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594 F.2d 972 Algernon E. W. SUITE, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 78-2068. United States Court of Appeals,Third Circuit. Submitted Feb. 15, 1979.Decided March 15, 1979. Austin J. McGreal, Philadelphia, Pa., for petitioner. Philip Wilens, Chief, Government Regulations and Labor Section, Cr. Div., James P. Morris, Chester J. Halicki, Attys. Dept. of Justice, Washington, D. C., Robert S. Forster, Jr., Asst. U. S. Atty., Philadelphia, Pa., for respondent. Before ALDISERT, ADAMS and HIGGINBOTHAM, Circuit Judges. OPINION OF THE COURT PER CURIAM. 1 Algernon Suite petitions for review of an order entered by the Board of Immigration Appeals that dismissed his appeal from a determination by an Immigration Judge that he be deported to Trinidad but granting him the right to depart voluntarily. Suite was charged with procuring a visa or other documentation by fraud or willful misrepresentation of a material fact, in contravention of 8 U.S.C. § 1182(a)(19), a violation which constitutes a ground for deportation under 8 U.S.C. § 1251(a)(1). Because we hold that knowledge of the charged falsity satisfies the fraud and willfulness requirements of § 1182(a)(19), we deny the petition for review. 2 Suite concedes that he submitted both a forged letter and a forged employment certification application to the consular office in Trinidad when he applied for his immigrant visa.1 He argues, however, that his submission of the letter and application was not a "willful" misrepresentation, because he was confused about which documents should be presented and that this confusion was caused by officials of the Immigration and Naturalization Service. According to Suite's testimony at his deportation hearing, he had intended to submit a valid letter and employment offer from his employer at the time of the visa proceeding before the Trinidad consul, but was instructed by unnamed personnel in the Immigration and Naturalization Service to present documents from a different individual, who was listed as his employer on his labor certification document. Relying on that testimony, Suite contends on appeal that he did not commit a willful misrepresentation, as that term is used in 8 U.S.C. § 1182(a) (19), because he had no intent to deceive. 3 Although the meaning of a term will vary with the context in which it is used in a particular statute, recent judicial and administrative decisions have interpreted "willful" for purposes of § 1182(a)(19) as entailing voluntary and deliberate activity, and have held that knowledge of the falsity of a representation is sufficient to satisfy the scienter element of that section. See Espinoza-Espinoza v. Immigration & Naturalization Service, 554 F.2d 921, 925 (9th Cir. 1977); Matter of Hui, 15 I. & N. Dec. (BIA 1975); U.S. Department of State, Visa Off. Bull. No. 90, March 2, 1962, Cited in 1 Gordon & Rosenfield, Immigration Law and Procedure, § 4.7c, at 4-57 (1976). Cf. Bufalino v. Immigration & Naturalization Service, 473 F.2d 728, 739 (3d Cir.), Cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973) (Adams, J., concurring) ("willful," as used in 8 U.S.C. § 1251(a)(5), means "intentional" and does not require proof of an evil motive or bad purpose). Consequently, in light of Suite's testimony that he knew the documents were forged, his presentation of false papers to the consul was a willful misrepresentation in the visa proceedings. 4 Suite also argues that the forged documents were not necessary for the consul's issuance of the visa and that therefore the Board erred in determining that there was a misrepresentation of a material fact. We have considered this contention and find it to be without merit. Accordingly, the petition for review of the order of the Board of Immigration Appeals will be denied. 1 The Immigration Judge found that: "He (Suite) does concede that he did lie to the consul and is aware of the fact that false papers had been presented to the consul in order to obtain a visa." App. 54a-55a	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT EDDIE L. FORD , No. 11-35319 Plaintiff-Appellant, D.C. No. v. 2:09-CV-03108- LRS CITY OF YAKIMA ; N. WENTZ, Lieutenant; R. URLACHER, Officer, Defendants-Appellees. OPINION Appeal from the United States District Court for the Eastern District of Washington Lonny R. Suko, District Judge, Presiding Argued and Submitted April 11, 2012—Seattle, Washington Filed February 8, 2013 Before: Proctor Hug, Jr., Dorothy W. Nelson, and Consuelo M. Callahan, Circuit Judges. Per Curiam Opinion; Dissent by Judge Callahan 2 FORD V . CITY OF YAKIMA SUMMARY* Civil Rights The panel reversed the district court’s summary judgment in favor of the City of Yakima and two of its police officers in a 42 U.S.C. § 1983 action in which plaintiff alleged that the officers retaliated against him for exercising his First Amendment right to freedom of speech. The panel held that plaintiff alleged facts, that officers booked and jailed him in retaliation for his protected speech, which established a violation of his clearly established First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for the officers initially to arrest plaintiff for violating the City noise ordinance. The panel concluded that at the time of plaintiff’s arrest, a reasonable police officer would have understood that he could not exercise his discretion to book an individual in retaliation for that individual’s First Amendment activity. The panel therefore determined that officers were not entitled to qualified immunity, and plaintiff’s claims should proceed to trial. Dissenting, Judge Callahan stated that the majority’s opinion failed to follow Supreme Court guidance in determining first that the police officers’ decision to book plaintiff instead of issuing a ticket violated his constitutional rights, and second that plaintiff’s “right” was clearly established. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. FORD V . CITY OF YAKIMA 3 COUNSEL William D. Pickett (argued), Law Office of William D. Pickett, Yakima, Washington, for Plaintiff-Appellant. Thomas P. Miller (argued), Robert L. Christie, Christie Law Group, PLLC, Seattle, Washington, for Defendants- Appellees. OPINION PER CURIAM: Eddie Ford (“Ford”) appeals from the grant of summary judgment in favor of the City of Yakima and two of its police officers, Ryan Urlacher and Nolan Wentz (“Appellees”), in his 42 U.S.C. § 1983 action alleging First Amendment retaliation. Ford has alleged facts that would establish a violation of his clearly established First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action. See Skoog v. County of Clackamas, 469 F.3d 1221, 1235 (9th Cir. 2006). Because the officers are not entitled to qualified immunity, we reverse and remand for trial. I. Background Shortly after midnight on July 17, 2007, Ford was listening to music while driving to work when he noticed a police car approaching rapidly from behind him. Ford changed lanes twice “to get out of [the police car’s] way.” 4 FORD V . CITY OF YAKIMA The patrol car followed him each time. While stopped at a red light, Ford stepped out of his car abruptly and asked Urlacher, the officer driving the police car, why he was being followed so closely. Urlacher felt “concerned for [his] safety,” and told Ford to get back into the car and “go.” Then, as both parties drove through the intersection, Urlacher