harassment claim is time-barred and fails as a matter of law.
B. Plaintiff Cannot Establish Sexual Harassment
Even if Cross' claims are not time-barred, he cannot survive summary judgment on the merits. Title VII proscribes sexual harassment. 42 U.S.C. § 2000e-2(a)(1). Title VII is violated when sexual harassment is so "objectively severe or pervasive as to alter the conditions of the victim's employment and to create an abusive working atmosphere." Shepherd v. Slater Steels Corp., 168 F.3d 998, 1008 (7th Cir.1999); Hardin, 167 F.3d at 345. The environment must be both objectively and subjectively offensive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). The Supreme Court has recognized that same-sex harassment is actionable under Title VII to the extent it occurs "because of" the plaintiff's sex. Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 118 S.Ct. 998, 1002, 140 L.Ed.2d 201 (1998).
Even if Cross could successfully show that Vietzen's conduct toward him was motivated by the fact that Cross was male, he cannot show that the conduct created a hostile or abusive working atmosphere, as required to prove a Title VII violation. Oncale, 118 S.Ct. at 1003. To determine whether a work environment may properly be called "hostile" or "abusive," we must consider all of the circumstances of the environment. Harris, 510 U.S. at 23, 114 S.Ct. 367. In particular, we must consider "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. These factors must be evaluated from both a subjective and objective perspective. Id. at 21-22, 114 S.Ct. 367. Even if we assume that Cross subjectively felt that the working environment was abusive, objectively a reasonable person could not find that Cross' working environment was hostile. The alleged incidents were isolated and occurred over the course of more than one school year; none was physically threatening; and the actions were merely offensive and not abusive. Finally, Cross, himself, testified that his work was not affected by Vietzen's conduct. (R. 19, Def.'s Statement of Facts Ex. A, Cross Dep. at 44-47.) Title VII is not a "general civility code" of the American workplace, and, although Vietzen's conduct may have been inappropriate, it did not amount to a violation of Title VII. Oncale, 118 S.Ct. at 1002. We conclude that there is no genuine *916 issue of material fact regarding Cross' sexual harassment claim that would preclude summary judgment for the Board.
III. Retaliation
Title VII prohibits retaliation against an employee who has engaged in activity protected by the Act. 42 U.S.C. § 2000e-3(a); Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027, 1038 (7th Cir.1998). To demonstrate a prima facie case of retaliation, Cross must establish that: "(1) the plaintiff engaged in statutorily protected activity; (2) he suffered an adverse action; and (3) there is a causal link between the protected activity and the adverse action." Filipovic, 176 F.3d at 398. If Cross can establish these elements, the Board has the burden to produce a legitimate, nondiscriminatory reason for its actions. Id. at 1038-39. If the Board meets its burden of production, Cross can survive summary judgment only if he can prove that the Board's reason is pretextual. Id. at 1039.
Cross alleged, in his EEOC charge, that he was subjected to adverse action because, in 1995, he told Vietzen that he did not want to have a personal relationship with him. Specifically, Cross claims that, on April 3, 1995, Vietzen falsely accused him of drug use in front of his students and other faculty members and that, on June 25, 1995, he was given a negative performance evaluation.[1] Because these alleged retaliatory acts occurred outside of the 300-day statute of limitations period, his claim based on these acts is time-barred. 42 U.S.C. § 2000e-5(e)(1).
The only additional potentially retaliatory action, which was not specified in the charge but did take place within the limitations period, is Doubrawa's oral and written reprimand regarding his excessive absences. Such a reprimand does not constitute adverse action. Sweeney v. West, 149 F.3d 550 (7th Cir.1998) (negative performance evaluations, standing alone, cannot constitute an adverse employment action). Even if the reprimand did rise to the level of an adverse action, the reprimand was issued because of a legitimate, nondiscriminatory reason, i.e., excessive absences that Cross does not contest. Therefore, we grant summary judgment for the Board on Cross' retaliation claim.
IV. Constructive Discharge[2]
Cross also alleges that he was forced to resign because of the alleged sexual harassment he was forced to endure. (R. 1, Compl. ¶ 25.) An employee is generally expected to remain employed while seeking redress for the discrimination. Drake v. Minnesota Mining & Mfg. Co., 134 F.3d 878, 886 (7th Cir.1998). But, "[t]hrough constructive discharge, `a plaintiff who is forced out by discriminatory conduct may bring a successful Title VII claim even though the plaintiff was never officially dismissed by the defendant.'" Bragg v. Navistar Int'l Transp. Corp., 164 F.3d 373, 377 (7th Cir.1998) (quoting Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 517 (7th Cir.1996)). A constructive discharge claim requires a plaintiff to establish that "(1) the conditions at work were so intolerable that a reasonable person would have been compelled to resign; and (2) the working conditions were intolerable in a discriminatory way." Id. (quoting *917 Harriston v. Chicago Trib. Co., 992 F.2d 697, 705 (7th Cir.1993)); see Washington v. Jenny Craig Weight Loss Centres, 3 F.Supp.2d 941, 951 (N.D.Ill.1998) (plaintiff bears burden of showing that working conditions were so intolerable that any reasonable person would be compelled to resign). The standard is hard to meet. See Drake, 134 F.3d at 886 ("More than ordinary discrimination is necessary to establish a constructive discharge claim; in the `ordinary' case, an employee is expected to remain employed while seeking redress.").
Cross does not meet his burden. The record before the Court contains only sparse information regarding the allegedly intolerable conditions. As support for his claim, Cross cites being shown "an extremely offensive photograph" and being subjected to "grossly offensive conduct and commentary." (R.21, Pl.'s Resp. at 10.) Cross does not give the dates of the alleged incidents, the specific nature of the conduct, or the pervasiveness of the acts. A single offensive photograph and wholly unspecified "offensive conduct and commentary" cannot, as a matter of law, establish the basis of a constructive discharge claim. We conclude that Cross has failed to present sufficient evidence to show that the conditions were so intolerable that a reasonable person would have had no choice but to resign.
V. Vicarious Liability of the Board
Finally, Cross argues that the Board is vicariously liable under the doctrine of respondeat superior because it knew or should have known of Vietzen's harassment and failed to investigate. To aid our analysis of the Board's vicarious liability, we must look to agency principles. Burlington Indus. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2265, 141 L.Ed.2d 633 (1998) (Congress has directed federal courts to interpret Title VII based on agency principles). The Restatement (Second) of Agency provides "a useful beginning point for a discussion of general agency principles." Burlington, 118 S.Ct. at 2266. Under the Restatement, "[a] master is subject to liability for the torts of his servants committed while acting in the scope of their employment." Restatement § 219(1). Logic dictates that liability of the servant is a precondition to finding the master vicariously liable. Because we have found that Cross has not demonstrated sufficient facts for a jury to reasonably infer that the servant (Vietzen) sexually harassed or retaliated against him, we cannot find the Board vicariously liable.
Moreover, when no tangible adverse employment action is taken, an employer can raise an affirmative defense to any liability or damages under Ellerth by showing that: (1) it exercised reasonable care to prevent or correct promptly any sexually harassing behavior, and (2) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Ellerth, 118 S.Ct. at 2270. The facts in this case establish that Cross was aware of how to complain but inexplicably never complained about any alleged sexual harassment until he filed his EEOC charge. Thus, even if Cross could establish vicarious liability under Ellerth, his damages claim would fail entirely because he never gave the Board an opportunity to address these allegations.
CONCLUSION
Because Cross has not produced any evidence from which a reasonable jury could find in his favor, we grant summary judgment in favor of the Board and against Cross. (R. 18-1.) We instruct the Clerk of Court to enter judgment accordingly pursuant to Federal Rule of Civil Procedure 58.
NOTES
[1] Cross, in his EEOC charge, originally stated that these activities occurred in 1996, but he corrected the record in his deposition testimony, in which he states that the correct year was 1995. (R. 18, Def.'s Mot. for Summ. J. Ex. B, Cross. Dep. at 162-66.)
[2] The Board argues that Cross cannot bring a constructive discharge claim because he did not raise it in his EEOC charge. Title VII, however, does not necessarily preclude a court from hearing a case where the employee's complaint makes different allegations than those alleged in his administrative charge. Courts can hear complaints that are "like or reasonably related to" the administrative charges that were filed. Jenkins v. Blue Cross Mut. Hospital Ins., Inc., 538 F.2d 164, 167 (7th Cir.1987). We need not resolve whether or not the constructive discharge claim was "like or reasonably related to" the allegations in Cross' IDHR charge because Cross cannot show that he was constructively discharged.
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COURT OF APPEALS FOR THE
FIRST DISTRICT OF TEXAS AT HOUSTON
MEMORANDUM ORDER
Appellate case name: Debeyon Patrice Young v. The State of Texas
Appellate case number: 01-15-00412-CR
Trial court case number: 1388619
Trial court: 208th District Court of Harris County
This case was abated and remanded to the trial court on January 5, 2016. The order of
abatement directed the trial court to determine whether the certification of defendant’s right of
appeal was correct, and if not, to hold a hearing and enter an amended certification. On January
29, 2016, a supplemental clerk’s record was filed containing an amended certification, reflecting
appellant, Debeyon Patrice Young, has the right to appeal.
Accordingly, we REINSTATE this case on the Court’s active docket.
Further, appellant’s brief is ORDERED to be filed within 30 days of the date of this
order. See TEX. R. APP. P. 38.6(b).
It is so ORDERED.
Judge’s signature: _/s/ Harvey Brown
Acting individually Acting for the Court
Date: February 23, 2016
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590 N.W.2d 617 (1998)
233 Mich. App. 281
ENTERPRISE LEASING COMPANY OF DETROIT d/b/a Enterprise Rent-A-Car, and Travelers Insurance Company, Plaintiffs-Appellants,
v.
Majid SAKO and State Farm Mutual Automobile Insurance Company, Defendants-Appellees.
Docket No. 204019.
Court of Appeals of Michigan.
Submitted December 1, 1998, at Detroit.
Decided December 29, 1998, at 9:35 a.m.
Released for Publication March 12, 1999.
Plunkett & Cooney, P.C. (by Ernest R. Bazzana and Hans H.J. Pijls), Detroit, for plaintiffs.
Eggenberger, Eggenberger, McKinney, Weber & Hofmeister, P.C. (by Paul D. Hofmeister), Detroit, for Majid Sako.
*618 Draugelis & Ashton, L.L.P. (by John A. Ashton), Plymouth, for State Farm Mutual Automobile Insurance Company.
Before DOCTOROFF, P.J., and SAWYER and FITZGERALD, JJ.
SAWYER, J.
This matter is again before us, following a remand to the trial court by the Supreme Court. We addressed this case in Enterprise Leasing Co. v. Sako, 207 Mich.App. 422, 526 N.W.2d 21 (1994), and the Supreme Court reviewed this case as a companion case to State Farm Mut. Automobile Ins. Co. v. Enterprise Leasing Co., 452 Mich. 25, 549 N.W.2d 345 (1996).
The facts of this case are set out in those prior opinions. Briefly, defendant Majid Sako rented an automobile from plaintiff Enterprise Leasing Company of Detroit and became involved in an automobile accident. Defendant State Farm Mutual Automobile Insurance Company is Sako's no-fault automobile insurance carrier, while Enterprise is self-insured, with plaintiff Travelers Insurance Company being Enterprise's excess carrier for claims over $500,000. As a result of the accident, lawsuits were brought against Enterprise. Those suits were settled by Enterprise and Travelers for $593,321.79 and they commenced this action against Sako and State Farm, seeking both indemnification and primary coverage by State Farm.
Following the remand by the Supreme Court, the trial court granted summary disposition in favor of defendants, concluding that Enterprise could not limit the amount of its liability and also rejecting Enterprise's indemnity claim against Sako. It is those rulings that are now before this Court.
We first consider whether State Farm is directly liable for payment of a portion of the judgment. In the State Farm policy, State Farm provided coverage for Sako for use of a temporary substitute automobile. That coverage, however, was specifically restricted to being excess coverage and not primary coverage. At issue is the amount at which State Farm's excess coverage becomes applicable.
Plaintiffs argue that, because the financial responsibility act only requires insurance with minimum limits of $20,000/$40,000, Enterprise was responsible as a self-insurer only for the first $40,000 of claims by the multiple plaintiffs in the underlying action and that anything over $40,000 is excess and, therefore, State Farm's excess coverage becomes applicable at that point. In other words, Enterprise would be liable for the first $40,000 as a self-insurer, State Farm would be responsible for the next $50,000 (the policy limits) as the excess carrier, and then Enterprise would be liable in tort for the amounts over $90,000 as the owner of the vehicle, subject to its indemnity claim against Sako and, of course, the coverage by Travelers for amounts over $500,000. We do not agree with plaintiffs' argument.
Plaintiffs' argument is based on the premise that a self-insurer's responsibility is limited to the minimum coverage required by law, or $20,000 for each person and $40,000 for each occurrence. We disagree. In Michigan, a certificate of self-insurance issued by the Secretary of State is the functional equivalent of a commercial policy of insurance with respect to the no-fault act, M.C.L. § 500.3009; MSA 24.13009, and the financial responsibility act, M.C.L. § 257.520(b); MSA 9.2220(b). Allstate Ins. Co. v. Elassal, 203 Mich.App. 548, 554, 512 N.W.2d 856 (1994). When a company applies for self-insured status, that company represents that it is able and will continue to be able to satisfy judgments obtained against it. MCL 257.531; MSA 9.2231. There is nothing in the financial responsibility statute that limits the selfinsured's liability to the minimum coverage requirements of the no-fault or financial responsibility acts. A self-insured's liability extends to the full value of its assets. A company that prefers to avoid unlimited risk has the option of purchasing a commercial insurance policy.[1]
We are convinced that, when a car rental company enjoys the advantages of *619 self-insurance, it cannot attempt to limit its risks by asserting that its responsibility is limited to the minimum coverage requirements of the no-fault or the financial responsibility act. Consequently, Enterprise is liable for the full amount of the settlement. Moreover, because State Farm's coverage was excess to any other insurance, and because Enterprise's self-insurance was not limited to the statutory minimum, State Farm is not directly liable for any portion of the settlement.[2]
We now turn to the second issue raised, namely, whether Sako is liable for any portion of the settlement under an indemnification claim. However, in light of our resolution of the first issue, and a concession made by plaintiffs in their brief on the second issue, the indemnification issue may now be deemed abandoned. In their brief on appeal, plaintiffs, in footnote 12, concede that indemnity does not apply to the first $40,000 because the Supreme Court's decision in this case makes Enterprise first in priority with respect to the amount of primary residual liability coverage. However, as resolved in the first issue, the limit of Enterprise's primary liability is not $40,000 as Enterprise argues, but is the full value of their assets. Therefore, the import of plaintiffs' concession is that indemnity does not apply to that higher amount of primary liability, i.e., the full value of Enterprise's assets. Accordingly, in light of this discussion, we decline to address the merits of the indemnity issue.
Affirmed. Defendants may tax costs.
NOTES
[1] We note that, after the accident involved in the case at bar, the owner liability statute was amended to limit the liability of a vehicle lessor. MCL 257.401; MSA 9.2101.
[2] We are assuming that Enterprise is sufficiently solvent to pay the settlement in this case. Because we hold that, as a self-insurer, Enterprise is liable to the full value of its assets, that in essence represents the "policy limits" of its self-insurance. Therefore, State Farm's excess coverage would be excess to that amount. Accordingly, if Enterprise were insolvent, State Farm's coverage would apply to the amount above which Enterprise was able to pay.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00166-CV
Kristofer Thomas Kastner, Appellant
v.
Texas Board of Law Examiners, The State of Texas, Julia E. Vaughan, Bruce Wyatt,
Jack Marshall, Dan Pozza, Jerry Grissom, John Simpson, and Susan Henricks, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. D-1-GN-09-004337, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
Appellant Kristofer Thomas Kastner has filed a pro se notice of appeal from the
district court's order declaring him a vexatious litigant. On August 24, 2011, this Court notified
appellant that the clerk's record was overdue and that appellant had neither paid nor made
arrangements to pay for the clerk's record. This Court requested that appellant make arrangements
for payment of the record on or before September 6, 2011. This Court further informed appellant
that failure to do so may result in the dismissal of this appeal for want of prosecution. The deadline
has passed, and appellant has failed to make arrangements for payment of the record. Accordingly,
we dismiss the appeal for want of prosecution. See Tex. R. App. P. 42.3(b).
____________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Henson
Dismissed for Want of Prosecution
Filed: November 4, 2011
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508 F.2d 844
U. S.v.Costanza
74-1620
UNITED STATES COURT OF APPEALS Sixth Circuit
12/11/74
1
M.D.Tenn.
AFFIRMED
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NO. 07-05-0097-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL D
APRIL 7, 2005
______________________________
VINCE ARTHUR HALL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE COUNTY COURT OF MOORE COUNTY;
NO. 19462; HONORABLE DELWIN MCGEE, JUDGE
_______________________________
Before QUINN and REAVIS and CAMPBELL, JJ.
MEMORANDUM OPINION
Pending before the Court is appellant’s motion to dismiss this appeal. Appellant and his attorney both have signed the document indicating that appellant withdraws the appeal. Tex. R. App. P. 42.2(a). No decision of this Court having been delivered to date, we grant the motion. Accordingly, the appeal is dismissed. No motion for rehearing will be entertained and our mandate will issue forthwith.
James T. Campbell
Justice
Do not publish.
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21 A.3d 1008 (2011)
ROBERTSON
v.
U.S.
No. 10-CM-313.
District of Columbia Court of Appeals.
May 18, 2011.
DECISION WITHOUT PUBLISHED OPINION
Affirmed.
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701 F.2d 182
U. S.v.Holt
81-5572
UNITED STATES COURT OF APPEALS Sixth Circuit
4/26/82
1
E.D.Tenn.
AFFIRMED
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615 F.Supp. 72 (1985)
C.H. BETTERTON, Plaintiff,
v.
FIRST INTERSTATE BANK OF ARIZONA, N.A., et al., Defendants.
No. 84-0871C(6).
United States District Court, E.D. Missouri.
August 12, 1985.
Norman A. Selner, Leonard Komen, Selner, Glaser & Komen, St. Louis, Mo., for plaintiff.
Joseph E. Rebman, St. Louis, Mo., Jeffrey L. Willis, Streich, Lang, Weeks & Cardon, Phoenix, Ariz., for defendants.
MEMORANDUM
GUNN, District Judge.
This case is before the Court on defendants' motion for summary judgment. *73 Plaintiff, an over-the-road driver and resident of Missouri, brought an action in five counts against defendants, an Arizona bank and a loan officer of the bank. The suit arises out of the repossession and sale by the bank of a tractor and trailer purchased by plaintiff with funds loaned to him by the bank and in which the bank maintained a security interest.
The following facts are not disputed: In July 1982 and in November 1982, defendant bank loaned plaintiff a total of $51,900.00 for the purchase of a commercial trucktractor and trailer. On each date, plaintiff executed an installment note in favor of the bank for the amount due and a security agreement granting the bank a security interest in the vehicles as collateral for the two loans. The bank also advanced to plaintiff an unsecured loan in the amount of $5,000.00 which was used to pay taxes and license costs incident to the operation of the truck.
Plaintiff immediately failed to make payments as called for by the notes and was declared in default. In January 1983 and again in September 1983, following meetings between plaintiff and defendant Stiles, who had been assigned by the bank to handle plaintiff's loan account, the parties entered into written revision agreements extending the terms of the notes. Plaintiff, however, failed to meet the revised terms and remained in default. Sometime prior to the September 1983 revision agreement, defendant Stiles ordered repossession of the tractor and trailer through Auto Recovery Bureau, a repossession company.
On February 15, 1984, plaintiff and Stiles again met at the bank in Phoenix to discuss plaintiff's indebtedness. It is what plaintiff contends transpired at this meeting that forms the gravamen of his action. It is not disputed that defendant Stiles handed plaintiff a letter demanding payment in full of the principal and interest due on the three loans and stating that unless such amount was immediately paid in full, the bank would proceed with whatever action it deemed necessary to enforce collection of the debt. Plaintiff informed Stiles that the vehicles were in a repair shop in Tucson. Plaintiff asserts that Stiles then told him that if he would have the truck repaired and recover it from the shop and further agree to have his broker make payments on his behalf directly to the bank, the bank would forego repossession. Plaintiff agreed to have the necessary repairs made and to arrange with the broker to make the payments on the notes.
Stiles telephoned the broker, who was aware that plaintiff was in default and that repossession was imminent. Plaintiff directed the repair shop to fix the vehicles at a cost of $627.62. Plaintiff asserts that Stiles made the above statements knowing that the repossession order was in effect. Plaintiff further asserts that they were made for the purpose of locating the vehicles and facilitating repossession.
On the following day, February 16, 1984, after plaintiff had retrieved his tractor and trailer, the vehicles were repossessed from him in Phoenix by Auto Recovery Bureau. They were sold in March 1984 by public sale, and the proceeds were applied to the three loans.
Plaintiff then filed this suit alleging in Count I that defendant Stiles' February 15, 1984 statement to him that the bank would forego repossession was a fraudulent misrepresentation; in Count II that the bank breached an oral contract not to repossess the truck; in Count III that the repossession constituted a conversion; and in Count V that the bank breached its duty, imposed by the Arizona Commercial Code, to exercise good faith in enforcing collection of its loans.[1]
In considering defendants' motion for summary judgment the Court is required to view the facts and the inferences reasonably drawn therefrom in the light most *74 favorable to plaintiff. See Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). For purposes of this review, therefore, the Court will assume that defendant Stiles made the disputed statements and that she made them for the purpose of facilitating repossession of the truck.
The substantive law of Arizona applies to our inquiry in the present case. See Potter v. St. Louis-San Francisco Ry., 622 F.2d 979 (8th Cir.1980); Farm Bureau Co-op Mill & Supply v. Blue Star Foods, 238 F.2d 326 (8th Cir.1956).
Count IFraud
Under Arizona law, actionable fraud requires the concurrence of the following elements: a representation, its falsity, its materiality, speaker's knowledge of its falsity or ignorance of its truth, his intent that it should be acted upon by hearer and in a manner reasonably contemplated, hearer's ignorance of its falsity, his reliance on its truth, his right to rely thereon, and his proximate and consequent injury. Wagner v. Casteel, 136 Ariz. 29, 663 P.2d 1020, 1022 (Ct.App.1983). A failure to prove any one of these elements is fatal to a case sounding in fraud. Smith v. Don Sanderson Ford, Inc., 7 Ariz.App. 390, 439 P.2d 837, 840 (1968).
This Court does not accept defendants' argument that Stiles' statement was a promise to perform in the future and, as such, could not constitute actionable fraud. A promise, when made with the present intention not to perform it, is a misrepresentation which can give rise to an action of fraud. Pinnacle Peak Developers v. TRW Investment Corp., 129 Ariz. 385, 631 P.2d 540, 543-44 (Ct.App.1980). But plaintiff's action for fraud must fail, because he cannot establish the essential element of damages.
Plaintiff claims injury in that, in reliance on Stiles' representations, he incurred a debt in the amount of $627.62 for the repair of the vehicles. The security agreements provide that "(s)o long as any Indebtedness remains unpaid, Debtor ... will keep the collateral in good condition and repair." There can be no recovery in fraud for a deception by which a person is induced to do something which he is already bound to do. Berry v. Robotka, 9 Ariz.App. 461, 453 P.2d 972, 979 (1969). Under the security agreements, plaintiff was contractually obligated to make the repairs which he ordered.[2] Hence, he has incurred no damage by ordering vehicle repairs for which he was contractually compelled to make irrespective of defendant Stiles' alleged representations.
Plaintiff also asserts injury to his business reputation and credit as a result of Stiles' telephone conversation with the broker. It is undisputed, however, that the broker already knew that plaintiff had defaulted on his loans and was threatened with repossession. Other alleged damages (lost income, lost title to the truck) are not proximate and consequent results of plaintiff's reliance on Stiles' statements.
Count II Breach of Contract
Plaintiff asserts that the February 15, 1984 meeting between him and Stiles effectively modified the terms of his written agreements with the bank, and that the repossession breached this new oral contract. Under Arizona law, a written contract may be modified by subsequent oral changes when the changes are supported by new consideration. Coronado Co. v. Jacome's Dept. Store, 129 Ariz. 137, 629 P.2d 553, 555 (Ct.App.1981). Such consideration cannot be something which a party is already bound to do. Perry v. Farmer, 47 Ariz. 185, 54 P.2d 999, 1001 (1936). The Court concludes that the bank's alleged promise to forego immediate repossession is unsupported by any consideration running from plaintiff to the bank. He was contractually bound to make the payments, and he gave up nothing for the alleged oral *75 promise which he says was exacted from the bank.
Count III Conversion
Although the Uniform Commercial Code as adopted by Arizona, Ariz.Rev.Stat. Ann. § 47-1101 et seq. (1984), does not expressly provide for an action in conversion arising out of the improper sale of repossessed property, Arizona courts have construed the statute as permitting such an action. See Day v. Schenectady Discount Corp., 125 Ariz. 564, 611 P.2d 568 (Ct.App. 1980). The Court has concluded above that the repossession of plaintiff's tractor-trailer was not fraudulent or in breach of contract. Thus, any action in conversion by plaintiff must be based on the impropriety of the sale itself. As Count IV pleads no facts upon which such a finding could be based, it is ripe for summary judgment.
Count V Bad Faith
Plaintiff argues that defendants' actions breached the duty to exercise good faith imposed by the Uniform Commercial Code and that such breach has been recognized by various courts as tortious. The Court's discussion on plaintiff's fraud claim disposes of this argument.
Accordingly, summary judgment is entered in favor of defendants on Counts I, II, III and V of plaintiff's petition.
NOTES
[1] Count IV, which is not subject to this summary judgment, alleged that the bank breached the security agreements by not conducting the public sale in a commercially reasonable fashion. Also not under consideration now is defendant bank's counterclaim for the deficiency not covered by the proceeds of the public sale.
[2] The Court notes that the record is destitute of evidence that the item of repair has ever been paid or that a mechanic's lien has been asserted.
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227 F.2d 12
55-2 USTC P 9735
James G. SMYTH, United States Collector of Internal Revenue, Appellant,v.John A. SULLIVAN, Executor of the Estate of Emma L. Merritt,Deceased, Appellee.
No. 14165.
United States Court of Appeals Ninth Circuit.
Oct. 31, 1955.
H. Brian Holland, Asst. Atty. Gen., Louise Foster, David O. Walter, Robert N. Anderson, Ellis N. Slack, Spe. Assts. to Atty. Gen., Lloyd H. Burke, U.S. Atty., George A. Blackstone, Asst. U.S. Atty., San Francisco, Cal., for petitioner.
Charles J. Leighton, Jr., San Francisco, Cal., Willard C. Mills, Washington, D.C., for respondent.
Before DENMAN, Chief Judge, POPE, Circuit Judge, and CLARK, District judge.
DENMAN, Chief Judge.
1
The Collector appeals from a judgment of the District Court ordering that the Executor taxpayer be refunded income taxes in the sum of $10,287.52 plus $1,388.82 interest which had been collected by the Collector, as due for the calendar year 1946. The District Court found that this sum was erroneously collected as taxes upon profits realized from the sale in 1946 of capital investments in two parcels of real property in San Francisco, California, one known as '553 Market' and the other as 'Merrie Way'.
2
This property came under the executor taxpayer's charge in November, 1938, when the appraised value of the estate was smaller than the estate's liabilities. The executor therefore determined to hold the property until a more advantageous sale was possible. He held the two parcels from 1938 until they were sold in 1946 for an amount exceeding the estate's liabilities. We hold that the administration of the properties until their sale is a single integrated transaction. Cf. Sloane v. Commissioner of Internal Revenue, 6 Cir., 188 F.2d 254, 263, 29 A.L.R.2d 580.
3
The District Court, in determining the net income for 1946, allowed the addition of $7,990.41 of carrying charges to the basis of the properties. No deduction had been taken for these charges during the seven years the executor had held the parcels. The Court also ruled that $30,673.68 of carrying charges were to be considered recoverable expenditures under Internal Revenue Code 22(b)(12), 26 U.S.C. § 22(b)(12) and therefore excluded from the estate's gross income for 1946. Deductions had been taken for these charges but they resulted in no tax benefit to the estate.
4
A. The $7,990.41 of expenditures for which the executor made no tax deductions in the prior tax years.
5
This total consists of two amounts $5,421.59 expended in 1948 (T. 19) and a balance later deducted of $2,568.82.
6
The pertinent provision of the Internal Revenue Code concerning this 1938 expenditure as an addition to the cost of the two parcels sold are:
7
' § 111. Determination of amount of, and recognition of, gain or loss.
8
'(a) Computation of gain or loss. The gain from the sale or other disposition of property shall be the excess of the amount realized therefrom over the adjusted basis provided in section 113(b) for determining gain, and the loss shall be the excess of the adjusted basis provided in such section for determining loss over the amount realized.' 26 U.S.C. § 111.
9
The applicable provisions of Section 113(b) are as follows:
10
'(b) Adjusted basis. The adjusted basis for determining the gain or loss from the sale or other disposition of property, whenever acquired, shall be the basis determined under subsection (a), adjusted as hereinafter provided.
11
'(1) General rule. Proper adjustment in respect of the property shall in all cases be made--
12
(A) For expenditures, receipts, losses, or other items, properly chargeable to capital account, but no such adjustment shall be made for taxes or other carrying charges * * * for which deductions have been taken by the taxpayer in determining net income for the taxable year or prior taxable years * * *.' (Emphasis supplied). 26 U.S.C. § 113(b).
13
The executor having elected not to take a deduction of these expenditures from the estate's income for 1938 is entitled to add this amount to the cost of the two parcels in determining the gain from the sales thereof. It is a 'proper adjustment' under Section 113(b).
14
As to the remaining expenditure of $2,568.82, the executor admits that he has not sustained his burden of proof as to the years in which it was expended. We are required to assume that he made them after the year 1942 when Section 130 of the Revenue Act of 19421 authorized the Commissioner to make his regulation requiring the taxpayer to express, by filing in the return of the year of expenditure, his election either to deduct it in that year or treat it as chargeable to capital account. This he did not do. The district court erred in deducting this latter amount.
15
B. The District Court properly held 'not to be included' in the gross income of the taxpayer for the year 1946 the $30,673.68 deducted in prior tax years without tax benefit.
16
The parties agree that this $30,673.68 of the deductions in prior tax years gave the taxpayer no tax benefits. The Collector contends, inter alia, that the regulations relied upon by the District Court are not applicable because this expenditure in the course of the administration of the capital investments was not a part of a single integrated transaction.
17
The District Court considered this a question of tax accounting methods, took the testimony of experts in tax accounting and upon sufficient evidence held that the estate's administration of the properties involved was such a single integrated transaction.
18
The case is like Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248, where taxpayer had suffered a loss on stock, the deduction of which produced no tax benefit to taxpayer. In a later year he recovered damages from his vendor and excluded this recovery from his gross income. The Supreme Court held that this was proper; the taxpayer had enjoyed only a return of capital.
19
Pertinent to this is the dictum in Sloane v. Commissioner, 6 Cir., 188 F.2d 254, 262, 29 A.L.R.2d 580, concerning the necessary relationship between the events causing the loss and recovery:
20
'In the Dobson case, the Supreme Court made it clear that it was 'not adopting any rule of tax benefits', but was holding only that 'no statute or regulation having the force of one and no principle of law compels the Tax Court to find taxable income in a transaction where as matter of fact it found no economic gain and no use of the transaction to gain tax benefit.' 320 U.S. 506, 64 S.Ct. 249, 88 L.Ed. 248. Here, the tax court pointed out that one certain requirement for invoking the tax benefit rule is that there be such an interrelationship between the event which constitutes the loss and the event which constitutes the recovery that they can be considered as parts of one and the same transaction. The tax court stated that in all cases cited by the petitioner as authority for applying the concept that where there is no economic gain there is no taxable income, the factual situations revealed a close integration of events producing the loss and the gain; and that in each instance the property on which the loss was suffered could be traced into the transaction producing the gain.'
21
Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383, in which a corporation was denied the deduction from the profits of a tax year of its losses in the normal course of business in prior years, does not present the situation of the single integrated transaction of an executor endeavoring to take his estate out of bankruptcy by waiting for a sale at an increased valuation of the two parcels of land in question. If it does so hold it is overruled by the Dobson case.
22
The District Court held the $30,673.68 to be excluded from the gross income of the tax year 1946, relying upon 26 U.S.C. 22(b)(12) and the Commissioner's regulations thereunder 29.22(b)(12)-1. 26 U.S.C. § 22(b)(12), so far as pertinent, provides:
23
'(b) Exclusions from gross income. The following items shall not be included in gross income and shall be exempt from taxation under this chapter:
24
'(12) (As added by Sec. 116(a) of the Revenue Act of 1942, c. 619, 56 Stat. 798.) Recovery of bad debts, prior taxes, and delinquency amounts. Income attributable to the recovery during the taxable year of a bad debt, prior tax, or delinquency amount, to the extent of the amount of the recovery exclusion with respect to such debt, tax, or amount. For the purposes of this paragraph:
25
'(B) Definition of prior tax. The term 'prior tax' means a tax on account of which a deduction or credit was allowed for a prior taxable year.
26
'(D) Definition of recovery exclusion. The term 'recovery exclusion,' with respect to a bad debt, prior tax, or delinquency amount, means the amount, determined in accordance with regulations prescribed by the Commissioner with the approval of the Secretary, of the deductions or credits allowed, on account of such bad debt, prior tax, or delinquency amount, which did not result in a reduction of the taxpayer's tax under this chapter (not including the tax under section 102) or corresponding provisions of prior revenue laws, reduced by the amount excludible in previous taxable years with respect to such debt, tax, or amount under this paragraph. (Emphasis supplied.) * * *'
27
The Commissioner's regulation (29.22(b)(12)) made pursuant to the last above paragraph, so far as pertinent, reads:
28
'Sec. 29.22(b)(12)-1 (as amended by T.D. 5454, 1945 Cum. Bull. 68). Recovery of Certain Items Previously Deducted.-- (a) In general.-- Section 22(b)(12) provides that income attributable to the recovery during any taxable year of bad debts, prior taxes and delinquency amounts shall be excluded from gross income to the extent of the 'recovery exclusion' with respect to such items. The rule of exclusion so prescribed by statute applies equally with respect to all other losses, expenditures, and accruals made the basis of deduction from gross income for prior taxable years, including war losses referred to in section 127, but not including deductions with respect to depreciation, depletion, amortization, or amortizable bond premiums. See Dobson v. Commissioner, 64 S.Ct. 239). * * *'
29
'(2) Definition of 'recovery.' Recoveries result from the receipt of amounts in respect of the previously deducted or credited section 22(b)(12) items, such as from the collection or sale of a bad debt, refund or credit of taxes paid, or cancellation of taxes accrued. (Emphasis supplied.) * * *.'
30
The regulation thus includes 'all other losses and expenditures' such as the interest included in the $30,673.68. There is no merit to the Commissioner's contention that interest is not a part of the exclusions of the statute.
31
Contrary to appellee's contention, we think the statement of points adequately raises the above issues. The judgment is affirmed save as to the exclusion of $2,568.82. The case is remanded to the District Court to determine the tax refund based upon the exclusion of that amount.
1
' § 24. Items not deductible
'(a) General rule. In computing net income no deduction shall in any case be allowed in respect of--
'(7) (As added by Sec. 130 of the Revenue Act of 1942, supra.) Amounts paid or accrued for such taxes and carrying charges as, under regulations prescribed by the Commissioner with the approval of the Secretary, are chargeable to capital account with respect to property, if the taxpayer elects, in accordance with such regulations, to treat such taxes or charges as so chargeable. * * * (26 U.S.C. 1946 ed., Sec. 24.)'
Treasury Regulation 111 Sec. 2922(b)(12)-1 provides in sub. par. (c):
'Manner of exercising election.-- If the taxpayer elects to capitalize an item or items under this section, such election shall be exercised by filing with the original return a statement for that year indicating the item or items (whether with respect to the same project or to different projects) which the taxpayer elects to treat as chargeable to capital account (either as a component of original cost or other basis, for the purposes of section 113(a), or as an adjustment to basis, for the purpose of section 113(b)(1)(A)).'
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226 Cal.App.2d 619 (1964)
BURL M. BUCKNER, Petitioner
v.
INDUSTRIAL ACCIDENT COMMISSION and REYNOLDS ELECTRICAL & ENGINEERING CO., INC., Respondents.
Civ. No. 27948.
California Court of Appeals. Second Dist., Div. Four.
April 23, 1964.
Jack R. Berger for Petitioner.
Everett A. Corten, Edward A. Sarkisian, Herlihy & Herlihy, E. H. Herlihy and K. A. Stoll for Respondents.
KINGSLEY, J.
On December 5, 1962, petitioner filed an application for benefits, alleging an industrial injury on July 9, 1962, in the State of Nevada, where he alleged he was then employed by Reynolds Electrical & Engineering Co. (hereinafter Reynolds), under a contract of employment entered into in California. The commission, purportedly following its rules 10750 and 10752, served copies of the application, notice of filing and notice of hearing by mail, addressed to *621 Reynolds at an address in Las Vegas, Nevada. In due course, an award in favor of applicant issued. [fn. 1] Thereafter, Reynolds entered a special appearance and moved to quash service and to vacate and annul all the former proceedings on the ground that there had been no personal service, that Reynolds was a foreign corporation and had not done business in California. Without a hearing, the commission granted the motion to quash and issued an order annulling the award and setting aside all of its prior actions. A petition for reconsideration was filed and denied and a petition for a writ of review was timely filed in this court.
The commission's order, herein under review, contains the statement that: "It is incumbent upon the applicant to ascertain whether the defendant corporation is qualified to do business in this state and whether service can be properly made upon the Secretary of State." (Italics added.)
In its opinion and order denying reconsideration, there appears the following language: "The Commission finds that applicant failed to comply with the mandatory requirements pertaining to service on a foreign corporation." (Italics added.)
Although we agree that the original service of the application and notices by mail addressed to an address outside the State of California was invalid, we think that the commission has misapprehended the present status of the case and its duties therein.
I
While Travelers Health Assn. v. Virginia (1949) 339 U.S. 643 [70 S.Ct. 927, 94 L.Ed. 1154] seems to sustain petitioner's contention that service by mail on a foreign corporation at an address outside the state does not violate the requirements of due process of law, this does not resolve the issue before us. [1] A state may, but need not, authorize modes of service which go to the limit of its constitutional power. [2] The controlling question in this case is whether or not the Legislature of this state has authorized service by a mode such as was herein employed. We conclude that it *622 has not. The commission cites Braden Copper Co. v. Industrial Acc. Com. (1956) 147 Cal.App.2d 205 [305 P.2d 222]. But that case expressly reserved the point now before us, pointing out that the commission there relied solely on a contention (which the court rejected) that the foreign corporation had made a general appearance and that the commission had never passed on the question of the validity of out-of-state mail service.
We are not here concerned with the validity of service by mail, as such, but only with the more limited issue of whether or not, if the mails are used, documents of the nature herein involved may be mailed to an address outside the territorial limits of the State of California.
The manner of service of process and notices in proceedings before the commission are dealt with in several sections of the Labor Code, in sections 1010 to 1020 of the Code of Civil Procedure (incorporated by reference into sections 5316 and 5504 of the Labor Code) and by the commission's rules. However, we think that section 134 of the Labor Code controls and that it evidences a legislative intent not to authorize out-of-state service. That section reads: "The commission and each commissioner may issue writs or summons, warrants of attachment, warrants of commitment and all necessary process in proceedings for contempt, in like manner and to the same extent as courts of record. The process issued by the commission or any commissioner shall extend to all parts of the State and may be served by any persons authorized to serve process of courts of record or by any person designated for that purpose by the commission or any commissioner. The person executing process shall receive compensation allowed by the commission, not to exceed the fees prescribed by law for similar services. Such fees shall be paid in the same manner as provided herein for the fees of witnesses." (Italics added.)
Since the documents originally sent to Reynolds in Las Vegas constitute the "process" by which jurisdiction is acquired, and since section 134 authorizes service of process only in this state, we conclude that the original service was ineffective to give the commission jurisdiction.
[3a] Petitioner contends that the commission was without power to quash its original service and to vacate its actions because Reynolds had not complied with the requirements of section 473 of the Code of Civil Procedure as incorporated by reference into section 5506 of the Labor Code. *623 [4] However, where service of process is void on its face, a tribunal has inherent power to quash the purported service and to vacate the void proceedings based thereon, and such action is not governed by section 473. (Montgomery v. Norman (1953) 120 Cal.App.2d 855, 858 [262 P.2d 360].) [3b] It follows that the commission, once the invalidity of the service came to its attention, no matter in what manner, had both the power and the duty to set it aside.
II
However, petitioner's application was duly filed. It alleges matters which, if true, entitle him to an award of compensation. He is entitled to a hearing thereon if one legally can be afforded to him.
It is clear that Reynolds contends that the contract of employment was not made in this state but in Nevada; however, this is not important at the present juncture. Petitioner's work and injury having been in Nevada, he is entitled to compensation under the California act, and at the hands of the California commission, only if his contract of employment was entered into here. (Lab. Code, 5305.) But we are now concerned not with liability, but with jurisdiction to determine liability. While, under the cases cited below, personal jurisdiction could be secured if the employment contract was made in California, it does not follow that the existence of such a California contract of employment is essential to the existence of that jurisdiction.
[5] The test for amenability of a foreign corporation to California process is not, as the language above quoted from the commission's order seems to imply, whether or not the corporation is "qualified to do business" in California, but whether or not it has committed "any act or acts creating such contact with the state as to make it reasonable to require the foreign corporation to defend the particular suit which is brought, providing the maintenance of the suit does not offend traditional notions of fair play and substantial justice." (James R. Twiss, Ltd. v. Superior Court (1963) 215 Cal.App.2d 247 [30 Cal.Rptr. 98]; and consult Sims v. National Engineering Co. (1963) 221 Cal.App.2d 511 [34 Cal.Rptr. 537]; Overland Machined Products, Inc. v. Swing-Line, Inc. (1964) 224 Cal.App.2d 46 [36 Cal.Rptr. 330].) [6] On the record before us, it is undisputed that, whether or not Reynolds completed an employment contract with petitioner in California, it had aggressively recruited California *624 residents for employment in its Nevada operation. Petitioner was contacted here, he was offered employment here, it was from California that he went to take up his work for Reynolds. These contacts with California are sufficient, under the cases cited, to subject Reynolds to California proceedings based on, and growing out of, such solicitation. That the commission may subject Reynolds to its jurisdiction is clear.
III
[7] Service on a foreign corporation may be made, within California, by service on an officer or general manager, by service on a duly authorized agent for service, or, lacking either of these, by service on the Secretary of State. (Code Civ. Proc., 411; Corp. Code, 6500, 6501.) [8] It is admitted that, before the commission had made the order herein involved, it had been advised by petitioner's counsel that Reynolds had appointed an agent for service in California. Once it had quashed the original service to proceed, it became the duty of the commission, according to its own rules of practice, to effect service on the agent of whose existence it had been advised. Petitioner, having given the commission the data necessary to effect a service, had done all that was required of him.
[9] We know of no rule which prohibits double service if the efficacy of one mode is in reasonable doubt, and we are at a loss to understand why the commission, which is still in doubt as to who should be served, according to its counsel in oral argument before us, does not make a duplicate service on the Secretary of State. Reynolds may then, if it shall so elect, appear specially to question the service, or it may accept the service and, again if it shall so elect, appear and contest the application on its merits.
The order herein involved is affirmed insofar as it quashes the original service and annuls the subsequent award; it is annulled insofar as it purports to require of petitioner any additional showing as to the amenability of Reynolds Electrical & Engineering Company, Inc., to the jurisdiction of the commission or as to the person or persons within California who should be served in order to subject such company to such jurisdiction. The matter is remanded to the commission with directions to proceed to serve copies of the application, notice of filing and a notice of hearing on such company by service on the statutory agent of whose existence it has heretofore been advised and, also, if the commission shall so *625 desire, by service of such documents on the Secretary of State of this state.
Burke, P. J., and Jefferson, J., concurred.
NOTES
[fn. 1] 1. In the view we take of the case in its present status, we deem it unnecessary to set out in detail the proceedings before the referees, involving inter alia an appearance purportedly on behalf of the Nevada Commission. We accept, also, the commission's position that the appearance at a hearing before the referee of the Claims Manager of the Nevada Commission was not an appearance on behalf of Reynolds of such a nature as to have constituted a general appearance by Reynolds in the compensation proceedings.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7965
ODELL EWING, a/k/a Odell Lee Ewing Bey,
Petitioner – Appellant,
v.
SECRETARY REUBEN YOUNG,
Respondent – Appellee,
and
STATE OF NORTH CAROLINA,
Respondent.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-hc-02173-D)
Submitted: February 21, 2013 Decided: February 26, 2013
Before AGEE and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed by unpublished per curiam pinion.
Odell Ewing, Appellant Pro Se. Mary Carla Hollis, Assistant
Attorney General, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Odell Ewing seeks to appeal the district court’s order
denying relief on his 28 U.S.C. § 2254 (2006) petition. The
order is not appealable unless a circuit justice or judge issues
a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(A)
(2006). A certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2) (2006). When the district court denies
relief on the merits, a prisoner satisfies this standard by
demonstrating that reasonable jurists would find that the
district court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484
(2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003).
When the district court denies relief on procedural grounds, the
prisoner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable
claim of the denial of a constitutional right. Slack, 529 U.S.
at 484-85.
We have independently reviewed the record and conclude
that Ewing has not made the requisite showing. Accordingly, we
deny Ewing’s motion to compel, deny a certificate of
appealability, and dismiss the appeal. We dispense with oral
argument because the facts and legal contentions are adequately
2
presented in the materials before this court and argument would
not aid the decisional process.
DISMISSED
3
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868 P.2d 1307 (1994)
117 N.M. 82
CHARTER SERVICES, INC., a New Mexico corporation, Plaintiff-Appellee/Cross-Appellant,
v.
PRINCIPAL MUTUAL LIFE INSURANCE COMPANY, formerly Bankers Life Insurance Company, Defendant-Appellant/Cross-Appellee.
No. 13774.
Court of Appeals of New Mexico.
January 12, 1994.
Certiorari Denied February 18, 1994.
*1309 Turner W. Branch, The Branch Law Firm, Albuquerque, for plaintiff-appellee/cross-appellant.
Joseph J. Mullins, Edward Ricco, James P. Bieg, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellant/cross-appellee.
OPINION
APODACA, Judge.
Principal Mutual Life Insurance Company (Defendant) appeals and Charter Services, Inc., (Plaintiff) cross-appeals a judgment after a bench trial. The judgment awarded Plaintiff damages for negligent misrepresentation involving the purchase of a group health insurance policy from Defendant. In its appeal, Defendant raises the following issues: (1) whether the trial court erred in not apportioning Plaintiff's damages consisting of attorney fees expended in defending against Plaintiff's former employee's lawsuit for workers' compensation and for wrongful discharge; and (2) whether the trial court erred in awarding as damages certain legal costs and expenses allegedly paid directly by Plaintiff in defending against the lawsuit of its former employee. Defendant has expressly abandoned another issue listed in its docketing statement. In its cross-appeal, Plaintiff challenges the trial court's refusal to award punitive damages and prejudgment interest. We affirm on issue (1) and reverse and remand for a new hearing on issue (2) in Defendant's appeal. We affirm on the issues raised in Plaintiff's cross-appeal.
FACTS
Allen Weh was president and principal officer of Plaintiff. James Straus was an agent of Defendant. In August and September of 1983, Weh and Straus discussed the purchase of a group medical insurance policy to cover Plaintiff's employees. The trial court found that, during these discussions, Straus advised Weh that the comprehensive major medical insurance policy offered by Defendant would cover on-the-job injuries suffered by Plaintiff's employees, and that, if Plaintiff bought the policy, it was not necessary to buy a separate workers' compensation insurance policy. This advice was incorrect. The trial court also found that Weh relied on Straus' misrepresentations in deciding to buy Defendant's policy, and that Plaintiff allowed its workers' compensation policy to lapse.
In November 1985, Kathleen Shores, an employee of Plaintiff, was injured at work. Shores informed Defendant's claims office of the injury but was told that the policy would not cover the injury because it was work-related. Plaintiff, having discontinued its workers' compensation insurance, paid Shores' medical expenses in the amount of $5,744.90 and made workers' compensation equivalent payments to her of $8,170.30. Shortly after recovering from her injury and returning to work, Shores was discharged by Plaintiff, allegedly for substandard performance. Shores sued Plaintiff, asserting claims for both workers' compensation and wrongful discharge. Plaintiff moved to dismiss the wrongful discharge claim on the *1310 ground that Shores was limited to a remedy under the Workers' Compensation Act. The matter was eventually appealed to our Supreme Court. See Shores v. Charter Servs., Inc., 106 N.M. 569, 746 P.2d 1101 (1987). The entire proceedings in Shores, including the appeal and proceedings on remand, shall be referred to as the Shores lawsuit. The Supreme Court held that Shores was required to elect to pursue either her workers' compensation claim or her wrongful discharge action. Id. at 570, 746 P.2d at 1102. Shores elected to pursue her workers' compensation claim.
The Shores lawsuit had been remanded but had not gone to trial when the present case was tried in June 1989. Despite its pronouncement in a letter decision that any attorney fees or costs incurred in connection with Shores' wrongful discharge count should be excluded from Plaintiff's recoverable damages, the trial court ultimately concluded that Defendant was liable to Plaintiff for "all damages resulting from the misrepresentations, including all of its damages in [the Shores lawsuit] such as workers' compensation benefits, medical benefits and the costs of defending that action." Plaintiff's damages could not be qualified until the conclusion of the Shores lawsuit.
The Shores lawsuit concluded in August 1990 with entry of a judgment awarding Shores workers' compensation benefits. At an August 1990 post-trial hearing on damages in this case, Defendant agreed that the judgment in the Shores lawsuit should be incorporated into the judgment to be entered against Defendant as part of Plaintiff's damages. Other elements of Plaintiff's damages, including the attorney fees incurred by Plaintiff in defending against the Shores lawsuit, remained unresolved. On July 9, 1991, the trial court held another post-trial damages hearing in this case. Plaintiff presented evidence that its total attorney fees in the Shores lawsuit amounted to $41,034.30. Weh could not identify the portion of that amount relating to defense of the workers' compensation claim before Shores' election to pursue that remedy pursuant to our Supreme Court's mandate. Defendant argued that Plaintiff had not met its burden of allocating the fees paid to its attorneys in the Shores lawsuit between those related to the workers' compensation claim and those related to the wrongful discharge claim. Contrary to the trial court's prior letter decision allowing recovery of only those expenses related to the workers' compensation claim, the trial court stated that, if the fees could not be apportioned between the two claims, then the entire amount would be allowed as damages.
Plaintiff also requested that the judgment include an award of $8,987.95 for legal costs and expenses associated with the Shores lawsuit that were paid directly by Plaintiff, over and above the $41,034.30 paid in attorney fees. The trial court did not make any finding on this claimed element of damages. After the July 9, 1991, hearing, Frederick M. Mowrer, the judge who presided over the trial, retired from the bench without making any additional findings or conclusions and without entering judgment. A successor judge, Robert L. Thompson, was assigned to the case. Two hearings were held before Judge Thompson in December 1991 to address entry of judgment. Defendant objected to inclusion of the $8,987.95 amount in the judgment, both because the amount had not been adequately proven and because Judge Mowrer had made no finding on which Judge Thompson could enter judgment.
The trial court awarded Plaintiff judgment against Defendant. The judgment included an award of $41,034.30 for attorney fees incurred in defending the Shores lawsuit, and $8,987.95 for Plaintiff's direct legal costs and expenses in that lawsuit. The trial court denied Plaintiff's requests for punitive damages and prejudgment interest.
DEFENDANT'S APPEAL
Defendant argues that the trial court erred in awarding as damages the total amount of Plaintiff's attorney fees incurred in defending the Shores lawsuit. Relying on Economy Rentals, Inc. v. Garcia, 112 N.M. 748, 819 P.2d 1306 (1991), Defendant contends that the fees incurred by Plaintiff in *1311 defending against Shores' unlawful discharge claim should have been excluded. In Economy Rentals, Inc., our Supreme Court held that, when an attorney's services are rendered in pursuit of multiple objectives, some of which permit a fee and some of which do not, the trial court must apportion the fees and award only those that are compensable. Id. at 765, 819 P.2d at 1323. We reject Defendant's argument because we disagree with its premise that Plaintiff's legal expenses in defending against Shores' wrongful discharge claim were not compensable.
Defendant does not claim that the trial court's letter decision disallowing the fees for defending the wrongful discharge claim controls over the court's later conclusion to the contrary. See Sheets v. Sheets, 106 N.M. 451, 456, 744 P.2d 924, 929 (Ct.App.1987) (language contained in trial court's decision that is not carried forward in judgment is of no effect). Rather, Defendant asserts that the trial court misapplied the law in awarding damages unrelated to Plaintiff's defense of Shores' workers' compensation action.
"Negligent misrepresentation is an action governed by the general principles of the law of negligence." R.A. Peck, Inc. v. Liberty Fed. Sav. Bank, 108 N.M. 84, 88, 766 P.2d 928, 932 (Ct.App.1988); accord Ruiz v. Garcia, 115 N.M. 269, 274, 850 P.2d 972, 977 (1993). Damages for negligent misrepresentation are those proximately caused by the misrepresentation. See First Interstate Bank v. Foutz, 107 N.M. 749, 751, 764 P.2d 1307, 1309 (1988); SCRA 1986, 13-1632 (Repl.1991). "Proximate cause is that which in a natural and continuous sequence unbroken by any new independent causes produces the injury and without which the injury would not have occurred." Pittard v. Four Seasons Motor Inn, Inc., 101 N.M. 723, 730, 688 P.2d 333, 340 (Ct.App.), cert. quashed, 101 N.M. 555, 685 P.2d 963 (1984). Defendant contends that, because its actions had nothing to do with Shores' wrongful discharge claim, Plaintiff's fees in defending against that claim were not proximately caused by Defendant's misrepresentations. In support of its position, Defendant cites evidence that Shores was discharged for poor job performance. Weh also conceded at trial that Defendant was not responsible for Shores' discharge.
We fully appreciate Defendant's arguments. However, the facts do not support those arguments. We so conclude because the gist of Shores' wrongful discharge claim was that she was fired in retaliation for filing her workers' compensation action. Our Supreme Court recognized this basis for Shores' allegation by stating in its factual recitation that "[t]he complaint also alleged that Shores entered into an oral contract of employment with [Plaintiff] and that she was terminated in retaliation for her injury." Shores, 106 N.M. at 569, 746 P.2d at 1101 (emphasis added); cf. Varney v. Taylor, 79 N.M. 652, 654, 448 P.2d 164, 166 (1968) (law of the case doctrine). Plaintiff (the defendant in the Shores lawsuit) would have naturally defended against the retaliatory discharge allegation by claiming that Shores was terminated for reasons other than for having filed a workers' compensation claim. Plaintiff should not be taken to task for advancing this defense theory against a claim alleging retaliatory discharge. One cannot escape the conclusion that, but for Straus' misrepresentations, Plaintiff would have had workers' compensation coverage. If Plaintiff had had workers' compensation coverage, Shores would not have had to file her claim for compensation benefits and retaliatory discharge, and Plaintiff would not have expended any of the costs involved in the Shores lawsuit. Under these circumstances, we conclude that all of Plaintiff's costs in defending against the Shores lawsuit flowed directly from Straus' misrepresentations concerning the policy. See Topmiller v. Cain, 99 N.M. 311, 314, 657 P.2d 638, 641 (Ct.App.1983) (compensatory damages recoverable if they proximately result from violation of legally recognized right of person seeking damages). We thus conclude that the trial court did not err in determining that all of Plaintiff's legal costs expended in the Shores lawsuit were recoverable.
*1312 Defendant's second issue on appeal is whether Judge Thompson erred in awarding Plaintiff $8,987.95 in legal costs and expenses paid directly by Plaintiff in defense of the Shores lawsuit. Defendant argues that the award was not supported by substantial evidence. Defendant also contends that Judge Thompson could not enter judgment for this element of damages because he did not hear the case. Plaintiff argues that the award was supported by substantial evidence, and that Judge Thompson could so act. We consider Defendant's second point persuasive, and reverse and remand on that basis.
When a judge retires or becomes disabled after findings and conclusions have been entered, a successor judge may perform additional duties that may be required. Grudzina v. New Mexico Youth Diagnostic & Dev. Ctr., 104 N.M. 576, 580, 725 P.2d 255, 259 (Ct.App.), cert. quashed, 104 N.M. 460, 722 P.2d 1182 (1986); see also SCRA 1986, 1-063 (Repl.1992). However, a successor judge who has not heard any of the evidence cannot, over objection, enter findings of fact and conclusions of law upon which a judgment can be based. Grudzina, 104 N.M. at 581, 725 P.2d at 260.
Defendant objected to Judge Thompson's entry of judgment for Plaintiff's claimed direct legal costs. Plaintiff contends an exception to the above-noted rule regarding findings and conclusions applies to the facts of this case because Judge Mowrer entered findings and conclusions that Plaintiff was entitled to the costs of defending the Shores lawsuit prior to leaving the bench. Nevertheless, as demonstrated by Defendant in its reply brief, Judge Mowrer made no finding concerning direct costs incurred by Plaintiff in defense of the Shores lawsuit. While Judge Mowrer heard the evidence concerning Plaintiff's direct costs, it was Judge Thompson who actually decided the matter. The proper procedure would have been for Judge Thompson to have adduced evidence on the question of these costs. Because Defendant objected to Judge Thompson deciding the matter of Plaintiff's entitlement to direct costs, we must vacate that portion of the judgment and remand for a new hearing on that question. See Pritchard v. Halliburton Servs., 104 N.M. 102, 106, 717 P.2d 78, 82 (Ct.App.), cert. denied, 103 N.M. 798, 715 P.2d 71 (1986).
PLAINTIFF'S CROSS-APPEAL
1. Punitive Damages.
Plaintiff argues that the trial court erred in denying its request for punitive damages. In his letter decision, Judge Mowrer stated that Straus' misrepresentation was negligent but did not rise to the level of malicious, fraudulent, intentional, reckless, or wanton conduct. He also stated that Defendant did not act in bad faith based upon its failure to pay or investigate Shores' claim under the medical policy because Shores never filed a medical claim. The trial court denied Plaintiff's requested findings of fact and conclusions of law to the effect that Defendant's actions were grossly negligent and in bad faith. See Empire W. Cos. v. Albuquerque Testing Lab., Inc., 110 N.M. 790, 794, 800 P.2d 725, 729 (1990) (refusal by trial court to accept requested finding regarded on appeal as finding against party bearing burden of proof on issue at trial).
The purpose of punitive damages is to punish the wrongdoer and to serve as a warning to others. Conant v. Rodriguez, 113 N.M. 513, 517, 828 P.2d 425, 429 (Ct.App. 1992). Malicious, fraudulent, oppressive, or reckless conduct with a wanton disregard for the plaintiff's rights will support an award of punitive damages. Golden Cone Concepts, Inc. v. Villa Linda Mall, Ltd., 113 N.M. 9, 14-15, 820 P.2d 1323, 1328-29 (1991). A punitive damage award is discretionary with the trial court and will be upheld if supported by substantial evidence. Jackson Nat'l Life Ins. Co. v. Receconi, 113 N.M. 403, 419, 827 P.2d 118, 134 (1992). The findings of fact, however, must satisfy the legal standards for the award of punitive damages. Id. Plaintiff asserts that Defendant is liable for punitive damages on two grounds: (1) that Defendant acted in bad faith; and (2) that Defendant ratified the conduct of its agent. We discuss each ground separately.
*1313 Plaintiff's claim that Defendant acted in bad faith is grounded in Defendant's refusal to pay Shores' claim even after learning that Straus had misrepresented coverage. Defendant counters that Plaintiff abandoned its claim of bad faith, and in any event, there was substantial evidence that Defendant did not act in bad faith. It is true, as argued by Plaintiff, that "bad faith" appears to be a hybrid action, not exclusively grounded in either contract or tort. See Jessen v. National Excess Ins. Co., 108 N.M. 625, 627, 776 P.2d 1244, 1246 (1989). However, the concept of bad faith failure to pay in the insurance context does not arise unless there is a contractual duty to pay under the policy. See American Employers' Ins. Co. v. Crawford, 87 N.M. 375, 379, 533 P.2d 1203, 1207 (1975). We do not understand Plaintiff to argue that Defendant was obligated to pay Shores' claim under the terms of the policy. Indeed, the policy specifically excluded work-related injuries.
It was Straus' misrepresentation that the policy would cover on-the-job injuries that formed the basis of Plaintiff's action for negligent misrepresentation, not the claim that Defendant was legally obligated to respond under the policy. Nor did Plaintiff submit any requested findings or conclusions on breach of contract based on Defendant's refusal to pay under the policy. See Concerned Residents for Neighborhood Inc. v. Shollenbarger, 113 N.M. 667, 671, 831 P.2d 603, 607 (Ct.App.1991) (fact that party abandoned all theories but one shown by its requested findings and conclusions), disapproved of by Regents of Univ. of N.M. v. Hughes, 114 N.M. 304, 310, 838 P.2d 458, 464 (1992). Instead, Plaintiff's claim of bad faith apparently was based on Defendant's refusal to pay everything demanded as a result of Straus' misrepresentations. However, absent any contractual obligation to pay under the policy, we do not believe the concept of bad faith comes into play.
There is a second basis for holding against Plaintiff on this point. Even if Plaintiff could recover punitive damages for Defendant's alleged bad faith failure to pay, we believe there was substantial evidence from which the trial court could have concluded that Defendant did not act in bad faith. "Bad faith means a frivolous or unfounded refusal to pay." Chavez v. Chenoweth, 89 N.M. 423, 429, 553 P.2d 703, 709 (Ct.App.1976). Because the policy here excluded benefits for work-related injuries, the trial court could have concluded that Defendant's refusal to pay was not unfounded and that there was no bad faith. See also Jackson Nat'l Life Ins. Co., 113 N.M. at 419, 827 P.2d at 134 (unfounded failure to pay means "total lack of foundation for an assertion of nonliability"). There was also evidence that Defendant did not know, before trial, that Straus had made the representations testified to by Weh. Robert Mrizek, Defendant's in-house counsel, testified that he "didn't see anything in [Straus' letter to Defendant] to indicate that [Straus] represented that Defendant Mutual was a workers' comp carrier and that our coverage was workers' comp coverage to Plaintiff Services." Additionally, Defendant actually offered to reimburse Plaintiff for the medical benefits Plaintiff had paid Shores.
Because Defendant was not contractually obligated to pay under the policy, it follows that Plaintiff cannot prevail on its claim that Defendant acted in bad faith by denying Shores' claim without adequate investigation. The policy did not provide coverage for Shores' injuries. Although the trial court based its determination of a lack of bad faith on Shores' failure to file a claim, we will affirm the trial court if it was right for any reason. See State v. Beachum, 83 N.M. 526, 527, 494 P.2d 188, 189 (Ct.App.1972).
We next address Plaintiff's second groundthat Defendant was liable for punitive damages based on its ratification of Straus' conduct. As in its bad faith claim, Plaintiff bases its ratification claim on Defendant's refusal to pay after learning of Straus' misrepresentation. Defendant first counters that the evidence supported a finding that Defendant failed to ratify Straus' conduct. *1314 Defendant next contends that the trial court could reasonably conclude that Straus' conduct, even if ratified by Defendant, was not sufficiently aggravated to support an award of punitive damages. Because we agree with Defendant's second argument, we do not address the first.
A principal is liable for punitive damages when it authorizes, participates in, or ratifies the act of its agent. Samedan Oil Corp. v. Neeld, 91 N.M. 599, 601, 577 P.2d 1245, 1247 (1978); accord Duncan v. Henington, 114 N.M. 100, 103, 835 P.2d 816, 819 (1992). However, the actions ratified by the principal must themselves justify punitive damages. See Couillard v. Bank of New Mexico, 89 N.M. 179, 181, 548 P.2d 459, 461 (Ct.App.1976); see also Duncan, 114 N.M. at 103, 835 P.2d at 819.
The trial court determined that Straus' conduct did not constitute gross negligence. In support of its contention that Straus was grossly negligent, Plaintiff relies on evidence that Straus advised Weh concerning the need for workers' compensation insurance despite never having read the Workers' Compensation Act. We believe the trial court's conclusion to the contrary was supported by substantial evidence. The basis of Plaintiff's complaint was that Straus misinterpreted the policy offered by Defendant as covering work-related injuries. Even Plaintiff's own expert characterized the policy language as ambiguous. There was also evidence that the language was subsequently clarified by Defendant. Finally, Plaintiff's action was for negligent, not intentional, misrepresentation. Given these facts, we believe it was reasonable for the trial court to conclude that Straus' misinterpreting the policy as covering on-the-job injuries did not constitute gross negligence. See Kueffer v. Kueffer, 110 N.M. 10, 13, 791 P.2d 461, 464 (1990) (former husband's interpretation of ambiguous contract, while mistaken, was not intentionally malicious, oppressive, reckless, or in wanton disregard of wife's rights so as to render husband liable for punitive damages); SCRA 1986, 13-1827 (Repl.1991) (gross negligence is an act or omission done without the exercise of even slight care under the circumstances). We conclude that the trial court's refusal to award punitive damages to Plaintiff was not error.
2. Prejudgment Interest.
Plaintiff argues that the trial court abused its discretion in failing to award prejudgment interest. In denying Plaintiff's motion, the trial court noted the "great lapse of time" since the initiation of action in September 1986.
The award of prejudgment interest pursuant to NMSA 1978, Section 56-8-4(B) (Repl.1986), is discretionary with the trial court. Southard v. Fox, 113 N.M. 774, 776, 833 P.2d 251, 253 (Ct.App.1992). The statute applies to all actions, including tort actions in which damages are not reasonably ascertainable before trial. Id. at 776-77, 833 P.2d at 253-54. Although an award of prejudgment interest is discretionary with the trial court, it should be awarded as a matter of right where the defendant has breached a contract to pay a definite sum of money. Ranch World v. Berry Land & Cattle Co., 110 N.M. 402, 404, 796 P.2d 1098, 1100 (1990).
We initially reject Plaintiff's contention that the trial court was required as a matter of law to award it prejudgment interest because the damages were readily ascertainable. See Grynberg v. Roberts, 102 N.M. 560, 562, 698 P.2d 430, 432 (1985). We believe Plaintiff's reliance on Grynberg is misplaced. Grynberg was decided under NMSA 1978, Section 56-8-3 (Cum.Supp.1984), the predecessor to NMSA 1978, Section 56-8-3 (Repl.1986), rather than under Section 56-8-4 or its predecessor. Because Grynberg involved money due on a contract, it is not applicable to the facts of this case, which involves damages for negligent misrepresentation. Nor do we believe that the trial court was required to make findings concerning the factors set forth in Section 56-8-4(B)(1) and (2). The statute itself does not require findings. Cf. Jaramillo v. Jaramillo, 103 *1315 N.M. 145, 148, 703 P.2d 922, 925 (Ct.App. 1985) (court must adopt evidentiary findings, rather than only findings of ultimate fact, where a statute so requires). Otherwise, the trial court is only required to make findings of ultimate fact. Id.; but see Ranch World, 110 N.M. at 404, 796 P.2d at 1100 (trial court abused its discretion in denying prejudgment interest without making any findings justifying denial).
Despite the lack of specific findings, having reviewed the record, we are satisfied that the trial court properly exercised its discretion in denying prejudgment interest. The trial court held two hearings on the matter. The court expressed its concern with the lapse of time since the filing of the complaint. The delay in bringing the case to its conclusion could properly be attributed to Plaintiff. See § 56-8-4(B)(1) (trial court to consider whether plaintiff was cause of unreasonable delay in the adjudication of its claims). This action could not be brought to a final conclusion until damages in the Shores lawsuit were quantified. The trial court recognized that Defendant "had no control over the amount of time that it took to get [the] workmen's compensation case through." Additionally, although the final judgment in the Shores lawsuit was presented to the trial court in this case on August 20, 1990, the hearing to determine damages was not held until July 9, 1991, and judgment was not entered until January 2, 1992. Plaintiff also rejected Defendant's pre-trial settlement offer on the ground that the damages in the Shores lawsuit were too uncertain. Under these circumstances, Defendant's further pursuit of settlement might have been futile. See § 56-8-4(B)(2) (trial court to consider whether defendant had previously made a reasonable and timely offer of settlement). In summary, we hold that the trial court's decision denying Plaintiff prejudgment interest did not constitute an abuse of discretion.
CONCLUSION
We vacate the trial court's award of $8,987.95 in legal costs and expenses allegedly paid directly by Plaintiff and remand for a new evidentiary hearing on that matter, consistent with this opinion. On all other issues, the judgment is affirmed. The parties shall bear their own costs on appeal.
IT IS SO ORDERED.
BIVINS and FLORES, JJ., concur.
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394 S.W.2d 652 (1965)
STATE of Tennessee ex rel. Paul ALLEN, Plaintiff in Error,
v.
Wilburn C. JOHNSON, Warden, Tennessee State Penitentiary, Defendant in Error.
Supreme Court of Tennessee.
September 30, 1965.
Paul Allen, pro se.
George F. McCanless, Atty. Gen., Edgar P. Calhoun, Asst. Atty. Gen., Nashville, for Wilburn C. Johnson, Warden.
DYER, Justice.
This is a habeas corpus case wherein the trial judge dismissed the petition without a hearing.
The plaintiff in error is now confined in the State Penitentiary, under a judgment of the Circuit Court for Sevier County, serving a sentence of ten years for the crime of assault and battery with intent to carnally know a female under twelve years of age. This judgment, entered 7 February 1964, was under a plea of guilty and plaintiff in error was represented by paid counsel of his own choice.
Prior to the filing of this petition plaintiff in error had filed in this same judicial circuit (Tenth Judicial Circuit) four previous petitions for a writ of habeas corpus challenging the validity of the Sevier County judgment all of which have been properly adjudged. T.C.A. Sec. 23-1807 requires a petition for writ of habeas corpus shall state:
(4) That it is the first application for the writ, or, if a previous application has been made, a copy of the petition and proceedings thereon shall be produced, or satisfactory reasons be given for the failure so to do.
In the present petition plaintiff in error has made no statement as to whether this is the first or fifth application for the writ; *653 nor is there a copy of any of the previous petitions attached or reason given for failure to so attach. The failure of the plaintiff in error to follow the requirements of this statute (23-1807) was one of several reasons given by the trial judge in dismissing this petition.
We have held the provisions of T.C.A. Sec. 23-1807 to be mandatory and the trial judge was correct in dismissing the petition for failure to comply with said section. Bateman v. Smith, 183 Tenn. 541, 194 S.W.2d 336; State ex rel. Kuntz v. Bomar, Tenn., 381 S.W.2d 290. Under the record before us it appears plaintiff in error, beginning in September 1964, filed a petition for habeas corpus roughly each month for a period of five months. We think this points up the wisdom of the legislature in enacting T.C.A. 23-1807.
Judgment affirmed.
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904 F.Supp. 471 (1995)
Cheryl Anne BATTLES et al.
v.
The ANNE ARUNDEL COUNTY BOARD OF EDUCATION et al.
Civ. No. Y-95-508.
United States District Court, D. Maryland.
November 17, 1995.
*472 Cheryl Anne Battles, pro se.
P. Tyson Bennett, Columbia, Maryland; B. Darren Burns, Annapolis, Maryland; J. Joseph Curran, Jr., Attorney General of Maryland, Baltimore, Maryland; Shelly E. Mintz, Assistant Attorney General, Baltimore, Maryland; for Defendants.
MEMORANDUM OPINION
JOSEPH H. YOUNG, Senior District Judge.
Cheryl Anne Battles and her daughter Emily Elizabeth McCann filed suit against Anne Arundel County Superintendent of Education, Anne Arundel County Board of Education, and Anne Arundel County Department of Social Services seeking relief from certain provisions of the Maryland education law and related regulations. Defendants' motions to dismiss the Complaint are now pending before the Court.
I. BACKGROUND
Battles states that the public school system indoctrinates children in atheism, non-Christian religions, secular humanism, evolutionism and other teachings which are contrary to her religious beliefs. To avoid exposing her daughter Emily to this environment, Battles educates Emily at home.
Maryland requires children to attend public schools "unless the child is otherwise receiving regular, thorough instruction during the school year in the studies usually taught in the public schools to children of the same age." Md.Educ.Code Ann. § 7-301(a)(1) (1992). The regulations promulgated under this law allow parents to provide home education to children as long as they meet the statutory standard. COMAR 13A.10.01.01(A). However, the State retains a supervisory role over children's education *473 and requires instruction in English, mathematics, science, social studies, art, music, health, and physical education. COMAR 13A.10.01.01(C)(2). The parent must maintain a portfolio of instructional materials and examples of the child's work to demonstrate that the child is receiving regular and thorough instruction in those areas, and must permit a representative to observe the teaching provided and review the portfolio at a mutually agreeable time and place not more than three times a year. COMAR 13A.10.01.01(D)-(E). To ensure compliance with these regulations, parents who educate their children at home must sign a consent form indicating that they have read and understand the regulations. COMAR 13A.10.01.01(B). Battles has refused to sign the consent form and will not allow the local school system to monitor Emily's education as required by law.
Battles was also investigated as a "possible child neglector" by the Anne Arundel County Department of Social Services after it received a complaint from an undisclosed source. Child neglect includes "failure to give proper care and attention to a child by any parent" under circumstances that indicate harm or substantial risk of harm to the child's health or welfare or that indicate mental injury or substantial risk of mental injury. Md.Fam.L.Code Ann. § 5-701(p). Under Maryland law a local department of social services must conduct an investigation upon receiving a report of possible child neglect. Id. § 5-706(a), (b). The investigation by Anne Arundel County Department of Social Services found that neglect was "unsubstantiated" and Battles' name was entered on a central registry after she was given notice of the finding. Id. §§ 5-714(a), 5-706.1, 5-715. She did not request a hearing as allowed by law. Id.
Plaintiff then filed suit in this Court, objecting to (1) state supervision of Emily's education in general, (2) signing the Consent Form in particular, and (3) the child neglect investigation. Battles believes that "to subject her child's education to the scrutiny, regulation and oversight of an agency charged by law with implementing atheistic, antichristian education, would be a sin against the Plaintiff's conscience and would be insulting to her Christian God and Christian beliefs...." Complaint ¶ 13. She alleges that the Consent Form is unconstitutional because it authorizes the Board of Education to withdraw her daughter from home education if she cannot furnish proper portfolios and other proof of educational quality. Complaint ¶ 18. As a result, signing this form, she states, "is contrary to Cheryl Battles' belief that by so signing, Ms. Battles would enter into a contractual relationship with an agency charged ... with teaching atheism...." Complaint ¶ 28. In addition, Battles argues that Emily's education should be measured by national comprehensive tests rather than "process related criteria" used in Maryland schools such as the number of hours spent on education and the kind and difficulty of subjects taught. Complaint ¶ 19-20.
Battles also alleges that the child neglect investigation was launched after she refused to allow the State to supervise the education of Emily to intimidate and harass her into complying with the law.
Battles attempts to crystallize her general grievances in a three-count Complaint. Count I asks for a declaration that Plaintiffs have the right to practice the free exercise of their religion and are exempt from any law, including the Maryland education law at issue, that interferes with that right.
Count II claims that Defendants' implementation of the home education provisions and investigation of child neglect violate 42 U.S.C. § 1983 because they restrict Plaintiff's right to free exercise of religion under the First Amendment. No relief is specifically requested under this count.
Count III requests equitable relief in the form of a permanent injunction preventing the Anne Arundel County Department of Social Services from listing Battles on a central registry of "possible child neglectors." Under Count III Battles also requests monetary damages.
II. STANDARD
Defendants seek dismissal of this suit on the grounds that Battles has failed to *474 state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When considering a Motion to Dismiss under Rule 12(b)(6), the factual allegations of the complaint must be taken as true and all reasonable inferences must be viewed in favor of the plaintiff. Martin Marietta Corp. v. International Telecommunications Satellite Org., 991 F.2d 94, 97 (4th Cir.1992). A complaint should not be dismissed unless it appears that the plaintiff can prove no set of facts in support of the claims which would entitle the plaintiff to relief. Id. at 97. However, this Court is not bound to accept conclusory allegations concerning the legal effect of events set out in the complaint if the conclusions do not reasonably follow from the plaintiff's description of what happened. Ficker v. Chesapeake & Potomac Telephone Co., 596 F.Supp. 900 (D.Md.1984). This Court may also treat a Motion to Dismiss as a Motion for Summary Judgment if appropriate. Fed.R.Civ.P. 12(c).
III. COUNT I DECLARATORY JUDGMENT
Courts are authorized to declare the right of any interested party seeking declaratory judgment when there is a "case of actual controversy within its jurisdiction...." 28 U.S.C. § 2201(a). The Declaratory Judgment Act provides a remedy for the resolution of substantive rights, making resolution of Count I dependent upon whether Battles states a right of action in the other counts.
It must be noted that declaratory judgment claims are subject to the well-pleaded complaint rule. It is possible to interpret Battles' federal claims as raising defenses to Maryland's attempted enforcement of the education laws, which would place the Complaint in jeopardy of the well-pleaded complaint rule. However, the better view is that the Complaint asserts affirmative claims under the First Amendment and the Religious Freedom Restoration Act. Alternatively, her claims can be interpreted as raising the issue of whether Maryland laws are preempted by the Constitution and federal law, which would also satisfy the well-pleaded complaint rule.
IV. COUNT II SECTION 1983
Battles alleges that Maryland's system of monitoring home education infringes upon her right to exercise freely her religious beliefs. Although she did not request any specific relief, this Court will determine the validity of Count II. To maintain a claim under 42 U.S.C. § 1983, Plaintiffs' allegations, taken as true, must show infringement upon her right to practice her religion.
As an initial matter, this Court must determine the prevailing law. In Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court held that a law does not violate the Free Exercise Clause if it is "religion-neutral" and "generally applicable." Subsequently, Congress sought to reinstate the previous "compelling interest" standard used in free exercise cases by passing the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (1994 Supp.) ("RFRA").
The Fourth Circuit has recognized separate Constitutional and statutory standards to determine whether certain laws infringe upon religious freedom. In Goodall by Goodall v. Stafford Co. School Bd., 60 F.3d 168 (4th Cir.1995), the court held that a county was not required to provide a cued speech transliterator in a private sectarian school. First, the court analyzed the RFRA claim by referring to pre-Smith cases and held that the plaintiffs did not meet the threshold test of showing a "substantial burden" on their exercise of religious beliefs. Second, the court analyzed the First Amendment claim and held that the county policy was either generally applicable and valid under the Smith standard or did not impose a substantial burden on the plaintiffs and was therefore valid under the "compelling interest" test.
In American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995), the court held that the Freedom of Access to Clinic Entrances Act did not infringe upon the free exercise of religion. First, the court held that the Access Act does not violate the Free Exercise Clause of the First Amendment as interpreted in Smith because it is a *475 generally applicable law that is neutral towards religion. Second, the Access Act did not violate RFRA because prohibiting threats of force and physical obstruction is the "least restrictive means" available to protect clinics, clinic workers, and access to clinics.
Following the Fourth Circuit's directives, Battles' section 1983 claim will be analyzed separately under the First Amendment and the RFRA. Even though Battles' Complaint refers only to a First Amendment claim, the Religious Freedom Restoration Act is mentioned in a later Opposition Memorandum and will be addressed for the sake of completeness.
A. First Amendment
Battles claims that Maryland's compulsory education law and home education requirements infringe upon the free exercise of her religious beliefs as guaranteed by the First Amendment. The Free Exercise Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I (emphasis added). This Clause is applicable to the States by incorporation into the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
In Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), the Supreme Court held that the Free Exercise Clause permits a state to include religiously inspired use of peyote within the reach of a state's general criminal prohibition of that drug. The Court reached this holding by distinguishing Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and other cases that used a "compelling interest" test in free exercise cases and announcing a two-part test for determining whether a law is constitutional. First, it must be a valid and generally applicable law. Smith, 494 U.S. at 878, 110 S.Ct. at 1599. Second, the burden on religion must be incidental and not the purpose of the law. Id. The second prong of this test was refined in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, ___ U.S. ___, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), which struck down a law banning animal sacrifices because the Court found that it was specifically adopted to suppress a central element of the Santeria religion.
The Maryland education law at issue applies to all children in the state; indeed, this is the crux of Battles' Complaint, for she desires a special exemption for her child. Furthermore, Battles does not claim that the education laws were passed with the purpose of suppressing religion. Her conclusions that the public schools indoctrinate children in an atheistic or antichristian world view are not sufficient factual allegations to show that the education laws are designed to suppress her religion. Thus, Battles has failed to state a claim under the First Amendment as interpreted in Smith.
In her Memorandum in Opposition to the Motion to Dismiss filed by Defendant Board of Education, Battles attempts to escape this conclusion by relying on dictum in Smith where the Court stated:
The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved ... the Free Exercise Clause in conjunction with other constitutional protections, such as ... the right of parents, acknowledged in Pierce v. Society of Sisters, 268 U.S. 510, 69 L.Ed. 1070, 45 S.Ct. 571, 39 A.L.R. 468 (1925), to direct the education of their children, see Wisconsin v. Yoder, 406 U.S. 205, 32 L.Ed.2d. 15, 92 S.Ct. 1526 (1972) (invalidating compulsory school-attendance laws as applied to Amish parents who refused on religious grounds to send their children to school.)
Smith, 494 U.S. at 881, 110 S.Ct. at 1601 (citations omitted). Applying this language to her situation, Battles claims that Maryland education law infringes upon her religious beliefs in conjunction with an amalgam of rights she calls the "fundamental right against standardization of education." Her reliance on these cases is misplaced, as they are readily distinguishable.
*476 Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), held that Oregon could not force children to attend state primary schools and thereby limit education to one forum. Unlike the statute at issue in Pierce, the Maryland education laws liberally permit private or home education as long as certain educational standards are met. The Court's reasoning emphasized that private schools would be put out of business and that parents would be required to choose instruction from public teachers; the Maryland education laws do not mandate either outcome. Moreover, Pierce does not support Battles' proposition that a state cannot oversee non-public education, stating
No question is raised concerning the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils; to require that all children of proper age attend some school, that teachers shall be of good moral character and patriotic disposition, that certain studies plainly essential to good citizenship must be taught, and that nothing be taught which is manifestly inimical to the public welfare.
Pierce, 268 U.S. at 534, 45 S.Ct. at 573. This language limits the holding of Pierce and prevents undue interference with state education systems.
In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Court held that the State could not charge members of the Old Amish religion for violating the compulsory school-attendance law when they refused to send their children to school after the eighth grade. In reaching this holding the Court emphasized that it was a central tenet of the Amish belief that members disassociate themselves from modern society, that education after the eighth grade would greatly endanger their religious beliefs, and that their alternative mode of continuing informal vocational education was adequate preparation for membership in their rural, self-sufficient society. These factors, balanced against the State's interest in basic universal education, dictated relief from compulsory education beyond the eighth grade. The factual allegations in Battles' complaint are quite different, claiming that her daughter received the equivalent of a first or second grade education, which is not comparable to the educational level held sufficient to satisfy Wisconsin's interest in Yoder. More importantly, Battles does not allege that separation from modern society is a central tenet of her religion or that she lives in a separate, self-sufficient community. See Duro v. Dist. Atty., Second Jud. Dist. of N.C., 712 F.2d 96 (4th Cir.1983), cert. denied, 465 U.S. 1006, 104 S.Ct. 998, 79 L.Ed.2d 230 (1984) (distinguishing Yoder in similar circumstances). Consequently, the Maryland education laws do not pose a grave threat to Battles' religious belief and do not violate the First Amendment.
B. Religious Freedom Restoration Act
Battles also claims that the Maryland education laws violate the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb (1994 Supp.) ("RFRA"). Congress passed the Act in reaction to the Smith decision in an attempt "to restore the compelling interest test." § 2000bb(b)(1). Rather than view RFRA as overturning the Supreme Court's interpretation of the First Amendment, it is proper to view the Act as creating a separate statutory "claim or defense to persons whose religious exercise is substantially burdened by the government," § 2000bb(b)(2), which refers to pre-Smith case law. See American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 55, 133 L.Ed.2d 19 (1995); Goodall by Goodall v. Stafford Co. School Bd., 60 F.3d 168 (4th Cir.1995). The statutory defense provides that the government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability...." § 2000bb-1(a). The government may act in such a manner only after it demonstrates that the burden (1) furthers a compelling governmental interest and (2) is the least restrictive means of furthering that interest. § 2000bb-1(b).
As a threshold matter, Battles must allege facts sufficient to demonstrate that the Maryland education law substantially burdens her exercise of religion. A "substantial burden" exists in the Constitutional sense *477 when governmental action compels a party to affirm a belief they do not hold, discriminates against an individual or group because of religious belief, inhibits the dissemination of particular religious views, or pressures a party to forego a religious practice. Sherbert v. Verner, 374 U.S. 398, 402-404, 83 S.Ct. 1790, 1793-1795, 10 L.Ed.2d 965 (1963) (collecting cases).
Although Maryland law permits Battles to educate her child at home, she claims that the required curriculum promotes atheism, paganism, and evolutionism, diminishes the importance of Christian holidays by introducing secular figures like the Easter Bunny and Santa Claus, and generally promotes a "Godless world view." These allegations do not establish that Maryland imposes a substantial burden on her exercise of religion. Plaintiffs do not have to alter their religious beliefs or forego acts necessary to their beliefs to comply with Maryland's monitoring requirements. More to the point, Maryland is not required to "subsidize" Battles' particular religious beliefs by eliminating contrary viewpoints from the required curriculum. Cf. Regan v. Taxation with Representation of Washington, 461 U.S. 540, 546, 103 S.Ct. 1997, 2001, 76 L.Ed.2d 129 (1983) (government does not have to subsidize the First Amendment right to lobby government by granting tax-exempt status to a non-profit organization); Goodall by Goodall v. Stafford Co. School Bd., 60 F.3d 168, 171-172 (4th Cir.1995) (state does not have to provide cued speech transliterator in child's private sectarian school); McCarthy v. Hornbeck, 590 F.Supp. 936, 945 (D.Md.1984) (state does not have to provide transportation to private parochial schools); Fordham University v. Brown, 856 F.Supp. 684 (D.D.C.1994) (government does not have to subsidize broadcast of religious mass by radio station). Indeed, Maryland is prohibited from doing so by the Establishment Clause of the First Amendment. See Edwards v. Aguillard, 482 U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987) (holding that Louisiana cannot require teaching creationism for the same amount of time that evolution is taught). Because Battles' religious beliefs were not substantially burdened, she has no right of action under RFRA.
The section 1983 claim must be dismissed because Maryland did not infringe any federal right of Battles.
V. COUNT III INJUNCTIVE RELIEF
Battles alleges that as a result of her listing on the central registry of suspected child neglectors she was "informed by the Department of Social Services in writing that she may very well be precluded from ever obtaining a day care license or becoming a foster parent...." Complaint, ¶ 26. This statement was on the back of a form she received from Maryland informing her that she was listed as an "unsubstantiated child neglector." The back of the form outlined procedures to appeal the listing, and states that one of the consequences of not appealing was that "you may be denied approval as a foster care provider, adoptive parent or day care provider." For the first time in her Memorandum in Opposition of Motion to Dismiss, Battles claims that she wants to become a foster parent or adoptive parent in the future.
Social Services claims that the statement on the back of the form is incorrect. As a matter of law, only protective services staff and law enforcement personnel can obtain information from the central registry for the purpose of investigating a report of possible child abuse or neglect. Md.Fam.L.Code Ann. § 5-714. Therefore it is legally impossible for Battles to be injured in the manner she complains of. Because she does not allege any other injury, and listing on a confidential registry is not an injury in itself, see Hodge v. Jones, 31 F.3d 157, 164-167 (4th Cir.1994), cert. denied ___ U.S. ___, 115 S.Ct. 581, 130 L.Ed.2d 496 (1994), she does not have standing to request this relief and this Court has no jurisdiction to hear her claim. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992).
Battles therefore has no right in this Court to have her name removed from the central registry of suspected child neglectors.
VI. CONCLUSION
Because Battles has no Constitutional or statutory right to avoid compliance with the *478 Maryland law regarding State monitoring of home education and no right in this Court to have her name removed from the central registry of child neglectors, Defendants' motions to dismiss are granted.
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407 So.2d 1095 (1982)
CAROLINA CASUALTY COMPANY, Appellant,
v.
GENERAL TRUCK EQUIPMENT & TRAILER SALES, INC., a Corporation, Appellee.
No. AE-425.
District Court of Appeal of Florida, First District.
January 6, 1982.
Charles T. Boyd, Jr., of Boyd, Jenerette, Leemis & Staas, Jacksonville, for appellant.
George D. Rotchford of Rotchford & Betancourt, Jacksonville, for appellee.
McCORD, Judge.
Appellant appeals the trial court's setting aside of its October 21, 1980, order dismissing with prejudice appellee General Truck's claim against appellant. We reverse.
In April 1979, appellee filed suit against appellant and Catawba Insurance Company, alleging that sometime between November 1, 1977, and April 14, 1978, a vehicle owned by appellee was stolen and that either appellant or Catawba had issued an insurance policy covering the loss. The complaint was dismissed without prejudice to file an amended complaint. Appellee filed several untimely amended complaints which were also dismissed without prejudice. Finally, on October 21, 1980, the trial court entered an order on motions to dismiss the latest amended complaint. In the order, the judge dismissed with prejudice the complaint against appellant and allowed appellee to file another amended complaint against Catawba. After obtaining new counsel on the case, appellee voluntarily dismissed its action against Catawba and on May 13, 1981, moved the trial court to set aside the October 21, 1980, order pursuant to Florida Rule of Civil Procedure 1.540(b) on the ground that the trial court mistakenly dismissed with prejudice the complaint against appellant.
The hearing on the motions that were the subject of the October 21, 1980, order was not reported. However, at the hearing on appellee's motion to set aside that order, the trial judge and the attorney for appellant stated on the record that, in their recollection, at that previous hearing, the then counsel for appellee announced in open court that he would proceed solely against Catawba and that he would agree to a dismissal as to appellant with prejudice. The attorney for Catawba had the *1096 same recollection, as shown by his affidavit in the record. In his order on the motion to set aside, the trial judge declared that there was no doubt that the then counsel for appellee agreed to the entry of the October 21, 1980, order dismissing with prejudice the action against appellant and that the order was properly entered and should stand. He ruled, however, that "simply in the interest of justice and to permit the plaintiff to have his day in court and overlooking any errors made in the case by plaintiff's counsel," the October order would be modified to read that the cause against appellant is dismissed without prejudice. That ruling was error since Rule 1.540(b), which gives a court the authority to relieve a party from a final order, makes no provision for such relief in the absence of mistake, inadvertence, surprise, excusable neglect or certain other conditions not pertinent here.
Further, according to Randle-Eastern Ambulance Service, Inc. v. Vasta, 360 So.2d 68 (Fla. 1978), when a claimant voluntarily dismisses an action pursuant to Florida Rule of Civil Procedure 1.420(a)(1)(i), the trial court loses jurisdiction to set aside that voluntary dismissal under Rule 1.540(b). The evidence in this case supports a finding that appellee voluntarily dismissed its action against appellant pursuant to Florida Rule of Civil Procedure 1.420(a)(2). The reasoning employed in the Randle-Eastern case concerning a voluntary dismissal pursuant to Rule 1.420(a)(1)(i) applies equally to a voluntary dismissal under Rule 1.420(a)(2). Therefore, the trial court in the instant case was divested of jurisdiction over the claim against appellant as of the October 21, 1980, order and thus was powerless to relieve appellee from that dismissal.
REVERSED.
LARRY G. SMITH and WENTWORTH, JJ., concur.
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887 F.2d 1091
U.S.v.Fontanez*
NO. 88-6013
United States Court of Appeals,Eleventh Circuit.
SEP 18, 1989
1
Appeal From: S.D.Fla.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NEEMIAS RAMIREZ RAMOS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D18-1035
[June 5, 2019]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Barry Cohen, Senior Judge; L.T. Case No.
2015CF012487AXXXMB.
Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.
Ashley B. Moody, Attorney General, Tallahassee, and Marc B.
Hernandez, Assistant Attorney General, West Palm Beach, for appellee.
MAY, J.
The importance of correctly instructing the jury on the elements of a
crime is raised in this appeal of the defendant’s conviction and sentence
on two counts of sexual battery on a person less than twelve years of age.
He argues, and we agree, that the court erred in its instructions to the
jury. We reverse and remand the case for a new trial.
In an Amended Information, the State charged the defendant with two
counts of sexual battery by “causing his penis to penetrate or have union
with the butt of [the victim].” (Emphasis added). The Amended
Information was unchallenged. The case proceeded to trial.
At trial, testimony revealed that the victim lived with her father and
stepmother during the week and with her mother and her significant
other—the defendant—on the weekend. When the stepmother picked the
victim up from school following her weekend visit with her mother, she
noticed the victim seemed sad and quiet. When she asked the victim if
anything had happened and after some prodding, the victim began to cry
and told her the defendant had inappropriate contact with her. The victim
was seven years old at the time. 1
After talking to the victim, the stepmother told the father, who called
the police. The next day the father and the stepmother took the victim to
the clinic to be examined.
By the time of trial, the victim was ten years old. She had difficulty
remembering things. Suffice it to say, the victim testified about the
defendant’s actions, but indicated the inappropriate contact was with her
“butt.” And, she was inconsistent in her description of what precisely
happened.
The detective testified that he contacted the defendant immediately
after the victim’s child protection team (“CPT”) interview. The defendant
voluntarily went to the police station where the detective advised him he
was not under arrest, was free to leave at any time, and read him his
Miranda warnings. The defendant agreed to talk. The defendant initially
denied any wrongdoing, but eventually admitted inappropriate contact.
His testimony was inconsistent on precisely what happened.
The parties discussed the jury instructions with the court before
proceeding to closing arguments. The defendant did not object to the
State-prepared instructions but requested a lesser included offense
instruction. Regarding the elements of the crime, the court instructed the
jury that: “[The defendant] committed an act upon [the victim] in which
the sexual organ of [the defendant] penetrated or had union with the butt
of [the victim].” (Emphasis added). The instructions further defined union
as contact.
The jury returned a guilty verdict on both counts. The court sentenced
the defendant to life on both counts. From his conviction and sentence,
the defendant now appeals.
The defendant first argues the trial court erred in instructing the jury
on the elements of sexual battery by using the word “butt” rather than
anus. He argues this amounted to fundamental error. The State responds
the trial court did not fundamentally err in using the informal term “butt”
rather than the statutory term anus because the totality of the
circumstances showed the victim used “butt” to refer to her anus.
1Because the specific details of what occurred are unnecessary to our holding,
we decline to include them in this opinion.
2
“‘Generally speaking, the standard of review for jury instructions is
abuse of discretion,’ but that ‘discretion, as with any issue of law is strictly
limited by case law.’” Krause v. State, 98 So. 3d 71, 73 (Fla. 4th DCA 2012)
(citation omitted). Where a party fails to object to the jury instructions, we
must determine if the error is fundamental. Barnett v. State, 121 So. 3d
643, 646 (Fla. 4th DCA 2013).
The defendant did not object to the jury instructions during the
charging conference. He only requested a lesser included offense. This
relegates our review to fundamental error.
“Fundamental error is error that ‘reaches down into the validity of the
trial itself to the extent that a verdict of guilty could not have been obtained
without the assistance of the alleged error.’” Krause, 98 So. 3d at 73
(citation omitted). “[W]here the instruction pertains to a disputed element
of the offense and the error is pertinent or material to what the jury must
consider to convict,” fundamental error occurs. Haygood v. State, 109 So.
3d 735, 741 (Fla. 2013).
Sexual battery is defined as “oral, anal, or vaginal penetration by, or
union with, the sexual organ of another or the anal or vaginal penetration
of another by any other object . . . .” § 794.011(1)(h), Fla. Stat. (2015).
“Union permits a conviction based on contact with the relevant portion of
anatomy . . . .” Richards v. State, 738 So. 2d 415, 418 (Fla. 2d DCA 1999).
In short, union means contact. Tirado v. State, 219 So. 3d 146, 149 (Fla.
4th DCA 2017).
Here, the Amended information alleged in both counts that the
defendant committed sexual battery by “causing his penis to penetrate or
have union with the butt of [the victim].” (Emphasis added). The
information cited section 794.011, which does not use the term butt.
The jury instructions tracked the language of the Amended information
by using the term “butt”—rather than anus—and provided the following
elements of sexual battery:
1. [The defendant] committed an act upon [the victim] in
which the sexual organ of [the defendant] penetrated or had
union with the butt of [the victim].
2. At the time of the offense, [the victim] was less than 12
years of age.
3. At the time of the offense, [the defendant] was 18 years of
3
age or older.
The instructions further defined union as contact. Significantly, the
instructions did not define “butt” or specify that the defendant’s act must
involve contact with or penetration of the victim’s anus.
A review of the record establishes that the issues of “union” and
“penetration” were in dispute. It also reflects the victim’s testimony that
referred to her “butt” even though the defendant referred to the correct
anatomical term in part of his statement to law enforcement. This made
the distinction between “anus” and butt or buttocks critical to the jury’s
consideration of the defendant’s guilt. Given the instruction, and the
disputed factual issues, the jury was left to deliberate and convict the
defendant based on conduct less than that required by statute for the
crime of sexual battery and its consequent life sentence. This is
fundamental error. Haygood, 109 So. 3d at 741. For this reason, we
reverse.
Reversed and remanded for a new trial.
CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4
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Filed 4/15/15 Perez v. Navman USA CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
BENJAMIN PEREZ, D066857
Plaintiff and Appellant,
v. (Super. Ct. Nos. RIC1100165,
RIC1100355)
NAVMAN USA, INC. et al.,
Defendants and Respondents.
_____________________________________
BENJAMIN RAMIREZ et al.,
Plaintiffs and Appellants, (Super. Ct. No. RIC 1100355)
v.
NAVMAN USA, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Riverside County, Matthew C.
Perantoni, Judge. Affirmed.
McNulty Law Firm, Peter J. McNulty and Brett L. Rosenthal for Plaintiffs and
Appellants Benjamin Ramirez and Celia Ramirez.
Law Offices of Ryan & Associates, Timothy J. Ryan; Dewsnup, King & Olsen
and David R. Olsen for Plaintiff and Appellant Benjamin Perez.
Thompson & Colgate, Mary L. Frederickson; Hayes, Scott, Bonino, Ellingson &
McLay, Mark G. Bonino and Lauren M. Case for Defendants and Respondents.
Benjamin Perez was injured when the car he was riding in struck a tractor-trailer.
Benjamin and Celia Ramirez (together Ramirez) were parents of Oscar Ramirez (Oscar),
a passenger in the same car as Perez. Oscar was killed in the accident. In separate suits
that were eventually consolidated, Perez and Ramirez (together Appellants) sued Navman
USA, Inc., Navman Wireless North America, and Absolute Wireless, Inc. (collectively
Respondents). Respondents manufactured, supplied, warranted, or were otherwise
involved in the production and sale of a certain GPS unit that was used by the driver of
the tractor-trailer. Appellants alleged that the GPS unit provided the wrong directions to
the driver of the tractor-trailer, which ultimately caused the accident.
Respondents filed a motion for summary judgment, which the superior court
granted against all of Appellants' claims. Appellants appeal the ensuing judgment,
contending a triable issue of material fact exists as to causation. We agree with the
superior court that no such triable issue of material fact exists. Therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Frank Perez (Frank), a professional truck driver employed by KLX Inc., was
driving an empty tractor-trailer from Bakersfield to Moreno Valley to pick up cargo.
Before leaving Bakersfield, Frank entered the destination address on Globe Street into the
truck's GPS unit.
2
Frank was in the middle lane of three northbound lanes on Perris Boulevard as he
approached Globe Street. The audio directions from the GPS unit in his rig instructed
Frank to turn left onto Globe Street. Frank activated his left turn signal, but noticed on
the street sign at the right of the upcoming intersection that the correct turn was to the
right, not to the left.
Frank then changed his turn signal to the right and began the move into the right-
hand lane on Perris Boulevard. After he made the decision to turn right, Frank no longer
consulted the GPS unit. When Perez looked to make sure the right lane was clear before
merging, he saw a passenger car (an Acura) come "outta [sic] nowhere, driving fast."
Perez saw the Acura swerving from lane to lane at a high rate of speed and was
concerned that the car might hit his tractor-trailer no matter what lane he was in.1
Frank attempted to avoid the collision by turning his wheel back to the left so as to
remain in the middle lane on Perris Boulevard. The car hit the rear end of the trailer on
its left rear corner.2 The impact of the collision took the roof off the car and damaged its
right front end.
1 There was no evidence in the record that the tractor-trailer completely moved out
of the middle lane.
2 At oral argument, representations were made that the Acura was traveling 70 to 75
miles per hour at the time of the accident while the tractor-trailer was traveling 25 to 30
miles per hour. However, the record is clear regarding the actual speeds of the two
vehicles. According to various California Highway Patrol (CHP) witness interviews, the
speed of the Acura ranged from 50 to 75 miles per hour with the CHP's time and distance
analysis calculating the Acura's speed at 62 miles per hour. In regard to the tractor-
trailer, there is evidence that it was traveling from 5 to 45 miles per hour with the CHP's
time and distance analysis calculating the speed at 27 miles per hour.
3
Perez was severely injured in the accident, and Oscar died from his injuries. The
driver of the Acura was arrested for driving while under the influence of alcohol or drugs.
(Veh. Code, § 23152, subd. (a).)
Ramirez and Perez filed separate complaints against Respondents. The two
actions were consolidated and Perez's complaint was designated the lead case. Both
operative complaints included causes of action for products liability. In addition, Perez
alleged a claim for negligence and Ramirez brought a wrongful death claim.
Respondents filed a motion for summary judgment, focusing on the lack of a
triable issue of material fact as to the issue of causation. Appellants opposed the motion
for summary judgment, arguing that an issue of fact existed as to causation based on
Frank's deposition testimony; Frank's testimony in a previous, related lawsuit; the
declaration of a third party eyewitness (Jonathan Rangel, Jr.); and the declaration of
expert witness Dr. Frank Drews.
Respondents filed a reply to the Appellants' opposition. As part of the reply,
Respondents objected to some of the evidence submitted by Appellants, including
portions of Rangel's and Drews's respective declarations.
After hearing oral argument and considering the pleadings and evidence, the
superior court granted the motion for summary judgment. In doing so, the court
explained: "The Court finds that Defendants have met their initial burden of producing
evidence to show that causation cannot be established. The court finds that Plaintiff[s]
ha[ve] not met [their] burden to show that a triable issue of fact exists." Included in the
order, the court sustained and overruled certain of Appellants' objections to evidence as
4
well as Respondents' objections to evidence. The court did not explain the basis for these
rulings.
The court entered judgment based on its order granting summary judgment.
Appellants timely appealed.
DISCUSSION
Appellants claim the superior court committed reversible error in granting
Respondents' motion for summary judgment. They contend a triable issue of material
fact exists as to the element of causation, which is essential to the three causes of action
at issue. (See Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 614 [negligence]; Soule v.
General Motors Corp. (1994) 8 Cal.4th 548, 572 [strict products liability]; Quiroz v.
Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1263 [elements of cause of action for
wrongful death are the tort (negligence or other wrongful act), the resulting death, and the
damages, consisting of the pecuniary loss suffered by the heirs].)3
I
THE MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
"On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained." (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 334 (Guz).) Generally, if all the papers submitted
3 Ramirez's wrongful death claim was based on the torts of negligence and strict
products liability.
5
by the parties show there is no triable issue of material fact and the "moving party is
entitled to a judgment as a matter of law" (Code Civ. Proc.,4 § 437c, subd. (c)), the court
must grant the motion for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 843 (Aguilar).)
In performing our independent review, we apply the same three-step process as the
trial court. "Because summary judgment is defined by the material allegations in the
pleadings, we first look to the pleadings to identify the elements of the causes of action
for which relief is sought." (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159
(Baptist).)
We then examine the moving party's motion, including the evidence offered in
support of the motion." (Baptist, supra, 143 Cal.App.4th at p. 159.) A defendant moving
for summary judgment has the initial burden of showing that a cause of action lacks merit
because one or more elements of the cause of action cannot be established or there is a
complete defense to that cause of action. (§ 437c, subd. (o); Aguilar, supra, 25 Cal.4th at
p. 850.)
If the defendant fails to make this initial showing, it is unnecessary to examine the
plaintiff's opposing evidence and the motion must be denied. However, if the moving
papers make a prima facie showing that justifies a judgment in the defendant's favor, the
burden shifts to the plaintiff to make a prima facie showing of the existence of a triable
4 All further statutory references are to the Code of Civil Procedure unless otherwise
indicated.
6
issue of material fact. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 850; Kahn v.
East Side Union High School Dist. (2003) 31 Cal.4th 990, 1002-1003.)
In determining whether the parties have met their respective burdens, "the court
must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom
[citation], and must view such evidence [citations] and such inferences [citations], in the
light most favorable to the opposing party." (Aguilar, supra, 25 Cal.4th at p. 843.)
"There is a triable issue of material fact if, and only if, the evidence would allow a
reasonable trier of fact to find the underlying fact in favor of the party opposing the
motion in accordance with the applicable standard of proof." (Id. at p. 850, fn. omitted.)
Thus, a party "cannot avoid summary judgment by asserting facts based on mere
speculation and conjecture, but instead must produce admissible evidence raising a triable
issue of fact." (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977,
981.)
B. Respondents Established No Triable Issue of Fact as to Causation
Appellants only challenge the superior court's finding that no triable issue of fact
exists as to the element of causation. Here, Respondents maintain that the evidence was
insufficient to establish a "factual causal link" between the defective GPS unit, which
provided incorrect directions, and the accident between the Acura and the tractor-trailer.
Respondents provided evidence that the GPS unit instructed Frank to turn left, but he
determined that he should turn right, believing it safe to do so. Further, Respondents
assert from that moment moving forward, all decisions regarding the operation of the
7
tractor-trailer and the Acura were made by the subject drivers and not influenced or
otherwise controlled by the GPS unit.
Respondents maintain the evidence shows before Frank moved to the right, he
noticed the Acura approaching from behind, swerving between lanes. The driver of the
Acura, who was under the influence of alcohol and drugs, hit the tractor-trailer on the
back left corner of the trailer while the tractor-trailer was in the middle lane.
Based on this evidence, we conclude that Respondents, as the moving parties,
carried their burden on the motion for summary judgment. Therefore, we move on to
examine Appellants' evidence to see if they established a triable issue of material fact. In
doing so, we look at three sources of evidence offered by Appellants: Dr. Drews's
declaration, Frank's deposition testimony, and the Rangel declaration. However, before
we evaluate this evidence, we must consider Respondents' objections to evidence.
C. Respondents' Objections to Evidence5
Although a review of a judgment following the granting of a summary judgment
requires an independent review, "[a] different analysis is required for our review of the
trial court's . . . rulings on evidentiary objections. Although it is often said that an
appellate court reviews a summary judgment motion 'de novo,' the weight of authority
holds that an appellate court reviews a court's final rulings on evidentiary objections by
applying an abuse of discretion standard." (Carnes v. Superior Court (2005) 126
5 Although Appellants objected to evidence as well, the superior court's rulings on
Appellants' objections are not challenged on appeal. As such, we omit any discussion of
these objections and only consider evidence submitted by Respondents that the court
admitted for purposes of the motion for summary judgment.
8
Cal.App.4th 688, 694; see Miranda v. Bomel Construction Co, Inc. (2010) 187
Cal.App.4th 1326, 1335.)6
Here, Respondents made a total of 38 objections to evidence. The court sustained
Respondents' objections to evidence numbers 31 and 33 through 38. It overruled all of
Respondents' other objections.
Appellants challenge the superior court's evidentiary ruling, focusing on objections
to Drews's declaration (objection nos. 33 through 36). First, Appellants claim that the
court provided no basis for the exclusion of portions of Drews's declaration, and as such,
the exclusion was arbitrary. Appellants, however, provide no authority for this
proposition. Our independent research has uncovered none. Moreover, we would not
create a rule requiring such on the record here. For each of the objections at issue,
Respondents presented the evidence objected to as well as the basis of the objection.
Appellants therefore are not left to guess on what grounds the court sustained the
objections. (Cf. Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 255
[concluding the trial court erred in issuing a blanket ruling sustaining all but one of the
defendants' 764 objections to evidence, noting "[s]ome of the sustained objections did not
even assert any basis for the objection!").]
6 Our high court, however, has not weighed in on the issue. (See Reid v. Google,
Inc. (2010) 50 Cal.4th 512, 535 ["we need not decide generally whether a trial court's
rulings on evidentiary objections based on papers alone in summary judgment
proceedings are reviewed for abuse of discretion or reviewed de novo"].) However,
under either standard, we find no error in the superior court's exclusion of portions of
Drews's declaration.
9
Second, Appellants complain that they were not afforded the opportunity to "be
heard on the evidentiary objections." Appellants' argument, however, is not supported by
the record. During the hearing on the motion for summary judgment, the court informed
counsel that it saw "a real causation problem." Perez's counsel and Ramirez's counsel
both emphasized the evidence they believed showed a triable issue of fact as to proximate
cause, focusing on Frank's reliance on the GPS unit. In response, Respondents' counsel
attacked the admissibility of Drews's declaration, making reference to Respondents'
objections to evidence while arguing the evidence did not allow Drews "in any kind of
evidentiary way . . . to connect his theory of distracted driving and the accident that
happened." In addition, Respondents' counsel also referenced the objections to Rangel's
declaration.
The court then allowed both Ramirez's counsel and Perez's counsel to respond, but
they did not address Respondents' objections. Thus, the court provided Appellants with a
chance to discuss Respondents' objections to evidence at the hearing on the summary
judgment motion, but counsel declined to do so.
Finally, Appellants maintain that the superior court improperly ignored Drews's
"ultimate opinion" on causation because Respondents did not object to it. This opinion
was "[g]iven the evidence summarized herein, it is my professional opinion that the
misdirection to turn left given by the [GPS unit] was a substantial contributing factor in
causing the subject accident and plaintiffs' resulting injuries." Appellants characterize
Drews's opinion as uncontroverted, and contend for purposes of opposing the motion for
summary judgment, the court had to rely upon it. We disagree, noting the court sustained
10
objections to the foundational portions of Drews's declaration. In the absence of those
segments, Drews's causation opinion lacks the necessary foundation. Further, and more
importantly, we determine that the court was correct, under Evidence Code section 801,
to implicitly disregard Drews's "ultimate opinion."
1. The Objections to Drews's Declaration
Drews was an expert witness for Perez who was "retained . . . to investigate and
advise on the causative factors involved in the . . . [subject] accident." Drews's
declaration was submitted in support of Perez's opposition to the motion to summary
judgment. In response to that declaration, Respondents' objected to a portion of
paragraph 8 of the declaration, all of paragraphs 9 and 10, and a portion of paragraph 11.
In paragraph 8, Drews declared: "Based upon the foregoing facts and materials
and upon my training and experience in the field of human factors and safety in the use of
data displays and equipment and in the field of driver distraction, I can render the
following professional opinions. Frank Perez relied on the navigation instructions given
by the [GPS unit], turned on his left-turn signal, and started to move to the left to make a
left-hand turn, whereupon he was distracted by (a) seeing the Acura vehicle approaching
from behind, and (b) at the same time, he became confused by the contradictory
information provided by the [GPS unit] and the street signs." (Italics added.)