turned on his flashing lights and initiated a traffic stop. Ford turned into a nearby parking area and emerged from his car yelling. Urlacher, armed with a taser gun, approached Ford and asked for his license and registration. Urlacher perceived the situation as “very dangerous.” As Ford retrieved the requested items, he stated that he thought the traffic stop was racially motivated. Urlacher warned Ford to stay in the car or risk being taken to jail. Ford obeyed. Urlacher then returned to his patrol car and checked Ford’s driver’s license for warrants. While doing so, he told another officer, “I think I’m going to arrest him for [a] city noise ordinance violation right now. He might only get a ticket if he cooperates. But with that attitude, he’s going to get cuffed.” The officer then returned to Ford’s car and, with the assistance of a backup officer, handcuffed Ford. An exchange then ensued in which Urlacher stated: 1) “Stop running the mouth and listen”; 2) “If you talk over me, you are going to go to jail, sir. Do not talk over me”; 3) “If you cooperate, I may let you go with a ticket today. If you run your mouth, I will book you in jail for it. Yes, I will, and I will tow your car”; 4) “If you cooperate and shut your mouth, I’ll give you a ticket and you can go.” Ford responded with disbelief to the prospect of being taken to jail for a noise violation, but after repeated threats FORD V . CITY OF YAKIMA 5 that he would be jailed if he kept talking, Ford stopped yelling and answered the officer’s questions with responses such as “Uh-huh” and “You do what you want.” When Ford expressed concern about getting to work, Urlacher replied: Well that’s not going to happen if you don’t—if you keep running your mouth. Okay? If you have diarrhea of the mouth, you will go to jail. If you cooperate with us and treat us like human beings, we will treat you like a human being. Do you understand me? Ford said nothing further. Once Ford was in the back of Urlacher’s patrol car and out of earshot, Urlacher told a backup officer, “I don’t know if I’m going to book him yet. I’ll see if he’s going to shut up.” At that point, Lieutenant Wentz arrived on the scene. Urlacher recounted the incident to Wentz and explained, “So he’s under arrest for the city ordinance right now. If he shuts up, I’ll let him go with a ticket.” Wentz stated that Ford had a “hot head” and was “getting worse over time.” Wentz advised, “I would not just write [Ford] a ticket and let him go . . . I’d sign his ass up.” Urlacher agreed and took Ford to jail. When driving to the booking facility, Ford asked why he was being taken to jail. Urlacher told him that it was because he was playing his music too loud and because he “acted a fool.” Urlacher elaborated: If you would have acted like a human being towards me, I would have treated you like a human being. I probably would have, you 6 FORD V . CITY OF YAKIMA know — but you talked yourself into this on video. It’s all well recorded. Ford invoked his right to free speech. Urlacher replied: I have the freedom to take you to jail, too. And that’s what’s going to happen. . . . You exercise [your freedom of speech] all you want, okay? If you just cooperate and treat the police like humans, we’ll treat you like that. But when you act like that, like an animal, you’ve got to get treated that way, you know. You’re going to jail for numerous reasons. The crime you’re going to jail for is the city noise ordinance. A lot of times we tend to cite and release people for that or we give warnings. However . . . you acted a fool . . . and we have discretion whether we can book or release you. You talked yourself—your mouth and your attitude talked you into jail. Yes, it did. Urlacher later testified that he booked Ford (1) because he violated the city noise ordinance, which gives him discretion to book a person “if I feel like it,” and (2) because he “failed to listen[,] . . . failed to act civil, . . . failed to take responsibility for his actions, [and because of] his rageful [and disrespectful] behavior towards the law enforcement,” which put public safety at risk. FORD V . CITY OF YAKIMA 7 Ford was prosecuted for violating the City of Yakima’s noise ordinance. Yakima Municipal Code 6.04.180. The municipal court acquitted Ford of the charged offense. Ford filed an action for civil damages against Appellees pursuant to 42 U.S.C. § 1983. Ford alleged, inter alia, that the police officers retaliated against him for exercising his First Amendment right to freedom of speech. Appellees moved for summary judgment on all claims. Ford moved for partial summary judgment against the officers, alleging that qualified immunity did not shield them from liability. The district court granted summary judgment to Appellees and denied Ford’s motion for partial summary judgment. In so doing, the court found that the officers did not retaliate against Ford in violation of the First Amendment because they had probable cause to arrest Ford for violating the city noise ordinance. In addition, “the totality of the circumstances, including the manner in which [Ford] confronted Officer Urlacher and delivered his criticism, and not merely the criticism itself, led Officer Urlacher to reasonably conclude booking was warranted.” The district court determined that “no rational jury could conclude Plaintiff’s exercise of his right of free speech was the ‘but for cause’ of his booking.” Because the court ruled as a matter of law that there was no constitutional violation, it did not reach the issue of qualified immunity. Ford appeals the district court’s grant of summary judgment in favor of the officers on his First Amendment claim. 8 FORD V . CITY OF YAKIMA II. Jurisdiction and Standard of Review We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s ruling on cross-motions for summary judgment, including rulings based on qualified immunity. CRM Collateral II, Inc. v. TriCounty Metro. Transp. Dist., 669 F.3d 963, 968 (9th Cir. 2012). “We view the evidence in the light most favorable to the nonmoving party and determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. at 968 (internal quotation marks and citation omitted). The parties’ assertions that there are no disputed issues “does not vitiate the court’s responsibility to determine whether disputed issues of material fact are present. A summary judgment cannot be granted if a genuine issue as to any material fact exists.” Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir.1978)). III. Discussion Qualified immunity protects officers from liability for civil damages where their alleged unconstitutional conduct does not violate a clearly established right. Hope v. Pelzer, 536 U.S. 730, 739 (2002). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). An officer is entitled to qualified immunity unless (1) facts viewed in the light most favorable to the injured party FORD V . CITY OF YAKIMA 9 show that the officer violated a constitutional right and (2) the right was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001), modified by Pearson, 555 U.S. at 233. A. Constitutional Violation The first issue is whether the facts viewed in the light most favorable to Ford show a violation of his rights. “[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston v. Hill, 482 U.S. 451, 461 (1987). While an individual’s critical comments may be “provocative and challenging,” they are “nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Id. (quoting Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949)). In fact, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Id. at 462–63. In this Circuit, an individual has a right “to be free from police action motivated by retaliatory animus but for which there was probable cause.” Skoog, 469 F.3d at 1235. That right was violated when the officers booked and jailed Ford in retaliation for his protected speech, even though probable cause existed for his initial arrest. Ford’s criticism of the police for what he perceived to be an unlawful and racially motivated traffic stop falls “squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech . . . is categorically prohibited by the 10 FORD V . CITY OF YAKIMA Constitution.” Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir. 1990).1 In order to establish a claim of retaliation in violation of the First Amendment, Ford’s evidence must demonstrate that the officers’ conduct would chill a person of ordinary firmness from future First Amendment activity. See Skoog, 469 F.3d at 1231–32. In addition, the evidence must enable Ford ultimately to prove that the officers’ desire to chill his speech was a but-for cause of their allegedly unlawful conduct. See Lacey v. Maricopa County, 693 F.3d 896, 916–17 (9th Cir. 2012) (en banc). 1 The dissent premises its view in part on the argument that individuals detained by the police enjoy less First Amendment protection than nondetainees. Dissent at 19–20 (citing cases that discuss the diminished constitutional rights of prison inmates and jailed arrestees). Even if we believed that the law supported such a view, which we empathically do not, the facts here make it doubtful that Ford’s ostensibly attenuated rights would be relevant to the officers’ liability. Although the dissent does not describe with specificity which constitutional rights are abrogated and which are retained when the police detain someone on a public street, it offers some hints. For instance, the dissent suggests that the detainee’s rights might need to give way to “the officer’s need to determine [the detainee’s] dangerousness and proclivity to commit further breaches of the peace.” Dissent at 21. But nothing that Ford said following his detention gave any indication that he posed a danger to himself, the officers or property, or that he was likely to further disturb the peace. The dissent additionally proposes that the First Amendment’s scope is narrowed, in the context of a detention, by the fact that officers are “required to consider some statements by a detained person such as those relating to medical condition, health, fear of assault from others, and threats.” Dissent at 33. The record makes plain, however, that nothing Ford said related to any of these things. And to the extent that there are any disputed issues of fact regarding the content of Ford’s statements, or the relationship between those statements and the officers’ alleged retaliatory animus, their resolution is for the trier of fact. FORD V . CITY OF YAKIMA 11 1. Chilled Speech Ford has set forth sufficient evidence to demonstrate that the officer’s “acts would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999) (citation omitted). He has alleged that he was booked and jailed in retaliation for his speech. This Court has recognized that a retaliatory police action such as an arrest or search and seizure would chill a person of ordinary firmness from engaging in future First Amendment activity. See Lacey, 693 F.3d at 917 (retaliatory arrest); Skoog, 469 F.3d at 1232 (retaliatory search and seizure); see also White v. Lee, 227 F.3d 1214, 1228 (9th Cir. 2000) (holding that informal measures such as an investigation can chill First Amendment activities). Likewise, a person of ordinary firmness would be chilled from future exercise of his First Amendment rights if he were booked and taken to jail in retaliation for his speech. Therefore, a rational jury could find that the officers deterred or chilled the future exercise of Ford’s First Amendment rights. 2. Causation To satisfy the second requirement, the evidence must be sufficient to establish that the officers’ desire to chill Ford’s speech was a but-for cause of their conduct. In other words, would Ford have been booked and jailed, rather than cited and arrested, but for the officers’ desire to punish Ford for his speech? Under Washington law, a police officer who has probable cause may arrest an individual without a warrant if that individual commits a misdemeanor in the presence of that 12 FORD V . CITY OF YAKIMA officer. RCW 10.31.100. When a person is arrested for a traffic violation, the arresting officer may not detain him for a period of time longer than is necessary to issue and serve a citation and a notice to appear in court. RCW 46.64.015. Upon arresting an individual for a misdemeanor, a police officer has discretion under Washington Criminal Rules for Courts of Limited Jurisdiction (“CrRLJ”) to hold an individual in custody based on a limited number of factors, including “whether detention appears reasonably necessary to prevent imminent bodily harm to [the individual] or another, or injury to property, or breach of the peace.” CrRLJ 2.1(b)(2)(ii). Ford does not contend that police officers lacked probable cause to arrest him for violating the city noise ordinance. But Officer Urlacher’s probable cause to arrest Ford does not necessarily mean that booking and jailing him was constitutional.2 The only permissible non-retaliatory bases on which Officer Urlacher may have booked Ford are contained in CrRLJ 2.1(b)(2), and the officers have argued and presented evidence that their decision to book and jail Ford was based on that provision. 2 Probable cause is not irrelevant to an individual’s claim that he was booked and jailed in retaliation for his speech. Probable cause for the initial arrest can be evidence of a police officer’s lack of retaliatory animus for subsequently booking and jailing an individual. See Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 901 (9th Cir. 2008) (holding that the issue of probable cause is not dispositive of ordinary retaliation claims, though it still has “high probative force”) (alteration and quotation marks omitted). However, that determination should be left to the trier of fact once a plaintiff has produced evidence that the officer’s conduct was motivated by retaliatory animus. FORD V . CITY OF YAKIMA 13 While the issue of causation ultimately should be determined by a trier of fact, Ford has provided sufficient evidence for a jury to find that the officers’ retaliatory motive was a but-for cause of their action, thus satisfying the causation element of a First Amendment retaliation claim for the purposes of qualified immunity.3 Cf. Duran, 904 F.2d at 1378 (finding summary judgment inappropriate where the officer admitted to stopping the plaintiff because the plaintiff made obscene gestures and yelled profanities but claimed he had no retaliatory motive because he honestly believed criminal activity might be afoot); Mendocino Envt’l Ctr., 192 F.3d at 1303 (“The possibility that other inferences could be drawn [regarding officers’ motivations] that would provide an alternate explanation for the appellants’ actions does not entitle them to summary judgment.”). Taken in the light most favorable to Ford, the facts establish that the officers’ alleged conduct violated his right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action. 