Respondents objected to Drews's use of the phrase "at the same time" in the last sentence
on the grounds that it misstates the evidence and was contrary to an earlier portion of
Drews's declaration. The court sustained this objection.
11
In paragraph 9 of his declaration, Drews stated: "A professional truck driver who
has relied on the [GPS unit's] directions without incident for approximately 1,000 trips,
will have followed literally tens of thousands of turn-by-turn instructions from the system
without being misdirected, and can reasonably be expected to come to rely on the device
to reliably direct him to his destination. Given the evidence summarized herein and
based on my experience in the field of human factors psychology and safety in the use of
data displays and equipment and in the field of driver distraction, a driver under such
conditions can reasonably be expected to develop a complacency to automation, i.e., the
driver relies blindly on the system. This reliance makes a driver ill-prepared to respond
to incorrect instructions. Although a system which provides auditory cues as well as
visual cues will somewhat relieve a driver from excessive 'heads down' time engrossed in
the device, nevertheless, due to the complacency to automation associated with repeated
successful use of the system, a driver given misdirections or contradictory instructions
will not be able to maintain sufficient situation awareness with regard to surrounding
traffic to correctly predict other vehicles [sic] actions and to correctly position his vehicle
to avoid a collision." Respondents objected to this entire paragraph on the grounds of
lack of foundation and speculation to the extent that the paragraph was attempting to
explain Frank's actions in driving the tractor-trailer or how he would act in a particular
circumstance. The court sustained this objection.
In paragraph 10 of his declaration, Drews declared: "A driver who encounters the
conditions shown by the evidence summarized herein is required to multi-task and
respond quickly to solve the navigation problem and make a decision on how to proceed.
12
Given the high level of cognitive processing demanded by this situation, it is to be
expected that a driver in these conditions will decide to change directions from the left-
turn direction given by the navigational system, turn to the right in response to the street
sign directing the driver to the right, and then take avoidance maneuvers in response to
the threats he has created from traffic approaching from behind." Respondents objected
to this entire paragraph on the grounds of lack of foundation and speculation to the extent
that the paragraph was attempting to explain Frank's actions in driving the tractor-trailer
or how he would act in a particular circumstance. The court sustained this objection.
In paragraph 11, Drews stated: "Given the evidence summarized herein, it is my
professional opinion that the misdirection to turn left given by the [GPS unit] was a
substantial contributing factor in causing the subject accident and the plaintiffs' resulting
injuries. Just prior to the subject accident, Frank Perez prepared to make a left turn
consistent with the auditory and visual navigation cues provided the [GPS unit], which he
discovered were incorrect upon seeing the conflicting street signs. The evidence shows
that as a direct result of the misdirection supplied by the [GPS unit], [Frank] was
confused by the conflicting information from the street signs, and acted in a reasonably
foreseeable manner in seeking to correct the mistaken directions by moving to the right,
whereupon he was confronted with yet another foreseeable hazard, a speeding driver
coming upon [Frank's] tractor-trailer rig from behind, whereupon he moved back to the
left, resulting in the collision." (Italics added.) Respondents objected to the phrase
"acted in a reasonably foreseeable manner" on the grounds of lack of foundation for a
legal conclusion. The court sustained the objection.
13
As a threshold matter, we note that Appellants only argue that the superior court
abused its discretion in excluding portions of Drews's declaration when it failed to
provide: (1) any reasoning in support of its sustaining the objections or (2) Appellants
the opportunity to address the objections. As we discuss above, we find no merit in either
of these conditions. Moreover, these contentions do not challenge the substance of the
objections, but instead, deal with the procedure the superior court used in ruling on the
objections. Appellants thus have not articulated any other reason why the superior court's
ruling on the objections was incorrect. Thus, they have waived any issue concerning the
correctness of these specific evidentiary rulings. (Villa v. McFerren (1995) 35
Cal.App.4th 744, 739, fn. 4.) We therefore consider all such evidence to have been
properly excluded. (See Mansell v. Board of Administration (1994) 30 Cal.App.4th 539,
545-546 [not the proper function of Court of Appeal to search the record on behalf of
appellants or to serve as "backup appellate counsel"].)
2. Drews's Opinion on Causation
Appellants maintain even if we conclude that the superior court did not abuse its
discretion in sustaining the objections to portions of Drews's declaration, enough of
Drews's declaration was admitted into evidence to create a triable issue of fact.
Appellants insist that the majority of Drews's opinion about causation from paragraph 11
was admitted into evidence and was uncontroverted. Therefore, Appellants assert a
triable issue of fact exists. We disagree.
At the outset, we note Appellants do not address the impact of the superior court's
exclusion of paragraphs 9 and 10 of Drews's declaration on Drews's opinion contained in
14
paragraph 11. The exclusion of those two paragraphs eviscerated most of the substance
of Drews's opinion in paragraph 11, which relied on the conclusions reached in the two
excluded paragraphs. For this reason alone, we find no error. However, even if we
analyze the substance of Drews's causation opinion without reference to paragraphs 9 and
10, we would conclude that the court did not abuse its discretion in disregarding it.7
Evidence Code section 801 provides: "If a witness is testifying as an expert, his
testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to
a subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact; and [¶] (b) Based on matter . . . that is of a type that
reasonably may be relied upon by an expert in forming an opinion upon the subject to
which his testimony relates, unless an expert is precluded by law from using such matter
as a basis for his opinion." "Subdivision (b) clearly permits a court to determine whether
the matter is of a type on which an expert may reasonably rely." (Sargon Enterprises,
Inc. v. University of Southern California (2012) 55 Cal.4th 747, 770 (Sargon).) "[T]he
matter relied on must provide a reasonable basis for the particular opinion offered, and
that an expert opinion based on speculation or conjecture is inadmissible." (Lockheed
Litigation Cases (2004) 115 Cal.App.4th 558, 564; see Sargon, supra, at p. 770.)
Evidence Code section 801 is not the only statute that governs a superior court's
consideration of expert witness testimony. It must also consider Evidence Code section
802. (Sargon, supra, 55 Cal.4th at p. 771.) Evidence Code section 802 provides: "A
7 We would reach the same result if we independently reviewed Drews's causation
opinion.
15
witness testifying in the form of an opinion may state . . . the reasons for his opinion and
the matter . . . upon which it is based, unless he is precluded by law from using such
reasons or matter as a basis for his opinion. The court in its discretion may require that a
witness before testifying in the form of an opinion be first examined concerning the
matter upon which his opinion is based." "This section indicates the court may inquire
into the expert's reasons for an opinion. It expressly permits the court to examine experts
concerning the matter on which they base their opinion before admitting their testimony.
The reasons for the experts' opinions are part of the matter on which they are based just
as is the type of matter. Evidence Code section 801 governs judicial review of the type of
matter; Evidence Code section 802 governs judicial review of the reasons for the
opinion." (Sargon, supra, at p. 771, italics omitted.)
"Thus, under Evidence Code sections 801, subdivision (b), and 802, the trial court
acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a
type on which an expert may not reasonably rely, (2) based on reasons unsupported by
the material on which the expert relies, or (3) speculative. Other provisions of law,
including decisional law, may also provide reasons for excluding expert opinion
testimony." (Sargon, supra, 55 Cal.4th at pp. 771-772.)
"The trial court's preliminary determination whether the expert opinion is founded
on sound logic is not a decision on its persuasiveness. The court must not weigh an
opinion's probative value or substitute its own opinion for the expert's opinion. Rather,
the court must simply determine whether the matter relied on can provide a reasonable
16
basis for the opinion or whether that opinion is based on a leap of logic or conjecture."
(Sargon, supra, 55 Cal.4th at p. 772.)
Against this backdrop, we conclude the trial court did not err in implicitly
rejecting Drews's opinion on causation. Drews opines "as a direct result of the
misdirection supplied by the [GPS unit], [Frank] was confused by the conflicting
information from the street sign, and acted in a reasonably foreseeable manner in seeking
to correct the mistaken directions by moving to the right." Drews reached this opinion by
asserting, as a general principle, that a driver who frequently has used a navigational
device can come to rely on the navigational device and can "reasonably be expected to
develop a complacency to automation."
Drews maintained that the complacency results in a driver who, when confronted
with incorrect or contradictory instructions, is unable to maintain situational awareness
relative to predicting what other vehicles might do or positioning his own vehicle to
avoid a collision. Drews further concludes without stating a basis that "it is to be
expected that a driver in these conditions will decide to change directions from the left-
turn direction given by the navigational system, turn to the right in response to the street
sign directing the driver to the right, and then take avoidance maneuvers in response to
the threats he has created from traffic approaching from behind."
Drews's opinion is based on layers of speculation. He assumes Frank developed a
"complacency to automation." There is no evidence in the record to support his
conclusion. Drews presumes that Frank was incapable of maintaining situational
awareness. Again, no evidence supports this presumption. To the contrary, it appears
17
that Frank maintained situational awareness by using his indicators, noticing the speeding
and swerving Acura approaching from behind, and mostly staying in the number 2 lane.
In addition, Drews's opinion appears to rest on the belief that Frank was confused while
he was changing lanes. Appellants, however, do not cite to any evidence that established
that Frank ever caused his tractor-trailer to change lanes out of the number 2 lane and that
he was confused when he did so. Our independent review of the record leads us to
determine that the evidence was ambiguous at best. Frank denied that he ever got into
the number 1 lane. Frank also testified that he did not recall if he ever moved into the
number 3 lane. In addition, Frank testified that he decided not to move lanes, but to stay
in the number 2 lane to avoid being hit by the Acura, which he saw swerving back and
forth from the number 1 to the number 3 lane.
Drews's opinion is speculative and conclusory. He had no evidence that Frank had
grown complacent by his overuse of the GPS device, or that he would blindly rely on the
GPS device, or that somehow Frank's complacency or blind reliance led him to be unable
to perceive the situation (i.e., he became confused) and react appropriately. Drews's
opinion does nothing more than opine that " 'something could be true if certain assumed
facts are true,' " and is therefore devoid of foundation. (See Dee v. PCS Property
Management, Inc. (2009) 174 Cal.App.4th 390, 404.)
In short, in providing his opinion on causation, Drews speculated both as to what a
driver like Frank would have done, and to how Frank himself would have reacted to the
situation. The opinion offered by Drews is not reasonably based on Frank's deposition
18
testimony or any other evidence in the record.8 As such, the superior court was correct to
disregard it. (See Wise v. DLA Piper LLP (2013) 220 Cal.App.4th 1180, 1188
["speculation is not evidence, less still substantial evidence."].)
D. Proximate Cause
Even if Drews's opinion is disregarded, Appellants claim the court erred in
granting summary judgment because a triable issue of fact exists as to proximate cause.
Appellants point us to two other sources of evidence on proximate cause: Frank's
deposition testimony and Rangel's declaration. We independently reviewed this evidence
and conclude that no triable issue of fact exists as to proximate cause.
Proximate cause involves two elements: (1) cause in fact, and (2) the extent to
which public policy considerations limit a defendant's liability for its acts. (PPG
Industries, Inc. v. Transamerica Ins. Co. (1999) 20 Cal.4th 310, 315-316.) Cause in fact
asks whether the defendant's conduct was the " 'necessary antecedent' " to the injury,
without which no injury would have occurred. (Maupin v. Widling (1987) 192
Cal.App.3d 568, 573.) In other words, the actor's conduct must be a " 'substantial
8 Drews stated that he read and relied on the Rangel declaration. In that declaration,
Rangel claimed to have seen Frank's tractor-trailer swerving and moving lane to lane:
"The tractor-trailer combination swerved from right to left, then back to the right, then
back to the left again." Even accepting Rangel's declaration as true, there still exists a
substantial gap in Drews's opinion for explaining Frank's supposed erratic driving. In
other words, even relying on Rangel's declaration, Drews's opinion still speculates as to
the cause of Frank changing lanes, and thus, the opinion was properly excluded. (See
Sargon, supra, 55 Cal.4th at p. 776.) Moreover, Drews's opinion describes the movement
of the tractor-trailer inconsistently with the description of the tractor-trailer's movement
in the Rangel declaration. Thus, it does not appear that Drews relied on Rangel's account
of Frank's driving of the tractor-trailer.
19
factor' " in bringing about the harm. (See Nola M. v. University of Southern California
(1993) 16 Cal.App.4th 421, 427.) A substantial factor, for purposes of causation, is
something that is more than " 'a slight, trivial, negligible, or theoretical factor in
producing a particular result.' " (Espinosa v. Little Co. of Mary Hospital (1995) 31
Cal.App.4th 1304, 1314.) The second element of proximate cause is " ' "concerned, not
with the fact of causation, but with the various considerations of policy that limit an
actor's responsibility for the consequences of his conduct." ' " (Ferguson v. Lieff,
Cabraser, Heimann & Bernstein (2003) 30 Cal.4th 1037, 1045.)
"[T]he question of proximate cause . . . becomes one of law where the facts are
uncontroverted and only one deduction or inference may reasonably be drawn
therefrom." (Whinery v. Southern Pac. Co. (1970) 6 Cal.App.3d 126, 128.) " 'A mere
possibility of . . . causation is not enough; and when the matter remains one of pure
speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the
duty of the court to direct a verdict for the defendant.' [Citation.]" (Saelzler v. Advanced
Group 400 (2001) 25 Cal.4th 763, 775-776; italics omitted.)
According to Appellants, Frank's deposition testimony established, based on
erroneous directions provided by the GPS unit, Frank "moved over" to turn left, realized
he needed to turn right when he saw the street signs, became confused, decided to turn
right, began to merge right into the number 3 lane when he noticed the Acura "come from
behind his truck at a high rate of speed," and Frank tried to avoid a collision with the
Acura by turning the steering wheel to the left. Put differently, Appellants maintain that
Frank testified to a series of lane changes initiated by the wrong directions provided by
20
the GPS unit, which caused the Acura to hit the back of the tractor-trailer. However,
Frank's testimony does not establish that the GPS unit's wrong directions were a
substantial factor in causing the accident. There is no support for Appellants' claim that
Frank was confused when he decided to turn right, put on his right indicator, and then
prepared to merge into the right lane when he saw the Acura. Frank does admit that he
was "somewhat confused" when he saw the street signs conflicted with the directions
provided by the GPS unit. Nevertheless, after realizing that he needed to turn right, there
is no evidence that Frank remained confused, acted erratically, or otherwise drove
dangerously. In fact, the evidence suggests that Frank drove cautiously and carefully
when he determined he needed to turn right. He put on his right indicator, checked his
mirrors, and was traveling at about 25 to 30 miles per hour. Moreover, he admits that he
was not relying on the GPS unit at that time.
In addition, Appellants' position relies on their claim that Frank was moving in and
out of lanes. Yet, Frank's testimony on this point is much more ambiguous than
Appellants admit. For example, during Frank's deposition, the following exchange took
place:
"Q: Mr. Greenberg confirmed for me that you related the story,
which is very similar to what appears to have been related by you to
the police officer investigating the case, that immediately prior to the
collision you were relying on the [GPS unit] to direct you where to
make a left-hand turn; is that correct?
"A: Correct.
"Q: And that in reliance on that device you were following its
instructions and had moved over believing that you could make a
left-hand turn; is that correct?
21
"A: Correct.
"Q: And then at some point you realized that the device was giving
you the wrong information; it was not giving you an accurate
position and giving you accurate information in terms of what you
could do and you then elected to make a right-hand turn; correct?
A: Correct.
Although Frank agrees that he "moved over" there is no context provided in the portion
of the deposition in the record establishing that Frank meant that he changed lanes into
the number 1 lane. In the portion of that deposition testimony provided to the court, there
is no indication that it was established what lane Frank was in, where and when he moved
the tractor-trailer from one lane to another (if at all), or if Frank moved back from the
number 1 lane into the number 2 lane if Frank actually moved into the number 1 lane at
some point. As such, this deposition testimony requires the court to speculate to find that
it establishes Frank was moving lane to lane because of the improper directions provided
by the GPS unit. Thus, without more, Frank's agreement that he "moved over" does not
establish or even call into question whether he moved into the number 1 lane or moved
back to the number 2 lane and ultimately caused the accident based on the GPS unit's
wrong directions. The deposition does not contain the necessary foundation to establish
what was meant by the term "moved over" or what occurred following this apparent
move. Also, during his deposition, Frank denied that he ever changed lanes into the
number 1 lane. Indeed, the question of whether Frank moved the tractor-trailer into the
number 1 lane was asked multiple times during the deposition and Frank answered
consistently each time that he did not move the tractor-trailer into the number 1 lane.
22
The same is true regarding Frank moving into the number 3 lane. At best, the
testimony suggests that Frank was beginning to merge into the number 3 lane, when he
saw the Acura swerving from lane to lane, traveling at great speed, coming up behind the
tractor-trailer.9 At that point, Frank elected to stay in the number 2 lane and the Acura
hit the back left portion of the trailer.
The evidence in the record shows that Frank believed he was supposed to turn left
because of the directions provided by the GPS unit. He was traveling in the number 2
lane. He turned on his left indicator and prepared to move to the left into the number l
lane. However, he surmised from the street signs that he really needed to turn right. So
he did not move into the number 1 lane, but instead, put on his right indicator and
prepared to merge into the number 3 lane on the right. At that time, he saw the Acura
come from behind at a great rate of speed and swerving from lane to lane. To avoid a
potential collision, Frank turned the steering wheel left to stay in the number 2 lane and
the Acura collided with the back left corner of the trailer. Although the GPS unit's
directions caused Frank to believe he needed to turn left, and, in reliance on the directions
provided by the GPS unit, put on the left indicator, it would be pure conjecture to
conclude the wrong directions were a causal factor in the accident that followed after
Frank decided to turn right and put on his right indicator. This is especially true here
where the evidence shows the Acura was speeding from behind the tractor-trailer,
9 Frank provided conflicting testimony about when he first sees the Acura. He
originally testified that he saw the Acura as he was preparing to turn left. Later in his
deposition, after having his recollection refreshed, Frank agreed that he did not see the
Acura until he was preparing to turn right.
23
swerving from lane to lane, with an intoxicated driver behind the wheel. Moreover, there
is nothing in Frank's testimony that would allow the trier of fact to determine that he was
confused, unaware of his situation, or otherwise hindered in his driving ability by the
wrong directions provided by the GPS unit. To the contrary, the evidence shows that he
acted reasonably, safely, and carefully, by putting on his right indicator and checking his
mirrors before merging. When he saw the Acura speeding up from behind, changing
lanes, he decided to stay in his current lane. The Acura then hit the left back corner of
the trailer. Based on this evidence, the wrong directions provided by the GPS unit are
nothing more than a slight, trivial, or negligible factor in producing the accident. (See
Espinosa v. Little Co. of Mary Hospital, supra, 31 Cal.App.4th at p. 1314.)
In addition, Rangel's declaration does not support Appellants' position here.
Rangel stated that he observed the tractor-trailer swerving from lane to lane and move in
front of the Acura, causing the Acura to hit it. Nevertheless, Rangel's declaration does
not establish why the tractor-trailer was swerving. In other words, it does not establish
that the wrong directions provided by the GPS unit caused Frank to swerve both left and
right and ultimately in front of the Acura. As such, Rangel's declaration, even when
considered with Frank's deposition testimony, does not create a triable issue of fact as to
whether the GPS unit's wrong directions were a substantial factor of the accident.
Because we conclude this is the rare case where only one inference may be drawn
from the undisputed facts (see Whinery v. Southern Pac. Co., supra, 6 Cal.App.3d at
p. 128), we do not evaluate the public policy element of proximate cause. That said, we
struggle to contemplate any public policy that would support finding liability as to
24
Respondents on the facts in the record before us. The wrong directions provided by the
GPS unit were simply too remote to be anything more than a trivial factor in the
unfortunate accident.
We find no error.
DISPOSITION
The judgment is affirmed. Respondents are awarded their costs on this appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
McINTYRE, J.
25
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9 F.3d 1558
U.S.v.Cabrera**
NO. 91-6044
United States Court of Appeals,Eleventh Circuit.
Nov 16, 1993
1
Appeal From: S.D.Fla.
2
AFFIRMED.
**
Local Rule 36 case
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FILED
NOT FOR PUBLICATION MAR 05 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALBERT INSUA, No. 07-35705
Petitioner - Appellant, D.C. No. CV-05-00131-DWM
v.
MEMORANDUM *
J. McDONALD,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Montana State prisoner Albert Insua appeals from the district court’s
judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
EH/Research
Insua contends that the trial court violated his Sixth Amendment right to
counsel by failing to adequately explain the dangers of self-representation. The
record demonstrates that Insua understood the dangers of self-representation, and
therefore the Montana Supreme Court’s decision rejecting this claim was neither
contrary to, nor an unreasonable application of, clearly established federal law, nor
was it an unreasonable determination of the facts in light of the evidence. See 28
U.S.C. § 2254(d)(1), (2); United States v. Gerritsen, 571 F.3d 1001, 1012-13 (9th
Cir. 2009); see also Faretta v. California, 422 U.S. 806, 835-36 (1975).
Insua’s request for judicial notice is granted. See Fed. R. Evid. 201.
AFFIRMED.
EH/Research 2 07-35705
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J-S62006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
WILLIAM THOMAS CLARK
Appellant No. 254 MDA 2017
Appeal from the PCRA Order entered January 11, 2017
In the Court of Common Pleas of Dauphin County
Criminal Division at No: CP-22-CR-0002146-2014
BEFORE: STABILE, MOULTON, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 21, 2017
Appellant, William Thomas Clark, appeals from the January 11, 2017
order entered in the Court of Common Pleas of Dauphin County, denying his
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Following review, we affirm.
Our review of the record reveals that Appellant was arrested on
December 7, 2013 and was charged, inter alia, with possession of a firearm
prohibited, possession of a small amount of marijuana, and driving with a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S62006-17
broken fog light.1 Following a June 11, 2014 trial, the jury found Appellant
guilty of the firearms violation and the trial court found him guilty of
possession of marijuana and the summary offense for driving with a broken
fog light. The trial court sentenced Appellant to a term of four to eight years
in prison for the firearms violation and imposed fines and costs for the
remaining offenses.
On direct appeal to this Court, Appellant claimed that the verdict was
against the weight of the evidence and that the trial court imposed an
excessive sentence, failing to take into consideration mitigating factors.
Commonwealth v. Clark, 2172 MDA 2014, unpublished memorandum (Pa.
Super. filed August 19, 2015). This Court affirmed, concluding the verdict
was not against the weight of the evidence and that Appellant failed to raise
a substantial question regarding his sentence. Id.2
Appellant filed a timely pro se PCRA petition on June 3, 2016. Counsel
was appointed and filed an amended petition on July 5, 2016. In his amended
petition, Appellant argued ineffective assistance of trial counsel for failing to
____________________________________________
1 18 Pa.C.S.A. § 6105(a)(1), 35 P.S. § 708-113(a)(31)(i), and 75 Pa.C.S.A.
§ 4107(b)(2), respectively. Appellant was initially charged with additional
related offenses, which the Commonwealth withdrew prior to trial.
2 The Court determined that Appellant’s challenge to his sentence, even if it
raised a substantial question, would be rejected as meritless because the trial
court considered the mitigating factors raised by Appellant and appropriately
imposed a sentence in the mitigated range. Commonwealth v. Clark, 2172
MDA 2014, unpublished memorandum at 11 (Pa. Super. filed August 19,
2015).
-2-
J-S62006-17
conduct pre-trial discovery, failing to receive discovery in a timely manner,
and failing to review the discovery with Appellant to discuss a viable defense.
Appellant also claimed ineffective assistance of appellate counsel for failing to
file a petition for allowance of appeal to our Supreme Court and failing to
allege ineffective assistance of trial counsel on direct appeal. Appellant also
asserted that his sentence was excessive and illegal.
On December 5, 2016, the PCRA court issued an order in accordance
with Pa.R.Crim.P. 907, informing Appellant of the court’s intention to dismiss
the petition and advising him of the opportunity to file a response within
twenty days. Appellant did not file a response. By order entered January 11,
2017, the PCRA court dismissed the petition.
Appellant filed a timely appeal from the January 11, 2017 order. The
PCRA court directed Appellant to file a concise statement of errors complained
of on appeal in accordance with Pa.R.A.P. 1925(b) and Appellant complied.
Appellant asserted that trial counsel was ineffective for failing to conduct any
pre-trial investigation and for “allowing” Appellant to be sentenced within the
wrong guideline range. Appellant’s Rule 1925(b) Statement, 3/8/17, at 4
(unnumbered). Appellant also claimed that he was sentenced under the
wrong standards based on an incorrect offense gravity score (“OGS”) score,
but acknowledged the sentence imposed was not an illegal sentence. Id. at
5 (unnumbered). In its Rule 1925(a) opinion filed on March 22, 2017, the
PCRA court explained that its reasons for dismissing the petition were set forth
-3-
J-S62006-17
in the December 5, 2016 opinion that accompanied its Rule 907 notice of
dismissal.
On appeal, Appellant asks us to consider two issues:
1. Whether trial counsel was ineffective?
2. Whether the Appellant was sentenced under the wrong
statute/offense gravity score (OGS)?
Appellant’s Brief at 7.
In his first issue, Appellant asserts that his trial counsel was ineffective
in three respects: that he failed to conduct any pre-trial investigation, that
he failed to file either a suppression motion or a motion for nominal bail, and
that he “allowed” Appellant to be sentenced within the wrong guideline range.
As this Court has recognized:
“On appeal from the denial of PCRA relief, our standard and scope
of review is limited to determining whether the PCRA court’s
findings are supported by the record and without legal error.”
Commonwealth v. Edmiston, 65 A.3d 339, 345 (Pa. 2013)
(citation omitted). “[Our] scope of review is limited to the findings
of the PCRA court and the evidence of record, viewed in the light
most favorable to the prevailing party at the PCRA court level.”
Commonwealth v. Koehler, 614 Pa. 159, 36 A.3d 121, 131
(2012) (citation omitted). “The PCRA court’s credibility
determinations, when supported by the record, are binding on this
Court.” Commonwealth v. Spotz, 610 Pa. 17, 18 A.3d 244, 259
(2011) (citation omitted). “However, this Court applies a de novo
standard of review to the PCRA court’s legal conclusions.” Id.
Commonwealth v. Medina, 92 A.3d 1210, 1214-15 (Pa. Super. 2014) (en
banc).
As the PCRA court recognized, counsel is presumed to be effective and
Appellant bears the burden of establishing he was not. Opinion in Support of
-4-
J-S62006-17
Rule 907 Notice, 12/5/16, at 2 (citing Commonwealth v. Hutchinson, 556
A.2d 370, 371 (Pa. 1989)). Appellant must demonstrate that his claim is of
arguable merit, that counsel had no reasonable strategic basis for his action
or inaction, and that, but for the errors or omissions of counsel, there is a
reasonable probability the outcome would have been different. Id. at 3 (citing
Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987)). Further,
Appellant must establish that his claims have not been litigated or waived.
Id. (citing 42 Pa.C.S.A. § 9543(a)(3)). Generally, an issue is deemed litigated
if considered and decided on direct appeal, and is deemed waived if it could
have been raised at trial or on direct appeal but was not. See 42 Pa.C.S.A.
§ 9544(a)(2) and (b).
The PCRA court rejected Appellant requested relief for the claimed lack
of pre-trial investigation, noting that the cases Appellants relied on were
distinguishable from Appellant’s case. Opinion in Support of Rule 907 Notice,
12/5/16, at 4. The PCRA court noted that one cited case involved murder
charges whereas Appellant’s case involved the comparatively less serious
charges of a firearms violation, possession of a small amount of marijuana,
and a summary offense for a broken fog lamp. The other cited case involved
counsel’s failure to interview witnesses disclosed in discovery. No similar
allegations were raised here. Rather, Appellant simply complained that
counsel failed to meet with him to review discovery. Id. Importantly,
-5-
J-S62006-17
Appellant failed to demonstrate a reasonable probability the outcome would
have been different if counsel had met with him prior to trial.
With respect to counsel’s alleged failure to file a suppression motion or
a motion for nominal bail, we first note that Appellant did not assert any claims
concerning the failure to file motions in either his pro se PCRA petition or his
counseled amended petition. Therefore, he did not preserve the issue. Even
if he had, Appellant fails to acknowledge that he did not want to delay his trial
by filing a suppression motion. See Notes of Testimony, Trial, 6/11/14, at 5-
16. Regarding the Rule 600 motion, the record does not reflect that Appellant
asked counsel to file such a motion, despite Appellant’s suggestion to the
contrary in his Rule 1925(b) statement. Rule 1925(b) Statement, 3/8/17, at
4 (unnumbered). Further, while it was acknowledged during pre-trial
proceedings on June 10, 2014 that the 180-day time period had elapsed a few
days earlier, Appellant has not demonstrated how the outcome would have
been different if a Rule 600 motion had been presented at that time.
Moreover, we note Appellant received credit for time served for those few
days, meaning he actually will complete his sentence sooner than if he had
been released on nominal bail on the day before his trial or even on the 180th
day, two or three days prior to trial.
Appellant also claims that trial counsel was ineffective for allowing
Appellant to be sentenced within the wrong guideline range. Specifically, he
contends that the trial court would have imposed a lesser sentence if counsel
-6-
J-S62006-17
had argued that the OGS of 10 was incorrect and should have been 9.
However, Appellant has failed to establish that the outcome would have been
different if counsel had contested the Commonwealth’s assertion of an OGS of
10. As the PCRA judge, who was also the sentencing judge, explained:
[Appellant] was convicted of possession of a firearm prohibited,
which is graded as a felony 2 and carries a maximum sentence of
ten years’ incarceration, 18 Pa.C.S. § 6105(a.1), regardless of
whether the OGS is a nine or a ten. [Appellant] received a
sentence of four to eight years, well within the statutory
maximum.
Opinion in Support of Rule 907 Notice, 12/5/16, at 6.
We find the PCRA court’s findings on Appellant’s ineffectiveness claims
are supported by the record and are without legal error. Appellant is not
entitled to relief on his first issue.
In his second issue, Appellant again raises the issue of his OGS. As the
PCRA court observed, “Specifically, he contends, because the gun he was
found in possession of was not loaded, his OGS should have been a nine rather
than a ten. Thus, he claims, . . . he could have received a lesser sentence.”
Opinion in Support of Rule 907 Notice, 12/5/16, at 5.
Appellant acknowledges that his sentencing claim is not a claim of
illegality of sentence. Rather, it is a challenge to the discretionary aspects of
sentence. Appellant’s Brief at 12 (citing Commonwealth v. Archer, 722
A.2d 203, 211 (Pa Super. 1998)). Further, Appellant recognizes the four
prerequisites for a challenge to the discretionary aspects of sentencing,
including the requirement that the issue must be preserved at sentencing or
-7-
J-S62006-17
in a motion to reconsider or modify the sentence. Id. (citing Commonwealth
v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011)).
While Appellant did preserve an excessive sentence claim in his post-
sentence motion, that claim involved the trial court’s alleged failure to
consider mitigating circumstances in imposing Appellant’s sentence. This
Court rejected that claim on direct appeal, finding that Appellant did not raise
a substantial question. See n. 2, supra. Appellant failed to preserve the issue
he now asks us to consider in this appeal. Therefore, it is waived. See 42
Pa.C.S.A. § 9544(b).)
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2017
-8-
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455 S.E.2d 707 (1995)
FACES BOUTIQUE, LTD., Appellant,
v.
Deborah Ann GIBBS, Respondent.
No. 2310.
Court of Appeals of South Carolina.
Submitted February 7, 1995.
Decided February 27, 1995.
*708 Otto W. Ferrene, Jr., of Ferrene & Associates, Hilton Head Island, for appellant.
Mark H. Lund, III, of Novit & Scarminach, Hilton Head Island, for respondent.
HOWARD, Acting Judge:
This appeal concerns the enforceability of a covenant not to compete ancillary to an employment contract between Faces Boutique, Ltd. (Faces) and Deborah Ann Gibbs (Gibbs). Faces instituted this action seeking to enjoin Gibbs from becoming employed at a competing business. The trial court found the covenant totally defective and unenforceable. Faces appeals. We affirm.
Faces is a facial spa, located on Hilton Head Island, which provides skin care and face lifts. Faces and Gibbs entered into a written employment contract on May 19, 1992, under which Gibbs agreed to work as an esthetician, performing "facials."[1] The contract contained the following covenant:
For a period of three (3) years after the termination of this agreement, the Employee will not, WITHIN THE TOWN OF HILTON HEAD ISLAND, SC, directly or indirectly, own, manage, operate, control, be employed by, participate in, or be connected in any manner with the ownership, management, operation, advertisement or control of any business in direct competition with the type of business conducted by [Faces]. It is understood and agreed that this prohibition applies to FACIALS, SELLING OF COSMETICS, AND ALL COSMETIC APPLICATION OR FCIAL SPA RELATED SERVICES. (emphasis in original).
Gibbs became pregnant while employed by Faces and left on maternity leave on March 19, 1993. Gibbs was to return to Faces on or about May 27, 1993. Instead of returning to work at Faces, however, Gibbs went to work for "Tara's," a Hilton Head Island beauty salon, as a manicurist.[2] Because Tara's derives some of its revenue from facials, Faces filed suit against Gibbs to enforce the noncompetition agreement.
Covenants not to compete contained in employment contracts are generally disfavored and will be strictly construed against the employer. Rental Uniform Serv. of Florence, Inc. v. Dudley, 278 S.C. 674, 301 S.E.2d 142 (1983); Stringer v. Herron, 309 S.C. 529, 424 S.E.2d 547 (Ct.App.1992). A restriction against competition must be narrowly drawn to protect the legitimate interests of the employer. Almers v. South Carolina Nat'l Bank, 265 S.C. 48, 217 S.E.2d 135 (1975); Stringer, 424 S.E.2d 547. A covenant not to compete will be upheld only if it is:
(1) necessary for the protection of the legitimate interest of the employer;
(2) reasonably limited in its operation with respect to time and place;
(3) not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood;
(4) reasonable from the standpoint of sound public policy; and
(5) supported by valuable consideration. *709 Stringer, 424 S.E.2d 547, 548 (citing Dudley, 278 S.C. 674, 675-76, 301 S.E.2d 142, 143); Collins Music Co. v. Parent, 288 S.C. 91, 340 S.E.2d 794 (Ct.App.1986). Moreover, each case concerned with the enforceability of covenants not to compete contained in employment contracts must be decided on its own facts. Stringer, 424 S.E.2d 547. If a covenant not to compete is defective in one of the above referenced areas, the covenant is totally defective and cannot be saved. See Eastern Business Forms, Inc. v. Kistler, 258 S.C. 429, 434, 189 S.E.2d 22, 24 (1972) (The court "cannot make a new agreement for the parties into which they did not voluntarily enter. We must uphold the covenant as written or not at all, it must stand or fall integrally."); Somerset v. Reyner, 233 S.C. 324, 330, 104 S.E.2d 344, 346 (1958) ("[I]f . . . the territorial scope of the restraint is unreasonable . . . no inquiry need be made as to the presence or absence of the other necessary requirements.").
We agree with the trial court the covenant not to compete violates the requirements that a covenant be "necessary for the protection of the legitimate interest of the employer" and "not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood." Specifically, the trial court found "[t]he covenant seeks to prevent [Gibbs] from being associated in any capacity with any business which gives facials, sells cosmetics, etc. Such a prohibition goes far beyond the protection of any legitimate business interest [Faces] may be able to articulate. This broad prohibition also prevents [Gibbs] from earning a livelihood through legitimate means." The trial court noted that under the terms of the covenant, Gibbs would be unable to work for any of the various department stores which sell cosmetics, even if she worked in an area of the store not involved in the sale of cosmetics. The trial court further noted "[because the restrictive covenant at issue here is so broadly drafted, [Faces] can, and does contend that [Gibbs] is contractually prohibited from holding her present position, even though [Gibbs] does not compete with [Faces] in any way."
On appeal, Faces argues the trial court erred in finding the covenant not to compete to be overly broad because the clause "seeks to protect the goodwill and customer list of [Faces] . . . only in reference to a business in direct competition with the `esthetician' related services of [Faces]." Therefore, Faces asserts the paragraphs themselves are not overly broad or ambiguous. We disagree.
Patricia Owens, the owner of Faces, testified at trial that Gibbs would be in violation of the covenant not to compete if Gibbs became employed at any place of business engaged in the selling of cosmetics or giving facials, even if Gibbs herself did not participate in these activities. Owens also admitted the covenant would have this effect even though, in such a situation, her business would not be threatened. Thus, by Owens's own admission, the terms of the covenant restrict Gibbs's employment opportunities beyond what is necessary for the protection of Owens's legitimate business interests.
Owens further testified she would not attempt to enforce the clause in a manner which would exceed the "spirit" of the agreement. Although Faces does not go so far as to expressly advance this argument on appeal, we note it is not enough for a party to rely on the "spirit" of a non-compete clause. Here, the contract, when read in its entirety, not only restricts Gibbs from becoming employed at an establishment which offers esthetician services, the contract also prevents Gibbs from becoming employed at any establishment which sells cosmetics. The apparent willingness of Faces to accept an interpretation of the covenant which would render the covenant proper in scope does not aid the invalidity of the covenant as written. See Kistler, 258 S.C. 429, 189 S.E.2d 22.
For the foregoing reasons, the decision of the trial court is
AFFIRMED.
SHAW and GOOLSBY, JJ., concur.
NOTES
[1] An "esthetician" is defined as "any person who is licensed to practice skin care, make up or similar work. Skin care shall be limited to moisturizing, cleansing, or facial or neck massage for the sole purpose of beautifying the skin." S.C.Code Ann. § 40-13-10(4) (1986).
[2] A manicurist is "any person who is licensed to practice manicuring or pedicuring the nails or similar work." S.C.Code Ann. § 40-13-10(3).
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32 So.3d 628 (2010)
BATALONE
v.
STATE.
No. 2D09-3401.
District Court of Appeal of Florida, Second District.
March 10, 2010.
Decision Without Published Opinion Affirmed.
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/oti-is iotiis foists
NO.PD-1085-15
IN THE COURT OF CRIMINAL APPEALS OF
THE STATE OF TEXAS
ORIGINAL
N0.05-14-00791-CR RBGBVED IN
mm Q? CR!?^NAl APPEALS
NO.05-14-00792-CR
NO.05-14-O0793-CR OCT 29 2015
IN THE COURT OF APPEALS FOR THE
FIFTH SUPREME JUDICIAL DISTRICT OF TEXAS . ?fc$. -^f/CStH, G"3?k
DALLAS,TEXAS
TADARRIAN ANTWDINE JOHNSON,Appellant
v.
THE STATE OF TEXAS,Appellee
APPELLANT'S PETITION FOR DISCRETIONARY
REVIEW
FILED IN
Cuum Oh CRIMINAL APPEALS
OCT 29 2::5
Abel Acosta, Clerk
MR-TADARRIAN A.JOHNSON
COFFIELD UNIT/TDCJ-CID
2661 FM 2054
Tennessee Colony,Texas 75884
STATEMENT REGARDING ORAL ARGUMENT
Appellant hereby waives oral argument,unless the State requests oral argu
ment.Tex.R.App.Pro.Rule 68.4(c).
11.
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT > ii
TABLE OF CONTENTS iii
LIST OF AOTHORTTIES iV
STATEMENT OF THE CASE .1
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE 1
GROUNDS FOR REVIEW 2
GROUND FOR REVIEW NUMBER ONE
THE COURT OF APPEALS ERRED IN
FINDING THAT THE RECORD"DOES*NOT
DEMONSTRATE THAT THE TRIAL JUDGES ACTIVE
PARTICIPATION IN THE APPELLANT'S PUNISH
MENT HEARING WAS A VIOLATION OF HIS SUBSTANTIAL
RIGHTS,WHEREBY NO OBJECTION IS REQUIRED,TO
WARRANT APPELLATE REVERSAL, i;. 2-10
GROUND FOR REVIEW NUMBER TWO
THE COURT OF APPEALS ERRED IN
FINDING THAT THE TRIAL COURT'S FAILURE TO
REMAIN NEUTRAL AS AN ARBITER,DID NOT DEPRIVE
THE APPELLANT OF HIS RIGHT TO DUE PROCESS 10-11
PRAYER 11
CERTIFICATE OF SERVICE 12
CRTIFICATE OF COMPLIANCE
ill).
LIST OF AUTHORITIES
Cases
U.S. V.ANDERSON,
993 F.2d 1435(9th Cir.1993) 10
BRUMIT v.STABB,
206 S.W.3d 639,645(Tex.Crim.App.2006) 9
Gagnon v.Scarpell,
411 U.S.778,786( 1973) 9
In re Murchison,
349 U.S.133,136(1955)'. 10
U -S.v .ffiodriguez,
197 F.3d at 158-159 9
O.S.v.Vonn,
122 S.Ct. 1043(2002) 10
IV.
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF TEXAS:
TADARRIAN ANTWDINE JOHNSON,Appellant below submits this Petition for Discr
etionary Review pursuant to Rule 68.1,Texas Rules of Appellate Procedure,and
requests that the Fifth Court of Appeals in this cause,and reverse the same
and order that the Appellant be granted a new trial and/or plea proceeding.
STATEMENT OF THE CASE
Appellant was indicted for the felony for burglary of a building,aggravated
assault of a public servant,and evading arrest.(CRlc6;CR2:6;CR3:6).The indi
ctments in the burglary of a building and aggravated assault cases alleged
two prior felonyeeonvictions as enhancement paragraphs.(CRl:6;CR2:6).However,
the State moved to strike both enhancement paragraphs,from these two indic
tments,and the trial court granted the motion.(CRl:5,28;CR2:5;35;R.R.2:5-6;
R.R.3:5).The indictment in the evading arrest case alleged a prior conviction
for misdemeanor evading arrest.(CR3:6).
Appellant pleaded guilty and judicially confessed to the charges.(CRl:24-27,
29;CR2:31-34,36-37;CR3:16-19,21;R.R.2:8;State's Exhibit 1).The trial court
found Appellant guilty of all three charges.(R.R.3:58).The trial court asses
sed punishment at 10 months imprisonment in the state jail in the burglary of
a building and evading arrest cases.(CR2:5,R.R.3:58).The trial court ese^SBigd
pvefrul-edtby operation of law. (CRl :43^4;CR2:53-54,CR3: 34-35) :TEX.R .APP.P.21.8
STATEMENT OF THE PROCEDURAL HISTORY
OF THE CASE
On July 31,2015,in an unpublished opinion,the Fifth Court of Appeals rendered
its Judgment and Opinion affirming Appellant's conviction.No motion for rehea
ring was filed.
GROUNDS FOR REVIEW
GROUND FOR REVIEW NUMBER ONE
THE COURT OF APPEALS ERRED IN FINDING THAT THE RECORD DOES NOT DEMONSTRATE
THAT THE TRIAL JUDGES ACTIVE PARTICIPATION IN THE APPELLANT'S PUNISHMENT HEAR
ING WAS A VIOLATION OF HIS SUBSTANTIAL RIGHTS,HHEREBY NO OBJECTION IS REQUIRED
TO WARRANT APPELLATE REVERSAL .(See R.R.3:56-58).The proceedings concluded.(R.R-
.3:58.).
ARGUMENT
The Court of Appeals has decided an important question of state and federal
law in a way that conflicts with the applicable decisions of the United States
Supreme Court and the Court of Criminal Appeals.
When the judge engaged in extensive cross-examination of Appellant,whereby
conducting her own investigation,and also the judges verbal commentary through-
hout Appellant's testimony clearly demonstrates the trial court's failure to
remain impartial during the proceeding.In the following,the record is clear
that the trial court took a biased position against Appellant,throughout the
entire proceeding,and specifically,the judge made these following comments in
response to Appellant's testimony during the State's cross-examination:
."Okay.I know how it's gonna be.You go ahead and answer however you want to."
#R.R.3:21).
."That doesn't make-sir,why don't you want to answer?You might as well just
shut it down.Just shut it down.Because either you are having a real hard
- • fcime understanding the questions,or you just don't want to say because yo
u're trying to protect your buddy."(R.R.3:22).
."See-see how he has more loyalty to seme thug,some theif ,than he does to his
own family?Go ahead sir;you keep playing this game."(R.R.3:23).
."I want to hear the conversations that were going on in that car,what y'all
we were doing all day.Obviously,you weren't out looking for a job,right?"(R.R.3
."ncLWj weren't working.You weren't doing anything-were you high?You were
hri.dj'Agh.Did y'all go to a crack house?Were y'all talking about robbing people?
Tell us the story.That's what he wants to know."(R.R.3:24).
."You think we're fools,don't you?"(R.R.3:24).
."Why don't you just be honest and say,I was robbing,we needed to rob,we ne-
ededed money ,we needed drugs so we were thinking of ways to make money illeg-
alally.ls that what happened?"(R.R.3:24-25).
Further,during the State's cross-examination,when the Appellant explained
various details of his charge for aggravated on a public servant case,at R.R.3
2.
25-26,the Appellant stated that he was sitting in the car and the police offie
cer jumped in the window,but without saying a word to the Appellant as.the Ap
pellant was pulling out of the driveway..(R.R.3:26).The judge interrupted and
erroneously said,"It sounds like you need a trial.Maybe if they bring the wit
ness that saw you....Maybe it will refresh your recollection,you using a crow-.
bar.Yoan don't remeber that?"(R.R.3:27).The Appellant explained that he did
not remember a crowbar.Then when the prosecutor asked how the Appellant ran
into a tree during the incident,and when the Appellant stated,"There was no
tree out there,sir."(R.R.3:27).The prosecutor requested that the court with
draw Appellant's plea.(R.R.3:27).Appellant's attorney requested permission
to"go back on redirect,"which the court allowed,(R.R.3:28),and again the Ap
pellant was questioned by his counsel about the details that were included in
the police report,and though the Appellant disagreed with some of the details
from the police report,he did in fact,admit to committing the offense.However,
the judge,during the redirect,violated the Appellant's due process,by her fa-.
ilure to remain impartial during the proceeding,and the trial court's biased
position against the Appellant,when on redirect,asked additional questions of
the Appellant,about the details of his burglary case,that included how the
Appellant knew his codefendant and how they decided to commit the offenseeto-
gether.(R.R.3:28-29,31).
Furthermore,when the prosecutor conducted additional cross-examination of A
Appellant responding to his testimony by interjecting:(R.R.3:32-42),
."How far did you drive with the guy hanging out of your car?How far?(R.R.3
:32).
."You've said that about ten times...already,but you don't get to just sta-
ndndhthere and say what you want.You really have to answer questions;other
wise,we're done."(R.R.3:32-33).
."Wow.So we have innocent civillians,trying to risk their life to get aho
ld of you.All righty."(R.R.3:33).
."Really?Huh-uh.No.You think you're the first drug addict we've met? Th
en don't put it on drug addicts.You think drug addicts drive around with
ammunition in the trunk of their car and drag police officers until they
crash out in a-on a tree?Really,you think that's what drug-all drug addicts
do?—No.You think all drug addicts assault police officers,burglarize
people's homes?No.Most drug addicts don't violate the law,other than bei
ng a drug addict.But you want me to believe it's ail-once you go to rehab
everything's going to get better.Is that what yoyuwant me to think?"(R.R.
3:42).
."No,you're not[trying to change].I don't see it."(R.R.3:42).
3.
Even after the Appellant rested his case,both the defense and the State gave
closing arguments,and the Appellant requested that the court address the App
ellant's long-time drug problem,which had never been addressed,by sending him
to an (inpatient drug treatment program,such as Substance Abuse. Felony Punis
hment FacilityC'SAFPF").The State asserted that,although drug use was a part
of the problem,Appellant deserved a prison sentence.(R,R.3:44-46).
Also,the record,again demonstrated the trial court's active participation in
the Appellant's punishment hearing,violating the Applicant's substantial rig
hts,whereby ho objection was required,to warrant the Appellant reversal and
even the prosecutor knew and made it a part of the record,when he told the
judge that he felt that and requested that the court should withdraw the Ap
pellant's plea.R.R.3:27).A reversal of the Appellant's conviction does not re
quire an objection,because of the record plain error and the fundamental un
fairness of the proceeding that violated the Appellant's substantial rights
as follows: (Note.-After,both the State and Appellant made their closing argu
ments,the judge stated,"Mr.Ashford,this lady keeps raising her hand,wanting
to say something.Do you want to call her as a witness or not?"(R.R.3:46).The
record reflects"No audible response"from defense counsel.(R.R.3:46).The witn
ess stated, "Yes,can I eDmel:up?" (R.R.3:46) .The judge responded, "Come on up,
ma'am.Raise your right hand."(R.R.3:46).This witness was sworn .(R.R.3:46).The
judge told the witness to"Vfg]o ahead."(R.R.3:46) .Although the record does not
identify who this witness was by name,the record reflects that the witness is
the Appellant's sister.(R.R.3:46) .This witness testified that the Appellant
ls"a"crack-head"and has"a real crack problem."(R.R.3:46).Appellant's sister ex
explained that although she too had a criminal bacground,she had reformed her
ways.(R.R.3:46-47).The judge questioned Appellant's sister about how she had
changed but the Appellant had not.(R.R.3:46-47)).The court then proceeded to
engage the witness in the following exchange:
THE CCURT:What do you think about the-the families of the police officers
that risk their life every time they have to arrrest your brother?
UNIDENTIFIED PERSON:I understand.
THE COURT:How do you think it feels being a-see,you don't even want to 1
listen to me,do you?
UNIDENTIFIED PERSON:Yes,ma'am,I will.
THE COURT:I want you to put your place-put yourself in the place
of a police officer,doesn't know whether he's gonna live or die
because he sees your brother putting that car into drive and takes off-
UNIDENTIFIED PERSON:And I-
THE COURT:-and wondering if he's even going to survive this arrest.
UNIDENTIFIED PERSON:And I-
THE COURT:You do understand that?
4.
UNIDENTIFIED PERSON:Yes.I just-I'm telling you because I'm from like,the
streets and stuff like that.And I know coke-crack cocaine,that's a hard
drug.People will do anything to get drugs.Like I realphycsee these people
every day literally.
THE COURT:Ma'am,I'm sorry,but I have to disagree with your brother's att
orney. I've been to lots of classes for drug abusers,and most drug abusers do
not commit crimes like that.Most drug users are not criminals.They're not.
Why don't you try to explain to me,then why-rif he's found God,why he's ru
bbing on himself in front of the jailers or why he's got a razor in the
la jail,why he's misbehaving in the jail?
UNIDENTIFIED PERSON:I wouldn't under—wouldn't understand it,because when
I was incarcerated,I stayed away from people.I don't-
THE COURT:It's not about you,ma'am.I'm asking you to explain to me why-if
ycuyour brother reallv is chanainq,whv would he behave like that in fail?
UNIDENTIFIED PERSON:I"
THE COURT:You can't blame that on him beinq a crack addict.
UNIDENTIFIED PERSON:No,ma'am .I feel like because he probably had to-because
he's in an aqaravated tank,he didn't-he's orobablv scared of people in the
ere that done murdered oeople.And I would be scared of-
THE COURT:He's scared of Deoole?
UNIDENTIFIED PERRON:Yes,he probablv would be scared of other mens that have
done orobablv killed peoDle like-because I orav for mv brother everv dav be
becaus3 of the kind of tank he in/because he's in an aggravated tank.
THE COURT:Have y'all-what have y'all done wMMeSie was free to sit him down
and get him to-one second.Let me finish before you start talking.
UNIDENTIFIED PERSON:Yes,ma'am..
THE COTJ*T:What have you and your family done while he has been a free to
try and get him to change his life?
UNIDENTIFIED PERSON:When my brother was on crack and my cousin passed away,
I went looking for my brother myself .When I went to go look for him.I found
him in a dope^fiend house with nothing but crack heads out there smoking-
THE COURT:So what did you do?I want to know what you did-what you and your
family did.Did you try to send him to rehab?Did you even have a conversatie-
cn with him about it?
UNIDENTIFIED PERSON:I had a coversation with him.
THE COURT:You did?
UNIDENTIFIED PERSON:Yes,ma'am.
'j' 5-
THE COURT .-What about his mother and his grandmother?
UNIDENTIFIED PERSON:My mamma done had conversations with him plenty of time
es,but my brother always run off.He-he'll be at the house for a minute;next
thing you know he'll be running off because of the area we stay in.
THE COURT"Okay.So y'all have known he's had a problem since hejs been to co
college,and now you're here trying to tell me what to do?
E UNIDENTIFIED PERSON:No,ma'am.I was-
THE COURT.-Since y'all haven't been able to convince him on your own for
years and years and years,stop hurting family,stop hurting yourself,stop
risking your life and other people's lives- he hasn't listened to you.What-
ever you and your family havedtried to do,he hasn't listened.lt hasn't wor
ked.And now you're trying to tell me to what?
UNIDENTIFIED PERSON:No,I'm just saying I wasn't ever really trying to reai-
lly help him.Like,by him being incarcerated,nobody took the time-I under-
stastand that he done done wrong,but it's no-it's no-like,he can't-and he pro
bably be so nervous because I'm looking at him and I know him because I was
raised uptwitenrnhim.
THE COURT:He's nervous?He drags a cop and he's nervous here in front of me?
UNIDENTIFIED PERSON:Yes.
THE COURT:I never understood that.
UNIDENTIFIED PERSON:When he was-during-at the time-
THE COURT:He wasn't scared out in the streets.
UNIDENTIFIED PERSON:He was under the influence.He was on drugs.
THE COURT:That's-
UNIDENTIFIED PERSON:They sajd they found it in him when he went to the ho
spital.He wasn't even in his right state of mind.Like-
THE CCURT:He's not afraid of hanging out in crack houses,hanging out with
people he doesn't know,getting high with people he doesn't know,driving are
ound with a trunk full of weapons,but he's scared today?
UNIDENTIFIED PERSON:I-I would be,and I done changed,so-I understand we're n
not talking about me,but I understand-
THE COURT:Oh,I know lots of people that have changed,ma'am.
UNIDENTIFIED PERSON:Yes.And I was raised up-and he did go to college.He
never did get in trouble.I was always the one getting in trouble.
THE COURT:Well,and that's where he's different from most people.Most of
the folks that come through here don't even have a high school diploma.And
he's smart.
UNIDENTIFIED PERSON:And he-
THE COURT:He knows better.
UNIDENTIFIED PERSON:And he didn't really-and he-first,he started snorting
cocaine-
6.
THE COURT:We can stop.I know he's a drug addict,ma'am,but you don't.With
drug addicts that don't place people in harms"svaway,I can work with th
em.I can work with them a lot if all they're doing is shoplifting or-but .
when you have something that's willing to risk other people's lives and his
own life-you know yx>ur bother's lucky to be alive? right?
UNIDENTIFIED PERSON:Yes,ma 'am.
THE COURT:You watch the news right?
UNIDENTIFIED PERSON:Yes,ma'am.
I HE COURT :M@0-Raw toate he$s totkyn fcnel©dpb€A<3nsfe pti3& aun;unreiadcppfe?a ho-
e in his head,right?*
UNIDENTIFIED PERSON: ps,ma'am.
THE COURT:How many guys have gotten hilled because they run from cops?
UNIDENTIFIED PERSON:Numerous of them-people.
THE COURT:Yeah-yeah,so you just need to be thankful that he's alive and sar-
fe in the jail.Because if it would have been any other cop,he'd be dead.
UNIDENTIFIED PERSON :Can I tell you something?
THE COURT:Go ahead.
UNIDENTIFIED PERSON:When I was incarcerated,I was super excited because-
when I was away from my daughter-I mean I felt like nobody wasn't-wasn't
helping me,just threw me in jail because nobody would help me.I'm not ask
ing for sympathy because I pray-
THE COURT:So how did you get straight?
UNIDENTIFIED PERSON:I prayed.I stayed in the single cell because I hurt my
leg by jumping becayse I went to Hope Literacy.I was in-
THE CCUST:What made you decide to leave the life of crime?What made you?
UNIDENTIFIED PERSON:Because the-leave the life of-
EHE COURT:Of crime,yeah.
UNIDENTIFIED PERSON:-crime?Because of my child.
THE COURT:Okay.
UNIDENTIFIED PERSON:It was for her.
THE COURT:Well,what's the differente ifrbmeen you and your brother?How come
you can do it and he can't;?
UNIDENTIFIED PERSON:Because I wasn't on drugs.I wasn't on-
THE COURT:Oh,okay.
UNIDENTIFIED PERSON:And I feel like if he go back to the same neighbor
hood,it's goingrit's probably gonna happen again.All I'm just asking-even
if you §you send him to-whereever you decide to do,just,please,can you get
7.
him some help.That's all I pray for in asking you to do,just help him be
cause ain't nobody ever really tried to help him.
THE COURT:I don't think that's true.I think two courts have placed him on
probation already and tried to help him and he-
UNIDENTIFIED PERSON:They never srnt him to a rehab,like-I don't efrenkbel-
ieve he went to Wilmer.I don't believe he ever went to no rehab to try and
get him some help.He-I don't know why he won't tell the truth.He's a real
crack head.He walks the street at night.When my cousin passed away,it was
the most horrible thing because he got killed by a police officer;he didn't
even come to the funeral,so he was in the streets .We couldn't even get hira-
THE COURT:What's yourrcousinss name that got killed by the police?
UNIDENTIFIED PERSON:Jaques Howard.The police shot him.He wasn't nothing but
20 years old.I found him.I would go look for him because he was nowhere ar
ound.He was in a crack-a crack house with nothing but crack heads.I said,
Tadarrian-I cried to him,can you please come to the house and go to the fu
neral with me.He said,Erica(phonetic),I'11 be there in the morning.He never
showed upobecause he's so much on crack.T see crack heads every day.
THE COURT:So do I,ma'am.All righty.Anything else you want to say?
UNIDENTIFIED PERSON:No,ma'am,just thank you for letting me talk.
THE COURT:All righty.Thank you.
(R.R.3:47-56).Without asking either defense counsel or the State whether they
had any questions for this witness,the court immediately proceeded to engage
Appellant as follows:
[THE COURT:]...Why would you do that to your sister?Why?Why do you put your
through all of that and her little baby girl and your grandmother and your
mother?Why?
THE DEFENDANT:I don't intentionally try to-
TSEE COURT:Tes,you do.Oh you think life just happens to you?
THE DEFENDANT:No,ma'am.
THE COURT:You think somebody gaBt<?sticks! a ccackrp&pe in your face and fo
rces you to do it?
THE DEFENDANT:No,ma'am.
THE COURT:IHd even then somebody forces you to run from cops all the time?
It seems to me like you have a death wish,you just want somebody to put a
bullet in your head.Is that what's going on?
THE DEFENDANT:No,ma'am.Your Honor,I'm not a violent person.
8.
THE COURT:Oh,really?Tell that to the cops that tried to arrest you over and
over again.You want m# to ignore your conviction for assault on a peace
officer?
THE DEFENDANT:No,no:,m
THE COURT:You want me to ignore your coviction for resisting arrest?
THE DEFENDANT: No, ma .'am.
THE COURT:Is that what you want me to do?
THE DEFENDANT:No,ma'am.
THE CCURT:Okay.Wellr;'then,you know,nothing that you're sayong,one can be
belived because you lied so much alreadt.Your own sister says you're not
telling the truth.Your sister calls you a crack head that's roaming the
streets;is that true?
THE DEFENDANT:No,ma'am.I don't roam the streets.
THE COURT:All righty.I'm finding you guilty in each case,setting your
punishment at ten years'confinement in prison.
(RR3:56-58).The proceedings concluded,(RR3:58).
In the case at bar,this court should grant review and reverse the decision
of the Court of Appeals,because the Appellant's substantial right to a fair
trial,in a fair tribunal,was disregarded,in that the aforementioned record
doesscontradict the correctness of the Court of Appeals'affirmance because
the record does,in fact demonstrate that the Appellant's snbstantial rights
were violated during his plea-proceedings,his right to confront those in
accordance with the Confrontation Clause and also the Appellant's right to
cross-examine the UNIDENTIFIED PERSON:/compounded with the record fact that
his judge failed to act impartially,whereas,the record shows a clear and
plain error by the court's use of the words"we"and "us",when the judge is sp
eaking in the plea-proceeding against the Appellant and as an advocate for
the state,therefore disregarding the Appellant's substantial right,during His
plea-proceeding,to have his plea-proceedings held before a neutral and detach
ed judge with no actual bias against him,and in accordance wifch Gagnon v.Sca-
rpell,411 U.S.778,786(1973);Brumit v.State,206 S.W.3d 639 ,645(Tex.Grim.App.200
6).Further,in U.S.V.Rodriguez,197 F.3d at 158-159,it was clearly stated that:
"Although a district court may reject a plea-agreement and expeess its reasons
for doing so,Rule 11(e)(1),is clear in its prohobition againsf'all forms of
judicial participation in or interference with the plea negotiationsprocess."
The reasons for this bright line rule have been expressed in a number of cases
decided by this court."First,it diminishes the possibility of judicial coirf-
iiwinof a guilty plea,regardless whether the coercion would actually result in
9.
an involuntary guilty plea.Second,the judge^s involvement in the negotiations
is apt to diminish the judge's impartiality.By encoraging a particular agree
ment,the judge may feel personally involved,and thus resent the defendant's
rejection of his advice.Third,the judge's participation creates a misleading
impression of his role in the proceedings.The judge's role seems more like an
advocate for the agreement than a neutral arbiter if he joins the negotiati
ons . "Also , see U.S.v.Anderson,993 F.2d 1435(9th Cir.1993).
Moreover,in the instant case,the record most certainly demonstrates that the
judge's active participation in the Appellant's punishment did violate his su
bstantial right and the appellate court erred in determining that the Appella
nt's substantial rights in the context of the Confrontation Clause,right to
cross-examine,and the right to have his judge remain as a neutral arbiter,all
contradicts the Court of Appeals'Opinion,that the recorded facts described,did
not affect his rights,whereby,these clear and plain errors,shown in the reco
rd,should not require an objection despite these plain errors because the erre
ors did affect Appellant's substantial rights to a fundamentally fair trial in
a fair tribunal.In re.Murchison,349 U.S.133,136(1955);U.S.Constitutional amen£
dment XIV,and Texas Constitution article I & 19(providing for due course of la
law). (Also,see U.S.v.Vonn,122 S.Ct.1043(2002),in relevant part to no objection
is required from the Appellant("Petitioner")because the record shows plain
error and the fact that his substantial rights were affected).
GROUND -FOF FL"V:'EW
GROUND FOR REVIEW NUMBER TWO
THE COURT OF APPEALS ERRED IN FINDING THAT THE TRIAL COURT'S FAILURE TO RE
MAIN NEUTRAL AS AN ARBITER,DID NOT DEPRIVE THE APPELLANT OF HIS RIGHT TO DUE
PROCESS.
ARGUMENT
The Court of. Appeals has decided an important question of state and federal
law in a way that conflicts with the applicable decisions of the United States
Supreme Court and the Court of Criminal Appeals.
In the instant case,the Court of Appeals erroneously entered into the record
that the Appellant's due process was not deprived when the record clearly sh
ows that the judge failed to remain impartial.which was the Appellant's abso
lute right and the judge's record partiality cannot be forfeited during the
Appelant's plea proceeding .Appellant's due process was clearly violated by the
judqe's erroneous conduct,when she questioned farts from and about the Appell
ant's case,rather than just the law.In U.S.v.Anderson,993 F.2d 1435(9th Cir.19
93),it was held that;"Regardless of whether defendant BMP shown actual prejud-
10.
a-P4fcr
ice,defendant who has pleaded guilty Mitaev judge has participated in plea di-
scussions is entitled to be HpiMSLSee Federal Rules of Criminal Procedure
Rule 11(e)(1),18 U.S.C.A.Further,Constitutional Law states:Due process demands
an impartial adjudicator to make a ruling based in admissible evidence in a
forum with the oppurtunity to cross-examine and present evidence as allowed.Th
Therefore,in the instant case,when the trial court actively participated and
became an advocate in the Petitioner's(^Appellant")adversarial process and lo
st her neutral role and detached role that is required of a judge,when the
Appellant's judge questioned both the Appellant and his sister about his appl-
cation for community supervision SAFP,clearly is plain error because almost a.l
all of the judge's questions went beyond judicial conduct and what was necess
ary for a determination of the Petitioner's application for SAFP.
This court should grant review and reverse the decision of the Court of App
eals .
PRAYER FOR RELIEF
Appellant prays that this Court grant review and upon final hearing,that judg-
gment and sentence be set aside and the cause remanded below.
Respectfully
cully submitted,
submit
MK.TAUAKULM A.JOHNSON
#1936248
Coffield Unit?TDCJ-CID
2661 FM 2054
Tennessee Colony, Texas
75884
11.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this foregoing document was
sent to the State Prosecuting Attorney,at P.O.Box 12405 Capitol Station,Aust
in,Texas,78711,on this 15th day of October,2015,and also on this same date,the
main or original above said document was sent to the clerk of the Court of Cri-
fcminal Appeals,by prepaid U.S.mail,at P.O.Box 12308 Capitol Station,Austin,Te
xas 78711.
TADARRIAN A.JOHNSON
12.
AFFIRM; and Opinion Filed July 31, 2015.
In The
(Emtrt of Appeals
Mttl} Utatrfct of utexaa at Dallas
No. 05-14-00791-CR
No. 05-14-00792-CR
No. 05-14-00793-CR
TADARRIAN ANTWOINE JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause Nos. F13-59105-Q, F13-59106-Q, and F13-59536-Q
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Brown
Opinion by Justice Brown
After Tadarrian Antwoine Johnson pleaded guilty to the offenses of aggravated assault of
a public servant, burglary of a building, and evading arrest without the benefit of plea
agreements, the trial court assessed punishment at ten years' confinement in the aggravated
assault case and ten months' confinement in each of the remaining cases. In two issues,
appellant contends we must reverse and remand these cases for a new punishment hearing
because the trial court's failure to remain a neutral and detached arbiter violated his due process
rights under the United States and the Texas Constitutions. After reviewing the record, we
conclude appellant did not preserve error regarding these complaints because he failed to object
to the trial court's conduct. Thus, we overrule appellant's issues and affirm the trial court's
judgments.
In two issues, appellant contends the trial judge actively participated in appellant's
punishment hearing to the degree that (1) she abandoned her role as a neutral and detached
arbiter, (2) her extensive cross-examination of appellant and numerous comments reflected a
clear bias against appellant, and (3) her decision to "call her own witness to the stand" reflects
the trial court's "clear intent to actively engage in the advocacy process" against appellant.
According to appellant, this abandonment of the court's impartial role violated his constitutional
rights to due process and due course of law under both the United States and Texas
Constitutions. In making this argument, appellant acknowledges he failed to object but contends
the pervasive and harmful nature of the questions and comments in this case constitute
fundamental error and, therefore, an objection was not required to preserve error. After
reviewing the record and the law, we cannot agree.
Most appellate complaints must be preserved by a timely request for relief at the trial
level. See Tex. R. App. P. 33.1, Unkart v. State, 400 S.W.3d 94, 98 (Tex. Crim. App. 2013),
Marin v. State, 851 S.W.2d 275, 278 (Tex. Crim. App. 1993). Even claims involving
constitutional error, including claims that due process rights have been violated are waived by
failing to object. Hull v. State, 67 S.W.3d 215, 218 (Tex. Crim. App. 2002); Briggs v. State, 789
S.W.2d 918, 924 (Tex. Crim. App. 1990). More particularly, this general rule applies to
complaints regarding improper judicial comments, except when the judicial comments rise to the
level of fundamental error. See Unkart, 400 S.W.3d at 99.
In Marin, the court of criminal appeals identified and defined three categories of rights
belonging to litigants. Marin, 851 S.W.2d at 279. Appellant maintains the unique facts and
circumstances in this case fall within the first of the three categories of rights defined in Marin.
That category concerns "absolute requirements and prohibitions" or "systemic" rights "which are
essentially independent ofthe litigant's wishes." Sanchez v. State, 120 S.W.3d 359, 366 (Tex.
Crim. App. 2003); Marin, 851 S.W.2d at 278. These absolute or fundamental rights are not
subject to the preservation requirements of rule 33.1 See Sanchez, 120 S.W.2d at 366. The
clearestcases of such rights are laws affectingthe jurisdiction of the courts. Id.
In Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000) (plurality op.), the court of
criminal appeals granted relief on an improper-judicial-comment complaint that was not
preserved at trial. See id. at 133, 135. However, the court did not agree on a rationale for
granting relief and, consequently, Blue is a plurality decision with no precedential value. Unkart,
400 S.W.3d at 100-101. Thus, the separate opinions in Blue may only be considered for any
persuasive value they might have. Id. at 101. Because Blue concerned comments of the trial
judge which tainted appellant's presumption of innocence in front ofthe venire, we conclude it is
not persuasive in this case involving comments made at the punishment hearing before the trial
court after appellant pleaded guilty to the offenses charged.
Here, appellant did not object to any of the numerous complained-of comments by the
trial court or her conduct in calling a witness to the stand. When the trial court asked whether
there was "any reason at law" why the sentences should not be formally imposed, appellant said,
"No." Finally, although appellant filed motions for new trial in these cases, he did not contend
his due process rights had been violated by the trial court's conduct and appellant did not file
motions to recuse or in any way request a new punishment hearing.
Although we do not condone the level of the trial court's participation nor her demeanor
during this punishment hearing, we disagree with appellant that the record demonstrates such
unique circumstances that no objection was required. Because appellant failed to object at any
time to the trial court's conduct in these cases, we conclude appellant has failed to preserve error
for our review. We overrule appellant's issues.
-3-
Accordingly, we affirm the trial court's judgments in this case.
/Ada Brown/
ADA BROWN
JUSTICE
Do Not Publish
Tex. R. App. P. 47
140791F.U05
-A-
Court of Appeals
ifltftfj Btatrict of Qtexas at Dallas
JUDGMENT
TADARRIAN ANTWOINE JOHNSON, On Appeal from the 204th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F-1359105-Q.
No. 05-14-00791-CR V. Opinion delivered by Justice Brown. Justices
Bridges and Fillmore participating.
THE STATE OF TEXAS, Appellee
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of July, 2015.
-5-
Court of Appeals
Jfftftu. district of (feas at Ballas
JUDGMENT
TADARRIAN ANTWOINE JOHNSON, On Appeal from the 204th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F-1359106-Q.
No. 05-14-00792-CR V. Opinion delivered by Justice Brown. Justices
Bridges and Fillmore participating.
THE STATE OF TEXAS, Appellee
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of July, 2015.
-6-
Court of Appeals
iflfftfi Bxstrirt of QJexas at Ballas
JUDGMENT
TADARRIAN ANTWOINE JOHNSON, On Appeal from the 204th Judicial District
Appellant Court, Dallas County, Texas
Trial Court Cause No. F-1359536-Q.
No. 05-14-00793-CR V. Opinion delivered by Justice Brown. Justices
Bridges and Fillmore participating.
THE STATE OF TEXAS, Appellee
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 31st day of July, 2015.
-7-
| {
"pile_set_name": "FreeLaw"
} |
600 S.E.2d 340 (2004)
215 W.Va. 628
Patrice GREEN, Executrix of the Estate of Francis Green, Deceased, Plaintiff Below, Appellant
v.
CHARLESTON AREA MEDICAL CENTER, INC., DBA Charleston Area Medical Center, a West Virginia Corporation; and Charleston Emergency Physicians, Inc., a West Virginia Corporation, Defendants Below, Appellees and
Patrice Green, Executrix of the Estate of Francis Green, Deceased, Plaintiff Below, Appellant
v.
Edward Wright, M.D., Third-Party Defendant Below, Appellee.
No. 31122.
Supreme Court of Appeals of West Virginia.
Submitted January 14, 2004.
Decided June 29, 2004.
*341 Carole A. Lewis Bloom, Esq., Guy R. Bucci, Esq., Bucci, Bailey & Javins, L.C., Charleston, Wayne R. Spivey, Pro Hac Vice, V. Paul Bucci, II, Pro Hac Vice, Shrager, Spivey & Sachs, Philadelphia, PA, for Appellant.
*342 Dina M. Mohler, Esq., Rita Massie Biser, Esq., Kay Casto & Chaney, LLC, Charleston, for Charleston Area Medical Center, Appellee.
John F. McCuskey, Esq., Roberta F. Green, Esq., Shuman, McCuskey & Slicer, Charleston, for Edward Wright, M.D., Appellee.
PER CURIAM.
This is an appeal by Patrice Green, Executrix of the Estate of Francis Green, deceased, from an order of the Circuit Court of Kanawha County, denying the appellant a new trial in a wrongful death action. On appeal, the appellant claims that an attorney for one of the appellees made inappropriate and prejudicial remarks during his opening and closing statements and that consequently the trial court should have awarded a new trial. The appellant also claims that the circuit court made certain erroneous evidentiary rulings.
I.
FACTS
The appellant's decedent, who during trial was referred to as Freddie Grounds, was a mild hemophiliac who was injured on March 4, 1983, when a mining timber struck him in the chest. Shortly after the accident, he was taken to Charleston Area Medical Center where he was treated at approximately 4:00 a.m. on March 5, 1983, by Dr. Edward Wright, the Charleston Area Medical Center's emergency room physician. Dr. Wright administered a blood product called "factor concentrate" to Mr. Grounds because Mr. Grounds was a hemophiliac. The factor concentrate had been manufactured, or prepared, by Cutter Laboratories, which at the time of this action, was a part or division of Bayer Corporation. The blood from which the factor concentrate had been manufactured had been collected by the American Red Cross, not by Cutter Laboratories.
Prior to the time Dr. Wright administered the factor concentrate to Mr. Grounds, a suspicion had developed among some members of the medical community that the disease AIDS was somehow connected with, or communicated by, a virus or constituent of human blood. This suspicion had come to the attention of Cutter Laboratories, and an attorney for Cutter Laboratories had mentioned it in a memorandum which was subsequently referred to as the "Cutter Memo." The suspicion had also come to the attention of the National Hemophilia Foundation.
After issuance of the "Cutter Memo," Cutter Laboratories failed to issue an immediate warning relating to the potential problem. The National Hemophilia Foundation, on the other hand, in December 1982, issued a circular to certain physicians involved in the treatment of hemophiliacs notifying them of the potential connection between human blood products and the transmission of the disease AIDS.
There is no indication that the Charleston Area Medical Center or Dr. Edward Wright, its emergency room physician, directly received the National Hemophilia Foundation circular or knowledge that there was a possible connection between human blood products and the disease AIDS prior to the time that Dr. Wright administered the factor concentrate to Freddie Grounds on March 5, 1983. However, the Charleston Area Medical Center provided space, at no charge, to a hemophilia clinic operated by certain physicians in Charleston, West Virginia. A principal figure in the hemophilia clinic was Dr. Steven Jubelirer, an employee of West Virginia University, and a full time faculty member at the University's medical school. Dr. Jubelirer received a copy of the National Hemophilia Foundation's December 1982 circular and apparently was aware of the possible link between the disease AIDS and human blood products prior to the time Dr. Wright administered the factor concentrate to Freddie Grounds. Dr. Jubelirer, however, had not disseminated the information to the physicians at the Charleston Area Medical Center.
After receiving the factor concentrate, Freddie Grounds developed the disease AIDS and subsequently died of the disease. The appellant instituted the present wrongful death action to recover damages for the death. The appellant sued Bayer Corporation, *343 for the defective manufacture of the factor concentrate and for failing to warn of its hazard. The appellant also sued Dr. Edward Wright for the negligent administration of the product, and also the Charleston Area Medical Center. To establish the negligence of Charleston Area Medical Center, the appellant took the position that Dr. Jubelirer, of the hemophilia clinic, although not an actual employee of the Charleston Area Medical Center, was an apparent agent of the Charleston Area Medical Center since he participated in the activities of the hemophilia clinic in space provided by the Charleston Area Medical Center. The appellant claimed that Dr. Jubelirer, as an apparent agent, had a duty to warn the Charleston Area Medical Center of the AIDS hazard of factor concentrate as communicated to him by the National Hemophilia Foundation, that he failed to transmit the warning, and that his negligence in failing to transmit the warning was negligence imputable to the Charleston Area Medical Center.
After the appellant instituted the action, but before trial, Bayer Corporation entered into a settlement with the appellant and, as a consequence, Bayer Corporation and its Cutter Laboratories division were absent from, and did not participate in, the actual trial of the case.
After extensive development, the case went to trial before a jury in August 2000. In the course of the trial, the trial judge made certain rulings which the appellant claims were prejudicial. First, the appellant claims that the trial court improperly allowed the attorney for Dr. Edward Wright to make improper and prejudicial remarks during his opening and closing statements. Secondly, the appellant claims that the trial court erred in refusing to admit the testimony of Elaine Husted, Ph.D., testimony which suggested that the Charleston Area Medical Center had a legal duty to warn of the hazards of factor concentrate. Finally, the appellant claims that the circuit court erred in allowing the admission of the "Cutter Memo" into evidence. As a consequence of these alleged errors, the appellant claims that the trial court should have granted a new trial.
II.
STANDARD OF REVIEW
As a general rule, this Court has indicated that the ruling of a trial court denying a new trial will be reversed if the court acted under some misapprehension of the law or evidence. Specifically, the Court stated in Syllabus Point 1 of Rohrbaugh v. Wal-Mart Stores, Inc., 212 W.Va. 358, 572 S.E.2d 881 (2002), that: "`Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.' Syllabus point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976)."
When a trial court's rulings on the propriety of remarks made during the opening or closing of a jury trial are in issue, the Court has ruled that: "`Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury.' Syl. pt. 2, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978)." Syllabus Point 8, Mackey v. Irisari, 191 W.Va. 355, 445 S.E.2d 742 (1994).
Finally, where a trial court's evidentiary rulings are in issue, the Court has held in Syllabus Point 9 of Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002), that: "`The West Virginia Rules of Evidence ... allocate significant discretion to the trial court in making evidentiary ... rulings. Thus, rulings on the admissibility of evidence ... are committed to the discretion of the trial court. Absent a few exceptions, this Court will review evidentiary ... rulings of the circuit court under an abuse of discretion standard.' Syllabus Point 1, in part, McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995)."
III.
DISCUSSION
As has previously been stated, the appellant in the present proceeding claims *344 that the trial court erred in allowing the attorney for Dr. Edward Wright to make improper and prejudicial remarks to the jury during his opening and closing statements. The specific remarks made during opening were:
The evidence will show that the only party to this lawsuit who had any reason to suspect that the product that they were making millions of dollars selling might contain this deadly disease, that was Bayer's Cutter Laboratories operating out of Berkeley, California on the San Francisco Bay. As you will see from an internal secret corporate memorandum dated December of 1982, Cutter and Bayer suspected the risk of their product that [they] poached to patients. And they alone could have done something to prevent it. They alone knew that the blood being donated to them was coming primarily from homosexuals and drug addicts, the suspected carriers of the new unknown disease.
The remarks continued:
Dr. Wright is confident as am I, that you will conclude that this death occurred as a result of the deceitful and greedy acts of the German Bayer Corporation, and its Cutter Laboratory in Berkeley, California. It knowingly collected, processed, and sold, without any warning to unsuspecting public and blood banks through out the country.
At the conclusion of the opening statement, counsel for the appellant objected and moved for a mistrial. The court overruled that motion and allowed trial to proceed. Similar remarks were made during closing argument. Counsel for the appellant, however, failed to object to those remarks.
As has previously been stated, this Court has recognized that counsel should be allowed great latitude in arguing cases before a jury. Nonetheless, it is the duty of counsel to keep arguments within the evidence and to refrain from making statements calculated to claim prejudice or mislead the jury. Mackey v. Irisari, supra.
The Court has also held that: "[I]t is improper for counsel to argue to the jury why a party has not been brought into the lawsuit or that an absent party is solely responsible for the accident ...." Groves v. Compton, 167 W.Va. 873, 879, 280 S.E.2d 708, 712 (1981). As pointed out in Doe v. Wal-Mart Stores, Inc., 210 W.Va. 664, 558 S.E.2d 663 (2001), a case decided after the trial of the action presently under consideration, an argument attributing blame to an absent party, where the evidence of that party's liability has not been fully developed, allows a jury to speculate inappropriately regarding the absent party's role in the case.[1]
In the present case, the appellant claims that the remarks made by the attorney for Dr. Wright were expressly contrary to what evidence within the clear knowledge of the attorney showed. Specifically, the appellant points out that the attorney argued that Bayer, and its Cutter division, "alone knew that the blood being donated to them was coming primarily from homosexuals and drug addicts, the suspected carriers of the new disease." The evidence, contrary to this assertion, showed that the factor concentrate that infected Mr. Grounds was from donor plasma obtained by the American National Red Cross Blood Services and not by Bayer. The appellant, in essence, claims that in the opening argument, counsel for Dr. Wright intentionally misstated the facts and did so in the context of making references to homosexuals and drug addicts for the purpose of inflaming and prejudicing the jury.
The appellant also takes the position that the opening remarks were improper and prejudicial in that they suggested that Bayer Corporation, an absent party, was solely responsible for the decedent's death where the evidence establishing Bayer's liability had not been fully developed. In effect, the appellant is asserting that the argument was speculative and plainly was violative of the requirement of Groves v. Compton, id.
*345 After examining the assertions made by the appellant, as well as the relevant portions of the record, this Court believes that the appellant's assertions are supported by the record. The evidence does plainly show that the blood out of which the factor concentrate involved in the present case was extracted was collected by the American Red Cross rather than by Bayer's Cutter Laboratories as asserted by Dr. Wright's counsel in the opening argument. Further, there appears to be no factual support for the assertion that Bayer alone knew that the blood being donated was coming primarily from homosexuals and drug addicts.
The Court also believes that counsel for Dr. Wright did attempt to attribute sole responsibility for Mr. Grounds' death on Bayer Corporation, an absent party. He plainly argued that only Bayer had any reason to suspect that the factor concentrate was defective, and only Bayer could have acted to reduce the risk. On the other hand, by the time trial began, Bayer was out of the case, and the evidence relating to Bayer Corporation's liability was not fully developed. In the Court's view, the argument was the blame-shifting type of argument prohibited by Groves v. Compton, supra.
The Court believes that the impact of the improper remarks was potentially sufficient to divert the jury's attention from the actual defendants in the case and, as a consequence, the trial court should have granted a mistrial. Also, the verdict ultimately rendered by the jury was potentially prejudiced. Consequently, the Court concludes that the judgment of the circuit court should be reversed, and that the appellant should be granted a new trial.
This appeal raises two other issues. The first is whether the trial court erred in refusing to allow the appellant to adduce the testimony of Dr. Husted. As has previously been indicated, the appellant proposed to elicit an expert opinion from Dr. Husted as to the duty of the Charleston Area Medical Center to warn of the hazards of factor concentrate after Dr. Jubelirer learned of the potential AIDS hazard of human blood product treatments, including factor concentrate.
The court refused to allow Dr. Husted to testify as an expert witness because in the court's judgment, the appellant failed to qualify Dr. Husted as an expert capable of rendering the type of opinion sought.
Rule 702 of the West Virginia Rules of Evidence governs the qualification of expert witnesses. That Rule provides, in part, that a circuit court must determine that the expert's area of expertise covers the particular opinion as to which the expert seeks to testify.
The evidence shows that Dr. Husted was a nurse administrator with a doctorate who worked at a hospital in Pennsylvania. She specifically testified that it was not within her responsibilities at her hospital to handle dissemination of information concerning AIDS, and that she did not know what her hospital was doing in response to AIDS in the early 1980s. She did not know if her hospital stocked the type of medication administered to Mr. Grounds; she did not attend medical staff meetings; and she did not know what types of educational programs were required of the medical staff at her hospital in the early 1980s. She could not personally ever recall seeing information relating to hemophilia and AIDS prior to reviewing for the case at hand. Finally, she indicated that she, in proposing to testify, would not be relying upon any regulation, law or standard with respect to the dissemination of information in formulating her opinion.
As set forth in Syllabus Point 9 of Smith v. First Community Bancshares, Inc., supra, a trial court has discretion in making evidentiary rulings. Further, in Syllabus Point 6 of Helmick v. Potomac Edison Company, 185 W.Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S.Ct. 301, 116 L.Ed.2d 244 (1991), the Court stated in the expert testimony area that: "The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong."
After reviewing the testimony of Dr. Husted relating to her qualifications, this Court believes that it is debatable whether she had the type of expert background sufficient for *346 her to render an opinion as to the duty of a hospital to disseminate the type of warnings in issue in the present case, and that given the nature of her background and experience as revealed by her testimony, this Court does not believe that the trial court was clearly wrong in excluding her expert opinion.
Finally, the appellant claims that the trial court erred in admitting into evidence the so-called "Cutter Memo." The "Cutter Memo" showed that the Cutter Laboratories was aware of potential AIDS infection problems with its blood products in 1982, and that a suggestion had been raised that a warning regarding the use of the products might be appropriate.
As indicated in Syllabus Point 9 of Smith v. First Community Bankshares, Inc., supra, a trial court has significant discretion in making evidentiary rulings. In admitting the "Cutter Memo" into evidence, the trial court recognized that an issue in the case was what was known about the connection between AIDS and blood products at the time of the transfusion in the case. The "Cutter Memo" was relevant on this point, and, in this Court's view, given this and the overall development of the case, it has not been shown that the trial court abused its discretion in admitting the memo.[2]
Because of the statements made during argument, this Court believes that the judgment of the circuit court should be reversed and that this case should be remanded for a new trial.
Reversed and remanded.
MAYNARD, Chief Justice, dissents.
NOTES
[1] In Syllabus Point 2 of Doe v. Wal-Mart Stores, Inc., 210 W.Va. 664, 558 S.E.2d 663 (2001), the Court reiterated the essential point in Groves v. Compton, 167 W.Va. 873, 280 S.E.2d 708 (1981), as follows: "It is improper for counsel to make arguments to the jury regarding a party's omission from a lawsuit or suggesting that the absent party is solely responsible for the plaintiff's injury where the evidence establishing the absent party's liability has not been fully developed."
[2] Having reached this conclusion, however, this Court wishes to point out that, should the "Cutter Memo" be again admitted as evidence during trial on remand, it cannot be used as a basis to suggest that Bayer was the party responsible for the injury alleged in this case. As suggested previously, the Court believes that such an argument would require undue speculation upon the part of the jury and would be improper under the holding in Groves v. Compton, supra.
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469 So.2d 1371 (1985)
Jerome C. AVERETTE
v.
STATE.
6 Div. 78.
Court of Criminal Appeals of Alabama.
April 9, 1985.
*1372 Chris S. Christ, Birmingham, for appellant.
Charles A. Graddick, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.
BOWEN, Presiding Judge.
Jerome C. Averette was indicted and convicted for theft of property in the second degree in violation of Alabama Code 1975, § 13A-8-4. The sentence of ten years' imprisonment was ordered split, with the defendant serving one year in jail and five years on probation. Restitution, as a condition *1373 of probation, was ordered in the amount of $2475. Five issues are raised on appeal.
I
The indictment contained fifteen counts. Each count alleged in substance that the defendant stole the proceeds of a check for $165 made payable to the Cabana Hotel and drawn on the account of Youth Development, Inc. A different check was involved in each count. The checks were dated from July 7, 1980, to November 9, 1981.
Youth Development, Inc. (YDI) was a "summer youth recreation program ... designed to offer recreational activities for disadvantaged youth between the ages of eight and thirteen." It was funded by the Jefferson County Committee for Economic Opportunity. The defendant was the director of YDI. The State proved that, for fifteen separate months, the defendant paid the rent for his room at the Cabana Hotel in Birmingham with checks drawn on the YDI account.
At trial, the State introduced evidence to prove that the defendant had also written checks on the YDI account to purchase a raccoon fur coat for $100, to four different beverage companies for beer and wine totaling $1100, to Wheton Printing Company to cover $397 in the campaign expenses of a Margaret B. Little, and to Burch and Tant for a tuxedo rental in the amount of $43.26. The State introduced these other offenses to show that the defendant wrote "unauthorized checks for personal uses out of this charity" in order to show motive, scheme, pattern, and fraudulent intent.
On appeal, the defendant does not quarrel with the general rule that "[e]vidence of the accused's commission of another crime is admissible if such evidence, considered with other evidence in the case, warrants a finding that both the now-charged crime and such other crime were committed in keeping with or pursuant to a single plan, design, scheme or system." C. Gamble, McElroy's Alabama Evidence, § 69.01(6) (3rd ed. 1977). The State laid a proper predicate to show that these other offenses fell within that exception to the general rule excluding evidence of other offenses. Royal v. State, 447 So.2d 834, 836 (Ala.Cr.App.1983). Here, the other offenses were also admissible to show the defendant's guilty knowledge, McElroy § 69.01(4), his criminal intent, McElroy § 69.01(5), and to negative any other intent. Howton v. State, 391 So.2d 147, 149 (Ala. Cr.App.1980).
Under Ex parte Killough, 438 So.2d 333 (Ala.1983), these other offenses were both relevant and material to the crime charged. In that case, our Supreme Court held that "[b]id-rigging, bribery, and kickbacks are so unconnected by circumstances with the crime of theft of a portable building that proof of these acts has no bearing on the ultimate issue of guilt and is therefore inadmissible." 438 So.2d at 336. Here, the evidence is not subject to the relevancy flaw of Killough. "[B]ecause the unintentional doing of an act is abnormal and unusual, the more a person does other acts similar to the act in question, the greater the likelihood that the act in question was not done inadvertently." McElroy § 69.-01(5). Here, the charged offense and the other crimes had "`such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.' Wigmore on Evidence, § 304 (3rd ed. 1972)." Mayberry v. State, 419 So.2d 262, 268 (Ala.Cr.App. 1982). See also Royal, supra.
The basis for the evidentiary rule excluding evidence of the accused's commission of crimes not charged in the indictment "lies in the belief that the prejudicial effect of prior crimes will far outweigh any probative value that might be gained from them." McElroy at § 69.01(1). Consequently, not only must it be determined that the other offenses are material and relevant to an issue other than the character of the accused and fall within an exception to the exclusionary rule, but the probative *1374 value must not be substantially outweighed by undue prejudice.
"Judicial inquiry does not end with a determination that the evidence of another crime is relevant and probative of a necessary element of the charged offense. It does not suffice simply to see if the evidence is capable of being fitted within an exception to the rule. Rather, a balancing test must be applied. The evidence of another similar crime must not only be relevant, it must also be reasonably necessary to the government's case, and it must be plain, clear, and conclusive, before its probative value will be held to outweigh its potential prejudicial effects." United States v. Turquitt, 557 F.2d 464, 468-69 (5th Cir. 1977) (citations omitted).
However, it is "only when the probative value of evidence is `substantially outweighed by the danger of unfair prejudice,'... that relevant evidence should be excluded." United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir.1982) (emphasis in original). "[T]he probative value of the evidence of other offenses must also be balanced against its `prejudicial nature' to determine its admissibility. `Prejudicial' is used in this phrase to limit the introduction of probative evidence of prior misconduct only when it is unduly and unfairly prejudicial." State v. Daigle, 440 So.2d 230, 235 (La.Ct.App.1983).
"Of course, `prejudice, in this context, means more than simply damage to the opponent's cause. A party's case is always damaged by evidence that the facts are contrary to his contention; but that cannot be ground for exclusion. What is meant here is an undue tendency to move the tribunal to decide on an improper basis, commonly, though not always, an emotional one.' State v. Hurd, Me., 360 A.2d 525, 527 n. 5 (1976), quoting McCormick, Handbook on the Law of Evidence § 185 at 439 n. 31 (2nd ed. 1972)."
State v. Forbes, 445 A.2d 8, 12 (Me.1982).
There was no abuse of discretion by the trial court in admitting the evidence of similar offenses.
"[W]hen the evidence shows a common scheme or plan and the similarities between the two offenses are so numerous and distinctive that the evidence has great probative value, the fact that it leads inexorably to the logical conclusion that if the defendant committed the one crime he also committed the other, does not constitute `prejudice' but rather proper overwhelming proof of guilt. (People v. Haslouer, supra, 79 Cal.App.3d [818] at pp. 824-829, 145 Cal.Rptr. 234 [(1978)].)" People v. Rance, 106 Cal. App.3d 245, 164 Cal.Rptr. 822, 825 (1980).
II
The trial court did not err in refusing to sever the separate counts of the indictment. The defendant was indicted and tried before the effective date of Rule 15.3, A.R.Cr.P.Temp., providing for the joinder and severance of offenses in the indictment.
Before the effective date of Rule 15.3, the rule was "well established in this state, that when the offenses are of the same general nature, and belong to the same family of crimes, if the mode of trial and the nature of punishment are the same, there may be a joinder of them in separate counts" of the same indictment. Key v. State, 55 Ala.App. 232, 235-36, 314 So.2d 307, cert. denied, Ex parte Key, 294 Ala. 762, 314 So.2d 312 (1975). See also Harger v. State, 54 Ala.App. 242, 244, 307 So.2d 51 (1974).
The defendant's allegation that he was prejudiced and denied a fair trial by the joinder was answered in United States v. Thomas, 610 F.2d 1166, 1169 (3d Cir.1979). If each count of the indictment had been severed and the defendant tried separately for each count, evidence of the theft involved in each of the remaining fourteen counts would have been admissible at each of his fifteen trials. See Part I of this opinion. Consequently, the defendant could not have been unfairly prejudiced by any "`corroborative effect' of the joint introduction of evidence regarding the crimes *1375 alleged in the [fifteen] counts of the indictment." Thomas, 610 F.2d at 1169.
"[J]oinder is the rule rather than the exception and ... the burden is on the defendant in his appeal following denial of the motion to sever to show that joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy and compelled exercise of the court's discretion to sever." United States v. Armstrong, 621 F.2d 951, 954 (9th Cir. 1980). Here, no prejudice has been shown.
III
The defendant contends that the State attempted to prove embezzlement, which falls within subsection (2) of § 13A-8-2 defining as theft one who "[k]nowingly obtains by deception control over the property of another, with intent to deprive the owner of his property." The defendant was indicted under subsection (1) of § 13A-8-2 defining theft of property as one who "[k]nowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his property."
The term "obtains", "exerts control", or "obtains or exerts unauthorized control" over property is defined by Alabama Code 1975, § 13A-8-1(7) and "includes but is not necessarily limited to conduct heretofore defined or known as common law ... embezzlement,..." The commentary to Alabama's theft statutes makes it clear that embezzlement is now covered under § 13A-8-2(1), while false pretenses falls under § 13A-8-2(2). Commentary to §§ 13A-8-2 through 13A-8-5.
Our review convinces us that the indictment properly charged the defendant for the offense of which he was convicted.
IV
The facts of this case did not warrant a jury charge on theft in the third degree as a lesser included offense. The trial judge stated his reasons to the jury for not charging on theft in the third degree:
"The other thing that the gentleman mentioned was the lesser included charge of theft of property in the third degree. And he would have me call to your attention that third degree theft concerns property, the theft of property which does not exceed $100.00 in value. But given the fact that the gentleman admitted signing all of the checks that went to the Cabana Hotel, and that they were all for $165.00, I didn't think it pertinent to talk about third degree theft. But in any event, that is the definition of third degree theft."
The trial judge was correct in that there was no basis upon which to give instructions for theft in the third degree. For purposes of this case, the difference between theft in the second degree and theft in the third degree is the value of the property involved. Here, the amount of each check was never disputed. That amount, $165, clearly falls into the category of second degree theft and no other. "The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." § 13A-1-9(b), Alabama Code 1975. "Further, `[a] charge on a lesser-included offense should not be given when there is no reasonable theory from the evidence to support such a proposition.' When the evidence clearly shows the appellant is either guilty of the offense charged, or innocent, the charge on a lesser included offense is not necessary or proper. Cooper v. State, 364 So.2d 382 (Ala.Cr.App.), cert. denied, 364 So.2d 388 (Ala.1978)." Daly v. State, 442 So.2d 143, 147 (Ala.Cr.App.1983); Hollins v. State, 415 So.2d 1249, 1253 (Ala.Cr. App.1982); Myers v. State, 401 So.2d 288, 291 (Ala.Cr.App.1981).
V
The trial judge instructed the jury that the State must prove that the defendant "knowingly obtained or exerted unauthorized control or obtained by deception control of properties or monies of the Youth Development." Although the defendant was indicted under subsection (1) *1376 of § 13A-8-2, the trial judge charged the jury on both subsections (1) and (2).
Defense counsel made no objection to this matter either at trial or in his motion for new trial. Any error in instructing the jury on both types of theft defined in § 13A-8-2 is not preserved for review. Rule 14, A.R.Cr.P.Temp. See Ex parte Allen, 414 So.2d 993 (Ala.1982). "Ordinarily, under Rule 14, the burden is on the defendant to apprise the trial judge of his objections to the oral charge, stating his grounds, before the jury retires.... To state the obvious, the defendant must listen to the oral charge and object to its deficiencies afterwards." Ex parte Curry 471 So.2d 476 (Ala.1984) (Justice Beatty concurring specially). "Matters not objected to at the trial level cannot be considered for the first time on appeal." Moore v. State, 415 So.2d 1210, 1217 (Ala.Cr.App.), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982) (failure to object to charge on reckless murder where the accused was only indicted for intentional murder).
The defendant received a fair trial. The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.
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Filed 7/23/14 P. v. Gonzalez CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). The 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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G048579
v. (Super. Ct. No. 12CF2735)
SAMUEL GONZALEZ, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson. Affirmed.
Cara DeVito, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and
Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Samuel Gonzalez of multiple counts of felony
and misdemeanor false imprisonment (Pen. Code, §§ 236, 237; all statutory references
are to the Penal Code unless noted), battery on a peace officer (§ 243, subd. (b)), carrying
a dirk or dagger (§ 21310), and resisting and deterring an executive officer (§ 69). The
jury found he committed the offenses for the benefit of a criminal street gang (§ 186.22,
subds. (b), (d)). Gonzalez admitted he previously had suffered two prior convictions
under the Three Strike law (§ 667, subds. (d) & (e)(2)(A); § 1170.12, subds. (b) &
(c)(2)(A)), a serious felony prior conviction (§ 667, subd. (a)(l)), and served a prison term
(§ 667.5, subd. (b)). Gonzalez challenges the sufficiency of the evidence to support the
false imprisonment convictions and the gang enhancements. He also contends the trial
court committed instructional error, and that it coerced the verdict. We affirm.
I
FACTS AND PROCEDURAL BACKGROUND
On September 13, 2013, Santa Ana Police Officers Luis Galeana and Gil
Hernandez spotted Gonzalez walking down Bristol Street. Gonzalez made eye contact
with the officers, grabbed his waistband, and ran. The officers pursued Gonzalez because
Galeana suspected Gonzalez had a weapon in his waistband. Gonzalez scaled a fence
and tossed something aside. Galeana, pursuing on foot, caught up with Gonzalez and
ordered him to lie down on his stomach, but Gonzalez punched and kicked Galeana. He
then fled, jumping over another fence and discarding a dagger.
Gonzalez made his way into Maria B.’s home through an unlocked sliding
glass door. Maria lived with her husband, two children (Fabian B., age 11, and Julianna
B., age 4), her mother and father (Beatriz A. and Enrique A.), and a cousin (Victor C.,
age 19). Maria first noticed Gonzalez as she huddled by her front door with Fabian,
Julianna, and Beatriz after Fabian screamed there was a man inside the house. Maria felt
afraid because Gonzalez, who was on his hands and knees and breathing hard, looked like
2
a gang member based on his baggy clothes and shaved head. Fabian tried to open the
door to flee, but Gonzalez said, “nobody open.” Beatriz kept Fabian from leaving the
home.
Maria asked Gonzalez why he was in her home. He responded he had been
walking with his girlfriend when police officers began hitting him. Gonzalez blocked
Maria when she tried to go out through the side door, declaring, “No, you can’t go
nowhere. You need to shut up and hide me.” Gonzalez had locked the back door when
he first entered. He never physically touched Maria and pleaded for her help, using the
Spanish word for “please.”
Victor emerged from the bathroom and saw Gonzalez. Gonzalez ordered
him not to open the door for the police. Victor retreated to his bedroom and alerted a
police officer who stood outside his window that Gonzalez was inside the residence.
Maria and Gonzalez remained in the kitchen while Beatriz took Fabian and
Julianna to her bedroom. Beatrice told Enrique about the intruder and ordered the
children to hide under the bed. Enrique, who suffered from diabetes and blindness,
remained on the bed. Beatriz locked her bedroom door before going back to the living
room.
Gonzalez took Maria to the garage. Beatriz opened the front door and
signaled to the police for help. She refused to step outside despite police requests to do
so. The police entered the home and confronted Gonzalez, who kicked and threw
punches at the officers as they subdued him.
Following trial in April 2013, the jury convicted Gonzalez as noted above.
In June 2013, the court sentenced Gonzalez to 30 years to life in prison.
3
II
DISCUSSION
A. Substantial Evidence Supports Gonzalez’s Convictions for Misdemeanor False
Imprisonment of Enrique (Count 1) and Julianna (Count 6)
The jury convicted Gonzalez of falsely imprisoning Enrique (count 1) and
Julianna (count 6) as lesser included offenses of hostage taking (§ 210.5). He contends
the evidence did not establish he restrained, detained, or confined them, or that his acts
forced them to stay in the house, or go somewhere else in the house against their will.
We “review the whole record in the light most favorable to the judgment
. . . to determine whether it discloses substantial evidence – that is, evidence which is
reasonable, credible, and of solid value – such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557,
578; Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) There is a difference between
no evidence and insufficient evidence; to be sufficient, it must reasonably inspire
confidence.
Section 236 provides, “False imprisonment is the unlawful violation of the
personal liberty of another.” Misdemeanor false imprisonment has two elements: the
defendant intentionally and unlawfully restrained, detained, or confined a person, and
defendant’s act forced that person to stay or go somewhere against that person’s will.
(CALCRIM No. 1242.)
“Any exercise of express or implied force which compels another person to
remain where he does not wish to remain, or to go where he does not wish to go, is false
imprisonment.” (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123 (Bamba).) A
person is liable for false imprisonment when he intentionally commits “an act, the
natural, probable and foreseeable consequence of which is the nonconsensual
confinement of another person.” (People v. Olivencia (1988) 204 Cal.App.3d 1391,
4
1399-1400.) Gonzalez asserts Julianna B. or Enrique A. stayed in the house because
Beatriz A. kept them there, not because he acted to restrain them.
Substantial evidence supports the jury’s conclusion Gonzalez falsely
imprisoned Julianna. His forcible entry into the residence and his command that
everyone remain in the residence resulted in her confinement even if she was too young
to fully comprehend what was occurring. As the Attorney General correctly notes,
misdemeanor false imprisonment is established when a defendant commits an act which
naturally and foreseeably results in the nonconsensual confinement of another person.
(People v. Fernandez (1994) 26 Cal.App.4th 710, 717.) Here, the jury reasonably could
conclude Julianna was confined in the living room, and Beatriz’s removal of the children
to another location in the residence was the natural, probable, and foreseeable
consequence of Gonzalez’s demand they remain in the residence and keep the doors
closed.
Gonzalez also complains “it was not [his] intentional act that caused
Enrique . . . to stay in the house and/or to hide; instead, it was Beatriz[’s] acts that caused
[him] to do so.” Again, misdemeanor false imprisonment is established when a
defendant commits an act which naturally and foreseeably results in the nonconsensual
confinement of another person. The jury reasonably could conclude Enrique was
confined, and Beatriz’s instruction he should stay put was the natural, probable, and
foreseeable consequence of Gonzalez’s demand family members remain in the residence
and keep the doors closed. Substantial evidence supports the jury’s conclusion Gonzalez
falsely imprisoned Enrique.
B. Substantial Evidence Supports Gonzalez’s Convictions for Felony False
Imprisonment of Maria, Beatriz, and Fabian
False imprisonment is elevated to a felony when a person confines or
restrains another by “violence, menace, fraud or deceit.” (§ 237, subd. (a).) The issue
5
here is whether Gonzalez employed “menace” in confining Maria, Beatriz, and Fabian.
Menace means “‘“a threat of harm express or implied by word or act.”’” (Bamba, supra,
58 Cal.App.4th at p. 1123.) An “express or implied threat of harm does not require the
use of a deadly weapon or an express verbal threat to do additional harm. Threats can be
exhibited in a myriad number of ways, verbally and by conduct.” (People v. Aispuro
(2007) 157 Cal.App.4th 1509, 1513 (Aispuro); see CALCRIM No. 1240.)
Gonzalez argues he did not verbally threaten harm to any of the people in
the house, he did not act in a hostile manner, never told the adults he would harm them or
the children, and on several instances begged Maria and Victor to either help him, or at
least not let the police apprehend him, using the word “please” when asking for their
help.
Here, the family lived in an area plagued by gangs, and Gonzalez appeared
to be a gang member. Gonzalez barged into the home, demanded and directed various
family members remain in the residence and hide him from pursuing police officers. He
prevented Maria from leaving, and repeatedly ordered her to “shut up.” Based on
Gonzalez’s appearance and aggressive conduct, Maria believed Gonzalez was a gang
member and possibly armed. Maria and Beatriz testified they were frightened. Fabian,
11 years old at the time, was shaking and almost in tears. Based on the foregoing, the
jury reasonably could conclude Gonzalez’s presence and actions in the family’s home
carried an implied threat of harm. Substantial evidence therefore supports the
convictions for felony false imprisonment of Maria, Beatriz, and Fabian. (See People v.
Islas (2012) 210 Cal.App.4th 116, 126-127 (Islas) [substantial evidence supported
conviction of false imprisonment by menace where family heard police activity outside
their apartment building, noticed the defendants were in their home, defendants looked
like gang members, defendants signaled for the terrified family to be quiet and to hide
them, and apartment building was within area claimed by defendants’ gang].)
6
Gonzalez’s reliance on People v. Matian (1995) 35 Cal.App.4th 480 is
misplaced. There, the defendant sexually assaulted the victim by squeezing her breast
hard enough to cause pain and possibly bruising. As she prepared to leave, he grabbed
her arm and yelled at her not to leave. (Id. at p. 485.) He told her to wash her face, and
she retreated to a chair while he went into a nearby office within view of her. Each time
she got up from her chair, he glared at her and stood up out of his chair to approach her.
She testified she was afraid, did not want him to touch her again and sat back down. The
appellate court held there was insufficient evidence of menace because the defendant did
not use a deadly weapon, verbally threaten additional physical harm, or make threatening
movements each time she got out of the chair to leave. (Ibid.) We agree with the cases
that disagree with Matian on the law, and on its application to the facts of that case.
(Islas, supra, 210 Cal.App.4th at pp. 125-126; People v. Wardell (2008) 162 Cal.App.4th
1484, 1491; Aispuro, supra, 157 Cal.App.4th at p. 1513; People v. Castro (2006) 138
Cal.App.4th 137, 143.) As noted by Aispuro, “[t]hreats can be exhibited in a myriad
number of ways, verbally and by conduct” (Aispuro, at p. 1513) and “a jury properly may
consider a victim’s fear in determining whether the defendant expressly or impliedly
threatened harm” (Islas, at p. 127.) Viewed in the light most favorable to the judgment,
the jury here reasonably could infer Gonzalez’s actions, demeanor, and statements
conveyed an implied threat of harm should his victims attempt to flee.
C. The Trial Court Did Not Coerce the Verdict
At 3:50 p.m. on the second day of deliberations, after the jury had
deliberated eight hours in total over two days, the jury sent a note to the court stating,
“[t]he members of the jury feel that further deliberation will not result in a different
outcome for [counts] 1, 3, 4, 5, and 6,” the hostage taking and false imprisonment counts.
Defense counsel urged the court to declare a mistrial. The court declined, citing the eight
days spent in trial, the amount of evidence received, and noted that the jury’s
7
deliberations had been delayed while it waited for the court to answer the jury’s inquiries.
The court read an instruction (CALCRIM No. 3551)1 urging the jury to continue their
deliberations and, because it was 4:28 p.m. on a Friday afternoon, allowed the jurors to
leave for the day, ordering them to return Monday morning. The jury deliberated about
two hours on Monday and returned its verdicts.
Gonzalez argues the trial court’s directive to the jury to resume
deliberations after it advised the court further deliberations would not result in a different
outcome improperly pressured the jurors to reach verdicts. “Here, the jurors . . . were
forced to return on the following Monday for a third day of deliberations, even after
reporting they were hung and did not believe further deliberations could help. [¶] This
would have sent a very clear signal to the jury that the court wanted them to return
verdicts and would not accept a ‘hung’ jury. The specter of ‘coercion’ thus arises.”
As a threshold matter, Gonzalez forfeited the issue. When the trial court
asked defense counsel if he had any objections, he replied that while he would prefer a
mistrial, he had no legal objection to the court’s course of action. Nothing in the record
suggests the trial court understood the defense had qualms about jury coercion or felt the
1
“‘Sometimes juries that have had difficulty reaching a verdict are able to
resume deliberations and successfully reach a verdict on one or more counts. Please
consider the following suggestions. Do not hesitate to reexamine your own views. Fair
and effective jury deliberations require a frank and forthright exchange of views. Each of
you must decide the case for yourself and form your individual opinion after you have
fully and completely considered all of the evidence with your fellow jurors. It is your
duty as jurors to deliberate with the goal of reaching a verdict if you can do so without
surrendering your individual judgment. Do not change your position just because it
differs from that of other jurors or just because you or others want to reach a verdict.
Both the People and the Defendant are entitled to the individual judgment of each juror. It
is up to you to decide how to conduct your deliberations. You may want to consider new
approaches in order to get a fresh perspective. Let me know whether I can do anything to
help you further, such as give additional instructions or clarify instructions I have already
given you. Please continue your deliberations at this time. If you wish to communicate
with me further, please do so in writing using the form my bailiff has given you.’”
8
court was pressuring the jury. Counsel’s failure to object in the trial court forfeited the
issue on appeal. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1038 [due
process coercion claim forfeited by defense counsel’s failure to object]; People v.
Cain (1995) 10 Cal.4th 1, 55 [defendant’s failure to object forfeited claim the trial court’s
remarks directed a verdict].)
In any event, the claim fails on the merits, as we see nothing in the court’s
remarks that a reasonable juror would interpret as coercing a verdict. Section 1140
provides, “‘[e]xcept as provided by law, the jury cannot be discharged . . . until they have
agreed upon their verdict . . . unless, . . . at the expiration of such time as the court may
deem proper, it satisfactorily appears that there is no reasonable probability that the jury
can agree.’” (People v. Valdez (2012) 55 Cal.4th 82, 159.) The trial court has discretion
to determine whether a reasonable probability of agreement exists. (Ibid.) “The court
must exercise its power, however, without coercion of the jury, so as to avoid displacing
the jury’s independent judgment ‘in favor of considerations of compromise and
expediency.’” (People v. Rodriguez (1986) 42 Cal.3d 730, 775, quoting People v. Carter
(1977) 68 Cal.2d 810, 817 (Carter).) Gonzalez’s reliance on Carter is unavailing.
There, the trial court refused to give the jury the additional time it requested to deliberate,
told the jury the evidence was not complicated, and admonished the jury it would be
locked up for the night if no decision was reached within half an hour. (Carter, at
pp. 819-820.) It was this behavior, not the directive to deliberate further, which led the
appellate court to find an abuse of discretion.
Gonzalez argues we should infer the court coerced the jury because they
quickly returned verdicts after reconvening on Monday, and the inconsistencies in the
verdicts showed they were arrived at in haste. With respect to the speed of deliberations,
Gonzalez points to People v. Crowley (1950) 101 Cal.App.2d 71, where the court
reversed a verdict that was reached a half hour after the trial court further instructed the
9
jury. Crowley does not support Gonzalez’s argument. As in Carter, the court threatened
to lock up the jury for the night if they failed to reach a verdict. (Crowley, supra, at
p. 79.) The present case is more like People v. Sandoval (1992) 4 Cal.4th 155, where the
appellate court found no coercion when the trial court ordered deliberations to continue
even though the jury already had conducted lengthy deliberations, advised the court it
could not reach a verdict, and the jurors stated there was no reasonable possibility of a
verdict with further deliberations. (Id. at p. 195; see People v. Rodriguez, supra,
42 Cal.3d at p. 775 [no abuse of discretion in requiring the jury to continue deliberating
after it declared itself unable to reach a verdict following 18 days of deliberation].)