3 In considering causation, the dissent asks whether “the officer’s statements to Ford truly intended to punish Ford for his comments” or, if, instead, they were “efforts to elicit a changed perspective on Ford’s part that would allow the officers to release Ford.” Dissent at 25. The dissent offers the possibility that “[s]everal of the officer’s comments . . . can be interpreted as indicating that the officer sought to give Ford an opportunity to change his attitude,” making causation “problematic.” Dissent at 25–26. We are not persuaded by this nuanced view of the officer’s statements. Police officers are authority figures. Accordingly, there is little practical difference between officers “punishing” Ford for his speech and providing Ford an “opportunity” to conform his views to those of the police in order to avoid arrest. And even if that were a meaningful distinction, the question whether the officers retaliated against Ford or simply permitted him to retreat voluntarily from his lèse-majesté is ultimately a factual one that would have to be resolved at trial. 14 FORD V . CITY OF YAKIMA B. Clearly Established Right The officers are nevertheless entitled to qualified immunity if Ford’s right was not clearly established when the officers booked and jailed him. Whether a right is clearly established for the purposes of qualified immunity “depends substantially upon the level of generality at which the relevant ‘legal rule’ is to be identified.” Anderson v. Creighton, 483 U.S. 635, 639 (1987). The right must not be stated as a broad general proposition, but rather must be defined with enough specificity to put a reasonable officer on notice that his conduct is unlawful. Reichle v. Howards, 132 S. Ct. 2088, 2093–94 (2012); cf. Hope, 536 U.S. at 741 (holding that “general statements of the law are not inherently incapable of giving fair and clear warning” to officers even where their specific conduct has not previously been held unlawful) (quoting United States v. Lanier, 520 U.S. 259, 271 (1997)). A right can be clearly established despite a lack of factually analogous preexisting case law, and officers can be on notice that their conduct is unlawful even in novel factual circumstances. See Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1073 (9th Cir. 2012). The relevant inquiry is whether, at the time of the officers’ action, the state of the law gave the officers fair warning that their conduct was unconstitutional. Hope, 536 U.S. at 741. We must assess the legal rule “in light of the specific context of the case, not as a broad general proposition.” Saucier, 533 U.S. at 201. At the time the officers acted in 2007, the law in this Circuit gave fair notice that it would be unlawful to jail Ford in retaliation for his First Amendment activity. Police officers have been on notice at least since 1990 that it is FORD V . CITY OF YAKIMA 15 unlawful to use their authority to retaliate against individuals for their protected speech. See Duran, 904 F.2d at 1375–78 (holding that a police officer’s traffic stop and subsequent arrest of an individual who directed obscene gestures and words toward that officer was unlawful because it was well- established that police officers may not exercise their authority for personal motives, especially in response to an individual’s criticism or insults); see also Beck v. City of Upland, 527 F.3d 853, 871 (9th Cir. 2008) (holding that Duran clearly established that police officers could not use their power to retaliate against an individual for his free speech). Moreover, this Court’s 2006 decision in Skoog established that an individual has a right to be free from retaliatory police action, even if probable cause existed for that action. 469 F.3d at 1235. In that case, Skoog claimed that a police officer seized his property to retaliate against his filing a lawsuit against another officer. Id. at 1227. We held that although the officer’s search and seizure was supported by probable cause, it was unlawful because the officer’s primary motivation was to retaliate against Skoog’s exercise of his First Amendment rights. Id. at 1235. Thus, Duran clearly established that police officers may not use their authority to punish an individual for exercising his First Amendment rights, while Skoog clearly established that a police action motivated by retaliatory animus was unlawful, even if probable cause existed for that action. The officers’ conduct in this case falls squarely within the prohibitions of Duran and Skoog. While the precise issue of retaliatory booking and jailing has not been addressed in this Circuit, “closely analogous preexisting case law is not required to show that a right was clearly established.” Robinson v. York, 566 F.3d 817, 826 (9th Cir. 2009) (citation omitted). Duran addressed a retaliatory arrest and Skoog 16 FORD V . CITY OF YAKIMA applied to a retaliatory search and seizure, but the unlawfulness of a retaliatory booking and jailing was nevertheless apparent from those cases. After Duran, any reasonable police officer would have known that it was unlawful to use his authority to retaliate against an individual because of his speech. Likewise, any reasonable police officer would have understood that Skoog’s prohibition on retaliatory police action extended to typical police actions such as booking and jailing. Therefore, this case involved the kind of “mere application of settled law to a new factual permutation” in which we assume an officer had notice that his conduct was unlawful. See Eng v. Cooley, 552 F.3d 1062, 1076 (9th Cir. 2009) (quoting Porter v. Bowen, 496 F.3d 1009, 1026 (9th Cir. 2007)). A reasonable officer would have understood that he did not automatically possess the authority to book and jail an individual upon conducting a lawful arrest supported by probable cause. Washington law clearly enumerates the limited factors that would allow a police officer to book and jail an individual who has been arrested for a misdemeanor. CrRLJ 2.1(b)(2). A reasonable officer would have been aware of the law governing his ability to book and jail an individual he lawfully has arrested. Moreover, a reasonable officer would have been aware that Washington law explicitly states that its rules “shall not be construed to affect or derogate from the constitutional rights of any defendant.” CrRLJ 1.1. Thus, a reasonable police officer would have understood that he could not exercise his discretion to book an individual in retaliation for that individual’s First Amendment activity. Finally, Officer Urlacher’s statements indicate that he was, in fact, aware of his discretion to book an individual he has arrested: “I have the freedom to take you to jail . . . we have discretion whether we can book or release FORD V . CITY OF YAKIMA 17 you.” He surely was aware that his discretion was subject to constitutional limits. Because the law concerning the right in question was clearly established at the time of Ford’s arrest, the officers are not entitled to qualified immunity. IV. Conclusion Ford has put forth facts sufficient to allege a violation of his clearly established First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action. Thus, the officers are not entitled to qualified immunity, and Ford’s claims should proceed to trial. REVERSED and REMANDED. CALLAHAN, Circuit Judge, dissenting: I dissent because the majority’s opinion fails to follow Supreme Court guidance in determining first that the police officers’ decision to book Ford instead of issuing a ticket violated his constitutional rights, and second that Ford’s “right” was clearly established. On the first point, the majority fails to appreciate that the scope of a person’s right to speech is different after he or she has been detained. This leads to the majority’s failure to discern that our prior cases on retaliatory police action, even if not cabined by subsequent Supreme Court decisions, do not create a clearly established right forbidding an officer from considering the comments of a legally detained individual when determining whether to book the individual. 