Contrary to Gonzalez’s claim, purported inconsistencies in the verdict do
not necessarily suggest jury compromises. A plausible reason the jury returned felony
convictions for Gonzalez’s false imprisonment of Maria, Beatriz, and Fabian, but not
Julianna and Enrique, is that the latter two were not afraid of him: Julianna was too
young to know what was going on, and Enrique never had contact with Gonzalez.
Moreover, the jury may have acquitted Gonzalez on the count related to Victor because
he did not verbally detain Victor. We discern no abuse of discretion in continuing
deliberations another day.
D. West Myrtle’s Primary Activities
Gonzalez challenges the sufficiency of the evidence to support the jury’s
finding on the gang enhancement. Gonzalez contends no substantial evidence supports
the gang expert’s opinion West Myrtle’s primary activities included the sale of narcotics
and the illegal possession of weapons. We do not find Gonzalez’s contention persuasive.
Section 186.22, subdivisions (b) and (d), create an enhancement for “[a]ny
person who is convicted of” specified crimes “committed for the benefit of, at the
direction of, or in association with any criminal street gang, with the specific intent to
promote, further, or assist in any criminal conduct by gang members . . . .” A “‘criminal
10
street gang’ means any ongoing organization, association, or group of three or more
persons, whether formal or informal, having as one of its primary activities the
commission of one or more of the criminal acts enumerated in paragraphs (1) to (25),
inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or
common identifying sign or symbol, and whose members individually or collectively
engage in or have engaged in a pattern of criminal gang activity.” (§ 186.22, subd. (f),
italics added; § 186.22, subd. (e)(1)-(25), (31)-(33) [enumerated crimes include sale,
possession for sale, transportation, manufacture, offer for sale, or offer to manufacture
controlled substances; prohibited sale, delivery, transfer or possession of firearms; theft
and unlawful taking or driving of a vehicle].) The phrase “primary activities” as used in
the gang statute means that one of the group’s “‘chief’” or “‘principal’” occupations is
the commission of one or more statutorily enumerated crimes. (People v. Sengpadychith
(2001) 26 Cal.4th 316, 323 (Sengpadychith).) “Sufficient proof of the gang’s primary
activities might consist of evidence that the group’s members consistently and repeatedly
have committed criminal activity listed in the gang statute.” (Id. at p. 324.)2
Detective Dominick Padilla testified as a gang expert at trial. According to
Padilla, West Myrtle is one of the most active criminal street gangs in Santa Ana, with
about 150 members and numerous rivals. Padilla had been involved in more than 15
investigations of West Myrtle, and had arrested several of its members. Padilla declared
West Myrtle was a criminal street gang whose primary activities included illegal
possession of weapons and sales of narcotics. He based his opinion on “speaking to
members of the West Myrtle street gang, reviewing police reports regarding activity in
that area, and speaking to members in the community, as well as senior investigators and
2
Here, the trial court instructed the jury it was required to find West Myrtle’s
primary activities included commission of “possession for sale of a controlled substance,
possession of a firearm by a prohibited person, or carrying a loaded firearm in violation
of Penal Code section 12031.”
11
detectives in the gang investigations division.” He also provided three examples of West
Myrtle gang members suffering convictions, specifically naming one West Myrtle gang
member who suffered a conviction for possession of a controlled substance, another who
suffered convictions for firearms violations, and Gonzalez’s prior convictions in 2010 for
two separate firearms violations. Padilla testified officers provided Street Terrorism
Enforcement and Prevention (STEP) notice to Gonzalez before the current incident and
Gonzalez admitting “knowing that the gang is known for committing grand theft auto,
GTA, weapon violations and sales of narcotics . . . .”
In Sengpadychith, supra, 26 Cal.4th 316, the Supreme Court stated the
prosecution could satisfy the “primary activities” element by expert testimony of the type
found in People v. Gardeley (1996) 14 Cal.4th 605 (Gardeley), where a police gang
expert testified the defendant’s gang “was primarily engaged in the sale of narcotics and
witness intimidation.” (Sengpadychith, supra, at p. 324.) As the court explained, a gang
expert may give opinion testimony based upon hearsay, including conversations with
gang members and the defendant (Gardeley, supra, at p. 620 [expert based opinion on
conversations with the defendants and with other Family Crip members, his personal
investigations of hundreds of crimes committed by gang members, and information from
his colleagues and various law enforcement agencies]). The court also permitted an
expert to rely on his or her personal investigation of past crimes by gang members and
information about gangs learned from the expert’s colleagues, or from other law
enforcement agencies. (Sengpadychith, supra, at p. 324.)
Gonzalez acknowledges “Padilla did offer his opinion that West Myrtle’s
primary activities were narcotics sales and weapons violations.” But he asserts Padilla’s
opinion was based on “conversations with colleagues in his Strike Force, officers from
other divisions and West Myrtle members,” and the trial court expressly instructed the
jury it could not consider those statements as proof that the information contained in the
12
statements was true. During Padilla’s testimony, the court provided the following
instruction: “As Detective Padilla has done, and as he may continue to do, he has
testified and may testify throughout the remaining portion of his testimony that in
reaching his conclusions as an expert witness he considered statements and police reports
made by other law enforcement officers. [¶] You may consider those statements
contained in those police reports and those statements from those other law enforcement
officers only to evaluate the expert’s opinion. Do not consider those statements as proof
that the information contained in the statements is true.” Gonzalez argues Padilla did not
personally have sufficient expertise with crimes committed by West Myrtle members to
support his opinion that narcotics sales and weapons violations were among their primary
activities.
The question was whether the jury had sufficient evidence to conclude one
of West Myrtle’s “chief” or “principal” occupations was the commission of one or more
statutorily enumerated crimes. We assume the jury followed the court’s instruction and
did not consider the hearsay statements relied on by the expert as proof the information
contained in those statements was true, but it nevertheless could rely on the expert’s
opinion if it found an adequate basis supported the expert’s testimony. Here, the prior
offenses committed by West Myrtle gang members, including Gonzalez, supported
Padilla’s opinion West Mrytle’s primary activities included illegal possession of weapons
and narcotic sales, as did Gonzalez’s admission that West Myrtle was known to commit
the enumerated offenses.
Gonzalez argues Padilla testified not all of the 100 gang members he spoke
to belonged to West Myrtle, his 50 arrests of gang members involved members of
different gangs, and although he spoke to West Myrtle members about their activities,
“he did not testify what those members told him their activities were.” Of course, the
jury could infer at least some of Padilla’s information about West Myrtle’s activities
13
came from his conversations with West Myrtle members. Gonzalez’s arguments relate to
the weight due Padilla’s opinion, not the sufficiency of evidence on appeal. Nothing
suggests Padilla’s opinion concerning the primary activities prong lacked adequate
foundation.
In re Alexander L. (2007) 149 Cal.App.4th 605 (Alexander L.) provides a
study in contrast. There, the gang expert testified “‘I know they’ve [gang members]
committed quite a few assaults with a deadly weapon, several assaults. I know they’ve
been involved in murders. [¶] I know they’ve been involved with auto thefts,
auto/vehicle burglaries, felony graffiti, narcotic violations.’” (Id. at p. 611.) The
appellate court noted, “No specifics were elicited as to the circumstances of these crimes,
or where, when, or how [the expert] had obtained the information. He did not directly
testify that criminal activities constituted [the gang’s] primary activities. Indeed, on
cross-examination, [he] testified that the vast majority of cases connected to [the gang]
that he had run across were graffiti related.” (Id. at pp. 611-612.) The court also
concluded the expert’s testimony lacked adequate foundation. “We cannot know whether
the basis of [his] testimony on this point was reliable, because information establishing
reliability was never elicited from him at trial. It is impossible to tell whether his claimed
knowledge of the gang’s activities might have been based on highly reliable sources, such
as court records of convictions, or entirely unreliable hearsay. [Citation.] [The]
conclusory testimony cannot be considered substantial evidence as to the nature of the
gang’s primary activities.” (Id. at p. 612, fns. omitted.) The court noted the expert’s
knowledge of the gang’s activities could be based on reliable hearsay. (Id. at p. 612,
fn. 3.) The court also determined the expert’s testimony concerning two specific assaults
committed by other gang members did not, taken together and without more, provide
substantial evidence gang members had “consistently and repeatedly” committed
enumerated crimes. (Id. at p. 614, fn. 5 [“two assaults committed in 2004, without more,
14
do not provide substantial evidence that gang members ‘consistently and repeatedly’
committed the crimes enumerated in the statute”]; People v. Perez (2004)
118 Cal.App.4th 151, 160 [retaliatory shootings of individuals over a period of less than a
week combined with a beating six years earlier insufficient]; cf. People v. Vy (2004)
122 Cal.App.4th 1209, 1225-1226 [three violent assaults by gang including current
charge over less than three-month period was sufficient evidence predicate crimes were
one of gang’s primary activities].)
The expert testimony in Alexander L. differed from the expert testimony
here, in at least two important ways. First, the prosecutor in Alexander L. failed to
establish the foundation as to where, when, and how the expert obtained the information
he used to formulate his opinion. (Alexander L., supra, 149 Cal.App.4th at p. 612.)
Consequently, there was no way to know whether the information the expert cited was
reliable. (Ibid.) By contrast, Padilla testified he reviewed police reports and gathered
information from speaking with West Myrtle gang members and officers in the gang
investigations division. Second, the expert in Alexander L., never specifically testified
about the gang’s primary activities, merely stating he knew they had committed certain
crimes. (Id. at p. 611.) By contrast Padilla described three incidents resulting in the
convictions of West Myrtle gang members for weapons violations and the sales of
narcotics, and this coupled with other testimony concerning Padilla’s investigation of
West Myrtle constituted sufficient evidence of the gang’s primary activities. The case at
bar is more properly compared to our decision in People v. Martinez (2008)
158 Cal.App.4th 1324 (Martinez). Here, as in Martinez, Padilla provided sufficient
foundation because he had both training and experience as a gang expert, and he
specifically testified about West Myrtle’s primary activities. (Id. at p. 1330.)
15
E. The Jury Was Not Given Contradictory Instructions Regarding Motive
Gonzalez contends the trial court erred by providing CALCRIM No. 370
without specifying it did not apply to the section 186.22 gang enhancements.3 As given
to the jury, CALCRIM No. 370 provided, “The People are not required to prove that the
defendant had a motive to commit any of the crimes charged. In reaching your verdict
you may, however, consider whether the defendant had a motive. [¶] Having a motive
may be a factor tending to show that the defendant is guilty. Not having a motive may be
a factor tending to show the defendant is not guilty.” (See People v. Hillhouse (2002)
27 Cal.4th 469, 503-504 [motive describes the reason a person chooses to commit a
crime, which is different from a required mental state such as intent or malice].) Gonzalez
argues “contrary to CALCRIM no. 370, motive is an element of the gang
enhancements . . . , and the jury was so instructed. . . .” (See CALCRIM No. 1401 [gang
enhancements required a finding the crimes were committed for the benefit of, at the
direction of, or in association with a criminal street gang, and the defendant intended to
assist, further or promote criminal conduct by gang members]; CALCRIM No. 1403 [jury
could consider evidence of gang activity for limited purpose of deciding whether the
defendant acted with the intent, purpose, and knowledge required to prove the gang-
related enhancements or the defendant “had a motive to commit the crimes charged.”].)
3
We assume Gonzalez did not forfeit his objection to the jury instructions by
failing to raise them at trial. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1192
[defendant cannot complain on appeal that an instruction was too general or incomplete
unless he requested clarifying or amplifying language; People v. Smithey (1999)
20 Cal.4th 936, 976 [defendant need not object to an instruction that incorrectly states the
law and affects his substantial rights].) Gonzalez claims CALCRIM No. 370 incorrectly
states the law because section 186.22 requires the prosecution to prove motive as an
element of the gang enhancements.
16
According to Gonzalez, “[t]he emphasized sections of the statute and instruction
highlight the requisite motive element underlying the accompanying acts. CALCRIM no.
370 therefore erroneously was given without clarification or modification, because it
contradicted CALCRIM no. 1401 and CALCRIM no. 1403.”
By its terms, CALCRIM No. 370 only applies to “the crimes charged,” not
enhancements. Thus, CALCRIM No. 370 did not contradict section 186.22 and
CALCRIM Nos. 1401 and 1403, even if we accept Gonzalez’s dubious assumption
motive is an element of the gang enhancements. People v. Fuentes (2009)
171 Cal.App.4th 1133, rejected the argument Gonzalez raises and held that motive is not
an element of a gang enhancement. As the Fuentes court explained, “[a]n intent to
further criminal gang activity is no more a ‘motive’ in legal terms than is any other
specific intent. We do not call a premeditated murderer’s intent to kill a ‘motive,’ though
his action is motivated by a desire to cause the victim’s death.” (Id. at p. 1139.) The
combined instructions “told the jury [that] the prosecution must prove that [defendant]
intended to further gang activity but need not show what motivated his wish to do so.”
(Id. at pp. 1139-1140.) Accordingly, “[t]his was not ambiguous and there is no reason to
think the jury could not understand it.” (Id. at p. 1140.) Finally, CALCRJM No. 1403,
which told the jury it could consider gang activity evidence in deciding whether “[t]he
defendant had a motive to commit the crimes charged,” does not change the analysis.
The prosecution was not required to prove motive, but the motive instruction correctly
makes clear that “[h]aving a motive may be a factor tending to show the defendant is
guilty.” The prosecution was permitted to argue motive, even though it was not required
to prove it. The trial court did not err.
17
III
DISPOSITION
The judgment is affirmed.
ARONSON, J.
WE CONCUR:
MOORE, ACTING P. J.
FYBEL, J.
18
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IN THE COURT OF APPEALS OF IOWA
No. 16-0932
Filed January 11, 2017
IN THE MATTER OF G.G.,
Alleged to Be Seriously Mentally Impaired,
G.G.,
Respondent-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Magistrate
Edward J. Leff.
G.G. appeals the magistrate’s determination that he was seriously
mentally impaired. AFFIRMED.
Willie E. Townsend, Coralville, for appellant.
Thomas J. Miller, Attorney General, and Gretchen W. Kraemer, Assistant
Attorney General, for appellee State.
Considered by Vogel, P.J., and Vaitheswaran and McDonald, JJ.
2
VOGEL, Presiding Judge.
G.G. is a sixty-six-year-old veteran who was diagnosed with bipolar
disorder and was treated with medication, which stabilized his manic episodes for
approximately twenty years. In 2016, G.G.’s physician told him to “taper off” the
medication. G.G. followed this instruction, but the result was a manic episode.
G.G.’s wife took him to a Veterans Administration hospital. On the way, G.G. got
out of the vehicle when the car stopped. His wife was able to get him back in the
vehicle and to the emergency room, where he was admitted.
A magistrate entered an emergency hospitalization order after finding
probable cause to believe G.G. was seriously mentally impaired and was likely to
injure himself or others if not immediately detained. Following a hearing, the
magistrate determined G.G. was seriously mentally impaired and civilly
committed him to the hospital on an inpatient basis. Four days later, the
magistrate terminated the commitment. G.G. filed an appeal with the district
court. After the matter was set for hearing, the State filed a motion to dismiss.
G.G. resisted, but the court dismissed the appeal on the ground that it was moot.
This appeal followed.
We first address G.G.’s assertion the district court was wrong in
dismissing his appeal as moot. Because the commitment order was terminated,
his appeal to the district court and now his appeal to this court are both, in
essence, moot, but the collateral-consequences exception to the mootness
doctrine permits review of the merits. See In re B.B., 826 N.W.2d 425, 429 (Iowa
2013) (noting the “stigma of mental illness” and concluding “a party who has
3
been adjudicated seriously mentally impaired and involuntarily committed is
presumed to suffer collateral consequences justifying appellate review”).
We turn to the merits of the magistrate’s commitment order. The
magistrate’s findings “are binding on us if supported by substantial evidence.” In
re J.P., 574 N.W.2d 340, 342 (Iowa 1998).
A person is “seriously mentally impaired” if the person has:
mental illness and because of that illness lacks sufficient judgment
to make responsible decisions with respect to the person’s
hospitalization or treatment, and who because of that illness meets
any of the following criteria:
(a) Is likely to physically injure the person’s self or others if
allowed to remain at liberty without treatment;
(b) Is likely to inflict serious emotional injury on members of
the person’s family or others who lack reasonable opportunity to
avoid contact with the person with mental illness if the person with
mental illness is allowed to remain at liberty without treatment;
(c) Is unable to satisfy the person’s needs for nourishment,
clothing, essential medical care, or shelter so that it is likely that the
person will suffer physical injury, physical debilitation, or death.
Iowa Code § 229.1(20) (2016). The definition contains three elements: (1)
mental illness, (2) lack of sufficient judgment, and (3) the criteria labeled (a), (b),
and (c), which encompass the threshold requirement of dangerousness. In re
Oseing, 296 N.W.2d 797, 800-01 (Iowa 1980) (analyzing predecessor statute).
G.G. challenges the sufficiency of the evidence on the second and third
elements. The magistrate found G.G. lacked judgmental capacity in that he was,
“Impaired; currently in manic state and unable to make sound treatment
decisions.” The record supports this finding as G.G. was not medically compliant
until after arriving at the V.A. hospital and refused medication until he was
confronted by security officers. He then accepted his needed medication.
4
The third element, or the “dangerous” prong requires evidence of a “recent
overt act, attempt or threat.” In re Mohr, 383 N.W.2d 539, 542 (Iowa 1986). An
overt act “connotes past aggressive behavior or threats by the respondent
manifesting the probable commission of a dangerous act upon himself or others
that is likely to result in physical injury.” In re Foster, 426 N.W.2d 374, 378 (Iowa
1988). The magistrate found this element satisfied based on G.G.’s “current[]
manic state.” The magistrate also cited G.G.’s “[a]ttempt[] to run away while in
[a] vehicle on [the] way to [the] hospital” and the “[p]olice presence necessary to
get him to take medications upon admission.” Substantial evidence supports this
finding and satisfies the requirement of a recent overt act.
We affirm the civil commitment order.
AFFIRMED.
McDonald, J., concurs; Vaitheswaran, J., dissents.
5
VAITHESWARAN, Judge. (dissenting)
I respectfully dissent.
Mental illness alone does not establish grounds for commitment. In re
J.P., 574 N.W.2d at 343. It follows that mental illness alone cannot serve as the
predicate to a finding of lack of judgment or dangerousness. The “manic
episode” cited in the commitment order was simply a symptom of G.G.’s mental
illness. As for G.G.’s compliance with his medication regimen, he testified he
was “[a]bsolutely” taking his medications and his psychiatrist confirmed he had
been taking his medications as prescribed. As the majority notes, G.G. only
“tapered off” his medication pursuant to his doctor’s orders.
Nor, in my view, does G.G.’s decision to exit the vehicle on his way to the
hospital show dangerousness. As noted, the vehicle was stopped and G.G.’s
wife was able to get him to the emergency room despite this momentary
disruption. Although a psychiatrist testified G.G. was agitated on his arrival, the
only “aggressive” acts she could point to were his failure to follow directions
when he first came in and a police presence to “contain him in his room” because
he was “pacing around the unit.” The psychiatrist acknowledged the officers “did
not physically restrain him.” She also acknowledged she “ha[d not] seen
anything . . . that would make [her] think he’d be a risk to others.” In my view,
this evidence does not constitute substantial evidence to support a finding of
dangerousness.
I would reverse the civil commitment order. This disposition would
essentially resolve G.G.’s additional contention that the magistrate should have
released him to the custody of his wife.
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TAMMY CALLAHAN, No. 16-16755
Plaintiff-Appellant, D.C. No. 3:15-cv-00200-LRH-
WGC
v.
WASHOE COUNTY SCHOOL DISTRICT; MEMORANDUM*
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Tammy Callahan appeals pro se from the district court’s order dismissing
her employment action alleging discrimination in violation of federal and state law,
including the Age Discrimination in Employment Act (“ADEA”). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Fed. R.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Civ. P. 12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010), and we affirm.
The district court properly dismissed Callahan’s ADEA claim as time-
barred. See Laguaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1174 (9th Cir.
1999) (Nevada is a “deferral state” in which claimants have 300 days to institute
proceedings with their state anti-discrimination agency); see also 29 U.S.C.
§ 626(d)(1)(B) (charges under the ADEA “shall be filed . . . within 300 days after
the alleged unlawful practice occurred, or within 30 days after receipt by the
individual of notice of termination of proceedings under State law, whichever is
earlier”).
We reject as without merit Callahan’s contentions regarding judicial
estoppel, laches, the continuing violation doctrine, and ineffective assistance of
counsel.
AFFIRMED.
2 16-16755
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412 F.Supp. 880 (1976)
UNITED STATES of America, Plaintiff,
v.
Patricia Campbell HEARST, Defendant.
Cr. No. 74-364-OJC.
United States District Court, N. D. California.
February 17, 1976.
*881 James L. Browning, Jr., U. S. Atty., F. Steele Langford, David P. Bancroft, Edward P. Davis, Jr., Asst. U. S. Attys., San Francisco, Cal., for the United States.
F. Lee Bailey, J. Albert Johnson, Boston, Mass., Thomas J. May, Brookline, Mass., for defense.
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OF INCRIMINATING STATEMENTS
OLIVER J. CARTER, Chief Judge.
The defendant requested a hearing outside the presence of the jury for a determination by the Court of whether *882 certain incriminating statements made by her subsequent to the time of the offense here charged were voluntary or the product of coercion or duress, irrespective of their truth or falsity. The Court granted such a hearing pursuant to its obligation as defined in Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), and Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This Order constitutes the Court's findings with respect to the question of voluntariness raised in the hearing.
The first of the statements in issue is found on a tape recording of the defendant's voice made on or about April 18, 1974. The speaker identifies herself as "Tania", the name allegedly adopted by the defendant while in the company of her Symbionese Liberation Army captors. If given credence, the statement made on this tape recording would constitute an admission by the defendant of her willing participation in the robbery of the Hibernia Bank on April 15, 1974, for which she is presently standing trial.
The second statement or series of statements were uttered by the defendant on May 16, 1974, to or in the presence of one Thomas Matthews of Lynwood, California, who testified to their contents at the voluntariness hearing. These statements also implicate the defendant as a voluntary participant in the bank robbery.
There has been no allegation, nor any evidence adduced, that the statements in issue were obtained through coercive tactics employed at the behest or suggestion of the Government or any of its agents. In fact, it is simply beyond dispute that the Government was not involved in any fashion in the defendant's making such statements. The defendant's position, then, is that any incriminating statements made by her were the product of coercion or duress applied by members of the SLA, including those who participated with her in the bank robbery. In response the Government argues initially that the coercion issue is not properly presented to the Court in a voluntariness hearing under Rogers v. Richmond and Jackson v. Denno, supra, where it is not alleged that the Government has assisted, directly or indirectly, in obtaining incriminating statements from the defendant.
A number of cases have held that the safeguards of the Fifth Amendment against self-incrimination, as enforced by the exclusionary rule, extend so far as to render inadmissible against a defendant in a criminal trial incriminating statements involuntarily made by that defendant to a private individual. E. g., United States v. Brown, 466 F.2d 493 (10th Cir. 1972); United States v. Robinson, 142 U.S.App.D.C. 43, 439 F.2d 553 (1970); Evalt v. United States, 359 F.2d 534 (9th Cir. 1966). In most of these cases, however, including each of those just cited, the coercion was administered by persons who, although private citizens, either acted upon the instigation of law enforcement agents or were so closely allied with public law enforcement agencies in their individual functions as to have become for practical purposes proxies for the Government.
The Supreme Court has not addressed the precise question whether a confession or admission of guilt wrenched involuntarily from an accused person by private individuals acting on their own behalf must be denied admission into evidence for violation of the accused's rights under the Fifth Amendment. Arguably, the Court's position on this issue is implicit in an early case, Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), wherein it is intimated, in dictum, that coerced confessions, "whether made upon an official examination or in discourse with private persons," are not admissible evidence. Id. at 547, 18 S.Ct. at 188, 42 L.Ed. at 575, quoting Hawkins' Pleas of the Crown, ch. 46, sec. 3 (6th ed. 1787).
In two recent state court opinions, however, the question of private coercion unattended by state involvement has been considered, and evidence so obtained ruled inadmissible. People v. Haydel, 12 Cal.3d 190, 115 Cal.Rptr. 394, 524 P.2d *883 866 (1974); Commonwealth v. Mahnke, Mass., 335 N.E.2d 660 (1975). In Mahnke the defendant had been kidnapped and terrorized by a band of local citizens, who forced him to confess to the murder of a young girl in the community. After reviewing state and federal authorities on the issue of coerced confessions, the Massachusetts court said:
Underlying the above-cited decisions . . . is the fundamental recognition that a statement obtained through coercion and introduced at trial is every bit as offensive to civilized standards of adjudication when the coercion flows from private hands as when official depredations elicit a confession. Statements extracted by a howling lynch mob or a lawless private pack of vigilantes from a terrorized, pliable suspect are repugnant to due process mandates of fundamental fairness and protection against compulsory self-incrimination. (335 N.E.2d at 672).
This Court finds the reasoning behind the above-quoted statement compelling, particularly in light of the Fifth Amendment's purpose of discouraging all attempts by the state to advantage itself in criminal prosecutions at the expense of the accused's fundamental right to remain silent and refuse to incriminate himself in the face of any would-be interrogator, private or official. See United States v. Tarlowski, 305 F.Supp. 112, 118-19 (E.D.N.Y.1969).
Having concluded, then, that the statements made by the defendant in this case are subject to suppression under a Constitutional claim of involuntariness, it is the Court's duty next to decide whether such statements in fact were made involuntarily. To make such a determination, the Court must examine all of the attendant circumstances, Haynes v. Washington, 373 U.S. 503, 513-14 n. 10, 83 S.Ct. 1336, 1342-1344, 10 L.Ed.2d 513, 520-521 (1963), and cases cited; if the statements or confessions are to be admitted into evidence at trial, the Court must be satisfied by a preponderance of the evidence adduced at the hearing that they were made voluntarily, Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); United States v. Cluchette, 465 F.2d 749, 754 (9th Cir. 1972).
Initially the Court has determined that the defendant's version of the facts, if true, "would require the conclusion that [her] confession was involuntary." Procunier v. Atchley, 400 U.S. 446, 451, 91 S.Ct. 485, 488, 27 L.Ed.2d 524, 529 (1971). By a preponderance of the evidence, however, the Court finds that the Government has carried its burden[1] of showing that the defendant's statements written, tape recorded, and made orally to Tom Matthews were voluntary.
It should be stated at the outset that the factual question presented here is a close one, involving, as it does, the weighing of testimony offered by both parties which is largely uncontradicted but from which countervailing inferences may be drawn. The Court's finding is simply that when the testimony of the defendant is balanced against that of the Government's key witnesses on this matter, Tom Matthews and Anthony Shepard, neither of whom had any apparent motive for failing to tell the truth, it appears more likely than not that the statements in issue were voluntary. The jury, of course, will be instructed to disregard any "confession" or other incriminating statements made by the defendant unless they find such statements to be voluntary beyond a reasonable doubt. This instruction was given approval by the Supreme Court in Jackson v. Denno, supra.
*884 Turning to the evidence presented at the hearing, the defendant testified that although it was her own voice recorded on the April 18th tape that implicated her as a willing participant in the bank robbery, both the substance of the message and the words used were supplied by Angela Atwood, one of her captors. Just as the SLA forced her to make this tape recording, the defendant testified, so did their power over her, as later exercised by Bill and Emily Harris, compel her to boast of her accomplishments as a bank robber to Tom Matthews. Matthews testified, however, that the defendant "matter-of-factly," and without apparent compulsion or suggestion by either of the Harrises, described her role in the robbery as a voluntary one performed in the company of individuals, once her feared kidnappers, but to whom she now referred as "comrades."
Perhaps more damaging to the defendant's credibility in this respect was the testimony of Anthony Shepard, the store clerk at Mel's Sporting Goods whose attempt to arrest Bill Harris for shoplifting was thwarted by a burst of gunfire, the responsibility for which was admitted by the defendant on cross-examination. That the defendant was armed and alone in the van from which the shots were fired that "rescued" the Harrises there is no dispute. Although Shepard's identification of the defendant as the unaccompanied person who later approached him carrying a weapon at the port arms position was less than positive, his certainty that this person was neither of the Harrises left little doubt that it was the defendant. None of these accounts is consistent with the defendant's claim that her acts and words subsequent to the bank robbery were the product of coercion.
In addition, on cross-examination the defendant's own testimony concerning the events subsequent to the May 17, 1974, "shootout" in Los Angeles evidenced the relative freedom she enjoyed while in the company of her erstwhile captors, the Harrises. Admitting the fact that during this time she once traveled from Pennsylvania to California unaccompanied by either of the Harrises but with one Jack Scott who was unarmed, the defendant's only answer to why she did not try to escape her new escort was, "Where would I have gone?" Such testimony does not satisfy the Court that the defendant was, as she claims to have been, a prisoner whose every move was made under the watchful eyes of her captors.
The defendant also argues that whatever relevance the events in Los Angeles on May 16, 1974, may have to the question of her guilt or innocence in the Hibernia Bank robbery is outweighed by the prejudicial effect such evidence of other crimes not the subject of this trial will have upon the jury should they be allowed to hear it. The Court finds this argument untenable under the circumstances of this case. Some of the evidence offered at the hearing tends to demonstrate the accused's possession of and proficiency with a weapon which could have been used in the commission of the bank robbery one month earlier. Such evidence is admissible where the crime charged involves the use of a dangerous weapon and there is other evidence that such a crime has been committed and the defendant has been identified as having been at or near the scene of that crime. United States v. Walters, 477 F.2d 386, 388-89 (9th Cir. 1973), cert. denied, 414 U.S. 1007, 94 S.Ct. 368, 38 L.Ed.2d 245 (1974).
Furthermore, it has long been the rule in this and other circuits that "[r]elevant evidence which tends to prove a material fact in the case on trial is admissible even though it incidentally shows that the accused committed another offense at a different time and place." Fernandez v. United States, 329 F.2d 899, 908 (9th Cir.), cert. denied, 379 U.S. 832, 85 S.Ct. 62, 13 L.Ed.2d 40 (1964). See also United States v. Grammer, 513 F.2d 673 (9th Cir. 1975); Hill v. United States, 363 F.2d 176 (5th Cir. 1966); Anthony v. United States, 256 F.2d 50, 53 (9th Cir. 1958). This rule has since been incorporated *885 into the Federal Rules of Evidence, Rule 404(b), which provides that although evidence of other crimes or wrongful acts may not be admitted as evidence of the defendant's bad character or propensity to commit crimes, "[i]t may . . . be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
In this case, intent is the critical issue. All of the defendant's statements here in issue and all of the deeds which may incidentally implicate her in other crimes for which she is not now on trial are relevant to her intent at the time of the bank robbery. Each has considerable bearing on the question of coercion, which is the principal point of contention in this lawsuit. None is too remote in time from the offense charged to detract from its relevance. Almost by definition relevant evidence offered against one accused of a crime is prejudicial, but in this instance the Court finds the probative value of the evidence in question to outweigh its prejudicial effect.
There remains but one point to consider. Defense counsel, in his closing argument, suggested that the Court should rule evidence of the defendant's statements inadmissible because to do otherwise would only encourage other terrorist groups to emulate the SLA's tactics and force their kidnap victims to participate in "show" crimes, after which these victims would be further compelled to boast publicly of their participation and "conversion" to the terrorist faith. While there is no gainsaying this disturbing possibility, it is nevertheless the duty of this Court to decide the issues before it on the evidence and not on mere speculation. The adverse repercussions warned against by counsel for the defense have no evidentiary basis with respect to this hearing and are simply not germane to the issues the Court must decide.
Accordingly, based upon a review of the evidence heretofore offered in open court, it is the opinion of this Court that the Government has established by a preponderance of the evidence that the statements made by the defendant, following the occurrence of the bank robbery on April 15, 1974, whether by tape recording, or by oral communication, or by writing, were made voluntarily.
IT IS THEREFORE ORDERED that the defendant's motion to suppress such statements be, and the same is hereby, denied.
NOTES
[1] The Government, in its closing argument, has suggested that the burden of proof in this instance should rest with the defendant, since the statements obtained were not tainted by Government involvement. A consideration of this novel argument is unnecessary in view of the Court's finding of voluntariness by a preponderance of the evidence. Suffice it to say that neither the Government nor the Court has been able to unearth any authority for the defendant's ever having to bear the burden of proof in a voluntariness hearing.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 10, 2012
JOHNNY WAYNE BEARD v. STATE OF TENNESSEE
Appeal from the Circuit Court for Tipton County
No. 6200 Joseph H. Walker, Judge
No. W2011-00800-CCA-R3-PC - Filed March 20, 2012
The petitioner, Johnny Wayne Beard, appeals the denial of his petition for post-conviction
relief from his rape of a child conviction, arguing he received the ineffective assistance of
counsel which caused him to enter an unknowing and involuntary guilty plea. After review,
we affirm the lower court’s denial of post-conviction relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
A LAN E. G LENN, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
J OHN E VERETT W ILLIAMS, JJ., joined.
Andrea D. Sipes, Jackson, Tennessee (on appeal); and Mark E. Davidson, Covington,
Tennessee (at hearing), for the appellant, Johnny Wayne Beard.
Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Senior Counsel; D.
Michael Dunavant, District Attorney General; and Jason Poyner, Assistant District Attorney
General, for the appellee, State of Tennessee.
OPINION
FACTS
On July 9, 2009, the petitioner pled guilty to rape of a child in exchange for a
sentence of twenty-five years in the Department of Correction. At the guilty plea hearing,
the prosecutor recited the following factual basis for the plea:
This is Case No. 6200, State v. Johnny Wayne Beard. [The petitioner],
through his attorney, [counsel] with the Public Defender’s Office, has come
to a resolution in this case. [The petitioner] was charged in a one count
indictment of rape of a child in Docket No. 6200. [The petitioner] is going to
enter a guilty plea. . . . Upon speaking with the victim and looking at the
forensic interview, there may be other counts from Lauderdale County and
Tipton County. As part of his guilty plea with respect to this victim, the State
has agreed not to indict or prosecute any other count with respect to this
victim upon his guilty plea to this one count of rape of a child. The State
knows of and believes that there’s only one sentence possible on a case like
this. It’s 25 years, 100 percent per the statute.
Had the State gone to trial, they would [have] put on evidence to the
effect that on October 8, 2008, [the petitioner] was babysitting his children at
their mother’s home at 316 Boswell Road in Burlison, Tennessee. The mother
was out of town doing a job somewhere else and [the petitioner] had his
children that night. [The petitioner], in his confession or in his statement to
the police, admits to drinking that day and does admit to some sexual contact
with his daughter where he called it a kiss between her legs on her vagina.
The daughter . . . has met with our office and would testify that there
was sexual penetration during that with his mouth on her vagina. Her brother,
his son, also talked to our office and would be able to testify. Though he
didn’t testify or was able to say anything in his forensic interview, he did talk
to . . . myself and would testify that he couldn’t describe the activity but his
dad was between his sister’s legs, that he hit him because he was doing
something bad and ultimately, the son is the one who told the mom the next
day. Like I said earlier, . . . this was some sort of ongoing activity which [the
petitioner] will not be prosecuted on, on his plea to this one count of rape of
a child.
[Counsel] from the Public Defender’s Office would like to make a copy
of the taped confession by Detective Wassel part of the record and has a copy
here and I’ll submit it now as part of the record of this hearing if the Court
will allow and we’ll pass that up now. This is a copy that the State received
from the Sheriff’s Office. This is the copy that was provided to the Public
Defender. The State would have called Detective Wassel to put on the
evidence of the confession by the [petitioner] . . ., would have called the
victim, his daughter -- her initials in the indictment are “JAB”. Her date of
birth was 04/28/98. [The petitioner]’s date of birth is 06/09/74 which would
make this a rape of a child with his age being way in excess of 18 years old
and hers being less than 13 years old at the time of the crime.
-2-
The State would also call the victim to talk about the contact, would
have also called her brother who was a witness to the contact and ultimately
told the mother and this [is] how we ended up in court today.
The petitioner filed a pro se petition for post-conviction relief on May 14, 2010,
alleging that his confession was coerced, that counsel was ineffective, and that his guilty
plea was not knowing and voluntary. Counsel was appointed, and an evidentiary hearing
was conducted on the petition. At the hearing, the petitioner testified that he was pressured
into pleading guilty by counsel. He stated that he first met with counsel on January 20 after
he had been charged with aggravated sexual battery, and counsel “talked [him] into waiving
[his] preliminary [hearing]” by telling him that he would “be waiting in the back of the jail”
six months later if he did not. The petitioner understood the proof against him to consist of
his “statement [to police] saying [he] kissed [his] daughter between the legs.”
The petitioner testified that he was coerced into making the statement because he was
drunk and tired from working all day, and the detectives talked to him for three hours. He
said that he had drunk “six 50-milliliter shots of vodka” when he talked to the police and
that he did not understand what was going on. He admitted an accidental touching of his
daughter but insisted she had her clothes on. However, he and counsel never talked about
his confession or about the proof the State might have against him. Counsel also never had
any conversation with him about suppressing his statement, but he recalled that counsel told
him “it wouldn’t do any good” to file a motion to suppress. The petitioner acknowledged,
however, that counsel evidently filed a motion to suppress.
The petitioner testified that, at the time of his statement to police, he was taking
Prozac for severe depression and slight schizophrenia. He explained that the Prozac
combined with alcohol caused him to have “mental distortion, confusion, [and] lack of
concentration.” However, he never discussed his being on medication and under the
influence with counsel because “[he] never had a chance to bring it up . . . [and] [counsel]
never asked.” Counsel never asked him if he suffered from any mental health problems.
The petitioner said that, during the time he was incarcerated prior to entering the plea, he
was taking “Elavil mixed with Prozac and Amitriptyline.”
The petitioner recalled that counsel brought him an offer from the State for eight
years at eighty-five percent based on the aggravated sexual battery charge, but the petitioner
told counsel that he was innocent. The petitioner thought he would be released if he rejected
the offer. When he next talked to counsel, counsel informed him that he had been charged
with rape of a child and that he “would be getting at least 50 years if [he] didn’t take the 25-
year plea.” Counsel had not informed him, when he rejected the eight-year offer, that he
might be indicted for rape of a child.
-3-
The petitioner testified that he met with counsel for about thirty minutes to discuss
the State’s plea offer on the rape of a child charge, and he decided later that day to take the
offer. He had been in jail for seven months at that point, experiencing “harsh” conditions
and cramped quarters, and was “confused” and did not know what his options were. He and
counsel had had no discussions about going to trial or what his possible defenses might be.
The petitioner testified that, when he actually entered his plea, he did not understand
what was going on due to the medications he was taking that caused him to “see demons[.]”
However, he did not report this to counsel, and counsel did not ask him if he was on any
medication. He said that he pled guilty because he felt he had no other option in that he
would otherwise face a fifty-year sentence.
On cross-examination, the petitioner testified that he had wanted to go to trial and
only pled guilty after he was told he faced a fifty-year sentence. Asked how his case would
have changed had he not waived his preliminary hearing, the petitioner said that he did not
know. The petitioner said that he never mentioned to counsel his being drunk and on
medication when he confessed to the police, explaining that he thought it was the attorney’s
job to ask all the pertinent questions. He insisted that he knew nothing about the
suppression motion and did not recall discussion of such prior to entering his plea. The
petitioner admitted that the transcript of the plea hearing showed that he was advised of his
rights and informed the court that he was satisfied with counsel’s representation.
The petitioner admitted that he knew the original allegation about his crime was
reported by his five-year-old son and that the police “probably” talked to the victim as well.
However, he never asked counsel about what either of them may have told the police. The
petitioner denied being warned when rejecting the eight-year offer that the State would
upgrade the charge to rape of a child. The petitioner said that he was not aware that the
police were investigating an additional charge against him in Lauderdale County. He
admitted that he “wish[ed] [he] had [taken] the eight [year offer].”
Counsel testified that the petitioner was originally charged with aggravated sexual
battery, but was then charged with rape of a child. Counsel filed basic pretrial motions, as
well as a motion to suppress the petitioner’s statement to police. He intended to try and
suppress the petitioner’s statement based on his review of the video interrogation of the
petitioner in which the officers stated on two occasions that they smelled alcohol and asked
the petitioner if he had been drinking. Counsel believed that there was “[s]ome chance” of
success on the motion, which would have meant that the State’s case would have relied
solely on the victim’s testimony and the corroborating testimony of her brother. Counsel did
not personally attempt to interview the victim, but his investigator had tried and been denied
permission by the victim’s mother.
-4-
Counsel testified that he discussed the suppression motion with the petitioner and his
concerns that the petitioner was under the influence during the interrogation. Counsel
informed the petitioner that the “case against us looked a lot worse” if they were
unsuccessful on the motion to suppress. Prior to the suppression hearing, the petitioner
informed counsel that he wanted to accept the State’s offer. The offer the petitioner
accepted was essentially the same sentence he would have received had he gone to trial and
lost, but the State provided that it would not indict the petitioner on an additional charge of
rape of a child in Lauderdale County if he accepted the plea. Counsel was concerned that
the petitioner could be exposed to consecutive sentencing if he rejected the plea and was
convicted on additional charges. Counsel stated that there was no guarantee the State would
have kept the offer on the table had they been unsuccessful at the suppression hearing.
Counsel explained the options to the petitioner and advised him that, in his opinion, it would
be best to hear the motion to suppress before deciding, but he also told the petitioner that it
was his decision to make as to whether he accepted the plea.
Counsel was aware that the petitioner was taking an antidepressant, but he did not
have a mental evaluation performed. Counsel did not know if the petitioner had been on
medication in addition to drinking at the time of his confession. Counsel believed that the
main issue was whether the police had reason to know that the petitioner was impaired when
they were interrogating him. Counsel did not know that the medication the petitioner was
taking caused him to hallucinate.
On cross-examination, counsel testified that he met with the petitioner two or three
times during the period the case was in general sessions court and discussed with him the
proof he knew about at that time, including the petitioner’s confession. The petitioner was
offered an eight-year sentence on the original aggravated sexual battery charge, which
counsel explained to the petitioner. Counsel also explained to the petitioner that he faced
the possibility that the charge would be upgraded to rape because penetration could be
established by mouth to genital contact. Counsel said that any testimony alleging he did not
discuss the motion to suppress with the petitioner, was not aware that the petitioner was
taking Prozac, and was not aware of the petitioner’s concerns about being under the
influence of alcohol or drugs when he gave his confession, was contrary to his recollection.
Counsel testified that he met in order to discuss the motion to suppress with the
petitioner two days before the petitioner ultimately pled guilty. Counsel acknowledged that
the suppression motion he filed was “bare bones” but explained that was his strategy as he
did not see a “point in pre-warning them where [he] was going.” Counsel had conducted
research to support his arguments and was planning to call the two officers to testify if the
State did not. Counsel said that it was the petitioner’s idea to plead guilty instead of
proceeding on the motion to suppress and that he appeared to be mentally coherent and
-5-
aware of the evidence against him. Counsel recalled that the petitioner told him that “he
didn’t want to put his daughter through testimony.” In addition to the times they met when
the case was in general sessions court, counsel met with the petitioner another three or four
times during the period the case was in criminal court.
Following the conclusion of the evidentiary hearing, the post-conviction court entered
an order denying relief, finding that the petitioner understood the significance and
consequences of his plea and was not coerced and that he had not shown any deficiencies
in counsel’s performance or that he was prejudiced.
ANALYSIS
On appeal, the petitioner argues that counsel rendered ineffective assistance, which
caused him to enter an unknowing and involuntary plea. Post-conviction relief “shall be
granted when the conviction or sentence is void or voidable because of the abridgment of
any right guaranteed by the Constitution of Tennessee or the Constitution of the United
States.” Tenn. Code Ann. § 40-30-103 (2006). The petitioner bears the burden of proving
factual allegations by clear and convincing evidence. Id. § 40-30-110(f). When an
evidentiary hearing is held in the post-conviction setting, the findings of fact made by the
court are conclusive on appeal unless the evidence preponderates against them. See Wiley
v. State, 183 S.W.3d 317, 325 (Tenn. 2006). When reviewing factual issues, the appellate
court will not reweigh the evidence and will instead defer to the trial court’s findings as to
the credibility of witnesses or the weight of their testimony. Id. However, review of a trial
court’s application of the law to the facts of the case is de novo, with no presumption of
correctness. See Ruff v. State, 978 S.W.2d 95, 96 (Tenn. 1998). The issue of ineffective
assistance of counsel, which presents mixed questions of fact and law, is reviewed de novo,
with a presumption of correctness given only to the post-conviction court’s findings of fact.
See Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001); Burns v. State, 6 S.W.3d 453, 461
(Tenn. 1999).
I. Ineffective Assistance of Counsel
The petitioner argues that counsel rendered ineffective assistance in failing to
investigate the extent of his intoxication when he made the statements to law enforcement;
advising him to plead guilty prior to the suppression hearing; failing to investigate his
history of mental illness; and failing to investigate the circumstances of the indictment and
allegations surrounding the second offense of rape in Lauderdale County.
The right to effective assistance of counsel is safeguarded by the Constitutions of
both the United States and the State of Tennessee. See U.S. Const. Amend. VI; Tenn.
-6-
Const. art. I, § 9. To establish a claim of ineffective assistance of counsel, the petitioner has
the burden to show both that trial counsel’s performance was deficient and that counsel’s
deficient performance prejudiced the outcome of the proceeding. Strickland v. Washington,
466 U.S. 668, 687 (1984); see State v. Taylor, 968 S.W.2d 900, 905 (Tenn. Crim. App.
1997) (noting that same standard for determining ineffective assistance of counsel that is
applied in federal cases also applies in Tennessee). The Strickland standard is a two-prong
test:
First, the [petitioner] must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the [petitioner] by the Sixth
Amendment. Second, the [petitioner] must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose
result is reliable.
466 U.S. at 687.
The deficient performance prong of the test is satisfied by showing that “counsel’s
acts or omissions were so serious as to fall below an objective standard of reasonableness
under prevailing professional norms.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)
(citing Strickland, 466 U.S. at 688; Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn. 1975)).
The reviewing court must indulge a strong presumption that the conduct of counsel falls
within the range of reasonable professional assistance, see Strickland, 466 U.S. at 690, and
may not second-guess the tactical and strategic choices made by trial counsel unless those
choices were uninformed because of inadequate preparation. See Hellard v. State, 629
S.W.2d 4, 9 (Tenn. 1982). The prejudice prong of the test is satisfied by showing a
reasonable probability, i.e., a “probability sufficient to undermine confidence in the
outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” Strickland, 466 U.S. at 694. In the context of a guilty plea, the
petitioner must show a reasonable probability that were it not for the deficiencies in
counsel’s representation, he would not have pled guilty but would instead have insisted on
proceeding to trial. Hill v. Lockhart, 474 U.S. 52, 59 (1985); House v. State, 44 S.W.3d
508, 516 (Tenn. 2001).
As to the petitioner’s assertion that counsel failed to investigate the extent of his
intoxication when he gave his statement to police and advised him to plead guilty prior to
the suppression hearing, the post-conviction court found that the petitioner admitted that he
did not tell counsel he was intoxicated. Instead, counsel filed the suppression motion based
on what he saw on the video of the interrogation. The court found that the petitioner wanted
-7-
to plead and not go forward on the motion to suppress. The court lastly found that the
petitioner failed to make any showing that he would have been successful at the suppression
hearing.
The record supports these findings by the post-conviction court. Counsel testified
that he discussed the suppression motion with the petitioner and his concerns that the
petitioner was under the influence during the interrogation. Counsel informed the petitioner
that their case would be much weaker if they were unsuccessful on the motion to suppress.
Counsel explained the options to the petitioner and advised him that, in his opinion, it would
be best to hear the motion to suppress before deciding whether to accept the State’s offer.
However, he also told the petitioner that it was his decision to make as to whether he
accepted the plea. The petitioner informed counsel that he wanted to accept the State’s offer
prior to the suppression hearing. The post-conviction court implicitly accredited counsel’s
testimony. Accordingly, we conclude that the petitioner has failed to prove that counsel
performed deficiently in this regard.
With regard to the petitioner’s assertion that counsel failed to investigate his history
of mental illness and the circumstances of the indictment and allegations surrounding the
second offense of rape in Lauderdale County, the post-conviction court found that the
petitioner failed to show in what way counsel failed to investigate. The record supports this
finding by the post-conviction court. The only proof that the petitioner experienced any
side-effects from his medication came from his own assertion at the evidentiary hearing.
However, counsel, although aware that the petitioner was taking an antidepressant
medication, testified that he was not informed of the petitioner’s allegation that the
medication he was taking caused him to hallucinate. We cannot conclude that the petitioner
has shown any deficiency in counsel’s failure to investigate his mental health issues when
he did not inform counsel of such. Moreover, the petitioner has not shown prejudice as he
offered no proof, such as his medical records or the results of a psychological evaluation,
that he was, as he claimed, “incompetent to assist in his own defense.”
As to the alleged failure to investigate the circumstances of the indictment and
allegations surrounding the second offense, we note that counsel testified that his
investigator attempted to interview the victim but was denied permission by the victim’s
mother. In any event, the petitioner failed to offer any evidence at the evidentiary hearing
that would call into question the validity of the victim’s allegations and has therefore failed
to show how he was prejudiced by any failure to investigate on counsel’s part. See Black
v. State, 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990).
-8-
II. Unknowing and Involuntary Plea
The petitioner also argues that counsel’s ineffectiveness caused him to enter an
unknowing and involuntary plea. When analyzing a guilty plea, we look to the federal
standard announced in Boykin v. Alabama, 395 U.S. 238 (1969), and the state standard set
out in State v. Mackey, 553 S.W.2d 337 (Tenn. 1977). State v. Pettus, 986 S.W.2d 540, 542
(Tenn. 1999). In Boykin, the United States Supreme Court held that there must be an
affirmative showing in the trial court that a guilty plea was voluntarily and knowingly given
before it can be accepted. 395 U.S. at 242. Similarly, our Tennessee Supreme Court in
Mackey required an affirmative showing of a voluntary and knowledgeable guilty plea,
namely, that the defendant has been made aware of the significant consequences of such a
plea. Pettus, 986 S.W.2d at 542.
A plea is not “voluntary” if it results from ignorance, misunderstanding, coercion,
inducements, or threats. Blankenship v. State, 858 S.W.2d 897, 904 (Tenn. 1993). The trial
court must determine if the guilty plea is “knowing” by questioning the defendant to make
sure he or she fully understands the plea and its consequences. Pettus, 986 S.W.2d at 542;
Blankenship, 858 S.W.2d at 904. Because the plea must represent a voluntary and
intelligent choice among the alternatives available to the defendant, the trial court may look
at a number of circumstantial factors in making this determination. Blankenship, 858
S.W.2d at 904. These factors include: (1) the defendant’s relative intelligence; (2) his
familiarity with criminal proceedings; (3) whether he was represented by competent counsel
and had the opportunity to confer with counsel about alternatives; (4) the advice of counsel
and the court about the charges against him and the penalty to be imposed; and (5) the
defendant’s reasons for pleading guilty, including the desire to avoid a greater penalty in a
jury trial. Id. at 904-05.
As to this issue, the post-conviction court found that the petitioner understood the
significance and consequences of his plea and that his decision was not coerced. At the
evidentiary hearing, counsel testified that it was the petitioner’s idea to plead guilty instead
of proceeding to the motion to suppress and that the petitioner was aware of the evidence
against him. Counsel said that the petitioner told him that “he didn’t want to put his
daughter through testimony.” The transcript from the plea colloquy shows that the petitioner
affirmed to the court that he understood what he was doing, had been apprised of his right
to a trial and ramifications of pleading guilty, that he was satisfied with counsel’s
representation, had enough time to meet with counsel to discuss the case and any defenses
to the charge, and that he was pleading guilty because he was in fact guilty of the charge.
The evidence shows that the petitioner, who faced the possibility of another rape charge if
he did not plead, made the informed decision to accept the State’s offer after fully discussing
the issue with counsel. We cannot conclude that the petitioner’s guilty plea was anything
-9-
other than knowingly and voluntarily entered.
CONCLUSION
Based on the foregoing authorities and reasoning, we affirm the court’s denial of
post-conviction relief.
_________________________________
ALAN E. GLENN, JUDGE
-10-
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361 So.2d 590 (1978)
Marsha L. SHIRLEY
v.
Jimmy S. SHIRLEY.
Civ. 1446.
Court of Civil Appeals of Alabama.
August 16, 1978.
Miles T. Powell, Decatur, for appellant.
John S. Key of Eyster, Eyster, Key, Carmichael & Tubb, Decatur, for appellee.
WRIGHT, Presiding Judge.
The issue presented by this case is: What is the effective date of the judgment of an appellate court in a divorce case when such judgment reverses the alimony and support provisions of the judgment of the trial court and directs the trial court to enter judgment for a greater amount?
Neither the research of counsel nor of this court discloses any appellate decision directly answering the issue presented. The trial court determined that the increase in alimony and support directed by the appellate court in this case was effective on the date of the judgment and mandate of the appellate court. We agree and affirm that decision.
The original judgment of the trial court was entered on August 6, 1976. Appeal was taken to this court and our judgment was entered on April 27, 1977. Rehearing was denied and writ of certiorari was granted by the Supreme Court of Alabama on August 10, 1977. On November 4, 1977 the writ was quashed. Appellant filed her motion in the trial court for entry of judgment in accordance with the direction of this court. The trial court responded and *591 determined that the increases directed to be entered by the court were to begin as of the date of our judgment.
Counsel for the parties have submitted several authorities from other jurisdictions which are contended to support their position. We will not discuss these cases as some of them are easily distinguished from the situation existing in this case and none of them impress us as being directly in point.
A review of a final judgment on appeal is in effect a new case. Murphy v. Stewart, 43 U.S. 263, 2 How. 263, 11 L.Ed. 261 (1844). The jurisdiction of the trial court, at least in respect to the matters appealed is ousted and jurisdiction is reposed in the appellate court until it renders judgment with its mandate returning jurisdiction to the trial court. Its judgment becomes the law of the case as of that date. Douglass, Ex'r. v. City Council of Montgomery, 124 Ala. 489, 27 So. 310 (1899). The judgment by its terms may have retroactive application in some instances, particularly where there may have been a stay of the trial court's judgment. In the absence of such direction, as in this case, the increase of support and alimony directed by this court is effective on the date of its judgment. It is our opinion that the rule applies even when the appellate court reverses and renders, entering the judgment the trial court should have entered under the authority of § 12-22-70, Code of Alabama (1975).
The reversal of a judgment, or a part thereof, wholly annuls it, or the part of it, as if it never existed. Birmingham Elec. Co. v. Alabama Pub. Serv. Comm'n, 254 Ala. 119, 47 So.2d 449 (1950). Another judgment rendered by a court with jurisdiction must thereafter replace it. Such was the effect of our reversal and remandment with direction in this case.
The judgment of the trial court is affirmed.
AFFIRMED.
BRADLEY and HOLMES, JJ., concur.
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679 F.3d 1015 (2012)
RED RIVER FREETHINKERS, Appellant,
v.
CITY OF FARGO, Appellee.
No. 10-3214.
United States Court of Appeals, Eighth Circuit.
Submitted: May 12, 2011.
Filed: May 25, 2012.
*1017 Bruce Alan Schoenwald, argued, Moorhead, MN, for Appellant.
John M. Baker, argued, Robin M. Wolpert, on the brief, Minneapolis, MN, for Appellee.
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
WOLLMAN, Circuit Judge.
Government displays of the Ten Commandments sometimes will violate the Establishment Clause of the First Amendment, see McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005), other times they will not, see Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162 L.Ed.2d 607 (2005).
This appeal presents the question whether a city commission's adoption of an initiated ordinance that in effect countermanded the commission's earlier decision to remove from municipal property a Ten Commandments monument imbued the monument with an impermissible religious symbolism that had earlier been judicially declared not to exist. The district court dismissed the complaint, holding that Red River Freethinkers (Freethinkers) lacked standing to maintain its First Amendment Establishment Clause action. We reverse and remand for further proceedings.
I.
Background
On March 8, 1958, the Fraternal Order of Eaglesa non-religious civic organizationdonated a Ten Commandments monument to the City of Fargo (City). See Twombly v. City of Fargo, 388 F.Supp.2d 983, 984 (D.N.D.2005).[1] In 1961, the monument was installed in its current location, "a grassy, open area mall" on City property. Id. at 985. There it sat without legal challenge for forty years.
Then, in 2002, a group of City residents, all of them members of Freethinkersa non-profit corporation dedicated to the promotion of atheistic and agnostic views of the supernaturalsued the City in the United States District Court for the District of North Dakota. See id. at 986. They sought (1) a declaration that the City's display of the Ten Commandments monument violated the Establishment Clause and (2) an order that the monument be removed from the mall.
Both sides stipulated to the relevant facts and moved for summary judgment. The district court noted that the City's monument was "virtually identical" to the "passive monuments" at issue in Van Orden, 545 U.S. 677, 125 S.Ct. 2854, and ACLU Nebraska Foundation v. City of Plattsmouth, Nebraska, 419 F.3d 772 (8th Cir.2005) (en banc), both of which survived Establishment Clause scrutiny. It further observed that neither the plurality in Van Orden, nor our court in City of Plattsmouth, found the "sometimes ... governing *1018 test" articulated in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), "useful in dealing with the[se] sort[s] of passive monuments." Van Orden, 545 U.S. at 685-86, 125 S.Ct. 2854; see City of Plattsmouth, 419 F.3d at 778 n. 8. It therefore conducted "a contextual inquiry," examining the "circumstances surrounding" the monument's placement on City property and "the `physical setting' of the monument." Twombly, 388 F.Supp.2d at 988-89 (quoting Van Orden, 545 U.S. at 701, 125 S.Ct. 2854 (Breyer, J., concurring)).
The district court acknowledged that the City's monument "is neither far removed from governmental buildings, nor is it surrounded by a collection of secular monuments." Id. at 990-91; cf. Van Orden, 545 U.S. at 681, 125 S.Ct. 2854; City of Plattsmouth, 419 F.3d at 777 n. 7. But it nevertheless concluded that "a reasonable observer could not perceive the city as adopting or endorsing the religious message of the display" given (1) that the monument "originated from a private organization and was erected for a secular purpose, to celebrate the first urban renewal project in North Dakota history," Twombly, 388 F.Supp.2d at 993, (2) that the monument contained an inscription describing "not only the [private] origin of the monument's creation, but also a message from the Eagles describing the [secular] purpose of the display," id. at 991, (3) "that the public would perceive the mall as a public forum," where the expression of religious opinions would be "less likely to be seen as the exclusive dominion of the state," id. at 992, and (4) the "extreme dearth of community complaints and the complete absence of legal challenges over the monument[']s near fifty year history," id. at 993. It therefore denied the plaintiffs' motion for summary judgment, granted the City's motion, and dismissed the action.
The plaintiffs did not appeal from the decision, but instead adopted a new strategy. Pointing out that the district court in Twombly had theorized that "to exclude the request of a private organization, such as the Fraternal Order of Eagles, to engage in religious speech in a recognized forum on the sole grounds that their speech has religious content could arguably be a violation of their constitutional rights," id. at 992, Freethinkers offered their own monument to the City, with a request that it be placed near the Ten Commandments monument. The proposed monument was to be inscribed:
THE GOVERNMENT OF THE UNITED STATES OF AMERICA IS NOT, IN ANY SENSE FOUNDED ON THE CHRISTIAN RELIGION
FROM THE TREATY OF TRIPOLI, APPROVED UNANIMOUSLY BY THE UNITED STATES SENATE, JUNE 7, 1797. SIGNED BY PRESIDENT JOHN ADAMS
PRESENTED TO THE CITY OF FARGO BY THE RED RIVER FREETHINKERS IN RECOGNITION OF THE FIRST AMENDMENT RIGHT OF EVERY AMERICAN TO BELIEVE, OR NOT BELIEVE, IN ANY GOD
See Compl. ¶¶ 12-13.
Freethinkers hoped that its "sister" monument would "downplay the Christian message of the 10 Commandments monument." Appellant's Summ. of the Case.
The City Commission referred Freethinkers's proposal to City Attorney Erik Johnson for consideration and a recommendation. Johnson noted that the Twombly litigation "complicate[d] the current offer," and therefore proposed that Freethinkers meet with him "to talk about [its] goals and wishes," so that the request could be "handled properly." Appellant's App. at 38. At that meeting Freethinkers indicated that it "prefer[red] that [its] offer to donate the monument be accepted," but that if the City "decide[d] to remove *1019 the Ten Commandments to a private location," then the sister monument would "not be needed." Id. at 51.
At the next Commission meeting, Johnson presented the Commission with four options: (1) "Decline [] Freethinkers'[s] offer and leave the Ten Commandments monument where it is"; (2) "Decline [] Freethinkers'[s] offer and move the Ten Commandments monument"; (3) "Accept [] Freethinkers'[s] offer and allow [its] monument to be installed"; or (4) "Establish a Committee to Create `Diversity' or `freedom' displays." Id. Johnson advised that "from a purely legal standpoint, the option with the least risk and greatest potential for cost-avoidance would be" option two. Id.
The Commission also heard the views of a number of citizens. One explained why he thought the City could decline Freethinkers's offer and retain the Ten Commandments monument without offending the Establishment Clause. See id. at 51-52. Another "urged the Commissioners not to give into [sic] the Freethinkers' agenda to rewrite American history." Id. at 52. Two others offered religious justifications for keeping the Ten Commandments monument: One "hope[d] the Commission [would have] the strength and courage to support the Lord," while the other stated that "the Ten Commandments is pretty sacred and there are very few people who would not agree with that," adding that the "issue should be put to a vote of the people." Id. One spoke in favor of Freethinkers's offer. Commissioner Linda Coates then observed that "she ha[d] heard a very mixed message from the people who have spoken. She said there are many Fargoans of other faiths and it is not the role of government to proclaim one religion above the others." Id.
The Commission then voted unanimously to reject Freethinkers's offer and, by a vote of 3-to-2, further decided to donate the Ten Commandments monument to a private entity. It planned "to receive proposals for relocation of the monument for a period of 14 days" and to "make its determination of which proposal to accept at its July 16, 2007 meeting." Id.
Public reaction to the City's decision to donate the Ten Commandments monument was mixed. Of those in favor of the decision to move the monument, some cited principles, see, e.g., id. at 66 ("[T]he City Commission's decision to move the monument should be upheld because of separation of church and state and to protect the first amendment.") ("[T]he monument is not critical to one's faith."), while others offered practicality, see, e.g., id. ("[I]t is irresponsible to hold taxpayers at risk of possible litigation.") ("[T]he City should focus on more pressing social needs.").
There were a great many people, however, who wanted the monument to stay. Several of them organized and circulated a petition to change the City's municipal code to provide that
A marker or monument on City of Fargo property for 40 or more years may not be removed from its location on City of Fargo property.
Id. at 71.[2] The petition, which garnered 5,265 signatures in short order, also asked the City not to remove any such monuments "until this initiated ordinance is adopted by the Board of Commissioners of the City of Fargo or until there is a vote of the people on this initiated ordinance." Id.
*1020 On July 2, 2007, at the next Commission meeting, the Commission deemed the petition received and placed it on "first reading." [3] It then heard the views of several citizens who were in favor of the proposed ordinance. Like those who wanted the monument removed, their reasons were varied. See, e.g., id. at 66 ("[T]he City Commission has received petitions in the past ... and the Commission disregarded the people's wishes.... [T]he point of a petition is about freedom, not about a monument.") ("[T]his is a democracy and the majority have spoken to have it remain.") ("[T]he monument has been at its current location for a long time.").
Several Commissioners then shared their views. Coates, noting that "the tone of [the] debate [had] been anguished," said that "it [was] obvious the monument means a great deal to the people of Fargo," but that it was "important ... not to support one group over another." Id. at 67. "She suggested creating a policy which would avoid legal challenges with future requests." Id. Commissioner Mike Williams agreed that "it would be good to review the process for submissions of additional monuments," but added that "he respect[ed] the right of the citizens to petition and support[ed] the issue being put on the ballot." Id. Commissioner Tim Mahoney agreed with Williams that the "Commission should do the will of the people... and accept the [proposed] ordinance," observing that "it is important to embrace and be tolerant of all people." Id.
The Commission then reconsidered and, by a vote of 3-to-2, reversed its earlier decision to donate the monument. It also tabled a renewed request by Freethinkers to accept the sister monument in order to give the City time to "develop a policy in dealing with requests for placement of monuments on City property." Id. at 68. The proposed ordinance was placed on "second reading" on July 16, 2007. Id. at 104.
On July 30, 2007, the Commission adopted the proposed ordinance by unanimous vote. Id. at 118; see Fargo Mun. Code § 18-0514. Freethinkers again renewed its request that its sister monument be accepted, but the City again voted to table the offer until the policy regarding the acceptance of future monuments had been "refine[d]." Appellant's App. at 119-20. Finally, on August 27, 2007, the Commission, by a vote of 3-to-2, adopted "a policy of not accepting additional monuments to be placed on the Civic Plaza." Id. at 141-42.
Freethinkers filed this lawsuit on behalf of its members in April 2008, asserting that the City's adoption of the proposed ordinance and its refusal to accept the sister monument violated the Establishment Clause of the First Amendment.[4] It seeks: (1) a declaration that Fargo's initiated ordinance, now codified as § 18-0514 of the Fargo Municipal Code, is unconstitutional; (2) an order requiring the City to remove the Ten Commandments monument from City property; (3) monetary damages for the funds it has expended "to obtain redress of grievances"; and (4) attorney's fees. The district court referred the case to a magistrate judge.
The City moved to dismiss for lack of jurisdiction, arguing that Freethinkers *1021 lacked standing. Because the City had submitted materials outside the pleadings, the magistrate judge converted the City's motion to one for summary judgment, see Fed.R.Civ.P. 12(d), and permitted Freethinkers to submit its own materials, which it did.
The magistrate judge began her analysis by observing that Freethinkers "cannot simply challenge the City's display of the monument on Establishment Clause grounds." Report & Recomm., at 8. "Such a claim," she reasoned, "would merely reprise the Twombly case," which Freethinkers "is precluded [from doing] by principles of res judicata and collateral estoppel." Id.[5] She noted that Freethinkers "appeared to recognize" this. Id. at 8.
The magistrate judge then turned to Freethinkers's claim: That the City's actions post-Twombly had given rise to a new injurythe magnification of its "members' sense of exclusion and anger"which "was caused by the continued presence of the Ten Commandments monument," "the City's adoption of the initiated ordinance," and "the process by which the ordinance was enacted." Id. at 9.
As the magistrate judge saw it, the theory of Freethinkers's case was that
the proponents of the initiated ordinance petition drive were motivated by a religious purpose, and that the City, in adopting the ordinance as well as in changing its mind about moving the Ten Commandments monument to private property, approved of and embraced those religious motivations, thereby converting the Ten Commandment's monument from a partially secular, permissible display to a solely religious, impermissible display.
Id. at 10.
Although the magistrate judge apparently agreed that this claim raised an issue different from the one decided in Twombly, she found "no evidentiary support for Freethinkers'[s] conclusory allegation that the City Commission engaged in impermissibly religious expression," and therefore concluded that Freethinkers had "failed to establish the second element of standing." Id. at 14. She noted that "[n]o evidence of the City's intent is alleged; only the petition proponents' religious intentions are alleged," and further noted that "[t]he complaint treats all proponents of the petition for initiated ordinance and the City Commissioners as monolithic in holding and expressing a religious viewpoint." Id. at 10-11. In her view, "[s]uch a conclusory inference cannot provide the causation element of standing to assert an Establishment Clause claim against the City." Id. at 11.
Moreover, the magistrate judge concluded, Freethinkers could not establish the third element of standing, redressability, because the only order that would remedy its members' feelings of "exclusion and anger" was one directing the removal of the Ten Commandments monument. This, she reasoned, was not "available" because "[a]n action to force removal of the monument reprises the Twombly case, which [Freethinkers] is barred from doing." Id. at 15.
The magistrate judge therefore recommended that the case be dismissed for lack of standing. As set forth above, the district court dismissed the action. In its order adopting the magistrate judge's report *1022 and recommendation, the district court made the "further find[ing] that to the extent Twombly is not controlling, ... the United States Supreme Court's decision in Pleasant Grove City, Utah v. Summum is decisive." D. Ct. Order of Sept. 8, 2010 (citation omitted).
We assess Freethinkers's standing de novo.[6] We accept Freethinkers's well-pleaded facts as true, recognizing that Freethinkers "may not rest on mere denials or allegations, but must [have] instead set forth specific facts sufficient" to demonstrate its standing. Rau v. Roberts, 640 F.3d 324, 327 (8th Cir.2011).
II.
Standing
"Article III of the Constitution confines the federal courts to adjudicating actual `cases' and `controversies.'" Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (quoting U.S. Const. art. III, § 2, cl. 1). "As an incident to the elaboration of this bedrock requirement, [the Supreme Court] has always required that a litigant have `standing' to challenge the action sought to be adjudicated in the lawsuit." Valley Forge Christian Coll. v. Am. United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982).
An association such as Freethinkers "has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." United Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544, 553, 116 S.Ct. 1529, 134 L.Ed.2d 758 (1996) (quoting Hunt v. Wash. State Adver. Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
The City offers no argument that "the interests [Freethinkers] seeks to protect" are not "germane" to its purpose or that Freethinkers's requested relief "requires the participation of [its] individual members." See id. Moreover, we are satisfied that Freethinkers meets these latter two requirements. Freethinkers is dedicated to the promotion of atheistic and agnostic views of the supernatural. It has members living in or near the City. Compl. ¶ 4. Its purpose of promoting atheistic and agnostic views is plainly germane to its members' interest in being free of Establishment Clause violations. Furthermore, the primary relief Freethinkers seeksremoval of the monument"does not make the individual participation of each injured party indispensable to proper resolution of the cause." Warth v. Seldin, 422 U.S. 490, 511, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) ("If in a proper case the association seeks a declaration, injunction, or some other form of prospective relief, it can reasonably be supposed that the remedy, if granted, will inure to the benefit of those members of the association actually injured." Id. at 515, 95 S.Ct. 2197).
We are therefore left with the question whether Freethinkers's "members would otherwise have standing to sue in their own right." United Food & Commercial Workers Union Local 751, 517 U.S. at 553, 116 S.Ct. 1529. To have standing, "[a] plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be *1023 redressed by the requested relief." Allen, 468 U.S. at 751, 104 S.Ct. 3315. The standing inquiry
requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted. Is the injury too abstract, or otherwise not appropriate, to be considered judicially cognizable? Is the line of causation between the illegal conduct and injury too attenuated? Is the prospect of obtaining relief from the injury as a result of a favorable ruling too speculative?
Id. at 752, 104 S.Ct. 3315. The standing inquiry is not, however, an assessment of the merits of a plaintiff's claim. See ASARCO Inc. v. Kadish, 490 U.S. 605, 624, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) ("[A]lthough federal standing `often turns on the nature and source of the claim asserted,' it `in no way depends on the merits of the [claim].'" (alteration in original) (quoting Warth, 422 U.S. at 500, 95 S.Ct. 2197)). With that in mind, we consider each elementinjury, causation, and redressabilityin turn.
A. Injury
Freethinkers alleges that in light of the City's actions post-Twombly, the Ten Commandments monument now violates the Establishment Clause. It further alleges that its members "have come into unwanted contact with" the monument "and, as a result, have suffered feelings of exclusion, discomfort, and anger." Compl. ¶ 22. It does not, however, allege that any of its members have "altered [their] behavior to avoid the allegedly unconstitutional display." See ACLU Neb. Found. v. City of Plattsmouth, Neb., 358 F.3d 1020, 1029 (8th Cir.2004), rev'd en banc on other grounds, 419 F.3d 772 (8th Cir.2005).[7]
In City of Plattsmouth, we acknowledged a split of authority on the injury required to confer standing in so-called "passive-display" cases. See 358 F.3d at 1029. Some courts apply "a more demanding test," which requires "a plaintiff to prove, at a minimum, he altered his behavior to avoid the allegedly unconstitutional display." Id. But "[b]y far the prevailing view requires only direct and unwelcome personal contact with the alleged establishment of religion." Id. Because the individual plaintiff in City of Plattsmouth met both tests, we did not need to choose between them. Id. at 1030. Here, however, Freethinkers has not alleged that any of its members have altered their behavior to avoid the Ten Commandments monument. Therefore, Freethinkers's members would have standing only if "direct and unwelcome personal contact" with the monument is a sufficient injury. We conclude that it is.
"[A]n invasion of a legally protected interest" is an injury sufficient for the purposes of standing when it is "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "By particularized, we mean that the injury must affect the plaintiff in a personal and individual way." Id. at 560 n. 1, 112 S.Ct. 2130.
The injuries to Freethinkers's members are no doubt actual and imminent. The City's display of the Ten Commandments monument has continued now for fifty years, with no end in sight. Those members have encountered the *1024 monument, causing them "to feel isolated and unwelcome in the city." Appellant's App. at 146.
Furthermore, those injuries are personal to Freethinkers's members. Freethinkers does not seek to assert the injuries of out-of-towners who have read about Fargo's display and "disagree" with it. Cf. Valley Forge Christian Coll., 454 U.S. at 485, 102 S.Ct. 752. Freethinkers's members live in and around Fargo. See Compl. ¶ 4; accord Appellant's App. at 147. Its suit "is not the mere vindication of a public grievance, but an allegation of government establishment of religion to which [its members], personally and directly, [have] been subjected." City of Plattsmouth, 358 F.3d at 1029.
Finally, the alleged injuries are concrete. Freethinkers's members "experience[] direct, offensive, and alienating contact with the Ten Commandments monument." Id. at 1030. "That the injuries are caused by [their] own City is all the more alienating." Id. And while those injuries are largely emotional, we must presume they are sincerely felt. To the extent that emotional harms differ from other, more readily quantifiable harms, that difference lacks expression in Article III's case-or-controversy requirement. U.S. Const. art. III, § 2, cl. 1.[8]
Freethinkers has therefore alleged an injury to its members that would be sufficient to support its members' "standing to sue in their own right." See United Food & Commercial Workers Union Local 751, 517 U.S. at 553, 116 S.Ct. 1529.
B. Causation
The alleged injury to Freethinkers's members is more than "fairly traceable to the [City's] allegedly unlawful conduct," see Allen, 468 U.S. at 751, 104 S.Ct. 3315; it is a direct consequence of the City's allegedly unlawful conduct. As explained above, the alleged injury is direct and unwelcome contact with an Establishment Clause violation. If the City's Ten Commandments monument now violates the Establishment Clause, then its continued display is the cause of that injury. Accordingly, Freethinkers has demonstrated that the injury to its members is caused by the "allegedly unlawful conduct." Id.
Nevertheless, the magistrate judge devoted most of her analysis to explaining why Freethinkers had failed to demonstrate causation. In her view, Freethinkers's
bald assertions that "the adoption of the initiated ordinance has transformed the Ten Commandment's and the City's ownership of the Ten Commandments into a government expression of a religious purpose prohibited by McCreary"... and that "the Ten Commandments monument now has an unconstitutional religious purpose," are legal conclusions not entitled to acceptance as truth without supporting factual allegations.
*1025 Report & Recomm., at 12 (citations omitted). Then, citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the magistrate judge concluded that "[t]hese bootstrapped allegations are, at best, `merely consistent with' liability of the city, and the amended complaint `stops short of the line between possibility and plausibility of entitlement to relief.'" Report & Recomm., at 12.
Both Bell Atlantic Corp. and Iqbal held that the respective plaintiffs had failed to state a claim upon which relief could be granted because they had failed to plead a fact essential to the merits of their causes of action: In Bell Atlantic Corp. it was the existence of an agreement; in Iqbal it was a discriminatory purpose. Applied here, neither of those cases leads to the conclusion that Freethinkers has failed to demonstrate that the injuries to its members are caused by an alleged Establishment Clause violation.
Freethinkers alleged and properly supported certain facts: The City displays a Ten Commandments monument; it has enacted an ordinance prohibiting the removal of that monument; no other monument is so protected; and the City has a policy of not accepting other monuments in the mall where the Ten Commandments monument stands. Put together, Freethinkers argues, these facts result in an Establishment Clause violation. The claimed injurydirect and unwelcome contact with the monumentis "fairly traceable" to the alleged Establishment Clause violation.
The magistrate judge apparently superimposed an additional standing requirement on Freethinkersthat Freethinkers "plausibly" establish that the City Commission had a religious motivation in enacting the ordinance. The Supreme Court has never held that a plaintiff must plead and prove a religious motivation on the part of the government as a necessary element of an Establishment Clause claim. Rather, the Supreme Court has "repeatedly emphasized [its] unwillingness to be confined to any single test or criterion in this sensitive area," Lynch v. Donnelly, 465 U.S. 668, 679, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), and adopted "case-specific examinations of the challenged government action," County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 623, 109 S.Ct. 3086, 106 L.Ed.2d 472 (O'Connor, J., concurring). See also Van Orden, 545 U.S. at 699-700, 125 S.Ct. 2854 (Breyer, J., concurring) ("[T]he Court has found no single mechanical formula that can accurately draw the constitutional line in every case.... I see no test-related substitute for the exercise of legal judgment."). While such a flexible approach may make it difficult for the lower courts to determine whether a particular display violates the Establishment Clause, it does not follow that passive-display Establishment Clause claims must necessarily be rejected at the pleading stage because plaintiffs do not spell out in detail exactly how its well-pleaded facts operate to result in a violation of the Establishment Clause.
C. Redressability
Freethinkers's complaint requests (1) a declaration that Fargo's initiated ordinance, now codified as § 18-0514 of the Fargo Municipal Code, is unconstitutional, (2) an order requiring the City to remove the Ten Commandments monument from City property, (3) monetary damages for the funds it has expended "to obtain a redress of grievances," and (4) attorney's fees.
At oral argument, counsel for Freethinkers was asked whether invalidation of the ordinance would remedy the alleged constitutional violation. He replied that "it's sort of like you can't unring the bell here," *1026 although he was "not sure." For our purposes, we will assume, without deciding, that invalidation of the ordinance would not redress the injury to Freethinkers's members, and so we examine whether the remaining requested relief would redress that injury.[9]
Again, the alleged injury is direct and unwelcome personal contact with an Establishment Clause violation. Freethinkers's request for monetary damages and attorney's fees would of course not remedy that injury.
There is no doubt, however, that removal of the monument from public property would remedy the alleged injury. The magistrate judge agreed. See Report & Recomm., at 15 ("Freethinkers'[s] alleged injury, continued unwanted contact with the monument, is not redressed by removal of the ordinance, only by removal of the monument.").
Nevertheless, the magistrate judge concluded that Freethinkers had "failed to show its alleged injury is redressable by the relief the court could grant," since "[a]n action to force removal of the monument reprises the Twombly case, which plaintiff is barred from doing." Id. at 15. We do not agree.
As an initial matter, to the extent Freethinkers is barred by the doctrines of res judicata and collateral estoppel from relitigating issues decided in Twombly, that bar is not jurisdictional. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) ("Preclusion, of course, is not a jurisdictional matter." (citing Fed. R.Civ.P. 8(c)); Fed.R.Civ.P. 8(c) (listing estoppel and res judicata as affirmative defenses)). Had Freethinkers attempted to relitigate an issue decided in Twombly, the district court could have dismissed on that basis, even sua sponte, see Arizona v. California, 530 U.S. 392, 412-13, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000), but not for Freethinkers's lack of standing.
Furthermore, this suit presents an issue that could not have been raised nor decided in Twombly: Whether the City's actions post-Twombly transformed the Ten Commandments monument from a permissible display into an impermissible violation of the Establishment Clause. See Brown v. Felsen, 442 U.S. 127, 139 n. 10, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979) ("Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit."). Freethinkers could not have brought in Twombly a claim based on the City's actions post-Twombly. Furthermore, the district court in Twombly could not have anticipated the actions that the City might take with respect to the monument following that ruling. The court therefore could not take any of those actions into account when analyzing the "nature of the monument," Van Orden, 545 U.S. at 686, 125 S.Ct. 2854, or the "context of [its] display," see id. at 701, 125 S.Ct. 2854 (Breyer, J., concurring). Nor could it judge the effects those actions would have on a reasonable observer, "familiar with *1027 the history of the government's actions and competent to learn what history has to show." See McCreary Cnty., Ky., 545 U.S. at 866, 125 S.Ct. 2722.
Given the Supreme Court's observations in Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009), discussed more fully below, it is plausible that a government might, by subsequent action, transform a formerly permissible display into an impermissible one. Likewise, we think that a government might possibly avoid an Establishment Clause violation by encouraging observers to consider a monument's "secular message" or "context [in] history." Van Orden, 545 U.S. at 701-02, 125 S.Ct. 2854 (Breyer, J., concurring).
At minimum, such a theory is not "so insubstantial, implausible, foreclosed by prior decisions of [the Supreme] Court, or otherwise completely devoid of merit as to not involve a federal controversy." Oneida Indian Nation v. Oneida Cnty., N.Y., 414 U.S. 661, 666, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). So long as Freethinkers presses an "arguable" construction of the Establishment Clause, which it does, and further demonstrates its standing to sue under that construction, which it has, we have jurisdiction to hear its claim. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
The City's assertionthat there is "no basis in law" for removal of the monumentis wrong. If the City's monument violates the Establishment Clause, then a court can order its removal. Contrary to what the City apparently believes, and as explained above, the district court in Twombly did not decide that the monument may reside forevermore on City property. It ruled that the monument, as displayed at that time, did not violate the Establishment Clause. If things have changed since that time, and if those changes have resulted in an Establishment Clause violation, then a court can remedy the violation.
The injuries to Freethinkers's members are therefore redressable. Accordingly, Freethinkers has standing to pursue its claim, and the district court erred in dismissing the action for lack of standing.
III.
Disposition
As recounted above, in its order adopting the magistrate judge's report and recommendation, the district court made the "further find[ing] that to the extent Twombly is not controlling, ... the United States Supreme Court's decision in Pleasant Grove City, Utah v. Summum is decisive." D. Ct. Order at 1. Summum involved a claim under the Free Speech Clause of the First Amendment. The Court held that the placement of a permanent monument in a public park was a form of government speech that is not subject to scrutiny under the Free Speech Clause. Summum, 555 U.S. at 464, 129 S.Ct. 1125. The city in that case was therefore not required to accept for placement in a city park a donated monument expressing the donors' views. In so holding, the Court noted that "government speech must comport with the Establishment Clause." Id. at 468, 129 S.Ct. 1125. The Court also noted that
[c]ontrary to respondent's apparent belief, it frequently is not possible to identify a single "message" that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor. By accepting a privately donated monument and placing it on city property, a city engages in expressive conduct, but the intended and *1028 perceived significance of that conduct may not coincide with the thinking of the monument's donor or creator. Indeed, when a privately donated memorial is funded by many small donations, the donors themselves may differ in their interpretation of the monument's significance. By accepting such a monument, a government entity does not necessarily endorse the specific meaning that any particular donor sees in the monument.
Id. at 476-77, 129 S.Ct. 1125 (footnotes omitted).
As Freethinkers points out, the Court also observed that "[t]he message conveyed by a monument may change over time." Id. at 477, 129 S.Ct. 1125.
Because Summum involved a claim under the Free Speech Clause of the First Amendment, the Court was not presented with and did not address any claim under the Establishment Clause. We do not understand the district court's reference to Summum as constituting a ruling on the merits of Freethinkers's Establishment Clause claim. Neither the City nor Freethinkers has briefed the merits of that claim, and we decline to address that issue in the first instance. Accordingly, we conclude that it is necessary to remand the case for a ruling on the claim. See Minn. Fed'n of Teachers v. Randall, 891 F.2d 1354, 1360 (8th Cir.1989). See also Smith v. Jefferson Cnty. Bd. of Sch. Com'rs, 641 F.3d 197, 215-16 (6th Cir.2011); Suhre v. Haywood Cnty., 131 F.3d 1083, 1084, 1091-92 (4th Cir.1997); Doe v. Cnty. of Montgomery, Ill., 41 F.3d 1156, 1162 (7th Cir.1994); Saladin v. City of Milledgeville, 812 F.2d 687, 693-94 (11th Cir.1987). Cf. Salazar v. Buono, ___ U.S. ___, 130 S.Ct. 1803, 1820-21, 176 L.Ed.2d 634 (2010).
At oral argument, counsel for Freethinkers stated that the record had not been fully developed prior to the district court's ruling on the standing issue and that further discovery should be conducted. It will be for the district court to determine what further record development proceedings are appropriate on remand.
IV.
Conclusion
The judgment dismissing the action is reversed, and the case is remanded to the district court for further proceedings.
SHEPHERD, Circuit Judge, concurring in part and dissenting in part.
I concur with the majority's well-developed analysis of the standing issue in this matter. I dissent, however, from the decision to remand this matter to the district court. There is nothing more to be developed pertaining to the motivations of the City Commission in its adoption of the city ordinance, thus I believe it is proper for us to conclude this matter by affirming the decision of the district court. See Ballinger v. Culotta, 322 F.3d 546, 548 (8th Cir. 2003) (holding district court's judgment may be affirmed on any ground supported by the record).
Twombly determined that the passive display of the Ten Commandments monument did not violate the Establishment Clause. Freethinkers's argument is that by adopting the initiated ordinance, the City Commission perforce adopted as its own the religious views of the ordinance's proponents. While subsequent events could change the nonsectarian nature of such a monument, when viewed in the context of the monument's history and the views expressed by the members of the City Commission, Freethinkers's argument fails.
As the magistrate judge correctly observed, the City Commissioners, as well as the proponents of the now-enacted ordinance, may have had a variety of reasons *1029 for wanting to keep the monument in its present location. The motivation actually expressed by the Commissioners was, essentially, that the Commission should do the will of the majority of the people of Fargo, while at the same time respecting the rights of those who do not accept the religious message embodied in the Ten Commandments. There is no evidence that any of the Commissioners themselves expressed a religious motivation.
The Commission's decision-making process was marked by a willingness to consider all competing views concerning the ordinance. Although the tone of the debate had, in Commissioner Coates's words, "been anguished," the record does not suggest that the members of the Commission demonstrated hostility towards or partiality in favor of any of the several views expressed at the meetings. Indeed, Commissioner Mahoney's observation that "it is important to embrace and be tolerant of all people" reflected the attitude of openness and receptivity to competing views that the members of the Commission manifested throughout their consideration of the matter, including their recognition of the need to consider the views of the majority. Thus, in contrast to the situation that existed in McCreary County, where the religious objectives of those who mounted the objected-to displays were clear, see 545 U.S. at 850-54, 125 S.Ct. 2722, the members of the Commission in this case expressly recognized the views of those who were opposed to the continued presence of the monument at its current site. In further contrast to the situation in McCreary County, there was no ostensible indication by the Commissioners of a purpose to promote a particular faith, and thus nothing to cause an observer to understand that the City was taking sides. See id. at 866, n. 14, 125 S.Ct. 2722.
The situation in the case before us likewise stands in sharp contrast to that which existed in American Atheists, Inc. v. Davenport, 637 F.3d 1095 (10th Cir.2010) (en banc), cert. denied, ___ U.S. ___, 132 S.Ct. 12, 181 L.Ed.2d 379 (2011). There, the memorial crosses erected by the Utah Highway Patrol were found to "conspicuously bear[] the imprimatur of a state entity." Id. at 1121.
"[W]hen the reasonable observer would view a government practice as endorsing religion, ... it is our duty to hold the practice invalid." Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 777, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (O'Connor, J., concurring) (emphasis omitted). "[T]he reasonable observer in the endorsement inquiry must be deemed aware of the history and context of the community and forum in which the religious display appears." Id. at 780, 115 S.Ct. 2440.
The Commission's actions took place in the context of a long-established monument, one that had been judicially determined not to convey any Establishment Clause message. The Commission's initial decision to move the existing monument from its long-standing site can best be understood as an exercise in pragmatism one intended to forestall a challenge to its decision not to accept Freethinkers's offer to erect a "sister" monument. In light of this background, no reasonable observer would conclude that the Commission's adoption of the initiated ordinance also adopted and conferred upon the monument the religious views of the ordinance's proponents. Nothing in the record suggests that the Commission's actions in any other way had the effect of imbuing the Ten Commandments monument with a constitutionally prohibited effect. Accordingly, I see no reason to remand this matter to the district court for further consideration, relegating the court and parties to a new and *1030 needless round of litigation. I would affirm the dismissal.
NOTES
[1] For a more complete description of the monument and its placement see Twombly, 388 F.Supp.2d at 984-86. We recite only those facts necessary to our disposition.
[2] The Ten Commandments monument was the only monument on City property to which the proposed ordinance applied. Report & Recommendation of Aug. 16, 2010 (Report & Recomm.), at 4, adopted by D. Ct. Order of Sept. 8, 2010.
[3] The Fargo Municipal Code provides: "All [proposed] ordinances shall be read twice and the second reading shall not be had in less than one week after the first reading." Fargo Mun. Code § 1-0203.
[4] Freethinkers initially asserted that the City's actions also violated the Free Speech Clause of the First Amendment. Following the Supreme Court's decision in Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009), however, Freethinkers dropped this claim.
[5] Although Freethinkers was not itself a party in Twombly, the magistrate judge noted that Freethinkers's interests are identical to those of the Twombly plaintiffs and that those plaintiffs were all members of Freethinkers. Freethinkers has not disputed that it is precluded from relitigating issues decided in Twombly.
[6] Although Freethinkers was at one point asserting taxpayer standing, see Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), it appears to have abandoned this theory below, Report & Recomm., at 7 n. 2, and counsel for Freethinkers disclaimed it during oral argument.
[7] Although our en banc court disagreed with the panel opinion's resolution of the merits of the Establishment Clause claim, we agreed with the panel opinion's standing determination and adopted the panel opinion's reasoning on this point.
[8] We note also that the plaintiff in Van Orden claimed only that his visits to the Texas State Law Library brought him "into frequent, and according to him unwelcome, contact with the [challenged] Ten Commandments monument." Van Orden v. Perry, No. A-01-CA-833-H, 2002 WL 32737462, at *2 (W.D.Tex. Oct. 2, 2002). The District Court for the Western District of Texas concluded that the plaintiff's unwelcome contact with the monument was sufficient injury to confer standing and neither the Fifth Circuit Court of Appeals nor the Supreme Court revisited that determination. Although we recognize that "[w]hen a potential jurisdictional defect is neither noted nor discussed in a federal decision, the decision does not stand for the proposition that no defect existed," Ariz. Christian Sch. Tuition Org. v. Winn, ___ U.S. ___, 131 S.Ct. 1436, 1448, 179 L.Ed.2d 523 (2011), we nevertheless observe that no Justice questioned Van Orden's standing.
[9] The magistrate judge concluded that invalidation of the ordinance would not redress the alleged injury because the City would still be free to display the monument. See Report & Recomm., at 15. She did not, however, consider whether invalidation of the ordinance would sufficiently eliminate any governmental endorsement of religion resulting from enactment of the ordinance. The ordinance apparently does not impose any additional burden on the City Commission should it desire to transfer the monument to a private entity. According to counsel for the City, repeal of that ordinance could be accomplished by majority vote of the Commission, exactly the same vote as would be required to donate the monument.
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205 Mich. App. 532 (1994)
517 N.W.2d 852
ZWOLINSKI
v.
DEPARTMENT OF TRANSPORTATION
Docket No. 138333.
Michigan Court of Appeals.
Submitted October 19, 1993, at Lansing.
Decided June 7, 1994, at 9:00 A.M.
Luce, Henderson, Heyboer, Lane, Burleigh, Currier & Martinek (by David R. Heyboer), for James Zwolinski.
Flanigan, Traver, Nelson & Emerson (by Daniel A. Traver and Patrick K. Emerson), for the estate of Dennis M. Zwolinski, deceased.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Brenda E. Turner, Assistant Attorney General, for the defendant.
Before: MICHAEL J. KELLY, P.J., and SHEPHERD and MURPHY, JJ.
PER CURIAM.
Defendant appeals as of right from two judgments of the Court of Claims awarding damages to James Zwolinski and the estate of Dennis Zwolinski, deceased, for injuries arising out *534 of an automobile accident. We remand for a clarification of the trial court's findings of fact and conclusions of law concerning the design and construction of the roadway upon which Dennis and James Zwolinski were injured.
Except for the ambiguity in the trial court's findings concerning the design and construction of the roadway, the essential facts are undisputed. On November 19, 1987, James and Dennis Zwolinski were injured in a single-automobile accident that occurred near the intersection of Highway M-35 and 26th Lane in Delta County. Dennis died as a result of the accident, and James sustained permanent injuries. The accident occurred at approximately 10:50 P.M. as Dennis and James were traveling north on M-35. They had been drinking beer that evening.[1] The trial court found that as they were traveling on M-35 their vehicle traversed a patch of ice, slid sideways into the southbound lane of M-35, crossed the shoulder of the highway, slid down and along a slope toward the intersection, and became airborne when the vehicle struck a culvert running underneath 26th Lane and parallel to M-35. The vehicle ultimately came to rest north of 26th Lane and west of M-35.
Following a bench trial, the trial court found that defendant had breached its duty to construct and maintain the intersection in a reasonably safe manner. Of particular relevance, the trial court found as follows in a written opinion dated February 5, 1991:
With respect to the duty imposed upon the Defendant State of Michigan, the Court first finds that Defendant had jurisdiction over and was responsible for the design, construction, and maintenance *535 of the intersection of M-35 and 26th Lane, including the slopes and the culverts servicing and accommodating the intersection. It was therefore incumbent upon the Defendant to reconstruct and maintain the intersection in a manner reasonably safe and convenient for public travel, but Defendant failed in this regard by installing a non-flared 18 inch steel culvert with two 18 inch precast concrete rings placed in a location which constituted a dangerous object within a thirty foot clear zone (27 feet from the traveled portion), and further, that the 1 to 1 slope as constructed and/or maintained violated the proper standards of construction and maintenance of highways and their intersections. It is further determined that the negligent construction and the improper maintenance of the intersection, being of many years standing, constituted a nuisance on November 19, 1987. Also, according to expert testimony, the design and construction of the intersection was unsafe as compared with similar intersections, and that safer and more reasonable construction and installations were available.
In addition, the trial court found that James was driving the vehicle and he was impaired by alcohol at the time of the accident. The trial court also found that James was driving the vehicle too fast for existing conditions and, therefore, he was fifty percent comparatively negligent.
Through an order dated February 20, 1991, the trial court awarded damages in the amount of $333,110.81 to Dennis' estate for the present value of his wage loss, $300,000 to Dennis' wife, Joan, for loss of society and companionship, and $100,000 to each of Dennis' three children for loss of society and companionship. Through an order dated February 25, 1991, the trial court assessed James' damages at $300,000, which were reduced by fifty percent for his comparative negligence. The awards to Dennis' estate and to James were reduced *536 by five percent for their failure to wear safety belts. Defendant appeals from these two final orders of the trial court awarding plaintiffs damages.
I
First, defendant argues that the trial court erred in failing to grant defendant's motion for summary disposition on the basis of governmental immunity. Defendant maintains that this case does not fall under the public roadways exception to governmental immunity, MCL 691.1402; MSA 3.996(102), because the embankment and culvert involved in the accident were not part of the improved portion of the highway designed for vehicular travel.
Defendant relies heavily upon our Supreme Court's decision in Scheurman v Dep't of Transportation, 434 Mich 619; 456 NW2d 66 (1990). However, the facts in this case do not parallel those in Scheurman, supra. The Supreme Court in Scheurman concluded that the public roadway exception to governmental immunity was not applicable to street lighting or to vegetation growing on private property because they were both located outside "the improved portion of the highway designed for vehicular travel." Id. at 635-636. The case at bar involves neither vegetation nor street lighting, but a question of fact regarding the reasonable safety of a particular stretch of highway.
Although the trial court's findings of fact and conclusions of law are unclear, it appears that one of the reasons for the trial court's decision to award damages to plaintiffs was the lack of guardrails *537 on the stretch of highway in question.[2] In Hutchinson v Allegan Co Bd of Road Comm'rs (On Remand), 192 Mich App 472, 479; 481 NW2d 807 (1992), a panel of this Court agreed with the plaintiff's position in that case that "the issue whether defendants have the duty to install a guardrail between the ditch and the highway so as to make the road reasonably safe for travel is properly determined by the [finder of fact]." Thus, while liability may not be premised solely upon features located outside that portion of the roadway designed for public vehicular travel (such as the culvert and embankment in this case), the factfinder may consider those features when determining whether there is a duty to install a guardrail so as to make the road reasonably safe for travel. Id. at 478-480.
Another panel of this Court in Chaney v Dep't of Transportation, 198 Mich App 728, 730; 499 NW2d 29 (1993), found Hutchinson "inapposite" and concluded that a concrete wall located beyond the curb did not fall within the "traveled portion of the roadbed designed for vehicular travel." The panel in Chaney concluded that the Supreme Court's decision in Scheurman, supra, was controlling because of its narrow interpretation of the roadway exception to governmental immunity.
We find Chaney distinguishable from the present case to the extent that the trial court may have predicated liability on the lack of a guardrail. Here, unlike in Chaney, there was no curb on the edge of the roadway to delineate the traveled portion of the roadbed. The embankment was adjacent to the shoulder of the road. Perhaps most *538 compelling, there was expert testimony that the placement of a guardrail along the edge of the roadway may have reduced the injuries. In light of these important distinctions, we decline to follow Chaney. Unlike the panel in Chaney, we are not convinced that this case is controlled by Scheurman, as discussed previously. Further, under Administrative Order No. 1994-4, it would appear that Hutchinson, and not Chaney, is controlling authority regarding this question.
Accordingly, it is necessary to remand this matter to the trial court to make detailed findings of fact and conclusions of law concerning the design and construction of the roadway. In particular, the trial court is instructed to expand upon and clarify the language in its written opinion that "according to expert testimony, the design and construction of the intersection was unsafe as compared with similar intersections, and that safer and more reasonable construction and installations were available." The trial court should consider Hutchinson, Chaney,[3] and Scheurman, supra, on remand.
II
Next, defendant argues that it should not be held liable for the natural accumulation of ice and snow on the roadway. However, the trial court did not base its verdict on this theory. While the trial court did find that there was an "unnatural" accumulation of ice and snow on the roadway, it also found that defendant had not breached its duty to remove the ice and snow because defendant did not have notice of a dangerous condition. Simply put, the trial court did not base its finding *539 of liability on this theory. Therefore, this issue is without merit.
III
Next, defendant argues that the trial court erred in finding that the culvert and embankment constituted a nuisance. Here we must agree with defendant's position. There is no public nuisance or intentional nuisance exception to governmental immunity. Li v Feldt (After Second Remand), 439 Mich 457, 462; 487 NW2d 127 (1992) (opinion by CAVANAGH, C.J.); Epperson v Crawford Co Road Comm, 196 Mich App 164, 167; 492 NW2d 455 (1992). Further, it is clear that this case does not involve a nuisance per se because the culvert and embankment do not create a nuisance at all times and under all circumstances. Li, supra at 476. As a result, we reverse the decision of the trial court to the extent that it holds defendant liable under a nuisance theory.
IV
Defendant's remaining issues relate to plaintiffs' damages. However, these remaining issues have not been properly preserved for appeal. Defendant either attempts to raise these issues for the first time on appeal, Berry v J & D Auto Dismantlers, Inc, 195 Mich App 476, 480; 491 NW2d 585 (1992), or has failed to provide this Court with a copy of the relevant transcript to facilitate appellate review. Myers v Jarnac, 189 Mich App 436, 444; 474 NW2d 302 (1991). In any event, we are not convinced that defendant's remaining issues concerning the calculation of damages possess merit.
Reversed in part and remanded for the trial court to make further findings of fact and conclusions of law as discussed herein. We retain jurisdiction.
NOTES
[1] Open containers of beer were found in the vehicle after the accident.
[2] It would appear that the lack of guardrails figured in the trial court's conclusions because the argument was raised at trial, it was supported by expert testimony, and the trial court's opinion notes that "safer and more reasonable construction and installations were available."
[3] We direct the trial court to consider also Chaney in the event that the trial court's imposition of liability was not predicated upon the lack of a guardrail. We believe that Hutchinson, Chaney, and Scheurman create a spectrum of authority concerning features that are located outside the traveled portion of the roadway.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ARTHUR O. ARMSTRONG,
Plaintiff-Appellant,
v. No. 99-2511
KOURY CORPORATION,
Defendant-Appellee.
ARTHUR O. ARMSTRONG,
No. 99-2512
Petitioner-Appellant.
Appeals from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CA-97-1028, MISC-99-71)
Submitted: February 29, 2000
Decided: April 10, 2000
Before WIDENER, WILKINS, and WILLIAMS, Circuit Judges.
_________________________________________________________________
No. 99-2511 affirmed and No. 99-2512 affirmed as modified by
unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Arthur O. Armstrong, Appellant Pro Se. Jonathan A. Berkelhammer,
Laura Deddish Burton, SMITH, HELMS, MULLISS & MOORE,
L.L.P., Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In these consolidated appeals, Arthur O. Armstrong appeals two
district court orders. In No. 99-2511, Armstrong appeals the district
court order denying his motion for reconsideration of an order deny-
ing leave of court to commence a lawsuit against Koury Corporation
and several of its employees (collectively "Koury"). Because Arm-
strong's proposed complaint was frivolous, we affirm the court's
order.
In No. 99-2512, Armstrong appeals a district court order that (1)
denied Armstrong leave of court to file a complaint against Koury,
and (2) amended a June 1998 prefiling injunction. Because Arm-
strong's proposed complaint was frivolous, we affirm that portion of
the court's order denying Armstrong leave of court to file a complaint
against Koury. For the reasons that follow, we affirm as modified that
portion of the court's order that amended the June 1998 prefiling
injunction.
Federal courts have the authority to enjoin litigants from abusing
the judicial process. "Federal courts have both the inherent power and
the constitutional obligation to protect their jurisdiction from conduct
which impairs their ability to carry out Article III functions." In re
Martin-Trigona, 737 F.2d 1254, 1261 (2d Cir. 1984); see Graham v.
Riddle, 554 F.2d 133, 134-35 (4th Cir. 1977). Prefiling injunctions
should be "tailored to the specific circumstances presented." Cok v.
Family Court of Rhode Island, 985 F.2d 32, 34 (1st Cir. 1993). No
person "shall ever be denied his right to the processes of the court."
In re Green, 598 F.2d 1126, 1127 (8th Cir. 1979).
In the instant case, the amended prefiling injunction totally restricts
Armstrong's access to the federal courts with regard to any action,
including actions unrelated to Koury. Although we agree with the dis-
2
trict court that Armstrong has abused the judicial process by filing
multiple lawsuits against Koury arising out of the same incidents, the
amended prefiling injunction was too broad because it totally
restricted Armstrong's access to the federal courts with regard to any
action against any defendant until he paid costs and attorneys fees to
Koury. See Castro v. United States, 775 F.2d 399, 410 (1st Cir. 1985)
("if an injunction against future litigation were couched in overly
broad terms, this could impermissibly infringe upon a litigator's right
of access to the courts").
Thus, pursuant to our authority under 28 U.S.C.§ 2106 (1994), we
modify that portion of the district court's October 1, 1999, order that
amended the June 1998 prefiling injunction to read on page 2 as fol-
lows (modification in italics):
The clerk of this court shall, without submission to the court
and without further direction, return to Arthur O. Armstrong
any attempted filings by Arthur O. Armstrong, or anyone on
his behalf, against Koury Corporation, the Holiday Inn, or
its employees, until Mr. Armstrong submits proof that he has
paid the court-ordered sum of $4,725.00 to Koury Corpora-
tion. The June 12, 1998, injunction remains intact and
Arthur O. Armstrong must still seek leave of court prior to
commencing any federal lawsuit.
Accordingly, we affirm the district court's order in No. 99-2511
and affirm as modified the district court's order in No. 99-2512. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
No. 99-2511 - AFFIRMED
No. 99-2512 - AFFIRMED AS MODIFIED
3
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805 F.2d 391
Sherrierv.Richard
86-7481
United States Court of Appeals,Second Circuit.
10/21/86
S.D.N.Y., 644 F.Supp. 858
AFFIRMED
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236 B.R. 791 (1998)
In re VENICE-OXFORD ASSOCIATES LIMITED PARTNERSHIP, Debtor.
Bankruptcy No. 97-9831-8G1.
United States Bankruptcy Court, M.D. Florida, Tampa Division.
April 17, 1998.
*792 Russell M. Blain, Wanda H. Anthony, Stichter, Riedel, Blain & Prosser, P.A., Tampa, FL, for Venice-Oxford Associates Limited Partnership.
Paul Bennett Bran, Guy S. Neal, Dickstein, Shapiro, Morin & Oshinsky, L.L.P., Washington, D.C., for Venice-Oxford Associates Limited Partnership.
*793 Gregg W. McClosky, Michael J. Ioannou, Mattlin & McClosky, Boca Raton, FL, for Multifamily Mortgage Trust 1996-1 and LaSalle National Bank.
ORDER ON MOTION FOR AUTHORITY TO USE CASH COLLATERAL
PAUL M. GLENN, Bankruptcy Judge.
THIS CASE came before the Court for hearing on the Motion for Authority to Use Cash Collateral filed by the Debtor, Venice-Oxford Associates Limited Partnership. The Debtor is the owner of an apartment complex in Sarasota County, Florida (the Property). In its Motion, the Debtor requests permission to use the rents generated from the apartment complex to pay its ordinary business expenses and to preserve the value of the Property.
The Debtor's primary secured creditors are Multifamily Mortgage Trust 1996-1 and LaSalle National Bank (Creditors). The Creditors claim that they are the holders of a first mortgage on the Debtor's Property. The Creditors also contend that they are the owners of all rents, including future rents, generated from the Property pursuant to a Final Judgment of Foreclosure entered in the Sarasota County Circuit Court prior to the filing of the Debtor's bankruptcy petition. Consequently, the Creditors assert that the rents are not property of the Debtor's bankruptcy estate, and oppose the Debtor's use of the rents as requested in the Motion.
Procedural Background
On March 7, 1997, the Debtor filed its voluntary petition under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court for the District of Maryland.
On March 21, 1997, the Debtor filed a Motion for Authority to Use Cash Collateral. In the motion, the Debtor requested authority to use "cash collateral in the form of rents and proceeds arising from the Debtor's property, pursuant to 11 U.S.C. § 363(c)(2)." A hearing was conducted, and on June 10, 1997, the Bankruptcy Court in Maryland entered an Order granting the motion in part. The Order states that the "Debtor has a property interest in the rents (the "Rents") collected from leases at the Debtor's residential apartment complex," and also states that the Creditors hold "an interest in the Rents." The Order authorizes the Debtor to pay "the reasonable and necessary expenses associated with the operations and maintenance of the Property for the limited period beginning on the petition date (March 7, 1997) and ending thirty (30) days from the entry date of this order." The Order also establishes a method for the management of the rents.
On the same date that the order was entered authorizing the temporary use of the rents, the Court also entered an order transferring the venue of the Chapter 11 case to the Bankruptcy Court for the Middle District of Florida.
After the case had been transferred, the Debtor filed an Emergency Motion for Authority to Use Cash Collateral. In the Emergency Motion, the Debtor again requests authority to use the rents paid by the tenants in the apartment complex "to pay the ordinary business expenses necessary to operate the debtor's business and to preserve and maintain the value of the property."
The Creditors filed an Objection and Memorandum of Law in Opposition to Debtor's Emergency Motion for Authority to Use Cash Collateral. In the Memorandum, the Creditors "object to the use of any of the rents as cash collateral since the Rents are not property of the estate, but instead are the sole property of Mortgage Trust and LaSalle by virtue of the Final Judgment." A copy of a Final Judgment of Foreclosure docketed in the Circuit Court for Sarasota County on February 13, 1997, is attached to the Objection and *794 Memorandum. Paragraph 16 of the Final Judgment states:
All rents, issues, proceeds, income, revenue and profits arising from the Property ("Rents") described in the Loan Documents previously collected by Venice-Oxford and all Rents hereinafter generated from the Property shall forthwith be delivered to Plaintiffs and Plaintiffs are hereby declared the owner of all Rents. Further, all Rents deposited into the escrow account pursuant to this Court's Order dated October 16, 1996, shall forthwith be delivered to Plaintiffs.
The Creditors contend that the Final Judgment "divests Venice-Oxford of any interest in the rents, issues, proceeds, income, revenue and profits arising from the Property ("Rents") previously collected by Venice-Oxford and all Rents generated from the Property after the entry of the Final Judgment."
The issue in this case is whether rents generated from the Debtor's apartment complex constitute "cash collateral" within the meaning of § 363(a) of the Bankruptcy Code which the Debtor may use, sell, or lease pursuant to § 363(b)(1) of the Bankruptcy Code.
The Creditors assert that the Final Judgment has preclusive or collateral estoppel effect with respect to the ownership of the rents, and that ownership of the rents passed to the Creditors when the Final Judgment was entered pursuant to section 697.07 of the Florida Statutes. The Creditors assert that the Final Judgment of Foreclosure is a "final adjudication" within the meaning of that statute, and that this Court is bound to give the Final Judgment full faith and credit pursuant to 28 U.S.C. § 1738.
The Debtor contends that the issues presented in the foreclosure action were not identical to the issues presented in the cash collateral proceedings, and that ownership of the rents was never "actually litigated" in the state court foreclosure action. According to the Debtor, an issue must have been "actually litigated" in the prior proceeding before the doctrine of collateral estoppel can be invoked. Consequently, the Debtor asserts that collateral estoppel does not apply in this case to preclude litigation regarding the ownership of the rents.
The State Court Action
The Debtor filed in this Court a copy of the state court pleadings file from the foreclosure case. The state court file reflects the following:
On or about August 12, 1996, the Creditors filed an action in the Circuit Court for Sarasota County, Florida to foreclose a mortgage on real property. In the Complaint, the Creditors allege that the Debtor "owns and operates a multi-unit rental apartment complex and other improvements on the real property which is the subject matter of this action," that the Creditors own and hold a mortgage note, mortgage, and security agreement with respect to the Property, and that the Debtor had failed to make the mortgage payments when due. Consequently, the Creditors sought a judgment foreclosing the mortgage and security interest created by the loan documents.
Also on August 12, 1996, the Creditors filed a Motion for Appointment of Receiver and Alternative Motion to Compel Deposit of Rents. In paragraph 8 of the motion, the Creditors allege that they had served the Debtor with written notice of default and a demand for the rents pursuant to Section 697.07 of the Florida Statutes. The Creditors requested, among other relief, the entry of an order compelling the Debtor to turn over to the Creditors "all rents, income, profits, deposits and account receivables in its possession at the time of the written demand and collected thereafter."
On September 27, 1996, the Debtor filed a Verified Amended Answer and Affirmative Defenses to the Complaint. The Affirmative Defenses include waiver and estoppel, breach of contract, failure of the Creditors to satisfy certain conditions precedent, *795 the statute of limitations, and laches. On September 24, 1996, the Debtor served its Memorandum in Opposition to the Creditors' Motion for Appointment of Receiver and Alternative Motion to Compel Deposit of Rents. In this Memorandum, the Debtor primarily contends that the Creditors had failed to establish the Debtor's default under the loan documents, a prerequisite to an order compelling the deposit of rents, and also that the Creditors are estopped from declaring a default and seeking the deposit of rents because of the conduct of the Creditors' predecessors in continuing to accept payments from the Debtor after the occurrence of the alleged default.
On or about September 19, 1996, the Creditors filed a Memorandum of Law in Support of Motion for Appointment of Receiver and Alternative Motion to Compel Deposit of Rents. In the Memorandum, the Creditors argue that the assignment of rents contained in the loan documents was absolute, and that they are entitled to the rents pursuant to Section 697.07 of the Florida Statutes. According to the Creditors, Section 697.07 entitles them to the immediate turnover of all rents collected from the Property. The Creditors contend that the right is subject only to the delivery of written demand and the Debtor's failure to turn over the rents, and that both of these conditions had been satisfied.
On November 20, 1996, the Creditors filed a Motion for Summary Judgment. Paragraph 1 of the Motion for Summary Judgment states that "[t]his is an action to foreclose a mortgage on certain real property located in Sarasota County, Florida ("Property")." The motion then recites the history of the loan documents, the Debtor's default under the documents, the balance due to the Creditors, and the Debtor's affirmative defenses set forth in its Answer. The Creditors request that the Court enter a final summary judgment "and foreclose the interest of said defendant and all other persons or entities claiming under or against Mortgage Trust and LaSalle's interest in the Property," and award reasonable fees and costs to the Creditors. The Motion does not include any specific reference to the assignment of rents under the loan documents, or to the Creditors' entitlement either to collected or future rents.
On October 16, 1996, the Circuit Court entered an Order Denying Motion for Appointment of Receiver and Granting Alternative Motion to Compel Deposit of Rents. In granting the Motion to Compel Deposit of Rents, the state court ordered that all rents collected by the Debtor as of the date of the order "and all Rents collected thereafter net of amounts payable by Venice-Oxford to pay reasonable, necessary and ordinary expenses solely to protect, preserve, and operate the real property ("Net Rents") shall forthwith be deposited into a jointly controlled interest bearing account ("Escrow Account"). . . . No monies shall be disbursed from the Escrow Account without the written agreement of Plaintiffs and Venice-Oxford or Court order."
On October 25, 1996, the Creditors filed a Motion for Reconsideration of the Order Denying the Motion for Appointment of Receiver and Granting Alternative Motion to Compel Deposit of Rents. The Motion was filed on the basis that the Order did not provide the Creditors with the protection intended by Section 697.07 of the Florida Statutes. The focus of the Motion for Reconsideration is the Creditors' claim to "collected rents:"
1. Section 697.07(3) defines "collected rents" as all rents in the possession of the mortgagor at the time that written demand was made for turnover of the rents, or rents collected thereafter. (Motion for Reconsideration, ¶ 7.)
2. The subsection further provides that an assignment of rents shall be enforceable upon the mortgagor's default and the mortgagee's written demand for the rents, and that the mortgagor shall turn over the "collected rents" at that time. (Motion, ¶ 7.)
*796 3. A court may require the mortgagor to deposit the "collected rents" into the registry of the court pending final adjudication of an action. (Motion, ¶ 8.)
4. Consequently, the Creditors contend that the Debtor in this case is required to turn over or deposit all rents in its possession at the time that the Creditors made written demand, or rents collected after the written demand. (Motion, ¶ 6.)
In the Motion for Reconsideration, the Creditors also asserted that the Order compelling the deposit of rents allowed the Debtor to deduct "amounts payable" from collected rents, rather than amounts "actually incurred."
The Creditors' Motion for Reconsideration was heard on October 29, 1996, and an Order Denying the Motion was entered on November 6, 1996.
On February 13, 1997, a hearing was conducted on the Creditors' Motion for Summary Judgment. At the hearing, the Creditors argued that the record established their entitlement to the entry of a summary judgment because (1) the loan documents had been authenticated; (2) the Debtor had defaulted in its payment obligations; and (3) the Creditors had served a declaration of default and written demand on the Debtor. The Creditors also argued that the Debtor's affidavit in opposition to the motion for summary judgment was legally insufficient to create any issues of fact, and that the Debtor's affirmative defenses did not preclude the entry of a summary judgment. In response, the Debtor primarily contended that the Creditors' predecessor had accepted partial payments prior to the filing of the foreclosure action, and that the Creditors were bound by the actions of their predecessors and therefore were estopped from declaring a default and foreclosing the mortgage. No reference was made by either party at the hearing either to the assignment of rents or to the effect of Fla. Stat. § 697 in determining the ownership of such rents.
The Creditors' attorney prepared the proposed final summary judgment and provided a copy of the proposed judgment to the Debtor's attorney shortly before the hearing. Debtor's counsel reviewed the form of judgment after the hearing without comment.
On February 13, 1997, the Circuit Court entered the Final Judgment of Foreclosure. The Final Judgment forecloses the Debtor's claims in the real property and personal property described in the loan documents, and determines that the Debtor owed the Creditors a total sum of $6,693,567.50. The Final Judgment also scheduled the foreclosure sale of the property for March 14, 1997, and set forth the procedures for sale to the highest bidder, filing the Certificate of Title, distribution of the sale proceeds, reporting the existence of any surplus or deficiency, and filing the Certificate of Sale.
Paragraph 15 of the Final Judgment provides that, upon the judicial sale and the filing of the Certificate of Sale and Certificate of Title by the Clerk, the successful purchaser "shall forthwith without delay, be given possession of the property and personal property."
Paragraph 16 of the Final Judgment provides:
All rents, issues, proceeds, income, revenue and profits arising from the Property ("Rents") described in the Loan Documents previously collected by Venice-Oxford and all Rents hereinafter generated from the Property shall forthwith be delivered to Plaintiffs and Plaintiffs are hereby declared the owner of all Rents. . . .
Paragraph 16 also provided for the delivery to the Creditors of the rents previously deposited into the escrow account in accordance with the Court's prior order.
The Debtor filed its Chapter 11 petition seven days before the foreclosure sale scheduled pursuant to the Final Judgment, and the sale was stayed pursuant to section 362 of the Bankruptcy Code.
*797 Discussion
On October 27, 1982, the Debtor executed a Mortgage in favor of Shearson/American Express Mortgage Corporation to secure a Mortgage Note executed on the same date. The property described in the Mortgage includes the real property on which the apartment complex is located, all improvements, and all rents "accruing and to accrue from said premises." Paragraph 4 of the Mortgage states:
4. That all rents, profits and income from the property covered by this mortgage are hereby assigned to the mortgagee for the purpose of discharging the debt hereby secured. Permission is hereby given to mortgagor so long as no default exists hereunder, to collect such rents, profits and income.
The Mortgage ultimately was assigned to the Creditors following several intermediate assignments. On August 2, 1996, the Creditors mailed to the Debtors a written demand for the total amount due under the Mortgage Note and Mortgage "as a result of your material defaults under the Loan Documents." The letter also stated:
Further, pursuant to the Loan Documents and Florida Statute § 697.07, demand is hereby made that all rents, issues, proceeds, and profits accruing and to accrue ("Rents") arising from the property described in the Loan Documents ("Property") in your possession or collected hereafter should be forthwith be turned over. . . .
The Debtor did not comply with the Creditors' demands, and the Creditors filed the foreclosure action in the Sarasota County Circuit Court on August 12, 1996.
A. Mortgages, Rents, and Florida Statute § 697.07 (1993).
"The Lien Theory of mortgages, as established in Florida law, articulates the legal philosophy associated with all parties' rights and duties encompassed in any mortgage transaction." Thomas E. Baynes, Jr. Mortgages, The Law in Florida, § 1-1 (1993). "A mortgage shall be held to be a specific lien on the property therein described, and not a conveyance of the legal title or of the right of possession." Fla. Stat. § 697.02. This statute appears to have its origins in the Laws of Florida of 1853.
The entitlement of mortgagees to rents, and the validity and effects of pledges of rents, have been the subjects of longstanding caselaw in Florida. See Pasco v. Gamble, 15 Fla. 562 (1876); Carolina Portland Cement Co. v. Baumgartner, 99 Fla. 987, 128 So. 241 (1930); White v. Anthony Investment Co., 119 Fla. 108, 160 So. 881 (1935). These cases established several principles. Generally, a mortgagor is not accountable to the mortgagee for rents. Under certain circumstances, however, a mortgagee may have a right to rents. Pasco v. Gamble, 15 Fla. at 564, 570. A mortgagor may pledge rents along with the land as security for the debt. Carolina Portland Cement Co. v. Baumgartner, 128 So. at 245. A mortgagee may be entitled to the appointment of a receiver to collect pledged rents. Carolina Portland Cement Co. v. Baumgartner, 128 So. at 249, 250. The mortgagee may be entitled to receive the pledged rents, to be credited to the mortgage debt, from the time he takes possession of the property either by consent of the owner or through the appointment of a receiver in foreclosure proceedings. White v. Anthony Investment Co., 160 So. at 882.
In 1987, the Florida Legislature enacted Section 697.07, Florida Statutes, to address the assignment of rents. The provisions of the statute as it was initially enacted[1] resulted in divergent views regarding its application. Compare In re 163rd Street Mini Storage, Inc., 113 B.R. 87, 90 (Bankr.S.D.Fla.1990) (Weaver, J.) *798 (§ 697.07 creates an absolute transfer of the ownership interest in the rents, upon default and written demand to the mortgagor) with In re One Fourth Street North, Ltd., 103 B.R. 320, 321 (Bankr. M.D.Fla.1989) (Paskay, C.J.) ("§ 670.07 was not intended to constitute a complete derogation of the law that had been well settled in this state," and "was not meant to create an outright or absolute transfer of ownership interest in rents.") and In re Growers Properties, 117 B.R. 1015, 1016 n. 1 (Bankr.M.D.Fla.1990) (Baynes, J.) ("Any reading of the statute to create an absolute transfer of all interest in rents not only goes against the mortgage lien theory, but eliminates any reorganization by a Chapter 11 debtor").
In 1993, the Florida Legislature completely revised Section 697.07, and the statute now contains extensive provisions relating to the assignment of rents. The section now contains eight subsections.
Subsection 1 provides that either a mortgage or a separate instrument may create an assignment of rents as security for the repayment of a debt.
Subsection 2 provides:
(2) If such an assignment is made, the mortgagee shall hold a lien on the rents, and the lien created by the assignment shall be perfected and effective against third parties upon recordation of the mortgage or separate instrument in the public records of the county in which the real property is located, according to law.
The assignment is not an automatic, complete transfer of all rights in the rents, but instead only creates a lien on the rents which may be perfected by recordation.
Subsection 3 provides:
(3) Unless otherwise agreed to in writing by the mortgagee and mortgagor, the assignment of rents shall be enforceable upon the mortgagor's default and written demand for the rents made by the mortgagee to the mortgagor, whereupon the mortgagor shall turn over all rents in the possession of the mortgagor at the time of the written demand or collected thereafter (the "collected rents") to the mortgagee less payment of any expenses authorized by the mortgagee in writing.
The assignment is "enforceable" upon the mortgagor's default and a written demand for the rents by the lender. Upon demand, the mortgagor is to turn over all "collected rents," defined as rents in the possession of the mortgagor at the time of the demand and rents collected by the mortgagor after the date of the demand.
Subsection 4 provides:
(4) Upon application by the mortgagee or mortgagor, in a foreclosure action, and notwithstanding any asserted defenses or counterclaims of the mortgagor, a court of competent jurisdiction, pending final adjudication of any action, may require the mortgagor to deposit the collected rents into the registry of the court, or in such other depository as the court may designate. However, the court may authorize the use of the collected rents, before deposit into the registry of the court or other depository, to:
(a) Pay the reasonable expenses solely to protect, preserve, and operate the real property, including, without limitation, real estate taxes and insurance;
(b) Escrow sums required by the mortgagor or separate assignment-of-rents instrument; and
(c) Make payments to the mortgagee.
In a foreclosure action, "pending final adjudication of any action," the court may require the mortgagor to deposit the collected rents into a designated depository. The court may also permit collected rents to be used to pay reasonable expenses for the benefit of the property, however, and such payments may be made before any remaining or net rents are deposited into the depository. The court may further permit collected rents to be used to make payments to the mortgagee.
Subsection 5 provides:
*799 (5) Nothing herein shall preclude the court from granting any other appropriate relief regarding the collected rents pending final adjudication of the action. The undisbursed collected rents remaining in the possession of the mortgagor or in the registry of the court, or in such other depository as ordered by the court, shall be disbursed at the conclusion of the action in accordance with the court's final judgment or decree.
The court may authorize other interim measures regarding the collected rents "pending final adjudication of the action." Final disbursement of the collected rents shall be made at the conclusion of the action in accordance with the final judgment.
Subsection 6 provides for an expedited hearing on an application to enforce the assignment of rents, and also provides that the procedures set forth in section 697.07 are in addition to any other legal or contractual remedies that the parties may have.
Subsection 7 provides that the statute does not affect the lien priorities that existed with respect to the collected rents before the written demand for the rents by the lender. The subsection also provides:
(7) . . . A mortgagee's enforcement of its assignments of rents under this statute shall not operate to transfer title to any rents not received by the mortgagee.
Although a lender may acquire title to rents actually received by it, the lender's compliance with the statute, without more, does not transfer ownership of any other rents arising from the property.
Subsection 8 relates to the application of rents received by the lender, and provides that any rents received by the lender must be applied in accordance with the loan documents.
It is now clear that Section 697.07 does not provide for the transfer of ownership of rents without the mortgagor's consent or court action. Pursuant to subsection 2, an assignment of rents is not an absolute transfer, but creates only a lien on the rents. By serving a written demand pursuant to subsection 3, a lender is entitled to the turnover from the mortgagor of "collected rents," as defined in the subsection. If the rents are not turned over and a foreclosure action is filed, a court may require the mortgagor to deposit rents in a designated account "pending final adjudication" of the action. The court may also order that the rents be used to pay expenses associated with the property and to make payments to the mortgagee. Clearly these measures are intended to preserve the rents for the benefit of interested parties until the various claims to the property can be fully determined. The rationale for the section may be that, because rents in the form of cash are subject to rapid dissipation, a mechanism is necessary to prevent such dissipation while the rights of the parties are being determined. In any event, the primary consequence of the statute is that net rents are temporarily deposited and held until a "final adjudication" is made of the parties' rights. Finally, and perhaps most importantly, subsection 7 expressly states that a lender's compliance with the statute does not automatically result in the transfer of title to the rents if the lender has not actually received possession of the rents.
Accordingly, compliance with the statute as amended does not effect a transfer of title to the rents to the mortgagee if the mortgagor does not turn the rents over to the mortgagee.
The Debtor in this case was not divested of its interest in the rents from the apartment complex solely because the Creditors had pursued their remedies under Section 697.07 of the Florida Statutes.
B. The Final Judgment and Collateral Estoppel.
As set forth above, paragraph 16 of the Final Judgment of Foreclosure *800 states that the Creditors are the owners of all rents previously collected by the Debtor, and also of all rents generated from the apartment complex after the date of the Judgment. The question is whether this language effectively divested the Debtor of all of its interest in the rents, including future rents, generated by the property, so that such rents did not become property of the Debtor's bankruptcy estate upon the filing of the Chapter 11 petition.
The key facts presented to the court in In re Brackin, 158 B.R. 249 (Bankr.M.D.Fla.1993)(Paskay, C.J.) are materially the same as those present in this case. In Brackin, the debtor had executed a mortgage which included an assignment of rents to the creditor. After the debtor defaulted, the creditor made a written demand for all rents from the mortgaged property, in addition to payment of the total balance due under the loan documents. In re Brackin, 158 B.R. at 250. The creditor then filed a foreclosure action in the Hillsborough County Circuit Court, and the Circuit Court subsequently entered a Final Judgment In Foreclosure. Id. In the Final Judgment, the Circuit Court "expressly determined that Seaboard has an absolute ownership interest in and to said rental revenues in accordance with Florida Statutes § 697.07." Id. The Final Judgment also provided that no sale would be scheduled so long as the debtor made certain payments called for by the judgment. The debtor again defaulted, and a public sale of the property was scheduled. Five days before the scheduled sale, the debtor filed his Chapter 11 petition. Id. In the bankruptcy case, the creditor filed a motion to prohibit the debtor's use of the rents, and for the entry of an order allowing the creditor to collect all future rents. Id. at 249. The creditor asserted that it was the owner of the rents pursuant to the Final Judgment of Foreclosure and Section 697.07 of the Florida Statutes, and that the rents therefore were not property of the debtor's bankruptcy estate. Id. at 250.
Judge Paskay first cited his prior ruling in In re One Fourth Street North, Ltd., 103 B.R. 320 (Bankr.M.D.Fla.1989) for the proposition that Section 697.07 only creates a simplified method to perfect a creditor's right to sequester rents, and contemplates further judicial proceedings before a determination is made regarding a creditor's right to the rents. Judge Paskay then states:
The crucial difference between One Fourth Street and the instant case is that in the instant case the Circuit Court entered a final judgment adjudicating the right to the rent, thereby triggering the language in the statute.
. . . [T]he Circuit Court in the present case in no way restrained Seaboard's use of the rental funds. Thus there is no valid reason to find anything but that the Final Judgment entered by the Circuit Court on December 6, 1990, completely divested the Debtor of any interest he had in the rents and profits derived from the mortgaged property.
Id. at 251. The Court therefore concluded that:
[B]ased on the Debtor's default and entry of Final Judgment divesting the Debtor of any interest he had in the rents, and Seaboard's compliance with the provisions of § 697.07, the Assignment of Rents operated as an absolute transfer of the income stream to the mortgagee prior to the filing of the Bankruptcy Petition. See In re Sunrise Indus. Development Corp., 121 B.R. 911 (Bankr.S.D.Fla.1990).
Id. at 252. The Court directed the debtor to deliver all rental revenue to the creditor immediately upon receipt, and to do all things necessary to ensure that future rents were paid directly to the creditor. Id. Although Section 697.07 was amended after Brackin was entered, the particular amendment does not affect the reasoning underlying the decision.
Judge Paskay's opinion in Brackin had been foreshadowed by the earlier decision of Judge Mark in In re Shoppes of Hillsboro, *801 131 B.R. 1018 (Bankr.S.D.Fla.1991). In Shoppes, the debtor, as the owner of a shopping center, executed a note, mortgage, and assignment of leases, rents, and profits in favor of Meritor Savings Bank. Meritor subsequently declared a default by the debtor and made a written demand for turnover of rents pursuant to section 697.07 of the Florida Statutes. In re Shoppes, 131 B.R. at 1019. Meritor then commenced a foreclosure action in state court and filed a motion in the foreclosure action to enforce the assignment and compel the debtor to pay the collected rents into the registry of the court. The court entered an order granting the motion and directing the debtor to deposit the rents into the state court registry. The debtor filed a Chapter 11 petition several months later. The issue framed by Judge Mark was whether the rents generated from the shopping center were property of the debtor's estate at the time that the Chapter 11 petition was filed. Id.
Judge Mark concluded that the rents were property of the estate. Id. at 1023. In reaching this decision, the Court agreed with Judge Paskay's opinion in One Fourth Street, supra, together with a state appellate decision in Nassau Square Associates, Ltd. v. Insurance Commissioner, 579 So.2d 259 (Fla. 4th DCA 1991), determining that Section 697.07 does not effectuate an absolute transfer of rents, but instead contemplates further judicial proceedings to transfer ownership. In re Shoppes, 131 B.R. at 1023. Of significance to this case, however, is Judge Mark's clear opinion that the result in Shoppes may have been different had the state court made an adjudication of Meritor's right to the rents in the foreclosure action prior to the filing of the bankruptcy petition. One of three "undisputed facts" upon which the Court relied in reaching its decision was that the state court had not adjudicated Meritor's right to the rents before the bankruptcy case was filed. Id. at 1019. The Court therefore commented:
Other issues remain including interpretation of the statutory phrase "pending adjudication of the mortgagee's right to the rent" which modifies the prior phrase providing for the deposit of the rents into the court registry. Does it mean pending a final judgment of foreclosure with title to the rents passing to the mortgagee only after a final judgment? Alternatively, it could contemplate a preliminary adjudication by the state court which would simply determine whether the mortgagee had a valid assignment, whether the note was in default and whether the mortgagee had made proper written demand under the statute.
I do not decide that issue because there was no preliminary or final adjudication in the state action prior to the Chapter 11 filing in this case.
Id. at 1023. (Emphasis supplied.) The Court's conclusion, therefore, is carefully limited as follows:
In cases where pre-bankruptcy implementation of § 697.07 results in the deposit of rents into the state court registry and there has been no preliminary or final adjudication of the mortgagee's rights by the state court, the rents in the state court registry and the future stream of rents are property of the estate upon filing of a Chapter 11.
Id. (Emphasis supplied.) Consequently, it appears that the Court may have determined that future rents were not property of the estate if a judgment had been entered in the foreclosure action prior to the filing of the Chapter 11 petition, although Judge Mark was not required to decide what form the judgment must take to divest the debtor of title to the rents. It also appears, however, that the Court considered the possibility that a final judgment of foreclosure may be an "adjudication" sufficient to effect such a transfer.
In the case before this Court, of course, a Final Judgment of Foreclosure was in fact entered prior to the filing of the Chapter 11 petition, and the Final Judgment *802 contained a provision that expressly declared that the Creditors were the owners of all rents. According to Judge Paskay's decision in Brackin, therefore, the prepetition order completely divested the Debtor of any interest that it had in the rents, and the Final Judgment coupled with the Creditors' compliance with Section 697.07 operated as an absolute transfer of the income stream generated by the Debtor's apartment complex. See In re Brackin, 158 B.R. at 251-52. The Brackin decision does not state that it is based on the doctrine of collateral estoppel or that the bankruptcy court was applying full faith and credit to the state court decision. Instead, the Court noted only that the state court did not place any restrictions on the lender's use of the rents in that case, and that "there is no valid reason" to upset the Circuit Court's prepetition judgment. Id. at 251.
The Creditors in this case contend that the Circuit Court's Final Judgment has preclusive effect in this Court, and that the preclusive effect is found by applying Florida's law of collateral estoppel.
The preclusive effect of a state court judgment in a subsequent federal lawsuit generally is determined by the full faith and credit statute, which provides that state judicial proceedings "shall have the same full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State . . . from which they are taken." 28 U.S.C. § 1738. This statute directs a federal court to refer to the preclusion law of the State in which judgment was rendered.
Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985). When considering the collateral estoppel effect of a judgment from a Florida court, the Eleventh Circuit Court of Appeals stated:
If the prior judgment was rendered by a state court, then the collateral estoppel law of that state must be applied to determine the judgment's preclusive effect. In re Touchstone, 149 B.R. 721, 725 (Bankr.S.D.Fla.1993). Under Florida law, the following elements must be established before collateral estoppel may be invoked: (1) the issue at stake must be identical to the one decided in the prior litigation; (2) the issue must have been actually litigated in the prior proceeding; (3) the prior determination of the issue must have been a critical and necessary part of the judgment in that earlier decision; and (4) the standard of proof in the prior action must have been at least as stringent as the standard of proof in the later case.
In re St. Laurent, 991 F.2d 672, 675-76 (11th Cir.1993) (Citations omitted).
The Debtor contends that the Circuit Court Final Judgment does not have preclusive effect in this case because (1) the issues in the foreclosure action are not identical to the issue in the bankruptcy case; (2) the ownership of rents was not "actually litigated" in the foreclosure action; and (3) the ownership of the rents was not a critical and necessary part of the foreclosure action.
The Court concludes that all the elements of collateral estoppel are satisfied, and that the state court's Final Judgment determining the ownership of the rents should be given preclusive effect.
The Mortgage was executed by the Debtor on October 27, 1982. The property which was mortgaged includes all rents accruing and to accrue from the apartments. The assignment of rents is also contained in the Mortgage. The Complaint filed in the Circuit Court on August 12, 1996, commenced an action to foreclose a "mortgage." (Complaint, ¶ 6). "Mortgage" was defined in paragraph 7 of the Complaint as the Mortgage signed by the Debtor on October 27, 1982. The Mortgage containing the description of the mortgaged property and the assignment of rents was attached to the Complaint as Exhibit B. In the Complaint, the Creditors allege that the Debtor defaulted under the *803 loan documents, and "demand judgment foreclosing the Mortgage." Accordingly, the document which includes the description of the mortgaged property and the assignment of rents was the subject of the foreclosure action.
Further, as a proceeding within the foreclosure action, the Creditors filed a Motion to Compel the Deposit of Rents into the court registry, which of course focused specifically on the rents generated from the apartment complex. The Motion cites Section 697.07 of the Florida Statutes.
The Debtor responded both to the initial Complaint and to the Motion to Compel Deposit of Rents. The gravamen of the Debtor's response was that no default actually existed under the loan documents, or that the Creditors were estopped from asserting such a default, because the Creditors' predecessors had accepted payments after a delinquency had occurred. Consequently, the Debtor argued that the Creditors were not entitled to foreclose the Mortgage or to the rents.
After the state court entered an Order compelling the deposit of rents, only the Creditors filed a motion for reconsideration of the order. The motion for reconsideration again cited Section 697.07, and contended that the order compelling the deposit did not provide the Creditors with all of the protections afforded by the statute.
The Debtor subsequently appeared at the hearing to consider the Motion for Summary Judgment filed by the Creditors. The primary defense again raised by the Debtor at that hearing was that the Creditors were not entitled to declare a default in view of the conduct of their predecessors. The Debtor's attorney was provided with a copy of the proposed Final Judgment shortly before the hearing, reviewed the Judgment following the hearing, and did not comment on its form or content.
The Creditors were foreclosing a Mortgage in the state court case. It is fundamental that the ultimate objective of a foreclosure action is the sale of the property subject to the mortgage or security agreement, and the application of the proceeds from the sale to reduce or satisfy the obligation owed to the secured party. See, for example, Fla. Stat. § 702.09. As the Debtor points out, it is also fundamental that the ownership of rents follows the ownership of the property from which they arise. However, in this case the Debtor pledged and assigned its interest in the rents, including future rents, to secure the debt, and the Creditors sought to enforce that assignment. Both the state court order compelling the deposit of rents and Fla. Stat. § 697.07 are clear that the disposition of rents was subject to final determination by the state court. Accordingly, the ultimate consequence of the foreclosure action would be the sale of the collateral covered by the Mortgage and a determination of the disposition of the rents which were pledged and assigned.
It was clear from the outset of the foreclosure action that the loss of the property, including the rents, was at stake in the proceeding. The record nowhere reflects that the Creditors intended to foreclose only on the underlying real property, but allow the Debtor to retain the income stream. On the contrary, the Creditors' sought to enforce their rights under the assignment of rents and to compel the deposit of rents into the court registry. These actions indicate that the Creditors were foreclosing on all of the collateral described in the Mortgage.
If the Debtor had any defenses to the enforcement of the assignment of rents or the foreclosure of the rents, therefore, it could have asserted those defenses in the foreclosure action. The Debtor was on notice that all of the Creditors' collateral was being foreclosed, including the rents, and the Debtor had the opportunity to raise any defenses that it had to such foreclosure.
The issue in this case, the ownership of the rents, is identical to the issue regarding *804 the ownership of rents in the foreclosure action.
The issue was actually litigated in the state court proceeding. The Bankruptcy Court assessed this requirement for collateral estoppel in In re Kecskes, 136 B.R. 578 (Bankr.S.D.Fla.1992) (Mark, J.). In Kecskes, a state court judgment had determined that the debtor had filed fraudulent liens against the plaintiff's property and awarded compensatory and punitive damages to the plaintiff. In re Kecskes, 136 B.R. at 580. The debtor subsequently filed a chapter 7 bankruptcy petition, and the plaintiff filed a complaint to determine that the debt evidenced by the state court judgment was nondischargeable under section 523(a)(6). The plaintiff also asserted that the debtor was precluded from relitigating the elements of its dischargeability claim because they already had been decided by the state court. Id. at 581. The debtor contended that collateral estoppel did not apply because he had not been placed on sufficient notice of the extent of his liability or the amount of the punitive damages to which he was exposed, and that the issue therefore was not actually litigated in the state court. Id.
The bankruptcy court determined that the key factor under Florida law regarding the "actual litigation" of an issue is whether the party had "an adequate opportunity to litigate." Id. at 583. The court noted that, under Florida law, even a default judgment may be given preclusive effect if the defendant had an adequate opportunity to litigate. Id. In Kecskes, therefore, the bankruptcy court found that the debtor had received an adequate opportunity to litigate, since the plaintiff in the state court case had cited the statutory basis for the award of punitive damages and included such an award in its request for relief. Id. Since the debtor was placed on notice of this component of the lawsuit, he received an "opportunity to litigate," even though he elected not to appear at the state court proceedings. See also Marulanda v. Marrero, 162 B.R. 20, 24 (S.D.Fla. 1993) (the "core issues" litigated in the state court action were the same as the issues raised in the bankruptcy proceeding, even though the claim was captioned differently in the state court action.)
Finally, the determination of the disposition of rents was a critical and necessary part of the judgment in the state court action. Florida Statutes § 697.07(4) provides that the state court may require the rents to be deposited into a depository "pending final adjudication" of the action. Florida Statutes § 697.07(5) provides that undisbursed collected rents shall be disbursed in accordance with the court's final judgment or decree. In its order requiring the rents to be deposited, the state court provided that no disbursements should be made without court order. Accordingly, the disposition of rents was a critical and necessary part of the Final Judgment.
The Debtor argues with specific reference to future rents that the elements of collateral estoppel are not satisfied. However, in the Mortgage, the Debtor mortgaged all rents "accruing and to accrue from said premises" and assigned "all rents, profits and income from the property." Florida Statutes Section 697.07(3) addresses all rents in the possession of the mortgagor at the time of the written demand for rents and all rents "collected thereafter." In the Final Judgment, the state court declared the creditors to be the owners of all rents "previously collected . . . and all Rents hereinafter generated from the Property." All of the rents which were mortgaged were in controversy in the state court action, and all elements of collateral estoppel are satisfied.
Conclusion
For the reasons expressed above, the Court concludes that all of the elements of collateral estoppel are present in this case, and that the Debtor is precluded from litigating the ownership of the rents in this bankruptcy case. The Final Judgment entered by the Circuit Court divested the Debtor of ownership of the rents prior to *805 the filing of the bankruptcy petition, the rents do not constitute property of the Debtor's estate, and do not constitute cash collateral that the Debtor may use, sell, or lease under Section 363(b)(1) of the Bankruptcy Code. The Debtor's Motion for Authority to Use Cash Collateral should be denied.
Accordingly:
IT IS ORDERED that the Motion for Authority to Use Cash Collateral filed by the Debtor, Venice-Oxford Limited Partnership, is denied.
NOTES
[1] "A mortgage may provide for an assignment of rents. If such assignment is made, such assignment shall be absolute upon the mortgagor's default, becoming operative upon written demand made by the mortgagee. . . ." Fla. Stat. § 697.07 (1987).
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565 N.W.2d 868 (1997)
223 Mich. App. 141
Joseph V. PALAZZOLA, personal representative for the Estate of Christopher A. Palazzola, Plaintiff-Appellant,
v.
KARMAZIN PRODUCTS CORPORATION, Defendant-Appellee.
Docket No. 180033.
Court of Appeals of Michigan.
Submitted April 3, 1996, at Detroit.
Decided April 22, 1997, at 9:00 a.m.
Released for Publication July 16, 1997.
*870 Lopatin, Miller, Freedman, Bluestone, Herskovic & Heilmann by Richard E. Shaw, Detroit, for Plaintiff-Appellant.
Sommers, Schwartz, Silver & Schwartz, P.C. by C.F. Boyle, Jr., and Patrick Burkett, Southfield, for Karmazin Products Corporation.
Before YOUNG, P.J., and HOLBROOK and J.R. ERNST[*], JJ.
*869 YOUNG, Presiding Judge.
This case involves the tragic work-related death of Christopher Palazzola on July 16, 1992. Plaintiff, as personal representative of the estate of Christopher Palazzola, brought suit against defendant Karmazin Products Corporation, Palazzola's employer, seeking to apply the intentional tort exception to the *871 exclusive remedy provided in the Worker's Disability Compensation Act (the act), M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1).[1] The trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(10), reasoning that plaintiff had not raised a genuine factual issue regarding defendant's intent to injure and therefore the intentional tort exception to the exclusive remedy provided in the act did not apply. Plaintiff appeals as of right from this ruling. We affirm.
I
Defendant is in the business of manufacturing radiators. Trichloroethylene (TCE) is an agent used in a degreasing system that cleans radiator parts. As plaintiff acknowledges, in its liquid state, TCE apparently can be handled with relative safety and defendant's employees had submerged their hands in liquid TCE without adverse effect. However, TCE evaporates readily at room temperature and, in its gaseous state, can be harmful or fatal if ingested or inhaled. Defendant's degreaser operation is served by a cooling system consisting of a water holding tank located below ground level that measures four feet wide by eight feet long by six and a half feet high.
On July 16, 1992, defendant had temporarily suspended its operations for summer maintenance. The plant's manager of manufacturing and engineering, Kenneth McIver, directed that the water holding tank be drained and refilled with clean water. Maintenance crew leader, Joe Kucmienski, led a team of maintenance workers, including Christopher Palazzola, to accomplish this task.
The crew drained the tank and, upon doing so, discovered sludge in the bottom of the tank. Kucmienski testified that he had not expected to find sludge and that he decided to remove the sludge before refilling the tank because this seemed the "logical" thing to do.[2] He directed a crew member, Michael Czerwonka, to begin this process. Czerwonka entered the tank and filled three buckets with sludge, which buckets had to be pulled out of the tank by rope. Following this, Kucmienski directed Palazzola to relieve Czerwonka. Czerwonka got out of the tank and Palazzola entered it.
Czerwonka testified that, upon getting out, he did not immediately express to anyone, including Kucmienski, any physical distress as a result of being in the tank. Czerwonka further testified in his deposition that, before he entered the tank, he could smell the fumes but "it wasn't so bad" and that the fumes "weren't that strong at all." He also testified that, when he got out of the tank, he realized that he was "nauseous and extremely light-headed," but did not disclose this fact to anyone for a minute or two. At that point, Czerwonka told co-worker Dale Burzycki, "[t]hose fumes are strong now." Burzycki immediately informed Kucmienski who, in turn, ordered Palazzola out of the tank. Czerwonka testified that, at the time he informed Burzycki about the strength of the fumes, Palazzola had been in the tank for a "minute or two at tops."
Unfortunately, by that point, Palazzola had become overwhelmed and was collapsing in the tank. Kucmienski entered the tank in an attempt to rescue Palazzola and he too was overcome. An effort to rescue both men ensued, wherein fire and police personnel were contacted. Kucmienski and Palazzola *872 were not removed from the tank for another 1½ hours. Although Kucmienski survived, Palazzola died as a result of his exposure.
II
On appeal, plaintiff argues that defendant's knowledge of the danger was foreseeable and that its decision to expose its employees to the TCE fumes in the holding tank falls within the intentional tort exception of the act. After plaintiff appealed to this Court, our Supreme Court issued Travis v. Dreis & Krump Mfg. Co., 453 Mich. 149, 551 N.W.2d 132 (1996), construing the act's intentional tort exception and outlining the proofs necessary to qualify under the exception.
Although the determination whether the facts alleged by the plaintiff are true is one for the trier of fact, it is a question for the court to determine whether the facts alleged are sufficient to constitute an intentional tort within the meaning of the act. Zuke v. Fritz Enterprises, Inc., 202 Mich.App. 572, 576, 509 N.W.2d 787 (1993). Therefore, on the basis of the Supreme Court's construction of the intentional tort exception in Travis, supra, we must determine whether plaintiff has alleged sufficient facts to bring his action within the intentional tort exception to the exclusive remedy of the act.
III
The disability benefits provided under the act are the exclusive remedy for work-related injuries. M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1). In 1986, although the statutory language contained no exception to this exclusive remedy, the Supreme Court in Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882 (1986), recognized an intentional tort exception, reasoning that while accidental injuries were a matter of course in industry, intentional injuries were not. Id. at 16, 398 N.W.2d 882. Beauchamp further held that an employer could be held liable for an intentional tort if injury was "substantially certain" to occur from the employer's actions. Id. at 21-22, 398 N.W.2d 882.
Shortly after Beauchamp, the Legislature enacted the "intentional tort exception" to the exclusive remedy of the act:
The only exception to this exclusive remedy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court. [M.C.L. § 418.131(1); M.S.A. § 17.237(131)(1).]
As recognized in Travis, supra, this provision represents the Legislature's attempt to correct Beauchamp's interpretation that the exclusive remedy of the act did not apply when injury was "substantially certain" to result from the employer's actions. Travis, supra, at 164-165, 551 N.W.2d 132. In separate opinions, a majority of the Supreme Court's justices agreed in Travis that the Legislature intended that actions falling within the intentional tort exception encompassed only those in which an employer acts with a specific purpose to injure an employee.[3] The Court's core holding concerning the construction of this provision was as follows:
If we read both sentences of the intentional tort exception together, it becomes evident that an employer must have made a conscious choice to injure an employee and have deliberately acted or failed to act in furtherance of that intent. The second sentence then allows the employer's intent to injure to be inferred if the employer had actual knowledge that an injury was certain to occur, under circumstances indicating deliberate disregard of that knowledge. [Id. at 180, 551 N.W.2d 132.]
In construing this provision, the lead opinion parsed the various critical phrases in the exception, articulating the elements of proof necessary to establish an employer's intent to injure through either *873 direct or indirect evidence. To paraphrase the Travis Court at 169-171, 551 N.W.2d 132, a plaintiff must establish the following elements:
(1) "Deliberate act"This includes both acts and omissions and encompasses situations in which the employer "consciously fails to act."
(2) "Specifically intended an injury"An employer must have had a conscious purpose to bring about specific consequences. When an employer is a corporation, a particular employee must possess the requisite state of mind in order to prove an intentional tort.[4]
Recognizing that direct evidence of intent is often unavailable, the Travis Court explained that the second sentence of the exception provides an alternative means of proving an employer's intent to injure. Id. at 172-173, 551 N.W.2d 132. Plaintiff here relies upon this alternative to establish the employer's intent. To paraphrase the Travis Court at 173-174, 176, 178-179, a plaintiff alternatively can prove intent to injure by establishing the following elements:
(1) "Actual Knowledge"This element of proof precludes liability based upon implied, imputed, or constructive knowledge. Actual knowledge for a corporate employer can be established by showing that a supervisory or managerial employee had "actual knowledge that an injury would follow from what the employer deliberately did or did not do."
(2) "Injury certain to occur"This element establishes an "extremely high standard" of proof that cannot be met by reliance on the laws of probability, the mere prior occurrence of a similar event, or conclusory statements of experts. Further, an employer's awareness that a dangerous condition exists is not enough. Instead, an employer must be aware that injury is certain to result from what the actor does.
(3) "Willfully disregard"This element requires proof that an employer's act or failure to act must be more than mere negligence, e.g., failing to protect someone from a foreseeable harm. Instead, an employer must, in fact, disregard actual knowledge that an injury is certain to occur.
With these principles of proof in mind, we review whether the trial court properly granted Karmazin's motion for summary disposition.
IV
The trial court concluded that no genuine issue of material fact existed regarding whether Karmazin's agents had "actual knowledge that injury was certain to occur."
This Court reviews a motion for summary disposition de novo. Stehlik v. Johnson (On Rehearing), 206 Mich.App. 83, 85, 520 N.W.2d 633 (1994). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual basis underlying a plaintiff's claim. Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993). MCR 2.116(C)(10) permits summary disposition when "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." Id. A court reviewing such a motion, therefore, must consider the pleadings, affidavits, depositions, admissions, and any other evidence in favor of the party opposing the motion, granting that party the benefit of any reasonable doubt, and determine whether there is a genuine issue of disputed fact. Id.
Applying the Travis Court's construction of the intentional tort exception of the act to the facts of this case, we conclude that plaintiff failed to establish, either through direct or circumstantial proof, that Karmazin's actions constitute an intentional tort. Plaintiff primarily contends that the evidence establishes that Karmazin repeatedly disregarded warnings that its workers' safety was in danger, and that plaintiff's decedent died as a result of Karmazin's continuing failure to advise employees of workplace danger as well as failure to provide appropriate safety equipment. Assuming arguendo that plaintiff's *874 evidence establishes a deliberate act, i.e., a conscious failure to act, Travis, supra at 170, 551 N.W.2d 132, plaintiff's evidence does not support an inference that Karmazin acted with an intent to injure. Inasmuch as plaintiff asserts his claim under the second sentence of the exception, plaintiff has not established that defendant had "actual knowledge" of an "injury certain to occur" and that defendant "willfully disregarded" this knowledge.
A. MIOSHA Report
Plaintiff argues that the factors that led to Palazzola's death resulted from Karmazin's repeated failure to protect its employees from the known dangers of TCE. Plaintiff produced a MIOSHA (Michigan Occupational Safety and Health Act, M.C.L. § 408.1001 et seq.; M.S.A. § 17.50(1) et seq.) report from Michigan's Bureau of Environmental and Occupational Health regarding Karmazin's past violations of worker-safety regulations. The report, which was prepared after Palazzola's death, indicated that Karmazin provided insufficient training and protection for workers asked to work in confined spaces. Plaintiff points out that the MIOSHA investigator found that Karmazin's violation of these regulations was "wilful," and that Karmazin also received a citation for safety violations after a worker nearly died from an entirely unrelated accident involving the inhalation of nitrogen gas in 1991. Plaintiff argues that this proves that Karmazin repeatedly disregarded warning signs that it was endangering its workers' safety in confined-space work assignments.
The reports by themselves, however, do not prove that a particular supervisory or managerial employee, who was also involved in the events on July 16, 1992, had actual knowledge of the danger of certain injury. As Travis instructs, liability cannot be premised upon constructive, imputed, or implied knowledge. Id. at 173, 551 N.W.2d 132. Moreover, conclusory statements by experts are insufficient to allege the certainty of injury contemplated by the Legislature. Id. at 174, 551 N.W.2d 132. Instead, to impute an intent to injure to the employer, a plaintiff is required to show that a particular employee of the defendant possessed knowledge of facts from which it could be concluded that this employee had the requisite intent to injure. McNees v. Cedar Springs Stamping Co. (After Remand), 219 Mich.App. 217, 223, 555 N.W.2d 481 (1996).
B. McIver
Nevertheless, plaintiff contends that McIver, manager of manufacturing and engineering, had knowledge of the information in the MIOSHA report. Plaintiff argues that, with this knowledge, McIver had the responsibility to properly instruct Kucmienski and his crew how to clean the holding tank by providing required safety information and equipment. Plaintiff specifically alleges that McIver neither advised Kucmienski regarding the dangers of gaseous TCE nor instructed Kucmienski to test the air in the holding tank or provide workers with safety equipment.
However, plaintiff has not provided evidence that disputes the fact that McIver only directed the crew to drain and fill the tank, and that his instructions regarding the disposing of the tank water into barrels were consistent with that assignment. In his deposition, McIver testified that he neither had ordered cleaning inside the tank nor contemplated that the crew would enter the tank to clean it. As attested to by Kucmienski and other witnesses, the decision to clean the tank was made on the spot by Kucmienski. Thus, plaintiff has not shown that the alleged failure to test the air or provide respirators to crew members assigned to clean the tank resulted from McIver's actual knowledge that certain injury would occur in the water holding tank.
C. Kucmienski
Plaintiff alternatively contends that Kucmienski had "actual knowledge." Specifically, plaintiff alleges that Kucmienski was aware of the dangers of TCE, knew that it contaminated the water in the holding tank, and ordered crew members to clean the sludge despite their hesitation because of the strong smell of TCE. Because Kucmienski was not a supervisory or managerial employee,[5]*875 his knowledge could not be attributed to his corporate employer, Karmazin. Travis, supra at 173, 551 N.W.2d 132.
However, even if Kucmienski's knowledge and actions could be imputed to his employer, plaintiff has not established that Kucmienski had actual knowledge of certain injury. Assuming as true plaintiff's allegation that Kucmienski generally knew about the dangers of TCE and knew of its presence in the holding tank's water, those two facts do not establish knowledge of injury certain to occur. In his deposition, Kucmienski testified that he did not appreciate the danger of gaseous TCE in the holding tank. Further, his testimony is buttressed by evidence that he willingly entered the holding tank in an attempt to retrieve Palazzola.[6]
Plaintiff next attempts to demonstrate that Kucmienski disregarded actual knowledge of certain danger by submitting evidence that he ordered both Czerwonka and Palazzola to go into the tank and remove the sludge despite their protests regarding the TCE fumes. To support this theory, plaintiff submitted an affidavit by Czerwonka that suggests that Czerwonka had directly confronted Kucmienski about the dangers of the tank-cleaning operation before an injury occurred. This affidavit was obtained after Czerwonka's deposition and contradicts his clear and unequivocal deposition testimony that the fumes were not that strong and that he first realized the adverse effects of the fumes about two minutes after leaving the holding tank. It is well settled that a party may not raise an issue of fact by submitting an affidavit that contradicts the party's prior clear and unequivocal testimony. Gamet v. Jenks, 38 Mich.App. 719, 726, 197 N.W.2d 160 (1972). This Court has also held that the rule is equally applicable to nonparty witnesses. Kaufman & Payton, PC v. Nikkila, 200 Mich.App. 250, 257, 503 N.W.2d 728 (1993). Consequently, Czerwonka's affidavit does not create a genuine issue of disputed material fact.
Similarly, plaintiff has alleged that Palazzola entered the tank and reemerged, advising Kucmienski that he did not want to go back down. Plaintiff further alleged that Kucmienski, despite Palazzola's protest, ordered Palazzola back into the holding tank on pain of discharge. Plaintiff's basis for these allegations is the deposition testimony of Jerry Pitts. Pitts neither witnessed these events nor was he an employee of the company at the time of the incident. Pitts' "testimony" is based upon alleged conversations with two employees who were present, Michael Stein and Dale Burzycki. Both Stein and Burzycki have denied telling Pitts that Palazzola refused to enter the tank or that Kucmienski ordered him to do so or be fired. Irrespective of the denials, Pitts' deposition testimony is inadmissible double hearsay and was properly disregarded by the trial court. See SSC Associates Ltd. Partnership v. General Retirement System of the City of Detroit, 192 Mich.App. 360, 364, 480 N.W.2d 275 (1991) ("Opinions, conclusionary denials, unsworn averments, and inadmissible hearsay do not satisfy the court rule; disputed fact (or the lack of it) must be established by admissible evidence.").[7]
*876 After reviewing the entire record, we have found no corroboration for Pitts' or Czerwonka's allegations in the record and all other witnesses deposed denied that any crew member expressed concern or protested regarding the procedure of entering the tank to clean the sludge. Thus, plaintiff has failed to establish that Kucmienski had the requisite knowledge of certain injury.
D. Absence of Prior Incidents
As stated above, the record establishes that defendant had no prior knowledge that employees would enter the holding tank to clean remaining sludge, or even that the tank, when drained, would contain sludge. Further, although plaintiff alludes to a prior incident involving a worker poisoned by the inhalation of nitrogen gas in a confined space, that incident did not involve TCE or maintenance of the holding tank at issue in this case.
Rather, the lethal agent in question in this case had been handled by employees in the past in its liquid form. Plaintiff contends that there is some evidence that workers exposed to the pit area where the holding tank is located had also been exposed to TCE. However, there is no evidence that an employee was assigned to work in a confined space with exposure to TCE. Czerwonka, the first employee who experienced adverse contact with the TCE fumes in the holding tank, testified in his deposition that (1) the fumes were not "that strong" and (2) he did not alert anyone about the potency of the fumes or the effect of the fumes on him until several minutes had elapsed after he had gotten out of the tank and Palazzola had entered it.
At best, this evidence supports a conclusion that it was foreseeable that working in the holding tank might be dangerous to the defendant's employees. As stated by our Supreme Court, mere negligence in failing "to act to protect a person who might foreseeably be injured from an appreciable risk of harm" does not satisfy the intentional tort exception of the act. Travis, supra at 178-179, 551 N.W.2d 132. Significantly, this case bears none of the characteristics of egregious employer conduct found in cases relied upon by the plaintiff in which this Court held there were disputed facts regarding whether the employer's conduct fell within the intentional tort exception.[8]
V. Conclusion
In summary, the evidence indicates that after the unanticipated discovery of sludge in the holding tank, Kucmienski, Palazzola's coemployee, instigated a project to clean the sludge, and assigned Czerwonka and Palazzola to this task. As soon as Kucmienski learned that Czerwonka was suffering ill effects from TCE-vapor exposure, he attempted to get Palazzola out of the tank, even risking injury to himself in an attempt to save Palazzola. After both men became disabled by the fumes, rescue efforts were immediately commenced by other coemployees and emergency personnel. From these facts, we conclude that this tragedy was not the result of actions falling within the intentional tort exception as construed in Travis. Accordingly, we hold that the trial court properly *877 found that plaintiff failed to create a genuine issue of material fact concerning defendant's intent under the intentional tort exception and is bound, therefore, by the exclusive remedy provision of the act.
Affirmed. Defendant, being the prevailing party, may tax costs pursuant to MCR 7.219.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] This section provides:
The right to the recovery of benefits as provided in this act shall be the employee's exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. An intentional tort shall exist only when an employee is injured as a result of a deliberate act of the employer and the employer specifically intended an injury. An employer shall be deemed to have intended to injure if the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge. The issue of whether an act was an intentional tort shall be a question of law for the court. This subsection shall not enlarge or reduce rights under law.
[2] McIver testified in his deposition that he merely had directed that the tank be drained and refilled and did not anticipate that anyone would be required to enter the tank in order to accomplish this assignment. Kucmienski testified that he had no appreciation when the sludge was discovered that it contained TCE or that removing the sludge was hazardous.
[3] A majority of the Court, Justices Mallett, Riley, Brickley and Weaver, concurred in the test established in Justice Boyle's lead opinion. See Travis, supra at 191-192, 551 N.W.2d 132.
[4] The Travis Court emphasized that "[t]he intent requirement will not be fulfilled by presenting `disconnected facts possessed by various employees or agents of that corporation....'" Id. at 171-172, 551 N.W.2d 132, quoting Adams v. Nat'l Bank of Detroit, 444 Mich. 329, 369, 508 N.W.2d 464 (1993).
[5] McIver testified in his deposition that Kucmienski was an hourly maintenance employee, who had responsibility for leading maintenance crew members through assigned tasks and, although he assigned work to his crew, he had no authority to hire, fire, or discipline employees.
[6] The trial court observed that Kucmienski's willingness to enter the tank and attempt to retrieve Palazzola clearly indicates that he did not know of the danger. Plaintiff suggests that this fact should be disregarded in determining whether Kucmienski had prior knowledge of the danger because Kucmienski should have known of the risk of injury inside the holding tank. Although plaintiff makes a valid argument that a person's subsequent act may not conclusively negate the existence of prior knowledge, we still reject plaintiff's argument. As Travis instructs, it is not "sufficient to allege that the employer should have known, or had reason to believe, that injury was certain to occur." Travis, supra at 173, 551 N.W.2d 132.
[7] Plaintiff argues without citation of authority that Pitts' testimony was admissible because he was relaying statements from defendant's employees that were admissible in and of themselves. Because plaintiff fails to cite authority in support of this proposition, he effectively has abandoned this issue. The appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, Mitcham v. Detroit, 355 Mich. 182, 203, 94 N.W.2d 388 (1959); Sargent v. Browning-Ferris Industries, 167 Mich.App. 29, 32-33, 421 N.W.2d 563 (1988), nor may he give issues cursory treatment with little or no citation of supporting authority, Goolsby v. Detroit, 419 Mich. 651, 655, n. 1, 358 N.W.2d 856 (1984); Community Nat'l Bank of Pontiac v. Michigan Basic Property Ins. Ass'n, 159 Mich.App. 510, 520-521, 407 N.W.2d 31 (1987).
[8] See, e.g., Adams v. Shepherd Products, US, Inc., 187 Mich.App. 695, 468 N.W.2d 332 (1991). In Adams, the employer removed the blade guard on a circular saw, taped the on/off switch to the "on" position, and failed to warn employees of these modifications even though employees were required to reach into the area of the unprotected blade that they could not see. Id. at 697-698, 468 N.W.2d 332; contrast Oaks v. Twin City Foods, Inc., 198 Mich.App. 296, 298, 497 N.W.2d 196 (1992) (questioning Adams).
Rather, the facts in this case are more akin to Glockzin v. Nortek, Inc., 815 F.Supp. 1050 (W.D.Mich., 1992), which the Travis lead opinion cited with approval. See Travis, supra at 176, 551 N.W.2d 132. Glockzin involved the electrocution of an employee by a machine that only had caused prior minor shocks. Glockzin, supra at 1053. Similarly, in this case, there were no comparable prior incidents with the holding tank in question. Accordingly, this case does not involve "a continuously operative dangerous condition" that the employer knows will cause an injury "yet refrains from informing the employee about ... so that he is unable to take steps to keep from being injured...." Travis, supra at 178, 551 N.W.2d 132.
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245 Ga. 359 (1980)
264 S.E.2d 862
GUNN
v.
THE STATE.
35567.
Supreme Court of Georgia.
Submitted November 2, 1979.
Decided February 20, 1980.
Rehearing Denied March 4, 1980.
E. Jay McCollum, for appellant.
V. D. Stockton, District Attorney, Michael H. *364 Crawford, Assistant District Attorney, Arthur K. Bolton, Attorney General, Michael R. Johnson, Staff Assistant Attorney General, for appellee.
HILL, Justice.
Calvin Gunn was convicted of the malice murder of Eddie Williams and sentenced to life imprisonment. According to the testimony of Rusty Ivester and Mike Shirley, they and Eddie Williams, the victim, were at the Frontier Lounge in Rabun County on March 23, 1979, when the defendant, Calvin Gunn, arrived. The defendant and the victim got into an argument and the defendant threatened to kill the victim. The two went outside but the bartender prevented the fight. Shirley and the victim then left together in the victim's car to pick up Shirley's sister.
When Shirley mentioned that the defendant was following them closely in his car, the victim pulled into a parking lot and got out and leaned against his car. Shirley walked some 25 yards away to relieve himself. The defendant walked up to the victim. They talked briefly before beginning to walk toward Shirley. The defendant then reached behind his back, pulled out the butt end of a pool stick, and struck the victim in the head with it at least twice before the victim was able to protect his head. The defendant then struck the victim several more times before the defendant dropped the stick during the fight. Shirley picked the stick up and struck the defendant in the back several times in order to break up the fight. Once the two were disengaged, the defendant asked for his stick back. Shirley told him he would throw it "over there" if the defendant would leave. The victim got in his car and was ready to leave and Shirley threw the stick away as he got in the car. Shirley and the victim then returned to the Frontier Lounge. The victim stayed in the car. The defendant arrived at the lounge shortly after they did, said he had gotten the victim and threatened to kill *360 Shirley before bystanders ran him off. The victim went home, saying he would be all right.
The victim's wife testified that he was taken to the hospital emergency room the next morning. He died that day. The attending doctor performed an autopsy; he testified that the victim's death was caused by a blow "to the left side of the head with a fracture of the skull and an injury resulting in intra cranial bleeding with subsequent development of cerebral edema or swelling of the brain to the point it can't function." The doctor also testified that the blow was made by a smooth object that delivered its force to a relatively large area, and that the object "very definitely" could have been the sawed-off pool cue introduced as state's exhibit one.
1. Defendant enumerates as error the trial court's overruling of his motion to quash the indictment. He was arrested pursuant to a warrant on March 25, 1979. His attorney was appointed on April 19, 1979, and a committal hearing was held on May 23, 1979. The grand jury returned the indictment on May 28, 1979. Defendant filed his motion to quash the indictment on June 5, 1979.
Defendant argues that one of the grand jurors was incompetent because he was on a panel for defendant's prior trial for foeticide in which defendant had entered a special plea of insanity, and that this same juror was incompetent under Code Ann. § 59-201 because he had been convicted of a felony. Assuming without deciding that the fact this grand juror had been on a prior panel would render him incompetent, any objection was waived by not being timely made prior to indictment. Mydell v. State, 238 Ga. 450 (233 SE2d 199) (1977), cert. den. 431 U. S. 970 (1977); Parris v. State, 125 Ga. 777 (54 SE 751) (1906).
As for the second challenge, the record shows that the juror pled guilty in federal court to violation of 26 USCA §§ 5601, 5205(a)(2), and was sentenced on May 25, 1971.[1] At that time, conviction of a federal crime did not render a *361 grand juror incompetent in Georgia. Brady v. State, 199 Ga. 566, 567 (2) (34 SE2d 849) (1945). Code Ann. § 59-201 was amended in 1976 so as to provide that a felony conviction would render a grand juror incompetent. Ga. L. 1976, pp. 438, 444-45. It is not necessary to decide whether the 1976 Act applies to federal felony convictions since it shows no legislative intent that it be applied retroactively, and we decline to so apply it. Anthony v. Penn, 212 Ga. 292 (92 SE2d 14) (1956). Thus we hold that the grand juror was not rendered incompetent by his federal conviction rendered prior to 1976.
2. Defendant also argues that the trial court erred in not granting his motion to change venue when he had just denied a motion for bond in part because he found custody was necessary in order to protect the defendant.[2] Defendant also points out that, on the advice of a deputy that he was in danger, he had voluntarily placed himself in protective custody prior to a warrant being issued. Defendant argues that because of the evidence of danger, a change of venue was mandatory under Code Ann. § 27-1201; Pierce v. State, 125 Ga. App. 490 (188 SE2d 181) (1972); and Pinkston v. State, 80 Ga. App. 268 (2) (55 SE2d 877) (1949). We cannot agree.
The only evidence of danger to the defendant is the deputy's testimony that he advised him to turn himself in for his own protection. This deputy also testified that the danger was not community-wide but was instead limited to the possibility that one or two relatives of the victim might work the defendant over. On these facts, we cannot find that a change of venue was mandated, nor do we find that the trial court abused his discretion in not granting the motion. Pierce v. State, supra; Attaway v. State, 149 Ga. App. 693, 694 (256 SE2d 94) (1979).
Defendant also argues that his change of venue *362 motion should have been granted because due to pretrial publicity he was unable to obtain a fair and impartial jury in Rabun County. The evidence does not support this assertion and we find no abuse of discretion in the denial of the motion. Street v. State, 237 Ga. 307 (1) (227 SE2d 750) (1976), death penalty vacated on other grounds, 429 U. S. 995 (1976).
3. Defendant also enumerates error on the denial of his motion for continuance. The victim died on March 24, 1979; defendant's attorney was appointed on April 19, 1979. The motion was filed on June 5, 1979, and denied, after a hearing, on June 6, 1979. The trial commenced on June 18, 1979. Defendant's motion alleged that his counsel had not had sufficient time to prepare a proper defense, that he had been unable to locate an alleged witness to the fight resulting in the victim's death, and that widespread publicity mandated a continuance. The witness referred to was a motorcyclist who according to defendant's counsel had ridden by the scene; this was the extent of defendant's information about this alleged witness. There was no evidence to suggest that a continuance would enable the defendant to identify or locate this individual. We hold that the trial court did not abuse its discretion in denying the motion. Alderman v. State, 241 Ga. 496 (2) (246 SE2d 642) (1978), cert. den., 439 U. S. 991 (1978); Campbell v. State, 240 Ga. 352 (4) (240 SE2d 828) (1977), cert. den., 439 U. S. 882 (1978).
4. Because the stick with which the defendant struck the victim was never recovered, the district attorney asked Shirley to select a cue stick similar to the one used and have it sawed off to the length of the one used, to the best of his ability. Defendant objected to the introduction of this substitute as evidence. When he took the stand, however, defendant admitted that he had struck the victim with a cue stick of the same length, although he stated his was lighter. Defendant claimed the victim came at him holding a rock as a weapon, that he offered to fight without weapons, and that when the victim started swinging at him with the rock he used the stick. In view of the fact that defendant admits using a very similar stick, we find no error in the introduction of the substitute. Duvall v. State, 238 Ga. 325 (232 SE2d 918) *363 (1977); Davis v. State, 230 Ga. 902 (5) (199 SE2d 779) (1973); Moore v. Illinois, 408 U. S. 786 (92 SC 2562, 33 LE2d 706) (1972).
5. During direct examination of Shirley, the district attorney asked "[A]s far as you and Mr. Gunn are concerned had there been any animosity between you and him either one of you in the past before this incident?" The answer was "Yes, sir." Defendant argues this question put his character in issue, especially when viewed in the light of the previous question, "Have you ever had any trouble with him?", to which his objection was sustained. We do not agree that the allowed question put defendant's character in issue. Personal animosity between a defendant and a witness does not show bad character on the defendant's part.
6. On cross examination, defendant testified that he carried the stick in his car to defend himself. Later, when asked how long he had been carrying it, he stated it had been in the car when he got the car in November of 1977. He denied having carried a similar stick before he acquired the one at issue.
The state then called a deputy who testified that in 1976 the defendant had had a similar stick. When asked to describe any differences, he said "It was colored blue, it had the same top here and it had a leather thong on the end of it where this one is as a matter of fact, when I took the stick when I got up there to the scene I kept it for a night stick a couple couple years." Defendant argues that the reference to "the scene" placed his character in issue by leaving the impression that he had committed a prior crime. We do not agree that this apparently inadvertent, unsolicited comment impermissibly placed defendant's character in issue. Creamer v. State, 229 Ga. 704 (2) (194 SE2d 73) (1972).
Judgment affirmed. All the Justices concur.
NOTES
[1] Defendant argues that this objection was not waived because he had no actual or constructive notice of it prior to indictment. Because we decide the juror was competent, we do not reach the question of waiver.
[2] In ruling on the motion for bond, the trial judge stated: "All right, the Court will deny your motion for bond on two grounds. Number one, that the man's past actions have indicated a pattern of violence, would be likely to continue while he's out on bond and second that for his own protection he's probably better off where he is than he would be on the street."
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14 So.3d 206 (2007)
EX PARTE JOHNNIE EARL BROWN.
No. CR-06-1722.
Court of Criminal Appeals of Alabama.
July 16, 2007.
Decision of the Alabama Court of Criminal Appeals without opinion Mandamus petition dismissed.
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106 F.3d 425
NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.SOIL SOLUTIONS CORPORATION and Tempest Resources Inc,Plaintiffs-Appellants,v.SPRAYING DEVICES INC, Western Mineral and Western Gypsum,Inc, Defendants-Appellees.
No. 96-1554.
United States Court of Appeals, Federal Circuit.
Jan. 3, 1997.
DCT
1
DISMISSED.
ORDER
2
The appellant having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
3
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules.
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910 So.2d 1032 (2005)
QUITMAN COUNTY, Mississippi
v.
STATE of Mississippi, Haley Barbour, in his Official Capacity as Governor and Jim Hood, in his Official Capacity as Attorney General.
No. 2003-SA-02658-SCT.
Supreme Court of Mississippi.
July 21, 2005.
Rehearing Denied September 29, 2005.
*1033 J. Christopher Klotz, William H. Voth, Kathleen A. Behan, attorneys for appellant.
*1034 Office of the Attorney General by Billy Berryhill, Harold Edward Pizzetta, attorneys for appellees.
EN BANC.
SMITH, Chief Justice, for the Court.
¶ 1. This case is now before this Court a second time. Quitman County [hereinafter the County] filed this action for declaratory and injunctive relief against the State of Mississippi, Governor Haley Barbour, and Attorney General Jim Hood. The County alleged that Mississippi's statutes requiring the counties to provide legal services for indigent criminal defendants are unconstitutional. The County sought a declaratory judgment because the State has allegedly breached its duty to provide effective assistance of counsel, in violation of Article 3, Section 26 of the Mississippi Constitution, and the County also sought an injunction to compel the Legislature to create a statewide, state-funded public defenders' office. After the Circuit Court of Quitman County denied the defendants' motion to dismiss, this Court granted permission for an interlocutory appeal. State v. Quitman Cty., 807 So.2d 401, 402 (Miss. 2001) (Quitman I).
¶ 2. This Court held that the County had standing to bring this action and had pleaded facts which, if assumed to be true, were sufficient to withstand a motion to dismiss under Rule 12(b)(6) of the Mississippi Rules of Civil Procedure. Id. at 406, 409. This Court affirmed and remanded but stressed that its decision "should not be construed as stating a position" on the constitutionality of the current funding scheme or "[w]hether Quitman County can prove [its] allegations at a full trial on the merits will be determined upon remand." Id. at 406, 410. Following a trial on remand, the circuit court found no constitutional violation and entered judgment for the defendants. We agree with the learned circuit judge. Quitman County failed to meet its burden of proof. We, therefore, affirm.
FACTS AND PROCEEDINGS
¶ 3. A bench trial was held in the Circuit Court of Quitman County from April 29, 2003, through May 6, 2003. After the parties had submitted proposed findings of fact and conclusions of law, the court issued a thorough opinion concluding that Quitman County had not met its burden of proving that the funding mechanism established by statute had led to systemic ineffective assistance of counsel in Quitman County and throughout the state. The circuit court's final judgment was entered on November 10, 2003, and Quitman County filed a timely notice of appeal.
Applicable Law
¶ 4. In Quitman I, 807 So.2d at 410, this Court stated that:
[t]he question raised by the County's allegations is whether, assuming the State has failed in its duty to provide effective indigent defense, the county-based system has resulted in the inability of the judiciary to operate in an independent and effective manner to the extent that this Court must of necessity, interfere in this traditionally legislative function and order the Legislature to establish a statewide, state-funded system of indigent criminal defense. Again, taking as true the well-pled allegations of the County's complaint, such system constitutional deficiencies would entitle the County to relief.
In Quitman I, 807 So.2d at 406-07, we also recited the applicable law dealing with the representation of indigent defendants and the funding thereof. Art. 3, § 26 of the Mississippi Constitution states, in pertinent part that:
*1035 In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed....
This provision has been interpreted to create a duty on the part of the State to provide effective assistance of counsel to indigent defendants. Id. See also Mease v. State, 583 So.2d 1283 (Miss.1991); Wilson v. State, 574 So.2d 1338 (Miss.1990); Conn v. State, 251 Miss. 488, 170 So.2d 20 (1964) (relying on Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). Additionally, Art. 14, § 261 of the Mississippi Constitution provides that "[t]he expenses of criminal prosecutions shall be borne by the county in which such prosecution shall be begun."
¶ 5. Section 25-32-7 of the Mississippi Code Annotated is the statutory authority that requires counties to fund the representation of indigent criminal defendants and specifically provides for the compensation and expenses for the public defender's office. Section 25-32-7 provides that:
The public defender shall be provided with office space, secretarial assistance, and all reasonable expenses of operating the office, at least equal to or more than the county prosecuting attorney, or the district attorney if the public defender represents the entire circuit court district. The compensation and expenses of the public defender's office shall be paid by the county or counties if two (2) or more counties are acting jointly. The funds shall be paid upon allowance by the board of supervisors by order spread upon the minutes of the board.
Also, § 99-15-17, in pertinent part provides "[t]he fees and expenses [of counsel for indigents] as allowed by the appropriate judge shall be paid by the county treasurer out of the general fund of the county in which the prosecution was commenced." Quitman I, 807 So.2d at 407.
DISCUSSION
I. Applicable Legal Standard.
¶ 6. This Court has held that if the trial court applies the wrong legal standard, the review of the ruling is de novo. Baker v. State, 802 So.2d 77, 80 (Miss. 2001) (citing Butler v. State, 592 So.2d 983, 986 (Miss.1991) ("[T]he trial court enjoys considerable discretion, and, so long as that court exercises that discretion by reference to the correct legal standards, we will not reverse absent substantial abuse of discretion")). This Court has also stated "where ... the trial judge has applied an erroneous legal standard, we should not hesitate to reverse." McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). This Court has held that it "cannot overturn the decree of a chancellor unless it finds with reasonable certainty that the decree is manifestly wrong on a question of law or interpretation of facts pertaining to legal questions." Incorporation of the City of Oak Grove v. City of Hattiesburg, 684 So.2d 1274, 1276 (Miss.1996) (citations omitted). Moreover a "`circuit judge sitting without a jury is accorded the same deference with regard to his findings as a chancellor,' and his findings are safe on appeal where they are supported by substantial, credible, and reasonable evidence." City of Clinton v. Smith, 861 So.2d 323, 326 (Miss.2003) (internal citations omitted).
¶ 7. At trial, the County had the burden of proving that the State has breached its constitutional duty to provide *1036 indigent defendants with effective assistance of counsel by requiring each county to fund its own indigent criminal defense. The County asserted that it cannot afford to discharge its burden of providing funding for indigent defendants in a constitutional manner. Since statutes are presumptively constitutional, when there is a conflict between a statutory scheme and a constitutional provision, it must be "palpable" before the courts of this State will declare a statute unconstitutional. State v. Miss. Ass'n of Supervisors, Inc., 699 So.2d 1221, 1223 (Miss.1997). Therefore, the County had to establish the unconstitutionality of this system beyond a reasonable doubt. Jones v. State, 710 So.2d 870, 877 (Miss.1998).
The Strickland standard
¶ 8. The County claims that the circuit judge applied the wrong legal standard to the its claims for relief. The County argues that instead of using the standard that this Court and the United States Supreme Court held governs this case, the circuit judge applied a "higher, two part test used only for post conviction challenges by individual criminal defendants" as elaborated in Howard v. State, 853 So.2d 781 (Miss.2003) and Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The United States Supreme Court held in Strickland v. Washington 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d 674 that:
Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.
The State counters this assertion by saying that the circuit court "unambiguously stated that the question before it was not `whether in isolated cases the public defenders were ineffective.'" Attorneys David Tisdell and Allan Shackleford were responsible for all indigent cases in the Circuit Courts of Quitman, Coahoma, and Tunica Counties, all appeals in those cases, and for Justice Court indigent representations in Quitman and Tunica. Tisdell replaced Thomas Pearson, who was formerly a public defender until his termination in 2000.
¶ 9. Even so, the County maintains that the circuit judge mistakenly proceeded as if the case were an individual post-conviction proceeding, in which the County would have had to prove on a case-by-case basis that the attorney's performance was deficient and the defendant was prejudiced. The County states that it does "not seek to overturn particular convictions, but rather seeks a system that meets constitutional guarantees." In her opinion, the circuit judge stated that "[w]hen a statute can be interpreted either as constitutional or unconstitutional, the Supreme Court has long held that they will adopt the constitutional construction. If possible, they will construe it so as `to enable it to *1037 withstand the constitutional attack and to carry out the purpose embedded in the [statute].'" (quoting Wilson v. State, 574 So.2d at 1340). In other words, "[i]t is not this Court's duty to look for factual possibilities or scenarios that would create conflict with the statute, thereby rendering the statute unconstitutional. Rather, this Court's duty is to interpret the Act and envision facts and scenarios in which the statute could be held constitutional." State v. Jones, 726 So.2d 572, 573 (Miss. 1998).
¶ 10. In Quitman I, 807 So.2d at 408, this Court held that the County would be entitled to the prospective statewide relief it seeks if it established the cost of an effective system of indigent criminal defense, the county's inability to fund such a system, and the failure of the existing system to provide indigent defendants in Quitman County with the tools of an adequate defense. The circuit judge ruled that the County failed to establish these facts beyond a reasonable doubt. The County asserts that "[t]he evidence at trial established each of these elements."
¶ 11. The State correctly points out that "[c]ommon sense suggests that if Quitman County claims there is widespread and pervasive ineffectiveness, the most probative evidence to support that claim would be testimony about specific instances when the public defenders' performance fell below `an objective standard of reasonableness' as measured by the professional norms." (quoting Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d 674). The State also asserts that the circuit judge expected to hear such testimony at trial since the County alleged in its complaint that requiring each county to pay for its own public defenders did not satisfy the constitutional requirements for effective assistance of counsel. The record reflects that no such evidence was presented at trial. Likewise, the circuit judge, in her opinion, stated:
The County alleged that "there have been numerous post-conviction challenges to the adequacy of counsel provided to indigent defendants tried for felonies in Quitman County." However, the County presented no evidence to the Court of any post-conviction proceedings which challenged the effectiveness of appointed counsel. The County did not present proof from any defendant who claimed to have received ineffective assistance, nor did they identify any single case where ineffective assistance was alleged. No proof was presented that any case has ever been overturned in Quitman County because of ineffective assistance.
The County did not present any evidence on any one of the central factual allegations in its complaint, and the County did not try to show specific examples of when the public defenders' legal representation fell below the objective standard of professional reasonableness.
¶ 12. The County references the above-cited passage as evidence that the circuit judge "fundamentally misconceived" the nature of its case. However, the record does not offer any evidence that the court or the State thought that the County was seeking to overturn particular convictions. The circuit judge noted that the evidence presented at trial proved that "Quitman County is a small rural county experiencing a high rate of poverty." In her opinion, the circuit judge stated that:
The evidence shows that Quitman County spends less than 1% of the county budget on indigent defense, $38,352 per year. This expenditure has remained the same since 2000. Testimony revealed that the county's deficit was mainly a result of spending in the area *1038 of solid waste, other unfunded mandates, natural disasters, and economic development bonds that were not being repaid. While the County established that it is struggling to meet its financial obligations and has had to cut funding in some areas, there was no testimony that resources to fund schools, hospitals, and local law enforcement were reduced because of indigent defense costs as was alleged in the Complaint. The Court is convinced that indigent defense is neither the cause not the solution to the county's financial difficulties.
Essential tools of defense
¶ 13. In addition to claiming that the circuit judge applied the wrong legal standard, the County also maintains that even under the Strickland analysis, it did show that the essential tools of defense were not provided. The County claims that, like this Court in the case at bar, other courts have concluded that prospective challenges to indigent defense systems were not subject to the requirements of Strickland, and that the proper inquiry is whether the system provides the tools of an adequate defense. The County further explains that there were distinct differences between the applicable standards to post-conviction proceedings and to systemic challenges. In a post-conviction challenges, the County avers that "courts attempt to balance the individual defendant's interest in challenging his conviction against broader interests in judicial economy and finality." (citing Strickland v. Washington, 466 U.S. at 693-94, 104 S.Ct. 2052). The County argues that courts must "look to whether the system provides the essential tools of an effective defense across the broad run of cases," and that "the performance of a particular lawyer or the result in any one case is not decisive."
¶ 14. The County then claims that even under the post-conviction cases that use the Strickland analysis, it has demonstrated that the county-based system does not provide the tools of an adequate defense. The County cites numerous post-conviction cases that follow Strickland that have identified other tools that the county-based system does not provide as fundamental to effective assistance of counsel. See, e.g., Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (investigation of mitigation evidence); Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (failure to call witnesses and waiving of argument in sentencing phase); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (investigation of mitigation evidence); Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (failure to file notice of appeal); Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (failure to file merits brief without consent); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (guilty plea challenges). The County also cites several cases decided by this Court such as State v. Tokman, 564 So.2d 1339, 1343 (Miss. 1990) (citing Gaines v. Hopper, 575 F.2d 1147, 1150 (5th Cir.1978)), which held that meaningful discussions regarding the realities of a case are the "cornerstones of effective assistance of counsel." Tokman also held that counsel has, at a minimum, "a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case." State v. Tokman, 564 So.2d at 1342.
¶ 15. The County also references the Triplett case, in which this Court held that a defendant is entitled to a basic defense, and that a basic defense in Triplett required "complete investigation to ascertain every material fact about this case, favorable and unfavorable." Triplett v. State, 666 So.2d 1356, 1361 (Miss.1995). The *1039 County concludes that if the circuit judge had "assessed the tools of an adequate defense in light of this Court's prior decisions and standards, it would have been clear that the county-based system in Quitman and counties does not provide the essential tools of defense and therefore violates the constitutional guarantee of effective assistance of counsel."
¶ 16. The circuit judge's opinion discussed in depth the claims raised by the County regarding the lack of essential tools of defense. In response to the County's allegation that "lack of counsel and excessive caseloads promotes pretrial delay... accordingly, excessive pretrial delays have caused Quitman County to spend its own funds to hold defendants in county custody," the court stated that testimony during trial established that "Quitman County has averaged thirty-four (34) indigent defendants per year in Circuit Court since 1999." Further, that "each public defender is required to be in Justice Court one day each month, an average of seventeen (17) cases per public defender per year in Circuit Court. Certainly, this does not represent an excessive caseload for the two public defenders in Quitman County, as alleged." The circuit judge also held that:
The two public defenders also take on indigent cases in two neighboring counties in this circuit court district and also represent private clients. The County contends that the public defenders average 165 cases a year in civil and private and indigent criminal cases, and that this is excessive. The Court is satisfied that those directly involved in the Quitman County criminal justice system, that is, the two public defenders and the three circuit judges, are in a better position than the Court to judge the weight of their caseload. Each of these testified that the caseload was not excessive and the defenders did not feel overburdened with their caseload. Mr. Shackleford testified that the public defenders were not allowed to schedule other cases during Circuit Court terms without permission of the Circuit Court Judge.
The circuit judge also attributed the pretrial delay to the fact that "Quitman County has two terms of court each year, with approximately six months between terms of court, which necessarily results in pretrial delays in processing felony cases." The circuit judge concluded that the delays "cannot be attributable to the public defender program."
¶ 17. The County also contends that due to the chronic underfunding of indigent defense, the result was ineffective assistance of counsel which in turn, adversely affected the administration of justice in Mississippi. The County supports this allegation by stating that there have been "an unusually high number of guilty pleas entered on the day of appointment of counsel, public defenders are not provided investigators, public defenders most often meet defendants in mass in the courtroom, public defenders are not provided office space, there is little motion practice in Quitman County and that the part-time flat fee public defender system is conducive to ineffective counsel." This argument was not persuasive to the circuit judge because in summary, none of the public defenders for this judicial district, circuit judges, or district attorneys testified to this effect. Further, none of the three witnesses tendered by the County as experts concluded in their testimony that either of the public defenders in Quitman County was incompetent. More specifically, Steven Farese, who was accepted as an expert, stated that he understood he was to "testify as to the regularly accepted methods of defending a criminal defendant in an adequate manner and also testify as to what I have observed and read through *1040 the practices of Mr. Tisdell and ... Mr. Pearson and Mr. Shackleford and their representation of indigent defendants in Quitman County." Farese stated that his opinion was that "there's not one single case that you can point to and say that this person or that person is ineffective because it doesn't work that way," but he concluded that the system as a whole was ineffective.
¶ 18. Similarly, Dr. Steven Bright, the director of the Southern Center for Human Rights, testified that, with regard to his observations on how indigent defense is provided in Quitman County, "it is not so much about the lawyers ... I would say it's the system or more precisely the absence of a system that I find impressive." The County also complains about the public defenders' not having investigators, but the circuit judge, in her opinion, stated that "[t]he Mississippi Supreme Court has confirmed that the right to counsel does not require an investigator or expert `absent a showing of substantial need' and has held that the Circuit Court should review such requests on a case-by-case basis." See Hansen v. State, 592 So.2d 114, 125 (Miss.1991).
¶ 19. Upon consideration of the briefs, the record, and the evidence contained therein, this Court finds that the circuit judge did not apply the wrong legal standard to the County's claims for relief.
II. Applicable Legal Standard and Financial Injury.
¶ 20. The County also contends that the circuit judge misconstrued the applicable legal standard with respect to financial matters. According to the County's interpretation of this Court's previous decision regarding Quitman County, the County had to "show the cost of an effective system of indigent criminal defense" and "the County's inability to fund such a system." Quitman I, 807 So.2d at 408. The County avers that it met its burden and established that it cannot afford to pay any more than it presently does for indigent defense. In response, the State claims that the County's evidence regarding its financial condition showed that the County had sufficient resources to fund a constitutionally adequate indigent defense system and that the County's obligation to pay for indigent defense in non-capital cases has neither caused the County's present economic troubles nor forced the County to substantially reduce other governmental services.
¶ 21. More specifically, the County alleged in its complaint that Mississippi's current indigent defense system has "imposed enormous and unpredictable" costs and that the "financial resources available to fund schools, hospitals, local law enforcement and the traditional health, safety, and welfare obligations of county government have been substantially reduced." However, Butch Scipper, the Quitman County Chancery Clerk, admitted that the reason for the unpredictable spikes in budgetary outlays was the expense of defending capital casesa potentially ruinous cost that is no longer borne by the counties. This cost was alleviated by the creation of the Office of Post-Conviction Counsel and the Office of Capital Defense Counsel in 2000.[1] On March 21, 2005, Governor Barbour signed into law effective July 1, 2005, Senate Bill 2960, which creates the Office of Indigent Appeals. This newly created office will be responsible for *1041 handling appeals for the indigent defendants that have been convicted of noncapital crimes.
¶ 22. The circuit judge also found no evidentiary support for the County's assertion that the cost of providing indigent defense services had led to decreased funding for other essential services. As previously mentioned, the circuit judge found the County's deficit was "mainly a result of spending in the area of solid waste, other unfunded mandates, natural disasters, and economic development bonds that were not being repaid." Again, the circuit judge found that "there was no testimony that resources to fund schools, hospitals, and local law enforcement were reduced because of indigent defense costs as was alleged in the Complaint. The Court is convinced that indigent defense is neither the cause nor the solution to the county's financial difficulties."
¶ 23. The County claims that the circuit judge disregarded the evidence it presented through the expert testimony which unanimously concluded that "a statewide, state-funded system is needed to provide the tools of an effective defense." The County further explains that "even if one were to hypothesize a standalone county system that provided adequate defense tools, Mr. Farese's opinion was that it would cost $300,000 to $500,000, 10 to 15 times what Quitman can pay." The County asserts that the circuit judge, in addition to disregarding this evidence, never reached the issue framed by this Court and instead, addressed a different one. The County stated that "[u]nder this newly devised test, the county could prevail only if it showed indigent defense was the sole cause of the county's financial problems and that these problems would disappear if the financial burden of indigent defense were lifted." The State rebuts this argument by stating:
[o]f course, the County's expert did not explain why a full time public defenders' office in a county with a population of 10,000 would cost more than the full-time office in a county (Jackson County) with more than 130,000 people. But even assuming that the cost estimate is correct, the County's argument ignores a crucial point: The Circuit Court found that Quitman County's system of providing indigent defense services is not providing constitutionally inadequate legal representation, even at the current level of funding. Unless the County was able to show that it was providing inadequate services, the question of its ability to pay thousands of dollars more per year simply does not come into play.
¶ 24. The State correctly points out that the County "seems to argue that it put on all the proof it needed when Chancery Clerk Scipper announced that the County cannot afford to pay any more for indigent defense than it already does." However, the County does not mention the testimony and documentary evidence that discussed the County's discretionary spending as well as its spending priorities. The State accurately concludes that "[i]f the Quitman County Board of Supervisors made indigent defense a higher priority, the County could find the additional fundseven if that meant less discretionary spending on recreation and similar projects."
¶ 25. Similarly, it was not plausible for the County to maintain that the Legislature is prohibited from imposing financial burdens on counties because it is well established that each county is an agency or subdivision of the state, created for administration and other public purposes. See State v. Hinds Cty. Bd. of Sup'rs, 635 So.2d 839, 843 (Miss.1994). As this Court held, "[t]he revenues of a county are subject to the control of the Legislature, and *1042 when the Legislature directs their application to a particular purpose or to the payment of the claims of particular parties, the obligation to so pay is thereby imposed on the county." Jackson Cty. v. Neville, 131 Miss. 599, 95 So. 626, 629 (1923).
¶ 26. The circuit judge found insufficient evidence that the County's public defenders are providing ineffective assistance on a regular basis, and the judge also determined that the County could afford to spend more if it chose to and the spending on indigent defense was not the cause of the deficit. The circuit judge's findings are not askew from the applicable standard with which this Court reviews this issue. Therefore, this issue is without merit.
¶ 27. For the aforementioned reasons, this Court finds that the circuit judge did not apply the wrong legal standard in concluding that the County did not prove financial injury.
III. Two Key Evidentiary Rulings.
¶ 28. The standard of review on appeal from evidentiary rulings is prescribed by Rule 103(a) of the Mississippi Rules of Evidence, which states "[e]rror may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected...." This Court articulated the standard of review of evidentiary rulings and stated that "[o]ur standard of review for the admission of or refusal to admit evidence is well settled. `Admission or suppression of evidence is within the discretion of the trial judge and will not be reversed absent an abuse of that discretion.'" Church of God Pentecostal, Inc. v. Freewill Pentecostal Church of God, Inc., 716 So.2d 200, 210 (Miss.1998) (citing Broadhead v. Bonita Lakes Mall, Ltd. P'ship, 702 So.2d 92, 102 (Miss.1997) (quoting Sumrall v. Miss. Power Co., 693 So.2d 359, 365 (Miss. 1997))).
¶ 29. In applying that standard, the reviewing court may reverse a case only if "the admission or exclusion of evidence,. . . result[s] in prejudice and harm or adversely affect[s] a substantial right of a party." K-Mart Corp. v. Hardy, 735 So.2d 975, 983 (Miss.1999) (citing Hansen v. State, 592 So.2d 114, 132 (Miss.1991)). Abuse of discretion is found when the reviewing court has a "definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors." Caracci v. Int'l Paper Co., 699 So.2d 546, 556 (Miss.1997). Accordingly, the reviewing court "must let stand a trial judge's findings of evidentiary or ultimate fact when substantial evidence in the record supports those findings, or when the findings are not `clearly erroneous.'" Crowe v. Smith, 603 So.2d 301, 305 (Miss. 1992) (quoting Matter of Estate of Varvaris, 528 So.2d 800, 802 (Miss.1988)).
¶ 30. The County claims that the circuit judge committed prejudicial error in two evidentiary rulings, which in turn, affected a substantial right of Quitman County. The first purported error occurred when the circuit judge barred the County from introducing expert testimony that the indigent defense system has affected the independence and effectiveness of the courts, and the second purported error occurred when the judge allowed local circuit judges to offer their opinions on the competence of the public defenders.
Expert testimony
¶ 31. The County interprets this Court's previous decision as identifying as a triable issue whether "the county-based system has resulted in the inability of the judiciary to operate in an independent and effective manner." Quitman I, 807 So.2d at 410. The County also concludes, from *1043 this Court's previous opinion, that if such an effect is shown, then this Court must necessarily intervene and "order the Legislature to establish a statewide, statefunded system of indigent defense." Id. The County also contends that the circuit court barred it from introducing evidence on the issue that the "integrity of the judicial system has been compromised by the State's failure to provide the essential tools of an effective defense." The County alleges that this evidence was "critical to the outcome of this case." Farese was asked if he had "any fears for the integrity of our court system, should the system of indigent defense here in Quitman County continue?" The State's objection was based on relevancy because the State was unsure how "fears of integrity" related to Article 3, Section 26 of the Mississippi Constitution. Miss. R. Evid. 401 defines "relevant evidence" as "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." The comment to Rule 401 states that "[i]f the evidence has any probative value at all, the rule favors admission." The County contends that "[a]s was apparent from the context in which the questions were asked, Mr. Farese's expert opinion would have been that the county-based system of indigent defense system has compromised the integrity of the criminal justice system in Mississippian ultimate issue in the case under Miss. R. Evid. 704and described the ways in which that compromise has occurred."
¶ 32. However, at trial, the State argued that such opinion testimony was inadmissible, irrelevant, and unhelpful in the sense that allowing attorneys to testify as experts on the ultimate legal issue simply invites a "battle of experts on an issue which is squarely resolvable only by the Court." Thomas M. Fortner, the public defender for Hinds County, was accepted as an expert in the field of indigent defense. Further, the circuit judge acknowledged that although having attorneys experts offering opinions on the ultimate legal issue might not be very helpful, she would allow:
this witness [Fortner] to testify as an expert in the field offered of indigent defense and I do think that he has specialized knowledge through his experience and training. And as to the ultimate question or the legal conclusion which must be drawn, that is a question for the Court and I would just as soon you stay away from it. But I know that there are matters that Mr. Fortner can assist the Court on and I will allow him to testify and give those opinions.
In other words, the circuit judge would allow expert opinion on specific fact-based matters and would be less inclined to hear sweeping, unsupported opinions. The Comment to Miss. R. Evid. 704 solidifies the judge's purpose in asking the parties to "stay away" from opinions on the ultimate issue. The Comment to Rule 704 states that even though "ultimate issue" opinions may be admissible, "[a] question may not be asked which is based on inadequately explored legal criteria since the answer would not be helpful." As the State correctly asserted, "[t]he trial court, who was sitting as the trier of fact, was merely giving the parties some guidance about what opinion testimony would be useful in deciding the issues." The circuit judge's approach to the expert testimony offered in the case sub judice was that the court, sitting as a trier of fact, did not find it helpful to have a parade of experts declaring ex cathedra that the system is unconstitutional. Simply stated, the circuit judge allowed opinion testimony as long as there was sufficient background testimony to render the opinion helpful.
*1044 ¶ 33. It was against this background that Farese took the stand and offered his many opinions regarding indigent defense systems in general and Quitman County in particular. As the State correctly points out, Farese's extensive testimony took up almost one-hundred pages of the trial transcript. The circuit judge only refused to allow Farese to answer two final questions. The County alleges that the exclusion of this "one last question" for Farese's opinion on the "integrity of the court system" constituted reversible error. Farese had already addressed his specific concerns about the indigent defense system in his extensive testimony, and allowing one final, sweeping opinion during re-direct examination was redundant and unnecessary. Therefore, the circuit judge's decision was not an abuse of discretion.
Testimony of circuit judges
¶ 34. The County claimed that the circuit judge committed reversible error by allowing three circuit judges to testify and offer opinions about the competency of the public defenders after instructing the County to "stay away from" expert testimony on ultimate questions of fact. The County further alleged that the circuit judge "gave dispositive weight to these conclusory opinions, which had little or no evidentiary foundation in the record." The circuit judge explained her reasoning for rejecting the County's request to exclude the judges' testimony by observing that it would have been unfair to allow the County to challenge the constitutionality of "this very system over which these three circuit judges preside" but not let the judges share their observations on how the system works.
¶ 35. When the State announced at pretrial that it intended to call sitting circuit judges to testify, and the County moved in limine to exclude the anticipated testimony, the circuit judge denied the motion. In doing so, she stated that she would not compel their testimony, nor would she allow them to be called as expert witnesses or offer legal opinions. She further stated that these circuit judges "do have much information basically based on their own personal observations which would be helpful to this trier of fact."
¶ 36. When Circuit Judge Albert B. Smith, III, was called to the stand, the court reiterated, for the benefit of the witness as well as the parties, that his testimony should remain limited to personal observations about how the Quitman County public defender system works. Judge Smith made general observations about the public defenders' "winning a lot of their cases" as well as the frequency and quality of motions. Judge Smith stated that "[t]hey file motions with me, and they ask for expert witnesses in certain cases, and they, of course, try the cases themselves. As far as being prepared, I think they have a pretty good track record as far as their wins." Judge Smith also specifically addressed plea agreements and the procedure thereof, which was an area greatly criticized by the County. He even said that "a lot of times I repeat what's in the petition and sometimes more so when a defendant is one that has a low education or . . . doesn't seem to comprehend exactly what the scenario is. Sometimes we will take a break, and I will let him go and confer with his attorney."
¶ 37. Circuit Judge Larry Lewis was then called to testify about the appointment of public defenders in Quitman County Circuit Court, the judges' standard practices for accepting pleas, and the public defenders' handling of motions and trials. He explained that the judges require each defendant to "certify to the Court that the defendant has informed his lawyer [of] everything he knows about the charge, the facts of the case," before the court will *1045 accept the guilty plea. Judge Smith stated that purpose of the plea colloquy is to ensure that this communication occurs between the attorney and his client. He also said that the circuit judges directly ask each defendant whether or not he committed the crime and stated that "[i]f the defendant falters in any way at that point, the plea is off." Judge Lewis further attested to the fact that he had observed Quitman County public defenders both in his capacity as a county prosecutor as well as a circuit judge, and that he always found them well-prepared. He also testified that the public defenders regularly file various motions, including motions to suppress evidence, and he stated that he had not observed any differences in how the public defenders represented their indigent clients as opposed to their paying clients. When he was asked whether the public defenders were "effective advocates," Judge Lewis carefully limited his answer to the "results of their work" and testified that they were competent in the sense that they prevail in many of their cases.
¶ 38. The personal knowledge of the judges regarding what they observe the lawyers doing in their courtroom was the reason that they were called as witnesses. The circuit judge did not abuse her discretion by relying on the judges' testimony to help her determine whether the public defenders' caseload was excessive, whether indigent defendants were entering into ill-advised plea agreements, and whether the public defenders take their obligations as such seriously. Furthermore, the circuit judge did not treat their testimony as expert opinion testimony on the issue of whether the public defenders were providing constitutionally adequate representation, so the admission thereof was not erroneous.
IV. Other Evidence.
¶ 39. The County avers that the circuit judge "ignored entire categories of expert and lay witness testimony, authoritative standards, government studies, and defense witness admissions establishing key facts that the [this] Court held are determinative of Quitman's claims." However, the County incorrectly accuses the circuit judge of ignoring that evidence simply because she refused to draw inferences favorable to the County or because she found the County's evidence less probative than that submitted by the State. In its brief, the State accurately asserts that the County cannot retry its case on appeal and states that this Court is required to accept as true all "evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the lower court's finding of fact. That there may be other evidence to the contrary is irrelevant." Par Indus., Inc. v. Target Container Co., 708 So.2d 44, 47 (Miss.1998) (internal citations omitted). The County's argument fails to consider the evidence within the record that was unfavorable to its position.
¶ 40. For example, the County points out that its public defenders have a total caseload of around 165 cases per year, even though the American Bar Association standards recommend handling no more than 150 cases per year. Since the court heard first-hand testimony about the caseload of the public defenders in Quitman County which indicated that they were not overwhelmed by their work, the County could not reasonably expect the circuit judge to have found that the public defenders' handling of 165 cases instead of 150 cases had either resulted in or contributed to widespread ineffective assistance of counsel.
*1046 ¶ 41. The County, by asserting the circuit judge ignored evidence, also fails to take into account the testimony of the circuit judges which contradicts the contentions of the County. The County also fails to address the public defenders' testimony about how they generally conduct investigations themselves and decide on a case-by-case basis whether or not to use the services of a professional investigator or retain an expert witness, ways in which they use their own offices, secretarial staff, computers, and other resources, conduct discovery, and communicate with clients. As previously referenced, the testimony of the judges and public defenders was the only first-hand account of how the system actually operated, so the circuit judge properly considered the testimony helpful in determining whether there has been a widespread ineffective assistance of counsel in Quitman County as a result of the county-based indigent defense system. The State correctly contends that "[e]ven if the County had prevailed on the first issue addressed by the Circuit Court, the County still would not have been entitled to the relief it requested. In making this argument, the State cites to Wilson v. State, 574 So.2d at 1340-41, where this Court did not find sufficient grounds with which to enjoin the Legislature to expend public funds on the defense of indigent criminals.
¶ 42. For the reasons previously enumerated, this Court finds that the circuit judge's decision is not against the overwhelming evidence or an abuse of her discretion, but is instead, amply supported by the evidence presented at trial.
V. This Court's Prior Dissent and Personal Opinion.
¶ 43. This Court's "review of a chancellor's findings of fact is the manifest error/substantial evidence rule." Miss. State Tax Comm'n v. Med. Devices, Inc., 624 So.2d 987, 989 (Miss.1993). The findings of the circuit court are accorded the same deference as a chancellor's fact findings. Kight v. Sheppard Bldg. Supply, Inc., 537 So.2d 1355, 1358 (Miss.1989) (citing Hardy v. First Nat'l Bank, 505 So.2d 1021, 1023 (Miss.1987)).
¶ 44. The County's final assignment of error is based on the closing paragraphs of the circuit court's opinion. In its brief, the County avers that the circuit judge violated Canon 3 A of the Code of Judicial Conduct by injecting "an unfortunate note of personal opinion into a decision of statewide significance and constitutional import, and contrary to the expressed view of the majority of the Quitman Court." The passages the County found objectionable are quoted in full as follows:
The County bears the burden of proving that the rights of indigent defendants are being violated in Quitman County and across the state to the extent that this court should hold the funding scheme established by our legislature as unconstitutional. While this lawsuit has raised issues of statewide concern which give rise to serious constitutional dilemmas, the Court concludes that the County falls short of demonstrating that indigent defendants in Quitman County are receiving ineffective assistance of counsel. Additionally, the County has not proven that the county-based system has resulted in the inability of the judiciary to operate in an independent and effective manner . . . This Court cannot say that this is one of those rare occasions when the courts should exercise its inherent power and `interfere with this traditionally legislative function and order the Legislature to establish a statewide, state-funded system of indigent defense.'
*1047 The question before this Court is not whether the county-based system is the best system of indigent defense. The question is not even whether in isolated cases the public defenders were ineffective. Rather, the question is whether Mississippi's county-based system is a constitutionally adequate system of indigent defense. This Court finds that our system meets constitutional demands. This is not to say that another approach would not be more desirable. This Court agrees with the sentiments expressed by three justices in the dissenting opinion in State v. Quitman County, 807 So.2d at 413 (Pittman, C.J., dissenting):
I agree that it would be wise of the Legislature to create and fund a statewide public defenders' office. However, the Legislature has attempted to solve the problem of indigent defense in other ways. By its actions, the Legislature has shown that it is not blind to the plight of Quitman County. It is the Legislature which hold the key to solving these problems, not this Court by impressive and excessive exercise of judicial authority.
The County asserts that by quoting the dissent and expressing her agreement, the circuit judge based her opinion on materials outside the scope of prevailing law. The County further questions her fidelity to the law, as required by Canon 3 A of the Mississippi Code of Judicial Conduct.
¶ 45. This argument is without merit because the circuit judge found that County did not meet its burden at trial, then it is not entitled to the possible relief that was enumerated by the majority of the Court in Quitman. Although her ideas regarding the proper way to gain the relief sought if the burden had been met were contrary to the majority's opinion, she was in no way violating her duty to remain faithful to the law. Clearly, the circuit judge recognized that even though the county-based system may not be the "best" way, it is constitutional. As the State points out, the circuit judge's "ability to distinguish between her own personal views about the desirability of a statewide public defenders' office and her judicial authority to grant that relief given the facts of this case is commendable; it is not grounds for reversal." This Court, in Hosford v. State, 525 So.2d 789, 798 (Miss. 1988), held that while the Legislature has the authority "to furnish what funds and facilities it deems proper," the courts may, nevertheless act in cases of necessity when the Legislature fails to furnish the essentials required for the operation of an independent and effective court. Quitman I, 807 So.2d at 410 (quoting Hosford, 525 So.2d at 798). Conclusively, the County did not meet its burden of proving that the county-based system has resulted in widespread ineffective assistance of counsel. Therefore, the County cannot carry the further burden of showing that its requested injunction was the proper remedy. The County urges this Court to implement a remedy that falls within the purview of the Legislature instead of the judiciary.
¶ 46. This Court recognizes that multiple amicus curiae briefs have been filed with this Court, and the majority of which, encourage this Court to order the Legislature to move to a state-wide indigent defense system. Some of the amici include in support of the County's position are: the Mississippi Trial Lawyers Association, Sheriffs of Quitman County, et al., the Mississippi Association of Supervisors, the National Legal Aid and Defender Association, the Mississippi Circuit Clerks' Association and the Mississippi Chancery Clerks' Association, NAACP Legal Defense and Educational Fund, Inc. and 100 Black Men of Jackson, Inc. The only amicus brief filed *1048 in support of the State was filed by the Mississippi State Legislators.
CONCLUSION
¶ 47. For the reasons set forth above, this Court finds that the circuit judge was correct in concluding that Quitman County did not met its burden of proving that the funding mechanism established by statute led to systemic ineffective assistance of counsel in Quitman County and throughout the state. Therefore, the judgment of the circuit court is affirmed.
¶ 48. AFFIRMED.
WALLER AND COBB, P.JJ., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, J. DIAZ, J., NOT PARTICIPATING.
GRAVES, Justice, Dissenting:
¶ 49. The majority holds that the trial court applied the correct legal standard to Quitman County's ("Quitman") claims of relief. However, the trial judge's analysis of the facts focused on isolated cases, rather than the systemic challenge brought by Quitman. Further, the trial court's failure to consider credible, unrebutted evidence establishing the deficiencies of Quitman's indigent defense system severely undermined its ruling. Applying the correct legal standard to the credible evidence in this case, Quitman is entitled to the relief sought. Therefore, I respectfully dissent.
Trial Court Applied the Incorrect Legal Standard
¶ 50. Three years ago, this Court ruled that if Quitman could demonstrate that a lack of state funding resulted in a local system of indigent defense representation "fall[ing] beneath the minimum standard of representation required by the Mississippi Constitution," then Quitman would have established that the State "breached its constitutional duty to provide indigent defendants with effective assistance of counsel. See State v. Quitman County, 807 So.2d 401, 408-09 (Miss.2001) ("Quitman I"). In Quitman I, this Court allowed Quitman, upon satisfying the above threshold, to seek prospective relief from the State. Significantly, in our earlier opinion, this Court neither stated nor implied that in order for Quitman to succeed it needed to show prejudice to any particular client.
¶ 51. The majority points out that the circuit court "unambiguously stated that the question before it was not `whether in isolated cases the public defenders were ineffective.'" The trial court failed in its attempt to correctly frame and address the relevant issue. Focusing on the incorrect issue (the isolated cases where the public defenders were ineffective), the trial court then applied the incorrect legal standard. The trial court applied the higher, two-part test used only for post-conviction challenges by individual criminal defendants under Howard v. State, 853 So.2d 781 (Miss.2003) and Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Essentially, the circuit court proceeded as if this were an individual post-conviction proceeding and Quitman had to prove on a case-by-case basis that the attorney's performance was deficient and the defendant was prejudiced, i.e., but for these deficiencies, there would have been a different outcome at trial. To this end, the circuit court repeatedly criticized Quitman's proof for supposed failure to show "incompetence" and prejudice in particular cases that would have warranted reversal of the conviction under Howard and Strickland. These criticisms were unwarranted considering that the record is replete with evidence of incompetence and ineffectiveness *1049 in the operation of Quitman's indigent defense services.
¶ 52. Here, the circuit court fundamentally misconceived Quitman's case and arguments. Quitman's complaint is that "the existing county-based system results in an inadequate and unconstitutional system of indigent defense." Quitman never sought to overturn particular convictions, but rather to challenge the constitutionality of systemic ineffective assistance of counsel. Therefore, the trial court's requirement that Quitman demonstrate some form of prejudice was completely misguided and legally erroneous. Because Quitman I allowed Quitman to seek prospective relief, I am convinced that a prejudice requirement is wholly inappropriate in a case where prospective relief is sought.
¶ 53. Other courts have concluded that prospective challenges to indigent defense systems are not subject to the requirements of Strickland and that the proper inquiry is whether the system provides the tools of an adequate defense. See Luckey v. Harris, 860 F.2d 1012, 1017 (11th Cir. 1988); State v. Peart, 621 So.2d 780, 791 (La.1993) (creating "rebuttable presumption" that "indigents . . . are receiving assistance of counsel not sufficiently effective to meet constitutionally required standards" to be applied prospectively); New York County Lawyers' Ass'n v. State, 192 Misc.2d 424, 745 N.Y.S.2d 376, 384 (N.Y.Sup.Ct.2002).
¶ 54. The distinction between the standards applicable to post-conviction proceedings and to systemic challenges rests on the very different policies applicable in the two kinds of cases. In a post-conviction challenge, courts attempt to balance the individual defendant's interest in challenging his conviction against broader interests in judicial economy and finality. Strickland, 466 U.S. at 693-94, 104 S.Ct. 2052. The concerns about certainty and finality of past criminal convictions do not arise in systemic cases. In those cases, society's interest in the provision of an effective defense to all citizens is of paramount proportions. See Luckey v. Harris, 860 F.2d at 1017; New York County Lawyers Ass'n v. State, 745 N.Y.S.2d at 384. Accordingly, courts look to whether the system provides the essential tools of an effective defense across the broad run of cases; the performance of a particular lawyer or the result in any one case is not decisive.
¶ 55. Because the trial court failed to properly consider Quitman's systemic challenge to the county's indigent defense system, and thereafter applied an incorrect legal standard, I cannot agree that either the trial court or the majority reached the correct result.
The Trial Court Failed to Consider Credible, Unrebutted Evidence as to the Deficiencies of Quitman's Indigent Defense System
¶ 56. Upon a through review of the record and briefs in the instant case, it is apparent that the circuit court completely ignored entire categories of expert and lay witness testimony, authoritative standards, governmental studies, and defense witness admissions which highlighted the deficiencies of Quitman's indigent defense system. For instance, in determining whether essential tools were provided to a defendant to assist in his defense, courts look to objective criteria promulgated by the American Bar Association and other standard-setting bodies. See, e.g., Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 2536-37, 156 L.Ed.2d 471 (2003) (counsel failed to go beyond pre-sentence report and social services records in investigating mitigating evidence, as required by ABA standards); Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (counsel did not investigate *1050 and present substantial mitigating evidence, as ABA standards prescribe); Strickland, 466 U.S. at 688, 104 S.Ct. 2052. ("Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is reasonable"). While these standards and their applicability to Quitman were briefed extensively to the trial court, there is no indication that the trial court ever considered them.
¶ 57. There are at least three substantial reasons why the trial court should have utilized the ABA Criminal Justice Standards for the Defense Function ("ABA Defense Function Standards") as a benchmark for determining whether Quitman's indigent defense system violates the Mississippi Constitution: (1) the standards represent the legal community's consensus as to the minimum required of an indigent defense system; (2) this Court and other courts rely on the ABA standards to determine compliance with the constitutional mandate of effective assistance of counsel, and (3) the standards mirror this Court's holdings regarding the minimum requirements of a constitutional indigent defense system. By ignoring the intelligible framework of the ABA standards, the trial court faced a tremendous disadvantage in assessing the constitutionality of Quitman's indigent defense system.
¶ 58. In addition to the authoritative standards of the ABA, the trial court ignored volumes of credible, unrebutted evidence which was determinative of Quitman's claims. This Court has long held that it is reversible error for a trial court to ignore uncontradicted evidence. Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 53 So.2d 69, 75 (1951) ("[E]vidence which is not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable, cannot be arbitrarily or capriciously discredited, disregarded, or rejected. . . ."); Tarver v. Lindsey, 161 Miss. 379, 137 So. 93, 96 (1931) ("Where, as in this case, the testimony of witnesses is undisputed, is reasonable in itself, . . . . and the witnesses are unimpeached, then the trier of facts must act on the testimony and cannot reject it, else trial might eventuate in arbitrary results . . ."); Holmes v. Holmes, 154 Miss. 713, 123 So. 865, 866-67 (1929) (reversing lower court's dismissal where trial court ignored both the undisputed testimony of a clerk with direct personal knowledge of the transaction at issue, as well as a letter written by defendant containing important admissions).
¶ 59. Here, the record contains undisputed expert and lay witness testimony establishing that the county-based system fails to provide the tools of an adequate statewide defense system. Many court-appointed defense attorneys throughout the State do not file pretrial motions, use experts or invest the time necessary to represent their indigent clients effectively. In addition to lacking governmental oversight, these attorneys have no administrative or investigative support to assist in the representation of their clients. The trial court ignored the following evidence:
a. There are a substantial number of instances where neither lawyer nor defendant recognize each other at arraignment, and prisoners remain in jail up to 4 to 5 months without any contact with their attorney.
b. Client meetings are held in groups in the courtroom within earshot of the prosecutor and the judge.
c. Public defenders routinely waive preliminary hearings, accept facts in indictments, and do not ask for investigators or experts.
d. There is no opportunity for the investigation or communication necessary *1051 to make an informed decision when pleas are entered on arraignment day.
e. There is a vast disparity between the resources of the State and public defenders.
¶ 60. Governmental studies have repeatedly found that the tools of an adequate defense are missing in county indigent defense systems. For instances, the Spangenberg studies[2] found that "funding for indigent defense is totally inadequate," "the lack of adequate resources for indigent defense services results in poor quality services and representation," "there is no state wide oversight of indigent defense, which leads to a hodgepodge, county-by-county approach to providing services," and "[e]very aspect of defense representation is compromised." Similarly, the Mississippi Public Defenders Task Force report[3] concluded that "indigent defense remained a vexing problem for the counties" and contained deeply troubling reports by several circuit court judges describing systemic inadequacies they have observed in their districts. While this information was available to the trial court, its opinion does not refer to these repeated findings of inadequate representation.
Need for a Statewide Indigent Defense System
¶ 61. The Mississippi Constitution, Article 3, § 26, has been interpreted to create a duty on the part of the state to provide effective assistance of counsel to indigent defendants. See Quitman I, 807 So.2d at 406-07. This Court has recognized that this means that indigent defendants must be provided with the tools of an adequate defense. Harrison v. State, 635 So.2d 894, 901 (Miss.1994) (citing Ake v. Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985)). Further, this Court has recognized that these "tools" which are necessary to construct an adequate defense vary depending on the facts and circumstances of each case. Harrison, 635 So.2d at 901 (citing State v. Acosta, 41 Or.App. 257, 597 P.2d 1282, 1284 (1979)). Among these tools which allow defendants to construct an adequate defense is the right to counsel. The Sixth Amendment provides, "In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense." The U.S. Supreme Court has construed this to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. Gideon v. Wainwright, 372 U.S. 335, 339-40, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). In Gideon, the Supreme Court recognized the dire importance of the right to counsel and ruled that the Sixth Amendment provides that in all criminal prosecutions that the accused shall enjoy the right to assistance of counsel for his defense, and that this right is made obligatory on the states by the Fourteenth amendment, and indigent defendants in criminal prosecutions in states courts enjoy the same right. Id. at 342-44, 83 S.Ct. 792. Because the Supreme Court has deemed the right to counsel for indigents in state prosecutions to be fundamental, the State of Mississippi bears the ultimate responsibility to ensure that this right is preserved. After all, the crime *1052 which the defendant is accused of is against the peace and tranquility of the State. The State will shoulder the ultimate financial responsibility of housing the defendant provided that the State is successful in its prosecution. And it will be the state judiciary which will ultimately hear and decide any appeals.
¶ 62. I am convinced that Quitman County's indigent defense system wholly fails to measure up to legal as well as recognized, authoritative standards. To this end, Quitman's system is in fact delivering constitutionally inadequate assistance of counsel to indigent defendants. The Quitman County indigent defense system fails across the board to safeguard the most fundamental protections necessary for the equitable administration of justice. Mississippi has neglected to ensure that the indigent defense systems in the counties are able to operate independently, that workloads are controlled, that appropriate oversight is in place, and that defendants are allowed confidential access to an attorney who will investigate the facts of each case. The flaws apparent in Quitman's system are not unique. Rather, they are the result of the fundamental problem in a part-time, county-based system that lacks state funding and uniformity. In essence, the State of Mississippi has failed to establish or fund a system of indigent defense that is equipped to provide all defendants with the tools of an adequate defense, and has therefore fallen short of its constitutional obligation. Therefore, I would reverse the trial court's judgment and remand this case to the trial court for further remedial proceedings. For these reasons, I respectfully dissent.
DICKINSON, J., JOINS THIS OPINION.
NOTES
[1] As previously noted, during the 2005 Regular Session, the Mississippi Legislature took an initial step toward that end by passage of Senate Bill 2960, which creates and provides for administration and funding of the Mississippi Office of Indigent Appeals. Approved by the Governor on March 21, 2005, this act became effective on July 1, 2005.
[2] The Spangenberg Group, a nationally known consulting organization with expertise in indigent defense systems, prepared a comprehensive report (in contemplation of the current litigation) on Mississippi's indigent defense systems under the auspices of the Mississippi Bar Association.
[3] The Mississippi Public Defenders Task Force issued its September 29, 2000, report pursuant to a legislative mandate to recommend improvements to the indigent defense systems in criminal proceedings throughout the State of Mississippi.