18 FORD V . CITY OF YAKIMA I. Introduction This case raises an issue of first impression. It is not a case of retaliatory arrest. Nonetheless, our review is informed by cases suggesting that, in order to state a claim for retaliatory arrest, a plaintiff must show a lack of probable cause for the arrest. See Reichle v. Howards, — U.S. —, —, 132 S. Ct. 2088, 2095 (2012) (noting that evidence of probable cause “could be thought similarly fatal to a plaintiff’s claim that animus caused his arrest, given that retaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury”). But see Skoog v. Cnty. of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (noting “that a plaintiff need not plead the absence of probable cause in order to state a claim for retaliation”). The police had probable cause to arrest Ford for violating the city noise ordinance and he does not argue otherwise. See Majority at 12. Also, although Ford was prosecuted in the Yakima Municipal Court for violating the city noise ordinance and found not guilty of the charges, he does not assert a claim of retaliatory prosecution. See Hartman v. Moore, 547 U.S. 250, 266–67 (2006) (holding that a plaintiff must show a lack of probable cause to state a claim for retaliatory prosecution). Instead, Ford seeks monetary damages in an action under 42 U.S.C. § 1983 based on the assertion that the police officers violated his constitutional rights when, after detaining him for violating the city noise ordinance, they decided to book him based, in part, on his post-detention statements, rather than just issuing a ticket. Ford’s asserted claim of a violation of his constitutional rights, and the majority’s treatment of it, raises several major concerns. Initially and critically, the majority assumes, FORD V . CITY OF YAKIMA 19 incorrectly, that Ford’s arrest did not affect the scope of his First Amendment right to free speech. Consequently, the majority fails to appreciate that a plaintiff asserting that he was booked instead of ticketed in retaliation for his post- detention statements must show a lack of probable cause for his booking. Here, this prerequisite for relief bars Ford from prevailing for two reasons. First, he has not claimed that the officers lacked probable cause to book him. Second, the district court’s unchallenged determination that Ford’s exercise of his right of free speech was not the but-for cause of his booking establishes that there was probable cause to book Ford. II. Ford Has Not Shown A Violation of His First Amendment Rights A. Lawful Detention Curtails An Individual’s Rights Under the First Amendment I agree with the majority that the “First Amendment protects a significant amount of verbal criticism and challenge directed at police officers,” City of Houston v. Hill, 482 U.S. 451, 461 (1987), and that police officers “must respect the right of individuals in [the] community to question their government and the role of the police,” Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir. 1995). However, here we are concerned not with speech that might give rise to an arrest, but with speech made after a person has been lawfully detained. This is a critical distinction. It is well settled that once an individual is lawfully detained, his or her rights may be restricted for legitimate penological and custodial reasons. See Bell v. Wolfish, 441 U.S. 520, 546 (1979) (stating that “[a] detainee simply does not possess the full range of 20 FORD V . CITY OF YAKIMA freedoms of an unincarcerated individual”);1 see also Bull v. City & Cnty. of San Francisco, 595 F.3d 964, (9th Cir. 2010) (en banc) (upholding strip searchers of arrestees). Obviously, a detained person is not free to leave. Similarly, a detained person’s speech may be relevant to the restraints placed on him and his conditions of confinement. In other words, what a person says after he or she is lawfully detained may be, and perhaps must be, considered by police officers. Other than to state that it disagrees, the majority does not address this reality. The scope of a detained person’s First Amendment rights is particularly germane in the context of the defendant officers deciding whether to book or ticket Ford. Washington law provides that an officer making this decision should consider “whether detention appears reasonably necessary to prevent imminent bodily harm to himself, herself, or another, or injury to property, or breach of the peace.” Wash. CrRLJ 2.1(b)(ii). This consideration appears to be constitutional and is eminently reasonable. We would not want a peace officer to release an individual when the officer has reason to believe that the individual will harm “himself, herself, or another, or [injure] property, or breach [] the peace.” Moreover, among the most relevant evidence for such a determination will be 1 The Supreme Court explained that although “prison inmates retain certain constitutional rights . . . [l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Bell, 441 U.S. at 545–46 (internal quotation marks and citations omitted). The Court also commented that it had held “that even when an institutional restriction infringes a specific constitutional guarantee, such as the First Amendment, the practice must be evaluated in the light of the central objective of prison administration, safeguarding institutional security.” Id. at 547. FORD V . CITY OF YAKIMA 21 the individual’s statements. Indeed, here the officer explained that his decision to detain Ford was based on Ford’s “mouth and [his] attitude.” In explaining his decision to detain Ford, the officer cited concerns for public safety as well as Ford’s failure to listen, failure to act civilly, failure to take responsibility for his actions, and disrespectful behavior toward law enforcement. Thus, both as a matter of common sense and state law, the defendant officers were allowed to consider Ford’s post-detention statements in deciding whether to ticket or book him. B. Ford’s Claim of Retaliation Based on His Post- Detention Statements Requires a Showing of the Absence of Probable Cause for the Booking The interplay between the officer’s need to determine a detained person’s dangerousness and proclivity to commit further breaches of peace, and the person’s right to speech under the First Amendment, distinguishes this case from the cases the majority cites and directs how we should review Ford’s allegations. Skoog alleged that the defendants searched his office and seized materials in retaliation for Skoog having filed a lawsuit. Skoog, 469 F.3d at 1227. In Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990), the plaintiffs alleged that defendants had unlawfully arrested them based on one of them making obscene gestures at the police from their car. Id. at 1374–75. In Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc), the plaintiff alleged that defendants violated his First Amendment rights by investigating and arresting him in retaliation for articles he published. Id. at 916. In each case, the actions taken against the plaintiffs were allegedly taken against them based on their exercising their rights as private citizens. Thus, the statement in Skoog, 469 F.3d at 1235, that an individual has a right “to 22 FORD V . CITY OF YAKIMA be free from police action motivated by retaliatory animus but for which there was probable cause” did not purport to cover a situation where a defendant’s constitutional rights are already circumscribed by his lawful detention. Indeed, in Duran the court noted that there are “well-defined limits on what police officers may do in discharging their duties,” and that “[p]erhaps the most fundamental of these is the requirement that the police not interfere with the freedom of private persons unless it be for specific, legitimate reasons.” 