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86 B.R. 595 (1988)
In the Matter of Victor C. BUTZ, Patricia Butz, Engaged in Farming, Debtors.
Bankruptcy No. 87-439-C.
United States Bankruptcy Court, S.D. Iowa.
April 27, 1988.
*596 Anita L. Shodeen, Des Moines, Iowa, trustee.
Deborah S. Krauth, Chariton, Iowa, Douglas J. Reed, Des Moines, Iowa, for debtors.
Kevin R. Query, Asst. U.S. Atty., Des Moines, Iowa, for FmHA.
ORDER ON OBJECTION TO PLAN
LEE M. JACKWIG, Chief Judge.
On December 3, 1987 a preliminary hearing on confirmation of plan was held in Des Moines, Iowa. Among those present at the hearing were Deborah S. Krauth and Douglas J. Reed appearing on behalf of the debtors and Kevin R. Query, Assistant U.S. Attorney, appearing on behalf of the Farmers Home Administration (FmHA). The parties dispute whether the FmHA has any rights to certain government payments. The parties subsequently submitted the matter on briefs and a stipulation of facts.
FACTUAL BACKGROUND
The FmHA holds a mortgage to real estate owned or being purchased by the debtors as security for its loans. The debtors had been purchasing a parcel on contract. The contract vendor commenced forfeiture proceedings on August 22, 1985 and, as a result, the FmHA paid off the contract balance and succeeded to the interest of the contract vendor. In addition to real estate, the mortgage in question provides the FmHA with an interest in:
[A]ll rights, interests, easements, herediments and appurtenances thereunto belonging, the rents, issues, and profits thereof and revenues and income therefrom, all improvements and personal property now or later attached thereto or reasonably necessary to the use thereof, including, but not limited to, ranges, refrigerators, clothes washers, clothes dryers, or carpeting purchased or financed in whole or in part with loan funds, all water, water rights, and water stock pertaining thereto, and all payments at any time owing to Borrower by virtue of any sale, lease, transfer, conveyance, or condemnation of any part thereof or interest therein all of which are herein called `the property.'
Prior to filing bankruptcy on February 20, 1987 the debtors signed a contract to participate in the 1986 Feed Grain Program (Program). The debtors have received the following benefits under the 1986 Program.
DATE AMOUNT TYPE
09/09/86 $2,874.33 Cash
05/16/86 $1,378.20 PIK
03/12/87 $1,274.31 PIK
03/19/87 $ 277.53 Check
10/08/87 $1,921.40 Cash
10/08/87 $2,007.73 PIK
The debtors received $224.69 for their participation in diversion payments.
The debtors signed up for the 1987 Program on February 24, 1987. The nature of the benefits received under the 1987 Program are as follows:
DATE AMOUNT TYPE
04/09/87 $374.37 Cash
04/09/87 $374.36 PIK
07/10/87 $243.00 PIK
The debtors also enrolled in the Conservation Reserve Program (CRP). The Agricultural Stabilization and Conservation Service (ASCS) County Committee accepted the debtors' offer to place 255.8 acres in the CRP on September 29, 1986. The debtors have received a cost-share payment of *597 $4,374.00 to defray costs of seeding and fertilizing the CRP acres. The debtors are entitled to receive $17,906.00 in annual payments under the CRP.
Under the debtors' plan, the FmHA's allowed secured claim is fixed at $102,500.00. They contend this figure represents the value of the FmHA's first mortgage interest in the real estate. This figure does not reflect the benefits the debtors have received or will receive under CRP and the Programs.
DISCUSSION
I.
Under the Feed Grain Program, producers receive deficiency payments and price support loans for compliance with certain requirements such as reducing crop acreage. See generally, 7 C.F.R. Part 713. Farmers who are accepted into the CRP agree to take erodible land out of production for a period of 10 years in exchange for cost-share payments and annual rental payments. See generally, 7 C.F.R. Part 704. The ASCS administers both programs. The FmHA maintains that its allowed secured claim should reflect its alleged interest in the government payments. The FmHA claims an interest in the payments by means of the "rents and profits" clause contained in the mortgage executed by the debtors.
The FmHA cites In re Preisser, 33 B.R. 65 (Bankr.D.Colo.1983) in support of its position. There a debtor executed a deed of trust containing a "rents and profits" clause in favor of the United States. The court found that the government benefits the debtors received for not producing crops (payments made in the form of grain known as "PIK" payments) were rents and profits. The court reasoned that the grain the debtor received was a substitute for what would have been produced on the land. The court therefore concluded that the United States had a valid security interest in the payments. The late Judge William W. Thinnes reached the opposite result in In re Liebe, 41 B.R. 965 (Bankr.N.D. Iowa 1984). In that case, a real estate contract vendee enrolled in the 1983 PIK program. The contract vendor forfeited out the vendee before PIK entitlements were disbursed. The vendor claimed the PIK grain as unaccrued "rents and profits" of the forfeited property.
The court examined Iowa Supreme Court cases and cases from other jurisdictions and noted that the term "rents and profits" includes "all products or income generated by use and cultivation of the land." Id. at 969. However, the court found that despite the broadness of the "rents and profits" concept, PIK entitlements could not be classified as "rents and profits" of the land. The court distinguished those entitlements from products produced directly by the soil, such as crops and minerals:
Forfeiture, by divesting a contract buyer of any right, title, or interest in the land, necessarily strips him of any right to receive all fruits of the land that are inseparable from the real estate.
In contrast, the PIK contract is personal to a producer and creates a third party contractual relationship between the government and producer that is independent from the land contract. Even recognizing that possession of the property was necessary to enter into a PIK contract initially and establish the amount of entitlements, forfeiture would not divest the buyer of his contractual rights and vest those rights in the seller. If forfeiture was accomplished early enough in the crop year, the loss of possession might cause a buyer to breach his agreement with the government, but this is markedly different from saying the forfeiture divested a producer of his intangible contract rights and vested them in the seller as incident of the reversion. In light of this fact, the Court finds there is a qualitative difference between the intangible contract rights created by the PIK contract and other products, fruits or income that are so inseparable from the land that forfeiture necessarily includes the right to receive those products as an incident of the reversion of possession. Because the PIK contract and the entitlements it creates are attenuated *598 in their relationship to the land, the Court concludes they should not be classified as rents or profits of the land.
Liebe, 41 B.R. at 970 (footnote omitted).
Judge Thinnes' analysis is persuasive and applicable to the government payments involved in this case. Like the 1983 PIK contract, the contracts for participation in the Feed and Grain Programs and the CRP are personal to the producer and establish contractual relationships between the government and the producer. Such contractual relationships are independent from the mortgage. Through foreclosure, a mortgagee could lose all rights in the land but still retain contractual rights under the programs. For example, under the CRP, a former owner of land can receive a payment based upon the period of the fiscal year during which the former owner controlled the land or based upon an agreement between the former and present owner. 7 C.F.R. section 704.20(a)(3). Under the Feed and Grain Program, payments are divided between the predecessor and successor in interest to a crop in a manner the parties and the government agree is equitable. 7 C.F.R. section 713.151(b). The attenuated nature of the relationship between the government contracts and the land leads the court to conclude the government payments are not "rents and profits" of the land.
Parenthetically, the court notes that the statutory and regulatory provisions governing the CRP denominate payments as "rental payments". See 16 U.S.C. sections 3831, 3832, 3833, 3834; 7 C.F.R. sections 704.2(a)(2) (definition of "annual rental payment"), 704.10, 704.12, 704.20. One court has stated that CRP payments are in the nature of "rent". In re Ratliff, 79 B.R. 930 (Bankr.D.Colo.1987). In that case, the FmHA held a deed of trust and objected to a Chapter 12 plan by contending that it had an absolute right to all future CRP payments under a "rents and profits" clause. The court found that the FmHA's claim to the CRP payments under the deed of trust could not "be wholly ignored". Id. at 932. The court went on to explain that the debtors' interest in the CRP payments had value that had to be protected under 11 U.S.C. section 1225(a)(5)(B). However, mere characterization of the payments as "rental payments" does not automatically mean that the payments are subject to a rents and profits clause. Rather, a determination whether government benefits can be construed as "rents and profits" as the concept has been interpreted under state law should be made pursuant to the Liebe analysis.
II.
Even if the court were to find that the term "rents and profits" embraced government payments, federal regulations would preclude the FmHA from encumbering the payments under the facts of this case. Before discussing these regulations, it is important to examine state law pertaining to the operation of "rents and profits" clauses. Under Iowa law, two lines of cases have developed considering the effect of "rents and profits" provisions in mortgages. One line of cases holds that where rents and profits are merely pledged as security for payment of the mortgage debt, the mortgage does not attach to the rents and profits until a default occurs, an action is commenced and the appointment of a receiver is requested. Owen v. Fink, 218 Iowa 412, 255 N.W. 459 (1934); First Trust Joint Stock Land Bank v. Conway, 215 Iowa 1031, 247 N.W. 253 (1933); First Trust Joint Stock Land Bank v. Cuthbert, 215 Iowa 718, 246 N.W. 810 (1933); Andrew v. Home Savings Bank, 215 Iowa 401, 246 N.W. 48 (1932). A second line of cases finds that where a mortgage grants a lien upon the rents and profits of the mortgaged property, the lien attaches at the time of the execution of the mortgage. Equitable Life Ins. Co. of Iowa v. Brown, 220 Iowa 585, 262 N.W. 124 (1935); Soehren v. Hein, 214 Iowa 1060, 243 N.W. 330 (1932); and Farmers' Trust and Sav. Bank v. Miller, 203 Iowa 1380, 214 N.W. 546 (1927). The distinction the cases draw is that a chattel mortgage is created in "rents and profits" when the term "rents and profits" is included in the granting clause of the mortgage, whereas the operation of a pledge of "rents and profits" to *599 secure payment of the mortgage debt could only be triggered by default, foreclosure and appointment of a receiver. Here the "rents and profits" clause is contained in the granting clause of the FmHA's mortgage. Under the aforementioned cases, the FmHA's interest in "rents and profits" attached at the time the parties executed the mortgage.[1]
Again assuming that the government benefits are "rents and profits", the fact that the FmHA established its interest in "rents and profits" at the time the parties executed the mortgage does not end the analysis. Consideration must be given to the effect federal statutes and regulations have upon the operation of state law.
Regulations governing the CRP program are found at 7 C.F.R. Part 704. The regulation pertaining to assignments provides:
Any participant who may be entitled to any cash payment under this program may assign the right to receive such cash payment, in whole or in part, as provided in the regulations at 7 CFR Part 709, Assignment of Payment.
7 C.F.R. section 704.17 (emphasis added). The regulation concerning assignments of cash payments made under the Feed Grain Program states:
Any producer entitled to any payments may assign any such payments which are made in cash in accordance with regulations governing assignment of payment found at Part 709 of this chapter.
7 C.F.R. section 713.153 (emphasis added). 7 C.F.R. section 709.3 sets out the conditions under which payments may be assigned:
(a) A payment which may be made to a producer under any program to which this part is applicable may be assigned only as security for cash or advances to finance making a crop, handling or marketing an agricultural commodity, or performing a conservation practice, for the current crop year. No assignment may be made to secure or pay any pre-existing indebtedness of any nature whatsoever.
(b) To finance making a crop means (1) to finance the planting, cultivating, or harvesting of a crop, including the purchase of equipment required therefor and the payment of cash rent for land used therefor, or (2) to provide food, clothing, and other necessities required by the producer or persons dependent upon him.
(c) Nothing contained herein shall be construed to authorize an assignment given to secure the payment of the whole or any part of the purchase price of a farm or the payment of the whole or any *600 part of a fixed commodity rent for a farm.
This court has ruled that program payments made in cash are subject to the limitations of subsections (a) and (b) and that such payments may not be encumbered to secure pre-existing indebtedness. Matter of Halls, 79 B.R. 417 (Bankr.S.D. Iowa 1987). Nothing in the record indicates that the FmHA made advances to the debtors in 1986 or 1987 to finance making a crop. Consequently, the FmHA cannot encumber the 1986 or 1987 government payments made in cash.
The court notes that subsection (c) prevents assignment of payments to secure the purchase price of a farm. To the extent any of the indebtedness secured by the mortgages relates to loans used for the purchase of a farm, assignment is prohibited.
Payments under the Programs may be made in certificates. 7 C.F.R. sections 704.16 (CRP) and 713.154(a) (Feed Grain). Certificates may be "generic" or "commodity-specific". 7 C.F.R. section 770.4(g). If generic, the certificate may be exchanged for any commodity made available by the Commodity Credit Corporation. Id. If commodity-specific, the certificate may be exchanged only for the kind and quantity indicated on the face of the certificate. Id.
In Halls, supra, this court held that the regulations found at 7 C.F.R. section 770.4(b) prohibited creditors from encumbering certificates. The provision provides:
(b) Liens, encumbrances, and State law.
(1) The provisions of this section or the commodity certificates shall take precedence over any state statutory or regulatory provisions which are inconsistent with the provisions of this section or with the provisions of the commodity certificates.
(2) Commodity certificates shall not be subject to any lien, encumbrance, or other claim or security interest, except that of an agency of the United States Government arising specifically under Federal statute.
Id. Under subsection (2), an exception to the encumbrance prohibition exists for a United States agency whose lien arises specifically under federal statute. The FmHA, a United States Agency, maintains that this exception applies to it because of the operation of 7 U.S.C. section 1989. This provision states:
The Secretary is authorized to make rules and regulations, prescribe the terms and conditions for making or insuring loans, security instruments and agreements, except as otherwise specified herein, and make such delegations of authority as he deems necessary to carry out this title.
Id. The FmHA also cites 7 C.F.R. section 1941.19(e), a regulation promulgated under 7 U.S.C. section 1989. The regulation provides:
(e) Income from products and program payments. Assignments and consents relating to income from products and program payments will be used when necessary to protect FmHA's interest as follows:
(1) Form FmHA 441-8, "Assignment of Proceeds from the Sale of Agricultural Products," for products or income in which FmHA does not have a security interest under UCC. Other forms approved by OGC may be used when this form is not adequate.
(2) Form FmHA 441-18, "Consent to Payment of Proceeds from Sale of Farm Products," for products or income, except dairy products, in which FmHA has a security interest under UCC.
(3) Form FmHA 441-25, "Assignment of Proceeds from the Sale of Dairy Products and Release of Security Interest," for dairy products in which FmHA has a security interest under UCC.
(4) Forms provided by ASCS will be used for assignment of incentive and other agricultural program payments.
7 C.F.R. section 1941.19(e). The provisions relied upon by the FmHA are not the equivalent of the types of statutes contemplated by section 770.4(b)(2). That exception only *601 concerns liens, encumbrances, security interests or other claims arising specifically under federal statute. The authorities cited by the FmHA do not create interests in property. They simply allow the FmHA to prescribe the terms for making security agreements and set forth the forms to be used in taking assignments. Cf. In re Sunberg, 729 F.2d 561 (8th Cir.1984) (regulations did not affect security interest but rather prevented the government from being entangled in third party disputes). Statutes that create liens generally use precise language. For example, the statute concerning estate tax liens states that "the estate tax imposed . . . shall be a lien upon the gross estate. . . ." 26 U.S.C. section 6324. No such language is found in 7 U.S.C. section 1989 or 7 C.F.R. section 1941.19(e). The FmHA has not satisfied the exception to section 770.4(b). Accordingly it is without authority to encumber the certificates.
III.
The FmHA next claims an interest in future program benefits under the administrative offset provisions found at 7 C.F.R. Part 13. The Bankruptcy Code permits creditors to offset debts that are mutual and prepetition. 11 U.S.C. section 553(a).[2] For its argument the FmHA primarily relies upon In re Matthieson, 63 B.R. 56 (D.Minn.1986); In re Greseth, 78 B.R. 936 (D.Minn.1987); and In re Ratliff, 79 B.R. 930 (Bankr.D.Colo.1987).
In Matthieson, the debtors enrolled in the 1984 Deficiency Program whereby participants were paid by the government for idling a certain number of tillable acres. The debtors filed bankruptcy under Chapter 7 after enrolling in the program but before certain benefits were disbursed. The debtors also had outstanding debts owed to the ASCS. The question before the court was whether the deficiency payments owed by ASCS to the debtors were prepetition obligations and subject to offset under 11 U.S.C. section 553. The court ruled that the obligations of ASCS arose at the time the Deficiency Program contract was created and thus offset under section 553 was proper. Matthieson, 63 B.R. at 60.
The court in the Greseth case adopted the Matthieson analysis in addressing whether CRP payments are subject to offset. The debtors had enrolled in CRP prior to filing their Chapter 12 petition. The court found that the debtors and the ASCS assumed mutually enforceable obligations prepetition. Greseth, 78 B.R. at 942. The Ratliff court reached a similar result in a Chapter 12 case involving an FmHA claim to CRP payments by means of an offset. Ratliff, 79 B.R. at 933.
These cases are not controlling for the reasons that the facts in Matthieson and Greseth do not reach and the decision in Ratliff does not analyze the dispositive issue presented here whether a mutual debt exists between the debtors and the FmHA. The court in In re Rinehart, 76 B.R. 746 (Bankr.D.S.D.1987) thoroughly examined the concept of "mutuality" in the context of an attempt by the Small Business Administration (SBA) to offset payments made to the Chapter 12 debtors by the ASCS under the Program. To be mutual, the court stated, "the debts must be in the same right and between the same parties standing in the same capacity." Id. at 750 (citations omitted). The SBA argued that the mutuality requirement was met because the debtors owed the SBA and the government owed the debtors. In other words, the SBA contended that it stood "in the same capacity" as the ASCS because it was part of the government. The court rejected this argument. The court found that the SBA and ASCS were distinct entities. It explained that the ASCS was within the Department of Agriculture, whereas the SBA was an independent agency. Further *602 the court noted that the agencies had separate budgets and staffs and that they provided different services.
Although the FmHA and the ASCS are both part of the Department of Agriculture, the differences between the two preclude the FmHA from standing "in the same capacity" as the ASCS for purposes of section 553(a). The ASCS is charged with administering price support and conservation programs. In contrast, the FmHA's primary mission is to provide credit to farmers who are unable to secure credit from commercial sources. The agencies maintain separate staffs and are supervised by different administrators. Moreover, the FmHA has not established that the ASCS and FmHA budgets are related to the extent that payment to the debtors by the ASCS will affect the FmHA budget.
CONCLUSION AND ORDER
WHEREFORE, based upon the foregoing analysis, the court finds that the FmHA has no interest in the government benefits in question.
THEREFORE, the FmHA's objection to the plan is overruled.
NOTES
[1] Iowa abandoned lien perfection of chattel mortgages by recordation upon adoption of the Uniform Commercial Code. See 1965 Iowa Acts, ch. 413, section 10102 (repealed Iowa Code chapter 556 which governed chattel mortgages). However, the UCC does not apply to the creation of interests in real estate including rents derived therefrom. Iowa Code section 554.9104. Therefore, a creditor relying on a granting clause interest in rents and profits must perfect its interest by commencing foreclosure and requesting appointment of a receiver. There is some question as to whether federal lenders are bound by state perfection laws. In U.S. v. Landmark Park & Associates, 795 F.2d 683 (8th Cir.1986), the Eighth Circuit found that state perfection laws did not apply to perfection of an assignment of rents contained in a Department of Housing and Urban Development (HUD) mortgage. The court in that case ruled that HUD's interest became perfected upon default despite the fact that under state law, creditors only could perfect by obtaining possession of the mortgaged property and having a receiver appointed. The court reasoned that protection of a federal lender required a uniform perfection rule because of the diversity of perfection laws among the states. In In re Buckley, 73 B.R. 746 (D.S.D.1987), the FmHA argued that an overriding federal interest in uniformity warranted a finding that state perfection laws did not apply to the perfection of the FmHA's interest in "rents and profits" created in a mortgage. The court rejected this argument. It distinguished Landmark Park by noting that the FmHA mortgage did not contain an assignment of rents provision as did the HUD mortgage in Landmark Park. The court explained that state laws regarding the perfection of rents were "uniform and longstanding". Buckley, 73 B.R. at 749. The court went on to remark that the only exception to applying state law was in a case such as Landmark Park where the parties clearly expressed their intention that perfection would occur merely upon default rather than upon completion of the acts required by state law.
[2] 11 U.S.C. section 553(a) provides in pertinent part:
Except as otherwise provided in this section and in sections 362 and 363 of this title, this title does not affect any right of a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the case under this title against a claim of such creditor against the debtor that arose before the commencement of the case. . . .
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121 Mich. App. 92 (1982)
328 N.W.2d 394
PEOPLE
v.
KIDD
Docket No. 60432.
Michigan Court of Appeals.
Decided November 3, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Eugene Malanyn, Prosecuting *94 Attorney, and Michael A. Nickerson, Assistant Attorney General, for the people.
State Appellate Defender (by Gail Rodwan), for defendant on appeal.
Before: R.B. BURNS, P.J., and MacKENZIE and L.C. ROOT,[*] JJ.
R.B. BURNS, P.J.
Defendant was charged with possession of a controlled substance in an amount of 225 grams or more, MCL 333.7403(1)(2)(a)(ii); MSA 14.15(7403)(1)(2)(a)(ii), attempted safe breaking, MCL 750.531; MSA 28.799, and breaking and entering an unoccupied dwelling, MCL 750.110; MSA 28.305. During trial on these charges, defendant pled guilty pursuant to an agreement with the prosecution. He appeals and we affirm.
At trial, testimony indicated that the 287 grams of substance tested contained approximately 41 grams of Schedule 2 controlled substance, the remainder being filler material. Defense counsel moved for a directed verdict. Although the court denied this motion, the court ruled as a matter of law that because defendant possessed only 41.013 grams of a controlled substance, he could be charged only with possession of less than 50 grams, MCL 333.7403(1)(2)(a)(iv); MSA 14.15(7403)(1)(2)(a)(iv). The prosecutor then moved to amend the information to conform with the court's ruling. After the court granted the prosecutor's motion defendant pled guilty to possession of less than 50 grams of a controlled substance and to breaking and entering. In return for his plea, the prosecutor agreed not to reinstate the safe-breaking charge, which had previously been dismissed, and to forgo charging defendant as an *95 habitual offender. At the time of defendant's plea, the prosecutor had not filed a supplemental information.
Defendant first claims that the trial court was precluded from accepting his plea to possession of less than 50 grams of a controlled substance by MCL 333.7415; MSA 14.15(7415). We disagree. Section 7415 was enacted to foreclose the use of a reduction in charges in negotiating guilty pleas. This reflects the Legislature's goal of limiting the availability of guilty plea options in cases where serious drug offenses are charged. However, in the case at bar, the information was not amended pursuant to a plea agreement. Rather, the trial court reduced the charge as a matter of law before the plea conference was held.
Moreover, the trial court erred in ruling that defendant could be charged only with possession of less than 50 grams of a controlled substance. The statute on its face punishes defendants for possession of "any mixture containing" the controlled substance. MCL 333.7403; MSA 14.15(7403). The percentage of pure controlled substance in the mixture is irrelevant to the charge; the weight classifications refer to the aggregate weight of a mixture containing a controlled substance. People v Prediger, 110 Mich App 757, 760; 313 NW2d 103 (1981); People v Lemble, 103 Mich App 220, 222; 303 NW2d 191 (1981). Defendant clearly benefited from this erroneous ruling.
Defendant next claims that the substance-abuse provisions of the Public Health Code violate the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24. However, this Court determined this question against defendant's position in People v Trupiano, 97 Mich App 416; 296 NW2d 49 (1980), lv den 409 Mich 895 (1980).
*96 Finally, defendant claims that his plea was based upon the prosecution's promise not to file a supplemental information and that his plea was illusory because the prosecutor was barred from filing against defendant as an habitual offender in light of People v Fountain, 407 Mich 96; 282 NW2d 168 (1979).
However, at the time of defendant's plea, there was a split in this Court regarding the stage at which the prosecutor was required to file the supplemental information. Because the prosecutor arguably could have filed the supplemental information at the time of defendant's plea, People v Alford, 101 Mich App 446; 300 NW2d 593 (1980), defendant's plea was not illusory. People v Robinson, 117 Mich App 63; 323 NW2d 594 (1982).
The Supreme Court recently clarified the Fountain requirements in People v Shelton, 412 Mich 565, 568; 315 NW2d 537 (1982), holding that the prosecutor must file the supplemental information not more than 14 days after the defendant is arraigned on the underlying felony or before trial if defendant is tried within the 14-day period. Id., 569.
The Shelton decision is inappropriate here, as it was issued approximately one week after defendant submitted his initial brief on appeal to this Court. Thus, under Fountain, defendant's plea was not illusory.
Furthermore, defendant's plea was based upon other factors as well. The prosecution could have appealed the trial court's erroneous reduction of the possession charge and, if successful, tried defendant for possession of over 225 grams of a Schedule 2 controlled substance. Also, defendant benefited from the prosecution's agreement not to reinstate the safecracking charge. In our opinion, *97 defendant benefited from his bargain. See People v Eric Thompson, 101 Mich App 428; 300 NW2d 585 (1980).
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
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44 Mich. App. 64 (1972)
205 N.W.2d 47
PEOPLE
v.
MITTEN.
Docket No. 11885.
Michigan Court of Appeals.
Decided December 6, 1972.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.
Daniel T. Stepek, for defendant on appeal.
Before: DANHOF, P.J., and BRONSON and T.M. BURNS, JJ.
BRONSON, J.
Defendant was convicted by jury verdict of manslaughter and sentenced to serve a prison term of 7 to 15 years. MCLA 750.321; MSA 28.553. From this conviction defendant appeals as a matter of right.
On the evening of June 6, 1970, Michigan State Police officers observed an automobile with its headlights on in a construction area while on patrol. Upon investigation the officers confronted defendant, who described having an altercation with one Charles Austin. Following defendant's direction, they discovered Mr. Austin at the bottom of a hill adjacent to the car. Mr. Austin was naked from the waist down and had been severely beaten. This victim was taken directly to a hospital, treated for his wounds and discharged the following morning. On June 8, 1970, Mr. Austin was readmitted to the hospital in a state of unconsciousness *66 and subsequently died of a subdural hematoma.
Defendant was charged with common-law murder and a jury trial was conducted. At trial defendant supported his claim of self-defense by testimony that during his conversations with deceased some reference to homosexual conduct was made and the altercation proceeded from deceased's accusation that defendant was a homosexual. Defendant responded to deceased's alleged production of a knife by hitting him in the head with a wine bottle. Defendant stated that he was attempting to take the deceased to a hospital when he became lost near the construction site. Defendant claimed that at this time the altercation was renewed by deceased's attempt to grab an object on the floor of the car. During this struggle defendant pulled the deceased out of the car and they rolled down the hill. Defendant accounted for the deceased's disrobed condition by the statement that his pants slipped in the muddy terrain as defendant pulled him up the hill. At the conclusion of trial, the jury returned a verdict of guilty upon the lesser included offense of manslaughter. Defendant challenges this conviction alleging that (1) the prosecutor's closing arguments were so prejudicial as to cause a miscarriage of justice, (2) newly discovered evidence in the form of deceased's criminal record justifies a new trial, and (3) the failure to receive a fair and impartial trial requires a reversal of his conviction.
Defendant's challenge to the prosecutor's closing argument was not preserved below by a timely objection. If the prejudicial effect of this argument could not be cured by a cautionary instruction, such objection becomes unnecessary. People v Humphreys, 24 Mich App 411 (1970); People v *67 Montevecchio, 32 Mich App 163 (1971); People v Majette, 39 Mich App 35 (1972). Accordingly, review is granted when the error causes a miscarriage of justice. People v David Smith, 16 Mich App 198 (1969); People v Page, 27 Mich App 682 (1970).
In an attempt to explain his theory that defendant assaulted deceased for his refusal to engage in this type of conduct, the prosecutor's closing argument to the jury contained references to homosexual conduct. The offensive nature of this behavior creates a duty upon the prosecutor to be cautious to avoid conduct which would deny defendant a fair and impartial trial. People v Brocato, 17 Mich App 277 (1969). But the prosecutor's conduct in the instant case was in conformity with this principle. Each of his challenged statements contained a reference to the fact that deceased was found nude from the waist down and that the altercation was precipitated by discussion regarding homosexual conduct. The references to these evidentiary facts were offered for the sole purpose of establishing a logical explanation of their relationship to the prosecution's theory of the case. Such statements are permissible commentary upon the evidence or inferences therefrom. People v Russell, 27 Mich App 654 (1970); People v Joshua, 32 Mich App 581 (1971). The prosecutor is no less an advocate than defense counsel. He fulfills his obligation to the people by arguing the facts in a persuasive manner and presenting their legitimate inferences to the jury. Our close scrutiny of the record does not reveal a prejudicial purpose in the prosecutor's references to homosexuality. Contrast People v Tarpley, 41 Mich App 227 (1972). A consideration of the challenged comments in the context of the entire summation fails to reveal prejudice yielding *68 a miscarriage of justice. People v Lyle Brown, 37 Mich App 25 (1971).
Defendant's second allegation that a new trial should be granted upon the basis of newly discovered evidence is devoid of merit. The deceased's criminal record could have been obtained at or prior to trial and fails to satisfy the criteria of newly discovered evidence. People v Keiswetter, 7 Mich App 334 (1967); People v Higginbotham, 21 Mich App 489 (1970). Assuming that such information was unavailable until the present, it fails to satisfy the requirement that the evidence should render a different result probable upon retrial. This conclusion is based upon the fact that deceased's record containing assaultive crimes on other occasions is clearly inadmissible as substantive evidence upon the issue of his violent character. People v Cellura, 288 Mich 54 (1939); People v Rapier, 43 Mich App 297 (1972).
Defendant's final allegation of being denied a fair and impartial trial is dependent upon the preceding allegations of error. Our disposition of those issues precludes further inquiry. Finding the issues raised unmeritorious, defendant's conviction is affirmed.
Affirmed.
All concurred.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4671
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS ALLEN THOMAS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Senior District
Judge. (1:11-cr-00144-BEL-1)
Submitted: March 21, 2013 Decided: April 18, 2013
Before GREGORY, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Joanna Silver, Staff
Attorney, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, James G. Warwick, Assistant
United States Attorney, Christine L. Duey, Special Assistant
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Curtis Allen Thomas, Jr., appeals his 324-month
sentence for robbery and related charges. For the reasons that
follow, we affirm.
Thomas and an accomplice attempted to rob a Baltimore
pizzeria at about 3:00 a.m. on December 10, 2010. Thomas held a
gun to the owner’s head, ordered the employees into a small
office, and told them to get down on their knees. At one point,
Thomas touched the gun to the owner’s head and told him he was
going to blow his head off. The owner testified at trial that
he heard a click. He struggled with Thomas for control of the
gun and, with the help of store employees, was able to disarm
Thomas and subdue him until law enforcement arrived.
A grand jury charged Thomas with interfering with
commerce by robbery and aiding and abetting, in violation of 18
U.S.C. §§ 2, 1951(a) (2006) (Count One), possessing a firearm in
furtherance of, and using and carrying a firearm during and in
relation to, a crime of violence, and in doing so, brandishing
the firearm, in violation of 18 U.S.C. § 924(c)(1)(A) (2006)
(Count Two), and possession of a firearm and ammunition by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1) (2006)
(Count Three). The jury convicted Thomas on all three counts.
At the sentencing hearing, the Government sought a
total sentence of thirty years, noting that Thomas had several
2
prior state armed robbery convictions from 1993 for which he
received concurrent sentences and arguing that he was a
recidivist whose armed robberies were “traumatic to the victims
involved and [made him] dangerous to the community at large.”
Defense counsel sought a below-Guidelines sentence of twenty-two
years, arguing that the Guidelines range overstated the
seriousness of Thomas’ criminal history, emphasizing the age of
his prior robbery convictions.
Defense counsel disputed the Government’s argument
that Thomas was a danger to society and countered that Thomas
had demonstrated that he could be a law-abiding citizen, noting
that in the seven years between his release on parole for the
1993 robberies and his 2010 arrest for the instant crimes,
Thomas had only a single drug possession conviction, for which
he received a ninety-day sentence. In addition, defense counsel
noted that a twenty-two-year sentence would give Thomas hope of
spending the last years of his life outside of prison and would
motivate him towards self-improvement. The district court
sentenced Thomas to 60 months on Count One, 84 months on Count
Two, and 180 months on Count Three, all to be served
consecutively, for a total sentence of 324 months’ imprisonment.
On appeal, Thomas contends that the sentence imposed
by the district court is procedurally unreasonable because the
district court failed to consider his arguments at sentencing.
3
Thomas preserved his challenge to the adequacy of the district
court’s explanation “[b]y drawing arguments from [18 U.S.C.] §
3553 [(2006)] for a sentence different than the one ultimately
imposed.” United States v. Lynn, 592 F.3d 572, 578 (4th Cir.
2010). Thus, this court’s review is for abuse of discretion,
and any error must result in reversal unless it was harmless.
Id. at 579.
“Although sentencing courts are statutorily required
to state their reasons for imposing a particular sentence, see
18 U.S.C.A. § 3553(c) [(West Supp. 2012)], it is not necessary
that a court issue a comprehensive, detailed opinion.” United
States v. Allmendinger, 706 F.3d 330, 343 (4th Cir. 2013). The
district court’s explanation for its sentence must be sufficient
to allow for “‘meaningful appellate review,’” Id. at 330
(quoting Gall v. United States, 552 U.S. 38, 50 (2007)), such
that the appellate court need “not guess at the district court’s
rationale.” Id. at 329. Furthermore, “[w]here the defendant or
prosecutor presents nonfrivolous reasons for imposing a
different sentence than that set forth in the advisory
Guidelines, a district judge should address the party’s
arguments and explain why [it] has rejected those arguments.”
United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009)
(internal quotation marks omitted).
4
Thomas argues that the sentence imposed by the
district court was procedurally unreasonable because the court
did not specifically address his arguments regarding the age of
his prior robbery convictions, their proximity in time to each
other, the concurrent sentences he received for them, or the
fact that in the seven years between his release from prison and
his arrest for the instant offense, he had only been convicted
of a single minor drug offense. The district court explained
that it was imposing a longer sentence than the one Thomas
requested because of the circumstances of his case. The court
emphasized that in the course of the instant offense, victims
were placed on their knees at gunpoint and there was testimony
that “the trigger was pulled and clicked.” The court also noted
that Thomas had committed “a distressing series of armed
robberies in the past.” Under these circumstances, the court
concluded, a substantial sentence was necessary to incapacitate
Thomas in the interest of public safety. However, the court
specifically credited defense counsel’s argument that Thomas
should be able to visualize a time when he would be free.
Therefore, although the court imposed a longer sentence than
that requested by Thomas, it was shorter than the one sought by
the Government.
Although the district court “might have said more” to
explain the sentence it chose, Rita v. United States, 551 U.S.
5
338, 359-60 (2007), its explanation was “elaborate enough to
allow [this Court] to effectively review the reasonableness of
the sentence.” United States v. Montes-Pineda, 445 F.3d 375,
380 (4th Cir. 2006) (internal quotation marks and citation
omitted). The district court’s explanation demonstrated that it
had considered Thomas’s position and adequately articulated its
reasons for the sentence it imposed. We therefore conclude that
the sentence was not procedurally unreasonable.
Accordingly, we affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
6
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20 A.3d 1193 (2011)
Charles FROSS, M. Doe, D. Doe, Shawn Czerwien, Charles Meter, and Christopher Haigh, Appellees
v.
COUNTY OF ALLEGHENY, Appellant.
No. 17 WAP 2010.
Supreme Court of Pennsylvania.
Argued October 19, 2010.
Decided May 25, 2011.
*1194 George M. Janocsko, Michael Henry Wojcik, Craig Ehot Maravich, Allegheny County Law Department, Caroline P. Liebenguth, Pittsburgh, for County of Allegheny.
Andrew A. Chris, Matthew A. Fry, Haines & Associates, for Amicus Curiae, the Treatment of Sexual Abusers.
Edwin J. Strassburger, Strassburger, McKenna, Gutnick & Gefsky, Donald F. Driscoll, Community Justice Project, Pittsburgh, Witold J. Walczak, for Charles Fross, et al.
Marcia Mary Waldron, U.S. Court of Appeals, 3rd Circuit, for Participant, United States Court of Appeals for the Third Circuit.
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
OPINION
Chief Justice CASTILLE.
Upon certification by the U.S. Court of Appeals for the Third Circuit, we accepted *1195 for review the issue of whether Allegheny County Ordinance No. 39-07-OR (the "Ordinance"), which imposes residency restrictions on certain offenders, is preempted by the Pennsylvania Prisons and Parole Code, 61 Pa.C.S. § 101 et seq., ("Parole Code") and/or by the Pennsylvania Sentencing Code, 42 Pa.C.S. § 9701 et seq. ("Sentencing Code"). The Ordinance applies to offenders subject to the registration requirements of those provisions of the Sentencing Code collectively known as Megan's Law. See 42 Pa.C.S. §§ 9791-9792; 9795.1-9799.4; 9979.4-9979.9.[1] For the reasons that follow, we hold that the Ordinance impedes the accomplishment of the full objectives of the General Assembly, as expressed in the Sentencing and Parole Codes, and is, therefore, invalid pursuant to our conflict preemption doctrine.
Pennsylvania's current version of Megan's Law requires individuals convicted of, inter alia, kidnapping, indecent assault, or promoting prostitution, to register for ten years following release on probation or from prison. Persons convicted of two or more offenses subject to ten-year registration, sexually violent predators, and persons convicted of, inter alia, rape, involuntary deviate sexual intercourse, or aggravated indecent assault, are subject to lifetime registration upon release. 42 Pa.C.S. § 9795.1(a)-(b); see 42 Pa.C.S. § 9792 (defining "sexually violent predator"). In addition to requiring the registration of these offenders ("sex offenders" or "registrants"), the act also provides for notification of community members that such an offender will live in or near their neighborhood and mandates counseling for released sex offenders. 42 Pa.C.S. § 9791(b) (declaration of legislative policy). According to the General Assembly, Megan's Law facilitates community access to information regarding the presence in the neighborhood of sexually violent predators and other sex offenders, in recognition that these offenders pose a high risk to re-offend upon release and, thus, to endanger public safety. See 42 Pa.C.S. § 9791(a) (legislative findings). Safety of the public, according to the Legislature, is of "paramount concern." 42 Pa.C.S. § 9791(a)(3). A secondary interest is the effective operation of government. 42 Pa.C.S. § 9791(a)(5).
Pursuant to Megan's Law, a registering sex offender must provide to the Pennsylvania State Police information regarding "all current or intended" residences, employment, and school enrollment. 42 Pa. C.S. § 9795.2(a). After the initial registration, the offender is to update the information within forty-eight hours of any change in the nature or location of residency, employment, or student status. Id. The State Police is charged with a duty to verify the residence of registered offenders either quarterly (for sexually violent predators) or annually (for other offenders). 42 Pa. C.S. § 9796. For every registrant, the State Police provides the information collected to local law enforcement officials where the registered offender resides, works, or is enrolled in school; the State Police also notifies the offender's victim(s) and makes information about the offender available on the Internet. 42 Pa.C.S. §§ 9795.2(c), 9797, 9798.1. Local law enforcement is responsible for notifying the public regarding the presence of a sexually *1196 violent predator in a community, as provided in 42 Pa.C.S. § 9798.[2]
The release from custody of a Megan's Law registrant is conducted pursuant to the provisions of the Pennsylvania Sentencing and Parole Codes, generally applicable to all offenders within the Commonwealth's jurisdiction. Sentencing courts and the Pennsylvania Board of Probation and Parole (the "Board") share duties of implementing the two statutes within their respective spheres.
In this context, the primary role of the court is to determine an appropriate sentence in each case, including confinement, probation, or intermediate punishment. A court must consider in selecting a sentence "the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S. § 9721(a), (b). The sentencing court may attach to probation reasonable conditions tailored to each offender. See 42 Pa.C.S. § 9754(c) (probation). For offenders who remain under the jurisdiction of the sentencing court, see infra n.3, the order of probation may be modified by the sentencing court at any time. 42 Pa.C.S. § 9771. Until termination of the sentence, probationers remain under the supervision of county probation and parole officers. 42 Pa.C.S. §§ 9911, 9912.
Within the same system, the Board's function is the administration of probation and parole in Pennsylvania. 61 Pa.C.S. § 6111(a). The Board operates the parole system with the primary purpose of protecting the public, but also with the twin goals of supplying an "opportunity for the offender to become a useful member of society" and of diverting appropriate offenders from prison. 61 Pa.C.S. § 6102(1)-(2). It must also "ensure that parole proceedings, release and recommitment are administered in an efficient and timely manner." 61 Pa.C.S. § 6102(3).[3]
The Board exercises discretionary parole authority, but must generally balance in making its decision the "best interests" of the offender which justify or require parole, and the interests of the Commonwealth that would be injured by the offender's release on parole. 61 Pa.C.S. § 6137(a).[4] For these purposes, the Board *1197 has a duty to investigate and consider the individual nature and circumstances of the offender and his offense, the victim's wishes, and recommendations from the sentencing judge and prosecuting attorney. 61 Pa.C.S. §§ 6134; 6135(a). The Parole Code requires that, if an offender is eligible for parole, the Board "shall approve" parole upon a determination that the offender's reentry plan is "adequate" and that there is no reasonable indication of the offender posing a risk to public safety. 61 Pa.C.S. § 6137(g)(4).
Probationers and parolees are subject to general and individual rules of conduct and supervision described at sentencing and/or in the parole agreement. Wilson v. Marrow, 917 A.2d 357, 363 (Pa.Cmwlth.2007); see 42 Pa.C.S. § 9754 (order of probation); 61 Pa.C.S. § 6141 (general and specific rules for parolees); 37 Pa.Code §§ 63.4-63.5; 65.4-65.6; 67.1-67.3 (conditions of parole). For probationers, the order at sentencing may incorporate conditions to "reside in a facility established for the instruction, recreation, or residence of persons on probation," to meet family responsibilities, to obtain employment, and to attend a drug rehabilitation program. 42 Pa.C.S. § 9754(c). The purpose of Section 9754 of the Sentencing Code is to "insure [sic] or assist the defendant in leading a law-abiding life." 42 Pa.C.S. § 9754(b). Similarly, parolees must have their residence approved by the Board at release, live there, and not change residence without written permission from the parole supervision staff. 37 Pa.Code § 63.4(2). Other requirements include maintaining regular contact with supervisory staff, and refraining from violating criminal laws, from using or possessing illegal drugs, and from owning or possessing weapons. 37 Pa.Code §§ 63.4(3)-(5); 65.4(3)-(5).[5]
In this comprehensive legal context, the political subdivision at issue, Allegheny County (the "County") amended its County Code to add a new chapter entitled "Residence Requirements; Registered Sex Offenders," which became effective March 1, 2008. In relevant part, the Ordinance states:
It shall be unlawful for any Sex Offender to establish a Permanent Residence or Temporary Residence within 2,500 feet of any Child Care Facility, Community Center, Public Park or Recreational Facility, or School for the duration of his or her registration under the terms of Megan's Law, 42 P[a.C.]S. § 9791 et seq.
Ordinance § 275-02(A) (Residency Restriction/Prohibition). "Sex Offender" is defined to include all Megan's Law registrants. Ordinance § 275-01 (definitions). According to the Ordinance, upon determining that a Megan's Law registrant resides within the prohibited area, s/he will be notified of the violation and will have forty-five (45) days to move from his or her residence to a new location, which *1198 complies with § 275-02(A). Ordinance § 275-03(A)-(B). With limited exceptions, each day beyond the forty-five (45) day grace period that the sex offender resides in a prohibited location constitutes a separate violation of the Ordinance. Ordinance § 275-03(C); § 275-04 (exceptions); § 275-05 (exemptions). Violation of the Ordinance constitutes a summary offense subject to a maximum term of imprisonment of forty-five (45) days and a fine of up to $500, plus the costs of prosecution. Ordinance § 275-07 (penalties). According to the County, the purpose of the Ordinance is "to augment the provisions of Pennsylvania's Megan's Law and [to] better provide for safety of the County's residents."
In adopting the Ordinance, the Allegheny County Council made several legislative findings based on a 2007 report of the Pennsylvania Attorney General regarding Megan's Law compliance, a 2003 U.S. Department of Justice publication on sex offender recidivism, and similar reports from sister states. The Council also noted that Allegheny County was joining many other municipalities to adopt sex offender residency restrictions. "White Oak Borough became the first of the over 130 municipalities within Allegheny County to pass a residency restriction within the last six months, and it appears that other municipalities are considering the possibility as well." Ordinance Preamble.
In relation to the Ordinance, the County published a map depicting the restrictions on residency imposed by the Ordinance. According to the district court's unchallenged finding, "the vast majority of Allegheny County falls within the restricted zone, with permissible areas generally confined to outlying, suburban communities such as Sewickley Heights, Bell Acres, South Fayette, Collier, and West Deer. The map does not indicate the topography of the permissible areas, nor whether residential housing is permitted or available in them." Fross v. County of Allegheny, 612 F.Supp.2d 651, 653 (W.D.Pa.2009).
Appellees Charles Fross, Shawn Czerwien, Charles Meter, Christopher Haigh, and two unidentified parties ("appellees") are all convicted sex offenders subject to the registration requirements of Megan's Law and the residency restrictions of the Ordinance. On October 6, 2008, appellees filed suit in federal court against Allegheny County, challenging the Ordinance on both federal and state law grounds. In relevant part, appellees asserted that the Ordinance was preempted by the Sentencing Code and the precursor to the current Parole Code, and requested a declaration that the Ordinance was invalid, an order enjoining enforcement of the Ordinance, and payment of litigation costs and attorneys' fees.[6] The County responded that the Ordinance was a permissible exercise of its powers and valid.[7]
The Honorable Gary L. Lancaster of the U.S. District Court for the Western District of Pennsylvania consolidated appellees' requests for preliminary and merits relief, and directed the parties to file cross-motions for summary judgment addressing only the state law preemption issue. On March 20, 2009, Judge Lancaster *1199 granted appellees' motion for summary judgment, holding that the Ordinance was invalid pursuant to the doctrine of conflict preemption. Fross, 612 F.Supp.2d at 660.
The federal district court agreed with appellees and concluded that the Ordinance was "an obstacle" to fulfilling the "full purposes and objectives" of Megan's Law and of the repealed precursor to the Parole Code. Fross, 612 F.Supp.2d at 658. According to the court, the Ordinance forbade what state law allowed and, therefore, conflicted with state law "in terms of both policy and operational effect." Id. The court based its conclusions on findings: (1) that "[r]ehabilitation and reintegration depend on the creation and maintenance of a stable environment and support system, close to family ties, employment, and treatment options;" (2) that the Board denied the release on parole of "many" eligible offenders because housing compliant with the Ordinance was not available; and (3) that a sex offender seeking parole and approval of a "home plan" in Allegheny County was subject to a different standard for release than similarly situated offenders in other parts of the Commonwealth. Id. at 658-69 (citing G.H. v. Twp. of Galloway, 401 N.J.Super. 392, 951 A.2d 221, 236 (2008) (local sex offender residency ordinance preempted because New Jersey Legislature intended to exclusively regulate field)). The district court noted that, currently, the Board's statewide policy is to reject the home plan of a sex offender whose victim was a minor if the proposed residence was located within "two blocks" of a school, day care center, or playground. But, the Allegheny County Ordinance adopted a residency restriction which applied to all offenders, regardless of whether the victim was a minor, and within a radius of 2,500 feet from any school, public park, community or recreational center, and child care facility. Id. at 658. Judge Lancaster concluded that, by placing strict restrictions on where sex offenders could reside, essentially prohibiting any sex offender from living throughout most of Allegheny County, the Ordinance directly interfered with the goals of the Parole Code's precursor, namely inmate rehabilitation and reintegration, avoidance of unnecessary incarceration, and the establishment of a uniform system of supervising persons on parole and probation. According to the court, "[t]he conflict with state law is evident: where the state has decided that the offender is ready to return to his community, the County has placed a nearly insurmountable obstacle in the way of that return." Id. at 659.
The district court also underscored that the Ordinance was likely to have ramifications throughout the state as neighboring communities reacted to a real or perceived influx of "undesirable residents." Id. at 660. According to Judge Lancaster, the Ordinance and similar local regulations interfere with the proper functioning of the Board and courts, and cumulatively could prevent the effective operation of the Commonwealth's probation and parole system. Id. Ultimately, the district court found that the Ordinance was invalid and unenforceable.[8]
The County appealed. In January 2010, a panel of the Third Circuit referred the case for review to this Court, by petitioning for certification of the following legal question involving Pennsylvania law:
*1200 Is Allegheny County Ordinance No. 39-07-[OR] entitled "Residence Requirements; Registered Sex Offenders" preempted by Pennsylvania statutory law and the procedures of the Pennsylvania Board of Probation and Parole?
Petition for Certification at 15. The panel offered no opinion on whether it agreed with the district court's preemption conclusions. Third Cir. Op. at 11. On June 3, 2010, this Court granted the Petition for Certification.
In its brief to this Court, the County argues that we should reject appellees' various theories of preemption and find the Ordinance valid.[9] The County emphasizes its status as a home rule county, whose locally-tailored legislation is entitled to deference. The County claims that the Ordinance conflicts neither with Megan's Law nor with the Parole Code. According to the County, the Ordinance shares with the two statewide acts the goal of protecting public safety, albeit by different means specific to the necessities and concerns of Allegheny County. Thus, the County argues that the Ordinance regulates where sex offenders may reside, a subject different from the concerns of Megan's Law-registration and public notification. County's Brief at 22 (quoting Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962, 973 (2003)) (Megan's Law does "not significantly restrain registrants, who remain `free to live where they choose, come and go as they please, and seek whatever employment they may desire.'"). Similarly, with respect to the Parole Code, the County claims that there is no conflict arising from the Ordinance because, although the Parole Code grants the Board exclusive power over parole decisions and seeks to establish a uniform statewide system of parole through detailed regulation, by its plain language, the Ordinance does not seek "to regulate or intrude upon" these prerogatives. County's Brief at 25 (citing 61 P.S. § 331.17).
The County also asserts that the parole legislative scheme and the Board's regulations generally cannot trump the well-established right of municipalities to adopt local laws regarding the health, safety, and welfare of their residents. Id. at 28 (citing 37 Pa.Code § 63.4(4)) (offender must comply with municipal and county criminal statutes); Commonwealth v. Ogontz Area Neighbors Ass'n, 505 Pa. 614, 483 A.2d 448 (1984) ("Ogontz") (state agency must conform to local zoning scheme). Finally, the County concludes that the Ordinance should be upheld as a mere supplement to existing statutes and as a valid exercise of the County's legislative power. According to the County, because the Ordinance is a valid County Council action in response to a recognized health and safety concern, we should direct the Board to operate within the regulatory environment created by the Ordinance.
Appellees, however, urge this Court to find that the Ordinance interferes with the purposes of the General Assembly in adopting Megan's Law and the Parole Code and, therefore, that it is invalid pursuant to the conflict preemption doctrine. Appellees emphasize that the supervision of sex offenders on probation and parole is highly regulated in Pennsylvania through comprehensive and detailed statutes. According to appellees, Megan's Law, "expressly contemplates residency by sex offenders within residential neighborhoods and proximate to schools and day care *1201 facilities following assessment and with monitoring, treatment[,] and notification." Appellees' Brief at 26. The release into the community of sex offenders is based on individualized assessments by criminal justice and mental health professionals, and is controlled down to "every aspect of [the offenders'] existence, including specifically where they may or may not live." Appellees' Brief at 17, 25.[10] The Board's policy is to prohibit sex offenders whose victims were minors from living within two blocks of the same schools and day care centers; but, the County created a restriction that vastly exceeds in scope the Board's prohibition. According to appellees, the County usurps the Board's power to approve a sex offender's residence by essentially excluding all sex offenders from Allegheny County and thus limiting the discretion of courts and of the Board in sentencing and paroling, or in exempting a sex offender from notification requirements where appropriate. According to appellees, the Ordinance essentially prohibits residency in areas of Allegheny County that state law allows and "unduly" restricts the liberty of sex offenders on parole. Appellees claim the Ordinance is a blunt instrument that fails to take into account individual circumstances and the professional judgment of experts who assess individual sex offenders and their residency requirements.
Moreover, appellees argue that the Ordinance thwarts the express purposes of the Sentencing and Parole Codes to ensure public safety, the rehabilitation and integration of sex offenders in the community, and a reduction in the prison population. Appellees note that greater access to treatment, employment, family, and other familiar community supports are generally identified with a decreased risk of recidivism and successful rehabilitation and reintegration of sex offenders into the community. But, the Ordinance deprives sex offenders seeking to return to Allegheny County of these advantages by "single-mindedly focusing on excluding sex offenders from living in the most habitable portions of the County." Appellees' Brief at 29 (citing 61 Pa.C.S. § 6102(1)). Appellees conclude that, although allegedly intended to reinforce the Commonwealth's objective of ensuring public safety, the Ordinance in actuality has the opposite effect. Id. at 31 (citing G.H., 951 A.2d at 236). According to appellees, the Ordinance conflicts with both the ameliorative approach of the General Assembly and its goal of protecting the public. Further, by blocking efforts to release and reintegrate sex offenders into the community, the Ordinance interferes with the Board's duty to divert appropriate offenders from prison and to administer parole release "in an efficient and timely manner." Id. (citing 61 Pa.C.S. § 6102(3)).
Finally, appellees contend that the Ordinance is not legislation legitimately targeted toward specific local concerns and they reject any suggestion that, pursuant to Ogontz, supra, the Ordinance is not subject to preemption. Id. at 21, 27-28 (citing G.H., 951 A.2d at 226; City of Northglenn v. Ibarra, 62 P.3d 151, 156 (Colo.2003))(local ordinance preempted because "state's interest in fulfilling its statutory obligations to place and supervise delinquent children in state-created foster care families in a uniform manner overrides any city interest in regulating land uses"). Appellees also insist that the Board did not relinquish any statutory authority by *1202 adopting Regulation 63.4(4), which directs parolees to comply with municipal and county criminal codes. According to appellees, the Ordinance is a local public safety regulation inconsistent with the comprehensive state legislative scheme and it is, therefore, invalid. Id. at 33-34 (citing Range Res.-Appalachia, LLC v. Salem Twp., 600 Pa. 231, 964 A.2d 869 (2009)).[11]
The application of the doctrine of preemption to invalidate Allegheny County's Ordinance raises a pure question of law. Our review of a question of law certified by the U.S. Court of Appeals for the Third Circuit is plenary. Official Comm. of Unsecured Creditors of Allegheny Health Educ. & Research Found. v. PriceWaterhouseCoopers, LLP, 605 Pa. 269, 989 A.2d 313, 327 (2010).
Pennsylvania counties are creations of the state with no powers of their own, except those powers expressly granted to them by the Constitution of the Commonwealth or by the General Assembly, and other authority implicitly necessary to carry into effect those express powers. Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855, 862 (2009) ("Huntley") (citing City of Phila. v. Schweiker, 579 Pa. 591, 858 A.2d 75, 84 (2004)). Pursuant to the Constitution, counties may frame and adopt home rule charters. PA. CONST. Art. IX, § 2 (municipalities may adopt home rule), § 14 (municipality includes county). Any county which has adopted a home rule charter has the general authority to adopt ordinances "as may be required" and "may exercise any power and perform any function not denied by this Constitution, by its home rule charter or by the General Assembly at any time." PA. CONST. Art. IX, § 2; 53 Pa.C.S. § 2961 (general powers of home rule municipalities), § 2901 (part applies to all municipalities except Philadelphia).
Although liberally construed in favor of the county, the grant of power to a home rule county is not absolute. Holt's Cigar Co. v. City of Phila., 10 A.3d 902, 907-08 (Pa.2011) ("Holt's"); Nutter v. Dougherty, 595 Pa. 340, 938 A.2d 401, 411 (2007); see 53 Pa.C.S. § 2961. Acts of the General Assembly may circumscribe, either expressly or impliedly, the power of a *1203 home rule county to legislate in a particular arena, which may give rise to conflicts between local and statewide legislation. 53 Pa.C.S. § 2961 (county to exercise power not denied "by statute"). The preemption doctrine has developed to establish "a priority between potentially conflicting laws enacted by various levels of government." Huntley, 964 A.2d at 862. Preemption may be express or implied, in the form of field or conflict preemption. Nutter, 938 A.2d at 411.
This Court recently addressed the doctrine of conflict preemption in Holt's. Although sharply divided on the outcome, the entire Court agreed that a local ordinance is invalid if it stands "as an obstacle to the execution of the full purposes and objectives" of the General Assembly, as expressed in a state law. Holt's, 10 A.3d at 907; accord id. at 917 (Castille, C.J., joined by Todd, J. and Orie Melvin, J., dissenting).[12] To determine whether the county has created such an obstacle, we assess the effect of the challenged ordinance on the proper functioning and application of the state enactment. See Holt's, 10 A.3d at 907; accord Cellucci v. Gen. Motors Corp., 550 Pa. 407, 706 A.2d 806, 810 (1998) (federal preemption case; "stands as an obstacle" means state law interference with "methods" by which federal statute was designed to reach its goal) (quoting Int'l Paper Co. v. Ouellette, 479 U.S. 481, 494, 107 S.Ct. 805, 93 L.Ed.2d 883 (1987)). If the local ordinance impedes the operation of the state statute, the ordinance is preempted. County legislation tailored to the particular locality is permitted, if the enactment merely aids and furthers the goals of the state statute. Holt's, 10 A.3d at 907 (quoting Mars Emergency Med. Servs., Inc. v. Twp. of Adams, 559 Pa. 309, 740 A.2d 193, 195 (1999) ("Mars EMS")); id. at 918 (Castille, C.J., joined by Todd, J. and Orie Melvin, J., dissenting) (same). But, "local legislation cannot permit what a state statute or regulation forbids or prohibit what state enactments allow." Huntley, 964 A.2d at 862; see Mars EMS, 740 A.2d at 195 (local ordinance is invalid to extent it contradicts or is inconsistent with state statute).
The parties agree here that neither the Sentencing Code nor the Parole Code expressly prohibits the County from adopting ordinances with respect to released sex offenders. Further, there is no dispute that the County's authority to adopt local legislation must be liberally construed. But, even construed in the most liberal light, the Ordinance here clearly interferes with the statewide operation of the Sentencing and Parole Codes and with the General Assembly's policies in these arenas.
The General Assembly has expressly listed among its purposes for adopting the Sentencing and Parole Codes the rehabilitation, reintegration, and diversion from prison of appropriate offenders. See 42 Pa.C.S. §§ 9721(b) (court to consider rehabilitative needs of defendant in determining sentence); 9754(c) (court to impose conditions of probation that assist defendant in leading law-abiding life); 61 Pa.C.S. § 6102(1); accord Morrissey v. Brewer, 408 U.S. 471, 484, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ("Society has a stake in whatever may be the chance of restoring [a parolee] to normal and useful life within the law."); Commonwealth v. *1204 Walton, 483 Pa. 588, 397 A.2d 1179, 1184 (1979) ("conditions of probation, though significant restrictions on the offender's freedom, are primarily aimed at effecting, as a constructive alternative to imprisonment, his rehabilitation and reintegration into society as a law-abiding citizen"); Commonwealth v. Basinger, 982 A.2d 121, 128 (Pa.Super.2009) (conditions of probation "must be constructive measures directed at rehabilitation through behavioral modification"). The General Assembly has made a determination that Megan's Law registrants/sex offenders, as a class, are eligible for parole and may benefit from these Commonwealth policies. See 61 Pa. C.S. § 6137(a)(1) (subject to conditions, Board may release on parole any inmate except "inmate condemned to death or serving life imprisonment"); accord Poulson v. Pa. Bd. of Prob. & Parole, ___ Pa. ___, 20 A.3d 1178, 1182 (2011) (per curiam); see, e.g., Nieves v. Bd. of Prob. & Parole, 995 A.2d 412 (Pa.Cmwlth.2010). The primary means of implementing this policy is to offer released sex offenders, like other offenders, familiar and stable environments, i.e., promote family and community ties, and provide access to employment, counseling, and supervision. 42 Pa.C.S. § 9754(c); 37 Pa.Code § 63.1(d); see, e.g., Worthington v. Bd. of Prob. & Parole, 784 A.2d 275, 276 (Pa.Cmwlth. 2001) (parolee released to community corrections center "for a minimum period of six months and until his home, employment and drug/alcohol treatment stabilized"); Commonwealth v. Sharpe, 445 Pa.Super. 419, 665 A.2d 1194, 1196-97 (1995) (probation was conditional "upon [probationer] living with his brother, obtaining employment and attending a drug treatment program"); McCauley v. Bd. of Prob. & Parole, 98 Pa.Cmwlth. 28, 510 A.2d 877, 879 nn. 4-7 (1986) (parolee's conditions for release included attending marriage counseling, drug and alcohol abuse therapy, weekly notifications to parole office of employment status, living at address approved by Board, and regularly reporting to parole officer).
The Ordinance fails to acknowledge, and effectively subverts, these goals of the General Assembly. The Ordinance banishes many sex offenders from their pre-adjudication neighborhoods and support systems. The Ordinance also consigns all offenders to isolated suburban areas of Allegheny County that presumably will provide less access to transportation, employment, counseling, and supervision. Moreover, it is not even apparent, from the record provided, whether there is appropriate residential housing available in the areas to which registrants would be banished; what we do know is that those areas, even if residential, are isolated from other aspects of most residential communities, such as parks and community and recreation centers. The Ordinance appears to attempt to ensure public safety, in certain parts of Allegheny County, by isolating all Megan's Law registrants in localized penal colonies of sorts, without any consideration of the General Assembly's policies of rehabilitation and reintegration.
In formulating its Ordinance, the County also disregarded the General Assembly's preference for balancing the best interests of the public and of the offender with respect to the offender's release on probation or parole. Although public safety may be the weightier issue in the calculation of the General Assembly, see 42 Pa.C.S. § 9791(a)(2) and 61 Pa.C.S. § 6102(2), it is not preferred to the exclusion of all other interests which may be reasonably accommodated. See Walton, supra. Even Megan's Law, which addresses sex offenders specifically, does not single out these offenders for a heightened standard of release on probation or parole. The County, however, rejected any balancing approach in favor of a policy of exclusion and isolation.
*1205 The Ordinance also discounts the General Assembly's policy determination to facilitate diverting offenders from prison and the Commonwealth's interest in the timely and effective administration of probation and parole. See 42 Pa.C.S. § 9791(a)(5); 61 Pa.C.S. § 6102(1), (3). Thus, the County's residency restrictions limit the options available to sex offenders in designing adequate plans upon release for approval by sentencing courts or the Board. For example, a sex offender who has a strong family support structure in Pittsburgh may well have difficulty devising a plan for parole that would both meet the restrictions of the Ordinance and the Board's criteria for an adequate release plan. Considerations of whether the sex offender can meet family responsibilities and receive family support in return are often weighty in formulating a plan for release. These relationships contribute to emotional and financial stability, as family may assist the offender in seeking and maintaining employment and attending counseling. See, e.g., Commonwealth v. Sheridan, 348 Pa.Super. 574, 502 A.2d 694, 696 (1985) (in resentencing inmate to probation, trial court highlighted that: "(1) Appellee has a supportive family; (2) Appellee has an eight year old child, with special medical needs, to support; (5) Appellee's remorse for her involvement with drugs and her fear of losing custody of her child would act as deterrents to future misconduct.").
The added level of difficulty in devising adequate plans for release in this one County following the adoption of the Ordinance will likely equate to either probation or parole being granted under conditions less likely to maximize rehabilitation and reintegration potential, additional, and significant delays in processing the release of eligible offenders, or a greater number of otherwise eligible offenders simply being denied parole. See, e.g., Nieves, 995 A.2d at 415 & n. 2 (Board may postpone release on parole pending available opening for residency at community corrections center, part of parolee's approved home plan). Where either probation or parole is granted, the placement of a large number of offenders in fewer and sparsely populated areas of a County is also likely to overtax available resources in those areas and decrease the quality of services. It cannot be seriously disputed that the Ordinance will interfere with the "efficient and timely" administration of the parole system and significantly affect the quality of the Commonwealth's probation and parole systems. See 61 Pa.C.S. §§ 6102(3); 6131(a)(5). These administrative deficiencies may well also produce an unintended effect of threatening public safety, by depriving sex offenders of access to resources which have been shown to reduce the risks of recidivism. The Ordinance, therefore, inhibits the accomplishment of the General Assembly's administrative policies in addition to its goals of rehabilitation and reintegration.
The Ordinance relatedly obstructs the operation of the Sentencing and Parole Codes in several respects. First, although acknowledging the high risk of recidivism among sex offenders, the General Assembly has generally rejected the option of simply excluding released offenders from entire communities as the primary or even preferable means of protecting the public. 42 Pa.C.S. § 9791(a)(2), (b). The General Assembly adopted instead a calibrated regulatory scheme of registration, notification, and counseling for sex offenders Megan's Law. See 42 Pa.C.S. §§ 9795.1, 9795.2, 9797, 9798, 9798.1, 9799.4. Residency restrictions are not excluded but they play a far more limited role in the state's legislative scheme than in the scheme adopted by the Ordinance. Thus, the Board's guidelines prohibit a Megan's Law registrant whose victim was a minor from residing within two blocks from a school, playground, or day care center.
*1206 Generally, however, sentencing courts and the Board assess individual sex offenders (like all other offenders) regarding their suitability for probation or parole, and impose conditions tailored to the offender. See Walton, 397 A.2d at 1184 (courts "are traditionally and properly invested with a broader measure of discretion in fashioning conditions of probation appropriate to the circumstances of the individual case"); Sheridan, 502 A.2d at 696 ("sentences must be imposed individually, taking into account not only the offense but the characteristics of the offender"); see, e.g., Woodling v. Bd. of Prob. & Parole, 113 Pa.Cmwlth. 310, 537 A.2d 89, 89 (1988) (sex offender whose victim was a minor was subject to condition of probation "that he not associate with minors (under age eighteen) who were not close relatives (first degree) without his parole agent's prior approval"). For example, a parolee's residency is subject to approval by the paroling entity; and probationers may be required to live in a facility established for probationers. 37 Pa.Code § 63.4(2); 42 Pa.C.S. § 9754(c)(5); see, e.g., Worthington, supra. The Ordinance, however, establishes a blanket prohibition against residency within 2,500 feet of "places where children congregate," on all Megan's Law registrants. Moreover, the Ordinance minimizes all Megan's Law registrants' contact with children, regardless of whether the offender's victim was a minor or the offender is determined to be a threat to minors. The Ordinance would thus obstruct the operation of the statewide statutory scheme by requiring courts and the Board to abandon the tailored and proportionate approach of the General Assembly and attempt to devise new approaches that would satisfy the County's wider-reaching restrictions. To stand down to the Ordinance, in essence, is to allow the County to "opt-out" of the statewide plan.
The County nonetheless would have it that the Ordinance, by its plain terms, neither interferes with the probation and parole systems of the Commonwealth nor touches upon the operative clauses of Megan's Law, which provide solely for the registration of sex offenders and public notification. The main thrust of the County's argument is that the Ordinance is an exercise of its home rule powers to devise legislation tailored to the public health, safety, and welfare of its inhabitants. According to the County, its Ordinance merely regulates where Megan's Law registrants may reside and "augments" the statute in response to local concerns. But, the County's assessment is implausible. The County's legislative findings merely amount to a reiteration of the General Assembly's conclusions in relation to Megan's Law supplemented by various generalized references to national, statewide, and out-of-state (i.e., Minnesota and Arizona) studies, none of which identify Allegheny County-specific concerns. In this instance, the General Assembly has already weighed in on the policy priorities of the Commonwealth with respect to the reintegration of offenders, including sex offenders, and has devised an approach for how to best accomplish them. The County reveals no countervailing local concerns to justify its attempt to opt-out of the General Assembly's overall scheme of balancing public safety and the offenders' best interests, from its policies of rehabilitation, reintegration, and diversion from prison, or from the means by which the Legislature sought to promote these policies.
Moreover, the County fails to articulate a cogent argument to support its claim that the Ordinance somehow "aid[s] and further[s]" the public safety goal of Megan's Law. Thus, the County provides no explanation why broad exclusions of sex offenders from population centers are *1207 preferable, in Allegheny County, to the statewide individually-tailored residency plus registrationnotificationcounseling requirements of the General Assembly. See, e.g., Dep't of Licenses & Inspections v. Weber, 394 Pa. 466, 147 A.2d 326 (1959) (stricter regulation of beauty salons in Philadelphia appropriate because ensuring "health, safety, welfare, and comfort of dwellers in urban centers" posed special challenges compared to rest of state). Indeed, similarly to the district court, we are persuaded by the appellees' arguments that the County's Ordinance interferes with the goal of Megan's Law to reduce recidivism among sex offenders and improve public safety. Isolating all sex offenders from their communities, support systems, employment, and treatment is an approach contrary to that of the General Assembly, which requires individually tailored assessments and assistance with rehabilitation and reintegration for appropriate offenders. The Ordinance chooses the importance of residency over all other considerations expressly incorporated into the probation and parole scheme by the General Assembly. And, finally, it is not hard to imagine the effect on the statewide legislative scheme if all counties were to adopt similar residency restrictions. The statewide scheme would be eviscerated.[13]
The County's legislative effort in this instance undermines the General Assembly's policies of rehabilitation, reintegration, and diversion from prison of appropriate offenders, and significantly interferes with the operation of the Sentencing and Parole Codes. For these reasons, we agree with the federal district court that the County's Ordinance stands as an obstacle to accomplishing the full purposes objectives of the General Assembly and is, therefore, preempted.
Question answered, jurisdiction relinquished.
Justices SAYLOR, EAKIN, BAER, TODD, McCAFFERY and ORIE MELVIN join the opinion.
NOTES
[1] Acceptance of certification from the Third Circuit on a question of law is a matter of judicial discretion. Supreme Court I.O.P. § 10(B). Thus, we accept certification for "special and important reasons," including if the question of law at issue "is one of first impression and is of such substantial public importance as to require prompt and definitive resolution by this Court." Id. at § 10(B)(1).
[2] The General Assembly assigned to the State Police responsibility for the registration system's administration but charged courts with informing a sex offender of his/her obligation to supply the required data to the State Police, and the Pennsylvania Board of Probation and Parole with collecting the data from sex offenders prior to release, for entry into the system. 42 Pa.C.S. §§ 9799.1, 9795.3, 9799.2(2)-(3).
[3] The Board has "exclusive" power "[t]o parole and reparole, commit and recommit for violations of parole and to discharge from parole" any persons sentenced to imprisonment in state or county correctional institutions for a maximum term of more than two years or any persons placed under Board supervision by a court; sentencing courts have residual authority to parole persons sentenced to a maximum of less than two years. 61 Pa.C.S. § 6132; 42 Pa.C.S. § 9776(a); accord 61 Pa.C.S. § 6134.1(c). Further, the Board supervises any person placed on probation by special order of the sentencing court. 61 Pa.C.S. § 6133(a). Otherwise, like probationers, parolees are supervised by county probation and parole officers. 42 Pa.C.S. § 9776. County probation and parole officers are subject to certain "uniform [s]tatewide standards" established by the Board regarding qualifications, minimum salaries, and quality of services. 42 Pa.C.S. §§ 9756(b)(3), 9775, 9776(d), 9911; 61 Pa.C.S. § 6131(a)(5) (uniform standards); accord Timothy P. Wile, "County" parole, 12 WEST'S PA. PRAC., Law of Probation & Parole § 3:2 (2010 ed.).
[4] According to the Parole Code, the Board and other paroling entities are also to consider parole guidelines articulated by the Pennsylvania Commission on Sentencing. 61 Pa. C.S. §§ 6134.1(c), 6102(3); see 42 Pa.C.S. § 2154.5. The General Assembly tasked the Commission to adopt such guidelines in 2009. Act No. 81 of Sept. 25, 2008, P.L. 1026, § 4, effective in 60 days. But, the Commission has yet to publish guidelines, and the Board has utilized its own informal parole rules since at least 1981. Timothy P. Wile, Parole guidelines, 12 WEST'S PA. PRAC., Law of Probation & Parole § 8:13 (2010 ed.). See, e.g., Appellees' Brief at 5 (citing Board's pamphlet "State Parole and Parole Release Plans: What Inmates and their Families Need to Know," which provides restrictions on residency of sex offenders within two blocks of a playground, school, or day care facility).
[5] The Board's regulations also provide that the released offender must "[c]omply with municipal, county, State and Federal criminal statutes, as well as the Vehicle Code and the Liquor Code." 37 Pa.Code §§ 63.4(4); 65.4(4).
[6] At the time appellees filed their federal action, probation and parole in Pennsylvania were governed by Act 323 of August 6, 1941, P.L. 861, as amended. 61 P.S. §§ 331.1-331.34a. That act was repealed and essentially reenacted in August 2009. See 61 Pa.C.S. § 101 Historical & Statutory Notes.
[7] The County agreed to delay enforcement of the Ordinance pending resolution of this case. Independently, however, the Board apparently has been requiring that residency plans comply with the Ordinance. See Fross, 612 F.Supp.2d at 652 n. 1.
[8] The district court rejected appellees' alternative field preemption theory as inapplicable on the ground that this Court, to date, has only recognized a legislative intent to fully preempt local legislation in three areas: alcoholic beverages, banking, and anthracite mining. 612 F.Supp.2d at 654-55.
[9] Although the question certified by the U.S. Court of Appeals for the Third Circuit concerns the effect of the current legislative scheme on the Ordinance, the County has inexplicably referenced the repealed act in its arguments. We, of course, answer only the question properly before us, the question certified by the Third Circuit.
[10] The Association for the Treatment of Sexual Abusers ("ATSA") filed an amicus curiae brief on behalf of appellees. ATSA essentially reasserts appellees' arguments, claiming among other things that residency of offenders is a critical matter in probation and parole decisions, with which individuals counties should not be permitted to interfere. ATSA Brief at 11, 14.
[11] The parties also argue, and disagree on, whether the Ordinance is invalid pursuant to the field preemption doctrine. Thus, appellees argue that the general tenor of the Parole Code reflects a legislative intention that it should not be supplemented at a local level. According to appellees, the General Assembly directed the Board to promulgate regulations establishing "uniform Statewide standards" for supervision of probationers governing every aspect of an offender's life, including residency, and provided the Board "exclusive power" over the parole system. Appellees also emphasize a "special need for uniformity" in the areas of probation and parole. In response, the County argues that there is no precedent for finding field preemption with respect to the regulation of probation and parole, and that this Court has only recognized field preemption with respect to regulation of alcoholic beverages, banking, and anthracite mining. Because we conclude that the Ordinance is preempted pursuant to the conflict preemption doctrinewhich was the ground for decision of the District Courtwe do not reach the issue of field preemption and express no opinion as to its operation here.
Similarly, we decline the invitation to decide the County's claim that, because the Ordinance is not preempted, this Court must view it "under rational basis" review. According to the County, the Ordinance is an appropriate exercise of the County's police powers in response to the safety and health risk that sex offenders pose to the public at large. County's Brief at 32 (citing Conn. Dep't of Public Safety v. Doe, 538 U.S. 1, 4, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003)). To the extent that this argument regarding the constitutionality of the Ordinance is developed, it is not within the scope of our certification order and we will not address it.
[12] A local ordinance may also be preempted if it is in direct and irreconcilable conflict with a state enactment, i.e., if simultaneous compliance with both the local and state enactments is impossible. See, e.g., Mazzo v. Bd. of Pensions & Retirement, 531 Pa. 78, 611 A.2d 193, 195-97 (1992) (invalidating ordinance that inserted additional requirement and prohibited reinstatement of pension benefits on conditions devised by state).
[13] We also reject the County's secondary argument premised on the notion that parole regulations require offenders to abide by local ordinances. County's Brief at 28-29 (citing 37 Pa.Code § 63.4(4)). Regulation 63.4(4) states that if parole is granted, the parolee shall "[c]omply with municipal, county, State and Federal criminal statutes, as well as the Vehicle Code and the Liquor Code." The County suggests that the regulation gives the Ordinance validity by recognizing that the Board does not have "blanket authority to override validly enacted local laws dealing with local health, safety and welfare." Id. at 28 (citing Ogontz, 483 A.2d 448). Setting aside the issue of whether the Ordinance is criminal legislation (and also any Apprendi concerns), the County's argument is not persuasive. See Commonwealth v. Lee, 594 Pa. 266, 935 A.2d 865, 873 (2007) (citing Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (statutory scheme that is punitive in purpose or effect entitles defendant to full panoply of due process protections)). In Ogontz, this Court held that a Commonwealth agency was permitted to acquire property but the agency's use of the property as a mental health facility was subject to the municipality's zoning ordinance. Ogontz, 483 A.2d at 455. The Court explained that the contest in Ogontz was "between two [equal] instrumentalities of the state," the Commonwealth agency and a home rule municipality. Id. at 452. Here, however, the direct conflict is between the General Assembly's acts and a County ordinance, between which, the statewide enactments must prevail. See Holt's, 10 A.3d at 907. Even if we were to assume that the Board's regulation intended to, and could, vest counties with greater powers than those legislatively granted, a county has no authority to exercise its power contrary to the policy and operational imperatives of the General Assembly. See Cellucci, 706 A.2d at 810; 53 Pa.C.S. § 2961.
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460 F.Supp.2d 650 (2006)
PFIZER INC., Pharmacia Corp., Pharmacia & Upjohn Inc., Pharmacia & Upjohn Company, G.D. Searle & Co, G.D. Searle LLC, Searle LLC (Delaware) and Searle LLC (Nevada), Plaintiffs,
v.
TEVA PHARMACEUTICALS USA, INC., Defendant.
Civ. Action No. 04-754 (JCL).
United States District Court, D. New Jersey.
November 6, 2006.
*651 *652 David E. Delorenzi, Sheila F. McShane, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, PC, Newark, NJ, for Plaintiffs.
Michael E. Patunas, Lite Depalma Greenberg & Rivas, LLC, Newark, NJ, for Defendant.
OPINION
LIFLAND, District Judge.
This case arises out of Teva Pharmaceuticals U.S.A., Inc.'s ("Teva" or "Defendant") alleged infringement of U.S. Patent Nos. 5,466,823; 5,563,165; and 5,760,068 (the "patents-in-suit"), which are held by Pfizer, Inc., Pharmacia Corp., Pharmacia & Upjohn Inc., Pharmacia & Upjohn Company, G.D. Searle & Co., G.D. Searle LLC, Searle LLC (Delaware), and Searle LLC (Nevada) (collectively "Pfizer" or "Plaintiffs"). The patents-in-suit are directed toward celecoxib, the active ingredient in Celebrex, and a broad genus of compounds that includes celecoxib, pharmaceutical compositions including such compounds, and methods of using such compounds.
Before the Court is Teva's in limine motion No. 7 to preclude evidence of secondary considerations that are not relevant to the origins of the alleged invention at the time it was made. Teva argues that because the secondary considerations are temporally remote from the time the invention was made, they do "not shed light" on the obviousness of the inventions, which must be evaluated as of "the time the invention was made." (Memorandum in Support of Teva's in Limine Motion No. 7, at 2.) This argument is without merit.
It is well established that secondary considerations, such as commercial success, long-felt but unresolved need, unexpected results, copying, and the failure of others to develop the invention, must be considered as part of a court's obviousness analysis. See, e.g., Glaverbel Societe Anonyme v. Northlake Marketing & Supply, Inc., 45 F.3d 1550, 1555 (Fed.Cir.1995).[1] Moreover, the Federal Circuit has made clear that the term "secondary" does not refer to the importance of the considerations, but "instead indicates that these considerations necessarily arise second in time, after the invention has been introduced in the market, in contrast with the other Graham factors which focus upon the `time the invention was made.'" Roger Schechter and John Thomas, Principles of Patent Law 163 (2d ed.); see also Truswal Sys. Corp. v. Hydro-Air Engineering, Inc., 813 F.2d 1207, 1212 (Fed.Cir.1987) ("That evidence is `secondary' in time does not mean that it is secondary in importance."). Accordingly, Teva's argument that the temporally remote nature of the evidence renders the secondary considerations irrelevant is contrary to well-established law.
*653 Although Teva's arguments in its in limine motion No. 7 are ostensibly based on this temporal concern, several of Teva's attacks on Pfizer's specific evidence of secondary considerations seem to have little or nothing to do with this concern. To the extent Teva's arguments are based on temporal factors, they are rejected for the reasons explained above. The Court will address Teva's other, seemingly unrelated, arguments individually.
1. Medical Evidence
Pfizer has indicated that it will introduce testimony that Celebrex's safety profile is superior to Vioxx and other antiinflammatories on the market. Teva contends that this evidence is irrelevant to determining the obviousness of the invention. A showing that an invention exhibits superior and unexpected properties can be indicative of non-obviousness. See, e.g., American Hoist & Derrick Co. v. Sowa & Sons, 725 F.2d 1350, 1360 (Fed. Cir.1984). However, this Court has ruled that evidence of Celebrex's superior cardiovascular properties does not suggest non-obviousness of the invention and is not relevant to the obviousness inquiry because superior cardiovascular properties were not contemplated as a goal of the inventive process. (See Pfizer v. Teva, No. 04-754, Opinion on Teva's in Limine Motion No. 6, at Part C.2.) To the extent Pfizer seeks to introduce evidence of other benefits of Celebrex over Vioxx and other antiinflammatori es (e.g., decreased gastrointestinal side effects or more effective pain relief) that were contemplated at the time of invention, the evidence is relevant.
Teva also makes a Rule 403-type argument that any relevance of this evidence is outweighed by the delay that would be caused by permitting Pfizer to introduce the "monumental" evidence available on the relative risks of Vioxx versus Celebrex[2] The Court disagrees. As explained above, the Federal Circuit has clearly instructed that evidence of secondary considerations must be considered in every case in which it is present. See, e.g., Custom Accessories, Inc. v. Jeffrey-Allan Industries, Inc., 807 F.2d 955 (Fed. Cir.1986). Moreover, the Court has already limited the scope of the evidence that Pfizer may present on this issue, thus decreasing the volume of material and amount of time that will be dedicated to the comparative evidence.
2. Licensing
Teva's additional arguments with respect to licensing are a restatement of the arguments set forth in its in limine motion No. 6 with respect to the testimony of Dr. Grabowski. The Court will not repeat its analysis of the issue here. Instead, the Court incorporates the discussion from its opinion in Teva's in limine motion No. 6.
3. Long-Felt Need
Pfizer plans to submit evidence showing that the side effects of non-steroidal anti-inflammatory drugs (NSAIDs) have been well-known for decades, and that researchers have been trying to develop safer NSAIDs since the 1960s. It is well established that such evidence of a long-felt need may be relevant to the obviousness inquiry. See, e.g., Uniroyal, Inc. v. Rudkin-Wiley Corp., 837 F.2d 1044, 1054 (Fed.Cir.1988). Teva contends that Pfizer's evidence of long-felt need is irrelevant in this case because (1) the need did *654 not arise until 1991, and (2) "any evidence of a long-felt need bec[ame] irrelevant once the problem to be solved was accomplished by the prior art," i.e. when Merck filed a patent application that disclosed a COX-2 selective non-steroidal anti-inflammatory drug ("NSAID") with reduced gastrointestinal side effects. (Memorandum in Support of Teva's in Limine Motion No. 7, at 8.) As an initial matter, this argument goes to the weight to be accorded to the evidence of long-felt need, not to its admissibility. Moreover, there are problems with both of Teva's sub-arguments.
With respect to Teva's first point, Teva argues that "the need" did not arise until the person with ordinary skill in the art would have known about the difference between the COX-2 enzyme ("the inflammatory enzyme") and the COX-1 enzyme (the stomach enzyme), and the desirability of a COX-2 selective inhibitor. The Court is not persuaded by Teva's assertion that a long felt need does not arise until the hypothetical person with ordinary skill would have been aware of the specific enzymes involved in solving the problem of NSAID side effects. "[L]ong-felt need is analyzed as of the date of an articulated identified problem and evidence of efforts to solve that problem." Texas Instruments v. United States ITC, 988 F.2d 1165, 1178 (Fed.Cir.1993). Pfizer will attempt to show, via the disputed evidence, that the relevant problem was articulated and identified many decades ago, and that pharmaceutical companies have been making efforts to solve it for nearly as long. This evidence is clearly relevant.
With respect to Teva's second point, the argument is premature. Teva assumes many factual and legal conclusions that have not yet been established. Pfizer disputes that Merck's patent application constitutes prior art. Pfizer disputes that the relevant compound was disclosed by Merck prior to the invention date for the patents-in-suit. Pfizer disputes that Merck solved the problem. Until these issues are resolved, the Court cannot determine how much weight, if any, to accord Pfizer's evidence on long-felt need.
4. Failure of Others
Teva's additional arguments with respect to failure of others are a restatement of the arguments set forth in its in limine motion No. 6 with respect to the testimony of Dr. Galbraith. The Court will not repeat its analysis of the issue here. Instead, the Court incorporates the discussion from its opinion in Teva's in limine motion No. 6.
5. Commercial Success
Finally, Teva argues that evidence of the commercial success of Celebrex is irrelevant because evidence of commercial success has "no force" when a drug's success can be attributed to the five year exclusivity period granted by the Food and Drug Administration to new chemical entities. Teva relies on Merck & Co., Inc. v. Teva Pharm. USA., Inc., 395 F.3d 1364, 1377 (Fed.Cir.2005), in support of its argument, but this reliance is misplaced. In Merck & Co., the Federal Circuit explained that the inference of non-obviousness from evidence of commercial success was "weak," because a "blocking patent" was in place. There is no such "blocking patent" in place here. Moreover, this Court has previously found evidence of commercial success to be probative in cases where the drug at issue was still enjoying the benefits of the five year exclusivity period. See, e.g., Janssen Pharmaceutica NV v. Mylan Pharmaceuticals, Inc., 456 F.Supp.2d 644, 668-69 (D.N.J. 2006).
Accordingly, for the reasons stated herein, and for the reasons stated in this Court's opinion in Teva's in limine motion *655 No. 6, Teva's in limine motion No. 7 to preclude Pfizer from submitting evidence of secondary considerations that Teva claims is not relevant to the origins of the alleged invention at the time it was made will be denied.
NOTES
[1] In Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 86 S.Ct. 684, 15 L.Ed.2d 545 (1966), the Supreme Court noted that, secondary considerations "may be relevant in particular cases." Id. at 18, 86 S.Ct. 684. Teva argues, based on this language, that consideration of such evidence is discretionary, not mandatory. The Federal Circuit, however, has clearly instructed that secondary considerations must be considered in every case in which they are present. See, e.g., Custom Accessories, Inc. v. Jeffrey-Allan Industries, Inc., 807 F.2d 955 (Fed.Cir.1986). "Arguably, the Federal Circuit has more eagerly employed [secondary considerations] than th[e] Supreme Court language [in Graham] would suggest." Roger Schechter and John Thomas, Principles of Patent Law 163 (2d ed.). This Court is bound by the Federal Circuit precedent unless and until the Supreme Court overrules it.
[2] Federal Rule of Evidence 403 provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
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148 F.3d 1072
Edward Siskov.City of Boynton Beach
NO. 97-4308
United States Court of Appeals,Eleventh Circuit.
June 16, 1998
S.D.Fla., 138 F.3d 957
1
DENIALS OF REHEARING EN BANC.
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35 P.3d 1176 (2001)
109 Wash.App. 379
Calvin C. CLAWSON, Diane Butcher-Evans, Appellants,
Steve Taylor, Plaintiffs,
Larry Bullis, Corinne L. Baker, Appellants,
Mark Grigal, Plaintiff,
Zoe Grimshaw, David Connolly, K. Ann McCartney, Sara Sanchez, Linda Sturza, Molly Tenenbaum, Debbie Wallin, Keiko Yamaguchi, Appellants, and
Scott McClellan, Plaintiff,
v.
GRAYS HARBOR COLLEGE DISTRICT NO. 2, Green River Community College District No. 10, Respondents,
Lake Washington Technical College, Olympic Community College, Defendants,
Seattle Community College District VI, Skagit Valley Community College, and Whatcome Community College District No. 21, Respondents.
No. 47891-5-I.
Court of Appeals of Washington, Division 1.
December 10, 2001.
*1177 Steven B. Frank, Frank and Rosen, Seattle, Counsel for Appellants.
Warren H. Fischer, Assistant Attorney General, Olympia, Counsel for Respondents.
COLEMAN, J.
Appellants are part-time community college faculty and are before this court on appeal from summary judgment dismissal of their claim for unpaid overtime wages. The sole issue on appeal is whether the faculty members' compensation arrangements with the respondent colleges implicate the protections of Washington's Minimum Wage Act (MWA). Because the faculty members are exempt from the act as persons employed in a "professional capacity" and compensated on a "salary basis," we affirm the trial court's dismissal of their claim.
FACTS
The appellants in this case are part-time faculty members employed at five Washington community colleges. The faculty members sued the colleges for unpaid overtime wages in violation of the MWA (chapter 49.46 RCW). Because the pay practices at the colleges are uniform, the trial court stayed the claims against three of the colleges and allowed the case to proceed against Green River and Whatcom Community Colleges to determine whether the part-time faculty members at those schools are exempt from the MWA.
Part-time faculty members are hired by the colleges under individual contracts on either an annual or quarterly basis. Their compensation is calculated by multiplying their "contact hours" (i.e., the required number of in-class instruction hours for each course) by a bargained-for rate. Faculty members are paid at regular intervals throughout the academic quarter in equal or near-equal installments. The agreements between the colleges and the faculty members' unions state that the compensation arrangements include payment for work outside the classroom, including course preparation, grading, student conferences, and office hours.
DISCUSSION
This court reviews orders of summary judgment de novo and engages in the same inquiry as the trial court, "treating all facts and reasonable inferences from the facts in a light most favorable to the nonmoving party." Enter. Leasing, Inc. v. City of Tacoma, 139 Wash.2d 546, 551, 988 P.2d 961 (1999). Summary judgment should be granted when there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Kuhlman v. Thomas, 78 Wash.App. 115, 119, 897 P.2d 365 (1995).
The MWA requires that employers pay their employees no less than the minimum hourly rate set forth in the statute or as determined by the Department of Labor and Industries. RCW 49.46.020. For purposes of the MWA, the term "employee" is defined to include "any individual employed by an employer" but does not include individuals employed in a "bona fide ... professional capacity[.]" RCW 49.46.010(5)(c). The parties in this case have stipulated that the faculty members meet all of the criteria of the professional exemption under the MWA, with one exception: the faculty members claim that they are not compensated on a "salary or fee basis" as required by WAC 296-128-530(5).[1]
*1178 1. Compensation Arrangement
The MWA does not define what it means to be compensated on a salary or fee basis. When faced with this lack of legislative guidance in Drinkwitz v. Alliant Techsystems, Inc., 140 Wash.2d 291, 299, 996 P.2d 582 (2000), our Supreme Court relied upon the federal Department of Labor and Industries' definition of "salary basis" promulgated under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-219:
An employee will be considered to be paid "on a salary basis" within the meaning of the regulations if under his employment agreement he regularly receives each pay period on a weekly, or less frequent basis, a predetermined amount constituting all or part of his compensation, which amount is not subject to reduction because of variations in the quality or quantity of the work performed.... [T]he employee must receive his full salary for any week in which he performs any work without regard to the number of days or hours worked. This policy is also subject to the general rule that an employee need not be paid for any workweek in which he performs no work.
29 C.F.R. § 541.118(a).
All of the faculty members in this case are generally compensated according to the same calculation: the number of credits or "contact hours" for the class to be taught multiplied by a bargained-for rate. Faculty members are paid at regular intervals during the academic quarter in equal or near-equal installments regardless of how many days or hours they work in each pay period.[2]
The faculty members present several arguments to support their claim that they are paid as hourly employees for purposes of the MWA. First, they point to the fact that the college salary schedules for part-time faculty indicate compensation in terms of an hourly rate (as opposed to the annual salary listed in the schedules for full-time faculty). The faculty members claim that by granting summary judgment for the colleges, the trial court disregarded the plain language of the salary schedules. Second, the faculty members claim that the use of an hourly rate in calculating their quarterly compensation is indicative of their status as hourly employees under the protections of the MWA. Third, the faculty members assert that the fluctuation in compensation from quarter to quarter demonstrates that they are not salaried, but paid hourly according to the number of contact hours for each class in each quarter.
The faculty members' arguments are unpersuasive and unsupported by state and federal case law. "[T]he MWA is not violated by calculating `exempt' employees' compensation using an hourly rate[.]" Drinkwitz, 140 Wash.2d at 302, 996 P.2d 582. See also, Palazzolo-Robinson v. Sharis Mgmt. Corp., 68 F.Supp.2d 1186, 1192 (W.D.Wash. 1999) ("a payroll accounting system which calculates an exempt employee[']s pay on an hourly basis does not indicate that the employee was not salaried[.]"); McGuire v. City of Portland, 159 F.3d 460, 464 (9th Cir.1998) (city payroll accounting system, which calculated battalion chiefs' salaries on an hourly basis, did not mean that chiefs were in fact hourly employees). Moreover, the undisputed facts demonstrate that under each quarterly contract, the faculty members are paid a predetermined amount in equal installments and at regular intervals during the quarter, regardless of how many hours they actually work.
The faculty members assert that "[t]he Colleges cannot avoid the MWA by entering into a `new contract' every quarter, thereby establishing a new salary which is paid out regularly over the quarter." Brief of Appellants, at 23. In support of this argument, they cite In re Wal-Mart Stores, Inc. Fair Labor Standards Act Litigation, 58 F.Supp.2d 1219, 1221 (D. Colorado 1999). That case, however, is distinguishable on its *1179 facts and is not directly informative on the issue before the court. In Wal-Mart, the plaintiffs were full-time pharmacists who sued their employer for unpaid overtime. The defendant employer argued that the plaintiffs were salaried employees as evidenced by the fact that they were paid a predetermined amount based upon their projected work schedules. The court disagreed, however, and held that the defendant's practice of prospectively changing the plaintiffs' schedules and pay to accommodate slow business was not consistent with salaried employment. Wal-Mart, 58 F.Supp.2d at 1221.
In this case, the faculty members are part-time employees contracted on a quarter-by-quarter basis depending on the course offerings at each college. The fact that the faculty members are offered a new contract each quarter is not, as they suggest, an attempt to "avoid the MWA"; rather, it is necessary to accommodate part-time employment in step with the academic calendar.
In sum, the faculty members' compensation arrangements with the colleges demonstrate that they are paid on a salary basis and thus are exempt from the protections of the MWA.[3] The trial court's grant of summary judgment for the colleges is affirmed on this basis.
2. Deductions from Pay
Appellant Butcher-Evans argues that Green River Community College's "policy of making hourly based deductions from part-time faculty compensation for time missed when sick leave is exhausted is evidence that all part-time faculty are subject to such deductions, and therefore are not salaried." Reply Brief of Appellant, at 14. While there is no Washington case law or legislative guidance dealing directly with this issue, it has been addressed in the federal arena. Because the MWA is based upon the FLSA, federal authority is persuasive in the absence of adequate state authority. Tift v. Prof'l Nursing Servs., Inc., 76 Wash.App. 577, 583, 886 P.2d 1158 (1995). See also, Xieng v. Peoples Nat'l Bank, 120 Wash.2d 512, 531, 844 P.2d 389 (1993).
The kind of deductions complained of in this case are expressly authorized by 29 C.F.R. § 541.5d:
(a) An employee of a public agency who otherwise meets the requirements of § 541.118 shall not be disqualified from exemption under §§ 541.1, 541.2, or 541.3 on the basis that such employee is paid according to a pay system ... pursuant to principles of public accountability, under which the employee accrues personal leave and sick leave and which requires the public agency employee's pay to be reduced or such employee to be placed on leave without pay for absences for personal reasons or because of illness or injury of less than one work-day when accrued leave is not used by an employee because
(1) permission for its use has not been sought or has been sought and denied;
(2) accrued leave has been exhausted; or
(3) the employee chooses to use the leave without pay.
. . . .
Citing 29 C.F.R. § 541.5d, the court in Richardson v. Genesee County Cmty. Mental Health Servs., 45 F.Supp.2d 610, 616-17 (E.D.Mich.1999) held that "paying plaintiffs only for the time worked in the absence of sick leave or personal leave is not conduct which puts the employee outside the professional exemption."[4]
We adopt the rule set forth in 29 C.F.R. § 541.5d and hold that Green River Community *1180 College's policy of deducting an employee's pay for partial-day absences after accrued sick leave has been exhausted does not affect that employee's exempt status under the MWA.[5]
Affirmed.
Appelwick and Cox, JJ., concur.
NOTES
[1] WAC 296-128-530 defines the term "individual employed in a bona fide ... professional capacity" to mean any employee:
(1) Whose primary duty consists of the performance of work:
. . . .
(c) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged in this activity as a teacher in the school system or educational establishment or institution by which he is employed; and
. . . .
(5) Who is compensated for his services on a salary or fee basis at a rate of not less than $170 per week exclusive of board, lodging, or facilities....
[2] For example, appellant Butcher Evans was hired by Green River Community College to teach two math classes during the 1996 fall academic quarter for $4,129.40. On October 10, 1996, she was paid $688.25 and then was paid $688.23 on or near the 10th and 25th of each month until the end of the quarter. The number of instruction days per pay period ranged from 6 to 11.
[3] The colleges argue, alternatively, that the faculty members are exempt from the MWA as professionals compensated on a "fee basis." WAC 296-128-530(5). As stated in 29 C.F.R. § 541.313(b), arrangements for compensation on a fee basis "are characterized by the payment of an agreed sum for a single job regardless of the time required for its completion." In this case, the faculty members were hired under a contract for continuous employment over the course of a few months. We do not find such an arrangement to be consistent with employment on a fee basis.
[4] The colleges also point out that paying the faculty members for work missed after sick leave and vacation have been exhausted may constitute an illegal gift of public funds contrary to article VIII, section 7 of the Washington State Constitution.
[5] Appellants submitted Webster v. Pub. Sch. Employees of Washington, Inc., 247 F.3d 910, 920 (9th Cir.2001) as additional authority for the proposition that courts are to "consider the possible deductions for vacation leave and actual deductions from sick leave `in the context of the entire employment relationship'" (quoting Drinkwitz, 140 Wash.2d at 303, 996 P.2d 582) to determine if an employee is compensated on a salary basis. Because Webster and Drinkwitz dealt with private employment, their analyses of this issue is not informative to our decision in the case at bar.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00686-CR
Alexander Pina, Appellant
v.
The State of Texas, Appellee
FROM COUNTY COURT AT LAW NO. 5 OF TRAVIS COUNTY
NO. C-1-CR-07-214559
HONORABLE NANCY WRIGHT HOHENGARTEN, JUDGE PRESIDING
PER CURIAM
M E M O R A N D U M O P I N I O N
Alexander Pina has filed a Motion to Abate Appeal and Remand for Determination
of Indigence with Respect to Financial Assistance to Obtain Appellate Record. He asserts that,
although he has retained counsel, he lacks sufficient resources to pay for the reporter's record. The
reporter's record has not been filed. Apparently no request for a free record was filed previously,
and no finding of indigency has been made. See Tex. R. App. P. 20.2.
To avoid further delays and protect the rights of the parties, the appeal is abated and
the trial court is instructed to determine, following a hearing if necessary, whether appellant is unable
to pay for the record and is entitled to have the record furnished without charge. See generally
Tex. R. App. P. 20.2. To pursue his claim that he is unable to pay for the costs of appeal, appellant
must file an affidavit of indigence with the trial court. See id.; see also Higgins v. Randall County
Sheriff's Office, 193 S.W.3d 898, 899 (Tex. 2006). If the court finds that appellant cannot pay or
give security for the record, it shall order the preparation of the reporter's record at no cost to
appellant. A supplemental clerk's record including copies of all findings, conclusions, orders and
reporter's record of any hearing that is held, shall be tendered for filing in this Court no later than
March 3, 2011.
Before Justices Puryear, Pemberton and Rose
Abated
Filed: January 27, 2011
Do Not Publish
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[Cite as State v. Czaplicki, 2013-Ohio-1366.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25252
Plaintiff-Appellee :
: Trial Court Case No. 1990-CR-744/1
v. :
:
ANTHONY CZAPLICKI : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 5th day of April, 2013.
...........
MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ANTHONY CZAPLICKI, #226-644, Chillicothe Correctional Institution, Post Office Box
5500, Chillicothe, Ohio 45601
Defendant-Appellant, pro se
.............
HALL, J.
{¶ 1} Anthony Czaplicki appeals pro se from the trial court’s decision, entry, and
order overruling his “motion to vacate registration and classification.”
{¶ 2} The record reflects that Czaplicki was convicted of rape in 1990, and he
remains incarcerated. He filed the foregoing motion in May 2012, arguing that retroactively
subjecting him to sex-offender-registration-and-notification requirements violated the Ohio
Constitution and State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.
He asked the trial court to re-sentence him under the
sex-offender-registration-and-classification scheme as it existed in 1990. (Doc. #14).
{¶ 3} The trial court overruled Czaplicki’s motion. It noted that he had been
classified as a sexual predator, that this Court had affirmed the designation, and that “[n]o
further action has been taken regarding Defendant’s sexual registration status.” (Doc. #15).
{¶ 4} On appeal, Czaplicki contends the trial court “abused its discretion by
reopening a valid final judgment.” In essence, he appears to argue that he never should have
been classified as a sexual predator in 2000 because that classification did not exist when he
was convicted in 1990. By classifying him as a sexual predator, Czaplicki claims, the trial
court retroactively subjected him to new registration-and-community-notification
requirements in violation of Ohio law.
{¶ 5} Upon review, we find no merit in Czaplicki’s argument. We rejected a nearly
identical claim in State v. Lay, 2d Dist. Champaign No. 2012-CA-7, 2012-Ohio-4447. In that
case, the defendant committed his sex offenses in 1993. He was convicted years later and
designated a sexual predator under the Megan’s Law version of R.C. Chapter 2950, which did
not exist when he committed his crimes. We found retroactive application of Megan’s Law
permissible because that legislation was remedial rather than punitive. Id. at ¶7-8.
{¶ 6} We reach the same conclusion here. Czaplicki was designated a sexual
3
predator under the remedial Megan’s Law, and retroactive application of that legislation’s
sex-offender-registration-and-notification requirements was permitted. Czaplicki cites
Williams, in his reply brief for the proposition that R.C. Chapter 2950 is punitive. But
Williams does not apply because it involved the newer version of R.C. Chapter 2950,
commonly known as the Adam Walsh Act, not Megan’s Law, under which he was designated
as a sexual predator. Id. We note too that res judicata bars Czaplicki from challenging his
sexual-predator designation under Megan’s Law. Id. at ¶9. This court upheld the designation
in 2001, and he cannot relitigate the issue.
{¶ 7} Finally, the State construes Czaplicki’s brief as containing an argument that
he cannot be subjected to the more recent Adam Walsh Act version of R.C. Chapter 2950. To
the extent that Czaplicki may be making this argument, we do not disagree, but find no error.
Pursuant to State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, Czaplicki
cannot be reclassified under the Adam Walsh Act. But nothing in his brief or the record before
us indicates that he has been, or remains, improperly reclassified under that legislation. His
only designation was under Megan’s Law.
{¶ 8} Based on the reasoning set forth above, we overrule Czaplicki’s assignment of
error and affirm the judgment of the Montgomery County Common Pleas Court.
.............
FROELICH and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
Michele D. Phipps
4
Anthony Czaplicki
Hon. Michael Tucker
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707 F.2d 1209
UNITED STATES of America, Plaintiff-Appellee,v.Donna AMBROSE, Wayne Laglia, Leo Patrick Morris,Defendants-Appellants.
No. 81-5852.
United States Court of Appeals,Eleventh Circuit.
June 20, 1983.
Jose J. Larraz, Jr., Miami, Fla., for Ambrose.
Channing E. Brackey, Brackey & Finkelstein, Fort Lauderdale, Fla., for Laglia.
Charles H. Vaughan, Fort Lauderdale, Fla., for Morris.
Asher E. Schroeder, Ralph Michael Hursey, Asst. U.S. Attys., Fort Lauderdale, Fla., for plaintiff-appellee.
Appeals from the United States District Court for the Southern District of Florida.
Before VANCE and HENDERSON, Circuit Judges, and TUTTLE, Senior circuit judge.
TUTTLE, Senior Circuit Judge:
1
These three persons, apparently novices in the field, appeal from their conviction of a single indictment of possession with intent to distribute a controlled substance (methaqualone) in violation of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2 and with conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. Sec. 841(a)(1).
2
Because of the degree of coercion and pressure used by one Walter Kelly, a government informer, upon Donna Ambrose, if we are to accept her testimony as to what happened, we think it appropriate to consider what amounts to a "third party entrapment" defense by her co-defendants. This is the only ground of appeal that has sufficient weight to justify our dealing with it in this manner.
3
Ambrose testified that while her boyfriend was out of town on a vacation, his roommate, one Walter Kelly, sought her out and importuned her to find some source of illegal drugs to "take him off the hook;" that he had been approached by a Mafia figure from New York who was demanding a source of supply, and quickly. According to her testimony, they met together in a bar for a part of an afternoon, during which time he repeatedly told her that he was being threatened if he did not produce and that now that he had talked with her, her life also was on the line. She testified that she was greatly upset and distressed and refused several times to have anything to do with a deal, saying she knew nothing about any such source of drugs. Following further importunities in the evening, including his putting a gun in her face and physically threatening her, she took him home, because "he didn't have a car."
4
Ambrose testified that in the next few days, she met Walter Kelly again and that he persisted in calling her and making further threats. She telephoned a friend, Wayne Laglia, to tell him of her predicament and the threat against her life, and begged him to help her find a source of drugs in order to satisfy the informer. This call to Laglia produced results and, although he also testified that he responded to her request only because of his fear for her safety, he did telephone several persons and finally found one William Martin Kelly who said he could produce 100,000 methaqualone tablets.
5
In the meantime, according to undisputed evidence, Ambrose and Walter Kelly, together with the newly arrived "Mafia" man, who was a drug enforcement agent, waited in a motel room where they kept demanding that her sources produce the drugs at the agreed upon price.
6
At about 5:00 in the afternoon, following a promise from Ambrose to Walter Kelly that the deal could go down by about 2:00 p.m., William Martin Kelly and Laglia and one Leo Morris whom Laglia had originally called and who had, in fact, found William Kelly, the producer of the drugs, converged on the motel room where they were arrested.
7
It is not seriously disputed that during the three or four hours that they were in the room, Ambrose was actively trying to reach Laglia and he was in touch with Morris and/or Kelly. At one point the agents dumped on the bed some $75,000 in cash, which was counted by Ambrose and Laglia, and the deal was worked out for the price of the tablets.
8
The testimony of Ms. Ambrose as to the threats against Walter Kelly's life and her own safety was not disputed by the government. The reason for this is that although Walter Kelly, the informer, had been paid $2900 for information and for a bonus in connection with the deal, he had disappeared by the time of the trial. The government was unable to produce him, in spite of a demand by the defendants.1 Ambrose and Kelly were the only witnesses to what was said between them.
9
The trial court's instruction to jury on entrapment follows:
10
Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment, and the law as a matter of policy forbids his conviction in such a case.
11
On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that Government agents provide what appears to be a favorable opportunity is not entrapment. For example, it is not entrapment for a Government agent to pretend to be someone else and to offer, either directly or through an informer or other decoy, to engage in an unlawful transaction.
12
If, then the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the Defendant was ready and willing to commit a crime such as charged in the indictment, whenever opportunity was afforded, and that Government officers or their agents did no more than offer the opportunity, then the jury should find that the Defendant is not a victim of entrapment.
13
On the other hand, if the evidence in the case should leave you with a reasonable doubt whether the Defendant had the previous intent or purpose to commit an offense of the character charged, apart from the inducement or persuasion of some officer or agent of the Government, then it is your duty to find him not guilty.
14
We are unable to find any place in the record in which the appellants objected to this charge, although the government does not rely upon their failure to do so. Instead, the appellants contend that they were entitled to have a further charge on entrapment given to the jury, because of the fact that neither Laglia nor Morris was threatened or coerced personally by the informer. Their asserted reason for participating in the scheme was that they had been told by Ambrose the threats against her, as outlined above, and they were acting for her protection. They requested the trial court to include the following charge:
15
You are instructed that a person may be brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which amount to an inducment, and that person is then able to avail himself or herself of the defense of entrapment, just as the person who receives the inducement directly.
16
You are further instructed that you may find that a person who received inducement indirectly may have been entrapped even if you find that the person who received the inducement directly was not entrapped.
17
The trial court declined to include this additional instruction.
18
As indicated above, the purpose for which this instruction was sought was to make it clear to the jury that when matters of inducement or entrapment were proven because of the conduct of agents of the United States in their approach to one of several defendants who then repeated the conversation to his co-defendants, including threats and the like, the co-defendants are entitled to the defense of entrapment, even though they were not directly approached by the government or its agents.
19
Although appellant Laglia states in his reply brief that: "Indeed the Fifth Circuit has concluded that inducement by a private citizen cannot support a claim for entrapment, United States v. Maddox, 492 F.2d 104, 106 (5th Cir.1974); United States v. Dodson, 481 F.2d 656 (5th Cir.1973)." This Court has most clearly restated this principle of law in United States v. Mers, 701 F.2d 1321 (11th Cir.1983), there we said: "A defendant cannot avail himself of an entrapment defense unless the initiator of his criminal activity is acting as an agent of the government." At 1340. This opinion is, of course, binding on this Court unless and until overruled by the Court sitting en banc. We, therefore, must decline to consider a decision of the Court of Appeals for the Second Circuit in United States v. Valencia, 645 F.2d 1158 (2d Cir.1980), cited by appellants in support of their contention.
20
Moreover, it appears that the appellants here may have obtained a better charge in their favor than they were entitled to, in light of our recent decision in Mers, supra. At the time the trial court in this case gave the charge, neither this Court nor its predecessor, the Court of Appeals for the Fifth Circuit, seems to have decided precisely that under no circumstances could a defendant claim entrapment based upon a communication to him by a fellow defendant who related to him that he had been threatened or importuned in a manner that would have entitled him to the submission of his entrapment defense to the jury.
21
The judge's charge in this case in no way directly limits the entrapment defense to the one person to whom the "law enforcement officers or their agents" communicated directly. The charge was thus a broader charge than these appellants were entitled to have given to the jury. We recognize that Ms. Ambrose's testimony as to the dire threats that had been made by the informer to her depicted seriously reprehensible conduct by the informer. However, the jury rejected this defense by her, so we must assume that at least some important parts of her testimony were not believed. There the matter must stand.
22
We conclude that we do not need to reach the precise question whether persons situated as were Laglia and Morris who establish by undisputed evidence that they have been brought into such a plan by a plea for help by their close friend, who told of the threats against her life, would be entitled to a jury trial on the issue of entrapment. In fact, if the trial court had been required to accept as true the testimony of the three defendants as to what it was that set up this deal in the first place, and the motivation of those who joined it, we would be inclined to view the government agent's conduct so reprehensible as to make it difficult not to reverse on due process grounds.
23
Unfortunately for these appellants, this issue was presented to the jury. The charge was broad enough to have permitted the jury to have acquitted these appellants. The jury rejected the defense, and there the matter must stand.
24
We find that the trial court made no error in the manner in which it handled the demand for information and the forced presence of the government informer. While a response was not made to the specific court order requiring information concerning this prospective witness, the information had been made available to the defendants and it is clear that at the time of trial, the government was unable to account for his present whereabouts.
25
The trial court did not err in overruling the motion to dismiss the indictment for a violation of the appellant's right to a speedy trial, either as a violation of the Sixth Amendment to the Constitution or under the Speedy Trial Act. As to the alleged denial of the defendant's rights under the Speedy Trial Act, this issue is not before us because it was not raised in the trial court.