904 F.3d at 1376. Here, Ford’s charges against the officers concern not interference “with the freedom of private persons,” but rather the officers’ reactions to Ford’s comments after he was legally detained. 1. Ford must show a lack of probable cause for his booking Accordingly, Ford’s case is analogous to the situation presented in Reichle, where the Supreme Court noted that “the right in question is not the general rule to be free from retaliation for one’s speech, but the more specific right to be free from a retaliatory arrest that is otherwise supported by probable cause.” 132 S. Ct. at 2094. The Court held that it “has never held that there is such a right.” Id. Similarly, Ford has no right not to be booked based on his post- detention statements where the booking is supported by probable cause. In Reichle, the Court noted that evidence of probable cause “could be thought similarly fatal to a plaintiff’s claim that animus caused his arrest, given that retaliatory arrest cases also present a tenuous causal connection between defendant’s alleged animus and the plaintiff’s injury.” Id. at 2095. The Court commented: FORD V . CITY OF YAKIMA 23 An officer might bear animus toward the content of a suspect’s speech. But the officer may decide to arrest the suspect because his speech provides evidence of a crime or suggests a potential threat . . . . Like retaliatory prosecution cases, then, the connection between alleged animus and injury may be weakened in the arrest context by a police officer’s wholly legitimate consideration of speech. Id. at 2095–96 (internal citation omitted). The Supreme Court expressed a preference for requiring the showing of the absence of probable cause and approvingly cited decisions by other circuit courts requiring a showing of a lack of probable cause.2 Id. at 2096. 2 The Supreme Court noted that for qualified immunity purposes, “it was at least arguable” that Hartman’s rule requiring a lack of probable cause extended to retaliatory arrests. Id. at 2096. It then commented: Decisions from other Federal Courts of Appeals in the wake of Hartman support this assessment. Shortly before Howards’ arrest, the Sixth Circuit held that Hartman required a plaintiff alleging a retaliatory arrest to show that the defendant officer lacked probable cause. See Barnes v. Wright, 449 F.3d 709, 720 (2006) (reasoning that the Hartman “rule sweeps broadly”). That court’s treatment of Hartman confirms that the inapplicability of Hartman to arrests would not have been clear to a reasonable officer when Howards was arrested. Moreover, since Howards’ arrest, additional Courts of Appeals have concluded that Hartman’s no-probable-cause requirement extends to retaliatory arrests. See, e.g., McCabe v. Parker, 608 F.3d 1068, 1075 (C.A.8 2010); Phillips v. Irvin, 222 Fed. Appx. 928, 929 (C.A.11 2007) (per curiam). As we have 24 FORD V . CITY OF YAKIMA Recognition of the officers’ “wholly legitimate consideration of speech” by a lawfully detained individual, such as Ford, changes fundamentally the nature of a court’s inquiry. Asking whether an officer’s “acts would chill or silence a person of ordinary firmness from future First Amendment activities,” Majority at 11 (quoting Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283, 1300 (9th Cir. 1999)), assumes that a detained individual has a constitutional right to say whatever he wants while he is detained, without any adverse consequences. As shown, this is not true. Thus, the majority’s application of Mendocino to this case ignores the crucial distinction between what an individual may be arrested for and the necessary consequences of statements by an individual after he has been detained. Rather than focus on whether an officer’s action had a chilling effect on the plaintiff, the proper inquiry under cases such as Reichle is whether the officer had probable cause to book the detained individual in light of his statements. In other words, did Ford’s post-detention statements give the officers reason to believe that Ford might harm himself or others, injure property, or breach the peace? In making this inquiry, we should keep in mind our statement in Duran that: previously observed, “[i]f judges thus disagree on a constitutional question, it is unfair to subject police to money damages for picking the losing side of the controversy.” Wilson v. Layne, 526 U.S. 603, 618 (1999). Reichle, 132 S. Ct. at 2096 (parallel citations omitted). FORD V . CITY OF YAKIMA 25 A police officer’s duties are both difficult and dangerous. Circumstances on the beat often require immediate action in order to prevent serious harm to persons or property; rarely is there time for brushing up on the Supreme Court’s latest pronouncements on warrant requirements, probable cause or reasonable suspicion. Thus, police officers “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This is an objective standard, Anderson v. Creighton, 483 U.S. 635, 641 (1987), that leaves “ample room for mistaken judgments.” Malley v. Briggs, 475 U.S. 335, 343 (1986). 904 F.2d at 1376 (parallel citations omitted). Critically, as Reichle suggests, focusing on whether the officer had legitimate reasons under Washington law for booking Ford casts a different light on causation. Were the officer’s statements to Ford truly intended to punish Ford for his comments, or were they efforts to elicit a changed perspective on Ford’s part that would allow the officer to release Ford? Several of the officer’s comments that the majority cites can be interpreted as indicating that the officer sought to give Ford an opportunity to change his attitude.3 If 3 For example, the majority notes that the officer stated: “He might only get a ticket if he cooperates. But with that attitude, he’s going to get cuffed”; “I don’t know if I’m going to book him yet. I’ll see if he’s going 26 FORD V . CITY OF YAKIMA the officer’s motive was not to chill Ford’s First Amendment rights, causation becomes problematic.4 In Hartman, the Supreme Court noted: It is clear, moreover, that the causation is understood to be but-for causation, without which the adverse action would not have been taken; we say that upon a prima facie showing of retaliatory harm, the burden shifts to the defendant official to demonstrate that even without the impetus to retaliate he would have taken the action complained of (such as firing the employee). See Mt. Healthy [City Sch. Dist. Bd. of Educ. v. Doyle], 429 U.S. [274,] 287 [(1977)]. If there is a finding that retaliation was not the but-for cause of the discharge, the claim fails for lack of causal connection between unconstitutional motive and resulting harm, despite proof of some retaliatory animus in the official’s mind. See ibid. It may be dishonorable to act with an unconstitutional motive and perhaps in some to shut up”; and “If he shuts up, I’ll let him go with a ticket.” Majority at 5. 