26
These defendants were tried and convicted upon a superseding indictment, the first indictment having been dismissed by the trial court, acting sua sponte, on the ground that the government had not acted sufficiently promptly in bringing the case to trial. The trial court expressly stated that the dismissal was without prejudice. Thereafter, the government presented the matter a second time to a grand jury and the second indictment was filed on April 6, 1981. This was within a month of the dismissal of the first indictment. The trial of the defendants commenced on June 24, after several intervening motions transferring the case from one judge to another. In considering appellant's contention that they were denied a speedy trial under the Sixth Amendment, we note that the trial of the defendants was begun within a year and a week after the first indictment was filed. We also note that the order of dismissal of the first indictment was not made on the government's motion, thus obviating any suggestion that the government was attempting to start the time limits running anew after some default by it by dismissing the original indictment. Cf. United States v. Hencye, 505 F.Supp. 968, 971 (N.D.Fla.1981).
27
Both the government and appellants point to the case of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) as giving the standard by which a district court should weigh the factors in considering whether a defendant's Sixth Amendment rights had been violated. These factors are: (a) length of the delay; (b) reason for the delay; (c) defendant's assertion of his right; and (d) the prejudice to the defendant. Reviewing the sequence in which the events occurred before the dismissal of the first indictment, it is plain that the trial court would not have concluded that there was a Sixth Amendment violation of the defendant's right to a speedy trial. The court dismissed the indictment solely on the ground that the technical rules of the Speedy Trial Act had not been observed. The defendants made no motion for this order of dismissal, contending only that their Sixth Amendment rights had been violated. We agree with the trial court that there was not an inordinate delay in bringing the first indictment to trial. Considering (b) above, we agree that the reasons for delay were adequate. It is plain that as to the third factor, the defendants asserted their right in the trial court. As to the fourth, no showing was made as to the prejudice to the defendants other than that at the time the trial occurred the United States was unable to find the informer. The difficulty here, is that the appellants were unable to show what testimony they had a reasonable expectation the informer would have given in their favor if he had been found. Instead, Ambrose's testimony went to the jury undisputed. It would be sheer speculation for either the trial court or for us to hold that the defendant had made a showing of prejudice to meet the Barker test.
28
Finally, we conclude that the trial court did not err in overruling the motion to suppress based on the alleged failure of the DEA agents to "knock and enter" as provided under 18 U.S.C. Sec. 3109. The record does not disclose whose room was being used for the completion of this transaction, although there is some testimony that it was rented by the informer. Moreover, there is evidence that the door was open when the agents entered to make the arrest. We conclude that the trial court did not err in overruling these motions to suppress.
29
The judgments are AFFIRMED.
1
The failure of the government to produce the informer was the basis of a motion by the appellants to dismiss the indictment. The motion was also based upon their contention that they were never furnished the name of Walter Kelly in response to the trial court's order. We do not reach this issue, because it was clear that ample notice of the identity of the informer was given to the defendants during earlier proceedings in the case, and because of the undisputed testimony by the government agent that he had made every effort to find Kelly, but was unable to do so
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FILED
NOT FOR PUBLICATION FEB 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 13-50038
13-50069
Plaintiff - Appellee,
D.C. No. 2:11-cr-00935-R
v.
JOSE VALLEJO, a.k.a. Creeper, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
In these consolidated appeals, Jose Vallejo appeals from the district court’s
judgment and challenges the 57-month sentence imposed following his guilty-plea
conviction for conspiracy to distribute methamphetamine, in violation of 21 U.S.C.
§ 846. He also appeals from the district court’s order denying his motion to correct
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the judgment and commitment order. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Vallejo contends that the judgment and commitment order, which imposed a
57-month term of imprisonment, conflicts with the oral pronouncement of the
sentence. Contrary to Vallejo’s contention, the record reflects that the district court
orally imposed a 57-month sentence. Moreover, even if the oral pronouncement
were ambiguous, the district court did not err in denying Vallejo’s motion to
correct the judgment. See United States v. Garcia, 37 F.3d 1359, 1368 (9th Cir.
1994) (“[T]he written sentence will control where there are ambiguities in the oral
pronouncement of the sentence, and the writing resolves the ambiguity.”),
overruled in part on other grounds by United States v. Jackson, 167 F.3d 1280 (9th
Cir. 1999).
AFFIRMED.
2 13-50038 & 13-50069
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 24, 2007
No. 06-13063 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
03-08003-CV-AR-S
95-00091-CR-AR
ROY MACK WEST,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(April 24, 2007)
Before BIRCH, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Roy Mack West, a federal prisoner serving a 400-month sentence on a drug
conspiracy conviction, appeals the district court’s order denying his 28 U.S.C. §
2255 motion to vacate, set aside, or correct his sentence. We granted a certificate
of appealability (“COA”) on the following issue: “Whether the district court erred
in failing to hold an evidentiary hearing on the following claims: (a) whether
appellant’s trial counsel was ineffective for representing him despite having a
conflict of interest; and (b) whether appellant’s trial counsel was ineffective for
inadequately advising him of his speedy trial rights?”
On appeal, West argues that he was entitled to a hearing on his claim of
ineffective assistance of counsel because one of his attorneys suffered from a
conflict of interest and his attorneys failed to inform him of his right to a speedy
trial. West also argues that the district court erred in including the affidavit of one
of his attorneys, Robert French, in the materials reviewed and considered in
denying West an evidentiary hearing. The government filed a motion to dismiss
West’s issue regarding the affidavit, as outside the scope of the COA. We DENY
the government’s motion to dismiss, but because West has failed to show an actual
conflict between him and his attorney and has failed to show that he was
prejudiced by the execution of a speedy trial waiver, we AFFIRM the denial of
West’s § 2255 motion.
2
I. BACKGROUND
A federal grand jury indicted West for engaging in a continuing criminal
enterprise (“CCE”), in violation of 21 U.S.C. § 848 (Count One), and for
conspiracy to possess with intent to distribute and distribution of marijuana,
cocaine, and methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1)
(Count Two). On 4 May 1995, the government filed a motion to continue the trial
until 7 August 1995, due to (1) its anticipation of seeking a superseding indictment
that would more clearly define for the court the pending charges in the case; (2) its
need for more time to compile documentary evidence and discovery materials; and
(3) defense counsel’s anticipated need for additional time to file responsive
motions.
On 26 May 1995, West filed a waiver of his speedy trial rights until 7
August 1995. The court granted the motion for a continuance and set the trial for 7
August 1995. The jury convicted West of both counts, and the court sentenced
him to life imprisonment on the CCE conviction, merged the drug conspiracy
count with the CCE count, and then vacated the drug conspiracy conviction
pursuant to United States v. Nixon, 918 F.2d 895, 908 (11th Cir. 1990). At the
sentencing hearing, West agreed with the district court that he had been well
represented during the trial.
3
On direct appeal, we affirmed his sentence and conviction, but the Supreme
Court vacated the judgment and remanded for further consideration in light of
Richardson v. United States, 526 U.S. 813, 119 S. Ct. 1707 (1999) (establishing a
higher standard of proof in CCE cases). United States v. West, 142 F.3d 1408
(11th Cir. 1998), judgment vacated, 526 U.S. 1155, 119 S. Ct. 2042 (1999). On
remand, we vacated West’s CCE conviction and remanded the case to the district
court with instructions to reinstate West’s vacated drug conspiracy conviction and
resentence him. United States v. West, 201 F.3d 1312 (11th Cir. 2000) (per
curiam).
The district court reinstated West’s conviction on the drug conspiracy count
and resentenced West to 400 months of imprisonment on that count. West
appealed his conviction and sentence, and we affirmed in an unpublished opinion.
United States v. West, 264 F.3d 1145 (11th Cir. 2001) (per curiam).
West filed the present § 2255 motion alleging, in relevant part, that he
received ineffective assistance of counsel from his three attorneys, G. Douglas
Jones, Richard Jaffe, and Robert B. French, and that he was not properly advised of
his speedy trial rights. French submitted an unsworn statement in support of the
government’s response, asserting that he was one of three attorneys representing
West in regards to West’s 1995 conviction. Prior to his representation of West,
4
French was under investigation by the U.S. Attorney’s Office for the Northern
District of Alabama. French stated that he understood that he was either the target
of an indictment or there was a secret indictment outstanding against him.
Although he was not certain about the subject of the investigation or secret
indictment, he was occasionally told that the investigation involved illegal drugs,
interfering with a federal investigation, and falsifying identification documents.
He did not know exactly when the investigation ended. Robert McGregor,
Assistant United States Attorney for the Northern District of Alabama, informed
French during French’s first appearance on behalf of West that French was no
longer under investigation. French informed West of the investigation and the fact
that Jaffe and Jones, who were also representing West, had represented him during
the investigation. French spent approximately ten hours interviewing West and
more than 300 hours in preparation for West’s defense and his appeal. French
stated that the waiver of West’s right to a speedy trial was done “more for the
defense than for the government[,]” as he needed more time to investigate, locate,
and interview numerous, geographically-dispersed witnesses. R7-317, Exh. C at 4;
R8-2 at 4.
On 31 March 2006, two days after French’s notarized affidavit was filed, the
district court denied West’s § 2255 motion without holding an evidentiary hearing.
5
The court, among other things, relied on French’s notarized statement and found
that there was no actual conflict of interest in the case because French was told at
his first court appearance with West that the government’s investigation of him had
been closed. Additionally, the court found that there was no evidence that West’s
attorneys had interests that were inconsistent with his. In regard to West’s claim
that he was not adequately advised of his speedy trial rights, the court concluded
that, even assuming that West had no understanding of what his rights were, his
attorneys were not deficient in advising him to waive those rights. Specifically, the
court found that it was in West’s best interest to waive his speedy trial rights, and
that West had not shown any prejudice as a result of the waiver of those rights. As
a result, the court denied West’s requested habeas relief. Construing West’s notice
of appeal as a COA motion, the district court denied a COA because he had failed
to make a substantial showing of the denial of a constitutional right. We, however,
issued a COA on the following question:
Whether the district court erred in failing to hold an evidentiary
hearing on the following claims: (a) whether appellant’s trial
counsel was ineffective for representing him despite having a
conflict of interest; and (b) whether appellant’s trial counsel
was ineffective for inadequately advising him of his speedy trial
rights?
II. DISCUSSION
On appeal, West argues that the district court erred in failing to hold an
6
evidentiary hearing on his ineffective assistance of counsel claims. According to
West, his attorneys were deficient when they failed to inform him that Jones and
Jaffe were representing French in an investigation led by the same office that was
prosecuting West. West contends that the investigation of French could have given
rise to a conflict of interest, and French did not adequately advise him of his
speedy trial rights. The government responds that West has not shown that there
was an actual conflict, as French disclosed to West the fact that he was under
investigation, and, in any event, any actual conflict that may have existed ended
well before trial. West could not show that his trial strategy was impacted in any
way by the investigation. With respect to West’s claim that he was not properly
advised of his speedy trial rights, the government argues that West has failed to
show prejudice as to this claim because the waiver of his speedy trial rights was
executed in part to provide the defense with sufficient time to prepare for trial.
West argues that because French’s statement was not sworn or made under
penalty of perjury, it had no evidentiary value. Additionally, West contends that
the failure to disclose to the trial court the existence of French’s investigation or
that Jones and Jaffe were representing French in that matter precluded any
knowing and intelligent waiver of being represented by attorneys who had a clear
conflict of interest. West contends that he was adversely affected by this conflict
7
of interest because no plea negotiations took place, and his attorneys offered no
defense other than attempting to impugn the credibility of adverse witnesses. He
analogizes his case to United States v. McLain, 823 F.2d 1457 (11th Cir. 1987),
overruled on other grounds, as recognized in United States v. Watson, 866 F.2d
381, 385 n.3 (11th Cir. 1989), in which we found that an attorney’s conflict of
interest adversely affected his efforts to negotiate a plea bargain on behalf of his
client. On 29 March 2006, French filed a notarized copy of his 2003 statement.
Apparently, West nor his counsel were served with this notarized statement; his
appellate brief states that the when the notarized statement was filed there was no
certificate of service.
A. Scope of the COA/Motion to Dismiss
As a threshold matter, West has raised the issue of whether the district court
erred by considering French’s 2006 affidavit. Specifically, West argues that the
district court erred by considering French’s notarized affidavit filed on 29 March
2006, two days before it entered an order dismissing his § 2255 motion, as he was
not served with a copy and did not have an opportunity to respond to it. The 2006
affidavit is otherwise identical to the statement French signed in 2003, except that
the 2003 affidavit was not notarized. West received the 2003 statement but the
2006 affidavit was not properly served on West.
8
The COA does not address this issue. West maintains that the district
court’s consideration of the 2006 notarized, but unserved, affidavit is a procedural
issue of the type that is encompassed by the COA, and that we must address before
reaching the issue raised by the COA. The government disagrees, and has filed a
motion to dismiss the appeal, arguing that this issue exceeds the scope of the COA.
Ordinarily, arguments outside the scope of the COA are not properly before
us. See Murray v. United States, 145 F.3d 1249, 1251 (11th Cir. 1998) (per
curiam). Nonetheless, we will read the COA to encompass “procedural issues that
must be resolved before [we] can reach the merits of [a claim.]” See McCoy v.
United States, 266 F.3d 1245, 1248 n.2 (11th Cir. 2001). Therefore, we construe
the COA to encompass the issue of whether the district court erred by considering
French’s notarized statement, as the issues in the COA cannot be resolved without
deciding whether the district court erred in considering West’s affidavit.
Accordingly, the government’s pending motion to dismiss is DENIED.
As the district court ultimately denied West’s § 2255 motion based on its
implicit legal ruling that it could consider French’s 2006 affidavit, we will review
the issue of whether the district court erred by considering French’s unserved
affidavit de novo. See McCarthy v. United States, 320 F.3d 1230, 1231-32 (11th
Cir. 2003) (“[W]e review a district court’s findings of fact in a 28 U.S.C. § 2255
9
proceeding for clear error, and its legal conclusions de novo.”) (citation and
quotations omitted)).
It is undisputed that the government did not serve West with French’s
notarized statement and, thus, violated Federal Rule of Civil Procedure 5. See Fed.
R. Civ. P. 5(a) (stating that “every pleading subsequent to the original complaint . .
., every paper relating to discovery required to be served upon a party . . ., every
written motion other than one which may be heard ex parte, and every written
notice, appearance, demand, offer of judgment, designation of record on appeal,
and similar paper shall be served upon each the parties”); see also Rule 7(c) of
Rules Governing § 2255 Habeas Corpus Proceedings (“The judge must give the
party against whom the additional materials are offered an opportunity to admit or
deny their correctness.”). Accordingly, the district court erred by relying on the
unserved 2006 affidavit.
Nevertheless, this error is harmless. See United States v. Guzman, 167 F.3d
1350, 1353 (11th Cir. 1999) (per curiam). French’s 2006 notarized statement was
identical to the statement French filed in 2003. West had three years to review its
contents. Moreover, the record shows that West responded to the 2003 statement;
in his reply to the government’s response to his § 2255 motion, West argued that
French’s 2003 statement had no evidentiary value because it was not sworn or
10
made under penalty of perjury. Thus, such error is harmless and we will consider
French’s 2006 affidavit. The government’s motion to dismiss is DENIED.
B. Evidentiary Hearing on Conflict of Interest Claims
We review a district court’s denial of an evidentiary hearing for an abuse of
discretion. See United States v. Lagrone, 727 F.2d 1037, 1038 (11th Cir. 1984)
(per curiam). “When reviewing a district court’s denial of a § 2255 motion, we
review questions of law de novo and findings of fact for clear error.” Varela v.
United States, 400 F.3d 864, 867 n.3 (11th Cir.) (per curiam) (citation omitted),
cert. denied, 126 S. Ct. 312 (2005).
“An evidentiary hearing is necessary whenever a habeas petitioner alleges
facts that, if true, establish his or her right to relief.” Agan v. Dugger, 835 F.2d
1337, 1338 (11th Cir. 1987). “A district court, however, need not hold an
evidentiary hearing [on an ineffective assistance of counsel claim] if it can be
conclusively determined from the record that petitioner was not denied effective
assistance of counsel.” See Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir.
1999) (citation omitted).
“The Sixth Amendment guarantees criminal defendants the effective
assistance of counsel.” Yarborough v. Gentry, 540 U.S. 1, 5, 124 S. Ct. 1, 4
(2003). The legal standard governing ineffective-assistance-of-counsel claims is
11
set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984). In
Strickland, the Supreme Court established a two-prong test for adjudicating such
claims. Id. at 687, 104 S. Ct. at 2064. First, a movant must show that counsel’s
performance was deficient. Id. “The proper measure of attorney performance [is]
simply reasonableness under prevailing professional norms.” Id. at 688, 104 S. Ct.
at 2065. “[C]ounsel is strongly presumed to have rendered adequate assistance”
and to have exercised “reasonable professional judgment.” Id. at 690, 104 S. Ct. at
2066. Second, a movant must show that the deficient performance prejudiced the
defense. Id. To prove prejudice, a movant must show that there is a reasonable
probability that the outcome would have been different but for counsel’s
unprofessional errors. Id. at 694, 104 S. Ct. at 2068. “It is not enough for the
defendant to show that the errors had some conceivable effect on the outcome of
the proceeding.” Id. at 693, 104 S. Ct. 2067. Since both prongs of the test must be
met, the court is not required to decide both prongs if the defendant is unable to
meet one. Holladay v. Haley, 209 F.3d 1243, 1248 (11th Cir. 2000).
When an ineffectiveness claim is predicated on an alleged conflict of
interest, the petitioner must show that (1) defense counsel labored under an actual
conflict of interest; and (2) the actual conflict “adversely affected” the lawyer’s
performance. Lightbourne v. Dugger, 829 F.2d 1012, 1023 (11th Cir. 1987) (per
12
curiam) (citations omitted).
Upon review of the record, and upon consideration of the briefs of the
parties, we find that the district court did not abuse its discretion in refusing to hold
an evidentiary hearing on West’s ineffective assistance of counsel claim based on a
conflict of interest, because he failed to show the existence of an actual conflict. In
his affidavit, French stated that McGregor informed him at his first court
appearance on behalf of West that his case was closed. Thus, it appears that any
potential conflict of interest that may have existed ceased to exist at the time of
French’s first court appearance. Additionally, West has not alleged any conflict of
interest that survived the conclusion of French’s representation. In fact, after his
conviction, West agreed with the district court’s assessment that he had been well
represented at trial. Further, although West argued in his § 2255 motion that he
was entitled to a hearing based on McLain, this decision is factually
distinguishable. There, we held that one of the defendants was deprived of a fair
trial due to the misconduct of the prosecutor and the judge, as well as his attorney’s
failure to inform him that he was laboring under a conflict of interest because he
was being investigated on bribery charges. McLain, 823 F.2d at 1461-64. We
found that because there was evidence that the prosecutor would not indict the
defendant’s counsel until after the represented defendant’s trial ended, there were
13
conflicting interests, which were manifested in the defendant’s prolonged trial and
lack of plea negotiations. Id. at 1464. Based on the compounded effect of the
prosecutorial and judicial misconduct and the defendant’s attorney’s conflict, we
reversed the district court’s judgment and found that the defendants were denied
their basic right to a fair trial. Id. at 1468.
Here, however, French advised West at the very early stages of the criminal
proceeding of both the investigation and the fact that he was being represented by
Jones and Jaffe. Also, at the time he first appeared on behalf of West, French was
no longer under investigation. Accordingly, because McLain is factually
distinguishable and West has failed to show an actual conflict of interest, the
district court did not abuse its discretion in failing to hold an evidentiary hearing
on this claim.
Similarly, West was not entitled to an evidentiary hearing on his claim of
ineffective assistance of counsel for failure to inform him of his speedy trial rights.
The record shows that the speedy trial waiver was executed, in large part, so that
West’s defense team could investigate, locate, and interview numerous,
geographically-dispersed witnesses. More important, while West argues that
forcing the government to trial could be a benefit to a defendant in a case of this
magnitude, he has not alleged that the outcome of the trial would have been
14
different had West’s attorneys not directed him to sign the speedy trial waiver. As
such, there is nothing to demonstrate that West suffered any prejudice as a result of
his waiver of his speedy trial rights.
III. CONCLUSION
The government’s pending motion to dismiss is DENIED. Additionally, as
West has failed to show an actual conflict between him and his attorney, the
district court did not abuse its discretion in failing to hold an evidentiary hearing
on his ineffective assistance of counsel claim based on the alleged conflict of
interest. Additionally, because West failed to show that he was prejudiced by the
execution of a speedy trial waiver, the district court did not abuse its discretion in
failing to hold an evidentiary hearing as to his ineffective assistance of counsel
claim for the alleged failure to adequately inform him of his speedy trial rights.
Accordingly, we AFFIRM the denial of West’s § 2255 motion and DENY the
government’s motion to dismiss.
15
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75 F.3d 59
43 Fed. R. Evid. Serv. 1083
UNITED STATES of America, Appellee,v.Jose R. CRUZ-KUILAN, Defendant, Appellant.
Nos. 94-2217, 95-1390.
United States Court of Appeals,First Circuit.
Heard Jan. 10, 1996.Decided Feb. 5, 1996.
Miriam Ramos Grateroles, Bayamon, PR, for appellant.
Miguel A. Pereira, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Hato Rey, PR, was on brief, for the United States.
Before SELYA, BOUDIN, and LYNCH, Circuit Judges.
LYNCH, Circuit Judge.
1
This is an appeal from a conviction for a carjacking which resulted in the owner of the car being shot to death in front of his wife and son in the carport of their home in Puerto Rico. Jose Cruz-Kuilan, age 20 at the time of the crime, was convicted of violating 18 U.S.C. § 2119(3), the carjacking statute, and 18 U.S.C. § 2, aiding and abetting in the same, and sentenced to life imprisonment. The primary argument on appeal--that it was error to allow expert testimony from a forensic pathologist and to admit photographs of the victim's wounds--is based on a theory this court recently rejected in United States v. Rivera-Gomez, 67 F.3d 993 (1st Cir.1995). Because the other arguments presented are without merit, we affirm.
2
The crime was cold-blooded and brutal. Cruz-Kuilan and two companions, Marrero Santiago and Rangel Pizzini, decided to steal a car, settled on a Buick Le Sabre they saw, and followed it in their own car. Theodore Edward Fuhs, a businessman, and his wife Luz Martinez Fuhs were driving to their home in Levittown, Puerto Rico, in the Le Sabre, unaware of being followed. Their son Carl was outside when his parents pulled into the "marquesina," the carport. Marrero and Cruz-Kuilan walked up to the car before Mr. and Mrs. Fuhs could get out. Pizzini remained in the assailants' car. In Spanish, Marrero ordered Mr. Fuhs out of the car. Mr. Fuhs, a continental American citizen, did not appear to understand. As Mr. Fuhs got out of the car, Marrero, angry at how slowly Fuhs was moving, pistol whipped him twice on the head. Mr. Fuhs lunged for Marrero and the two men toppled. Cruz-Kuilan moved to within two feet of Mr. Fuhs and fired point blank at his back. Mr. Fuhs was mortally wounded. One of the bullets passed through him to injure Marrero, underneath. Cruz-Kuilan and Marrero got into the Le Sabre and fled. Realizing Marrero was in need of medical care and would be questioned, they torched the Le Sabre and prepared a story. When Marrero sought medical care, he was indeed questioned. His story began to unravel and the arrests followed in the next several months.
3
At trial, both Marrero and Pizzini turned government witnesses in exchange for leniency. They identified Cruz-Kuilan. While Mrs. Fuhs and her son provided important corroborating testimony, neither could identify Cruz-Kuilan as one of the assailants. It took the jury two and one-half hours to convict.
4
On appeal Cruz-Kuilan makes these arguments: (i) that the district court erred in admitting evidence relating to Mr. Fuhs' death; (ii) that the evidence was insufficient for a guilty verdict; (iii) that the prosecutor in his closing argument improperly vouched for the credibility of the government's witnesses; and (iv) that the district court erred in denying a new trial motion based on after-acquired evidence of a government witness' prior bad acts.
I. Admissibility of Evidence of Death
5
Cruz-Kuilan's main argument is that he was charged with carjacking,1 not with murder, and so it was error for the trial court to admit evidence of Mr. Fuhs' death. In particular, he complains about the testimony of a forensic pathologist who traced the path of the bullets through Mr. Fuhs' body and of the admission of photographs of Mr. Fuhs' wounds. Such evidence, he says, was not relevant and was unduly prejudicial. The statute itself, though, requires not just theft of a car while possessing a firearm, but the taking of a car from another "by force and violence or by intimidation, or [an] attempt[ ] to do so." 18 U.S.C. § 2119.
6
The global challenge to the admissibility of evidence of death in a carjacking case was soundly rejected in United States v. Rivera-Gomez, 67 F.3d 993, 996-98 (1st Cir.1995) ("It is difficult to conceive of a situation in which the death of a victim will not be relevant to the use of force and violence during the commission of an attempted carjacking.") (citing United States v. Rodriguez, 871 F.Supp. 545, 549 (D.P.R.1994) (admitting evidence of victim's death and means by which it was accomplished as relevant and "highly persuasive" of "force and violence" in a carjacking prosecution)). The death in this case was a central part of the carjacking and its "force and violence" component. As such it was relevant.
7
Cruz-Kuilan argues that even if relevant, the evidence was "unfairly prejudicial" under Rule 403. See Fed.R.Evid. 403. But here, as in Rivera-Gomez, the "evidence at issue [was] so tightly linked to guilt as defined by the elements of the offense, [that] it would be surpassingly difficult to justify a finding of unfair prejudice stemming from its introduction." 67 F.3d at 997. The photographs and testimony by a forensics expert went to more than the determination of the "force and violence" element. They also went to corroborating the government's theory of the case. The evidence showed lacerations on Mr. Fuhs' head and the entry and exit points of the bullets that passed through his body. The lacerations on Mr. Fuhs' head corroborated Marrero's story that he had struck Mr. Fuhs twice on the head. Similarly, the paths of the bullets corroborated the government's theory that one of the bullets shot by Cruz-Kuilan passed through Mr. Fuhs and proceeded to hit Marrero while he was under Mr. Fuhs.
8
Our standard of review on questions of evidentiary relevance balanced against prejudicial effect is for abuse of discretion. Id. at 997. "A decision by the district court on a Rule 403 determination must stand absent a demonstration of 'extraordinarily compelling circumstances.' " United States v. Lombard, 72 F.3d 170, 190 (1st Cir.1995) (quoting United States v. Lewis, 40 F.3d 1325, 1339 (1st Cir.1994)). Defendant has shown no such circumstances, and there was no abuse.
II. Sufficiency of Evidence
9
Cruz-Kuilan argues that there was insufficient evidence for the jury to have found him guilty, and so the district court erred in not granting his motion for acquittal under Fed.R.Crim.Proc. 29. In reviewing a sufficiency of the evidence claim we look at the evidence in the light most favorable to the verdict. See United States v. Cotto-Aponte, 30 F.3d 4, 5 (1st Cir.1994).
10
The argument fails. That the jury chose to believe the testimony of Cruz-Kuilan's fellow carjackers--despite his pungent cross-examination of their characters and motives--and to disbelieve the alibi offered by Cruz-Kuilan's estranged wife and mother, was well within its province. Credibility determinations are uniquely within the jury's province, and we defer to the jury's verdict if the evidence can support varying inferences. See United States v. Rivera-Sola, 713 F.2d 866, 869 (1st Cir.1983); United States v. Winter, 663 F.2d 1120, 1127 (1st Cir.1981), cert. denied, 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983).
III. Closing Argument
11
Cruz-Kuilan makes a misplaced attack on the prosecution's closing argument. Pulling together numerous statements made by the prosecution in its closing, Cruz-Kuilan asserts that the prosecution improperly vouched for the credibility of its witnesses. Since no objection was made at the time, our review is for plain error. See United States v. Diaz-Martinez, 71 F.3d 946, 950 (1st Cir.1995).
12
In essence, defendant objects to statements in closing by the prosecution that the jury should come to believe on the evidence that the events occurred the way the government's witnesses said they did. That is not vouching.
13
Improper vouching occurs where the prosecution places the "prestige of the government behind a witness by making personal assurances about the witness' credibility." United States v. Neal, 36 F.3d 1190, 1207 (1st Cir.1994). Arguing that a witness is speaking the truth because he has reason to do so is not "making personal assurances." See United States v. Dockray, 943 F.2d 152, 156 (1st Cir.1991) (informing the jury of the effect of a plea agreement on a witness' incentives to testify truthfully is not improper vouching).
14
As well, the prosecution's argument was an appropriate response to Cruz-Kuilan's own arguments that Marrero and Pizzini were less worthy of belief as a result of their plea bargains. See United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st Cir.1987) (prosecution has greater leeway in responding to attack on, and attempting to rehabilitate, its witnesses).
IV. New Trial Motion
15
Cruz-Kuilan's final effort is to claim error in the denial of his request for a new trial. That request was based in turn on a claim that the prosecution had failed to provide the defense with information about certain "prior bad acts" committed by Pizzini. Cruz-Kuilan asserts that shortly before trial in this case, the Commonwealth's courts found probable cause for charges of murder, weapons possession, and possession of a stolen vehicle against Pizzini.2 We review the district court's determination for an abuse of discretion. See United States v. Pettiford, 962 F.2d 74, 77 (1st Cir.1992).
16
Pizzini was hardly of sterling character and admitted to a prior robbery conviction and three prior robbery charges. Indeed, the prosecution itself had described Pizzini as a frequent participant in carjackings and a convicted robber. Pizzini's testimony was that he, Marrero, and Cruz-Kuilan planned to steal a car, that he drove everyone to Levittown where they spotted a car and followed it and that he dropped Marrero and Cruz-Kuilan at the carport and left. He did not see Mr. Fuhs being held at gun point or being shot.
17
We assume arguendo, as did the district court, that the prosecution knew or should have known of the additional asserted "prior bad acts" evidence, without in any way impugning the government here. The question for the district court as to the new evidence is whether "it is 'material,' [and] it is 'material' only if there is 'a reasonable probability' that the evidence would have changed the result, and a 'reasonable probability' is 'a probability sufficient to undermine confidence in the outcome.' " United States v. Sepulveda, 15 F.3d 1216, 1220 (1st Cir.1993) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985)), cert. denied, --- U.S. ----, 114 S.Ct. 2714, 129 L.Ed.2d 840 (1994). Given Pizzini's admittedly extensive criminal past, it was not an abuse of discretion for the district court to find that the lack of additional cross-examination on the same well developed theme did not undermine confidence in the jury verdict of guilt. Cf. Sepulveda, 15 F.3d at 1219 (no abuse of discretion in denial of new trial request where the newly disclosed information at issue would have at most impeached further a witness of already "dubious" credibility). In light of all the other evidence, it is highly improbable that the "newly discovered" evidence would have mattered a whit. There was no abuse of discretion by the district court.
18
Affirmed.
1
The carjacking statute provides:
Whoever, possessing a firearm ... takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall--
(1) be fined under this title or imprisoned not more than 15 years, or both,
(2) if serious bodily injury ... results, be fined under this title or imprisoned not more than 25 years, or both, and
(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.
18 U.S.C. § 2119 (Supp. V 1993).
2
Defense counsel has represented to us that Pizzini later pleaded guilty in the Commonwealth's courts to second degree murder, to violating the weapons laws and to having a stolen vehicle. But that plea was not entered until close to a year after the federal trial here. Furthermore, this was not a case where defendant claimed that Pizzini, not he, fired the weapon. Such a claim would be of no moment given the aiding and abetting charge and that the substantive charge was not murder, but carjacking. In any event, Cruz-Kuilan's defense was that he was not there at all
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125 F.3d 859
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.Josephine ROSS; Linda Eichorn, Plaintiffs-Appellants,v.Dan GLICKMAN, Acting Secretary, United States Department ofAgriculture, Soil Conservation Service a/k/aRichard Rominger, Defendant-Appellee.
No. 96-16527.
United States Court of Appeals, Ninth Circuit.
Submitted Sept. 18, 1997.**Filed Sept. 30, 1997.
Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding
Before ALDISERT,*** CHOY, and THOMPSON, Circuit Judges.
1
MEMORANDUM*
2
Josephine Ross and Linda Eichorn (collectively, "appellants") appeal the district court's grant of summary judgment in favor of the Secretary of the United States Department of Agriculture Soil Conservation Service ("DOA") in their discrimination and retaliation action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
STANDARD OF REVIEW
3
We review de novo the district court's grant of summary judgment. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, 116 S.Ct. 1261 (1996). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact. Id.
4
Where the nonmoving party will have the burden of proof at trial, the moving party can prevail merely by "pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In opposing summary judgment, a party is not entitled to rely on the allegations of her complaint but, "by affidavits or otherwise ..., must set forth specific facts showing that there is a genuine issue for trial...." Fed.R.Civ.P. 56(e); see also S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co. Inc., 690 F.2d 1235, 1238 (9th Cir.1982).
In a Title VII claim:
5
[A] plaintiff must first establish a prima facie case of discrimination. If the plaintiff establishes a prima facie case, the burden then shifts to the defendant to articulate a legitimate nondiscriminatory reason for its employment decision. Then, in order to prevail, the plaintiff must demonstrate that the employer's alleged reason for the adverse employment decision is a pretext for another motive which is discriminatory.
6
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994) (citation and internal quotations omitted); see also Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464-65 (9th Cir.1994), cert. denied, 513 U.S. 1082 (1995) (applying same order and allocation of proof in retaliation claim).
DISCUSSION
7
I. Ross's Claim of Failure to Hire for GS-12 Human Resources Officer Position
8
Ross contends that there is a genuine issue of material fact as to whether the DOA's failure to hire her for a GS-12 Human Resources Officer position in February 1992 was motivated by discrimination. We disagree.
9
To establish a prima facie case for discrimination in the context of promotion or selection, a plaintiff must show: (1) she is a member of a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected for the position; and (4) the position remained open after her rejection and the employer continued to seek applications from other people with qualifications similar to plaintiff's. Warren, 58 F.3d at 441. The fourth element also can be met by showing that an individual outside the protected class was hired. Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir.1988).
10
Although Ross successfully establishes a prima facie case of discrimination--she is a Hispanic woman who applied for, was at least arguably qualified for, and was rejected for a position that was filled by a non-minority woman--she fails to demonstrate that the DOA's stated reason for hiring someone else is merely a pretext for a discriminatory motive.
11
The DOA advertised nationwide for this position and received approximately 25 applications, including one from Ross. A white female was selected from these applicants. Although the final hiring decision was made by Pearlie Reed, the agency's senior official in California during the relevant times, eleven members of Reed's principal staff reviewed the applications. Eight staffers ranked the other woman as one of their top two choices, whereas only one of the staffers even recommended Ross for the position, ranking her third. ER 363-370. On the basis of his staff's recommendations and because her qualifications were "head and shoulders" above Ross', Reed selected the other, non-minority woman for the position.
12
Because the DOA successfully articulates a legitimate reason for its hiring decision, the burden shifts back to Ross to produce specific facts evidencing a discriminatory motive or that the explanation given is not credible. See Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir.1991). This evidence must be sufficient to permit a reasonable trier of fact to find by a preponderance of the evidence that the DOA's decision not to hire her was racially motivated.
13
The evidence Ross submits includes an allegation that in January of 1992 Reed made a racial comment to her, namely, that his staff did not like Mexicans, Mexican women, and in particular did not like Ross. In her affidavit she also states that although the DOA did employ Hispanic staff at levels relevant for promotion, see ER 627-36, during her "tenure of employment, no Hispanic female was hired or promoted to a management level position." ER 560:3-4.1
14
In determining whether the employer's stated reason for not hiring is mere pretext for discrimination, the Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), enumerated factors for a court to consider such as the employer's treatment of the plaintiff during the term of employment, the employer's reaction to the plaintiff engaging in protected activity, and the employer's "general policy and practice with respect to minority employment." Id. at 804-05. Here, there is ample evidence of Reed's positive and supportive treatment of Ross during her employment. He promoted her on numerous occasions, including once that was not authorized by Washington D.C. ER 357-59. As for Reed and the DOA's reaction to her filing complaints with the EEOC about Reed, there is evidence that after these complaints Reed promoted Ross, asked her to serve on a committee for the Federal Women's Program, and rated her work on this committee and others as "superior." ER 218-20, 240, 335. Finally, the record is replete with instances of Reed's active efforts to recruit and promote minorities and women, a fact to which Ross herself admits. SER 3-4.
15
We find that the evidence Ross submitted is not sufficient to overcome her burden of rebutting the DOA's stated reason for not hiring her. Cf. Warren, 58 F.3d at 443 (holding that plaintiff met burden by submitting evidence that non-minorities who were hired were less qualified than plaintiff, employer's stated reasons for not hiring plaintiff were based on subjective criteria that were particularly susceptible to discriminatory abuse, employer had made derogatory comments about Hispanics, and plaintiff submitted evidence of employer's general pattern of discrimination); Lindahl, 930 F.2d at 1436 (finding plaintiff raised genuine issue that employer's stated reason was not credible by submitting evidence that employer first gave vague explanation for promotion decision and that it took employer four months to come up with specific reasons, that qualifications for which employer allegedly promoted the other were not clearly related to the position, that employer admitted the promoted employee was not well liked by the group although employer stated "leadership abilities" as a reason for promotion decision, and that the promoted employee was the most junior applicant).
16
II. Ross's Claim of Failure to Promote to GS-12 Employee Development Specialist
17
Ross contends that there is a genuine issue of material fact as to whether the DOA's failure to promote her to a GS-12 level in November 1991 was discriminatory. However, she fails to establish a prima facie case for this claim because she does not show that there was a GS-12 Employee Development Specialist position available in November 1991 nor does she allege that an individual outside the protected class was promoted to such a position. See Warren, 58 F.3d at 441-42 (noting that second prong of prima facie case requires employee to show "she applied and was qualified for a job for which the employer was seeking applicants").
III. Appellants' Claims of Retaliation
18
Ross and Eichorn claim that they were discriminated against in retaliation for engaging in protected activity, namely, filing a discrimination complaint and supporting papers with the Equal Employment Opportunity Commission.
19
To make a prima facie case of retaliation, a plaintiff must show that: (1) she was engaged in protected activity; (2) she was thereafter subjected to an adverse employment action; and (3) there was a causal link between the protected activity and the adverse employment action. See Wallis, 26 F.3d at 891. Adverse employment action occurs when an employee is "demoted, or put in a worse job, or given any additional responsibilities." Steiner, 25 F.3d at 1465 n. 6.
20
Here, Ross claimed that the DOA's transfer of her employee development position from the general administrative section to the human resources section in September 1992 was retaliatory and mere pretext to "reduce [her] duties and diminish [her] scope of authority." ER 559:18-19. However, she offers no evidence that the transfer of position between departments was motivated by discrimination or that her alleged decrease in responsibilities was due to anything other than friction between Ross and her new supervisor. See ER 689 # 3. A transfer without a decrease in pay or grade does not constitute adverse employment action. See Nidds v. Schindler Elevator, 113 F.3d 912, 919 (9th Cir.1997) (declining to view transfer to another department as an "adverse employment action"); Steiner, 25 F.3d at 1465 n. 6 (questioning whether a transfer to a different shift was an adverse employment action). Thus Ross fails to establish her prima facie case.
21
Eichorn claims she was retaliated against for writing a letter to the EEOC in support of Ross' complaint of discrimination. She claims she was spoken to very harshly and humiliated by Reed at a meeting with other employees. However, this is not enough to establish a prima facie case of retaliation because no "adverse employment action" resulted from this incident.
22
Eichorn also claimed retaliation because she was not selected for a new position with a higher promotion potential than her current position as Office Automation Assistant. While Eichorn was on disability leave, the DOA underwent reorganization and issued a vacancy announcement for a new Office Automation Assistant position, with different job responsibilities, created as a result of the reorganization. Eichorn received the vacancy announcement but did not apply because she assumed that she would automatically be promoted. Eichorn has not been subjected to an adverse employment action because she did not apply for the position in question and because she was placed in a position with the same grade and pay as the position that she held prior to the reorganization. See id; see also Pejic, 840 F.2d at 673 (finding it hard to infer that plaintiff was denied a promotion where plaintiff did not apply for the position).
23
IV. Appellants' Claims of Hostile Environment
24
Ross and Eichorn contend the district court erred in granting summary judgment on their claim that they were subjected to a hostile work environment because DOA employees "shunned" them in retaliation for filing the EEOC complaints. This contention lacks merit.
25
An employee may state a claim under Title VII for a hostile work environment. See Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir.1991) (noting that a plaintiff may show violation of Title VII "by proving the existence of a hostile work environment"); Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995) (setting forth hostile-environment test resulting from sexual harassment). In order to establish the existence of a hostile work environment, appellants must show evidence of "severe or pervasive and unwelcome verbal or physical harassment because of [their] membership in a protected class." Id.
26
Here, Eichorn claims Reed "belittled" her at a meeting, at which he referred to the EEOC letter she wrote. Furthermore, Ross and Eichorn state that the office staff shunned them, only speaking to them curtly and abruptly and that this affected their ability to work and reduced their overall productivity. But they do not offer any specific facts supporting these claims. Such behavior is not "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Fuller, 47 F.3d at 1527-28 (finding hostile environment during period where co-worker ran plaintiff off the road, forcibly extracted her unlisted telephone number, called her and threatened to kill himself but finding lack of hostile environment during period of infrequent contact); see also Steiner, 25 F.3d at 1463 (finding hostile environment where supervisor's ongoing comments and conduct were "sexually explicit, offensive, highly derogatory, and publicly made").
27
AFFIRMED.
**
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); 9th Cir. R. 34-4
**
* The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit, sitting by designation
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this Circuit except as provided by 9th Cir. R. 36-3
1
It is unclear what level constitutes "management level" but the record indicates that Hispanics were employed as high as the GS-12 level and that African Americans, Native Americans, and Asian Pacific Islanders were employed at the GS-12 level and above. See ER 627
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575 F.2d 881
Vesselsv.Estelle
No. 77-1727
United States Court of Appeals, Fifth Circuit
6/14/78
W.D.Tex., 571 F.2d 1378
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379 F.Supp. 576 (1974)
Doyle Franklin EARLS
v.
STATE OF TENNESSEE.
Civ. No. 3-74-114.
United States District Court, E. D. Tennessee, N. D.
May 22, 1974.
*577 Doyle Franklin Earls, pro se.
Bart Durham, Asst. Atty. Gen., Nashville, Tenn., for defendant.
MEMORANDUM
ROBERT L. TAYLOR, District Judge.
Doyle Franklin Earls, a state prisoner, has filed this application for habeas corpus relief pursuant to Title 28 U.S.C. § 2241 et seq., contesting the constitutionality of a search of his residence in the afternoon of August 13, 1969. Respondent contends that the petition should be denied on the grounds that (1) petitioner has failed to exhaust available state post-conviction remedies under T.C.A. § 40-3801 et seq.; (2) the search warrant in issue was valid; and (3) that even if the warrant was invalid, petitioner gave his consent to the search. In support of its contentions, respondent has filed with the Court the entire record, including the transcript of the trial and suppression hearing, the briefs of counsel on appeal, the opinions of the Tennessee Court of Criminal Appeals reversing the trial court, and the opinions of the Supreme Court of Tennessee reversing the Court of Criminal Appeals and sustaining the search. In light of this record, we conclude that petitioner has exhausted his state remedies as to the issue presented in this action. We are further of the opinion that since the Supreme Court of Tennessee held the warrant to be invalid under Aquilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637, and other related cases, that issue need not be relitigated in this action. The controlling issue is whether petitioner consented to the search of his residence by some six officers, which search uncovered evidence that was used against petitioner at his trial for the murder of one Richard Lynn Barger.
The record, which contains some nineteen exhibits, reflects that petitioner was tried and convicted of the second degree murder of Richard Lynn Barger, a seventeen year old boy. The trial testimony of Sheriff Russell of Loudon *578 County, Tennessee[1] reflects that he first contacted petitioner on August 12, 1969 while making the investigation. Sheriff Russell requested petitioner to come to the police station at Sweetwater, Tennessee, which petitioner voluntarily did. Sheriff Russell stated that petitioner was given his Miranda warnings at the station, by other officers in the Sheriff's presence.
The Sheriff's next contact with Earls was on the following day when he and some five other state officers went to petitioner's residence to execute a search warrant. The warrant was obtained for the purpose of searching petitioner's premises for "one (1) leather billfold and money in the amount of $140.00 and two (2) payroll checks in the amount of $52.00" which had allegedly been stolen from the victim and which were believed to be in petitioner's possession.[2]
Upon reaching the premises that afternoon, the Sheriff stated that he drove to the back of the house, and that, when petitioner came out, he was advised that the officers had a search warrant. The Sheriff then proceeded to read the warrant to petitioner after giving him a copy.
The Sheriff then testified as follows:
"Q What did Mr. Earls say, if anything?
"A While I was reading the warrant, he says `You needn't to have brought a search warrant.' He threw his copy down. And he said, `You Gentlemen are welcome to search anywhere on my premises you want to search and take anything you find.' That was what he told us." Tr. pp. 24-25
Thereupon, defense counsel objected and the matter was further developed out of the presence of the jury. During questioning, the Sheriff stated that even though Earls gave him permission to make a search, he was going to search the premises in any event under the warrant issued by the General Sessions judge. He did state, however, as follows:
"Q And you made the search on the basis of this warrant didn't you, Freeman?
"A On the basis of that warrant and his permission." Tr. p. 30
The testimony of the Sheriff regarding the statements made by petitioner were corroborated by the other officers present when the search occurred. Petitioner did not testify on this matter.
*579 The transcript of petitioner's testimony[3] shows that he was forty-nine years old at the time of his trial. It further shows that he had attended a junior college in Mississippi on a football scholarship and had served some ten years in the armed services during World War II and the Korean Conflict. He returned home in 1953 or 1954 and drew a service connected disability pension. On cross-examination, petitioner further testified that he had attended the University of Tennessee and had some eight years of college education, taking into account interruptions during wartime.
The argument presented to this Court by the application for relief is, in the main, that the consent given the officers to search petitioner's premises was coerced and therefore invalid. Specifically, the application, drafted some five years after the search by petitioner's jailhouse lawyer states:
"That it is Plaintiff's contention that the instant that he was confronted on his property by at least six (6) officers who extended to him an invalid search warrant, that he was as much under arrest as a person can become, that he had no choice whatever but to consent to the search or run from a machine gun. Nothing less would have prevented six police from searching his home . . ." Complaint, at p. 4
Relying primarily upon Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1965) and Hoover v. Beto, 439 F.2d 913 (5th Cir. 1971) (Hoover I), the Tennessee Court of Criminal Appeals held that there was no voluntary consent given for the search and, therefore, it was invalid. On petition for certiorari, the Supreme Court of Tennessee affirmed the intermediate appellate court, again relying primarily on Hoover I, supra. However, in light of the en banc decision in Hoover v. Beto, 467 F.2d 516 (5th Cir. 1972), reversing the three-judge panel, the Supreme Court considered the State's petition for rehearing and held that under the circumstances presented in the record, petitioner's consent was voluntary. (Earls v. State, supra).
We are not unmindful of the recent decision of this Circuit in Ray v. Rose, 491 F.2d 285 (6th Cir. 1974), which held that the petitioner in that case was entitled to an evidentiary hearing on the question of whether his plea of guilty was voluntary. That case, however, is distinguishable from the one here under consideration. We do not deal here with questionable tactics on the part of defense counsel which could in turn influence a defendant's choice regarding his plea. To the contrary, petitioner was represented at his trial by the most able of Tennessee criminal trial attorneys. Furthermore, the Court has before it the entire record of proceedings which have heretofore been held and which clearly reflect the events that are the basis of the issues presented in this action. Accordingly, we are of the opinion that nothing further could be added by an evidentiary hearing.
In Bumper, supra, the Supreme Court, per Mr. Justice Stewart, stated:
"When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.
* * * * * *
"When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion albeit colorably *580 lawful coercion. Where there is coercion there cannot be consent." (Emphasis added) 391 U.S. at 548-550, 88 S.Ct. at 1792.
The purported consent in Bumper was obtained from a sixty-six year old Negro woman who lived in a rural area of North Carolina, and who was confronted by four white law enforcement officers. Additionally, the officers stated they had a warrant, but did not read it to the woman. In essence, she did no more than acquiesce to their claim of lawful authority to search the premises.
The case under consideration markedly differs from Bumper. Here we have a forty-nine year old male who had at least some college education and who had served in two wars. On the previous day he had voluntarily cooperated with the law enforcement officials and had been fully advised of his Miranda rights at the station house interview. When read the warrant, he threw his copy on the ground and stated to the effect that such was not necessary. He further stated, "You Gentlemen are welcome to search anywhere on my premises you want to search and take anything you find!"
Factors that tend to establish an involuntary consent include: (1) the presence of some five or six law enforcement officers; (2) the absence of any warning to petitioner that he had a right to refuse consent to a search; and (3) the trial statement by Sheriff Russell that the search would have been carried out in any event pursuant to the warrant notwithstanding petitioner's consent.
In light of Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), we are of the opinion that officers need not warn a defendant of his right to refuse consent to a search in order to conduct a search pursuant to such consent. It is the intent of the person giving the consent, and not the intention of those conducting the search that controls. As to the presence of the five or six officers who were assisting in the execution of the warrant, this factor alone, and taken into consideration along with the totality of the circumstances at the time the search occurred is not sufficient to vitiate an otherwise voluntary consent.
Upon consideration of the entire record, we are constrained to conclude that petitioner, on August 13, 1969, not only acquiesced in, but further voluntarily consented to a general search of his premises. Hoover v. Beto, 467 F.2d 516 (5th Cir. 1972). Accordingly, petitioner's application for habeas corpus relief on the ground that the consent search in absence of a valid warrant was unlawful must be denied. See, Schneckloth v. Bustamonte, supra; Bumper v. North Carolina, supra; Hoover v. Beto, supra, reversing 439 F.2d 913 (5th Cir. 1971). Compare, United States v. Hearn, 496 F.2d 236 (6th Cir. 1972); United States v. Cogwell, 486 F.2d 823 (7th Cir. 1973); United States v. Luton, 486 F.2d 1021 (5th Cir. 1973); Holloway v. Wolff, 482 F.2d 110 (8th Cir. 1973).
NOTES
[1] The pertinent portions of this testimony are found in the Transcript (Tr.) at pp. 20-54 and contains the transcript of the hearing held pursuant to defendant's motion to suppress.
[2] "THE SEARCH WARRANT
"The affidavit for the warrant says:
"`I, FREEMAN RUSSELL, make oath that I am Sheriff duly elected, appointed and qualified as such in said State and County; that on the 13th day of August, 1969, I received information from confidential formant (sic) a responsible and reliable citizen of said State and County, whose name I have this day disclosed to the Judge to whom this application is made, that there was stolen from Lynn Barger on the 9th day of August, 1969 the following described personal property, the same being the personal property of Lynn Barger and of the value of $202.00 and particularly described as follows: one (1) leather billfold and money in the amount of $150.00 and two (2) payroll checks in the amount of $52.00, that Doyle Frank Earls, Alias, who resides in or occupies and is in possession of the following described premises, viz: the following described premises, to-wit, situated in district No. 5 of Loudon Co., State of Tennessee, it being that tract or parcel of land known as the Watt Johnson farm, bounded as follows, North by B. F. Parker, East by T. L. Monteith, South by E. M. Galyon, West by A. J. Parker, containing 100 acres more or less, located in old 5th (now 4th) District, Loudon County. Tennessee, now has in his possession in the building hereinbefore described on said premises the aforesaid property hereinabove described, which the said Doyle Frank Earls is unlawfully keeping in his possession and under his control in violation of law as made and provided in such cases.'"
The Court, is, for the purpose of this case, assuming that the warrant was invalid since the issue has been decided in petitioner's favor by the Supreme Court of Tennessee.
[3] Defendant's evidence appears in the Transcript beginning at p. 358.
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195 B.R. 585 (1996)
In re Laura M. LOMBARDI, Debtor.
Bankruptcy No. 95-22611.
United States Bankruptcy Court, W.D. New York.
March 8, 1996.
*586 Thomas A. Corletta, Rochester, NY, for Debtor.
Jonathan D. Pincus, Rochester, NY, for Beneficial Finance of New York, Inc.
DECISION AND ORDER
JOHN C. NINFO, II, Bankruptcy Judge.
BACKGROUND
On November 2, 1995 Laura M. Lombardi ("the Debtor") filed a petition initiating a Chapter 7 case. On her schedules and statements filed with the Court, the Debtor: (1) listed her ownership of a 1991 Hyundai Excel 3-door hatchback automobile ("the Hyundai"); (2) indicated that the Hyundai had been driven in excess of 70,000 miles; (3) valued the Hyundai at $1,800.00, a November 1995 NADA value; (4) claimed the Hyundai as exempt; and (5) indicated that she intended to retain the Hyundai, reaffirm an obligation owed to Hyundai Motor Finance ("Hyundai Finance"), which was secured by a first lien on the automobile, and redeem the Hyundai pursuant to Section 722 from a second lien in favor of Beneficial Finance of New York, Inc. ("Beneficial") which secured an obligation of $5,000.
The Court's records show that on December 11, 1995 a reaffirmation agreement with Hyundai Finance was filed with the Court which met the requirements of Section 524 and provided that the amount due Hyundai Finance was in excess of $1,800.
A minute report of the Section 341 Meeting of Creditors held on December 7, 1995, showed that an attorney for Beneficial had attended the meeting.
On November 20, 1995 the Debtor filed a motion to have the second lien of Beneficial on the Hyundai avoided pursuant to Section 506(d). The motion asserted that since the value of the Hyundai was less than the amount due on the obligation owed to Hyundai Finance, which was secured by a first lien on the automobile, the allowed secured claim of Beneficial under Section 506(a) was zero and, therefore, its lien could be avoided under Section 506(d). On December 18, 1995, however, the Debtor amended the motion (the "Motion to Redeem") to request that she be allowed to redeem the Hyundai pursuant to Section 722[1] from the second lien of Beneficial by paying it nothing or a nominal amount. In the Motion to Redeem, the Debtor acknowledged that the relief requested in the original motion was unavailable because of the decision of the United States Supreme Court in Dewsnup v. Timm, 502 U.S. 410, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992). The Motion to Redeem was re-served on Beneficial and was made returnable on January 17, 1996. Beneficial did not interpose any opposition to the Motion to Redeem and it did not appear on the January 17, 1996 return date.[2]
The Motion to Redeem indicated that: (1) Hyundai Finance had a purchase money security interest and first lien on the Hyundai to secure an obligation of in excess of $1,800.00, which had been reaffirmed; (2) the value of the Hyundai vehicle was no greater than $1,800.00; (3) as a result, the value of Beneficial's allowed secured claim under 506(a)[3] as to the Hyundai was zero; and (4) the Debtor should be authorized to redeem *587 the Hyundai for no payment or only a nominal payment.
DISCUSSION
The Debtor has met the requirements of Section 722. The Hyundai is tangible personal property intended primarily for personal, family or household use which was exempted by the Debtor. Furthermore, the Beneficial obligation is a dischargeable consumer debt. These requirements having been met, Section 722 provides that the Debtor can redeem the property from a lien securing the dischargeable consumer debt by paying the holder the amount of its allowed secured claim.
Although the Supreme Court has determined that a Chapter 7 debtor cannot use Sections 506(a) and 506(d) to "strip down" a lien, an analysis of the lienholder's allowed secured claim under Section 506(a) is still necessary to implement the provisions of Section 722. On the facts presented, Beneficial has no allowed secured claim under Section 506(a) as to the Hyundai because its value is less than the amount owed to Hyundai Finance on an obligation which is secured by a first and superior lien on the automobile.
Therefore, Section 722 allows the Debtor to redeem the Hyundai from the second lien held by Beneficial for the amount of its allowed secured claim, which is zero.[4]
In a similar case, Bankruptcy Judge Thomas C. Britton allowed the redemption of a subordinate lien unsupported by value in an automobile for the amount necessary to cover the lienholder's cost to file an appropriate release of lien. See In re Altenberg, 1 Collier Bankr.Cas.2d 807 (Bankr.S.D.Fla. Mar. 7, 1980).
Although the idea of redeeming property for no payment may seem inconsistent, since it appears that redemption should be an affirmative act, it is appropriate in the proper circumstances. In many, if not most redemption cases, a first lien on property eligible for redemption under 722 will be redeemed for less than the amount due on the obligation which secures that first lien. If a subordinate lien could not then be redeemed and cancelled for no payment or only a nominal payment, the subordinate lienholder would retain its lien and some economic and possibly intangible value after the superior lienholder had its lien redeemed and cancelled for less than the amount of its obligation.[5]
Furthermore, the relief requested by this Debtor is consistent with the scheme of the Bankruptcy Code with regard to consensual liens on exempt personal property. When Section 722 and Section 522(f)(1)(B) are viewed together, it is clear that Section 522(f)(1)(B) elevates an available exemption over nonpurchase money security interests in various items of exempt personal property, whereas Section 722, which covers some items of exempt personal property not covered under Section 522(f)(1)(B), as well as purchase money liens, preserves the lien for the holder despite the exemption, but only to the extent of the value of the exempt property.
CONCLUSION
The lien of Beneficial Finance of New York, Inc. on the Debtor's 1991 Hyundai Excel shall be redeemed for the payment to Beneficial of $10.00, an amount intended to cover its cost in completing and providing to the Debtor a release of lien which the Debtor can file with the New York State Commissioner of Motor Vehicles. Beneficial is to provide the release of lien to the Debtor *588 within five business days of its receipt of the $10.00 redemption payment.
IT IS SO ORDERED.
NOTES
[1] Section 722 provides:
An individual debtor may, whether or not the debtor has waived the right to redeem under this section, redeem tangible personal property intended primarily for personal, family, or household use, from a lien securing a dischargeable consumer debt, if such property is exempted under section 522 of this title or has been abandoned under section 554 of this title, by paying the holder of such lien the amount of the allowed secured claim of such holder that is secured by such lien.
[2] This Court has a default procedure for Section 722 redemptions which results in the matter being stricken from the motion calendar if no timely opposition is filed. Notwithstanding any lack of opposition, the Court always reserves the right to deny the relief requested if it believes that the movant has not demonstrated a fundamental right to the relief.
[3] Section 506(a) provides:
An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor's interest in the estate's interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such creditor's interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor's interest.
[4] It is significant in this case that Beneficial did not interpose opposition after it received proper notice of the Motion to Redeem and its counsel had attended the Section 341 Meeting.
[5] It is unusual to see a second lien on an automobile where there is no value to support it because lenders generally will not incur the time and expense of perfecting such a lien in the absence of demonstrated realizable value.
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285 F.2d 848
Richard H. CLINTON, Appellant,v.JOSHUA HENDY CORPORATION, Appellee.
No. 17000.
United States Court of Appeals Ninth Circuit.
Dec. 28, 1960.
Richard H. Clinton, in pro. per.
Robert Sikes, Leon A. Pinney, Los Angeles, Cal., for appellee.
Before BARNES, HAMLIN and JERTBERG, Circuit Judges.
BARNES, Circuit Judge.
1
Appellant sought relief in the form of maintenance and cure under the general maritime law, and interest on a prior award of maintenance and cure. The district court thus had jurisdiction under 28 U.S.C.A. 1333. This court has jurisdiction on appeal. 28 U.S.C. 1291.
2
In 1954 appellant suffered a leg injury while employed by defendant-appellee as a seaman. In an action in the United States District Court for the Southern District of California, Central Division (No. 19061-WM), appellant recovered $232 plus costs against appellee, for an injury to his right leg on September 18, 1954, and maintenance and cure from September 20, 1954, to October 19, 1954, a period of twenty-nine days. That judgment was affirmed by this court. Clinton v. Joshua Hendy Corp., 9 Cir., 1959, 264 F.2d 329. In the decision rendered by this court appellant's claim for interest in the amount of $51.20 was denied. Id., at page 334. Appellant in the instant action seeks again to recover the interest which this court previously refused to grant him. Obviously, appellant cannot be successful in this endeavor, since the principles of res judicata and rule of the case are clearly applicable.
3
Appellant also seeks in this action a recovery for maintenance and cure on the ground that he was disabled from October 22, 1954, until October 21, 1957. Appellant's disability was, he claims, caused by the aggravation of an old brain injury. This aggravation occurred when the chief mate of appellee's vessel, the S.S. Marine Arrow, sent an allegedly libelous letter to appellant's union. As a consequence of receiving this letter, the union expelled appellant and appellant became so mentally disturbed that he was unfit for sea duty. The allegedly libelous letter was dispatched on September 21, 1954,1 a date within the period covered by appellant's previous award of maintenance and cure.
4
The trial court found that appellant's new claim, as above described, 'could and should with propriety have been adjudicated' in his previous action for maintenance and cure, since the claim 'allegedly arose during the same employment as therein alleged and the conditions herein alleged were manifest to libellant prior to the rendition of judgment in said action.'2 In Finding 6 the court stated: 'that libellant has not suffered an aggravation of an original brain injury sustained March 18, 1945 at any time after October 19, 1954, or at any time after June 16, 1958.'3
5
Appellant presents four specifications of error. Specification number 2, dealing with the court's refusal to grant interest on the previous maintenance and cure award, has already been treated.
6
In specification number 3, appellant asserts that the trial court 'erred in finding that no cause of action was proved sufficient to support' this suit. The trial court made no such finding. Perhaps appellant intended specification 3 to apply to Finding 6, wherein the court found that appellant had not suffered an aggravation of his old brain injury. For if that Finding 6 stands, of course, appellant's entire case is lost. Appellant has not, in any other specification of error, purported to contend that Finding 6 is clearly erroneous. We give appellant, a layman, the benefit of the doubt as to what he intended, and assume specification 3 refers to Finding 6. In his discussion of specification of error number 3, however, appellant does little more than quote in its entirety Brahms v. Moore-McCormack Lines, Inc., D.C.S.D.N.Y. 1955, 133 F.Supp. 283. Obviously the reproduction of a reported decision does not create a hiatus in the evidence which would undermine the court's finding. Appellant fails in this appeal simply because he has not specified as error a finding which, if left undisturbed, commands a decision against him. Even if the elasticity of language permits the application of specification number 3 to Finding 6, appellant has made no showing that Finding number 6 is clearly erroneous.
7
In specification of error number 4, appellant claims that the trial court erred 'in applying the Collateral Estoppel Rule' against him. At this point, for the first time, issue is joined with appellee (appellee having ignored the material already discussed). Appellee notes that the principle of res juridata applies in admiralty, as well as in cases at law. Runyan v. Great Lakes Dredge & Dock Co., 6 Cir., 1944, 141 F.2d 396.
8
'The general rule as to judgments that a judgment on the merits rendered in a former suit between the same parties in the same cause of action by a court of competent jurisdiction operates as an estoppel, not only as to every matter which was offered and received to sustain or defeat the claim but as to every other matter which with propriety might have been litigated and determined in that action, applies to proceedings in Admiralty Courts.' Id., at page 397.
9
Appellant's efforts to avoid the defense of res judicata cause him to meander through cases of only incidental importance to the issue at hand. In this mass of incoherence, however, one fairly cogent contention appears. Appellant claims that a judgment for maintenance and cure for a specific period will not bar suit for maintenance and cure for a subsequent period. In the instant action appellant seeks maintenance and cure for the period October 22, 1954, to October 21, 1957, while the previous judgment, as we have noted above, awarded maintenance and cure for the period from September 20, 1954, to October 19, 1954. Thus the period for which he now seeks maintenance and cure is, in its entirety, subsequent to the period for which he was previously awarded maintenance and cure.
10
The cases cited by appellant do not support the rule which he urges. Calmar S.S. Corp. v. Taylor, 303 U.S. 525, 531-532, 58 S.Ct. 651, 82 L.Ed. 993, and Tol v. United States, 9 Cir., 1948, 166 F.2d 775, by strong dicta support the proposition that when maintenance and cure has been awarded to the time of trial, a later suit for maintenance and cure accruing subsequently may be brought. Appellant in the instant case seeks maintenance and cure for a period occurring before the trial of the prior action in which he was awarded maintenance and cure. We do not find the date of that trial in the record, but judgment in that case was entered on June 16, 1958. Further, the trial court in the instant case found as a fact that appellant should have presented his current claims in the prior litigation. Appellant presents no argument or evidence to show that this finding is clearly erroneous. Accordingly, appellant cannot come within the rule of Calmar S.S. Corp. v. Taylor, supra.
11
Doucette v. Vincent, 1 Cir., 1952, 194 F.2d 834, and Jordine v. Walling, 3 Cir., 1950, 185 F.2d 662, upon which appellant relies very strongly, do not support in any way the proposition which he asserts.
12
The only possible defect in appellee's defense of res judicata is that the cause of action in the instant suit may not be the same cause of action as that urged in the prior suit for maintenance and cure. In the prior action appellant received an award of maintenance and cure for injury to his leg; here he seeks maintenance and cure for an alleged mental disturbance. The right to maintenance and cure, however, arising out of any particular employment, is single and indivisible; and an injured seaman has but a single cause of action for all maintenance and cure occasioned in connection with any particular contract of employment. A seaman cannot sue once for an injured left leg and a second time for an injured right leg. It is clear that the duty to provide maintenance and cure does not rest upon negligence or culpability on the part of the master, but arises from the contract of employment (Calmar S.S. Corp. v. Taylor, supra, at page 527, 58 S.Ct. 651). Thus, a seaman had a single contractual claim for all care and maintenance required because of any illness occurring during a specific period of employment.
13
But in any event, as noted above, the trial court found that appellant should have presented his current claims for maintenance and cure in the prior action. Implicit in this finding is the determination that the cause of action here involved is identical with the cause of action involved in the prior suit; or, at the least, that the issues decided in the prior case are dispositive of the claims raised here. Appellant does not attempt to show that this implied determination is erroneous. The pleadings from the prior action do not appear in the record here; consequently it is difficult to determine whether the issues raised here and the cause of action involved were, in fact, considered in the rpior action. It is impossible to say on the present state of the record that the trial court erred in impliedly finding the cause of action in the case at bar was identicly with the cause of action in appellant's prior action. The exact 'definition of the phrase 'cause of action' is elusive,' and 'each case must be decided largely on its own circumstances.' Sullivan v. Nitrate Producer's S.S. Co., 2 Cir., 1919, 262 F. 371, 373.
14
Two points remain to be considered. As an additional part of specification number 3 (previously considered) appellant alleges that the trial court erred in quashing a subpoena duces tecum without notice or hearing. Appellant claims that Rule 45 of the Federal Rules of Civil Procedure, 28 U.S.C. applied to the issuance of the subpoena, and to the subsequent action of the court in quashing it; but he admits that demiralty actions, such as this, are generally governed by the Admiraly Rules rather than by the Federal Rules of Civil Procedure.4 Appellant cites no authority whatsoever for the exception which, he claims, is applicable here. He merely states that it is the practice of the district court clerk to issue subpoenas duces tecum in admiralty actions, despite the absence of a special admiralty rule covering the practice.
15
We have found no authority for applying Rule 45 of the Federal Rules of Civil Procedure to Admiralty actions. Thus cases construing Rule 45 are applicable here, if at all, only by analogy. Even so, the cases cited by appellant do not establish the rule that notice to the parties is an invariable prerequisite of an order quashing a subpoena duces tecum.
16
In addition, the subpoena in question is not before this court. Consequently it is impossible for the court, on the present state of the record, to say that appellant has been prejudiced by the trial court's error, if error there was. It, as the trial court found, the documents demanded by the subpoena were clearly immaterial, appellant was not harmed by any procedural defect which may have infected the trial court's determination to quash the subpoena. More conclusively, no prejudice could possibly have resulted from an order which merely prevented appellant from presenting evidence in an action that has been barred by the doctrine of res judicata.
17
Appellant finally complains (specification number 1) that the trial court refused to certify the agreed statement for appeal although this statement was signed by proctors for appellee. The use of agreed statements is sanctioned by the Admiralty Rules (Number 49 (IV)), 28 U.S.C., but the rule, itself, imposes no requirement of certification by the trial judge. Although the agreed statement here in question was not certified by the district judge, it was transmitted to this court. Hence there was neither error nor prejudict in the trial court's action. Further, a consideration of the material in the agreed statement cannot in any way aid appellant on this appeal.
18
The judgment below is affirmed.
1
Record, p. 5
2
Record, p. 34
3
Record, p. 34
4
See 2 Moore, Federal Practice 19-20 (2d ed. 1948)
In Jones v. Waterman S.S. Corp., 3 Cir., 1946, 155 F.2d 992, 997, it was held that a suit for maintenance and cure is a civil suit and that the Federal Rules of Civil Procedure are applicable. Since that decision, however, the United States Supreme Court has decided Romero v. International Term. Operating Co., 1958, 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368, wherein the court held that claims under the general maritime law (including a claim for maintenance and cure) could not be brought on the law side, in district court. Such claims, the Court held, come within the specific language of the statute conferring admiralty jurisdiction upon the district courts (28 U.S.C. 1333).
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396 S.W.2d 450 (1965)
LIVE OAK COUNTY, Texas, Appellant,
v.
LOWER NUECES RIVER WATER SUPPLY DISTRICT, Appellee.
No. 78.
Court of Civil Appeals of Texas, Corpus Christi.
September 23, 1965.
Rehearing Denied with Concurring Opinion December 8, 1965.
*451 James C. Watson, of Keys, Russell, Watson & Seaman, Corpus Christi, Dan Moody, Jr., Austin, Harry J. Schulz, Three Rivers, W. L. Hardwick, George West, for appellant.
Allen Wood, of Fischer, Wood, Burney & Nesbitt, Ralph Wood, of Wood & Boykin, Corpus Christi, for appellee.
SHARPE, Justice.
This appeal is from a summary judgment in favor of appellee, Lower Nueces River Water Supply District, sometimes hereafter called "District", that appellant, Live Oak County, Texas, sometimes hereafter called "County", take nothing.
County's cause of action originally was to recover payment from District for a proposed road and bridge across Lake Corpus Christi due to the inundation by the lake of an existing County (Lagarto) road and a bridge when the Wesley Seale Dam was completed and its gates closed; and by amended pleadings, alternatively, for declaratory judgment that District is liable to pay for the new road and bridge when completed.
Preliminary proceedings in this case have twice been before the Fourth Court of Civil Appeals at San Antonio. See 312 S.W.2d 696 (Tex.Civ.App.1958, wr. ref. n. r. e.), involving dissolution of a temporary injunction against District, and 352 S.W.2d 139 (Tex.Civ.App.1961, wr. dism.) on plea of privilege. District prevailed on both of those appeals.
On this appeal, County contends by five points of error that the summary judgment herein was improperly granted for reasons, in substance, as follows: (1) the word "change" in Article 7585, Vernon's Ann. C.S., does not preclude County from elevating the inundated roadway at the same, or approximately the same, location, (2) the order of the County Commissioners Court determining that the inundated road should be changed by elevating it along the present route is not arbitrary, capricious nor void, and absent a direct attack may not be ignored or reviewed in this proceeding, (3) to the extent that County's rights and District's obligations depend on whether elevation of the Lagarto Road is practical, feasible or necessary, genuine issues of material facts are presented, (4) insofar as such rights and obligations depend on a determination in this suit upon whether the Commissioners Court of County has properly exercised discretionary authority, genuine issues of material fact are presented, and (5) the take-nothing summary judgment denies County a determination by declaratory judgment as to the extent and conditions of District's obligation to pay the expense of elevating the Lagarto Road.
District answers County's points with basic contentions that (1) the word "change" as used in Art. 7585, V.A.C.S., means change of course, route, location, or to vacate or abandon, rather than change in elevation or raising of the affected road, (2) the order of the Commissioners Court of County concerning elevation of the Lagarto Road is not binding and enforceable against District, and by Reply Brief, that (3) affirmance of the summary judgment will not be res judicata as to any relief *452 to which County might be entitled except as to its claim of right to compel District to construct or pay for construction of a high level bridge or causeway over Lake Corpus Christi at or near the old Lagarto Road.
Upon the record now presented the summary judgment in favor of District must necessarily rest either upon the premise that the word "change" as used in Art. 7585, V.A.C.S., does not permit elevation of the old Lagarto Road or that the order of the Commissioners Court of County is void; which last premise would necessarily include a finding that there is no genuine issue of material fact concerning whether the Commissioners Court acted arbitrarily or capriciously.
We have concluded that under applicable rules the take-nothing summary judgment was improperly granted and that the cause should be reversed and remanded for the reasons hereinafter stated.
In connection with the former appeal sustaining District's plea of privilege in this case the Court of Civil Appeals at San Antonio has held as follows:
"When the suit is finally tried upon its merits it will involve the question of the duties and liabilities between the County and the Water District under the provisions of Article 7585, supra. Whatever rights the County has in this matter and whatever duties the Water District owes, are all fixed and provided for in Article 7585. The damages done to the old Lagarto Road and bridge will be immaterial. This suit is now a suit under the provisions of Article 7585, and is in no sense a suit for land or damages thereto." 352 S.W.2d 139, 141.
In connection with the earlier appeal in this case involving dissolution of a temporary injunction, the Court of Civil Appeals at San Antonio has held that Article 7585, V.A.C.S., enacted in 1917 (relating to rights and liabilities of water districts and others such as appellee along or across public highways), was intended as a limitation upon and a restriction of the provisions of Article 6703, V.A.C.S., (relating to changes and alterations of roads generally and to the authority of the Commissioners Court in connection therewith) and that Art. 7585, controls such provisions as are in conflict therewith. 312 S.W.2d 700. The Fourth Court of Civil Appeals found it unnecessary to consider the matter of location of the changed route because it was then concerned only with the respective rights, duties and authority of the parties in the injunction proceeding. The Court also held that County did not have the right to demand payment by District in advance as a condition precedent to District's right to construct the dam, lake and reservoir and thereby submerge said road. In discussing the balancing of equities requiring the injunction to be dissolved the Court said:
"If the gates be closed and Lagarto bridge inundated by the water of the new reservoir, a high level bridge, if ordered, may still be constructed after such inundation, at a comparatively slight additional cost, and, in the interim, only a comparatively few people will be inconvenienced by being required to travel a few more miles to reach points east of the reservoir." 312 S.W.2d 696, 701.
Article 7585, V.A.C.S., reads as follows:
"All persons, associations of persons, corporations, and water improvement or irrigation districts shall have the right to run along or across all roads and highways necessary in the construction of their work, and shall at all such crossings construct and maintain necessary bridges, culverts, or siphons, and shall not impair the uses of such road or highways; provided, that if any public road or highway or public bridge shall be upon the ground necessary for the dam site, reservoir, or lake, it shall be the duty of the commissioners' court to change said road *453 and to remove such bridge that the same may not interfere with the construction of the proposed dam, reservoir, or lake; provided, further, that the expense of making such change shall be paid by the person, association of persons, corporation, water improvement or irrigation district desiring to construct such dam, lake or reservoir."
When Art. 7585, V.A.C.S., was enacted in 1917, the Legislature was presumably aware of the powers and duties of county commissioners courts concerning roads and bridges and that actions of water districts could and probably would interfere with and require changes in existing roads and bridges. The Legislature obviously intended to set out the respective rights and duties of water districts and counties in such circumstances. The Statute recognizes that there would be instances where a roadway or bridge might be inundated by a reservoir or lake constructed and provided for use of water districts, and provided for such situation. In such event the county commissioners court is charged by the Statute with the duty of making the change in the road or bridge. The district has the authority to decide that the road will be inundated but does not have the authority to decide what change is to be made in it. The county cannot defeat the district's right to inundate the road or bridge or to construct its dam, reservoir or lake, but can and must determine the change to be made in the road or bridge on account of its inundation, and the district must pay for such changes which are legally made.
On the one hand, County contends that under Art. 7585, V.A.C.S., the change in the inundated roadway can be made vertically or horizontally, and, on the other hand, District says that it can be made only horizontally and that a change by elevating the road is not permissible.
Various definitions of the word "change" from dictionaries and cases are cited to us by the parties in support of their respective positions. County places reliance upon a definition of the word "change" in Webster's International Dictionary, Second Edition (1934), as follows: "1. To alter by substituting something else for, or by giving up for something else; * * *" In discussing the difference between "change" and "alter", the same dictionary says: "to change (the more general and the stronger term) is to render something essentially different from what it was, even to loss of identity, or the substitution of one thing for another; * * * to alter is to make different in some particular respect, as in form or detail, without implying loss of identity; * * *"
District's dictionary definitions of the word "change" are not substantially different from County's. However, some of the cases from other jurisdictions relied upon by District appear to hold in the legal and factual contexts there presented that the word "change" as applied to a roadway may mean a change in location, route or course and not a change in grade or elevation. We do not consider any of the cases cited by District as controlling here. We believe that when the conditions to be remedied and the purposes of Art. 7585, V.A.C.S., are considered, that the word "change" was used in a broad sense rather than in a narrow one. The Statute does not spell out the type of change to be made, neither does it limit the county commissioners court to a "change in location' or a "change in route" or a "change in course", nor does it otherwise place restrictions on the kind of change to be made. The Texas case which appears to be most closely in point is Fry v. Jackson, 264 S.W. 612 (Tex.Civ.App. 1924, n.w.h.). That case involved a suit by landowners to enjoin the Commissioners Court of Denton County, the State Highway Commission and the City of Dallas from constructing a dam on a river that would cause the flooding of a portion of a state highway. The court held that the matter of changing the route of a public road was within the power and discretion of the commissioners *454 court alone, and at page 616 of the opinion said:
"While the district court is given general power to review the proceedings of the commissioners' court, yet in the matter of changing the route of a public road full power and discretion seems to be lodged in the commissioners' court alone, and neither the district court nor this court would have the power to substitute its judgment for that of the commissioners' court or otherwise set aside that court's final conclusion, except upon a finding that it was corruptly or arbitrarily done. See Stuckey v. Jones (Tex.Civ.App.) 240 S.W. 565; Culp v. Commissioners' Court of Coryell County (Tex.Civ. App.) 214 S.W. 944; Tippett v. Gates (Tex.Civ.App.) 223 S.W. 702."
Only the commissioners court can make the change in the roadway, not the governmental agency building the dam (which in Fry v. Jackson was the City of Dallas and in this case the appellee District), nor can the district court or appellate court substitute its judgment or discretion for that of the commissioners court.
Fry v. Jackson, supra, supports County's position that the question of whether the road should be rerouted or changed by elevation is matter within the discretion of the county commissioners court, as shown by the following quotations 264 S.W. at pages 618-619 of the opinion:
"For by the latter legislation (Art. 7585), which must control, it is expressly made the `duty' of the commissioners' court to change a road if upon ground necessary for a dam site."
* * * * * *
"Appellants present a prayer that, in the event the power of appellees to submerge the proposed section of Highway No. 39 is upheld, then they be required to erect a sufficient causeway over the submerged part so as not to impair the privileges of appellants as heretofore exercised. It is further insisted that no necessity for the establishment of the reservoir at the place indicated has been shown. It would seem that these are details that fall within the discretionary powers of the appellee authorities. See 15 Cyc. 634-638. But, however, this may be, we have concluded that the pleadings do not furnish sufficient information to enable us at this time to determine whether in the exercise of a fair discretion it is practical to locate the reservoir at another or different place, or whether the suggested causeway should be constructed rather than the routing of the road changed."
The summary judgment evidence herein indicates that a change in horizontal location of the Lagarto Road would probably be less costly than elevation of the roadway at or near the old location. However, the cost to District, although an important and proper factor, is not the ultimate test of what change shall be made in the roadway. Without minimizing the consideration of cost to District, County has obligations to its inhabitants, taxpayers and to the travelling public concerning the affected roadway. In making a change in the road which has been inundated by District, the County Commissioners Court may properly consider what is reasonably necessary to be done in order to substantially serve the same purpose as that achieved by the former road. There may be a number of factors which the Commissioners Court could properly consider, such as the time, trouble and expense caused to persons formerly using the old roadway in being required to travel a longer and different route. In this case, a portion of the summary judgment evidence as summarized in County's brief, at pages 46-52, reflects the following:
The affidavit of Marshal R. Sanguinet, registered professional engineer and chief engineer of Wyatt C. Hedrick Engineering Corporation of Houston, sets out his qualifications and knowledge of the area, he *455 being a graduate of Rice University with a degree of Bachelor of Science in Civil Engineering, a Fellow in the American Society of Civil Engineers and a member of the United States Committee on Large Dams. He started his engineering career in 1930 in Fort Worth as a structural engineer and later had experience in the construction of major highway and railroad bridges. In 1940 he joined the Hedrick firm as chief engineer and project manager on Army and Navy installations including roads, bridges, airfields and military bases in the United States. In 1951, as a member of such firm he was project manager on the $300,000,000.00 air base construction at Keflavik, Iceland, which consisted of runways, roads, etc. and buildings. In 1954, he joined the firm of Tippetts-Abbotts-McCarthy-Stratton of New York City as resident engineer on two hydro-electric dams in Central Burma after which he was made chief engineer of the same firm for four hydroelectric dams in Turkey, each of such six dam projects costing from $75,000,000.00 to $100,000,000.00 each, the work consisting not only of the dam constructions, but also the building of roads, bridges, water ways and power plants. Since 1935 he has been completely familiar with the Lagarto Road and bridge and surrounding areas on both sides of old Lake Corpus Christi and since the building of the new dam, he is also familiar with the areas on both sides including the development that has occurred on both sides since the new dam was built, and has made a study of the need and feasibility of raising the Lagarto Road above the level of the new lake, including the necessary trestle and river crossing. Based on his experience and study, he stated such building and raising of such new road across said lake at such point is urgently needed, feasible and practical, both from an engineering and an economic standpoint. He stated that based on traffic counts detailed on the traffic map of Live Oak County certified by D. C. Greer, State Highway Engineer, and attached to appellee's papers in support of its motion, it is obvious that a crossing across the lake in the area of the old Lagarto Road would pay for itself in less than seven years, this being based on a traffic count made in 1957 of 185 cars per day using the Lagarto Road prior to its flooding contained in the affidavit of F. A. (Frank) McCaughan, Engineer for the appellee Water District, McCaughan's affidavit being filed in connection with Defendant's Motion for Summary Judgment, and the cost of such road and crossing of $762,902.35 as estimated by said McCaughan in his affidavit. Based on his experience and knowledge of the area and the direction and flow of the traffic across said crossing, the origin and destination of said traffic, Sanguinet is of the opinion that the flooding of the road caused said cars on an average to travel an additional 18 miles each that they would not have to travel if said road and crossing were not inundated, this taking in to consideration all of the facts of which he is familiar. Based on an average cost of 10¢ per mile this requires an additional cost per car of $1.80, which multiplied by 185 cars amounts to $333.00 per day, which amounts to a total cost to the traveling public of $121,545.00 per year and said annual figure in seven years amounts to $850,815.00, which is more than the cost of the crossing as estimated by McCaughan, and this annual cost to the traveling public of $121,545.00 does not take into consideration the normal increase in traffic as experienced in all areas of the United States and which this area would naturally also experience. He stated the crossing and bridge of the type as figured by McCaughan has a life span of 50 years with normal maintenance and during such 50-year life such bridge and crossing would save the public the sum of $6,077,250.00; that it is good engineering practice in determining the economic feasibility of any road, bridge or highway project to take into consideration the cost of the structure and the saving to the public of the structure and in this instance the ratio of cost to saving is $762,000.00 to over $6,000,000.00, a ratio of saving to the public of over 8 to 1; that normally if any project shows any saving to the public over its useful life, that is, if *456 the saving to the traveling public is equal to the cost and maintenance of the facility, that is, a ratio of 1 to 1, then its building is feasible and economically sound; that in good engineering practices, maintenance and repair is estimated at 1% of the cost of the facility per year, or approximately $380, 000.00 over its useful life of 50 years, which when added to the cost totals approximately $1,142,000.00, thus still allowing a saving to cost ratio of over 5 to 1; that the national usage of roads and bridges over the United States has increased an average of 4% per year and that if this increase were applied here, the saving would be even greater; that by applying this 4% per year to the 50 year useful life, this would amount to an increase of over 200%; that the increase in the Lagarto area would be greater than this national average; and that by applying the national average of 200% to the area, you could safely add to the saving to the public of $6,077,250.00 the additional sum of 200% or $12,154,500.00, for a total of $18,231,750.00, and thus the ratio of saving to the public would correspondingly increase. Based on his experience and study of the area, Sanguinet stated that FM 2287 does not provide an alternate route to the loss of the Lagarto crossing and bridge which was inundated and does not in any manner adequately serve the needs of the area and that the only way to adequately serve the needs of the area is to build the new Lagarto crossing at the location of the old crossing that was inundated. He stated that he is of the opinion that the building and maintenance of the new Lagarto crossing would not interfere with the operation of the Wesley E. Seale dam nor endanger it in any way. He further states that he has made soundings across the new lake at the approximate location of the old road and bridge and that the new crossing would require a crossing structure having an elevation to the 97 foot mark, 3 feet above the 94 foot level, of only approximately 5450 feet in length. Additional minor filling of 8300 feet would be required to keep the approaches also to the 97 foot mark, but that this additional filling of 8300 feet would cost only approximately $37,000.00. He further states in his affidavit that he has personal knowledge of the facts stated therein and that such statements are true and correct and that such statements of his contained in the affidavit which contain any element of opinion are based on facts that he has investigated and knows to be true and as an engineer he is qualified from experience to state and express. (End of summary).
The members of a county commissioners court might properly consider that to the extent practicable the route of the old highway should be retained so that the inhabitants, taxpayers and the travelling public would be inconvenienced as little as possible, and that the expense to residents of the area caused by travelling a longer route to reach the opposite side of the reservoir should be minimized.
It cannot be successfully argued that a water supply district can secure the benefits of its authorized legal action in inundating a county roadway without hearing the corresponding burdens which go along with such action. However, it is apparent that a county commissioners court is charged with notice that the taxpayers, water users and customers of the water district must ultimately pay for the change in the roadway. The Statute does not contemplate the giving of unbridled authority to the county, and its commissioners court should act reasonably and prudently in determining the change to be made and the cost of same, without abusing the discretion placed in it.
It can be easily seen that in many instances where a roadway is inundated, the elevation of the old roadway or construction of a bridge would be less expensive and more feasible than relocating the road horizontally. In that situation a district such as appellee would hardly be expected to contend that the change could only be made horizontally.
We are unwilling to hold that Art. 7585, V.A.C.S., limits a county commissioners *457 court to a horizontal change of location where a roadway is inundated by a water district. When the purposes of the Statute are considered, we believe, and so hold, that elevation of a roadway is a permissible means of making the required change. There conceivably may be instances in which a county commissioners court can enter a void order changing a road, vertically or horizontally. However, where such body has not acted arbitrarily or capriciously, nor abused its discretion, its order is presumably valid and binding. See Fry v. Jackson, 264 S.W. 612 (Tex.Civ.App.1924, n. w. h.); Hidalgo County Water Control and Improvement District No. I v. Hidalgo County, 134 S.W.2d 464 (Tex.Civ.App. 1939, n. w. h.); Lasater v. Lopez, Tex.Civ. App., 202 S.W. 1039, 1045, affirmed 110 Tex. 179, 217 S.W. 373 (1919); 15 Tex. Jur.2d, Counties, Secs. 44-47, pages 272-277.
In 1957, District advised County that the proposed lake would inundate the Lagarto road and the Commissioners Court of County proceeded to consider what changes should be made in it. After investigation and hearing the Court entered an order providing that the public interest would be better served by elevating the road and building new and higher bridges along the old route rather than re-routing it, and that such action was feasible and necessary. The order further recited that the State Highway Department (by minute order of the commission No. 42357, passed July 26, 1957) had provided, in substance, that pursuant to the request of County, Farm Road 888 would be extended a distance of 4 miles (2 miles of which would be within the lake area created by the Wesley Seale Dam of district) from its then terminus southwest of Highway 9 to the town of Lagarto, so as to there connect with Farm-to-Market Road 2287, and that the extension would be surfaced by the Highway Department and the entire construction thereafter maintained by it, if County or other agencies would provide an acceptable road across the inundated area. The order of the Commissioners Court also provided that District should pay or tender payment of sufficient monies to defray the cost of making such change and that the actual construction of the elevated road or causeway and higher bridges be not begun nor then existing bridges and approaches be removed until District has paid to the Commissioners Court sufficient money to defray the cost of such removal and change.
In this case, where the order of the County Commissioners Court is questioned collaterally, only a contention that it is void can be considered. See 15 Tex.Jur.2d, Counties, Sec. 44, pages 272-273, wherein, the rule is stated as follows:
"Although commissioners' courts are courts of limited jurisdiction in the sense that their authority is confined to matters pertaining to the general welfare of their respective counties, and in that their powers are limited to those expressly or impliedly conferred on them by the constitution and statutes, when acting within the sphere of the powers specifically conferred, or in discharging the duties imposed on them, they are courts of general jurisdiction, and their judgments are entitled to the same consideration as those of other constitutional courts and may not be collaterally attacked. An order of a commissioners' court in a proceeding in which it has jurisdiction is in effect a judgment, having all the incidents and properties attached to a similar judgment pronounced by any regularly created court acting within the bounds of its authority; it is reviewable only on appeal or in a direct action for that purpose. But where the commissioners' court exceeds its jurisdiction and makes an order without authority, such order, being void, is subject to collateral attack, as where lack of jurisdiction over the subject matter affirmatively appears on the face of the record."
Although County did not have the right to demand payment in advance from *458 District as a condition precedent to construction of the dam, lake, or reservoir, or removal of the old bridge structures, the summary judgment evidence fails to establish as a matter of law that the action of the Commissioners Court was arbitrary, capricious or void insofar as the elevation of the road is concerned. The trial court was not entitled to ignore the order of the County Commissioners Court in such respect. The effect of the take-nothing judgment is to deny to the County the right to change the roadway by elevating it. The authority is conferred by law on the Commissioners Court to make a change in such manner if it is practicable, feasible and necessary. Neither the District Court nor this Court is authorized to substitute its judgment for that of the County Commissioners Court properly exercised on the subject. District was not entitled to a summary judgment that the Lagarto Road could not be changed by elevating it.
Appellant's points one, two, three and four are sustained.
Paragraphs XI and XII of County's Second Amended Original Petition, filed on September 7, 1962, read as follows:
"XI.
"Plaintiff asserts that it is not required to construct and elevate such road first, and then rely on being able to recover the expense from Defendant thereafter. Plaintiff asserts that it is the duty of Defendant, the party whose actions make the change in the roadway necessary and who is required by law to pay for such change, to make suitable arrangements in advance with the Commissioners Court for the payment of the expenses of the changes which the Commissioners Court has found will be required. Nevertheless, without waiving its claim that it is entitled to payment, or suitable arrangements for payment, in advance, Plaintiff says in the alternative, that, if it be determined contrary to Plaintiff's contentions that the making of the change in the roadway is a prerequisite to a cause of action for payment by Defendant of the expense thereof, it is entitled to a Declaratory Judgment of this Court declaring that Defendant is obligated to pay for the expense of elevating the Lagarto Road, or, in the alternative, will be so obligated after such elevation is completed; and Plaintiff here now prays for such Declaratory Judgment. In this connection, Plaintiff says that all of the circumstances required for a Declaratory Judgment by the terms and provisions of the Texas Uniform Declaratory Judgment Act (Art. 2524-1, Vernon's Texas Civil Statutes) are present in this case, and, further, that Plaintiff has no other adequate remedy if elevation before payment is required, in that Plaintiff is not in a position to provide the funds or arrange for the elevation of said road in the face of Defendant's denial of liability without a determination that Defendant will be responsible for the expense thereof.
"XII.
"Pleading further in the alternative, Defendant asserts that it stands ready, willing, and able, once the liability of Defendant for the expense thereof is determined, to construct an elevated road across the lake in question at the location of the old Lagarto Road, or, if it be determined that such is not the best location, to construct an elevated road across the lake at such nearby location as may be determined better suited for such road; and the Commissioners Court of Live Oak County stands ready, willing, and able to take such action and make such findings and determinations as may be reasonably necessary in the premises."
The prayer of the County's said pleading reads in part as follows:
"* * * in the alternative Plaintiff prays for a Declaratory Judgment establishing *459 that Defendant is obligated to pay to Plaintiff the expense of elevating the Lagarto Road * * *"
The take-nothing summary judgment herein denies to County the Declaratory Judgment sought by it for the purpose of determining its rights and District's liabilities. In its reply brief District contends that affirmance of the summary judgment will not be res judicata as to any relief to which County might be entitled except as to its claim of right to compel District to construct or pay for construction of a high level bridge or causeway over Lake Corpus Christi at or near the old Lagarto Road. On oral argument of this case counsel for District argued in substance that affirmance of the judgment would not preclude County from recovery except to a limited extent and that all other matters would remain for future litigation. This was to a large extent a reiteration of District's statement in its original Brief that it had not and could not deny liability for (1) the reasonable cost of removal of the old bridge, approaches and structures over the arms of Old Lake Corpus Christi or (2) the reasonable cost incurred and paid by County in connection with such alternate additional road or roads as may be necessary, feasible and practicable. However, the record herein does not establish an unqualified or specific admission by District to do anything except pay for the removal of the old bridge and approach structures. District has sought and recovered a summary judgment that County take nothing herein. On the record now presented District was not entitled to such declaration or judgment. The effect of an affirmance of the present summary judgment would be to adjudicate adversely to County its claim of right to elevate the old Lagarto Road.
It appears herein, in any event, that upon a collateral attack of the order of the County Commissioners Court providing for elevation of the Lagarto Roadway, there would, at least, be presented genuine issues of material fact as to whether that Court acted arbitrarily or capriciously in ordering the road elevated instead of relocating it horizontally. Such issues are not conclusively established against County on the present record. There was and is liability as a matter of law on the part of District for the expenses of a proper and legal change in the Lagarto Road. Under applicable summary judgment rules the record herein does not authorize the judgment rendered by the lower court. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952).
Appellant's point five is sustained.
In reversing the judgment and remanding the case for new trial, we desire to make it clear that the material issues of fact herein are yet to be decided in the usual way. In particular, nothing said herein shall be taken as a finding as to what is reasonably necessary to be done in order to actually change the Lagarto Road or concerning the cost of same. However, the lower court must accept the essential holdings of the San Antonio Court of Civil Appeals in the two prior appeals hereinbefore mentioned and of this Court in the instant appeal as the law of the case. See Payton v. Travis County, 129 S.W.2d 361 (Tex.Civ.App.1939, wr. dism. judgm.corr.); 4 Tex.Jur.2d, Appeal and Error, "the law of the case", Secs. 1007-1008, pages 696-699. Subject to what has just been said, the parties hereto may on the new trial pursue every right and remedy which each of them have in connection with this long-standing controversy.
Reversed and remanded.
Motion for Rehearing Overruled.
NYE, Justice (concurring).
I agree with the statement made by the appellant in the County's brief that: "Any determination of whether the elevation of Lagarto Road along its present route is practical, feasible or necessary will inevitably involve determinations as to various facts which are genuinely in dispute, as will *460 any determination as to whether the action of the Commissioners' Court was a proper exercise of its discretionary authority."
The statute in question (Art. 7585 V.A.C.S.) is clear. The water district may construct a reservoir over the ground where a public road exists. It is likewise clear that "* * * it shall be the duty of the commissioners' court to change said road and to remove such bridge * * *", provided further, that the expense of making such change shall be paid by the District. This statute contemplates placing the responsibility of removing the bridge upon the County, determining where the feasible and practical change of the road shall be made, and requiring the District to pay for the change. The County's determination of where "the change" in the road is to be made, should not of course be such a change as would interfere with the operations of the District's reservoir or dam.
The County, through the Commissioners Court, entered an order or resolution directing a specific change in the road. Before the change had been actually made, the County sought a declaratory judgment to determine the validity of their action and the liability for such action on the District. If the trial court has jurisdiction of this case at all, the burden of proof should be on the County. 1 McDonald Texas Civil Practice, § 207, p. 145. For "it is plain that where the burden of proof lies may be decisive of the outcome." Speiser v. Randall, 357 U.S. 513, 525, 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460. The present action should test whether or not the County acted arbitrarily or capriciously and whether it abused its discretion in determining the location of the future road.
If the trial court has jurisdiction of this case, then upon proof and a favorable finding by the trial court of the validity of County's order or resolution, the County may then be entitled to a declaratory judgment against the District for the expense of the proposed change. Had the County already made "such change" as contemplated by the statute (7585 V.A.C.S.) and was thereafter seeking reimbursement from the District for the expense of making such change, then, the District, if dissatisfied, would be relegated to a collateral attack on the order or resolution of the County.
The County is not limited under this statute to a change of the road either horizontally or vertically so long as it meets the test set forth by our courts: that its decision, if lawfully made, was not tainted with fraud or collusion; and/or that the Commissioners Court's decision was not so grossly unreasonable or capricious or arbitrary as to amount to fraud as a matter of law. The law vests in the Commissioners Court a duty to act with discretion in this case; its action is not ministerial in nature. 157 Tex.Jur.2d § 47, p. 275-276.
It has been said by appellant County that the County cannot dictate to the District where to locate the dam or what land is to be inundated. Therefore, the District cannot dictate to the County where to change or locate the road. It must be observed, however, that the District pays for the dam and the road. Where the County has the discretion in locating the road, and at the same time is not required to pay for it, its action must be scrutinized. It is therefore, clear that the County has an obligation to act with reason and discretion, considering not only its obligation and duty to the inhabitants that it governs, but also to consider with such action the people, taxpayers and users within the jurisdiction of the district who are required to pay the cost. The District is a separate political subdivision of our state, created by the sovereign will of the state, and standing upon the same footing as the County. Willacy County Water Control and Improvement District No. 1 v. Abendroth, 142 Tex. 320, 177 S.W.2d 936, 937 (Sup.Ct.1944). The statute (Art. 7585 V.A.C.S.) does not contemplate the giving of a "blank check" to the County.
*461 The trial court erred in granting the summary judgment because of the fact issues needed to be determined. Based on the above views, I agree that the motion for rehearing should be overruled.
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390 F.3d 413
UNITED STATES of America, Plaintiff-Appellee,v.Kwanbe Darche BULLARD, Defendant-Appellant.
No. 03-6303.
United States Court of Appeals, Sixth Circuit.
Submitted: November 5, 2004.
Decided and Filed: December 2, 2004.
1
David M. Eldridge, Eldridge & Blakney, Knoxville, Tennessee, for Appellant.
2
David C. Jennings, Assistant United States Attorney, Knoxville, Tennessee, for Appellee.
3
Before: COLE and ROGERS, Circuit Judges; COHN, District Judge.*
OPINION
4
COHN, District Judge.
5
This is a criminal case. Defendant-Appellant Kwanbe Darche Bullard (Bullard) appeals from the sentence imposed following his plea to conspiracy to distribute and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(a). Following a motion for downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1, Bullard was sentenced to 180 months, five years less than the statutory mandatory minimum. On appeal, Bullard argues that the district court erred in failing to consider information contained in his sentencing memorandum which detailed Bullard's troubled family history and contained studies regarding the negative effects a long sentence may have on Bullard's children. We find no error and affirm.
I. BACKGROUND
6
The facts of conviction are summarized in a stipulation of facts and also set forth in the presentence report. Briefly, Bullard was involved in the distribution of cocaine in the Knoxville, Tennessee area from 1996 through November 2000.
7
Before charges were filed, Bullard met with the government and agreed to cooperate. Bullard, however, fled before any agreement could be performed. On July 17, 2001, Bullard was charged in a three-count indictment as follows: Count one — conspiracy to distribute and possession with intent to distribute 5 kilograms or more of cocaine; Count two — causing the possession with intent to distribute 500 grams or more of cocaine; and Count three — possession with intent to distribute 500 grams or more of cocaine.
8
Bullard was apprehended in September 2002. On October 15, 2002, the government filed a Notice of Enhancement under 21 U.S.C. § 851 because Bullard had a prior felony drug conviction in state court. Bullard filed objections to the enhancement, arguing that the prior felony conviction used to trigger the mandatory minimum was part of the instant offense and therefore should not be relied upon to enhance his sentence. On November 25, 2002, Bullard pled guilty to count one under a Rule 11 agreement in which the government agreed to dismiss counts two and three and Bullard agreed to cooperate. The Rule 11 agreement provided for a sentence of ten years to life or, if the district court found that Bullard had a prior felony drug conviction, a sentence of twenty years to life. It also provided that the government would file a downward departure motion if Bullard provided substantial assistance.
9
The presentence report calculated Bullard's total offense level of 29 and a criminal history category II, yielding a sentencing range of 97 to 121 months. However, as a result of Bullard's prior felony drug conviction, the presentence report found that Bullard is subject to the statutory minimum of twenty years. At sentencing, Bullard again objected to the enhancement resulting in the statutory minimum. The district court denied the objection, and Bullard does not challenge this finding on appeal.
10
Prior to sentencing, the government filed a downward departure motion recommending a downward departure to 180 months. Bullard filed a sentencing memorandum, in which he urged the district court to consider his family background as well as studies regarding the effects of incarceration on children "in determining an appropriate sentence."
11
At sentencing, the district court appeared to indicate it could not consider the factors set forth in the sentencing memorandum; it granted the government's motion for downward departure and sentenced Bullard to 180 months, five years below the statutory mandatory minimum. Bullard appeals.
II. ANALYSIS
A. Jurisdiction
12
The parties disagree over whether the district court considered the information in the sentencing memorandum or found that it lacked the authority to consider such information. This disagreement raises a question of whether this court has jurisdiction to review Bullard's sentence. In United States v. Gregory, 932 F.2d 1167, 1169 (6th Cir.1991), this court considered the question of the extent to which a district court's downward departure may be appealed. In Gregory, the district court sentenced the defendant to 37 months, the lowest end of defendant's guideline range, which represented a five year-downward departure from the statutory minimum range as a result of defendant's substantial assistance. Gregory argued that the district court should have departed further based on her diminished capacity. We held that we lacked jurisdiction to consider the extent of the district court's downward departure, stating "this court should not accept jurisdiction over appeals based on factors which the appellant argues should have influenced the degree of a downward departure." Id., citing United States v. Pighetti, 898 F.2d 3, 4 (1st Cir.1990) ("[W]e have no jurisdiction to review the extent of a downward departure merely because the affected defendant is dissatisfied with the quantification of the district court's generosity."). We also made clear, however, that "[a]lthough we have no jurisdiction over appeals which argue that the district court failed to properly weigh certain factors in departing downward, a defendant may still appeal a sentence `imposed in violation of the law [or] ... imposed as a result of an incorrect application of the sentencing guidelines.'" Id. (quoting 18 U.S.C. § 3742(a)(1), (2)).
13
Here, Bullard is arguing that the district court should have considered the information in the sentencing memorandum in determining the extent of the downward departure. The district court stated at sentencing:
14
The Court has carefully read and considered the defense sentencing memorandum. And this is a case that falls within those prohibitions within the guidelines, themselves, clearly. If the Court were to attempt to, on a normal basis, address those issues, this Court would be reversed in the shake of a sheep's tail. I recognize that.
15
The district court's statement is ambiguous. The district court's statement could be interpreted to mean that the district court did in fact consider the sentencing memorandum. In that situation, review would be foreclosed under Gregory because the issue would be whether the district court gave the factors set forth in the sentencing memorandum sufficient weight. Alternatively, the district court's statement could be interpreted to mean that the district court did not consider the sentencing memorandum because it believed it lacked the authority to do so. In that situation, review is possible because the issue would be whether Bullard's sentence was imposed as a result of an improper application of the guidelines. Because there is an ambiguity, we will assume that we have jurisdiction to review Bullard's appeal.
B. Merits
16
The district court's determination that it lacked authority to depart downward is a matter of Guidelines interpretation that the Court reviews de novo. United States v. Thomas, 49 F.3d 253, 260 (6th Cir.1995); United States v. Adu, 82 F.3d 119, 124 (6th Cir.1996).
17
Bullard received a downward departure under 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. Section 5K.1.1 provides that "[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." Importantly, section 3553(e) gives a court limited authority to impose a sentence below a statutory minimum, providing in relevant part: "[u]pon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense." Indeed, section 5K1.1 is the only section that allows a downward departure from a statutorily required minimum sentence. See U.S.S.G. § 5K1.1, Application Note 1. All the other sections in part K address "other grounds for departure." U.S.S.G. §§ 5K2.0-5K2.23.
18
Our case law confirms the limited ability for downward departures when a statutory mandatory minimum is involved. In United States v. Snelling, 961 F.2d 93, 97 (6th Cir.1991), we held that "a departure [under section 3553(e)] must be based solely upon the `substantial assistance' rendered by the defendant." (emphasis added). Bullard, however, argues that Snelling applies only to the district court's decision to depart, not the extent of the departure. This argument lacks merit. In United States v. Winston, 198 F.3d 248, 1999 WL 993925, *3 (6th Cir. Oct. 20, 1999) (unpublished), we specifically stated that "[o]nly factors relating to a defendant's cooperation may influence the extent of a departure pursuant to § 3553(e)." (emphasis added). Other circuits addressing this issue have agreed with this conclusion. See, e.g., United States v. Chestna, 962 F.2d 103 (1st Cir.1992) (rejecting defendant's argument that "once the government moved for departure based on her substantial assistance ... it opened the door for the court to consider other factors, unrelated to assistance to the government"); United States v. Pearce, 191 F.3d 488, 493 (4th Cir.1999) (holding that "any factor considered by the district court on a § 5K1.1 motion must relate to the `nature, extent, and significance' of the defendant's assistance") (quoting U.S.S.G. § 5K1.1, comment); United States v. Thomas, 930 F.2d 526, 529 (7th Cir.1991) (holding that "only factors relating to a defendant's cooperation should influence the extent of a departure for providing assistance under § 3553(e)"), overruled on other grounds by United States v. Canoy, 38 F.3d 893, 903-07 (7th Cir.1994); United States v. Valente, 961 F.2d 133, 134-35 (9th Cir.1992) (rejecting defendant's argument that "once the court departed below the minimum mandatory sentence pursuant to the government's [substantial assistance] motion, it was free to depart even further downward based on Valente's `aberrant' behavior"); United States v. Campbell, 995 F.2d 173, 175 (10th Cir.1993) (holding that "a district court may depart below the minimum sentence set by Congress only to reflect substantial assistance by the defendant"); United States v. Aponte, 36 F.3d 1050 (11th Cir.1994) (holding that a reduction in sentence pursuant to § 3553(e) should reflect only the defendant's substantial assistance). Thus, the district court could not properly consider the information in the sentencing memorandum in determining whether to depart or the extent of the departure as such information does not relate to Bullard's assistance.
19
Moreover, the district court considered factors related to Bullard's assistance in determining the departure, noting that he met with government agents prior to being charged and agreed to cooperate, but fled for over a year before being formally charged. Bullard was eventually apprehended and the government again gave him the opportunity to cooperate, which he did. The government recommended a five-year downward departure, stating that if Bullard had not fled, he might have been able to offer more valuable information and receive a greater departure. Having reviewed the record, we agree with the district court that the government's departure recommendation was fair under the circumstances. While we are not unmindful of Bullard's family circumstances which reflect a lifestyle of drug use and drug trafficking by his parents and brother, these circumstances, however unfortunate, cannot be considered in determining a downward departure under § 3553(e).
III. CONCLUSION
20
For the reasons stated above, Bullard's sentence is AFFIRMED.
Notes:
*
The Honorable Avem Cohn, United States District Judge for the Eastern District of Michigan, sitting by designation
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278 F.3d 31
Emmett S. MULDOON, Plaintiff, Appellant,v.C.J. MULDOON & SONS, et al., Defendants, Appellees.
No. 01-1516.
No. 01-1845.
United States Court of Appeals, First Circuit.
Submitted September 30, 2001.
Decided January 28, 2002.
Emmett S. Muldoon on brief pro se.
Christopher G. Betke and Ryan, Coughlin & Betke on brief for appellees.
Before: TORRUELLA, Circuit Judge, STAHL, Senior Circuit Judge, and LYNCH, Circuit Judge.
Per Curiam.
1
Emmett S. Muldoon appeals from the district court's dismissal of his action for benefits under section 510 of the Employees Retirement Income Security Act (ERISA), 29 U.S.C. § 1140, as time-barred (No. 01-1516) and from the district court's denial of his subsequent motion to amend the judgment (No. 01-1845). The two appeals have previously been consolidated by order of this court.
2
Because Congress did not provide a statute of limitations in the ERISA statute for section 510 claims, federal courts must apply the limitations period of the state-law cause of action most analogous to the federal claim. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). Muldoon contends that the most analogous Massachusetts statute is M.G.L.A. c. 260, § 2, which states:
3
Actions of contract, other than those to recover for personal injuries, founded upon contracts or liabilities, express or implied, except actions limited by section one or actions upon judgments or decrees of courts of record of the United States or of this or of any other state of the United States, shall, except as otherwise provided, be commenced only within six years next after the cause of action accrues.
4
The district court determined that Muldoon's claim was more analogous to M.G.L.A. c. 260, § 2A, which is entitled "Tort, contract to recover for personal injuries, and replevin actions" and provides:
5
Except as otherwise provided, actions of tort, actions of contract to recover for personal injuries, and actions of replevin, shall be commenced only within three years next after the cause of action accrues.
6
Although we have not previously addressed the issue of the applicable statute of limitations in the context of a section 510 claim, several other circuits have, and they have determined that section 510 claims for benefits are most analogous to state law actions for wrongful termination or retaliatory discharge. See Sandberg v. KPMG Peat Marwick, 111 F.3d 331, 334-35 (2nd Cir.1997); McClure v. Zoecon, Inc., 936 F.2d 777, 778-79 (5th Cir.1991); Taylor v. Goodyear Tire and Rubber Co., 38 F.3d 1216, 1994 WL 573913 at *1 (6th Cir.1994) (unpublished); Teumer v. General Motors Corp., 34 F.3d 542, 549-50 (7th Cir.1994); Burrey v. Pacific Gas & Elec. Co., 159 F.3d 388, 397 (9th Cir.1998); Held v. Manufacturers Hanover Leasing Corp., 912 F.2d 1197, 1205 (10th Cir.1990); Musick v. Goodyear Tire & Rubber Co., Inc., 81 F.3d 136, 137-39 (11th Cir.1996). We agree with these courts' characterization of the section 510 claim for benefits. We specifically agree with the district court's determination that Muldoon's section 510 claim for benefits based upon his allegation of wrongful termination is most analogous to M.G.L.A. c. 260, § 2A. Because Muldoon's cause of action accrued in April 1993, the date on which he alleges he was wrongfully terminated, and he did not file his section 510 action in the district court until March 1999, his action was time-barred pursuant to M.G.L.A. c. 260, § 2A. The district court did not err in dismissing Muldoon's complaint on this basis.
7
In an effort to characterize his claim as sounding in general contract (and not to recover for personal injury), Muldoon additionally asserts that his amended complaint alleged a violation of section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185, as well as a section 510 claim, and that the LMRA may not be "preempted" by ERISA § 510. This argument lacks merit. Although the amended complaint makes reference to a collective bargaining agreement in its factual allegations, it contains no support for Muldoon's contention that he has asserted a breach of the collective bargaining agreement in support of a section 301 claim. In this context, Muldoon's legal argument that ERISA may not preempt the LMRA is a non-issue.
8
Finally, Muldoon's assertion that the district court abused its discretion by denying his request for oral argument on his claim also is unavailing. Because he had adequate opportunity to provide the district court with evidence supporting his position, and he did so, Muldoon has made no showing of prejudice. See Bratt v. International Business Machines Corp., 785 F.2d 352, 363 (1st Cir.1986).
9
The district court's judgment is AFFIRMED.
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159 F.3d 1376
333 U.S.App.D.C. 63, 22 Employee Benefits Cas. 2492,Pens. Plan Guide (CCH) P 23949H
SYSTEMS COUNCIL EM-3, International Brotherhood ofElectrical Workers, AFL-CIO, et al., Appellants,v.AT&T CORPORATION, et al., Appellees,
No. 97-7155.
United States Court of Appeals,District of Columbia Circuit.
Argued Sept. 24, 1998.Decided Nov. 24, 1998.Rehearing and Suggestion for Rehearing En Banc Denied Jan. 21, 1999.*
Appeal from the United States District Court for the District of Columbia (No. 96cv01117).
Kent Cprek argued the cause for appellants. With him on the briefs were Richard B. Sigmond and Thomas H. Kohn.
Joseph R. Guerra argued the cause for appellees. With him on the brief were Paul J. Zidlicky, Laura A. Kaster, T. Jay Thompson, Robert N. Eccles, Peter O. Shinevar and Karen M. Wahle.
Michael S. Horne, John M. Vine and Caroline M. Brown were on the brief for amicus curiae Erisa Industry Committee.
Before: EDWARDS, Chief Judge, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Chief Judge EDWARDS.
EDWARDS, Chief Judge:
1
In 1995, pursuant to a corporate reorganization, AT&T Corporation ("AT&T") transferred its equipment business to Lucent Technologies, Inc. ("Lucent"). AT&T and Lucent subsequently entered into arrangements to separate their businesses; one such arrangement was embodied in an Employee Benefits Agreement ("EBA"). Under the EBA, AT&T amended its pension and welfare plans to divide the assets and liabilities of AT&T's defined plans and to provide for the continuation of existing defined benefits for both AT&T and Lucent retirees and employees. The appellants in this case--beneficiaries of the plans and their unions--seek to overturn AT&T's amendments of the pension and welfare plans. In broad terms, appellants contend that AT&T rigged the allocation procedures so that by the time Lucent becomes responsible for the retirement benefits owed to its former AT&T employees, it might not have enough money to provide for them. Appellants claim that AT&T's actions violated the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001-1461, and also resulted in a breach of contract.
2
We agree with the District Court that AT&T is not subject to ERISA's strict fiduciary standards, because it was not acting in a fiduciary capacity when it allocated pension and welfare plan assets and liabilities between AT&T and Lucent. We also agree that appellants have failed to state a claim under § 208 of ERISA, which protects the beneficiaries of spun-off plans. See 29 U.S.C. § 1058 (1994). Finally, it is clear that appellants' contract claims are not ripe for review. Accordingly, we affirm.
I. BACKGROUND
3
The facts of this case have been comprehensively detailed in an excellent opinion by the District Court, see Systems Council EM3 v. AT&T Corp., 972 F.Supp. 21, 24-26 (D.D.C.1997), and bear no repetition here. Therefore, this Background section is quite brief and will serve only to provide a context for our analysis.
4
In 1995, AT&T decided to reorganize its corporate structure by spinning off operations into separate, publicly-traded businesses, one of which was Lucent. This case primarily concerns the EBA between AT&T and Lucent, which governs the allocation of employee pension and welfare plan assets and liabilities between AT&T and Lucent. See id. at 25-26. The EBA, which was signed on February 1, 1996, requires AT&T to calculate, for each AT&T and Lucent plan, an amount based on the funding policy historically used by AT&T to ensure adequate funding of employee benefit plans, employing the same actuarial assumptions used to determine minimum funding under ERISA and the Internal Revenue Code. Once the calculation is made, appropriate amounts are allocated to each fund. The EBA then allocates any residual (surplus) plan assets equally between AT&T and Lucent. See id. at 26.
5
Appellants filed the instant lawsuit on May 17, 1996, before AT&T had actually allocated any assets to Lucent. Although they had no data to support their claims, appellants' complaint in District Court was premised on the assumption that the EBA's prescribed methodology for the asset distribution unjustly favored AT&T. Alleging that AT&T acted in a fiduciary capacity with respect to the plan assets, appellants claimed that AT&T unlawfully favored itself in the allocation of those assets, in violation of the ERISA provisions that govern fiduciary responsibilities. See 29 U.S.C. §§ 1104, 1106(b) (1994 & Supp. II 1996). Appellants further alleged four separate violations of § 208, ERISA's non-fiduciary provision for the transfer of pension plan assets in a spin-off situation. First, appellants asserted that § 208 requires that the EBA provide for the division of any residual pension plan assets on a pro rata basis, rather than equally between the two entities. Second, appellants contended that the EBA's actuarial assumptions are not "reasonable," as required by the applicable Treasury regulations. Third, appellants protested that the EBA does not guarantee appellants the benefit of any market earnings on the plan assets during the interim period between AT&T's divestment of Lucent stock and the actual segregation of AT&T's assets. Finally, appellants alleged that the EBA does not account for possible future adverse business experiences that Lucent may suffer, rendering the company unable to meet its employee benefit obligations. Appellants also claimed that AT&T's signing of the EBA amounts to a breach of AT&T's agreement to provide pension and welfare plan benefits to its employees, because the EBA assigns to Lucent the obligation to provide those benefits.
6
The District Court granted AT&T's motion to dismiss. Emphasizing that "[r]hetorical or emotional arguments voicing fears about the future ... simply cannot substitute for rigorous analysis of the pertinent statutory provisions," the District Court held that appellants had failed to state any claim upon which relief could be granted. See Systems Council, 972 F.Supp. at 27. This appeal followed.
II. ANALYSIS
A. Standard of Review
7
We review de novo the District Court's dismissal of appellants' claims under Rule 12(b)(6). See Taylor v. FDIC, 132 F.3d 753, 761 (D.C.Cir.1997). "Dismissal under Rule 12(b)(6) is proper when, taking the material allegations of the complaint as admitted and construing them in plaintiffs' favor, the court finds that the plaintiffs have failed to allege all the material elements of their cause of action." Id. (citations omitted).
B. Union Standing
8
We need not decide whether the union appellants have standing to bring these ERISA claims. See Systems Council, 972 F.Supp. at 27-28 (holding that unions do not have standing to bring civil actions under ERISA). It is undisputed that the named plan beneficiaries have standing, see 29 U.S.C. § 1132(a)(1) (1994), and we may therefore reach the merits of their claims regardless of whether the unions have standing. Cf. Craig v. Boren, 429 U.S. 190, 19293, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (deciding case on merits where one appellant had standing but the other did not).
C. Fiduciary Claims
9
ERISA § 3(21)(A) defines fiduciary, in relevant part, as follows:
10
[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.
11
29 U.S.C. § 1002(21)(A) (1994). This definition applies to the entire subchapter, including the ERISA provisions on which appellants' claims are based. See 29 U.S.C. § 1002.
12
It cannot be seriously disputed that, under ERISA, AT&T, as an employer and a plan administrator, is subject to ERISA's fiduciary standards only when it acts in a fiduciary capacity. See, e.g., Maniace v. Commerce Bank, 40 F.3d 264, 267 (8th Cir.1994). The issue in this case is whether AT&T acted in a fiduciary capacity when it amended its pension and welfare plans and allocated the assets and liabilities of those plans between AT&T and Lucent. The District Court found, and we agree, that appellants have failed to state a legally cognizable claim under ERISA's fiduciary provisions, because there has been no showing that AT&T acted in a fiduciary capacity in taking the actions at issue in this case.
13
In Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78, 115 S.Ct. 1223, 131 L.Ed.2d 94 (1995), the Court held that when employers "adopt, modify, or terminate welfare plans," they are not acting in a fiduciary capacity. The Court subsequently expanded the rule of Curtiss-Wright in Lockheed Corp. v. Spink, 517 U.S. 882, 116 S.Ct. 1783, 135 L.Ed.2d 153 (1996). In Lockheed, the employer, Lockheed, amended its pension plan to provide financial incentives for employees to retire early and release all employment-related claims against the company. These increased pension benefits were to be paid out of the plan's surplus assets. See id. at 885, 116 S.Ct. 1783. The employees brought suit, alleging that Lockheed had violated its fiduciary duties under ERISA because it was using plan assets--the surplus--to purchase a benefit for itself--early retirement and the release of claims. See id. at 886, 116 S.Ct. 1783. The Court foreclosed the employees' fiduciary claims, however, holding that "the act of amending a pension plan does not trigger ERISA's fiduciary provisions." Id. at 891, 116 S.Ct. 1783. The Court noted that when employers amend or modify any type of employee benefit plan, even pension plans, "they do not act as fiduciaries but [rather] are analogous to the settlors of a trust." Id. at 890, 116 S.Ct. 1783 (citation omitted). In other words, changing the design of a trust does not involve the kind of discretionary administration that typically triggers fiduciary responsibilities. See Sengpiel v. B.F. Goodrich Co., 156 F.3d 660, 666-67 (6th Cir.1998). This rule, according to the Court, "is rooted in the text of [ § 3(21)(A) ]." Lockheed, 517 U.S. at 890, 116 S.Ct. 1783. Although appellants urge us to consider the extensive common law of trusts in determining whether AT&T acted as a settlor or as a fiduciary when it amended its pension plans, the Lockheed Court's interpretation of § 3(21)(A) is dispositive.
14
Appellants further argue that Lockheed stands only for the unremarkable proposition that the power to name the beneficiaries and define the benefits and liabilities of a trust is a settlor, not a fiduciary, power. We disagree. The plan design at issue in Lockheed involved far more than simply defining the trust; it involved the actual allocation of a portion of the trust corpus in a manner that presumably benefitted Lockheed. Indeed, it was the contention of the employees in Lockheed that the amendments to the pension plan "constituted a use of Plan assets to 'purchase' a significant benefit for Lockheed." Id. at 886, 116 S.Ct. 1783 (quoting Spink v. Lockheed Corp., 60 F.3d 616, 624 (9th Cir.1995)) (emphasis added). Thus, contrary to appellants' narrow reading of Lockheed, the District Court was correct in stating that the case clarifies the "distinction between those actions creating, altering or terminating a trust, which are deemed settlor functions, and those actions managing and administering the investment and use of the trust assets, which are deemed fiduciary functions." Systems Council, 972 F.Supp. at 30.
15
Under Lockheed, it is clear that AT&T was not acting as a fiduciary when it amended its pension and welfare plans under the EBA. Appellants' complaint in this case is quite similar to that of the employees in Lockheed: the employer has allocated the assets of its pension and welfare plans in a manner that allegedly benefits the employer to the employees' detriment. While such an allocation might in some circumstances violate certain ERISA provisions--such as § 208, discussed below--under Lockheed, it does not implicate the statute's fiduciary provisions.
D. Section 208 Claims
16
Congress provided for the protection of spun-off employees in § 208, which mandates that plan assets may not be transferred to another plan "unless each participant in the plan would (if the plan then terminated) receive a benefit immediately after the ... transfer which is equal to or greater than the benefit he would have been entitled to receive immediately before the ... transfer (if the plan had then terminated)." 29 U.S.C. § 1058. Appellants have alleged four distinct violations of § 208.
1. Residual Assets
17
Section 208 essentially requires the employer to contemplate a hypothetical plan termination, take a "snapshot" of the benefits each participant of the plan would receive in the event of a termination, and then provide the aggregate present value of these benefits to the spun-off plan. Section 4044 governs the allocation of any residual plan assets in the event of actual termination of a plan. See 29 U.S.C. § 1344(d)(3) (1994).
18
Appellants point out that, under § 4044 and applicable regulations, if the pension plans at issue had actually terminated immediately prior to the spin-off, appellants would have been entitled to a pro rata share of any residual assets. See 29 C.F.R. § 2618.32(a) (1995). The EBA, on the other hand, provides for the equal division--between AT&T and Lucent--of any residual assets. See Systems Council, 972 F.Supp. at 26. Appellants claim that, in giving Lucent "only" an equal share of any residual assets, the EBA violates § 208 because the Lucent plans are entitled to a pro rata share of such assets under § 4044.
19
Appellants' position finds no support in the case law. Section 208 requires only that benefits payable upon hypothetical termination be no less after than before the spin-off, and creates no entitlement to residual assets that might be available upon actual termination of a plan. See, e.g., Brillinger v. General Elec. Co., 130 F.3d 61 (2d Cir.1997), petition for cert. filed, 66 U.S.L.W. 3758 (U.S. May 13, 1998) (No. 97-1834); Malia v. General Elec. Co., 23 F.3d 828 (3d Cir.1994). The District Court cited with approval the Third Circuit's opinion in Malia, which, after examining § 4044 and the accompanying regulations, concluded that, because both explicitly distinguished "benefits" from "assets," appellants were wrong to equate the two terms for the purposes of § 208. See Malia, 23 F.3d at 832 ("[The] language of [ § 4044] demonstrates clearly that 'benefits' are elements that are conceptualized and treated differently in a plan termination than are the 'assets' of that plan."); Brillinger, 130 F.3d at 63 ("Since [ § 208] deals with the level of benefits, the reasonable interpretation of that section is that it refers to those portions of [ § 4044] regarding the level of benefits, rather than the part about distributing residual assets."). We join these courts in holding that § 208, by its plain language, ensures only that plan beneficiaries receive the same level of benefits after the spin-off that they would have received prior to the spin-off, and does not create an entitlement to the residual assets that might be available upon actual termination of the plan. See Brillinger, 130 F.3d at 63 ("The fact that upon actual liquidation a participant may be entitled to receive some distribution of residual assets does not change the amount to be received as a 'benefit' [under § 208].").
20
We also note that the plans at issue in this case are defined benefit plans, as opposed to defined contribution plans. Under a defined contribution plan, each participant has an individual account; the level of benefits that he or she receives depends upon the performance of the assets retained in that individual account. See Von Aulock v. Smith, 720 F.2d 176, 177-78 (D.C.Cir.1983). In contrast, under a defined benefit plan, the employee is entitled to a fixed period payment upon retirement regardless of the performance of the underlying assets. See id. at 178. If the assets do not perform well, the employer must make up the difference. If they perform better than expected, however, the employees still may claim no more than the promised pension benefits under the plan. See Johnson v. Georgia-Pacific Corp., 19 F.3d 1184, 1186 (7th Cir.1994). Thus, "[p]articipants in a defined benefit plan are not entitled to increases in benefits because successful investment causes assets to grow to be greater than liabilities. There is nothing in [ERISA] to the effect that such growth in assets will cause an increase in benefits payable to participants at the time of a [spin-off]." Brillinger, 130 F.3d at 64. In short, AT&T must transfer to Lucent only those assets that are necessary to fulfill the new plans' defined benefit obligations.
2. Actuarial Assumptions
21
In order to determine the level of funding necessary to provide for benefits pursuant to § 208, employers use actuarial assumptions. The applicable Treasury regulation mandates that these assumptions be "reasonable," and provides that "[t]he assumptions used by the Pension Benefit Guaranty Corporation [PBGC] ... are deemed reasonable for this purpose." 26 C.F.R. § 1.414(l)-1(b)(5)(ii) (1998). As the District Court correctly observed, this regulation does not mandate the use of the PBGC assumptions, but rather cites them as a "safe harbor." Systems Council, 972 F.Supp. at 35; cf. Securities Indus. Ass'n v. Board of Governors, 807 F.2d 1052, 1064 (D.C.Cir.1986) (noncompliance with optional "safe harbor" securities regulation does not foreclose compliance with the statute).
22
The EBA does not employ the PBGC assumptions. Rather, it provides that AT&T must use the actuarial assumptions that it currently uses to determine the minimum funding requirements for its plans under ERISA. See Systems Council, 972 F.Supp. at 26. By law, these assumptions are required to be reasonable. See 26 U.S.C. § 412(c)(3)(A)(i) (1994). Before the District Court, appellants complained that "[t]here is no indication" that the assumptions provided for in the EBA are reasonable. Complaint p 43(d), reprinted in Joint Appendix ("J.A.") 1041. On appeal, appellants argue that, in order to comply with the reasonableness requirement, an employer must either use the "standardized PBGC assumptions" or "obtain an actual commercial annuity quote at the relevant calculation date." Brief of Appellants at 30; see also Complaint p 40, reprinted in J.A. 1039.
23
The District Court correctly dismissed appellants' claims. See Systems Council, 972 F.Supp. at 35-36. For one thing, appellants cite no case or Treasury regulation supporting the propositions they advance. Moreover, considering the reasonableness of an actuarial assumption in a different context, the Supreme Court has noted that the "nature of the beast" is such that there may be several "equally correct approaches" to actuarial practice. Concrete Pipe & Prods., Inc. v. Construction Laborers Pension Trust, 508 U.S. 602, 635-36, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (citation and internal quotation marks omitted). Appellants' complaint never explains why they think the EBA's prescribed approach is unreasonable. See Complaint pp 40-43, reprinted in J.A. 1039-41.
24
The salient point here is that, because they filed their lawsuit before they had any idea how much of AT&T's plan assets would be transferred to Lucent, appellants were in no position even to claim that the EBA's actuarial assumptions were unreasonable. See Systems Council, 972 F.Supp. at 36 n. 24 (noting that without any knowledge of the specifics of the proposed allocation, appellants could not allege unreasonableness without risking Rule 11 sanctions). Subsequent to the commencement of this litigation, AT&T actually allocated its assets to Lucent and the specific details of the allocation are now publicly available. AT&T and Lucent employees now know how much money was transferred to the Lucent plans, how many employees were transferred to Lucent, and the demographics of those employees. Knowledge of each of these factors is crucial in determining whether the actuarial assumptions used in the allocation were reasonable. If plan beneficiaries now have a good faith basis for challenging AT&T's actuarial assumptions, they may consider filing suit under § 208. However, prior to the actual allocation, when they knew only that the EBA did not provide for the use of the PBGC assumptions or a commercial annuity quote, appellants were in no position to state a viable claim under § 208.
25
3. Asset Valuation During the "Interim" Period
26
Under the EBA, Lucent was to remain under the control of AT&T until all of the common stock of Lucent owned by AT&T was distributed to individual AT&T stockholders. See Systems Council, 972 F.Supp. at 25-26. Because the actual segregation of AT&T's assets did not occur on the exact date that the Lucent stock was distributed to the individual stockholders, the EBA provided for an adjustment "as of the date of the actual segregation by AT&T to the extent necessary or appropriate to reasonably and appropriately reflect additional" gains made by the pension assets during the interim period between the stock distribution and the actual segregation. EBA § 3.2(b)(iii), reprinted in J.A.2027. Appellants allege that this provision does not guarantee them the "benefit of actual market earnings" on the assets during the interim period. Brief of Appellants at 24.
27
Because the plans at issue are defined benefit plans, however, the participants are not entitled under ERISA to the benefit of any interim increase in the value of the assets. As discussed above, participants in a defined benefit plan are entitled only to the level of benefits promised them under the plan. Thus, the District Court was correct in holding that appellants "have no ownership interest in the assets of the plan, and the amount transferred must only be sufficient to provide 'benefit equivalence' after the transfer." Systems Council, 972 F.Supp. at 37 (quoting John Blair Communications, Inc. v. Telemundo Group, Inc., 26 F.3d 360, 367 (2d Cir.1994)). This conclusion is in accord with decisions from other circuits that have considered the issue. See, e.g., John Blair, 26 F.3d at 366-67; Bigger v. American Commercial Lines, Inc., 862 F.2d 1341, 1348 (8th Cir.1988). Indeed, under a defined benefit plan, it is virtually irrelevant whether the interim gains are transferred to Lucent; as the Second Circuit explained in John Blair, "it would matter little to the individual [participants] whether the plan lost out on [the interim gains] as long as those members were guaranteed their promised benefits at retirement." John Blair, 26 F.3d at 366.
4. Future Benefits
28
Appellants' final claim under § 208 merits little attention. Appellants contend that the EBA violates ERISA because future adverse business experiences may render Lucent unable to fund its plans as well as AT&T has been funding them. But by its plain language, § 208 mandates transfer of assets sufficient to provide, "immediately after" the spin-off, the level of benefits each participant would receive "immediately before" the spin-off. 29 U.S.C. § 1058. Nothing in ERISA compels the original employer to fund the non-vested, future benefits of spun-off employees. See Bigger, 862 F.2d at 1345 ("A sponsor of an original defined benefit plan ... has no duty to guarantee that the sponsor of a spunoff plan will pay spunoff employee benefits earned in the future."). Accordingly, the District Court properly dismissed this claim. See Systems Council, 972 F.Supp. at 38.
E. Contract Claims
29
Appellants also raised common law contract claims. Specifically, they allege that they relied upon AT&T's promises to provide them pension and welfare plan benefits, and that Lucent might not be able to make good on those promises. The District Court properly dismissed these claims as unripe. See Systems Council, 972 F.Supp. at 38-40.
30
First, appellants contend that the EBA absolves AT&T of liability "in the event that Lucent is unable to provide [the welfare] benefits now or in the future." Complaint p 58, reprinted in J.A. 1046. This claim is hardly fit for review, however, given that no participant in the welfare plan has alleged that Lucent has been unwilling or unable to provide the benefits it is obligated to provide. The District Court correctly determined that a declaratory judgment stating the extent of AT&T's liability in the event of a Lucent breach would violate Article III's requirement that a current case or controversy between the parties exist. See Systems Council, 972 F.Supp. at 39; Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 81, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); United Steelworkers of America, Local 2116 v. Cyclops Corp., 860 F.2d 189, 194-96 (6th Cir.1988) (holding, in a virtually identical situation, that claims of pension plan participants were unripe).
31
Second, appellants rely on a misguided application of a fundamental contract law doctrine. They claim that their contract claims are ripe because AT&T, in assigning its welfare plan obligations to Lucent, "clearly has disclaimed and repudiated" those obligations. Brief of Appellants at 38. It is true that, if a performing party unequivocally signifies its intent to breach a contract, the other party may seek damages immediately under the doctrine of anticipatory repudiation. See Jankins v. TDC Management Corp., 21 F.3d 436, 443 (D.C.Cir.1994). However, AT&T has not repudiated anything; it has simply assigned its welfare plan obligations to Lucent. Absent a provision in the plans prohibiting such assignment, the action does not constitute an anticipatory breach.
III. CONCLUSION
32
For the reasons stated above, we affirm the judgment of the District Court.
33
So ordered.
*
Circuit Judges Silberman, Henderson and Garland did not participate in this matter
| {
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/30/2018 08:12 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RUSSELL
Cite as 299 Neb. 483
State of Nebraska, appellee, v.
Patrick R. Russell, appellant.
___ N.W.2d ___
Filed March 30, 2018. No. S-17-197.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
2. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
3. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
4. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
5. ____. Where a defendant was under the age of 18 when he or she com-
mitted a Class IA felony, Neb. Rev. Stat. § 28-105.02 (Reissue 2016)
dictates that the sentencing judge must also consider mitigating factors,
such as the defendant’s (1) age at the time of the offense, (2) impetuos-
ity, (3) family and community environment, and (4) ability to appreciate
risks and consequences of the conduct, as well as (5) the outcome of a
comprehensive mental health evaluation of the defendant conducted by
an adolescent mental health professional licensed in Nebraska.
Appeal from the District Court for Douglas County: Thomas
A. Otepka, Judge. Affirmed.
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299 Nebraska R eports
STATE v. RUSSELL
Cite as 299 Neb. 483
Thomas C. Riley, Douglas County Public Defender, and
Annie O. Hayden for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
JJ., and Pirtle and Bishop, Judges.
Cassel, J.
INTRODUCTION
In 1974, a court sentenced Patrick R. Russell to life impris-
onment for a murder he committed at age 17. Following deci-
sions in Miller v. Alabama1 and State v. Mantich,2 Russell
sought postconviction relief in the form of a new sentencing
hearing. The court granted relief and resentenced Russell to
110 to 126 years’ imprisonment, making him eligible for
parole at age 72. Because the sentence does not constitute an
abuse of discretion, we affirm.
BACKGROUND
Crime and Direct A ppeal
The facts and circumstances surrounding Russell’s crime
are set out in greater detail in our decision resolving his direct
appeal.3 On November 10, 1973, when Russell was 17 years
old, he engaged in sexual activities with 8-year-old Joseph
Edmonds. After Edmonds allegedly called Russell’s grand-
mother derogatory names, Russell used a pocketknife to cut a
length of telephone cord. He told Edmonds to close his eyes,
slipped the cord around Edmonds’ neck, and pulled it tight.
Edmonds died due to the strangulation.
1
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407
(2012).
2
State v. Mantich, 287 Neb. 320, 842 N.W.2d 716 (2014).
3
State v. Russell, 194 Neb. 64, 230 N.W.2d 196 (1975).
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STATE v. RUSSELL
Cite as 299 Neb. 483
Our prior opinion also discussed Russell’s mental condi-
tion. At age 14, he was hospitalized for psychiatric treatment
for approximately 1 month. Russell then resided at the Omaha
Home for Boys for approximately 2 years. He returned to live
with his mother in July 1973, and he was soon charged with
three counts of assault and battery related to sexual attacks on
young boys ranging from 4 to 8 years of age.
The district court convicted Russell of murder in the first
degree and imposed a sentence of life imprisonment. We
affirmed the court’s judgment.4
Postconviction and R esentencing
Following decisions in Miller 5 and Mantich,6 Russell sought
postconviction relief. He asked the district court to vacate and
set aside his sentence and to hold a new sentencing hearing.
The district court granted the requested relief.
The district court received evidence at a mitigation hearing.
It received the deposition of an adolescent neuropsychologist
who discussed newer revelations in science concerning the
development of the adolescent brain. It also received docu-
ments regarding Russell’s misconduct reports, achievements
while incarcerated, and reclassification forms used by the peni-
tentiary to determine placement.
The district court heard live testimony from a witness.
Kirk A.B. Newring, Ph.D., a psychologist, testified that stud-
ies show the brains of adolescents are not fully formed. He
explained that the prefrontal cortex—which allows for delib-
eration, anticipation of future outcomes, assessment of risk,
and impact—seems to be more fully developed around age
25. The lack of prefrontal cortex development is most demon-
stratively impaired in “hot logic situations where there’s emo-
tional arousal.” Newring testified that Russell reported a strong
4
Id.
5
Miller v. Alabama, supra note 1.
6
State v. Mantich, supra note 2.
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STATE v. RUSSELL
Cite as 299 Neb. 483
attachment to his grandmother as the only relative who had
a parenting-type relationship toward him. Newring gathered
from his talks with Russell that Russell admitted to the crime
to appease the parole board but was now saying that he did
not do it. Russell explained that his attorney performed inad-
equately and that Russell was innocent.
Newring testified that with regard to classification, since
2011, Russell had scores that would allow him to be at a com-
munity corrections center if he were not serving a life sentence.
In other words, Russell “has the institutional behavior and his-
tory that would allow him to be placed at work release,” but
instead, Russell is kept in total confinement due to the nature
of his sentence. The presentence report (PSR) shows that dur-
ing many annual custody reviews from at least 1989 to 2000,
no change was recommended in Russell’s classification due
to his refusal to take part in a psychological evaluation. He
submitted to a psychological evaluation in 2002. That evalu-
ation recommended that Russell complete all three levels of
both “GOLF” (for mental health) and “SATOP” (for substance
abuse) programming prior to being considered for a cus-
tody promotion. In 2002 through 2005, his classification was
not changed, because the mental health recommendation was
not favorable.
Newring assessed Russell at a low risk for future acts of
violence. The risk factors were that Russell had a convic-
tion of violence and a personality disorder. Newring assigned
Russell a diagnosis of “Other Personality Disorder with Mixed
Schizoid and Schizotypal Personality features” to “encapsulate
that he’s a little bit asocial” and that “his presentation and
perceptions are a little bit odd or eccentric.” Newring testi-
fied that Russell described a feasible and achievable release
plan and recognized that he would need to work through the
transition process of the Department of Correctional Services.
Newring did not believe that Russell had any meaningful fam-
ily support in the community. Newring explained that Russell
was employable, did not have a major mental illness, had a
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STATE v. RUSSELL
Cite as 299 Neb. 483
good work history, handled stress fairly well within the insti-
tution, and was cognizant of a need for supportive transition,
all of which suggested a low risk for future acts of violence.
Russell obtained a low score on a test that is a predictor of
future violence.
The record showed steps taken by Russell to improve him-
self while incarcerated. In 1981, Russell obtained a diploma
through the GED program and earned credentials of minis-
try in the “Church of the God Within.” The next year, the
church awarded him an honorary doctor of divinity. The record
shows that Russell completed other Bible studies. In 1988, he
obtained a certificate in welding. Performance reviews show
that Russell had an “exceptional” work history in prison.
Between 1991 and 2016, Russell had 26 misconduct reports,
with the most recent occurring in 2010.
According to the PSR, “Russell remains in a Pre-
Contemplative Stage of Change with regard to addressing
his criminogenic needs.” Testing tools found Russell to be
at a very high risk to reoffend. The report stated that Russell
appeared to be unwilling to accept he has mental health prob-
lems and that his personality disorder would likely impact
efforts to address his criminogenic needs.
Although Russell does not see himself as having a mental
illness, his history suggests otherwise. On two occasions in
1969, Russell was hospitalized at a psychiatric center after
exhibiting violence toward family members. Russell was hos-
pitalized in 1970 with an admission diagnosis of adolescent
schizophrenia. After an evaluation, a doctor felt that Russell
“represented borderline retardation and adolescent adjust-
ment reaction.” Russell acknowledged that as a juvenile, he
was seen by a psychiatrist, and that he was diagnosed with
schizophrenia in 1972. In a Nebraska Penal and Correctional
Complex progress report from March 1975, the author strongly
recommended that Russell be placed in a mental institution. In
a report the following year, the counselor stated that Russell
should be under psychiatric care.
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STATE v. RUSSELL
Cite as 299 Neb. 483
Upon admission to a psychiatric hospital in 1978, Russell
indicated that he had no mental disorders. However, staff per-
ceived him as “having a severe mental disorder, and the main
feature of which is paranoia.” An admission note and mental
status examination report from that year stated that Russell, as
an adolescent, carried a knife or a section of pipe on his per-
son “for his own protection or in case someone bumped into
him or in case he didn’t like someone’s face.” Russell reported
that he had “attacked people from behind and struck them
with the pipe because he didn’t like their looks or because
they had accident[al]ly bumped into him on the street.” In this
report, Russell offered strong racial opinions and indicated
that he could get along with African Americans, “provided
that they do not talk to him or look at him the wrong way.”
The report showed a diagnostic impression of “Schizophrenia,
Paranoid Type.”
The PSR shed light on crimes committed by Russell prior
to the murder. In December 1972, a 7-year-old boy reported
that Russell inserted a pencil in the victim’s rectum, made the
victim perform oral sex on Russell, and pulled on the victim’s
penis and testicles. When interviewed by the police, Russell
stated that among other actions against the victim, he “tied
a cord around [the victim’s] neck, and threatened to hang
him over the side of the porch railing from the third floor for
messing with the TV.” Russell told the officer that the victim
harassed him, which made Russell angry, and that Russell
was unable to control his temper. When an officer spoke with
Russell’s mother, she informed him that Russell had been stay-
ing at the Omaha Home for Boys because he was “hard to han-
dle,” but that he was home on holiday leave. She also said that
prior to his admittance to the Omaha Home for Boys, Russell
was receiving care from a doctor for “a [m]ental problem.”
Russell told an officer that if he had been “taking medicine for
his condition,” he “possibly would not have done what he did”
to the victim. In November 1973, Russell was charged with
stealing a vehicle.
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STATE v. RUSSELL
Cite as 299 Neb. 483
The PSR stated that Russell appeared to have a deep-seated
need for power and control and that interpersonal relationships
were problematic for Russell. It further stated that Russell’s
level of suspicion toward authority figures “does not bode well
for his prospects of succeeding in community-based supervi-
sion.” Russell showed “very little motivation to participate
actively and meaningfully in a correctional plan.” According
to the report, Russell “appears to be dreaming of living under
a bridge in a warm climate.”
In February 2017, the court resentenced Russell. The court
stated that it had spent days “going through everything” in
preparation for the sentencing. The court recounted that it had
reviewed the entirety of the PSR and opinions from this court
as well as Miller.7 The court further stated that it considered
Russell’s age, mentality, education and experience, social and
cultural background, past record of criminal or law-abiding
conduct, motivation for the offense, nature of the offense, and
amount of violence involved in the commission of the crime.
In addition, the court weighed mitigating factors under Neb.
Rev. Stat. § 28-105.02(2) (Reissue 2016). The court reviewed
this court’s opinion in Russell’s direct appeal8 and considered
the evidence at the mitigation hearing.
The district court disagreed with Newring that Russell
was impulsive. The court observed that on the same page of
Newring’s report that Newring said Russell was impulsive,
Newring wrote that Russell was now contending he did not
commit the murder. The court noted that on a number of occa-
sions in the PSR, it was reported that Russell denied and mini-
mized responsibility for his actions and felt he had the right
to defend his grandmother’s name. The court recalled reading
that Russell had also blamed his attorney for not properly rep-
resenting him.
7
Miller v. Alabama, supra note 1.
8
State v. Russell, supra note 3.
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STATE v. RUSSELL
Cite as 299 Neb. 483
The district court recognized the importance of consider-
ing mitigating factors before sentencing a juvenile offender.
It stated:
[T]he State doesn’t challenge the vast body of neurosci-
entific and developmental science in adolescents that have
implications for the treatment of juveniles in the justice
system, and ultimately led to Miller [v.] Alabama. Before
Miller [v.] Alabama, in 2012, a murder conviction meant
a life sentence, regardless of the age of the actor. Since
Miller, if the actor was under 18, the Court must con-
sider mitigating factors before imposing a life sentence
for murder.
. . . We are here today because of a change in the law
that applies to cases like this across the country. Miller
[v.] Alabama requires the courts to — across the country
at the state level to consider mitigating factors before
sentencing a person who was under 18 at the time of
the murder.
And I’ve mentioned the change in the law that
our legislature made because of Miller [v.] Alabama,
[§] 28-105.02, and all of the nonexhaustive list of mitigat-
ing factors, which the Court considered.
In attempting to fashion a fair and appropriate sentence
— resentence, excuse me, based on the law and the evi-
dence, the Court does so within the context of the facts of
this case. All sentences are driven in part by the particu-
lar facts unique to them, and I mentioned this earlier. So
it’s this case, these facts, that the Court considers.
The legislature has set the minimum sentence in these
kinds of cases at 40 years. And it has set the maximum
sentence at life. And where this case falls in that spectrum
is ultimately left to the Court to determine.
The district court recognized that it must “also consider a
sentence that will not depreciate the seriousness of the crime
and serve to protect society.” The court resentenced Russell to
110 to 126 years in prison, with credit for 15,789 days served.
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STATE v. RUSSELL
Cite as 299 Neb. 483
Thus, the court stated that Russell would be eligible for parole
after serving 55 years and, if he did not lose any good time,
would be discharged after serving 63 years.
Russell timely appeals.
ASSIGNMENT OF ERROR
Russell assigns that the district court abused its discretion by
imposing an excessive sentence.
STANDARD OF REVIEW
[1,2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.9 A judicial abuse of discretion exists when the rea-
sons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just
results in matters submitted for disposition.10
ANALYSIS
We have recently decided a number of appeals involving
juvenile offenders convicted of first degree murder who were
sentenced to life imprisonment, who were subsequently resen-
tenced in response to Miller, and who then appealed that sen-
tence.11 This is another such appeal. Our prior cases set forth
the legal background leading to the resentencing of juvenile
offenders, and we do not repeat it here.
Russell argues that his sentence of 110 to 126 years’ impris-
onment is excessive. He does not suggest that the court imposed
9
State v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017), cert. denied ___
U.S. ___, 138 S. Ct. 656, 199 L. Ed. 2d 549 (2018).
10
Id.
11
See, State v. Jones, supra note 9; State v. Jackson, 297 Neb. 22, 899
N.W.2d 215 (2017); State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017),
cert. denied ___ U.S. ___, 138 S. Ct. 165, 199 L. Ed. 2d 98; State v.
Garza, 295 Neb. 434, 888 N.W.2d 526 (2016), cert. denied ___ U.S. ___,
138 S. Ct. 83, 199 L. Ed. 2d 54 (2017); State v. Mantich, 295 Neb. 407,
888 N.W.2d 376 (2016), cert. denied ___ U.S. ___, 138 S. Ct. 128, 199 L.
Ed. 2d 78 (2017).
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a sentence outside the statutory limits; instead, he contends
that the court abused its discretion in imposing the sentence.
We disagree.
[3-5] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence
to be imposed.12 Relevant factors customarily considered and
applied are the defendant’s (1) age, (2) mentality, (3) education
and experience, (4) social and cultural background, (5) past
criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense
and (8) the amount of violence involved in the commission of
the crime.13 Because Russell was under the age of 18 when
he committed a Class IA felony, § 28-105.02 dictates that the
sentencing judge must also consider mitigating factors, such as
the defendant’s (1) age at the time of the offense, (2) impetuos-
ity, (3) family and community environment, and (4) ability to
appreciate risks and consequences of the conduct, as well as
(5) the outcome of a comprehensive mental health evaluation
of the defendant conducted by an adolescent mental health pro-
fessional licensed in Nebraska.14
Russell asserts that his sentence should be modified because
it was tailored to fit the crime rather than the offender. He
emphasizes decisions from the U.S. Supreme Court recogniz-
ing the reduced culpability of juveniles and developments in
the field of neuropsychology.15 We, like the district court, are
12
State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017), cert. denied ___ U.S.
___, 138 S. Ct. 315, 199 L. Ed. 2d 208.
13
Id.
14
See id.
15
See, Miller v. Alabama, supra note 1; Graham v. Florida, 560 U.S. 48, 130
S. Ct. 2011, 176 L. Ed. 2d 825 (2010); Roper v. Simmons, 543 U.S. 551,
125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
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mindful of evidence showing that the brain of an adolescent is
not fully developed. But that does not necessarily mean that an
offender no longer poses a risk after age 25.
Under Miller, a juvenile offender convicted of a homicide
offense may be sentenced to life imprisonment without parole
so long as the sentencer considered specific, individualized
factors before handing down that sentence.16 Rather than life
imprisonment, the court sentenced Russell to a term of years
that allows for parole eligibility. And it is clear from the court’s
statements during the resentencing hearing that it considered
the relevant sentencing factors set forth above.
Russell also argues that the sentence imposed was a de facto
life sentence. He will be eligible for parole at age 72, and he
will be 80 years old on his projected release date. Russell high-
lights cases from other states where courts have found shorter
terms of imprisonment to be de facto life sentences.17 But we
have declined to follow that line of cases.
In State v. Smith,18 we considered a claim that a lengthy
term-of-years sentence was a de facto life imprisonment.
In doing so, we discussed in some detail the U.S. Supreme
Court’s decision in Graham v. Florida.19 The Graham Court
found it unconstitutional to sentence a nonhomicide juvenile
offender to a “sentence [that] guarantees he [or she] will
die in prison without any meaningful opportunity to obtain
release.”20 But we noted that the Court had not decided
whether a lengthy term-of-years sentence was, for constitu-
tional purposes, the same as a sentence of life imprisonment
16
State v. Nollen, supra note 11.
17
See, Casiano v. Commissioner of Correction, 317 Conn. 52, 115 A.3d
1031 (2015), cert. denied ___ U.S. ___, 136 S. Ct. 1364, 194 L. Ed. 2d
376 (2016) (50-year sentence); State v. Ronquillo, 190 Wash. App. 765,
361 P.3d 779 (2015) (mandatory release at age 68).
18
State v. Smith, supra note 12.
19
Graham v. Florida, supra note 15.
20
Id., 560 U.S. at 79.
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without the possibility of parole. We observed that “a number
of courts have held that sentences that allow the juvenile
offender to be released in his or her late sixties or early seven-
ties satisfy the ‘meaningful opportunity’ requirement.”21 We
also recognized that “other courts have interpreted Graham
to mean that the juvenile offender must be released a certain
number of years before his life expectancy.”22 Ultimately, we
concluded in Smith that a sentence for kidnapping in which
the juvenile offender would be eligible for parole at age 62
comported with the principles set forth in Graham.
Although this case involves a homicide, our analysis in
Smith provides guidance. The Miller Court highlighted that the
reasoning from Graham still applied to homicide offenses:
Graham’s flat ban on life without parole applied only to
nonhomicide crimes, [but] none of what it said about chil-
dren—about their distinctive (and transitory) mental traits
and environmental vulnerabilities—is crime- specific. .
. . So, Graham’s reasoning implicates any life-without-
parole sentence imposed on a juvenile, even as its cat-
egorical bar relates only to nonhomicide offenses.23
And, in a homicide case,24 we adhered to our conclusions
in Smith. There, we found no merit to the juvenile offend-
er’s contention that his parole eligibility at age 56 was
unconstitutional.
We digress at this point to recognize the reversal of State
v. Zuber,25 a New Jersey case that we have discussed26 and
cited27 approvingly. In that case, the sentences imposed on a
21
State v. Smith, supra note 12, 295 Neb. at 977, 892 N.W.2d at 65.
22
Id. (emphasis in original).
23
Miller v. Alabama, supra note 1, 567 U.S. at 473.
24
See State v. Jones, supra note 9.
25
State v. Zuber, 442 N.J. Super. 611, 126 A.3d 335 (2015), reversed 227
N.J. 422, 152 A.3d 197 (2017).
26
See State v. Cardeilhac, 293 Neb. 200, 876 N.W.2d 876 (2016).
27
See State v. Smith, supra note 12.
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juvenile offender for nonhomicide crimes totaled 110 years
but the offender would be eligible for parole in 55 years at
approximately age 72. The Superior Court of New Jersey
assumed, but did not decide, that Graham could apply. As
part of its analysis, it used life expectancy tables, which pre-
dicted that the offender would outlive his parole ineligibil-
ity period. The court concluded that the aggregate sentence
was not a de facto life sentence, because the offender had
a meaningful and realistic opportunity to obtain release. We
thus included this case as one in which a court found that a
lengthy term of years was not the equivalent of a life sen-
tence.28 Slightly over 1 year ago, the New Jersey Supreme
Court reversed, and remanded for resentencing.29 It found that
lengthy term-of-years sentences imposed on juveniles impli-
cated the principles of Graham and Miller. It directed that at
the new sentencing hearing, the trial court should consider the
offender’s “‘immaturity, impetuosity, and failure to appreci-
ate risks and consequences’; ‘family and home environment’;
family and peer pressures; ‘inability to deal with police offi-
cers or prosecutors’ or his own attorney; and ‘the possibility
of rehabilitation.’”30
The theme emerging from all the jurisprudence discussed
above is that a sentencing court must consider a juvenile
offender’s “youth and attendant characteristics”31 in fashion-
ing a punishment. The district court has done that here. And
we are mindful that the U.S. Supreme Court has not precluded
a court from imposing a sentence of life imprisonment with-
out possibility of parole for a juvenile convicted of homicide.
The Miller Court stated: “Although we do not foreclose a
sentencer’s ability to make that judgment in homicide cases,
we require it to take into account how children are different,
28
See, id.; State v. Cardeilhac, supra note 26.
29
State v. Zuber, 227 N.J. 422, 152 A.3d 197 (2017).
30
Id. at 453, 152 A.3d at 215.
31
Miller v. Alabama, supra note 1, 567 U.S. at 483.
- 496 -
Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. RUSSELL
Cite as 299 Neb. 483
and how those differences counsel against irrevocably sentenc-
ing them to a lifetime in prison.”32 While Russell will not be
eligible for parole until age 72, the sentence imposed affords a
“meaningful and realistic opportunity to obtain release”33 from
prison. We cannot say that the court abused its discretion in
resentencing Russell.
CONCLUSION
The record shows that the district court considered prin-
ciples from Miller and the relevant sentencing factors. Because
the district court did not abuse its discretion in resentencing
Russell to 110 to 126 years in prison, we affirm.
A ffirmed.
Wright and K elch, JJ., not participating.
32
Id., 567 U.S. at 480.
33
State v. Smith, supra note 12, 295 Neb. at 979, 892 N.W.2d at 66.
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156 Ga. App. 704 (1980)
275 S.E.2d 766
WRIGHT et al.
v.
METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
60019.
Court of Appeals of Georgia.
Argued June 5, 1980.
Decided December 4, 1980.
Harry L. Cashin, Jr., Frank L. Wilson, III, for appellants.
*708 Charles M. Pursley, Jr., for appellee.
SMITH, Judge.
Appellants bring this appeal from a jury verdict in the amount of $116,600 for a parcel of land condemned for the Metropolitan Atlanta Rapid Transit Authority's (MARTA) mass transit rail project. Appellants contend that the trial court's charge on consequential damages was not in accordance with Georgia's constitutional requirements as to just and adequate compensation and that MARTA improperly introduced prejudicial evidence in contravention of the trial court's ruling on appellants' motion in limine. We affirm.
1. The subject property consists of 6,302 square feet fronting for 45 feet along West Peachtree Street in Atlanta. This property was part of a 31,842 square foot tract fronting along West Peachtree Street, Pine Street and Spring Street. In addition to testimony as to the market value of the condemned property on the day of taking, the evidence showed that as a result of construction raising the grade of West Peachtree Street, the remaining property would have no access to that street and would face an approximately twenty foot high concrete wall. The evidence also showed that upon completion of MARTA's Civic Center Station the remaining property would be only 250 feet from the nearest station entrance and that the access to this entrance from the remaining property would be unimpeded since that street area shared by the station and the remaining property would be level and a stairway would connect the station with street level.
The trial court gave the following as a part of his charge on the measure of consequential damages:
"I instruct you that you will consider whether consequential *705 damages would naturally and proximately arise to the remainder of the owners' property from the taking of that part which is taken and devoted to the purpose for which it is taken, including its maintenance and operation. The measure of such consequential damages, if any you find, is the diminution or lessening of the fair market value of the remainder of the property, proximately arising from the cause just mentioned.
"Now I further instruct you that in determining consequential damages, if any, to the part not taken, you are not confined to the damages proximately caused by the mere taking, but you may consider any evidence of damages to the remainder of the property, lessening its fair market value as of the date of taking.
"The measure of consequential damages, if any exists, for the part of the property not taken, is the difference between the market value of the property not taken before any part is acquired and before the public improvements are made, and the market value of the remainder of the property after the part is acquired and the improvements are made. If the market value of the remainder before the improvements is equal to or less than the market value of the remainder after improvements, there can be no recovery for consequential damages. But if the market value of the remainder before the improvements is greater than the market value of the remainder after the improvements, there should be a recovery, and the amount is the difference between the market value of the remainder before and after the taking.
"The proper measure of consequential damages is the difference between the greatest market value of the land not taken before any portion of it is condemned and improvements made by MARTA, or the Plaintiff, less the market value of the remainder after a portion is taken and improvements are made by MARTA. In other words, consequential damages equal the reduction in market value of the remaining property." (Emphasis supplied.)
Appellants contend that these constructions not only confused and misled the jury but were constitutionally defective, stating incorrect and abstract principles of law. They argue that these instructions, particularly the portion italicized above, had the effect of directing the jury to value the remaining property at some time in the future, after the improvements had been completed, rather than at the time of taking as mandated by Art. I, Sec. III, Par. I, Ga. Constitution of 1976 (Code Ann. § 2-301). Housing Authority v. Schroeder, 222 Ga. 417 (151 SE2d 226) (1977). In response, appellees contend the charge, taken as a whole, was not misleading, as "the jury could only have understood that consequential damages and consequential benefits, including the prospective effect of the *706 MARTA project, must be determined as of the date of the taking." See State Hwy. Dept. v. Davis, 129 Ga. App. 142 (199 SE2d 275) (1973).
The assertedly objectionable portion of the charge is substantially the same instruction recommended by this court in State Hwy. Dept. v. Bridges, 60 Ga. App. 240 (2) (3 SE2d 907) (1939). As the Bridges charge was expressly approved by the Georgia Supreme Court in Elliot v. Fulton County, 220 Ga. 377, 381 (139 SE2d 312) (1964), we must hold that the charge on consequential damages is not grounds for reversal by this court.
Nonetheless, we feel compelled to express our view that the subject charge is vulnerable to appellants' attack. Although the jury was instructed that "in determining consequential damages... you may consider any evidence of damages to the remainder of the property, lessening its fair market value as of the date of taking," the jury was also instructed that "[t]he measure of consequential damages ... is the difference between the market value of the property not taken before any part is acquired and before the public improvements are made, and the market value of the remainder of the property after the part is acquired and the improvements are made." (Emphasis supplied.) Where, as here, proposed improvements are to be made on the condemned property at some point after the date of taking, the latter instruction directs the jury to determine consequential damages to the remainder of the property as of such future time.
It is apparent the given charge instructs the jury to determine consequential damages both "as of the date of taking" and at the time "the improvements are made." As these times do not coincide, the charge is internally inconsistent. While it is conceivable that the jury reconciled the conflicting portions of the charge, appellees' contention that "the jury could only have understood that consequential damages and consequential benefits, including the prospective effect of the MARTA project, must be determined as of the date of the taking" is clearly wishful thinking. "The jury should not be left to decide between conflicts in the charge ..." Savannah Elec. Co. v. McClelland, 128 Ga. 87 (2) (57 SE 91) (1907); State Hwy. Dept. v. Hilliard, 112 Ga. App. 498, 499 (145 SE2d 824) (1965).
2. On May 4, 1979 the Georgia Department of Transportation (DOT) condemned the remaining portion of the tract not taken by MARTA and tendered $457,755 as compensation. On July 23, 1979 appellant Wright, in response to interrogatories from DOT, indicated that just and adequate compensation for the remaining tract as of May 4, 1979 was between $650,000 and $700,000. On September 10, 1979 appellants filed a motion in limine requesting that the trial *707 court rule inadmissible all evidence relating to the DOT condemnation as being irrelevant to the issue of just and adequate compensation for the subject property as of September 8, 1977 and highly prejudicial to appellants' claim for consequential damages to their property remaining after the MARTA condemnation. The trial court approved the motion except for allowing MARTA to use Wright's response to DOT's interrogatories "for purposes of impeachment, provided that counsel did not refer to the style of the [DOT] case or and specifically noted for the jury that that answer had not been filed in this case."
On rebuttal, MARTA called appellant Wright for cross examination and elicited from him testimony regarding the opinion he expressed as to the value of the remaining property earlier in 1979. No mention was made of the pending DOT case. On subsequent direct examination Wright was allowed to explain his valuation and also testified as to his opinion of the value of remaining property immediately following the taking on September 8, 1977; his 1977 valuation of the subject property was substantially higher than either appraiser called by appellants. Appellants contend that since MARTA violated the trial court's ruling on their motion in limine, they are entitled to a new trial. We cannot agree.
Appellants contend that MARTA "violated" the court's ruling by using Wright's testimony to impeach that of appellants' two appraisers. "... [I]n the trial of all civil cases, either plaintiff or defendant shall be permitted to make the opposite party ... a witness, with the privilege of subjecting such witness to a thorough and sifting examination, and with the further privilege of impeachment, as if the witness had testified in his own behalf and were being cross-examined." (Emphasis supplied.) Code § 38-1801. A witness may be questioned for the purpose of impeachment as to his answers to interrogatories in another case which contradict his testimony at trial. See Calloway v. Rossman, 150 Ga. App. 381 (3) (257 SE2d 913) (1979); Krasner v. Lester, 130 Ga. App. 234 (1) (202 SE2d 693) (1973). Thus, Wright could properly be called for cross examination by MARTA and questioned regarding his "contradictory" valuation of the subject property in another case.
Judgment affirmed. Banke, J., concurs. McMurray, P. J., concurs in the judgment only.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10537
Conference Calendar
RUDY GARCIA, JR.,
Plaintiff-Appellant,
versus
GERALD GARRETT, Chairman Texas
Board of Pardons/Paroles sued
in his individual and official
capacity; VICTOR RODRIGUEZ,
Director sued in his Individual
and Official Capacity; CARL
JEFFERIES, Interim Director
Texas Department of Criminal
Justice Parole Division sued
in his individual and official
capacity, BRYAN COLLIER,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CV-40-A
- - - - - - - - - -
October 26, 2001
Before WIENER, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Rudy Garcia, Jr., Texas prisoner # 851894, appeals from the
dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C.
§§ 1915(e)(2) and 1915A(b). He contends that he does not fall
under Tex. Gov’t Code Ann. § 508.149’s list of inmates who are
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-10537
-2-
ineligible for mandatory supervision. He seeks injunctive relief
declaring that he is eligible for mandatory supervision.
When a state prisoner such as Garcia is challenging the very
fact or duration of his physical imprisonment, and the relief he
seeks is a determination that he is entitled to immediate release
or a speedier release from that imprisonment, his sole federal
remedy is a writ of habeas corpus. Preiser v. Rodriguez, 411
U.S. 475, 500 (1973). Accordingly, the district court did not
err in dismissing his complaint. Harris v. Hegmann, 198 F.3d
153, 156 (5th Cir. 1999). The judgment of the district court is
AFFIRMED.
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8 Md. App. 635 (1970)
262 A.2d 80
ERWIN RANDOLPH NUTTER
v.
STATE OF MARYLAND.
No. 200, September Term, 1969.
Court of Special Appeals of Maryland.
Decided February 10, 1970.
The cause was argued before MURPHY, C.J., and ANDERSON, MORTON, ORTH, and THOMPSON, JJ.
Milton B. Allen for appellant.
John J. Garrity, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Moylan, Jr., State's Attorney for Baltimore City, and Michael E. Kaminkow, Assistant State's Attorney for Baltimore City, on the brief, for appellee.
ORTH, J., delivered the opinion of the Court.
I
THE PRIVILEGE OF NONDISCLOSURE OF THE IDENTITY OF INFORMERS
The Rule
In Maryland the State has the privilege to withhold from disclosure the identity of persons who furnish information to police officers concerning the commission of crimes. This general rule was recognized in Drouin v. State, 222 Md. 271 and reaffirmed in Gulick v. State, 252 Md. 348. "That the government has this privilege is well established, and its soundness cannot be questioned." 8 Wigmore, Evidence (1961) § 2374, p. 762. Its purpose is the furtherance and protection of the public interest in effective law enforcement. Roviaro v. United States, 353 *637 U.S. 53, 59. Professor Wigmore, characterized by the Supreme Court as "not known as an enthusiastic advocate of testimonial privileges generally," McCray v. Illinois, 386 U.S. 300, 309, noted that such a genuine privilege must be recognized and said, § 2374, pp. 761-762:
"Communications of this kind ought to receive encouragement. They are discouraged if the informer's identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship."
Of course, the privilege applies only to the identity of the informer,[1] and not to his communication as such. And *638 the privilege is not absolute; it is limited by its underlying purpose. The obvious qualification is that once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable. Roviaro v. United States, supra, at 60.[2] See McCoy v. State, 216 Md. 332, 337. But the real exception to the rule may not be so obvious, but is just. It arises from the fundamental requirements of fairness. The identity of the informer must be disclosed when it is necessary and relevant to a fair defense. Gulick v. State, supra, at 354 and 357. Or as the Court said in Drouin v. State, supra, at 286, disclosure is compelled "if the name of the informer is useful evidence to vindicate the innocence of the accused, lessens the risk of false testimony or is essential to a proper disposition of the case." In McCoy v. State, supra, at 337, the Court stated the exception to be "whenever the informer was an integral part of the illegal transaction."[3] The Court also said in Gulick v. State, supra, at p. 354:
*639 "The cases universally recognize the exception to the nondisclosure privilege where the informer was a participant, accessory or witness to the crime. See McCoy v. State, 216 Md. 332, 337 * * *; The Evidence Handbook, Donigan & Fisher, (1965) Evidentiary Privileges § 7, pg. 214."
We do not think this is a separate exception, distinct from the exception described in the terms of necessity and relevancy to a fair defense. We believe that if an informer is a participant, accessory or witness to the crime it is a factor to be considered in determining whether his identity is necessary and relevant to a fair defense. And we feel that "witness" as used in Gulick means a material witness, in the sense that his testimony is important to a fair determination of the cause. It is then that his identity becomes necessary and relevant to a fair defense. Thus in this context "material" may be said to have a meaning more restrictive than its usual meaning. So, although an eyewitness to a crime is clearly a `material" witness as that word is ordinarily used, if he is an informer, simply observing an illegal transaction but not participating in it, the fact that he observes the transaction does not necessarily make his possible testimony so important as to compel disclosure of his identity in the face of the rationale of the nondisclosure privilege. Donigan & Fisher, cited in support of the statement *640 in Gulick, said, "When the identity of an informer becomes material to the establishment of a defense, the court will order its disclosure." They quoted Roviaro v. United States, supra, in support thereof, and in Roviaro the Government's informer was the sole participant, other than the accused, in the transaction charged and was the only witness in a position to amplify or contradict the testimony of government witnesses. Thus it was clear, and the Court so found, that the informer was a material witness, his possible testimony being "highly relevant and might have been helpful to the defense." 353 U.S. at 63-64. Donigan & Fisher concluded, pp. 215-216:
"Thus where the informer is an active participant in the illegal activities disclosed by him, his actions and identity can become part of the res gestae and concealment of his identity might hamper the accused in making his defense by depriving him of the testimony of a material witness."
McCoy, also cited in Gulick, is not contrary to our interpretation. There the exception was stated in terms of the informer being an integral part of the illegal transaction and Roviaro was discussed in support thereof. Lee v. State, 235 Md. 301, supports our interpretation.
In Smith v. Illinois, 390 U.S. 129, the principal witness for the prosecution was a man who identified himself on direct examination as "James Jordan." This witness testified that he had purchased a bag of heroin from the petitioner in a restaurant with marked money provided by two police officers. The officers corroborated part of his testimony but only this witness and the petitioner testified as to the crucial events inside the restaurant, and the petitioner's version of those events was entirely different. "The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness." at 130. On cross-examination the witness admitted that his real name was not "James Jordan." Objection to inquiry as to his real name *641 and address were sustained. The Court reversed, holding that under the standard of Alford v. United States, 282 U.S. 687, the defendant was denied the right to confront the witnesses against him, guaranteed to him under the Sixth and Fourteenth Amendments of the federal constitution. The Court noted that its decisions in Roviaro and McCray were not relevant as in neither of those cases was the informer a witness for the prosecution. 390 U.S., note 8, at 133.
It appears, therefore, that if an informer testified for the prosecution at trial, the State's privilege of nondisclosure is not applicable and may not be invoked, yielding to the Sixth Amendment right of confrontation.[4]
The Application of the Exception
We think it clear that today the exception to the general rule of the State's privilege of nondisclosure of the identity of an informer applies to the issue of guilt or innocence as distinguished from the issue of probable cause for a warrantless arrest or warrantless search, or for the issuance of an arrest warrant or search and seizure warrant. Although in Drouin v. State, supra, the Court considered the exception with regard to probable cause for an arrest, that case was decided without the benefit of McCray v. Illinois, supra. In McCray the Court, pointing out that Roviaro involved the privilege "at the trial itself where the issue was the fundamental one of innocence or guilt," and not on the issue of probable cause of an arrest or search, 386 U.S. at 309, "made it crystal clear," as we said in Mullaney v. State, 5 Md. App. 248, note 4 at 254, "that there is no requirement, *642 constitutional or otherwise, which compels disclosure of the informant's identity on a hearing to determine the question of probable cause for an arrest or search." And see Rollins v. State, 5 Md. App. 495, 498.[5] In Gulick v. State, supra, the issue was not probable cause for an arrest or search but the demand for disclosure concerned the identity of an individual who gave the law enforcement authorities a "tip" on the relevancy to the crime of an object already in the possession of the police. The Court held that disclosure of the identity of the informer was not required because it was not necessary and relevant to a fair defense. 252 Md. at 357.
The Invoking of the Exception
The exception to the general rule of the State's privilege of nondisclosure of the identity of an informer must be invoked by the defendant. "Even though a case is a proper one for disclosure, the court will not on its own motion require the government to reveal the source of its information; the defense must demand disclosure and, if it is refused, move to strike the related testimony or to dismiss the action, as circumstances indicate." 8 Wigmore, Evidence (1961), § 2374, pp. 771-772. And we think it clear from McCoy v. State, supra, that if the defendant fails to make demand for the name or identity of the informer at trial, he waives the right to such disclosure. The Court in McCoy considered this "an exception to the exception." 216 Md. at 337.
Once demanded, whether disclosure is to be compelled is within the sound discretion of the trial court. Gulick v. State, supra, at 354. "The problem calls for a balancing of the public interest in protecting the flow of information against the individual's equal, if not predominant, right to a fair defense. The privilege of nondisclosure of the informer is not absolute, but it must not be withdrawn unless a necessity for the identity, and its relevancy *643 to a fair defense, is demonstrated." Id. at 357. "We believe that no fixed rule with respect to disclosure is justifiable. * * * Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro v. United States, supra, at 62.
We note that the Court in Roviaro said that when the privilege must give way the trial court may require disclosure and, if the government withholds the information, dismiss the action. Id., at 61. See Gulick v. State, supra, at 355.
Summary
The State has the privilege to withhold from disclosure the identity of persons who furnish information to police officers concerning the commission of crimes. However, the privilege is not absolute. On the issue of guilt or innocence and upon demand by the defendant, the trial court may, in the exercise of its judicial discretion, compel such disclosure upon determination that it is necessary and relevant to a fair defense. Factors to be considered in ascertaining whether such disclosure is necessary and relevant to a fair defense include the nature of the crime charged; the importance of the informer's identity to a determination of innocence, as for example, whether or not the informer was an integral part of the illegal transaction and the possible significance of his testimony; and the possible defenses. Whether the privilege must yield depends on the facts and circumstances of the particular case. But if the informer testifies for the State the privilege may not be invoked by it.
II
In Lewis v. United States, 385 U.S. 206, Mr. Chief Justice Warren, speaking for the Court, noting that both the Government and petitioner "recognize the necessity for some undercover police activity and both concede that the particular circumstances of each case govern the admissibility *644 of evidence obtained by stratagem or deception," said, at 208-210:
"Indeed it has long been acknowledged by the decisions of this Court * * * that, in the detection of many types of crime, the Government is entitled to use decoys and to conceal the identity of its agents. The various protections of the Bill of Rights, of course, provide checks upon such official deception for the protection of the individual. * * * Were we to hold the deceptions of the agent in this case constitutionally prohibited, we would come near to a rule that the use of undercover agents in any manner is virtually unconstitutional per se. Such a rule would, for example, severely hamper the Government in ferreting out those organized criminal activities that are characterized by covert dealings with victims who either cannot or do not protest. A prime example is provided by the narcotics traffic." (citations omitted).
This State has enacted legislation relating to narcotic drugs, Md. Code, Art. 27, §§ 276-306D; dangerous drugs, §§ 307-313; harmful inhalants, § 313A; depressant or stimulant drugs, § 313B and 313D; LSD, 313BA; amphetamines and barbiturates, § 313C; and other hypnotic drugs, Code, Art. 43, §§ 284-289. The statutes prescribe certain conditions to effect control of such drugs and proscribe certain acts with regard to them, making such acts crimes. The validity of such legislation is firmly established. The right of the State to exercise such power was recognized by the Supreme Court in Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41 as in the interest of the public health and welfare and reaffirmed in Robinson v. California, 370 U.S. 660. Unlawful drug traffic is by its nature clandestine; its operations are carried on by stealth, and become apparent primarily through its victims. But its victims are also criminals, not by reason of being addicts, Robinson v. California, supra, but, *645 because, notwithstanding their addiction, they are responsible for certain of their acts, even though stemming from their addiction, which are crimes, as for example, possession and control of a narcotic drug. Code, Art. 27, § 277. See Powell v. Texas, 392 U.S. 514. Unlawful drug traffic requires a number of participants and a sophisticated organization. Starting with the source of the drug, it then must be distributed, ultimately reaching the user. Along the way it passes through many hands but it is obvious that the farther from the user and the closer to the source the trail runs, the more difficult is the detection of the criminal agent. One "pusher" may sell to a number of addicts; one supplier may supply the drug to a number of "pushers;" one distributor may distribute the drug to a number of suppliers, and so on back to the original source. And even detection at the user echelon is difficult, for unlike the victims of most other crimes, the user himself, having violated the law, is loath to inform the authorities and rarely complains. See Franklin v. State, 8 Md. App. 134. Usually the State must act not only as policeman and prosecutor, but also as complaining witness to the crime. Thus, the great majority of the time,[6] the effective enforcement of the drug laws requires the assistance of informers who impart information to the police, often for reward.
III
THE INSTANT CASE
Erwin Randolph Nutter (appellant) was found guilty at a court trial in the Criminal Court of Baltimore of having under his control, on 16 March 1968, the narcotic drug Cocaine. He contends: (1) the trial court erred in refusing to require disclosure of the identity of an informer although admitting evidence as to the informer's *646 activities, and (2) the evidence was not sufficient to sustain the conviction.
At the start of the trial appellant expressly waived any objection to his arrest or to the search and seizure by which evidence was obtained, conceding that the search and seizure were valid.[7]
Evidence adduced showed that appellant had been the proprietor of and a barber in the Ebony Barber Shop, located at 1524 Pennsylvania Avenue for about 20 years. Access to the shop from Pennsylvania Avenue was by a glass door leading into a small vestibule. There was a plate glass window overlooking Pennsylvania Avenue. The shop consisted of a room 12 feet wide and 20 feet long. There were three barber chairs on the right side of the room in a line from front to back. For each chair there was a washbasin, located on the left side wall, on which wall there were also cabinets and a mirror. Chairs for customers awaiting service were along the left wall. On 16 March 1968 the police searched the shop under the authority of a search and seizure warrant. At the time of the raid appellant was the only barber on the premises and he was in the front of the shop by the first barber chair. Several men were seated on the chairs along the left wall but no one was receiving tonsorial services. The washbasins serving the first two chairs had apparently been recently used but the basin serving the third chair at the extreme rear of the shop had obviously not been used for some time. It was a bowl type basin with two spigots and in the bowl was an accumulation of crushed up used paper towels, dirt and debris. The only contraband found in the shop was in this basin. No contraband was found elsewhere in the shop or on the person of any of the persons present, including appellant. The officer searching the third basin at the rear of the shop removed the used towels from the bowl one at a time, searching them as he removed them. As he worked his way down *647 through the accumulation of towels he found 14 clear gelatine capsules rolled up in a piece of paper towel. The capsules contained cocaine hydrochloride.
The State then adduced evidence relating to occurrences on two days prior to the date of the raid. On 16 February 1968 the police were investigating possible narcotics traffic in the 1500 block Pennsylvania Avenue. There is a small alley in the rear of Pennsylvania Avenue at Smithson Street and the rear of the Alhambra Bar is on the alley. Over a period of several hours an officer observed six men on six separate occasions enter appellant's shop, have a brief conversation with appellant, leave the shop and stand on the corner of Smithson Street. A short time later appellant would leave the shop, pass the man on the corner and go by way of Smithson Street to an alley at the rear of the Alhambra Bar, which fronted on 1520 Pennsylvania Avenue. On one occasion appellant nodded to the man on the corner. The man on the corner would follow appellant into the alley, remain about 30 seconds and come out again onto Pennsylvania Avenue. The observing officer could not see either appellant or the man who had been in the shop while they were in the alley. On 2 March 1968 two officers and a third party went to the location.[8] The police searched the third party and found he had no money or narcotics on his person. They then gave him $6 and went "to a vantage point where he could be observed." They saw the third party go directly to the Ebony Barber Shop, leave a few seconds later, walk about 25 yards down the street and stop. Appellant came out of the shop, nodded in the direction of the third party and walked to Smithson Street to an areaway in the rear of the Alhambra Bar. The third party followed. They were then out of the sight of the police. About a minute later both appellant and the third party came out of the alley. The third party went back to Pennsylvania Avenue where he was met by the police. *648 He turned over to the police two gelatine capsules. The police again searched the third party and found no narcotics or money on his person. The capsules were sent to a U.S. chemist for analysis. The chemist's report was marked for identification but never introduced into evidence. The capsules analyzed were not produced in court and the trial judge sustained an objection to the admission of the chemist's report. Thus the evidence did not show whether or not the capsules contained a narcotic drug. The testifying officer did not know of his own knowledge what occurred in the areaway; the third party was the only person other than appellant who had knowledge of what occurred in the areaway.
Appellant testified that he used the first barber chair at the front of the shop. Two other barbers, one of whom had been working for him for 10 years and the other about 4 years, used the other two chairs but they come to work at 4:00 P.M. which was after the time of the raid. The two sinks at the front of the shop were used by all three barbers. The basin at the rear of the shop was a shampoo bowl. "It was a shampoo bowl for processing.[9] I haven't had a processor in two or three years because he had gone away and beside the bowl there was a chair that you used to sit back and the guys sit there all day and, you know, they throw everything in there from notes to cigarettes. It just gets all fouled up." He said the bowl was 10 or 12 inches deep. He never used it. He denied that there were paper towels in the basin "Paper bags was the only thing in there and junk." In the rear of the shop was a little room used for card playing. There was a card game going on at the time of the raid. The police searched that room and the card players also. There was a door from that room leading into the alley. He said he had nothing at all to do with what the police found in the basin. "No sir. If I had, it wouldn't have been on the bottom of that, I am sure." He denied *649 the occurrences of 2 March "I ain't had no illegal transaction with nobody." He said he never went into the areaway. He explained that he had no telephone in his shop and "I have days when I come in there when people knock on the windows and for me to answer the telephone (in the Alhambra Bar) and that's three times a day and that's the only reason I go through that door." He stated that during February and March 1968 he was in no way related to any sort of narcotics traffic. On cross-examination he emphasized that he did not use the rear basin for anything and he did not clean it out because "it didn't pile up * * * I never had any reason to clean it up." He asserted he used cloth towels, not paper towels. Persons in the shop sit near the basin. "They sit there talking and just throw whatever they have right in there. That's it."
(1)
Appellant made timely demand for disclosure of the identity of the agent used by the police on 2 March. He argued that the agent was an integral part of the alleged illegal transaction and requested his name and address so he could summons him as a witness. The State invoked its privilege of nondisclosure and the court refused to compel disclosure.
It is clear that had appellant been charged with the sale, possession or control of narcotics on 2 March 1968, the crime could only have been established through the testimony of the agent of the police. As a material witness on behalf of the State, his identity real name and address would have had to be disclosed upon demand to provide him his right of confrontation guaranteed by the Sixth Amendment and flowing to him through the Fourteenth Amendment. Smith v. Illinois, supra. But appellant was not so charged. The occurrences of 2 March involving the agent were adduced by the State through testimony of the police as tending to prove the crime that appellant had a narcotic drug in his control on 16 March. In rendering its verdict the trial court said:
*650 "The testimony, which is uncontradicted, is that the Defendant was the legal occupant, possessor of this shop, had been for a number of years, and in fact that the narcotic was found in the basin on the premises over which he had control standing alone is sufficient to sustain a conviction under the second count of the indictment, that is, control. * * * So I say that standing alone without any testimony with reference to the two prior days of observations and activities I think there is sufficient evidence to sustain a conviction."
Had the trial court stopped there we would be presented only with the question of whether the trial court was clearly erroneous in his judgment on the evidence, for if he expressly did not consider the evidence as to the prior days occurrences and activities in arriving at the guilt of appellant, the identity of the agent would not have been necessary and relevant to a fair defense and in nowise material, and the admission of the testimony as to the observations of the officers, if error, would have in any event been harmless error. But the court continued:
"Entirely aside from that and as a matter of accumulative evidence, I feel that the Court was proper in admitting the testimony of the two days observations and the activities that occurred that day and I feel that although not needed that that testimony does serve as corroboration and would certainly supply some substantial evidence of knowledge on the part of the Defendant and the fact that he was involved in the narcotic traffic. So, for those reasons, I am going to find that he is not guilty of the first count [possession], but guilty of the second count [control]." (emphasis supplied).
In the light of this additional statement by the court, we can only conclude that it did consider the evidence of the *651 prior days occurrences and activities in arriving at its verdict of guilty, even though it felt it may not have been needed, and that it was considered by the court, not merely as accumulative evidence as it indicated, but in corroboration and as "substantial evidence" of appellant's knowledge of the narcotics found on the premises, as it expressed. Therefore, although the "buy" by the agent was not shown to be of a narcotic drug, the identity of the agent was necessary and relevant to a fair defense. He was an integral part of a transaction, apparently inferred by the court to be illegal, and the possible significance of his testimony in view of appellant's defense denying that the transaction ever occurred was obvious. In the particular facts and circumstances, since the State chose to introduce such evidence, relating to the activities of its agent, on the issue of guilt or innocence and, since we cannot say that the court did not rely thereon in finding appellant guilty, the State's privilege of nondisclosure of the agent's identity, disclosure having been demanded, must yield. We think it not without significance that after the State first adduced testimony relating only to the day of the offense charged, the court said to the Assistant State's Attorney:
"Mr. Kaminkow, I want to make myself clear to you in sustaining the objection of the offering of the warrant. Under those circumstances, I am in no way precluding you from offering testimony on any other relevant factual situation that may be significant to this case."
Mr. Kaminkow said: "Well, in light of that, I am calling Sergeant Watkins." He did so, and elicited from Watkins the occurrences and activities of the prior days.
We hold that it was an abuse of judicial discretion not to compel disclosure of the agent's identity. In the facts and circumstances here, balancing the public interest in protecting the flow of information to the police against appellant's right to a fair defense, we think that the scales dip in favor of appellant. We reverse the judgment.
*652 We note that we believe that evidence of the prior days occurrences and activities was properly admissible on the issue of guilt or innocence. That the occurrences and activities observed by the police on those days may have served to establish probable cause for the issuance of a search and seizure warrant, did not preclude the admission of such evidence, properly proffered, on the substantive issue of guilt or innocence.[10] See Haley, Peterson & Roberts v. State, 7 Md. App. 18, 29. We think such evidence fell within the exception to the general rule that evidence of the commission of other independent crimes by the defendant is inadmissible to show either guilt or that the defendant would be likely to commit the crime with which he is charged. Here such evidence was relevant as tending directly to prove the crime charged, and that crime and the occurrences and activities of the prior days were sufficiently linked together in point of time and circumstances. "If proof of another crime explains or accounts for the crime for which the accused is on trial, it is relevant and competent." Wood v. State, 191 Md. 658, 664. See Bryant v. State, 207 Md. 565, 586; Jennings v. State, 8 Md. App. 312 (1969). But we again point out that if the State adduced evidence as to the events of 2 March it would be obliged to disclose the identity of the agent of the police therein involved.
(2)
In view of our reversal of the judgment we do not reach the question of the sufficiency of the evidence to sustain the conviction. Upon retrial the verdict on the charge that appellant had a narcotic drug in his control can be reached only upon consideration of the evidence then before the trier of fact. However, see Haley, Peterson & Roberts v. State, supra, in which we discussed "control," 7 Md. App. at 32-33. And see also Henson v. State, 236 Md. 518; Scott v. State, 7 Md. App. 505; Williams *653 v. State, 7 Md. App. 5; Speaks v. State, 3 Md. App. 371; Broadway v. State, 3 Md. App. 164.
Judgment reversed; case remanded for a new trial; costs to be paid by the Mayor and City Council of Baltimore.
NOTES
[1] Informers have been classified as:
(1) Casual Informers those persons who live on the fringes of crime and often have associations and information that are useful to the police. Police involvement begins at the end of the process, not the beginning;
(2) Decoys and Stool Pigeons similar to the casual informer but their objective is not simply to acquire information but to "test" individuals or to patrol an area "actively" by providing a likely looking target for a dope peddler;
(3) Police Spy a full time, professional police informant. His objective is the acquisition of information. He is recruited and paid by the police and works at their direction against targets chosen by the authorities. He is used where greater reliability is necessary than is possible with a casual informer or where the target individual or group presents difficulty of access;
(4) Police Undercover Agent distinguished from the police spy by his official status as a member of some official law enforcement agency. He may be used when the danger or sensitivity of the mission makes the use of unofficial agents impossible;
(5) Agent Provocateur has the task of provoking criminal activity on the part of target individuals or groups and may have either official or unofficial status. (But see Simmons v. State, 8 Md. App. 355 (1969), in which we discussed entrapment).
The above classifications are set out in an Editorial Note entitled "Police Undercover Agents: New Threat to First Amendment Freedoms" in The George Washington Law Review, vol. 37, no. 2 (March 1969), 639.
[2] Or as Wigmore says, § 2374, p. 766: "If the identity of the informer is admitted or known, then there is no reason for pretended concealment of his identity, and the privilege of secrecy would be merely an artificial obstacle to proof."
[3] Wigmore, § 2374, pp. 768-769, puts it:
"Even where the privilege is strictly applicable, the trial court may compel disclosure if it appears necessary in order to avoid the risk of false testimony or in order to secure useful testimony. For example, disclosure will be compelled if the informer is a material witness on the issue of guilt."
In McCormick, Law of Evidence (1954) § 148, p. 310 the language is, "[W]hen * * * the evidence of the identity of the informer becomes important to the establishment of defence * * *."
Wharton, remarking in his Criminal Evidence (12th Ed., 1955) vol. 3, § 795, pp. 136-137, that the distinction of the exception to the general rule is one of materiality, says, "When such information is material to the issue, it cannot be withheld. But when it is immaterial the courts will not compel its disclosure."
Underhill, Criminal Evidence, (5th Ed.) vol. 2, § 328, p. 820, also speaks in terms of materiality: "[W]hen the question arises in a criminal trial, and the information is material to determine the defendant's innocence, it would seem both reasonable and just that the necessity and desirability of the disclosure and the question whether the public interests would be benefited or would suffer, should be solely for the judicial discretion upon the circumstances of the case."
[4] It would seem that the holding in Smith would apply even if the witness appeared at trial with his facial features covered or otherwise disguised. The concealment of identity between not giving a real name and address and disguise would be a matter only of degree. Although in Smith the informer was physically before the accused, his actual identity was unknown. Thus the obvious exception to the privilege of nondisclosure that the informer's identity was in fact known to the accused was not applicable.
It would also seem that the rationale of Smith would apply if an informer testifies for the State on the issue of probable cause for an arrest or search.
[5] Of course the requirements of showing the credibility of an informer in establishing probable cause is another matter. See Price v. State, 7 Md. App. 131, in which we discussed Spinelli v. United States, 89 S.Ct. 584 and Aquilar v. Texas, 378 U.S. 108.
[6] "It is safe to say that ninety-five per cent of all federal narcotics cases are obtained as a result of the work of informers, whether they be paid or not." Informers in Federal Narcotics Prosecutions, 2 Columbia Journal of Law and Social Problems (1966) p. 47. We understand that there is a comparable percentage as to such cases in this State.
[7] It appeared that the search and seizure of the evidence was under the authority of a search warrant. By the concession of appellant the warrant did not come into evidence.
[8] The officer testifying called the third party "a reliable informant." Upon objection the term was stricken and he was cautioned to refer to him as "the third party."
[9] Appellant described processing. "After you straighten your hair, you give it a rinse and you rinse it down the drain." The other two barbers did not process.
[10] In objecting to the testimony, appellant did not rely on the defense of entrapment, nor do we think in the circumstances that he could. See Smith v. State, 242 Md. 712; Simmons v. State, 8 Md. App. 355 (1969).
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654 F.2d 644
Patrick W. BARRON, Plaintiff/Appellant/Cross-Appellee,v.UNITED STATES of America, Defendant/Appellee/Cross-Appellant,v.MAITLAND BROTHERS COMPANY, Third-Party Defendant/Appellee.
Nos. 79-4492, 79-4564.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted April 29, 1981.Decided Aug. 27, 1981.
Paul F. Cronin, Honolulu, Hawaii, for Barron.
John R. Lacy, Honolulu, Hawaii, Eloise E. Davies, Atty., Dept. of Justice, Washington, D. C., for U. S. A.
Appeal from the United States District Court for the District of Hawaii.
Before KILKENNY, SNEED and FARRIS, Circuit Judges.
SNEED, Circuit Judge:
1
In highly condensed form, the facts of this case are that an injured employee (Barron) of a government contractor (Maitland Brothers Company) seeks to recover his entire damages from the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq., while the United States, if held so liable to the employee, seeks to recover from the government-contractor-employer its proper share of the total damages. The employer insists that it is not liable to any extent to the United States because of its immunity under State of Hawaii's workers' compensation law, as implemented by relevant decisional law of the State, and that if it is so liable, it is entitled to a jury trial with respect to both the extent of its liability, if any, and the amount of damages, if any, that it might be required to pay to the United States.
2
The district court, in that portion of its bifurcated proceedings devoted to liability, held that the employee was barred from recovering damages attributable to the fault of his government-contractor-employer from the United States and that only twenty-five percent of the employee's damages was recoverable from the United States because that was its share of the total fault. Accordingly, the district court dismissed the third party complaint of the United States against the government-contractor-employer. In the damages portion of the proceedings, the district court gave judgment in favor of the employee and against the United States in the amount of $200,762.75, one-fourth of the employee's total damages.
3
Both the employee and the United States appeal. The employee is contending that the United States is liable for the full amount of his damages. The United States contends that it breached no duty owed to the employee, but that if it did, and, as a consequence, is held liable for the full amount of the employee's damages, it is entitled to indemnity from the government-contractor-employer.
4
We hold (1) that the United States did breach a duty owed to the employee, (2) that the United States is liable to the employee for the full amount of his damages, (3) that the United States is entitled to indemnity from the government-contractor-employer, (4) that the government-contractor-employer is not bound by the district court's holdings with respect to the share of fault attributable to it, and (5) that in any proceeding brought by the United States on remand to obtain indemnity the government-contractor-employer is entitled to a jury trial with respect to its proper share of fault.
I.
SOURCE OF STATEMENT OF FACTS
5
Because of full statement of the facts appears in the excellently written opinion of the district court, of which Judge Schwarzer was the author, and because this opinion was published as Barron v. United States, 473 F.Supp. 1077 (D.Haw.1979), we will not lengthen our opinion by again reciting the facts at length. Rather, we will address each of the issues on appeal separately and utilize such facts in our discussion that appear in that recital which we believe necessary to provide clarity. In this way we can substantially reduce what otherwise would be the necessary length of our opinion.
II.
BREACH BY UNITED STATES OF DUTY OWED EMPLOYEE
6
We agree entirely with Parts II and III of the district court's opinion, id. at 1080-85, in which the district court, in the liability phase of its proceedings, held that the United States owed a duty to the plaintiff-appellant Barron which it breached and that Barron was not contributorily negligent. The district court's use of Hawaiian law to determine the existence of that duty and its holding that under that law a duty was imposed upon "an owner for permitting the contractor to conduct extra hazardous activities without taking proper precautions," id. at 1082, are correct expositions of applicable law. Moreover, its finding (which is one of mixed law and fact) that the work being done by Barron was extra hazardous is not clearly erroneous. The district court said:
7
The hazardous nature of plaintiff's work in the trench does not appear to be disputed. The contract documents require categorically that all ditches more than four feet in depth in unconsolidated soil and all such ditches regardless of soil material if entered by personnel must be shored. The existence of that requirement alone compels a finding that work inside deep ditches is extra hazardous in the absence of special precautions.
8
Id. at 1083. We find no error in these remarks.
9
Breach of this duty was found by the district court to consist of the failure by Navy officials to take steps to eliminate, through several means available under the terms of the contract, Maitland's flagrant disregard of major safety requirements, particularly those relating to the shoring of ditches such as that in which Barron was injured. The Navy's general control of the work made this failure a substantial breach of its duty. Id. at 1084. We agree.
10
Finally, we also hold that the district court's finding that the employee was not contributorily negligent is not clearly erroneous. Id. at 1085.
III.
11
LIABILITY OF THE UNITED STATES FOR FULL AMOUNT OF EMPLOYEE'S DAMAGES
12
The district court, in Part IV of the opinion, held that Barron was "barred from recovering in this action damages attributable to Maitland" and that as a consequence, the third party complaint against Maitland by the United States must be dismissed. Id. at 1088.
13
We hold the district court erred. In support of its holding the district court reasoned that in Kamali v. Hawaiian Electric Co., 54 Haw. 153, 504 P.2d 861 (1972), the Supreme Court of Hawaii held that, inasmuch as workers' compensation provides the exclusive remedy available to an employee against an employer, contribution against a plaintiff's employer is not available to a third party joint tortfeasor. Maitland, the district court concluded, cannot be made to contribute to the United States, the third party joint tortfeasor in this case. Not being entitled to contribution, the United States should be liable to the injured employee only to the extent of its portion of the total fault.
14
In addition, the district court pointed out that its result was required by federal law. Under the Federal Tort Claims Act the United States has not waived its sovereign immunity with respect to claims based on vicarious liability. See Logue v. United States, 412 U.S. 521, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973). This result is required because the waiver of immunity extends only to wrongs by an "employee of the government," 28 U.S.C. § 1346(b), and an employee of a "contractor with the United States," 28 U.S.C. § 2671, is not an "employee of the government." It follows, the district court concluded, that in this case federal law precludes a recovery against the United States with respect to fault properly attributable to Maitland.
15
We have no quarrel with the authorities upon which the district court relies nor with its reading of their provisions. Our difference is that under Hawaiian law the United States as a joint tortfeasor is both jointly and severally liable to the victim of the joint tort. See Petersen v. City and County of Honolulu, 51 Haw. 484, 485, 462 P.2d 1007, 1008 (1970). This is true even when, as here, contribution as against one joint tortfeasor is barred by law. Sugue v. F. L. Smithe Machine Co., 56 Haw. 598, 546 P.2d 527 (1976). Subsequent to the district court's decision in this case this court held that the imposition of several liability by the applicable local law enabled the plaintiff injured party, an employee of a joint tortfeasor independent contractor, to recover his full damages from the United States when it was severally liable therefor. See Rooney v. United States, 634 F.2d 1238, 1244-45 (9th Cir. 1980) (California law); Oakley v. United States, 622 F.2d 447, 448 (9th Cir. 1980) (California law). These decisions were based on two earlier decisions. Under the California comparative fault system we had refused to restrict recovery against the United States under the Tort Claims Act to its proportionate share of fault when the injured party was not an employee of the defendant with whom the United States was a joint tortfeasor. See Rudelson v. United States, 602 F.2d 1326, 1331-33 (9th Cir. 1979) (California law); Mattschei v. United States, 600 F.2d 205, 209 (9th Cir. 1979) (California law). Although each of these cases involved California law as the applicable local law, and although both Rooney and Oakley sought to distinguish the district court's opinion in this case, we conclude that the law of Hawaii is not, in relevant respects, distinguishable from that of California and that this case cannot be distinguished satisfactorily from Rooney and Oakley.
16
Therefore, we hold that the employee plaintiff is not barred from recovering his entire damages from the United States. Such a recovery does not amount to the imposition of vicarious liability. The United States only is being required to answer to the full extent of its several liability as imposed by the applicable local law. We have no statutory authority to accord the United States a position more favored than that available to other joint tortfeasors under local law. Our position leaves untouched the immunity of the United States from liability for the negligent acts of an employee of an independent contractor. Liability in this case, however, rests on the local law consequences of the negligent acts of an "employee of the government." It is true these consequences are substantial and make resolution of controversies such as this case presents somewhat complicated. This, we believe, is a matter better resolved by Congress than by judicial distortion of the consequences under local law of wrongs done by employees of the United States.
IV.
RIGHT OF UNITED STATES TO INDEMNITY
17
We accept, as we must, that the United States under Hawaiian law has no right of contribution from the independent contractor, Maitland, notwithstanding our holding with respect to the scope of the liability of the United States. See Kamali v. Hawaiian Electric Co., supra. This does not bar the United States from seeking indemnity from Maitland to the extent available under federal law, however.
18
The contract between Maitland and the United States provides that the contractor "shall be responsible for all damages to persons or property that occur as a result of his fault or negligence." In United States v. Seckinger, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224 (1970), it was held that the interpretation of this contractual provision was governed by federal law and that the provision entitled the United States to indemnity on a "comparative basis." Id. at 208-09, 90 S.Ct. at 883-884. In explaining its interpretation the Court said:
19
A synthesis of all of the foregoing considerations leads to the conclusion that the most reasonable construction of the clause is the alternative suggestion of the Government, that is, that liability be premised on the basis of comparative negligence. In the first place, this interpretation is consistent with the plain language of the clause, for Seckinger will be required to indemnify the United States to the full extent that its negligence, if any, contributed to the injuries to the employee.
20
Id. at 215, 90 S.Ct. at 887. It follows, therefore, that in this case the United States, although liable to Maitland's employee to the full extent of his damages, is entitled to recover under its contract for indemnity against Maitland "to the full extent its (Maitland's) negligence, if any, contributed to the injuries of the employee (Barron)." For the reasons stated in Seckinger, it is also true that this provision in the contract does not entitle the United States to obtain indemnity "to the extent that the injuries were attributable to the negligence, if any, of the United States." Id. at 216, 90 S.Ct. at 887. An intention to extend indemnification to permit recovery by the United States for its negligence is not "clearly and unequivocally indicated." Id. at 215, 90 S.Ct. at 887. See United States v. English, 521 F.2d 63, 67-68 (9th Cir. 1975).
V.
RIGHTS ON REMAND
21
Our holdings and the district court's dismissal of the third party complaint of the United States against Maitland present a problem. Prior to its removal from the case as a third party defendant Maitland demanded a jury trial, but the district court excused the jury. This was consistent with its ultimate decision to restrict Barron's recovery against the United States to its proportionate part of the total fault and to immunize the third party defendant employer from all claims other than those arising from workers' compensation. Nonetheless, the district court indicated to Maitland that it could intervene and participate in the bench trial to protect its rights because it was possible that a retrial on a different legal theory might be necessary. Maitland declined to intervene and the possibility foreseen by the district court has become, to some extent, a certainty.
22
Confronted with this fact, Maitland insists that it is not bound by the outcome of the district court litigation here being reviewed because it was neither a party nor in privity with a party to that adjudication. Maitland also argues that neither res judicata nor collateral estoppel is applicable because it is entitled to a jury trial with respect to its liability under its contract of indemnity. The effect of Maitland's contentions, if valid, would be to require the United States to proceed against Maitland pursuant to a reinstated third party complaint in which the total amount of damages recoverable by Barron and the respective shares of fault of Maitland and the United States would be redetermined. Maitland also suggests that the employee Barron be required to adjudicate his rights again.
23
The United States, while acknowledging that ordinarily a proceeding on an indemnity contract entitles the indemnitor to a jury trial, argues that Maitland as an indemnitor is bound by the district court's adjudications because it knew of the litigation and was given the opportunity to intervene and defend. These propositions have substantial support. See Wood v. United States, 216 F.Supp. 346 (E.D.N.Y.1963) (party against whom United States makes a claim in a suit under the Federal Tort Claims Act entitled to a jury trial); Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712 (1896) (against one responsible to another by operation of law or express contract, a judgment obtained without fraud and collusion is binding if the one so responsible was given notice and an opportunity to defend). See also Tokio Marine & Fire Insurance Co. v. McDonnell Douglas Corp., 465 F.Supp. 790 (S.D.N.Y.1978); Bedal v. Hallack and Howard Lumber Co., 226 F.2d 526, 535 (9th Cir. 1955).
24
Our resolution of the problem which we confront is as follows. The rights of the plaintiff Barron have been determined. The district court awarded him twenty-five percent of his total damages and we hold that as a matter of law he is entitled to recover the entire amount of these damages from the United States. Barron's rights against the United States as so determined are unaffected by other holdings in this decision. This includes the amount of damages, $803,051.00, found by the district court to have been suffered by Barron.
25
We decline, however, to hold Maitland to all aspects of the district court's adjudication as modified by this decision. We express no opinion whether, under circumstances where the employer's potential duty to indemnify the United States is clear at the outset of the litigation, the failure of the employer to intervene and defend would cause any judgment obligating the indemnitee United States to pay more than its proper share of the damage would be binding on the employer-indemnitor. Under the special circumstances of this case we believe it to be unjust to bind Maitland to that portion of the district court's judgment that, in effect, held it responsible for seventy-five percent of the fault. Therefore, Maitland is entitled to litigate its share of the fault anew. This is consistent with the general principles recently set forth by this court in United States v. Fisher, 652 F.2d 893 (9th Cir. 1981).
26
On the other hand, we hold Maitland is bound by the district court's determination that Barron was injured to the extent of $803,051.00. To permit Maitland to relitigate this before a jury would be inconsistent with at least the spirit of 28 U.S.C. § 2402, which bars jury trials in Federal Tort Claims Act proceedings. It would also create the probability of inconsistent determinations that would prejudice only the United States since a determination that Barron's damages exceeded $803,051.00 would not increase Maitland's liability as indemnitor. The sum of $803,051.00 represents the amount for which the United States is liable and the indemnitor's liability cannot exceed its proper share of that sum. To permit Maitland to attempt to reduce its liability by means of a jury trial on the issue of the amount of Barron's damages would be to provide it with a risk-free opportunity and to a degree, permit a jury to fix the ultimate liability of the United States contrary to 28 U.S.C. § 2402. Moreover, to require a jury trial with respect to damages suffered by a plaintiff-employee, an issue with respect to which the plaintiff-employee himself is not entitled, would be particularly anomalous when, as normally would be the case, the third party defendant employer participates fully in all aspects of the case.
27
Our conclusion is consistent with the principle that a cause of action for indemnity does not accrue until the indemnitee has suffered a loss. For this reason it has been held that when joint tortfeasors are jointly and severally liable they are not required to litigate their claims of partial indemnity among themselves and that if they do they are not required to litigate them in the main action in which their joint and several liability is established. Klemme v. Hoag Memorial Hospital Presbyterian, 103 Cal.App.3d 640, 644, 163 Cal.Rptr. 109, 111 (Fourth Dist. 1980). See American Motorcycle Ass'n v. Superior Court, 20 Cal.3d 578, 146 Cal.Rptr. 182, 578 P.2d 899 (1978).
28
Finally, we hold that Maitland is entitled to a jury trial with respect to all such other issues of fact that may arise in the determination of its liability under its contract of indemnity. United States v. Fisher, 652 F.2d 893 (9th Cir. 1981).
29
Affirmed in Part; Reversed in Part, and Remanded.
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14-423
Chattar v. Lynch
BIA
A075 695 441
A095 302 021
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 1st day of July, two thousand fifteen.
PRESENT:
DENNIS JACOBS,
REENA RAGGI,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
ABDUR CHATTAR, AKA JOHN FRANCIS
CRUZE, NOOR BAHAR, AKA MUKTI
FRANCISCA CRUZE,
Petitioners,
v. 14-423
NAC
LORETTA E. LYNCH, UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONERS: Amy Nussbaum Gell, Gell & Gell,
New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Edward J. Duffy, Paul
Fiorino, Senior Litigation Counsel,
Office of Immigration Litigation,
United States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
Board of Immigration Appeals (“BIA”) decision, it is hereby
ORDERED, ADJUDGED, AND DECREED that the petition for review
is DENIED.
Petitioners Abdur Chattar and Noor Bahar, married
natives and citizens of Bangladesh, seek review of a January
16, 2014, decision of the BIA denying their motion to
reconsider and reopen. In re Abdur Chattar, Noor Bahar,
Nos. A075 695 441/A095 302 021 (B.I.A. Jan. 16, 2014). We
assume the parties’ familiarity with the underlying facts
and procedural history in this case. Petitioners do not
contest the agency’s conclusion that, to the extent their
motion is construed as a motion to reconsider, it was
untimely.
We review the BIA’s denial of a motion to reopen for
abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d
Cir. 2006) (per curiam). “A motion to reopen proceedings
shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not
available and could not have been discovered or presented at
the former hearing . . . .” 8 C.F.R. § 1003.2(c)(1).
2
Failure to offer such evidence is, therefore, a proper
ground on which the BIA may deny a motion to reopen, as is
the movants’ failure to establish a prima facie case for the
underlying substantive relief sought. INS v. Abudu, 485
U.S. 94, 104-05 (1988). When the BIA considers relevant
evidence of country conditions in evaluating a motion to
reopen, we review the BIA’s factual findings under the
substantial evidence standard. Jian Hui Shao v. Mukasey,
546 F.3d 138, 169 (2d Cir. 2008).
The BIA did not abuse its discretion in denying
Petitioners’ motion for failure to demonstrate their prima
facie eligibility for withholding of removal. Petitioners
contend that they met their burden based on evidence
documenting a recent surge in attacks against religious
minorities in Bangladesh. However, the BIA considered this
evidence and reasonably concluded that isolated incidents of
violence against Christians in some parts of Bangladesh were
insufficient to show a reasonable possibility that
Petitioners would likely be singled out for persecution.
See id. at 161-62; Santoso v. Holder, 580 F.3d 110, 112 (2d
Cir. 2009).
3
The BIA also did not err in denying Petitioners’ motion
for failure to demonstrate their prima facie eligibility for
relief under the Convention Against Torture (“CAT”). The
BIA reasonably concluded that the country conditions
evidence did not show that the government of Bangladesh
would acquiesce in their prospective torture. See Khouzam
v. Ashcroft, 361 F.3d 161, 170-71 (2d Cir. 2004) (noting
that applicant for CAT relief must show that torture would
be perpetrated with the government’s consent, acquiescence,
or willful blindness).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
4
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[Cite as Barnett v. Ohio Dept. of Rehab. & Corr., 2009-Ohio-7022.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
JACK BARNETT
Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant
Case No. 2002-09382
Judge J. Craig Wright
Magistrate Steven A. Larson
DECISION
{¶ 1} On March 16, 2009, the magistrate issued a decision recommending
judgment for defendant.
{¶ 2} Civ.R. 53(D)(3)(b)(i) states, in part: “A party may file written objections to a
magistrate’s decision within fourteen days of the filing of the decision, whether or not the
court has adopted the decision during that fourteen-day period as permitted by Civ.R.
53(D)(4)(e)(i).” On April 13, 2009, plaintiff filed his objections. On April 21, 2009,
defendant filed a response.
{¶ 3} Plaintiff filed this action as a result of two separate incidents in which he
sustained injury while employed as an inmate kitchen worker at Madison Correctional
Institution. One incident involved injuries that occurred when plaintiff was cleaning a tilt
grill with “Hot Shot”; the other incident involved an electrical shock that plaintiff
sustained when working with a food-warming device known as a “hot box.” With
respect to the first incident, the magistrate found that plaintiff’s allegations that he was
not trained for the use of Hot Shot, was not aware that it contained caustic chemicals,
and was not provided with protective clothing, lacked credibility. As to the second
incident, the magistrate found that the evidence failed to demonstrate that defendant
had either actual or constructive notice of any defect with the hot box. The magistrate
concluded that plaintiff failed to prove either of his negligence claims by a
preponderance of the evidence.
{¶ 4} In his first objection, plaintiff alleges that the magistrate erred in applying
and interpreting the law in McCoy v. Engle (1987), 42 Ohio App.3d 204 which case
references Fondern v. Ohio Dept. of Rehab. & Corr. (1977), 51 Ohio App.2d 180, as to
the duty of care owed to prison workers. Plaintiff argues that the holdings in both cases
are outdated in that they were decided prior to the advent of many current state and
federal safety regulations which are required in defendant’s penal institutions.
{¶ 5} In Fondern, the Tenth District Court of Appeals held that “[a]n inmate of a
penal institution is not an employee of the state of Ohio for purposes of applying R.C.
Chapter 4113 in an action brought by the inmate for injuries received while performing
work within the institution.” Fondern at 183. The court held that the appropriate
standard of care to be applied was that “‘the injured prisoner must prove that the
negligence of the responsible officials proximately caused the injuries complained of.
Id. In McCoy, the court reiterated that “there was and is a common-law duty of due care
owed by the state to its prisoners.” McCoy at 208, citing Fondern at 183. (Additional
citations omitted.) The court added that “it should also be remembered that the duty
does not exist in the abstract. Thus, where a prisoner also performs labor for the state,
the duty owed by the state must be defined in the context of those additional factors
which characterize the particular work performed.” Id.
{¶ 6} Plaintiff asserts that defendant failed to provide safety protections required
under Ohio Adm.Code sections 4123:1-5-17(C)(1), 4123:1-5-17(I)(1), 3717-1-07(C)(1),
and an Occupational Safety and Health Administration regulation set forth under 29
U.S.C. 1910.138(a), all of which enumerate various workplace precautionary measures
required of employers. However, plaintiff has pointed to no legal authority that
mandates that defendant provide such protections to the inmate workforce in the
manner specified in the regulations. The holdings in Fondern and McCoy have never
been overturned; thus, the rule of law remains that “ordinary prison labor performed by
an inmate in a state correctional institution facility is not predicated upon an employer-
employee relationship and thus does not fall within the scope of worker-protection
statutes.” McElfresh v. Ohio Dept. of Rehab. & Corr., Franklin App. No. 04AP-177,
2004-Ohio-5545, ¶15, citing Fondern, supra, Moore v. Ohio Dept. of Rehab. & Corr.
(1993), 89 Ohio App.3d 107, 111; Watkins v. Ohio Dept. of Rehab. & Corr. (1998), 61
Ohio Misc.2d 295, 298. The court concludes that the magistrate correctly applied the
common law negligence standard of care in rending his recommendation. Accordingly,
plaintiff’s first objection is OVERRULED.
{¶ 7} In his second objection, plaintiff asserts that defendant’s failure to apply
the “safe place to work standard” to prison employees violates the 5th and 14th
Amendments to the Constitution of the United States and Article I, Section 2 of the Ohio
Constitution, as to both incidents at issue. Plaintiff did not raise this issue in his
complaint or at trial. Nevertheless, a claim premised upon the violation of
constitutionally guaranteed rights states a claim for relief under 42 U.S.C. 1983. Jett v.
Dallas Indep. School Dist. (1989), 491 U.S. 701. It has consistently been held that such
actions may not be brought against the state in the Court of Claims under 42 U.S.C.
1983 inasmuch as the state is not a “person” within the meaning of that section. See,
e.g., Burkey v. Southern Ohio Correctional Facility (1988), 38 Ohio App.3d 170; White v.
Chillicothe Correctional Institution (Dec. 29, 1992), Franklin App. No. 92AP-1230. Thus,
even if the alleged constitutional violations had previously been raised, this court is
without jurisdiction to hear such claims. Plaintiff’s second objection is, accordingly,
OVERRULED.
{¶ 8} In his third, fourth, and sixth objections, plaintiff takes issue with
defendant’s practice of providing Hot Shot to inmates in unmarked spray bottles with no
warning label or cautionary instructions for its use. Plaintiff contends that such practice
led him to believe that the product was safe for use without protective clothing and that
the “generic” training he received was not adequate to prepare him for the potential
dangers to which he might be exposed in his kitchen work. Although there was
testimony that inmates were trained to wear safety gear when using caustic chemicals,
plaintiff asserts that defendant’s practice of keeping such gear under lock and key until it
is requested violates safety regulations. Plaintiff further argues that defendant violated
its own safety policies in that no one in authority insisted that he use protective clothing
when he worked with the Hot Shot product for approximately twenty minutes without
gloves, an apron, or safety goggles.
{¶ 9} Upon review, the court finds that the evidence supports the magistrate’s
finding that the injury plaintiff sustained by his use of the Hot Shot product was not the
result any breach of duty on the part of defendant but, rather, it was occasioned by
plaintiff’s own careless use of the product.
{¶ 10} The testimony of Warren Gebhart, MCI’s safety and health coordinator,
and Christine Reese, an MCI food coordinator, established that inmates received safety
training prior to beginning work in the kitchen, including both instruction on the use of
caustic chemicals and directions for using and obtaining protective clothing. The
kitchen workers were required to sign an acknowledgment form attesting to the fact that
they received such training, and plaintiff did so. (Defendant’s Exhibits B and C.) There
was also testimony that there had been no known previous complaints of inadequate
training and that there were no known cases of burn injuries caused by Hot Shot prior to
plaintiff’s injury. In addition, plaintiff had been employed in the kitchen for approximately
two years prior to the incident, and he testified that he was aware of the caustic nature
of oven cleaning products prior to his incarceration. Moreover, the magistrate did not
find plaintiff’s testimony regarding lack of training or unavailability of safety gear to be
credible.
{¶ 11} It is well settled that the trier of fact “is best able to view the witnesses and
observe their demeanor, gestures, and voice inflections, and use those observations in
weighing the credibility of the testimony.” Bey v. Bey, Mercer App. No. 10-08-12, 2009-
Ohio-300, ¶15, citing Barkley v. Barkley (1997), 119 Ohio App.3d 155, 159; In re Jane
Doe 1 (1991), 57 Ohio St.3d 135. It is equally clear that the trier of fact “who hears a
witness testify may believe any, any part or none of the testimony given.” Ross v.
Biomet-Ross, Inc., (Dec. 4, 1989), Logan App. No. 8-88-12, citing Cleveland Heights v.
Friedman (June 15, 1955), Cuyahoga App No. 23406. There is nothing in the record
that persuades the court that the magistrate’s findings as to credibility or negligence
were in error. Therefore, plaintiff’s third, fourth, and sixth objections are OVERRULED.
{¶ 12} In his fifth and seventh objections, plaintiff asserts that the magistrate
erred in ruling that defendant did not have knowledge that the hot boxes “regularly” had
electrical problems before plaintiff experienced an electrical shock; in ruling that
defendant was not negligent in failing to warn of the potential for electrical shock; and in
ruling that plaintiff was required to prove actual notice of the defect in the hot box that
caused his injury.
{¶ 13} The court finds that the magistrate relied upon competent, credible
evidence in rendering his decision concerning this incident. Several of defendant’s
employees testified that the kitchen equipment was regularly inspected and that, if
injuries were reported or defects noted, the particular equipment would be removed and
repaired. There was testimony that, when the hot box that caused plaintiff’s injury was
taken to repair, it was found to have a damaged electrical cord. Gebhart testified that
inmates were known to unplug the boxes by pulling the cord from the wall rather than
grasping the base of the plug at the outlet. Plaintiff testified that he had worked with the
hot boxes on a daily basis for at least one year prior to his injury and that he had never
previously been shocked nor was he aware of anyone else who had been.
{¶ 14} The magistrate addressed the issue of both actual and constructive notice,
and did not rule that plaintiff was required to show actual notice of the defective cord.
Rather, the magistrate found, and the court agrees, that there was no evidence that the
defect had existed for a sufficient length of time to put defendant on notice that the box
had become unsafe. Defendant cannot be held liable for failing to warn of a condition
that it did not know existed. The court agrees with plaintiff’s contention that safety
measures could have been taken to prevent damage to electrical cords caused by their
improper removal from outlets by inmates; however, absent any evidence of prior
injuries caused by the practice, the court finds that failure to take such measures does
not constitute a breach of duty on the part of defendant. As has often been noted, “[i]t is
nearly always easy, after an accident has happened, to see how it could have been
avoided. But negligence is not a matter to be judged after the occurrence. It is always
a question of what reasonably prudent men under the same circumstances would or
should, in the exercise of reasonable care, have anticipated.” Grabill v. Worthington
Indus. (1994), 98 Ohio App.3d 739, 744-745. Accordingly, plaintiff’s fifth and seventh
objections OVERRULED.
{¶ 15} In his final objection, plaintiff asserts that the magistrate’s ruling is against
the manifest weight of the evidence. Having overruled each of the foregoing objections,
the court concludes that the magistrate has properly determined the factual issues and
appropriately applied the law with respect to both claims of negligence. Therefore, all of
the objections are OVERRULED and the court shall adopt the magistrate’s decision and
recommendation as its own, including the findings of fact and conclusions of law
contained therein. Judgment shall be rendered in favor of defendant.
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
JACK BARNETT
Plaintiff
v.
OHIO DEPARTMENT OF REHABILITATION AND CORRECTION
Defendant
Case No. 2002-09382
Judge J. Craig Wright
Magistrate Steven A. Larson
JUDGMENT ENTRY
For the reasons set forth in the decision filed concurrently herewith, and having
overruled each of plaintiff’s objections, the court adopts the magistrate’s decision and
recommendation as its own, including findings of fact and conclusions of law contained
therein. Judgment is rendered in favor of defendant. Court costs are assessed against
plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of
entry upon the journal.
_____________________________________
J. CRAIG WRIGHT
Judge
cc:
Peter E. DeMarco Richard F. Swope
Stephanie D. Pestello-Sharf 6504 East Main Street
Assistant Attorneys General Reynoldsburg, Ohio 43068-2268
150 East Gay Street, 18th Floor
Columbus, Ohio 43215-3130
LH/cmd
Filed November 17, 2009
To S.C. reporter December 29, 2009
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42 U.S. 202 (____)
1 How. 202
WILLIAM T. McCLURG, JOHN C. PARRY, AND ENOCH J. HIGBY, PARTNERS, DOING BUSINESS UNDER THE FIRM OF McCLURG, PARRY, AND HIGBY, ASSIGNEES OF JAMES HARLEY, PLAINTIFFS IN ERROR,
v.
LAWRENCE KINGSLAND, ISAAC LIGHTNER. AND JAMES CUDDY, PARTNERS, DOING BUSINESS UNDER THE FIRM OF KINGSLAND, LIGHTNER, AND CUDDY, DEFENDANTS.
Supreme Court of United States.
*204 Dunlap, on behalf of the plaintiffs in error.
Mr. Justice BALDWIN delivered the opinion of the court.
This case comes here on a writ of error to the Circuit Court for the western district of Pennsylvania, in an action brought by the plaintiffs, assignees of James Harley, against the defendants, for the infringement of a patent granted to Harley for an improvement in the mode of casting chilled rollers and other metallic cylinders and cones, in which judgment was rendered for the defendants. On the trial it appeared in evidence that it had long been a desideratum to find out some mode by which iron rollers or cylinders could be so cast that when the metal was introduced into the mould it should cause a swyrl or rotatory motion, by which the flog or dross would be thrown into the centre instead of the surface of the cylinder. By the old mode, the metal was conveyed from the furnace to the mould through a gate, or pipe, placed in a horizontal or perpendicular direction. The mode alleged to have been invented by Harley is thus described in the specification annexed to the patent: "The tube or tubes, or passages called gates, through which the metal to be conveyed into the moulds shall not enter the mould perpendicularly at the bottom, but slanting, or in a direction approaching to a tangent of the cylinder, or if the gates enter the moulds horizontally or nearly so, shall not enter in the direction of the axis of the cylinder, but in a tangent form, or inclining towards a tangent of the cylinder."
This was the thing patented, consisting solely in changing the direction of the tube, which conveyed the metal to the mould, *205 from a horizontal or perpendicular position to an angular one; it produced the desired effect and was highly useful.
The novelty of the invention was much contested at the trial, but as the case turned on other points, that became an immaterial question; as the case comes before us, on exceptions to the charge of the court, which assumed that Harley was the original and true inventor of the improvement, and put the case to the jury on the following facts, which were in full proof, in nowise contradicted, and admitted to be true.
That Harley was employed by the defendants at their foundry in Pittsburgh, receiving wages from them by the week; while so employed, he claimed to have invented the improvement patented, and after several unsuccessful experiments made a successful one in October, 1834; the experiments were made in the defendants' foundry, and wholly at their expense, while Harley was receiving his wages, which were increased on account of the useful result. Harley continued in their employment on wages until January of February, 1835, during all which time he made rollers for them; he often spoke about procuring a patent, and prepared more than one set of papers for the purpose; made his application the 17th February, 1835, for a patent; it was granted on the 3d of March, assigned to the plaintiffs on the 16th of March, pursuant to an agreement made in January.