4 The majority takes issue with what it describes as this “nuanced view of the officer’s statement.” Majority at 13 n.3. It posits that there is little practical difference between an officer “punishing” Ford and providing him an “opportunity” to avoid detention. I disagree. Because the officer was required to consider Ford’s post-detention statements in determining whether to book him, the officer should not be found liable in a § 1983 action unless there is a lack of probable cause for the detention and clearly established constitutional limitations on his consideration of Ford’s statements. FORD V . CITY OF YAKIMA 27 instances be unlawful, but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway. See Crawford-El [v. Britton, 523 U.S. 574,] 593 [(1998)]; Mt. Healthy, supra, at 285–286. 547 U.S. at 260 (parallel citations omitted). The need to establish causation, when coupled with the recognition that an officer’s duties are “difficult and dangerous” and “often require immediate action,” Duran, 904 F.2d at 1376, support requiring that a plaintiff plead and prove an absence of probable cause when claiming a retaliatory booking based on statements made after he was lawfully detained. Otherwise, officers may face lawsuits and liability for retaliation even when they have probable cause to book the detainee. If the officer has probable cause to book a detained individual based, in part, on the person’s post-detention actions or statements, there is no causation; and thus, there is no cause of action for violation of a constitutional right. See Hartman, 547 U.S. at 260. The reasons underlying the Supreme Court’s opinion in Reichle also require a showing of a lack of probable cause in a § 1983 action based on the plaintiff’s post-detention speech. Ford’s claim of retaliation presents a “tenuous causal connection between the defendant’s alleged animus and the plaintiff’s injury” similar to that presented in retaliatory prosecution and arrest cases. First and foremost, Reichle concerned alleged retaliation based on the acts of a free private person, while Ford objects to the officers’ reaction to his statements made while he was legally detained. In Reichle, the Supreme Court noted that “evidence of the 28 FORD V . CITY OF YAKIMA presence or absence of probable cause for the arrest will be available in virtually every retaliatory arrest case.” Id. at 2095. However, this is not true where the allegation is that an officer violated a person’s constitutional right by exercising the option of booking the individual rather than issuing a ticket. Unlike determinations of whether there is probable cause for an arrest or to prosecute, there usually is no reason to marshal the evidence supporting the officer’s decision to detain rather than to ticket an individual until and unless the individual files a § 1983 action. Even where, as here, there is a video of the arrest and detention, this does not encompass all the information the officers received and considered in making their decision. Moreover, unlike probable cause for an arrest or for prosecution, for which there is considerable case law, there is little judicial guidance on how to evaluate an officer’s decision to book a lawfully detained individual. Thus, requiring the pleading and proving of a lack of probable cause is necessary to shield officers from being second guessed in civil actions brought by those they lawfully detained. See Messerschmidt v. Millender, — U.S. —, —, 132 S. Ct. 1235, 1244–45 (2012) (stating that qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” should provide “government officials breathing room to make reasonable but mistaken judgments,” and should protect “all but the plainly incompetent or those who knowingly violate the law”). FORD V . CITY OF YAKIMA 29 2. Because the District Court found there was probable cause for booking Ford, it properly granted judgment for defendants. Even if Ford were not required to show a lack of probable cause for his booking, the district court’s finding of probable cause – which the majority does not really address – supports, nay compels, the district court’s grant of summary judgment for the officers. The district court on cross-motions for summary judgment determined that the totality of the circumstances led the officer “to reasonably conclude booking was warranted.” The court concluded that the booking “was not retaliatory” and that “no rational jury could conclude [Ford’s] exercise of his right of free speech was the ‘but-for cause’ of his booking.” Although the court in Skoog stated that “a plaintiff need not plead the absence of probable cause in order to state a claim for retaliation,” 469 F.3d at 1232, it also stated that “Skoog must ultimately prove that Royster’s desire to cause the chilling effect was a but-for cause of the defendant’s action.” Id. Thus, even if the statement in Skoog that a plaintiff need not plead the absence of probable cause survives the Supreme Court’s statement in Reichle that it “has never recognized a First Amendment right to be free from a retaliatory arrest that is supported by probable cause,” 132 S. Ct. at 2093, here, the district court’s finding that the officers’ “desire to cause the chilling effect” was not a “but- for cause” of Ford’s booking terminates the case, even under Skoog. Once the case was submitted to the district court on cross- motions for summary judgment, the facts were no longer “[t]aken in the light most favorable to Ford.” Majority at 13. 30 FORD V . CITY OF YAKIMA Rather, the district court’s finding of no “but-for cause” should be affirmed unless Ford can show that the findings are clearly erroneous. See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also United States v. Hinkson, 585 F.3d 1247, 1260–61 (9th Cir. 2009) (en banc).5 III. The Right Perceived By The Majority Is Not Clearly Established Even if I were to agree with the majority that Ford had a constitutional right not to have the officers consider his comments while he was detained, which I do not, I could not agree that this right was “clearly established.” That is to say, the officers were not on notice that deciding to book Ford based, in part, on his comments while detained, violated his rights under the First Amendment. The Supreme Court has not been chary of reminding us that a clearly established right cannot be established at a high 5 In Hinkson, we reiterated the Supreme Court’s statement that “a finding is ‘clearly erroneous’ when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” 583 F.3d at 1260 (quoting U.S. Gypsum, 333 U.S. at 395). W e further commented that: the scope of our review limits us to determining whether the trial court reached a decision that falls within any of the permissible choices the court could have made. In other words, the Supreme Court’s precedent convinces us that any “definite