While Harley continued in the defendants' employment, he proposed that they should take out a patent and purchase his right, which they declined; he made no demand on them for any compensation for using his improvement, nor gave them any notice not to use it, till, on some misunderstanding on another subject, he gave them such notice, about the time of his leaving their foundry, and after making the agreement with the plaintiffs, who owned a foundry in Pittsburgh, for an assignment to them of his right. The defendants continuing to make rollers on Harley's plan, the present action was brought in October, 1835, without any previous notice by them. The court left it to the jury to decide what the facts of the case were; but if they were as testified, charged that they would fully justify the presumption of a license, a special privilege, or grant to the defendants to use the invention; that the facts amounted to "a consent and allowance of such use," and show such a consideration as would support *206 an express license or grant, or call for the presumption of one to meet the justice of the case, by exempting them from liability; having equal effect with a license, and giving the defendants a right to the continued use of the invention. The court also charged the jury, that the facts of the case, which were not controverted, brought it within the provisions of the 7th section of the act of 1839, by the unmolested, notorious use of the invention, before the application for a patent by Harley, and that nothing had been shown by the plaintiffs to counteract the effect of this prior use. That as assignees of Harley, the plaintiffs stand in his place, as to right and responsibility; they took the assignment of the patent, subject to the legal consequences of his previous acts, and connecting these with the absence of an assertion of a right adverse to the defendants use till this suit was brought, protected the defendants from liability for any damages therefor.
The exceptions to the charge were confined to these two points, which constitute the only subject for our consideration. Whether these exceptions are well taken or not, must depend on the law as it stood at the emanation of the patent, together with such changes as have been since made; for though they may be retrospective in their operation, that is not a sound objection to their validity; the powers of Congress to legislate upon the subject of patents is plenary by the terms of the Constitution, and as there are no restraints on its exercise, there can be no limitation of their right to modify them at their pleasure, so that they do not take away the rights of property in existing patents.
When the patent to Harley was granted, and this suit brought, the acts of 1793 and 1800 were the tests of its validity, but the 21st section of the act of 1836 repealed all existing laws on the subject of patents, with a proviso, that all suits brought before may be prosecuted in the same manner as if that act had not been passed, "excepting and saving the application to any such action, of the provision of the 14th and 15th sections of this act, so far as they may be applicable thereto." This repeal, however, can have no effect to impair the right of property then existing in a patentee, or his assignee, according to the well-established principles of this court in 8 Wheat. 493; the patent must therefore stand as if the acts of 1793 and 1800 remained in force; in other respects the 14th and 15th sections of the act of *207 1836 prescribe the rules which must govern on the trial of actions for the violation of patented rights, whether granted before or after its passage.
In Pennock v. Dialogue, this court held, in 1829, "that if an inventor makes his discovery public, looks on, and permits others freely to use it, without objection or assertion of claim to the invention, of which the public might take notice; he abandons the inchoate right to the exclusive use of the invention, to which a patent would have entitled him, had it been applied for, before such use, and that it makes no difference in the principle, that the article so publicly used, and afterwards patented, was made by a particular individual who did so by the private permission of the inventor." 2 Peters, 14, 15; S.P. Grant v. Raymond, 6 Peters, 248, 249; Shaw v. Cooper, 7 Peters, 313-323.
On this construction of the acts of 1793 and 1800, Harley's patent would have been void, on the evidence in this case. Such seems to have been the sense of Congress, as expressed in the act of 1832, which authorized the issuing a new patent, when an original one was invalid by accident, inadvertence, or mistake, and without any fraudulent intent, by reason of the terms of the 3d section of the act of 1793 not having been complied with, "Provided, however, that such new patent so granted shall in all respects be liable to the same matters of objection and defence as any original patent, granted under the said first-mentioned act. That no public use or privilege of the invention so patented, derived from or after the grant of the original patent, either under any special license of the inventor, or without the consent of the patentee that there shall be free public use thereof, shall in any manner prejudice the right of recovery for any use or violation of his invention after the grant of such new patent, as aforesaid." 4 Story, 2301.
This act is an affirmance of the principles laid down by this court in the three cases before referred to, and as the exception to the proviso is limited to an use of the invention under a special license of the inventor after the grant of the original patent, it leaves the use prior to the application for such patent clearly obnoxious to the principle established in 2 Peters, 14, 15, whereby the patent would become void.
The same conclusion follows from the 15th section of the act *208 of 1836, which declares, that if the thing patented "had been in public use, or on sale, with the consent and allowance of the patentee, before the application for a patent," judgment shall be rendered for the defendant with costs. 4 Story, 2511. The case before us is one of this description: the defendants use the invention of Harley for four months before his application for a patent; this use was public, and not only with his express consent and allowance, but he himself made the rollers on the plan he invented during those months, from the time when he had ascertained the utility of his invention.
It would, therefore, be no strained, if not the fair construction of this act, if under such and the other circumstances in evidence in the cause, the court had charged the jury, that if they believed the witnesses, the patent subsequently obtained was void. The Circuit Court, however, did not go so far: they held that the defendants might continue to use the invention, without saying that the public might use it, without liability to the plaintiffs, in which we think there was no error in their direction to the jury; that they might presume a license or grant from Harley, or on the legal effect of the uncontroverted evidence as to the right of recovery, by the plaintiffs, or on the construction of the acts of 1793, 1800, 1832, and 1836.
The remaining exception is to the charge of the court below, on the effect of the 7th section of the act of 1839, which is in these words: "That every person or corporation who has, or shall have purchased or constructed any newly-invented machine, manufacture, or composition of matter, prior to the application by the inventor or discoverer of a patent, shall be held to possess the right to use and vend to others to be used, the specific machine, manufacture, or composition of matter, so made or purchased, without liability therefore to the inventor, or any other person interested in such invention; and no patent shall be held invalid by reason of such purchase, sale, or use prior to the application for a patent as aforesaid, except on proof of abandonment of such invention to the public, or that such purchase, sale, or prior use has been for more than two years prior to such application for a patent." Pamphlet Laws, 1839, 74, 75.
The object of this provision is evidently twofold; first, to protect the person who has used the thing patented, by having purchased, *209 constructed, or made the machine, &c., to which the invention is applied, from any liability to the patentee or his assignee. Second, to protect the rights, granted to the patentee, against any infringement by any other persons. This relieved him from the effects of former laws and their constructions by this court, unless in case of an abandonment of the invention, or a continued prior use for more than two years before the application for a patent, while it puts the person who has had such prior use on the same footing as if he had a special license from the inventor to use his invention; which, if given before the application for a patent, would justify the continued use after it issued without liability.
At the trial below, and here, the plaintiff's counsel have contended, that this act cannot apply to the present case, inasmuch as the protection it affords to the person who had the prior use, is confined to the specific machine, &c., and does not extend to such use of the invention, or thing patented, if it does not consist of a machine, &c., as contradistinguished from the new mode or manner in which an old machine or its parts operates, so as to produce the desired effect; but we think that the law does not admit of such construction, whether we look at its words or its manifest objects, when taken in connection with former laws, and the decisions of this court in analogous cases.
The words "such invention" must be referred back to the preceding part of the sentence, in order to ascertain the subject-matter to which it relates, which is none other than the newly-invented machine, manufacture, or composition of matter constituting the thing patented; otherwise these words become senseless when the invention is not strictly of a machine, &c. Now, in the present case, we find the invention consists solely in the angular direction given to the tube through which the metal is conducted into the cylinder in which the roller is cast. Every part of the machinery is old, the roller itself is no part of the invention, and cannot be the machine, manufacture, or composition of matter contemplated by Congress, nor can the word "specific" have any practical effect unless it is applied to the thing patented, whatever it may be, without making a distinction between a machine, &c., and the mode of producing a useful result by the mere direction given to one of the parts of an old machine. Such a construction *210 is not justified by the language of the law, and would defeat both of its objects. If it does not embrace the case before us, the consequence would be that the use of the invention, under the circumstances in evidence, would, according to the decision in 2 Peters, 14, 15, invalidate the patent; for if the act operates to save the avoidance of the patent, it must, of consequence, protect the person who uses the invention before the application for a patent. Both objects must be effected, or both must fail, as both parts of the act refer to the same thing, and the same state of things, as affecting the person using the newly-invented machine, or the thing patented, as well as the inventor. Had the words "invention," or "thing patented," been used instead of machine, &c., there could have been no room for doubt of the application of the act to the present case; and by referring to the phraseology of the different acts of Congress denoting the invention, it is apparent that, though there is a difference in the words used, there is none as to their meaning or reference to the same thing. Thus we find in the 14th section of the act of 1836, relating to suits for using "the thing whereof the exclusive right is secured by any patent," in the 15th, "his invention, his discovery, the thing patented," "that which was in fact invented or discovered," "the invention or discovery for which the patent issued," "that of which he was the first inventor." In the 1st section of the act of 1837 "any patent for any invention, discovery, or improvement," "inventions and discoveries;" in the 2d section, "the invention;" in the 3d, "invention or discovery;" in the 4th, "patented inventions and improvements;" in the 5th, "the thing as originally invented." 4 Story, 2510, 2511, 2546.
We, therefore, feel bound to take the words "newly-invented machine, manufacture, or composition of matter" and "such invention," in the act of 1839, to mean the "invention patented," and the words "specific machine," to refer to "the thing as originally invented," whereof the right is secured by patent; but not to any newly-invented improvement on a thing once patented. The use of the invention before an application for a patent must be the specific improvement then invented and used by the person who had purchased, constructed, or used the machine to which the invention is applied: so construed, the objects of the act of 1839 are accomplished; a different construction would *211 make it necessary to carry into all former laws the same literal exposition of the various terms used to express the same thing, and thereby changing the law according to every change of mere phraseology, make it a labyrinth of inextricable confusion.
We are, therefore, of opinion that there is no error in the charge of the court below, and that its judgment be affirmed.
ORDER.
This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the western district of Pennsylvania, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be and the same is hereby affirmed, with costs.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GEORGE FORGICH,
Petitioner,
v.
NORFOLK SHIPBUILDING & DRYDOCK
No. 96-2574
CORPORATION; DIRECTOR, OFFICE OF
WORKERS' COMPENSATION PROGRAMS,
UNITED STATES DEPARTMENT OF
LABOR,
Respondents.
On Petition for Review of an Order
of the Benefits Review Board.
(95-1939)
Argued: April 8, 1998
Decided: August 4, 1998
Before WILKINSON, Chief Judge, NIEMEYER, Circuit Judge, and
CHAMBERS, United States District Judge for the Southern District
of West Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: John Harlow Klein, RUTTER & MONTAGNA, L.L.P.,
Norfolk, Virginia, for Petitioner. Richard John Barrett, VANDE-
VENTER, BLACK, MEREDITH & MARTIN, L.L.P., Norfolk, Vir-
ginia, for Respondents. ON BRIEF: Matthew H. Kraft, RUTTER &
MONTAGNA, L.L.P., Norfolk, Virginia, for Petitioner. Kelly O.
Stokes, VANDEVENTER, BLACK, MEREDITH & MARTIN,
L.L.P., Norfolk, Virginia, for Respondents.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
George Forgich appeals the decision of the Benefits Review Board
denying him workers' compensation benefits under the Longshore
and Harbor Workers' Compensation Act, 33 U.S.C.§ 901 et seq.
Concluding that substantial evidence supports the Board's decision,
we affirm.
I
In March 1985, Forgich began his employment with Norfolk Ship-
ping & Drydock Corporation ("Norshipco") as a machinist's appren-
tice. A few months later, Forgich injured his right knee during the
course of his employment. Dr. Robert Neff, who treated Forgich,
determined that Forgich had sustained a 15% permanent partial dis-
ability of his right lower leg. Forgich returned to regular duty at the
machine shop in December 1988, although he continued to receive
treatment for his injury until June 1990.
Upon completion of his apprenticeship, Forgich was promoted to
machinist second-class and thereafter to machinist first-class.
In May 1990, again while working in the course of his employ-
ment, Forgich sustained an injury to his right foot, and again Dr. Neff
treated the injury. Dr. Neff assigned an additional 5% permanent par-
tial impairment of the right leg as a result of this injury and returned
2
Forgich to work in April 1991 with physical restrictions, including
limitations on climbing stairs and ladders. When Forgich returned to
work, Norshipco provided him with light-duty work in the machine
shop.
Several months later, in July 1991, Forgich resigned from his posi-
tion at Norshipco to begin work for another company, CACI. In Octo-
ber 1992, he returned to work for Norshipco, again working as a
machinist first-class. He continued as an employee of Norshipco until
February 23, 1994, when he began working as a tool and dye maker
for another company, Sorbilite, where he continues to work today.
During the period from April 1991 until the present, Forgich has
worked continuously except for two relatively short periods when
Norshipco laid off Forgich, along with a number of other employees
at his seniority level, because of economic conditions. The first lay-
off, which involved approximately 25% of Norshipco's machine
shop, lasted about three weeks from June 21, 1993, until July 12,
1993, and the second layoff, which involved over 50% of the shop,
lasted about eight weeks from December 27, 1993, until February 22,
1994.
Forgich filed a claim for workers' compensation benefits under the
Longshore Act for the eleven weeks that he was laid off in the sum-
mer of 1993 and the winter of 1993-94. The administrative law judge
denied benefits, noting that the layoffs were caused entirely by eco-
nomic reasons and were in no way related to any employment injury.
He concluded, "As there is no evidence that the layoffs or Claimant's
participation therein were related to his employment injuries, he is not
entitled to compensation for those periods of time that he was out of
work." The Benefits Review Board summarily affirmed, and this
appeal followed.
II
To qualify for benefits under the Longshore Act, the claimant bears
an initial burden of demonstrating that due to his work-related injury,
he was incapable of returning to his prior employment. See, e.g.,
Universal Maritime Corp. v. Moore, 126 F.3d 256, 264 (4th Cir.
1997); Newport News Shipbuilding & Dry Dock Co. v. Tann, 841
3
F.2d 540, 542 (4th Cir. 1988). Once the claimant has satisfied this
burden, he is eligible for benefits unless the employer is able to dem-
onstrate that the claimant is capable of performing suitable alternative
employment. See, e.g., Brooks v. Director, OWCP, 2 F.3d 64, 65 (4th
Cir. 1993) (per curiam); Newport News Shipbuilding & Dry Dock Co.
v. Director, OWCP, 592 F.2d 762, 765 (4th Cir. 1979). In order to
demonstrate suitable alternative employment, "the employer must
demonstrate that `there [are] jobs available in the local economy
which the claimant, considering his age, past experience and disabil-
ity, [is] capable of performing.'" Newport News, 592 F.2d at 765
(quoting Hicks v. Gardner, 393 F.2d 299 (4th Cir. 1968) (alterations
in original)). One of the ways in which the employer can satisfy this
burden is by "showing a suitable job that the claimant actually per-
formed after his injury." Brooks, 2 F.3d at 65. The employer can also
present or point to evidence in the record of other jobs that are avail-
able in the relevant geographic market for which the claimant is phys-
ically and educationally qualified. See Tann, 841 F.2d at 542-43. The
employer need not, however, actually contact potential employers; to
meet its burden it need only "demonstrat[e] the availability of specific
jobs in a local market." Universal Maritime , 126 F.3d at 265.
In this case, even if Forgich had met his burden of proof and shown
that, because of his physical limitations, he was unable to return to his
previous employment as a machinist first class, there was substantial
evidence in the record to support the conclusion that there were other
jobs in the relevant economy which Forgich could perform. In addi-
tion to continuing as a machinist at Norshipco after his injuries, the
record shows that Forgich also worked at CACI and Sorbilite. Forgich
contends, however, that Norshipco did not meet its burden of showing
that these other jobs existed during the periods of the economic lay-
offs because Forgich's employment at CACI and Sorbilite occurred
during different periods. We do not agree, however, that evidence of
Forgich's employment at CACI and Sorbilite was irrelevant to
whether suitable employment existed at the time of the layoffs. The
fact that Forgich has been able to work continuously since April 1991
and to obtain multiple jobs during that period, interrupted only by the
brief layoffs at Norshipco, is sufficient to satisfy Norshipco's burden.
Moreover, there is no evidence in the record to indicate that the brief
layoffs were anything other than economic in nature. Neither Forgich
4
nor any other workers with disabilities were laid off because of their
disabled status.
In short, from 1991 onward, Forgich has held a series of four jobs
for three employers, which demonstrates that he was capable of work-
ing and of finding and changing jobs freely. Based on this evidence
in the record, we cannot say that there was a lack of substantial evi-
dence from which the ALJ could have concluded that Forgich was
able to engage in substantial gainful employment after his injury. See
Tann, 841 F.2d at 543; 33 U.S.C. § 921(b)(3) ("findings of fact in the
decision under review . . . shall be conclusive if supported by substan-
tial evidence in the record considered as a whole").
For the foregoing reasons, the decision of the Benefits Review
Board is
AFFIRMED.
5
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NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
ANGELA D. NAILS,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2016-1170
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2749, Chief Judge Bruce E.
Kasold.
______________________
Decided: June 10, 2016
______________________
ANGELA D. NAILS, Brownstown, MI, pro se.
ERIC LAUFGRABEN, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent-appellee. Also represent-
ed by BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,
PATRICIA M. MCCARTHY; Y. KEN LEE, DEREK SCADDEN,
Office of General Counsel, United States Department of
Veterans Affairs, Washington, DC.
2 NAILS v. MCDONALD
______________________
Before LOURIE, MOORE, and CHEN, Circuit Judges.
PER CURIAM.
Angela D. Nails appeals from the decision of the Court
of Appeals for Veterans Claims (“Veterans Court”). We
dismiss for lack of jurisdiction.
BACKGROUND
Ms. Nails served honorably on active duty in the U.S.
Army from April 1981 to August 1982. In February 2008,
she filed a claim for service-connected disability compen-
sation (“disability claim”) for a left foot condition and for
nonservice-connected pension benefits (“pension claim”).
The Veterans Affairs’ Regional Office (“RO”) denied her
disability claim based on its finding that her left foot
condition was not related to her military service. The RO
also denied her pension claim, noting that she had not
served during a period of war. She appealed the decision
to the Board of Veterans’ Appeals (“Board”). In the mean-
time, she filed new disability claims for a right foot condi-
tion and major depression (“depression claim”) in January
2014, which were both denied by the RO in June 2014. In
August 2014, the Board issued its decision on her claims
from 2008, granting her disability claim for residuals of
her left ganglion cyst removal surgery, but denying her
pension claim.
Ms. Nails appealed the Board’s decision to the Veter-
ans Court, arguing that (i) the Board erred in denying her
pension claim, and (ii) she is entitled to her depression
claim. The Veterans Court affirmed the Board’s denial of
Ms. Nails’ pension claim, reasoning that the Board’s
finding that she did not serve during a period of war was
not clearly erroneous. As to her depression claim, the
Veterans Court dismissed for lack of jurisdiction because
she had not appealed the RO’s June 2014 decision deny-
NAILS v. MCDONALD 3
ing her depression claim to the Board. Ms. Nails appeals
the Veterans Court’s decision. 1
DISCUSSION
Our jurisdiction to review the decisions by the Veter-
ans Court is limited by statute. We may review a Veter-
ans Court’s decision “with respect to the validity of a
decision of the Court on a rule of law or of any statute or
regulation . . . or any interpretation thereof . . . that was
relied on by the [Veterans Court] in making the decision.”
38 U.S.C. § 7292(a) (2012). Except where an appeal raises
a constitutional issue, we lack jurisdiction to review a
“challenge to a factual determination” or a “challenge to a
law or regulation as applied to the facts of a particular
case.” Id. § 7292(d)(2).
We first address Ms. Nails’ pension claim. Non-
service-connected pension benefits are needs-based and
have certain eligibility requirements. A threshold re-
quirement for eligibility is that the veteran served “during
a period of war.” 38 U.S.C. § 1521(j) (2002); see also 38
C.F.R. § 3.3(a)(3) (2013). The term “period of war” is
defined in 38 U.S.C. § 101(11) (2002) to include, among
others, the Vietnam era, which ended on May 7, 1975, and
the Persian Gulf War, which began on August 2, 1990.
There is no recognized period of war between the Vietnam
era, which ended on May 7, 1975, and the Persian Gulf
War, which began on August 2, 1990. Mason v. Principi,
16 Vet. App. 129, 131 (2002).
1 Ms. Nails asks us to “grant court appointed coun-
sel,” Appellant Br. 2, but we do not have any procedure to
appoint counsel. Wickliffe v. Brown, 1 F.3d 1252, 1252
n. 1 (Fed. Cir. 1993) (unpublished); see Guide for Pro Se
Petitioners and Appellants ¶ 1,
http://www.cafc.uscourts.gov/sites/default/files/Pro%20Se
%20Guide.pdf.
4 NAILS v. MCDONALD
Ms. Nails’ challenge to the Veterans Court’s determi-
nation of her veteran status does not raise a legal issue
over which we have jurisdiction. The Board made a
factual finding that Ms. Nails served in the Army from
April 1981 to August 1982, which was affirmed by the
Veterans Court. It is undisputed that there is no recog-
nized period of war in 1981 or 1982, and Ms. Nails does
not raise any issues over the validity or interpretation of a
statute or regulation. Ms. Nails’ challenge thus requires
us to evaluate the Board’s factual finding or at most
application of law to the facts, to which we lack jurisdic-
tion. 38 U.S.C. § 7292. Ms. Nails’ appeal as to her pen-
sion claim is dismissed.
We next address Ms. Nails’ depression claim.
Ms. Nails contests the Veterans Court’s determination
that it lacked jurisdiction to consider her depression claim
because she had not appealed the RO’s decision. Whether
the Veterans Court possessed jurisdiction over Ms. Nails’
appeal is “an issue of statutory construction that we
review without deference.” Howard v. Gober, 220 F.3d
1341, 1343 (Fed. Cir. 2000) (citations omitted).
The Veterans Court correctly dismissed Ms. Nails’ de-
pression claim under a proper interpretation of 38 U.S.C.
§ 7252. The Veterans Court’s jurisdiction “is premised on
and defined by the Board’s decision concerning the matter
being appealed, and when the Board has not rendered a
decision on a particular issue, the [Veterans Court] has no
jurisdiction to consider it under section 7252(a).” Howard,
220 F.3d at 1344. Because Ms. Nails had not appealed
the RO’s 2014 decision on her depression claim to the
Board, the Veterans Court lacked jurisdiction over her
depression claim.
CONCLUSION
The appeal is dismissed for lack of jurisdiction as to
Ms. Nails’ claim for nonservice-connected pension bene-
NAILS v. MCDONALD 5
fits. The Veterans Court’s dismissal for lack of jurisdic-
tion over Ms. Nails’ depression claim is affirmed.
AFFIRMED IN PART AND DISMISSED IN PART
COSTS
No costs.
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36 F.3d 1091
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.Freddy Sylvestor CAMPBELL, Plaintiff Appellant,v.WEST VIRGINIA DEPARTMENT OF CORRECTIONS; Nicholas J. Hun,Commissioner; Transor America, Incorporated; TwoUnknown Drivers, Defendants Appellees.
No. 94-6553.
United States Court of Appeals, Fourth Circuit.
Submitted Aug. 25, 1994.Decided Oct. 5, 1994.
Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden II, Chief District Judge. (CA-94-241-2).
Freddy Sylvestor Campbell, appellant Pro Se.
S.D.W.Va.
AFFIRMED.
Before RUSSELL and MICHAEL, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
PER CURIAM:
1
Appellant appeals from the district court's order denying relief without prejudice on his 42 U.S.C. Sec. 1983 (1988) complaint. Our review of the record and the district court's opinion accepting the recommendation of the magistrate judge discloses that this appeal is without merit. Accordingly, we affirm on the reasoning of the district court. Campbell v. West Virginia Dep't of Corrections, No. CA-94-241-2 (S.D.W. Va. Apr. 21, 1994). 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.
2
AFFIRMED.
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461 F.Supp. 994 (1978)
TYPH, INC.
v.
TYPHOON FENCE OF PENNSYLVANIA, INC.
Civ. A. No. 78-1265.
United States District Court, E. D. Pennsylvania.
November 16, 1978.
*995 Anthony J. Guerrelli, Guerrelli & Mooney, Warminster, Pa., for plaintiff.
Howard E. Davidson, Davidson, Aaron & Tumini, Philadelphia, Pa., for defendant.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
On August 16, 1977, plaintiff, Typh, Inc., commenced this action in the Court of Common Pleas of Bucks County, Pennsylvania to recover $79,041.27 which it claims the defendant, Typhoon Fence of Pennsylvania, Inc., owes it in connection with the lease of certain real estate in Pennsylvania. On April 14, 1978, defendant filed a petition pursuant to 28 U.S.C. *996 § 1441(a)[1] to remove this action, contending that this Court had original jurisdiction under 28 U.S.C. § 1332 inasmuch as plaintiff is a New York corporation with its principal place of business in New York and defendant is a Pennsylvania corporation with its principal place of business in Pennsylvania and the amount in controversy exceeds $10,000.00. Plaintiff has filed a motion to remand this action under 28 U.S.C. § 1447(c),[2] contending that the defendant did not file its petition to remove within the thirty day period mandated by 28 U.S.C. § 1446(b).[3] This thirty day limitation is mandatory and cannot be extended by the Court. Sun Oil Co. of Pa. v. Pa. Dept. of Labor & Industry, 365 F.Supp. 1403 (E.D.Pa.1973). If the action was removable at the time the complaint was filed and the defendant failed to file its petition within the thirty day period, the Court may, solely on this ground, remand to the state court. London v. United States Fire Insurance Co., 531 F.2d 257 (5th Cir. 1976).
Defendant, however, contends, under the second provision of § 1446(b), that it was not possible to ascertain that the action was removable until an amended complaint was served on March 22, 1978. Defendant filed its petition for removal within thirty days of service of this amended complaint, which alleged that plaintiff was a foreign corporation registered in Pennsylvania, and, therefore, had the capacity to maintain suits in Pennsylvania courts.[4]
For an action to be removable, it is required that it be within the original jurisdiction of the Federal courts, and additionally, that it be within the subject matter jurisdiction of the state court where it was originally filed. Lambert Run Coal Co. v. B & O R.R. Co., 258 U.S. 377, 42 S.Ct. 349, 66 L.Ed. 671 (1922). If the state court had no jurisdiction, the Federal court can acquire none by removal, which is a derivative jurisdiction. 14 Wright & Miller, Federal Practice and Procedure § 3721 at 520-22. The failure of a foreign corporation to comply with § 2014, however, does not deprive the Pennsylvania courts of subject matter jurisdiction. Section 2014 is a procedural statute defining a foreign corporation's capacity to maintain a suit. Plaintiff need not establish in its complaint that it has capacity to sue; instead, the lack of capacity to sue is a matter to be raised by defendant in its answer to the complaint, or in a preliminary objection asserting the defense of lack of capacity to sue, as provided by Pa.R.Civ.P. 1017. Coleco Industries v. Lectro-Media, Inc., 3 Pa.D. & C.3d 255 (1977); Home Security Corp. v. James Talcott, Inc., 62 Pa.D. & C.2d 457 (1973). Further, it is not necessary that plaintiff comply with § 2014 before filing suit; compliance during the pendency of the litigation is sufficient. *997 Empire Excavating Co. v. Maret Development Corp., 370 F.Supp. 824 (W.D.Pa.1974); International Inventors, Inc., East v. Berger, 242 Pa.Super. 265, 363 A.2d 1262 (1976).
Therefore, whether plaintiff was required to register as a foreign corporation is irrelevant to the issue of removal. In determining whether an action is removable, the court looks only to the allegations on the face of the complaint. La Chemise Lacoste v. Alligator Co., Inc., 506 F.2d 339 (3d Cir. 1974); Bowerman v. Tomhave, 414 F.Supp. 7 (E.D.Pa.1975). The complaint in this case on its face established a basis for diversity jurisdiction. Therefore, the action was removable when the complaint was filed and the defendant did not petition for removal within thirty days of service of the complaint.
Accordingly, an Order will be entered remanding this case to the Court of Common Pleas of Bucks County.
NOTES
[1] 28 U.S.C. § 1441(a) provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
[2] 28 U.S.C. § 1447(c) provides:
If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.
[3] 28 U.S.C. § 1446(b) provides in pertinent part:
The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, . . .
If the case stated by the initial pleading is not removable, a petition for removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.
[4] 15 P.S. § 2014(A) provides in pertinent part:
No foreign business corporation transacting business in this Commonwealth without a certificate of authority shall be permitted to maintain any action in any court of this Commonwealth until such corporation shall have obtained a certificate of authority. . . .
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134 F.3d 385
Gainesv.Dalton*
NO. 96-3514
United States Court of Appeals,Eleventh Circuit.
Dec 22, 1997
Appeal From: M.D.Fla. ,No.9401184CIVJ10
1
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-6293
HARRY HECKSTALL,
Plaintiff - Appellant,
versus
RONALD J. ANGELONE, Director, Virginia Depart-
ment of Corrections,
Respondent - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry C. Morgan, Jr., District
Judge; James E. Bradberry, Magistrate Judge. (CA-00-160)
Submitted: July 17, 2001 Decided: September 11, 2001
Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Harry Heckstall, Appellant Pro Se. Marla Graff Decker, Assistant
Attorney General, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Harry Heckstall appeals the magistrate judge’s order denying
relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 &
Supp. 2000).1 Although we conclude Heckstall’s § 2254 petition was
timely filed,2 we find his claims are meritless. See Williams v.
Taylor, 529 U.S. 362, 412-13 (2000). Accordingly, we deny a cer-
tificate of appealability and dismiss the appeal for that reason.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court
and argument would not aid the decisional process.
DISMISSED
1
The parties consented to jurisdiction of the magistrate
judge under 28 U.S.C.A. § 636(c) (West 1993 & Supp. 2000).
2
See Harris v. Hutchinson, 209 F.3d 325 (4th Cir. 2000).
2
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975 F.Supp. 1129 (1997)
ARCHER-DANIELS-MIDLAND COMPANY, Reidy Terminal, Inc., ADM/Growmark River System, Inc., American River Transportation Co., ADM Milling Co., Collingwood Grain, Inc., Tabor Grain Co., Plaintiffs,
v.
PHOENIX ASSURANCE COMPANY OF NEW YORK, Commonwealth Insurance Company, Navigators Insurance Company, Albany Insurance Company, Hartford Fire Insurance Company, Defendants.
No. 95-CV-4001-JLF.
United States District Court, S.D. Illinois.
August 4, 1997.
*1130 *1131 Michael J. Kehart, A. James Shafter, Kehart, Shafter, Decatur, IL, Aubrey M. McDaniel, III, James W. Shannon, Jr., Philip A. Sechler, J. Gordon Seymour, Williams & Connolly, Washington, DC, for Plaintiffs.
Maynerd I. Steinberg, Daniel J. Zollner, Lord, Bissell, Chicago, IL, Carl L. Faveau, Campbell, Black, Carnine & Hedin, Mount Vernon, IL, Eric C. Young, Dunham, Boman, East St. Louis, IL, Harry P. Cohen, Richard M. Appel, Michael Verde, Steven E. Goldman, Kathleen E. Schaaf, Rosenman & Colin, New York City, Donald V. Ferrell, Jelliffe, Ferrell, Harrisburg, IL, Charles M. Fraenkel, Leahy, Eisenberg, Chicago, IL, for Defendants.
MEMORANDUM AND ORDER
FOREMAN, District Judge.
Before the Court is a "Motion for Partial Summary Judgment Under the DIC Policies For Losses Related to Watercraft" filed by defendant Phoenix Assurance Company of New York and Commonwealth Insurance Company pursuant to Federal Rule of Civil Procedure 56 (Doc. 85). Defendants Navigators Insurance Company and Albany Insurance Company have joined in this motion. Archer Daniels Midland Company and its subsidiaries (collectively, "ADM") have filed a response (Doc. 120) and defendants have filed a Reply (Doc. 124). This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
I. Introduction.
For a discussion of the facts leading to this litigation see Archer-Daniels-Midland Co. v. Phoenix Assur. Co. of New York, 936 F.Supp. 534, 536 (S.D.Ill.1996).
II. Background.
Phoenix, Commonwealth, Navigators, and Albany sold ADM Difference In Conditions ("DIC") policies for the period October 1, 1992 to October 1, 1993. These Policies are "excess" insurance policies in that they provide coverage for losses that are in excess of certain amounts ranging from $10 million to $50 million. ADM's primary insurance is with General Accident Insurance Company of North America who is not a party to this lawsuit (Doc. 120, Exh. 2).
ADM claims that the excess DIC policies provide coverage for ADM's "marine expenditures" and "grain degradation" losses. The "marine expenditures" and "grain degradation" claims arose out of ADM's efforts to maintain its transportation operations during the Flood of 1993. When the Mississippi River closed, some of ADM's grain-laden barges were stranded on the river. The "marine expenditures" are the expenses that were incurred to keep the grain cooled and aerated on these barges, as well as the expenses incurred to protect the loaded barges from breaking loose from their moorings (Doc. 120, p. 12). These expenses are also called "sue and labor" expenses. The "grain degradation" claims relate to the actual deterioration of the grain itself. While the barges were stranded, the grain on the barges deteriorated and had to be sold at great discounts to the normal sales price. These discounts gave rise to the "grain degradation" claims. Id.
Defendants request a ruling on the following two issues:
A. That the DIC Policies do not cover the Marine Expenditures; and
B. That the DIC Policies do not cover the Cargo, i.e., the Grain Degradation.
III. Interpretation of the Policy.
Contract interpretation is particularly suited to disposition by summary judgment. Metalex Corp. v. Uniden Corp. of America, 863 F.2d 1331 (7th Cir.1988). Summary judgment is appropriate where no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56. Because neither party has raised the issue of choice of law in this diversity action, the Court will apply the substantive law of Illinois, the forum state. Travelers Ins. Cos. v. Penda *1132 Corp., 974 F.2d 823, 827 (7th Cir.1992) (citing Wood v. Mid-Valley, Inc., 942 F.2d 425, 426-27 (7th Cir.1991)).
The construction of an insurance policy and its provisions is a question of law. Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 699, 607 N.E.2d 1204, 1212 (1992). In construing an insurance policy, the Court's task is to ascertain the intent of the parties to the contract, "with due regard to the risk undertaken, the subject matter that is insured and the purposes of the entire contract." Id. (citations omitted). If the policy language is unambiguous, there is no issue of material fact, and the Court must determine the contract's meaning as a matter of law affording the contract language its plain, ordinary, and popular meaning. Id. But if the Court determines that the contract is ambiguous, the contract's meaning is a question of fact. Dash Messenger Serv., Inc. v. Hartford Ins. Co. of Ill., 221 Ill.App.3d 1007, 164 Ill.Dec. 313, 316, 582 N.E.2d 1257, 1260 (1st Dist. 1991), appeal denied, 143 Ill.2d 637, 167 Ill. Dec. 398, 587 N.E.2d 1013 (1992). A policy provision is ambiguous only if it is subject to more than one reasonable interpretation. Lapham-Hickey Steel Corp. v. Protection Mut. Ins. Co., 166 Ill.2d 520, 211 Ill.Dec. 459, 463, 655 N.E.2d 842, 846 (1995) (citing United States Fidelity & Guar. Co. v. Wilkin Insulation Co., 144 Ill.2d 64, 161 Ill.Dec. 280, 578 N.E.2d 926 (1991)). A policy term is not ambiguous merely because the term is not defined within the policy or because the parties can suggest creative possibilities for its meaning. Id. (citations omitted).
The parties have agreed that the questions before the Court are clearly questions of policy construction and must be determined by the Court as matters of law. Consequently, the Court must determine the Policies' meaning as a matter of law, affording the contract language its plain, ordinary and popular meaning. Outboard Marine Corp. v. Liberty Mut. Ins. Co., 154 Ill.2d 90, 180 Ill.Dec. 691, 699, 607 N.E.2d 1204, 1212 (1992).
A. Do the DIC Policies Cover the Marine Expenditures?
Defendants seek a ruling that the DIC Policies do not cover: 1) the sue and labor expenses related to protecting the barges; or 2) the sue and labor expenses related to protecting the grain that was on the barges. These two items are discussed separately below.
1. Sue and Labor Expenses to Protect the Barges.
Defendants seek a ruling that the DIC Policies do not cover the barges themselves or any sue and labor expenses that were incurred to protect the barges. ADM does not dispute that the DIC policies do not insure property damage to the barges. ADM readily concedes that the barges are "watercraft" and that the DIC Policies expressly exclude watercraft from coverage (Doc. 120, p. 12). ADM also notes that the barges were insured by a separate marine insurance policy that was issued by Phoenix.
ADM also does not dispute that the DIC Policies do not cover the sue and labor expenses incurred to protect the barges. What ADM does argue, however, is that the overall sue and labor expenses were incurred not to protect the barges but to protect the grain. As such, ADM argues, the sue and labor expenses are covered by the DIC Policy. Because the parties agree that the DIC Policies do not cover the sue and labor expenses incurred to protect the barges, the Court will not consider this issue further.[1]
2. Sue and Labor Expenses to Protect the Grain.
As noted, ADM argues that its sue and labor expenses were incurred primarily *1133 to protect the grain and are therefore covered under the DIC Policy. ADM argues that coverage for these expenses is provided by the DIC Policies' Paragraph 13P.
Paragraph 13P provides that:
13. ADDITIONAL CONDITIONS
P. SUE AND LABOR
IN CASE OF ACTUAL OR IMMINENT LOSS OR DAMAGE BY PERIL INSURED AGAINST, IT SHALL, WITHOUT PREJUDICE THIS INSURANCE, BE LAWFUL AND NECESSARY FOR THE INSURED, ... TO SUE, LABOR, AND TRAVEL FOR, IN, AND ABOUT THE DEFENSE, THE SAFE-GUARD, AND THE RECOVERY OF THE PROPERTY OR ANY PART OF THE PROPERTY INSURED HEREUNDER; NOR, IN THE EVENT OF LOSS OR DAMAGE, SHALL THE ACTS OF THE INSURED OR OF THIS COMPANY IN RECOVERING, SAVING AND PRESERVING THE INSURED PROPERTY BE CONSIDERED A WAIVER OR AN ACCEPTANCE OF ABANDONMENT.
(Doc. 120, Exh. 3, p. 26) (emphasis added).[2]
Paragraph 13P states that it provides sue and labor coverage, "in case of actual or imminent damage by a peril insured against." (emphasis added). Paragraph 4 of the Policy designates the perils insured against by stating that:
4. PERILS INSURED:
EXCEPT AS HEREIN EXCLUDED, THIS POLICY INSURES AGAINST ALL RISKS OF DIRECT PHYSICAL LOSS OF OR DAMAGE TO THE PROPERTY INSURED.
(Doc. 120, Exh. 3, p. 3).[3]
"Property insured" is listed in Paragraph 5 which states that:
5. INTERESTS AND PROPERTY COVERED:
EXCEPT AS HEREIN EXCLUDED, THIS POLICY COVERS AT SCHEDULED LOCATIONS ON FILE WITH THE COMPANY; ...
A. THE INTEREST OF THE INSURED IN ALL REAL PROPERTY, INCLUDING MACHINERY, EQUIPMENT AND SUPPLIES USED FOR THE SERVICE OF THE BUILDING ... WHEN ON SUCH PREMISES OR WITHIN 500 FEET THEREOF;
B. THE INTEREST OF THE INSURED IN PERSONAL PROPERTY OWNED BY THE INSURED;
C. THIS POLICY SHALL ALSO COVER WHILE IN THE CUSTODY OF THE INSURED ON THE DESCRIBED PREMISES OR IN THE OPEN WITHIN 1000 FEET THEREOF;
(1) PERSONAL PROPERTY OF OTHERS WHICH THE INSURED IS UNDER OBLIGATION TO KEEP INSURED;
(2) THE INTEREST OF THE INSURED IN A LEGAL LIABILITY FOR LOSS OR DAMAGE BY ANY OF THE PERILS HEREIN INSURED AGAINST ...
(Doc. 120, Exh. 3, p. 4) (emphasis added).[4]
Based on the plain language of Paragraph 13P, the DIC Policies provide sue and labor coverage only for the "property insured." The plain language of Paragraph 5 states that to be insured under the Policy the property must be at a scheduled location. The barges and the grain that were stalled on the River were on inland waterways rather than at scheduled locations. ADM does not contest the fact that the barges were not at scheduled locations. Accordingly, Paragraph 13P of the DIC Policies does not provide *1134 coverage for the sue and labor expenses that were incurred to protect either the barges or the grain that was on the barges while the barges were stalled on the River.
ADM does argue, however, that Paragraph 5's requirement that the property be at scheduled locations does not apply to Subsection B of Paragraph 5. Specifically, ADM argues that while the lead-in of Paragraph 5 refers to "scheduled locations," that restriction is not contained in Subsection B. ADM further argues that Subsection B, unlike Subsections A and C, does not restrict its coverage in terms of the property's vicinity to an insured location, (e.g., § 5.A ("when on such premises or within 500 feet thereof")); § 5.C ("while ... on the described premises or in the open within 1000 feet thereof."). Thus, according to ADM, the property insured in § 5.B is not restricted to property located at scheduled locations.
As aptly noted by defendants, ADM's argument is a tortuous attempt to avoid Paragraph 5's scheduled location requirement. Subsection B plainly requires the antecedent "lead-in" language to render it meaningful. Subsection B which reads in full, "the interest of the insured in personal property owned by the insured," cannot stand alone. Moreover, Subsections A and C, rather than "restricting" coverage, as ADM contends, serve to extend coverage to locations within 500 feet and 1000 feet of the scheduled locations, respectively. ADM's position is entirely illogical and wholly at odds with the plain meaning of the language of Paragraph 5, Subsection A. In interpreting an unambiguous contract, the Court must determine the contracts' meaning as a matter of law, affording the language its plain, ordinary and popular meaning. Outboard Marine Corp., 180 Ill.Dec. at 699, 607 N.E.2d at 1212. As noted, Paragraph 13P of the DIC Policies does not provide coverage for the sue and labor expenses that were incurred to protect either the barges or the grain that was on the barges while the barges were stalled on the River.
B. Do the DIC Policies Cover the Cargo?
Defendants seek a ruling that the DIC Policies do not cover the grain cargo that was being transported on the barges. As noted, the grain that was on the barges was not at a scheduled location as required by Paragraph 5 and is therefore not covered by the DIC Policies.
ADM argues, however, that it purchased a "transportation form" with its DIC coverage to expressly cover its property in transit. Specifically, ADM argues that this transportation form is an addendum to its primary DIC policy with General Accident Insurance Company of North America. This form does not require property to be at scheduled locations to be covered because the form simply states that it insures "personal property owned by the insured" from "all risks or direct physical loss of or damage to the insured property from any external cause ..." (Doc. 120, pp. 24, 27). Thus, ADM argues, the transportation form covers ADM's grain degradation claims.
ADM may be correct that the transportation form covers ADM's grain degradation claims under the primary DIC policy. ADM has not shown, however, that the mere attachment of this transportation form to the primary policy has any effect whatsoever on the coverage provided by the excess DIC Policies.
Primary insurance is coverage where "under the terms of the policy, liability attaches immediately upon the happening of the occurrence that gives rise to liability." Whitehead v. Fleet Towing Co., 110 Ill. App.3d 759, 66 Ill.Dec. 449, 453, 442 N.E.2d 1362, 1366 (5th Dist.1982). A primary policy provides "first dollar" liability coverage up to the limits of the policy, and in some instances subject to a deductible. An "excess" or secondary insurance policy provides coverage where "under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted." Whitehead, 66 Ill.Dec. at 453, 442 N.E.2d at 1366. Excess insurance is the next "layer" of coverage above the primary policy.
The primary insurer and the insured have a contractual relationship. Michael M. Marick, Excess Insurance: An Overview of General Principles and Current Issues, 24 Tort *1135 & Ins. L.J. 715, 717 (1989). There is also a contractual relationship between the excess insurer and the insured. Id. There is no contractual relationship, however, between a primary insurer and an excess insurer. Id. Rather, the relationship between the excess insurer and its insured is defined principally by their insurance contract. Id. at 719.
The rights and obligations of both the insured and the excess carrier must be determined pursuant to the policy to which they are parties. Id. at 719. To the extent that an excess policy incorporates the terms of an underlying policy, however, those provisions will govern the parties' rights under the excess policy. Id. In fact, excess policies often provide coverage for the exact same risks that are covered by the underlying insurance policy. This type of excess policy is called a "following form" policy. A typical following form excess indemnity clause provides that:
The provisions of the immediate underlying policy are incorporated as part of this policy except for any obligation to investigate and defend and pay for costs and expenses incident to any of the same, the amounts of the limits of liability, any "other insurance" provision and any other provisions therein which are inconsistent with this policy.
Id. at 718.
The excess Policies at issue here do not contain language that is even remotely similar to the above following form language. In contrast, the excess Policies contain language that plainly compels the opposite result. Specifically, these Policies state that:
3. LIABILITY DETERMINATION
IN DETERMINING THE AMOUNT OF ANY ONE LOSS, DISASTER, OR CASUALTY FOR WHICH THIS POLICY IS EXCESS, THE TOTAL LOSS FOR ALL COVERAGES CAUSED BY ANY COMBINATION OF PERILS, ONE OR MORE OF WHICH IS INSURED AGAINST UNDER THE PRIMARY POLICY, SHALL BE USED EVEN THOUGH ALL SUCH PERILS OR COVERAGES ARE NOT INSURED AGAINST UNDER THIS EXCESS POLICY.
A. ANY RECOVERIES MADE UNDER THE PRIMARY POLICY SHALL BE CONSIDERED AS FIRST APPLYING TO THOSE PERILS AND/OR COVERAGES NOT INSURED AGAINST BY THIS POLICY. UPON EXHAUSTION OF THE PRIMARY POLICY LIMITS, THIS POLICY SHALL DROP DOWN AND BE LIABLE FOR THE LOSS IN EXCESS OF THE AMOUNT ATTRIBUTED TO THE PRIMARY POLICY AS RESPECTS THOSE PERILS AND/OR COVERAGES INSURED HEREUNDER SUBJECT TO THE LIMIT OF THIS POLICY.
(Doc. 120., Exh. 3, p. 2) (emphasis added.)[5]
The first paragraph of Paragraph 3 recognizes that some perils or coverages may be insured against under the primary policy but not by the excess Policies. Specifically, Paragraph 3 states that, "the total loss for all coverages ... one or more of which is insured against under the primary policy, shall be used even though all such perils or coverages are not insured against under this excess policy." (Doc. 120, Exh. 3, p. 2). Paragraph 3, Subsection A, then goes on to state that after the primary policy limits are exhausted, the excess coverage shall drop down and be liable for the loss in excess of the amount attributed to the primary policy as respects those perils and/or coverages insured hereunder. In other words, when the primary policy limits are exhausted, the excess policy shall provide coverage within the primary policy dollar coverage range, but *1136 only for the losses expressly insured by the excess policy itself.[6]
As noted above, the rights and obligations of the insured and the excess carriers are determined according to the Policy to which they are parties. Contrary to what ADM might wish to infer, the transportation form attached to General Accident's primary policy has no effect whatsoever on the coverage provided by the excess Policies issued by Phoenix, Navigators', Commonwealth and Albany. Also as noted above, there is no contractual relationship between the primary and excess insurers. Each has a separate contractual obligation to the insured. Because the carriers are not in privity with one another, it has been suggested that the primary and excess carriers "are not blood relatives but are at best `in-laws.'" Conley, Relations Between Primary and Excess Insurance Carriers, Fed.Ins.Couns.Q. 123, 124 (Wtr.1982). Accordingly, the coverage provided by the excess DIC Policies is unaffected by the transportation form attached to the primary policy. As discussed in Section III.A.2 above, the grain cargo was not at scheduled locations while on the stalled barges. Therefore, based on the Policies' plain language, the grain cargo is not property insured under the excess DIC Policies.
Even if the grain cargo were somehow deemed to be property insured under the excess DIC Policies, ADM's grain degradation claims are specifically excluded under the DIC Policies. The excess DIC Policies exclude losses caused by "inherent vice" or "changes in humidity, ... or extremes of temperature, change in flavor, color, ...". (Doc. 120, Exh. 3., p. 9). Specifically, Paragraph 6 provides that:
6. PERILS EXCLUDED:
THIS POLICY DOES NOT INSURE AGAINST LOSS OR DAMAGE CAUSED BY OR RESULTING FROM:
K. INHERENT VICE, INSECTS, VERMIN, SMOG ...
L. CHANGES IN RELATIVE HUMIDITY, CHANGES OR EXTREMES OF TEMPERATURE, CHANGE IN FLAVOR, COLOR, ...
(Doc. 120, Exh. 3, p. 9).[7]
"Inherent vice" is defined as "any existing defects, diseases, decay or the inherent nature of the commodity which will cause it to deteriorate with a lapse of time." Vana Trading Co., Inc. v. S.S. "Mette Skou", 556 F.2d 100, 104 (2d Cir.1977). ADM does not dispute that the inherent nature of grain is to deteriorate or degrade with the passage of time. ADM does argue, however, that because the proximate cause of the loss was an insured peril, (the Flood), and not the inherent tendency of the grain to deteriorate, the inherent vice exclusion does not apply.
ADM's proximate cause argument has muddied the waters but can fortunately be avoided by the plain language of the excess DIC Policies. Paragraph 6 is the "Perils Excluded" section of the Policies. Paragraph 6 contains twenty different types of perils that are expressly excluded (Doc. 120, Exh. 3, pp. 6-9). Where one of these excluded perils is somehow limited, or requires the kind of "causation" analysis suggested by ADM, the DIC policies say so in express terms. For example Paragraph 6.R states that the excess DIC policies do not cover loss or damage caused by an interruption of power unless it is the result of physical damage to insured property "from a peril insured." (Doc. 120, Exh. 3, p. 9). Other examples may be found in Paragraphs 6.C, 6.F, 6.I, 6.T. Had the parties intended the excess DIC Policies to cover inherent vice where a peril insured had somehow contributed to the manifestation of such inherent vice, the policy *1137 language would have been so drafted. This Court "will not add terms to the contract of insurance which the parties have not included in the language of the policy." Archer-Daniels-Midland Co. v. Phoenix Assur. Co. of New York, 936 F.Supp. 534, 538 (S.D.Ill.1996) (citations omitted). Accordingly, even if the grain cargo were somehow deemed to be property insured under the excess DIC Policies, ADM's grain degradation claims are specifically excluded under Paragraphs 6.K and 6.L of the excess DIC Policies.[8]
IV. Summary.
The Court finds that the language of the DIC Policies relevant to the issues before the Court is unambiguous. The Court further finds that the DIC Policies provide no coverage for property damage to the barges or sue and labor expenses incurred to protect the barges, nor do they provide coverage for the cargo that was being transported on the barges. Accordingly, defendants' Motion for Partial Summary Judgment Under the DIC Policies For Losses Related to Watercraft (Doc. No. 85) is GRANTED.
IT IS SO ORDERED.
NOTES
[1] The parties spend a fair amount of time arguing about whether the sue and labor expenses that ADM incurred were incurred to protect the barges or were to protect the grain. As shown below, the Court finds that the sue and labor expenses are covered only if they were incurred to protect insured property. In order to be insured under the DIC Policies, the property must be at a scheduled location. Because the barges and the grain were on inland waterways rather than at scheduled locations, the sue and labor expenses related to those items are not covered by the Policies. Accordingly, whether the sue and labor expenses were incurred to protect the barges or to protect the grain is irrelevant and will not be considered further.
[2] The Policies from Commonwealth, Navigators and Albany contain identical language. (See Doc. 120, Exhs. 4, 6, 5 and 7, p. 26).
[3] The Policies from Commonwealth, Navigators and Albany contain identical language. (See Doc. 120, Exhs. 4, 6, 5, and 7, p. 3).
[4] The Policies from Commonwealth, Navigators and Albany contain identical language. (See Doc. 120, Exhs. 4, 6, 5, and 7, pp. 4-5).
[5] The Policies from Commonwealth, Navigators and Albany contain identical language. (See Doc. 120, Exhs. 4, 6, 5, and 7, p. 2).
Paragraph 3, Subsection A refers to "drop down" coverage. "Drop down" coverage within the meaning of an excess policy requires the excess insurer to indemnify the insured for losses which otherwise would be covered by the underlying primary insurer but for the primary insurer's lack of payment, typically due to the primary insurer's insolvency. Hartford Acc. & Indem. Co. v. Chicago Housing Auth., 12 F.3d 92, 95 (7th Cir.1993).
[6] Although none of the parties have argued about any of the provisions of Paragraph 3, Subparagraphs 3.B and 3.C contain identical language limiting the excess coverage to those perils "covered hereunder" (Doc. 120, Exh. 3, p. 3) (emphasis added). Similarly, Subparagraph 3.D states that when the underlying limits are diminished or exhausted the "coverage herein" shall respond ... (Doc. 120, Exh. 3, p. 3) (emphasis added). Again, the excess Policies from Commonwealth, Navigators and Albany contain identical language. (See Doc. 120, Exhs. 4, 6, 5, and 7, pp. 2-3).
[7] The Policies from Commonwealth, Navigators and Albany contain identical language. (See Doc. 120, Exhs. 4, 6, 5, and 7, p. 9).
[8] ADM supports its proximate cause argument with three cases. The first is Lanasa Fruit v. Universal Ins. Co., 302 U.S. 556, 58 S.Ct. 371, 82 L.Ed. 422 (1938). Lanasa Fruit is distinguishable first because it involved a marine policy which was specifically written to cover property in maritime transit rather than a DIC Policy which is written to cover only property that is at scheduled locations. Second, contrary to ADM's assertions, Lanasa Fruit merely suggests that losses caused by delay are covered if the delay was caused by an insured peril. Lanasa Fruit did not involve an inherent vice exclusion clause like the one at issue and is therefore inapplicable. ADM's second two cases, Perzy v. Intercargo Corp., 827 F.Supp. 1365 (N.D.Ill.1993) and Nationwide Brokers, Inc. v. C & G Trucking Corp., 1988 WL 116827 (N.D.Ill. Oct. 21, 1988), deal with snowball paperweights and Soap Opera Digest magazines, respectively. Unlike grain, the inherent nature of these items does not cause them to deteriorate with the mere lapse of time and therefore the cases are distinguishable on that basis.
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75 Ariz. 322 (1953)
256 P.2d 560
FLYNN
v.
ALLENDER.
No. 5701.
Supreme Court of Arizona.
April 27, 1953.
*323 Milburn N. Cooper, Phoenix, for appellant.
Robert E. Kersting, Phoenix, for appellee.
STANFORD, Chief Justice.
Margaret R. Flynn, plaintiff below, hereinafter designated appellant, appeals from a denial by the trial court of her motion to vacate an order quashing levy of a writ of execution and to grant a rehearing.
The facts are that Ellsworth Allender, defendant below, hereinafter designated appellee, and Frieda Allender, became indebted to appellant while they were husband and wife. Appellee and Frieda Allender were divorced on September 29, 1949. *324 Some time thereafter, but before February 16, 1950, appellant brought an action against appellee and Frieda Allender seeking to recover judgment against them for the sum of $1,000 together with interest at 6% from April 8, 1947. Judgment by default was taken by appellant for $1,000 together with interest as requested.
On the 16th day of February, 1950, appellee married his present wife, Ruth Allender. On August 8, 1951, appellee traded a 1947 Oldsmobile 98 Convertible automobile, which he owned at the time of his marriage to his present wife and which it is alleged by appellant was his sole and separate property, for a 1950 Model Oldsmobile Convertible Coupe. Appellee was allowed $1,095 on his 1947 Oldsmobile, and this together with $18 cash constituted the down payment necessary for the purchase of said 1950 Oldsmobile. The payments on the balance owing were made from the earnings of both appellee and Ruth Allender. At the time of this appeal the payments mentioned above amounted to some $683.65.
On March 12, 1952, appellant caused an execution to issue based upon the judgment she had obtained against appellee, and the sheriff levied on the 1950 Oldsmobile mentioned above, title to which was in appellee's name, as appellee's separate property.
Appellee filed a motion to quash the execution and to return said automobile to him, alleging as grounds for said motion that the automobile was the community property of appellee and his present wife, Ruth Allender, that the judgment held by appellant was based on a separate debt incurred by him before his marriage to his present wife, and that community property is not liable for the separate debts of either spouse or for any debts incurred by either spouse prior to marriage.
The trial court granted appellee's aforesaid motion to quash and ordered the automobile returned to appellee.
Thereafter, appellant filed a motion to vacate the order quashing the levy and to grant a rehearing. The trial court heard said motion and denied it.
We believe that the three assignments of error presented by appellant for our consideration may be grouped together as one.
It is claimed by appellant that the lower court erred in quashing the levy made on the 1950 Oldsmobile for the reason that said car was the separate property of appellee and subject to being taken in satisfaction of the judgment against him. She contends that when the appellee traded in his 1947 Oldsmobile on the 1950 Oldsmobile, the latter acquired the same character as the former, viz., it became appellee's separate property. In support of this contention, appellant cites the following cases which hold that generally property purchased by either spouse with separate assets will remain separate property. Rogers v. Joughin, 152 Wash. 448, 277 P. 988; Horton v. Horton, *325 35 Ariz. 378, 278 P. 370. See also 41 C.J.S., Husband and Wife, § 482, page 1020.
It is well settled in this jurisdiction that the character of property as separate or community is to be determined by its status as of the time of its acquisition. Lawson v. Ridgeway, 72 Ariz. 253, 233 P.2d 459; Giacomazzi v. Rowe, 109 Cal. App.2d 498, 240 P.2d 1020.
Section 63-302, A.C.A. 1939, provides that:
"All property, both real and personal, of the husband, owned or claimed by him before marriage * * * shall be his separate property, * * *."
In view of this section, there is no doubt that the 1947 Oldsmobile was the separate property of appellee at the time he traded it for the 1950 Oldsmobile.
Appellee argues, and the lower court so held, that when appellee purchased the 1950 Oldsmobile by trading in his 1947 Oldsmobile, this constituted a commingling of separate property with community the payments made on the 1950 Oldsmobile being taken from community funds and that under a well-established rule of law the 1950 Oldsmobile thereby became community property.
We feel that this is not a proper conclusion to be reached from a study of the facts involved in this case. Unlike those cases in which this court has held that community and separate funds have been placed in a bank account or in property so that they cannot be distinguished one from the other and are therefore entirely community, the present facts indicate that at the time of acquisition of the 1950 Oldsmobile the down payment consisted entirely of separate funds of the appellee. This is true even though the $18 cash may have been community funds for the reason that said amount was so insignificant as compared to the $1,095 of separate funds as to be considered to have merged with the latter amount. We therefore hold that the 1950 Oldsmobile was the separate property of appellee at the date of its acquisition.
In 41 C.J.S., Husband and Wife, § 483, page 1023, we find the following statement which is appropriate to the facts herein:
"After property purchased on credit or with borrowed funds has acquired the status of separate property of one of the spouses at the time of purchase, its status remains such regardless of the nature of the funds which thereafter satisfy the obligation, whether community funds or separate funds of the other spouse. * * *"
In the footnotes under the above statement we find the case of Lincoln Fire Ins. Co. of New York v. Barnes, 53 Ariz. 264, 88 P.2d 533, 535. In that case a hotel lease was purchased by Mrs. Barnes for $185,000, $45,000 being paid in cash, which was the separate property of Mrs. Barnes, and the *326 balance evidenced by a note secured by a chattel mortgage. Plaintiff in that case contended that $100,000 was paid on the mortgage for the balance of the purchase price from community earnings, and therefore, the community had an interest in said lease. This court held that even if the $100,000 was community funds, that would not give the community an interest in the property. He further said that:
"At the most the community would have a lien on the property for the amount contributed by it, for the evidence does not show that the community at the time of the purchase of the lease had assumed any liability for the payment of the deferred installments of the purchase price."
The record, which consists of a stipulation by both parties of the facts, does not indicate that the community assumed the obligation of paying the balance owing on the 1950 Oldsmobile at the time it was purchased. The record merely shows that the balance owing was to be paid off on the installment plan.
We hold that the community has a prior lien against the 1950 Oldsmobile for $683.65 paid by it on the balance owing on said car prior to the perfection of appellant's lien by levy on the 1950 Oldsmobile. The order quashing the writ of execution should be vacated and the levy allowed to stand, subject to the condition that upon the sale of the car by the sheriff the lien of the community in the amount of $683.65 must be satisfied before any funds therefrom are used by appellant to satisfy her judgment.
The order quashing levy is hereby vacated and cause is remanded with instructions to allow the levy to stand in accordance with the principles hereinabove set forth.
PHELPS, LA PRADE, UDALL and WINDES, JJ., concur.
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985 So.2d 1099 (2008)
PLOWMAN
v.
PLOWMAN.
No. 3D07-2052.
District Court of Appeal of Florida, Third District.
July 23, 2008.
Decision without published opinion. Vol.dismissed.
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30 Cal.App.2d 165 (1938)
BURTHOLD WIDENER, Plaintiff; H. PARK ARNOLD, Administrator, etc., (Substituted Plaintiff), Respondent,
v.
TIMOTHY T. HARTNETT, Appellant.
Civ. No. 11917.
California Court of Appeals. Second Appellate District, Division One.
December 23, 1938.
D. Joseph Coyne, Dan M. Critchley and J. E. Dalton for Appellant.
Holbrook & Tarr and M. B. Towman for Respondent.
York, P. J.
Respondent has moved to dismiss the appeal herein and affirm the judgment or order on the ground that the appeal therefrom is frivolous and the question presented so unsubstantial as not to require further argument.
It appears from the record that Burthold Widener recovered a judgment against appellant on February 17, 1932, in a personal injury action, but was unable to collect the same before his death, which occurred on February 22, 1937, although two executions had theretofore issued, to wit: one on April 9, 1932, and the other on October 22, 1936. Letters of administration in his estate were duly granted on September 13, 1937, to H. Park Arnold, respondent herein, and on February 4, 1938, said administrator moved the court for an order substituting himself as party plaintiff in place of decedent *167 (under section 385, Code of Civil Procedure), and also for issuance of execution after a lapse of five years from the date of entry of the judgment (under section 685, Code of Civil Procedure), which motion was granted. The appeal herein is from such order granting said motion, appellant contending (1) that a new party plaintiff may not be substituted after the five-year statute has run; and (2) that he had no proper notice of the motion for issuance of execution for the reason that service was made upon attorney Dan M. Critchley, while Max A. Sturges was at all times his attorney of record.
Respondent in support of his motion to dismiss and affirm contends that a mere inspection of the record will disprove appellant's contentions; that it is elementary that a judgment may be enforced by the administrator in the same manner as the deceased might have enforced it, and that service upon attorney Critchley was proper for the reason that in January, 1937, appellant was brought into court on supplementary proceedings in connection with the judgment of February 17, 1932, at which time he was represented by said attorney Critchley.
Section 685 of the Code of Civil Procedure provides: "In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681 of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be ground for the denial of the motion ..."
[1] As regards appellant's first point, it is said in 1 California Jurisprudence, 76: "Even in the case of actions which do not survive death, it is well settled that death of the plaintiff after judgment in his favor and while the judgment stands does not abate the action or affect the validity of the judgment. (Sherwin v. Southern Pac. Co., 168 Cal. 722 [145 P. 92]; Andrews v. Valley Ice Co., 167 Cal. 11 [138 P. 699]; Fowden v. Pacific Coast Steamship Co., 149 Cal. 151 [86 P. 178]; Blackwell v. American Film Co., 48 Cal.App. 681 [192 P. 189].) Such a judgment becomes part of his estate and may be enforced by his representatives. (Sherwin v. Southern Pac. Co., supra.) This rule rests upon *168 the theory that the original wrong or claim is merged in the judgment and that thereafter the controversy is over the judgment and not over the original wrong."
Section 686 of the Code of Civil Procedure provides: "Notwithstanding the death of a party after the judgment, execution thereon may be issued, or it may be enforced, as follows:"
"1. In case of the death of the judgment creditor, upon the application of his executor or administrator, or successor in interest."
[2] The trial court's ruling on a motion pursuant to the statute (sec. 685, Code Civ. Proc.) should not be disturbed in the absence of a showing of a clear abuse of discretion. (Corcoran v. Duffy, 18 Cal.App.2d 658 [64 PaCal.2d 735].)
There is no merit in appellant's first point.
[3] With reference to appellant's second point that he had no proper notice of the motion for issuance of the execution after a lapse of five years, while it is shown by the record that Max A. Sturges was one of the attorneys of record during the trial of the action and that notice of entry of judgment was served upon him, as was the notice of appeal from the judgment of nonsuit as to defendant corporation, and as well the notice of abandonment of that appeal, the record also shows that on January 13, 1937, in a supplementary proceeding instituted by respondent's intestate to examine appellant concerning his ability to pay the said judgment, appellant was represented by attorney Dan M. Critchley.
Inasmuch as it has been held that "when a judgment in a cause has once been entered under the direction of the court, the rights of the client have been finally determined and the attorney ceases to have any authority except for the purpose of sustaining and enforcing judgment, or seeking to have it set aside or reversed" (Spencer v. Barnes, 6 Cal.App.2d 35, 37 [43 PaCal.2d 847, 848]); and the said Max A. Sturges so far as the record reveals has never attempted to have the said judgment either set aside or reversed, it would appear that the attorney Dan M. Critchley, who represented appellant in the supplementary proceedings just prior to the expiration of five years after the entry of said judgment, was the proper party to be served.
[4] In this connection, appellant contends that under the ruling in the case of Tolle v. Doak, 12 Cal.App.2d 195 [55 PaCal.2d 542], personal service is required in a proceeding under section 685, supra, for the reason that said *169 section is silent as to the manner of giving notice. However, personal service means "delivery to the party or attorney on whom the service is required to be made". (Sec. 1011, Code Civ. Proc.) It is therefore the conclusion of this court that service upon attorney Dan M. Critchley was sufficient notice to appellant of the motion for issuance of execution.
For the foregoing reasons the motion to dismiss appeal is granted and the order is affirmed.
Doran, J., and White, J., concurred.
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[Cite as State v. Shaffer, 2009-Ohio-4804.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-09-06
v.
ANGEL ALLISON SHAFFER,
aka ANGEL ALLISON FREELAND, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court
Trial Court No. 08-CR-0089
Judgment Reversed and Cause Remanded
Date of Decision: September 14, 2009
APPEARANCES:
Allison Boggs for Appellant
Melissa A. Chase for Appellee
Case No. 14-09-06
PRESTON, P.J.
{¶1} Defendant-appellant, Angel Allison Shaffer (hereinafter “Shaffer”),
appeals the Union County Court of Common Pleas’ judgment entry of sentence.
For the reasons that follow, we reverse.
{¶2} On July 16, 2008, the Union County Grand Jury indicted Shaffer on
four counts, including: count one (1) of aggravated theft in violation of R.C.
2913.02(A)(1), (B)(2), a third degree felony; count two (2) of identity fraud in
violation of R.C. 2913.49(B)(1), (I)(2), a second degree felony; and counts three
(3) and four (4) of forgery, violations of R.C. 2913.31(A)(3), (C)(1)(a), (c)(iii),
both second degree felonies. (Doc. No. 1).
{¶3} Shaffer entered a plea of not guilty to each count in the indictment at
the August 22, 2008 arraignment. (Doc. No. 6). The trial court released Shaffer on
a recognizance bond, and a scheduling conference was set for October 2, 2008.
(Id.). Shaffer, however, failed to appear for the scheduling conference so the trial
court revoked Shaffer’s bond and issued a capias order for her arrest. (Doc. No.
19).
{¶4} A jury trial was scheduled for December 18, 2008, but, on December
15, 2008, Shaffer signed an entry withdrawing her previously tendered not guilty
plea and entering a plea of guilty to counts one and two of the indictment. (Doc.
Nos. 23, 48). The State agreed to dismiss counts three and four. (Doc. No. 48).
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Case No. 14-09-06
The trial court accepted Shaffer’s change in plea, dismissed counts three and four
of the indictment, and referred the matter for a pre-sentence investigation (PSI)
report. (Id.).
{¶5} On March 3, 2009, the trial court sentenced Shaffer to three (3) years
imprisonment on count one and five (5) years imprisonment on count two. (Doc.
No. 61). The trial court ordered that the terms be served concurrently for a
combined total of five (5) years. (Id.). The trial court further ordered that Shaffer
pay all costs of prosecution, court appointed counsel fees—including $500.00 in
reimbursement to Union County for costs of providing indigent counsel—, R.C.
2929.18(A)(4) fees, and restitution to the victim, Fred Shaffer, in the amount of
$50,433.00. (Id.).
{¶6} On March 31, 2009, Shaffer filed a notice of appeal from the trial
court’s judgment entry of sentence. (Doc. No. 67). On April 23, 2009, Shaffer
filed a motion to suspend further execution of her sentence in the trial court, but
said motion was denied. (Doc. Nos. 72, 75). Shaffer now appeals raising one
assignment of error for our review.
ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED WHEN IT ORDERED
RESTITUTION WITHOUT ESTABLISHING THE ACTUAL
FINANCIAL LOSS TO THE VICTIM AND FURTHER
ERRED WHEN IT ORDERED THE PAYMENT OF COURT
COSTS, INDIGENT COUNSEL FEES ALONG WITH THE
RSETITUTION [SIC] WITHOUT DETERMINING
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Case No. 14-09-06
WHETHER APPELLANT HAD A PRESENT OR FUTURE
ABILITY TO PAY THESE COSTS.
{¶7} In her sole assignment of error, Shaffer argues that the trial court
erred in ordering restitution without holding a full and separate hearing to
determine the actual amount of financial loss to the victim. Shaffer further argues
that the trial court erred when it ordered her to pay restitution, court costs, and
indigent counsel fees without first determining whether she had a present or future
ability to pay such costs.
{¶8} The State argues that a full hearing was not necessary to determine
the actual loss to the victim since the trial court had a certified copy of the civil
judgment entry in favor of the victim, Fred Shaffer, and against Shaffer—who was
a third-party defendant in the related civil case. As such, the State argues that a
full hearing to determine the amount of restitution was not required, because this
issue had already been fully litigated in the related civil proceeding, was never
appealed, and is now res judicata. The State further argues that the trial court is
required to assess costs, including counsel fees, against indigent defendants
pursuant to R.C. 2947.23(A)(1) without regard to the defendant’s ability to pay.
Furthermore, the State argues that there is evidence upon which the trial court
could have concluded that Shaffer had a future ability to pay these costs; and
therefore, the trial court did not err in ordering the payment of costs and
restitution.
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Case No. 14-09-06
{¶9} We review a trial court’s decision to impose restitution under abuse
of discretion standard of review. State v. Griffus, 3d Dist. No. 14-08-39, 2009-
Ohio-304, ¶7, citing State v. Lamere, 3d Dist. No. 1-07-11, 2007-Ohio-4930, ¶¶ 6-
7. Likewise, we review a trial court’s determination of the defendant’s ability to
pay restitution under an abuse of discretion standard. State v. Alvarez, 3d Dist. No.
4-08-02, 2008-Ohio-5189, ¶27, citing State v. Brewer (Jan. 28, 1998), 3d Dist. No.
2-97-20, at *3; State v. Horton (1993), 85 Ohio App.3d 268, 619 N.E.2d 527;
State v. Myers, 9th Dist. No. 06CA0003, 2006-Ohio-5958, ¶12. An abuse of
discretion is more than an error of law; rather, it suggests that the trial court’s
decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. “[T]he amount of the restitution
must be supported by competent, credible evidence in the record from which the
court can discern the amount of the restitution to a reasonable degree of certainty.”
State v. Didion, 173 Ohio App.3d 130, 2007-Ohio-4494, 877 N.E.2d 725, ¶20,
quoting State v. Policaro, 10th Dist. No. 06AP-913, 2007-Ohio-1469, ¶7, citing
State v. Sommer, 154 Ohio App.3d 421, 2003-Ohio-5022, 797 N.E.2d 559; State v.
Gears (1999), 135 Ohio App.3d 297, 300, 733 N.E.2d 683.
{¶10} At the time of Shaffer’s offenses—on or about March 22-29, 2009—
R.C. 2929.18 provided, in pertinent part:
(A) Except as otherwise provided in this division and in addition
to imposing court costs pursuant to section 2947.23 of the
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Case No. 14-09-06
Revised Code, the court imposing a sentence upon an offender
for a felony may sentence the offender to * * * the following:
(1) Restitution by the offender to the victim of the offender’s
crime or any survivor of the victim, in an amount based on the
victim’s economic loss. * * * If the court imposes restitution, at
sentencing, the court shall determine the amount of restitution to
be made by the offender. If the court imposes restitution, the
court may base the amount of restitution it orders on an amount
recommended by the victim, the offender, a presentence
investigation report, estimates or receipts indicating the cost of
repairing or replacing property, and other information,
provided that the amount the court orders as restitution shall
not exceed the amount of the economic loss suffered by the
victim as a direct and proximate result of the commission of the
offense. If the court decides to impose restitution, the court shall
hold a hearing on restitution if the offender, victim, or survivor
disputes the amount.
S.B. 17, eff. 9-30-08 (emphasis added); (Doc. No. 1); State v. Kanniard, 3d Dist.
No. 9-07-21, 2008-Ohio-518, ¶17 (appellate court considers the version of R.C.
2929.18 in effect when the offense was committed). See also, State v. Kreischer,
109 Ohio St.3d 391, 2006-Ohio-2706, 848 N.E.2d 496, ¶¶8-13 (applying version
of R.C. 2929.18(A) that was in effect at the time of the offense).
{¶11} During the State’s preliminary remarks at the March 3, 2009
sentencing hearing, the State requested that Shaffer be ordered to pay restitution in
the amount of $50,433.00 to the victim. (Mar. 3, 2009 Tr. at 6). This amount was
determined from the judgment entry in favor of the victim and against Shaffer in
the related civil case. (Id.); (Id. at 44-45); (State’s Ex. 2). At the conclusion of the
State’s opening statement, the prosecutor asked, “[a]re we in agreement on the
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Case No. 14-09-06
restitution figure?” (Mar. 3, 2009 Tr. at 10). Defense counsel responded, “I’d like
to argue the point. I’ll agree that your exhibit, however, is what was ordered out
of the civil case.” (Id.). The prosecutor, then, asked defense counsel whether he
had “other evidence,” presumably to rebut the figure provided by the State. (Id.)
At this point, the trial court stated, “[l]ets let him present the evidence when it’s
his turn,” to which the prosecutor agreed and called the victim to the stand. (Id.).
{¶12} The victim, the defendant’s former husband Fred Shaffer
(hereinafter “Fred”), testified, in relevant part, that he obtained a civil judgment
against Shaffer in the amount of $50,443.14 for the amount of money he lost as a
result of Shaffer’s actions. (Id. at 13, 18-19); (State’s Ex. 2). After the prosecution
finished its direct examination of Fred, the following dialogue occurred:
THE COURT: Am I to understand that Exhibit A [sic] is joint --
agreed to be admitted? I understand you want to argue about it,
but am I to understand that there’s no argument as to whether
or not it’s to be admitted?
MR. HORD: It’s a certified copy. It’s self-authenticating.
MR. WOLFE: Appears to be genuine, your Honor.
THE COURT: So the answer’s yes?
MR. WOLFE: Yes, your Honor.
(Mar. 3, 2009 Tr. at 25). On cross-examination, defense counsel questioned Fred
about whether or not any of his prior loan obligations were now satisfied as a
result of Shaffer’s conduct. (Id. at 26-31). The pertinent portion of that testimony
is as follows:
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Case No. 14-09-06
Q: * * * Mr. Shaffer, isn’t it a fact that, I mean, despite all the
wrongdoing Angel engaged in to put your son up to this
refinance, that out at that closing there were many of these debts
there were paid off?
A: Yeah. At the time I didn’t know it. When she done this, I
didn’t know she done it.
Q: Now, are there still debts out there that were not paid off at
the -- out of the wrongful refinance?
A: Well, at Huntington National Bank where I thought I had
some money, they’re still owed $3,100. She was caught kiting
among the banks. I went in and talked at Huntington National, I
went in and talked to National City and they had told me that
they realized it wasn’t me. * * * they said Mr. Shaffer must not
know what’s going on because they got her on tape at trying to
deposit large amounts of checks. And they caught her -- what
the word is called kiting.
Q: Let me ask you a different question here, Mr. --
A: Yeah. I know where you’re getting to about stuff that ain’t
paid off. I’m still fighting credit card debts that she had rang up
that I did not create.
Q: But it is a fact that the existing first and second mortgages on
the property, those were paid off out of the wrongful refinance,
is that true?
A: Well, the paperwork that I happened to see, yes, you’re right.
She paid that off. But then in 28 days she ran it up another
$45,000 in 28 days.
Q: Ran what up, sir?
***
A: The home equity line of credit.
Q: So that there was a new home equity line of credit?
A: Instead of them closing the home equity line of credit down
like it should have been done, they allowed her to go in and write
checks for another $45,000 in 28 days.
Q: Was your -- was your four-wheeler paid off out of the
refinance?
A: Now, that I don’t know. You see, I had money in my savings
account. She brought me the cash that supposedly came from
the savings. She said specifically come from the savings.
Q: So you don’t --
A: I did not know nothing about Chase.
-8-
Case No. 14-09-06
Q: Was the four-wheeler paid off?
A: The four-wheelers were paid in cash, sir.
Q: Okay. And that was an obligation that was in your name up
to that point, is that right?
A: The bikes were in my name, yes, sir.
Q: Was it about $9,000?
A: Roughly, yes. And I had over that in my account.
Q: And then did you have a camper that [sic] about 3,000 was
owed on that was paid out of this refinance?
A: Yes, I did.
Q: And a truck that was paid off --
A: Now, the truck was paid out of my savings account. It was
supposed to have been.
Q: Did you do it or somebody else?
A: No. I had her walk into the bank. I said take enough out and
I said pay my truck off because I had got a bonus check from
where I worked and it was practically enough to pay my truck
off.
Q: Now, did you ever go back and look at the savings account to
see if the truck payoff was taken out of there?
A: No, I did not. I did not do that.
Q: You don’t know whether 6,000 was taken out of your
savings?
A: Well, there’s a lot of stuff I don’t really know.
Q: Is it possible --
A: All I know at one time I had money in the bank account and a
lot of the stuff that took place I never even knew that happened.
That’s all I can tell you.
Q: Well, is it a fact that the truck is now paid off?
A: Well, yeah.
Q: And that you don’t know where that money came from?
A: Well, supposedly the money was supposed to come out of my
savings. Now, if you’re trying to get me to say that it came from
this other, I can’t answer that for you because I don’t know.
***
Q: Now, sir, have you looked -- after the fact, have you gone
back and looked at the closing statement out of this wrongful
refinance like where it talks about all the monies that were paid
out at the closing?
A: I seen that. Yes, I have. But was I aware of it? No. I wasn’t.
-9-
Case No. 14-09-06
Q: But do you now agree that there were many things that were
paid off out of the refinance that she did.
***
A: Yeah. I guess so. I’d have to say there was.
Q: And those are now things that you don’t have to pay?
***
A: If that’s how you want to put it.
***
Q: And you had a red car that was paid off to the tune of
$1,500?
A: A red car?
Q: Angel’s car.
A: I don’t know nothing about that. That was her car. She told
me -- she told me specifically that her mother gave her the
money for that car.
***
Q: Now, did you and Angel take some trips to West Virginia
after this wrongful refinance was done?
A: Yes. I went to West Virginia.
Q: And did she give some money toward the expenses for those
trips?
***
A: She had some money. But there again, she said this was
money that her mother had given her is what she had said.
***
Q: So you might have benefited from some of these monies that
she took out in the refinance?
***
A: The truth of the matter is if it happened, I did not know
about it. It was wrongfully.
(Id.).
{¶13} Fred was the only witness at the sentencing hearing, and following
his testimony defense counsel stated its recommendations to the trial court, in
relevant part, as follows:
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Case No. 14-09-06
MR. WOLFE: * * * I’d also like to let the Court know that I
have received State’s exhibits on the judgment out of the civil
case in the amount of $50,443.14. And that does appear to be a
judgment awarded to Fred Shaffer against Angel Shaffer.
However, I’m told by my client and it’s also evident from the
Court’s records that other than giving a deposition, Angel didn’t
really participate in the litigation. So this is essentially a default
judgment and it’s unclear to me how this figure is arrived at, at
least from the exhibit. What I have looked at, your Honor, and I
tried to get into a little bit with Mr. Shaffer was the HUD One
settlement statement that’s contained in the Court’s file. And
when you look at that, it appears that the money that was paid
out of the closing to the defendant was $6,190.84. The remaining
monies were paid to various creditors. And I don’t know about
what Mr. Shaffer said about the home equity credit line being
recharged up after the fact. But at least what’s on the HUD One
indicates that she took $6,190.84 at the closing. And I’m advised
by Angel that a lot of that money was spent when the two of
them took trips to West Virginia together. So, I don’t know
what the Court would feel is just regarding the expenditure of
those monies. But I did take a look at Revised Code 2929.18
regarding financial sanctions. And in Section A 1 it talks about
the Court needing to order restitution in an amount based on the
victim’s economic loss. And so if we go by the HUD One and we
look at those obligations that were paid off, I don’t see how those
can be a loss. It’s also unclear to me what’s contained within the
$50,000 order out of the civil case. So Angel is ready, willing,
and able to make restitution for the actual loss to the victim.
That (INAUDIBLE) figure just because I don’t know how that
was arrived at or whether that’s a just order to be made.
(Id. at 42-43). Thereafter, the State made its closing arguments, in relevant part,
as follows:
MR. HORD: * * * Yes, there is a settlement statement. But
quite frankly, that settlement statement is signed by allegedly
Fred Shaffer, but it was Brian Shaffer who signed it. There is in
fact and we’ve indicated there were payments that came out of it
to the tune of ninety-nine thousand approximately $656, $657
-11-
Case No. 14-09-06
that would have been relative to prior mortgages. Now, the total
amount of that refinance was $140,250. It does not take a rocket
scientist to figure out that there’s over $40,000 there alone that
are relative to this. What the 2929.18 talks about is restitution
for the financial loss. The loss that Mr. Shaffer has encountered
as a result of this was litigated significantly. It was not a default
judgment. The defendant chose for whatever reason to be pro
se. There is -- was extensive discovery and pleadings in that case
which ultimately culminated in the certified entry that has been
provided to the Court. Now, if I was going to prepare [sic] the
two, how much weight do I give the HUD One closing statement
that was actually part of the litigation where the parties involved
actually litigated it in this court and then resolved it with the fact
that the defendant in that case, a civil defendant, owed the
plaintiff defendant Fred Shaffer the amount of 50,000 –
approximately $50,433. That is clear. That was the full civil
litigation of it. How she chose to participate is irrelevant. The
fact of the matter is it’s a certified entry. There’s no other
evidence. The Court can take judicial notice of its ruling. As far
as the victim Fred Shaffer, he was very clear.
(Id. at 44-45). No further discussion was had regarding the amount of restitution,
and the trial court, thereafter, ordered that Shaffer pay the victim $50,433.00 in
restitution. (Id. at 53).
{¶14} On the basis of the record before us, we cannot conclude that the
trial court abused its discretion in ordering that Shaffer pay the victim restitution
in the amount of $50,433.00. To begin with, we reject Shaffer’s argument that the
trial court failed to conduct a hearing on restitution as required by R.C.
2929.18(A)(1). In fact, what is clear from the testimony presented is that the trial
court did consider evidence relating to the appropriate amount of restitution—that
Shaffer failed to offer evidence on this issue is irrelevant. Shaffer, however,
-12-
Case No. 14-09-06
argues that she was entitled to a “full” and “separate” hearing on the issue of
restitution once she disputed the amount of restitution. R.C. 2929.18(A)(1)’s plain
language imposes no such requirements; rather the plain language requires only
that the trial court “shall hold a hearing.” As this Court has noted before, trial
courts may hold the restitution hearing as part of the sentencing hearing under
certain circumstances. Didion, 2007-Ohio-4494, at ¶16.
{¶15} Although this Court in dicta may have implied in other cases that
R.C. 2929.18(A)(1) required a separate hearing, we believe the facts and
circumstances here are such that the trial court did not abuse its discretion by
failing to hold a separate hearing. See, e.g., Griffus, 2009-Ohio-304, at ¶¶10-11.
To start with, defense counsel made no request for either a continuance or a
separate hearing. Defense counsel participated at the hearing as if the court was
holding a restitution hearing, questioning the victim regarding any benefits he may
have received from the fraudulent refinance and arguing as to the correct amount
of restitution. (Mar. 3, 2009 Tr. at 26-31, 42-43). Defense counsel should have
known—if defense counsel did not in fact know—that the amount of restitution
would be an issue at sentencing. (See, e.g., Restitution Reports filed Feb. 5 & Mar.
2, 2009, Doc. Nos. 51, 60). Defense counsel also indicated during the hearing that
Shaffer’s mother was present to testify but decided not to have her testify. (Id. at
40). Shaffer has not even asserted on appeal what, if any, evidence she would
-13-
Case No. 14-09-06
have produced at a separate hearing to refute the amount of the restitution ordered.
Furthermore, any alleged error was invited by the defendant’s participation,
without objection, in the combined sentencing/restitution hearing, and defendant
cannot take advantage of this alleged error on appeal. State v. Monnette, 3d Dist.
No. 9-08-33, 2009-Ohio-1653, ¶12, citing State v. Ransom, 3d Dist. No. 15-06-05,
2006-Ohio-6490, ¶14. For all these reasons, we find that Shaffer’s argument with
regard to the restitution hearing meritless.
{¶16} Having reviewed the entire record, we also find that the trial court’s
restitution order was supported by competent, credible evidence. Didion, 2007-
Ohio-4494, at ¶20, quoting Policaro, 2007-Ohio-1469, at ¶7, citing Sommer,
2003-Ohio-5022; Gears, 135 Ohio App.3d at 300. R.C. 2929.18(A)(1)
specifically states that, “* * * the court may base the amount of restitution it orders
on an amount recommended by the victim, the offender, a presentence
investigation, estimates or receipts indicating the cost of repairing or replacing
property, and other information * * *.” (Emphasis added). The victim, Fred
Shaffer, testified that State’s exhibit two was a civil judgment in his favor against
the defendant-appellant for $50,443.14 stemming from a civil lawsuit, which Fred
described as: “* * * more or less money that I had lost and what she has -- how
much she has costed me.” (Mar. 3, 2009 Tr. at 18-19). State’s exhibit two was
also entered into evidence. (Id. at 49). We cannot find that the trial court abused
-14-
Case No. 14-09-06
its discretion by ordering that Shaffer pay $50,433.00 in restitution, because the
trial court had competent, credible evidence in the record supporting this amount.
{¶17} With regard to whether $50,433.00 was “the amount of the
economic loss suffered by the victim,” Shaffer’s primary concern, the trial court
considered testimony presented through cross-examination that the victim had
benefited by Shaffer’s criminal acts since several of the loans for which he was
liable were paid off out of the fraudulent refinance. (Mar. 3, 2009 Tr. at 26-31);
R.C. 2929.18(A)(1). Ultimately, however, the trial court found the victim’s
testimony and the prior civil judgment to be more persuasive in determining the
amount of restitution. Generally speaking, “[e]valuating evidence and assessing
its credibility are the primary functions of the trier of fact, not an appellate court.”
Yuhasz v. Mrdenovich (1992), 82 Ohio App.3d 490, 492, 612 N.E.2d 763.
Throughout defense counsel’s cross-examination, the victim stated several times
that he could not be certain of where the monies came from to pay off his loan
obligations. (Mar. 3, 2009 Tr. at 26-31). In fact, with many of these liabilities, the
victim presumed that Shaffer, who was his wife at the time, was taking the money
out of his savings account according to his instruction. (Id.). Furthermore, Shaffer
failed to present evidence, aside from her cross-examination of the victim,
contrary to the amount of restitution ordered by the trial court. As we recently
noted, “* * * it is the responsibility of the parties to put forth the evidence they
-15-
Case No. 14-09-06
believe is relevant and necessary for a just decision. Each party tries his own case,
and the court reaches a decision based on the evidence that the parties have
presented * * *.” Dindal v. Dindal, 3d Dist. No. 5-09-06, 2009-Ohio-3528, ¶10,
citing Walls v. Walls (May 4, 1995), 4th Dist. No. 94-CA-849, at *5. The trial
court’s restitution figure was based upon the evidence presented at the hearing—
namely, the victim’s testimony and the civil judgment entry—and, as such, we
find no abuse of discretion.
{¶18} As to the dissent’s contention that the restitution order was
duplicitous or illogical given the civil judgment, we find this reason insufficient on
its face to merit a reversal of the trial court’s restitution order. Post at ¶24.
Furthermore, “[n]o financial sanction imposed under this section [e.g. restitution]
* * * shall preclude a victim from bringing a civil action against the offender.”
R.C. 2929.18(H). Since the victim is able to obtain a civil judgment based upon
the same economic loss calculated in a trial court’s restitution order, we fail to see
how the opposite—obtaining a restitution order based upon a related civil
judgment—is somehow impermissible. The dissent points to no rule of law
providing otherwise.
{¶19} Next, Shaffer argues that the trial court erred by ordering her to pay
costs and restitution without holding a hearing to determine if she had the present
-16-
Case No. 14-09-06
or future ability to pay such costs. We again disagree. In State v. Troglin, this
Court explained:
Under R.C. 2947.23, “[i]n all criminal cases, * * * the judge or
magistrate shall include in the sentence the costs of prosecution
and render a judgment against the defendant for such costs.”
R.C. 2947.23(A)(1). Thus, a court is required to impose the costs
of prosecution against convicted criminal defendants, regardless
of whether they are indigent. State v. Felder, 3d Dist. No. 9-04-51,
2005-Ohio-546, ¶6, citing State v. White, 103 Ohio St.3d 580,
2004-Ohio-5989, ¶ 8.
Conversely, R.C. 2929.19(B)(6) requires a trial court to consider
the offender’s present and future ability to pay before imposing
a financial sanction under R.C. 2929.18. The trial court is not
required to hold a hearing on the issue of financial sanctions,
and there are no express factors that the court must take into
consideration or make on the record. See, e.g., State v. Martin,
140 Ohio App.3d 326, 338, 2000-Ohio-1942. “The record should,
however, contain ‘evidence that the trial court considered the
offender’s present and future ability to pay before imposing the
sanction.’” State v. Culver, 160 Ohio App.3d 172, 186, 2005-
Ohio-1359, citing State v. Robinson, 3d Dist. No. 5-04-12, 2004-
Ohio-5346, at ¶17. Generally, R.C. 2929.19(B)(6) is satisfied
where a trial court considered a PSI, which typically contains
pertinent financial information, or where the transcript
demonstrates that the trial court at least considered a
defendant’s ability to pay.
3d Dist. No. 14-06-57, 2007-Ohio-4368, ¶¶37-38. With regard to costs, the trial
court was required to impose costs regardless of Shaffer’s indigent status. Id.
With regard to Shaffer’s ability to pay, the victim testified at the sentencing
hearing that Shaffer was formerly employed as a manager of a McDonald’s
restaurant and earned around $10-11 per hour. (Mar. 3, 2009 Tr. at 22-23, 33).
-17-
Case No. 14-09-06
Furthermore, the PSI, which was reviewed by the trial court, reveals that Shaffer
worked at: McDonald’s from 1995 to October 2007, earning $12/hour; I-Force
from April 2008 to January 2009, earning $9/hour; and Scioto Industrial from
November 2008 to January 2009. (Mar. 3, 2009 Tr. at 51-52); (PSI at 15). The
PSI also provides information regarding Shaffer’s educational background and
finances. (PSI at 11, 15-16). Under these circumstances, we cannot conclude that
the trial court abused its discretion by ordering Shaffer to pay costs and restitution.
Alvarez, 2008-Ohio-5189, at ¶27, citing Brewer, 3d Dist. No. 2-97-20, at *3;
Horton, 85 Ohio App.3d 268; Myers, 2006-Ohio-5958, at ¶12.
{¶20} Next Shaffer argues that the trial court erred by imposing indigent
counsel fees without first determining whether she had a present or future ability
to pay such fees. We agree. R.C. 2941.51(D) provides the following pertinent
provision concerning indigent counsel fees: “* * * if the person represented has, or
reasonably may be expected to have, the means to meet some part of the cost of
the services rendered to the person, the person shall pay the county an amount that
the person reasonably can be expected to pay.” This Court has previously stated,
however, that:
[A]n indigent defendant may properly be required to pay his
attorney fees only after the court makes an affirmative
determination on the record in the form of a journal entry, that
the defendant has, or reasonably may be expected to have, the
means to pay all or some part of the cost of the legal services
rendered to him. The court must then enter a separate civil
-18-
Case No. 14-09-06
judgment for the attorney fees or any part thereof that the court
finds the defendant has the ability to repay.
State v. Johnson, 3d Dist. No. 16-03-09, 2004-Ohio-1513, ¶50, quoting Galion v.
Martin (Dec. 12, 1991), 3d Dist. No. 3-91-06; State v. Burns (Mar. 15,1999), 3d
Dist. No. 9-98-21, at *5-6; State v. White (Apr. 21, 1998), 3d Dist. Nos. 3-97-18,
3-97-19, at *6. The trial court sub judice failed to make an affirmative finding of
Shaffer’s present or future ability to pay indigent counsel fees in its journal entry
of sentence; and therefore, the trial court erred in assessing indigent counsel fees.
Accordingly, we must remand this matter for resentencing for the trial court to
assess indigent counsel fees, if it determines those are still appropriate, in
accordance with the procedures adopted by this Court in Galion v. Martin and its
progeny.
{¶21} Shaffer’s assignment of error is, therefore, sustained with regard to
the trial court’s imposition of indigent counsel fees and to that extent only.
{¶22} Having found error prejudicial to the appellant herein in the
particulars assigned and argued, we reverse the judgment of the trial court and
remand for further proceedings consistent with this opinion.
Judgment Reversed and
Cause Remanded
SHAW, J., concurs.
/jnc
-19-
Case No. 14-09-06
ROGERS, J., dissents.
{¶23} I respectfully dissent from the opinion of the majority on the issue of
restitution.
{¶24} I would first comment that I see no reason why this particular order
was granted. It appears clear from the record that the trial court was granting
restitution equal to and based on the previously granted civil judgment. If the civil
judgment was based on the same fraudulent conduct which gave rise to the case at
bar, which appears to be the State’s argument, that civil judgment would not be
dischargeable in bankruptcy. What benefit then is there to restating the judgment
as an order of restitution, which is simply another civil judgment?
{¶25} But the greater problem is the fact that we do not know the basis for
the award of damages in the civil judgment. R.C. 2929.18(A)(1) provides that the
trial court may order restitution in an amount based on the victim's economic loss.
There is insufficient evidence in this case to determine that the amount of the civil
judgment is limited to the victim’s economic loss.
{¶26} The majority comments that “[s]ince the victim is able to obtain a
civil judgment based upon the same economic loss calculated in a trial court’s
restitution order, we fail to see how the opposite – obtaining a restitution order
based upon a related civil judgment – is somehow impermissible.” To me the
distinction is obvious. A civil suit initiated after a criminal order of restitution
-20-
Case No. 14-09-06
may include more than economic loss and may include additional economic losses
not recognized in the order of restitution. Also, the order of restitution may be
considered as a setoff against the victim’s total damages so that the same damages
are not awarded twice.
{¶27} When an order of restitution is requested subsequent to a civil award
of damages, is the defendant permitted to raise the same defenses as in a civil
action? If new or additional economic losses are requested, is the defendant
permitted to argue that, since the new claims were not included in the civil case,
they were waived? Would the issue of damages be res judicata?
{¶28} In this case, the State requested an order of restitution equal to the
civil judgment, thereby simply duplicating the award. This is an obvious abuse of
process and waste of judicial resources. When execution of these judgments is
attempted, more judicial resources will be wasted on the efforts to enforce and/or
defend two judgments based on the same injuries.
{¶29} Because of the question of whether the civil judgment is limited to
the victim’s economic loss, and because there is no logical reason for restating the
civil judgment as an order of restitution, I would sustain the assignment of error as
to the order of restitution.
-21-
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SUMMARY MEMORANDUM AND OPINION; NOT INTENDED FOR PUBLICATION.
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
REBECCA TRESSLER,
Plaintiff,
Civil Action No. 09-cv-02027 (RLW)
v.
NATIONAL RAILROAD PASSENGER
CORPORATION,
Defendant.
MEMORANDUM OPINION
Before the Court is Defendant National Railroad Passenger Corporation’s motion to
dismiss claims V –VIII of the Amended Complaint. For the reasons stated below, Defendant’s
motion is granted in part and denied in part.
I. BACKGROUND
Plaintiff Rebecca Tressler’s original complaint in this case was filed on October 28,
2009. Plaintiff alleged three counts: (1) creation of a hostile work environment in violation of
Title VII of the Civil Rights Act (“Title VII”) and the District of Columbia Human Rights Act
(“DCHRA”) (from January 13, 2006 to present); (2) retaliation in violation of Title VII and the
DCHRA; and (3) creation of a hostile work environment in violation of the DCHRA (from
March 15, 2008 to present). On October 29, 2010, Plaintiff filed its Amended Complaint adding
claims for constructive demotion, violation of the Federal Employers’ Liability Act (“FELA”),
and defamation.
Plaintiff is employed with Defendant as a railroad engineer on the Virginia Railway
Express (“VRE”). Am. Compl. ¶ 9. Plaintiff has alleged that from January to June of 2006, a
male passenger on the VRE train stalked her and behaved inappropriately by touching her,
obstructing her way when she left the operator’s compartment, and taking pictures of her while
she operated the train. Id. ¶ 11. 1 When Plaintiff changed her positioning in her seat to block the
passenger’s view while she operated the train, she began to experience back pain, headaches, and
numbness. Id. ¶ 12. Plaintiff raised the stalking issue with her employer in April of that year.
According to Plaintiff, however, Defendant did little to respond to her complaints. Id. ¶¶ 14-15.
In the fall of 2006, Plaintiff was suspended for exceeding the maximum speed authorized
by a temporary dispatcher bulletin. She also lost the use of her rail pass—an unusual punishment
for this offense. Id. ¶ 24. When Plaintiff returned to work from her suspension in January 2007,
she took a lower-paying position as a yard engineer to avoid further harassment and retaliation
from her supervisors at the VRE. Id. ¶ 26. That same month, Plaintiff claims that Defendant’s
employees spread false rumors concerning her health and mental stability. Id. ¶ 27.
On March 14, 2008, while Plaintiff was driving the train, a male coworker gave Plaintiff
an unsolicited neck rub, exposed his genitals, and then grabbed her hand and forced her to touch
his genitals. Id. ¶ 31. At some time after this incident, sexually graphic and derogatory graffiti
about Plaintiff and women in general began to appear in the engines plaintiff was scheduled to
operate. Id. ¶ 32. According to Plaintiff, Defendant did not take any reasonable steps to
investigate this incident. Id.
1
At this stage, the Court takes all of Plaintiff’s well-pleaded allegations as true. Warren v. Dist.
of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004).
2
Defendant filed its motion to dismiss counts V –VIII of Plaintiff’s Amended Complaint
on November 12, 2010, arguing that Plaintiff’s Amended Complaint fails to state a claim for
which any relief can be granted.
II. LEGAL STANDARD
“To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient
factual matter, acceptable as true, to state a claim to relief that is plausible on its face.”
Anderson v. Holder, 691 F.Supp.2d 57, 61 (D.D.C. 2010) (brackets omitted) (quoting Ashcroft v.
Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (internal quotes
omitted).
A court considering a Rule 12(b)(6) motion must construe the complaint in the light most
favorable to plaintiff and must accept as true all reasonable factual inferences drawn from well-
pleaded factual allegations. In re United Mine Workers of Am. Employee Benefit Plans Litig.,
854 F.Supp. 914, 915 (D.D.C. 1994). However, where the well-pleaded facts do not permit a
court, drawing on its judicial experience and common sense, to infer more than the “mere
possibility of misconduct,” the complaint has not shown that the pleader is entitled to relief.
Iqbal, 129 S. Ct. at 1950.
In evaluating a Rule 12(b)(6) motion to dismiss, a court “may consider only the facts
alleged in the complaint, any documents either attached to or incorporated in the complaint and
matters of which [a court] may take judicial notice.” Trudeau v. FTC, 456 F.3d 178, 183 (D.C.
Cir. 2006) (quoting EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir.
1997)).
3
III. DISCUSSION
Plaintiff’s Constructive Demotion Claims (Counts V & VI)
Defendant posits three main arguments to support its contention that Counts V and VI
should be dismissed. First, Defendant argues Plaintiff has improperly pled a heretofore
unrecognized cause of action for “constructive demotion” under Title VII and the DCHRA.
Def.’s Reply in Supp. of Mot. to Dismiss 2-3. In its Opposition Brief, Plaintiff argues that
Counts V and VI set forth disparate treatment gender discrimination claims where the alleged
adverse employment action is a constructive demotion. 2 Plt.’s Opp’n to Mot. to Dismiss 5-6.
The Court construes Counts V and VI to be based on a disparate treatment theory. See Hawkins
v. Holder, 597 F.Supp.2d 4, 18-19 n.8 (D.D.C. 2009) (construing “constructive demotion”
allegations as disparate-treatment racial discrimination claims).
Second, Defendant argues that Counts V and VI cannot stand as individual claims, and
are more appropriately analyzed within her other unlawful discrimination claims. Def.’s Mot. to
Dismiss 4-5. This is not the law. Plaintiff’s disparate treatment claims are separate and distinct
from the hostile work environment claims Plaintiff alleges in Counts I and II of its Amended
Complaint. See Lester v. Natsios, 290 F.Supp.2d 11, 33 (D.D.C. 2003) (recognizing that discrete
acts of discrimination “are different in kind from a hostile work environment claim that must be
based on severe and pervasive discriminatory intimidation or insult”). There is also nothing to
suggest that Plaintiff’s discrimination claims should be combined with her retaliation claims in
2
Although Defendant does not concede that Plaintiff suffered a constructive demotion, or any
other adverse employment action, Defendant does recognize that a constructive demotion may be
an adverse action for purposes of establishing a prima facie case of discrimination. Def.’s Reply
in Supp. of Mot. to Dismiss 3.
4
Counts III and IV. See Simmons v. Cox, 495 F.Supp.2d 57, 63-66 (D.D.C. 2007) (distinguishing
between the elements required to prevail on gender discrimination claims and retaliation claims).
Third, Defendant argues that Plaintiff has failed to provide sufficient facts to support her
discrimination claims. Counts V and VI of Plaintiff’s Amended Complaint allege discrimination
in violation of Title VII and the DCHRA. Because DCHRA and Title VII discrimination claims
are analyzed under the same legal standard, the following applies to both Counts V and VI of
Plaintiff’s Amended Complaint. See, e.g., Elhusseini v. Compass group USA, Inc., 578
F.Supp.2d 6, 10 n. 4 (D.D.C. 2008) (collecting cases). Title VII of the Civil Rights Act makes it
“an unlawful employment practice for an employer . . . to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).
To succeed on a Title VII discrimination claim, a plaintiff has the initial burden of
establishing a prima facie case of discrimination by showing that “(1) she is a member of a
protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action
gives rise to an inference of discrimination.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir.
2007). To survive a motion to dismiss, however, a Title VII plaintiff need not plead each
element of his prima facie case, but “must allege facts that, if true, would establish the elements
of each claim” of his complaint. Robinson-Reeder v. American Council on Educ., 532
F.Supp.2d 6, 14 (D.D.C. 2008) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122
S.Ct. 992 (2002)). Therefore, “the Court may explore the plaintiff’s prima facie case at the
dismissal stage to determine whether the plaintiff can ever meet his initial burden to establish a
prima facie case for Title VII discrimination.” Rattigan v. Gonzales, 503 F.Supp.2d 56, 72
(D.D.C. 2007) (citation omitted).
5
It is undisputed that Plaintiff, as a woman, is a member of a protected class. Plaintiff has
alleged that she has suffered an adverse employment action in the form of a constructive
demotion. Because the Amended Complaint alleges that Plaintiff took a position as a yard
engineer for lower pay rather than face continued harassment, was removed from regular
assignment and placed on the “extra” list, and was denied pay for two months, the Court finds
that Plaintiff’s alleged reassignment constituted an adverse employment action and that the
circumstances alleged give rise to an inference of discrimination. See Forkkio v. Powell, 306
F.3d 1127, 1131 (D.C. Cir. 2002) (recognizing that “reassignment with significantly different
responsibilities . . . generally indicates an adverse action”). Accordingly, Plaintiff has set forth
sufficient facts to survive Defendant’s motion to dismiss as to Counts V and VI of the Amended
Complaint.
Plaintiff’s Claim for Violation of FELA (Count VII)
A FELA plaintiff may recover damages for work-related injuries “resulting in whole or in
part” from the negligence of the railroad’s agents or from “any defect or insufficiency” in the
railroad’s equipment due to its negligence. 45 U.S.C. § 51; see Keranen v. Nat’l R.R. Passenger
Corp., 743 A.2d 703, 711-12 (D.C. 2000). Although a FELA plaintiff is required to prove a
failure on the part of the railroad to use reasonable care under the circumstances, “a relaxed
standard of causation applies under FELA.” Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 543,
114 S.Ct. 2396, 2404 (1994). A plaintiff may prevail on a FELA claim if the railroad’s
negligence “played any part, even the slightest,” in causing the plaintiff’s injury. Rogers v.
Missouri Pac. R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448 (1957).
Defendant argues that the FELA is preempted by Title VII, relying primarily on Griggs v.
National R.R. Passenger Corp., Inc., 900 F.2d 74 (6th Cir. 1990). Griggs, however, is
6
inapposite. The Plaintiff in Griggs made no allegations of physical harassment, and only alleged
racial and sexual harassment as a basis for the discrimination claim she pursued under the FELA.
The Plaintiff in the present case has alleged numerous physical injuries as a basis for her FELA
claim. Specifically, Plaintiff has alleged injuries to her neck, back and ankle. Am. Compl. ¶¶
75-76. Additionally, Plaintiff has alleged physical manifestations of the stress caused by the
hostile work environment caused by Defendant, including back pain, headaches, numbness, and
ongoing injury to her ankle. Id. ¶ 77. As such, Plaintiff’s FELA claims are not preempted by
Title VII. 3
In light of the fact that Plaintiff has alleged physical injuries that may have resulted from
Defendant’s negligence, Plaintiff has stated a cause of action under the FELA. Defendant’s
motion to dismiss Count VII of the Amended Complaint is denied.
Plaintiff’s Defamation Claim (Count VIII)
Plaintiff’s eighth count alleges that Defendant and its agents maliciously made
derogatory statements about her in the workplace. Am. Compl. ¶ 80. Plaintiff alleges three
discrete incidents of defamation. Plaintiff claims that Defendant and its agents: (1) falsely
claimed that she was in a mental hospital for observation; (2) made comments regarding her
training record; and (3) caused numerous instances of offensive and harmful statements to be
written about her in graffiti on Defendant’s trains. None of these allegations provide sufficient
specificity to state a claim for defamation.
Although there is no heightened pleading standard for defamation in the District of
Columbia, allegations of defamation must be pled with sufficient particularity to provide the
3
Defendant also argues that even if Plaintiff’s FELA claims are not preempted by Title VII, they
should still be dismissed because she failed to demonstrate that she was in the zone of danger.
The zone of danger analysis is used to determine recovery for purely emotional injury. See
Gottshall, 512 U.S. at 556. Because Plaintiff has alleged physical injuries as a basis for her
FELA claims, the zone of danger analysis is inapplicable here.
7
opposing party with opportunity to prepare responsive pleadings. Oparaugo v. Watts, 884 A.2d
63, 76-77 (D.C. 2005). Plaintiff fails to state a claim of defamation because she does not plead
“the time, place, content, speaker, and listener of the alleged defamatory matter.” Wiggins v.
Dist. Cablevision, Inc., 853 F.Supp. 484, 494 (D.D.C. 1994).
Plaintiff’s first allegation that defendant and its agents made statements “falsely claiming
[P]laintiff was in a mental hospital for observation,” (Am. Compl. ¶ 80) lacks sufficient
specificity to state a claim for defamation. Even if the court were to conclude that these
statements regarding Plaintiff’s mental condition are defamatory in nature, she has made no
attempt to allege with any specificity the time, place, speaker, or listener of the defamatory
statement. Plaintiff’s second and third defamation allegations fail for similar reasons. Plaintiff’s
second and third allegations not only fail to allege the time, place, speaker, or listener of the
defamatory statement, but, more importantly, fail to describe the content or substance of the
supposed defamatory statements. Because Plaintiff’s allegations lack the specificity to state a
claim for defamation, the defamation claim must be dismissed.
To the extent that any of Plaintiff’s defamation claims are pled with sufficient specificity,
Defendant correctly argues these claims are time-barred by the one-year statute of limitations.
See D.C. Code § 12-301(4); see also Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715
A.2d 873, 882 (D.C. 1998) (recognizing one-year statute of limitations for defamation claim).
Plaintiff’s defamation claim was first asserted in the Amended Complaint filed on October 29,
2010. Even if Plaintiff is permitted to relate back to the date of her original pleading (October
28, 2009), her defamation claim is still untimely as she has not alleged a single defamatory act
that occurred within one year of her original complaint.
8
To support her defamation claim, Plaintiff alleges that “sometime after March 14, 2008,”
sexually graphic and derogatory graffiti was placed in the engine she was scheduled to operate.
(Am. Compl. ¶ 32). 4 Although Plaintiff claims that these defamatory actions continue through
the present day, she has made no specific allegation of defamatory conduct that occurred after
October 28, 2008. Accordingly, the Court finds that Plaintiff’s defamation claim is time-barred
and Defendant’s motion to dismiss count VIII is granted.
Conclusion
For the foregoing reasons, Defendant’s motion to dismiss counts V – VIII of Plaintiff’s
Amended Complaint is GRANTED IN PART and DENIED IN PART. The Court DENIES
Defendant’s Motion to Dismiss as to Plaintiff’s claims for gender discrimination in Counts V and
VI, and Plaintiff’s FELA claim in Count VII. The Court GRANTS Defendant’s Motion to
Dismiss as to Plaintiff’s defamation claim in Count VIII. An Order consistent with the
Memorandum will be issued.
SO ORDERED.
Date: May 13, 2011 /s/
Robert L. Wilkins
United States District Judge
4
Plaintiff also alleges that Amtrak employees spread false rumors about her mental stability in
January 2007. These defamatory acts are well outside the limitations period and are, therefore,
time-barred.
9
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5218
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL BERNARD COLEMAN,
Defendant - Appellant.
No. 10-5313
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PAUL BERNARD COLEMAN,
Defendant - Appellant.
On Remand from the Supreme Court of the United States.
(S. Ct. No. 11-9604)
Submitted: November 26, 2012 Decided: December 5, 2012
Before WILKINSON, NIEMEYER, and KING, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Craig W. Sampson, Sr., BARNES & DIEHL, PC, Chesterfield,
Virginia, for Appellant. Neil H. MacBride, United States
Attorney, N. George Metcalf, Richard D. Cooke, Assistant United
States Attorneys, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
A federal jury convicted Paul Bernard Coleman of two
counts of possession with intent to distribute cocaine base
(“crack”), in violation of 21 U.S.C. § 841(a) (2006). On
December 20, 2010, the district court sentenced Coleman to the
statutory mandatory minimum term of life imprisonment. On
appeal, this court affirmed the district court’s judgment. See
United States v. Coleman, 445 F. App’x 642 (4th Cir. 2011)
(unpublished).
Subsequently, in Dorsey v. United States, 567 U.S.
___, 132 S. Ct. 2321 (2012), the Supreme Court determined that
the Fair Sentencing Act (“FSA”) applies to defendants who
committed their offenses prior to the effective date of the Act,
August 3, 2010, but were sentenced after that date. Id. at
2326-36. The Court then granted Coleman’s petition for a writ
of certiorari and remanded the appeal to this court based on
Dorsey. As Coleman was sentenced after the effective date of
the FSA, we affirm the conviction but vacate the sentence and
remand to the district court for resentencing in light of
Dorsey. We dispense with oral argument because the facts and
legal contentions are adequately presented in the
3
materials before this court and argument would not aid the
decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
4
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