and firm conviction” of the reviewing court must still include some measure of deference to the trial court’s factual determinations. Id. at 1261. FORD V . CITY OF YAKIMA 31 level of generality. In Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), the Supreme Court specifically stated “We have repeatedly told courts – and the Ninth Circuit in particular – not to define clearly established law at a high level of generality.” Id. at 2084 (internal citation omitted); see also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (per curiam) (concluding that the Ninth Circuit erred in defining the right at issue at “a high level of generality”). This is precisely what the majority does here. It takes Skoog, which concerns a retaliatory arrest based on a free private person’s action, and applies it to an action alleging an unconstitutional booking based, in part, on the plaintiff’s statements while legally detained. This stretched application of Skoog is inconsistent with the Supreme Court’s caution that “[t]he general proposition . . . that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.” al-Kidd, 131 S. Ct. at 2084. Furthermore, Skoog, which is not a Supreme Court opinion and was decided only eight months before Ford’s detention, is itself equivocal as to what it “established.” The court concluded that the right it found was not clearly established at the time of the search, and further commented that “[a]t some future point, this right will become clearly established in this Circuit.” 469 F.3d at 1235. Thus, the extent to which Skoog itself clearly established a cause of action for alleged police retaliation despite the presence of probable cause for the officer’s action is doubtful. The clarity of this rule is further muddied by the spirit, if not the holding, of the Supreme Court’s subsequent opinion in Reichle, 132 S. Ct. 2088. 32 FORD V . CITY OF YAKIMA The test for determining that a right is clearly established requires much more. The Supreme Court has explained: [C]learly established for purposes of qualified immunity means that [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of pre-existing law the unlawfulness must be apparent. Wilson v. Layne, 326 U.S. 603, 614–15 (1999) (internal quotation marks and citation omitted). Here, while the officer’s subjective intent is not controlling, it is clear that Officer Urlacher reasonably did not think that he was violating any of Ford’s constitutional rights.6 More importantly, there is no “pre-existing law” to inform the officers that Ford, once detained, could not talk himself into jail. The majority states that police officers have been on notice since 1990 that it is unlawful to use their authority to retaliate against individuals for their protected speech. Majority at 14–15. But all of the cases on which the majority relies concerned actions to arrest or to search based on 6 This conclusion is implicit in the officer’s statement to Ford that “but you talked yourself into this on video. It’s all well recorded.” See Majority at 6. FORD V . CITY OF YAKIMA 33 individuals actions as free private persons.7 Had the officers initially detained Ford based on his speech, the majority’s broad axiom might apply. But that is not what Ford alleges. He alleges only that the officers decided to book him instead of giving him a ticket based on what he said after he was legally detained. Moreover, as the majority recognizes, under Washington law, the officers were required to consider Ford’s post-detention statements in determining whether to ticket or book him. The officers were aware of this requirement of Washington law and cited it as one of the reasons leading them to book Ford. See Majority at 12. The majority has not cited, nor am I aware of any, case law that addresses an officer’s consideration of a detained individual’s statements when determining whether to book the individual. Indeed, it seems self-evident that an officer is required to consider some statements by a detained person such as those relating to medical condition, health, fear of assault from others, and threats, in determining how to process the individual.8 7 As previously noted, in Duran, 904 F.2d 1372, the plaintiffs were arrested after one of them made obscene gestures at the police from their car. Id. at 1374–75. In Beck v. City of Upland, 527 F.3d 853 (9th Cir. 2008), the plaintiff alleged that he was arrested because of his protected speech challenging his treatment by the city. Id. at 856–57. Neither of these cases, nor Skoog, 469 F.3d 1221, appear on its face to have any application to an officer’s determination that a detained individual should be booked, rather than ticketed, in part because of his statements while detained. 8 The majority recognizes that the officer was required to consider Ford’s comments, but asserts, apparently as a factual matter, that Ford said nothing that would allow the officer to book him. See Majority at 10 n.1, 16–17. The officer, of course, thought otherwise. Thus, over five years after the event, the officer now faces liability because two appellate judges disagree with his assessment of the situation. This further illustrates the importance of requiring a showing of no probable cause. If, as the district 34 FORD V . CITY OF YAKIMA Because an officer’s use of a detained person’s statements raise substantially different considerations from an officer’s reactions to the statements of a free person, the cases cited by the majority did not reasonably put the officers on notice that in telling Ford that he had talked himself into jail, they were chilling Ford’s constitutionally protected right to free speech. If we are going to impose such etiquette upon peace officers, we must first clearly so hold, and not expect them to glean such a “vague” constitutional rule from Ninth Circuit cases that appear to be out of step, if not inconsistent, with recent Supreme Court decisions.9 IV. Conclusion In sum, we have wandered far from our limited role as an appellate court. First, we should have affirmed the district court because Ford has not shown that the court’s determination that chilling his speech was not the “but for cause” of his booking. Second, we should have recognized that there is no “pre-existing law” that fairly informed the officers that they could not consider the statements Ford made while he was legally detained in deciding to book him, court found, there was probable cause to book Ford, that should be the end of the matter. 9 If nothing else, perhaps the majority’s opinion and this dissent illustrate the wisdom of the Supreme Court’s decision in Pearson v. Callahan, 555 U.S. 223 (2009), of allowing courts to address the second prong of the Saucier test when the constitutional question under the first prong is more difficult. Moreover, I fear that in failing to heed the Supreme Court’s advice to “think carefully before expending scarce judicial resources to resolve difficult and novel questions of constitutional or statutory interpretation that will have no effect on the outcome of the case,” al-Kidd, 131 S. Ct. at 2080 (internal quotation marks and citations omitted), we have demonstrated its wisdom. FORD V . CITY OF YAKIMA 35 and affirmed the district court pursuant to the second prong of the Saucier test. Finally, I disagree with the majority’s assertion that Ford may assert a claim for retaliatory booking based on the statements he made while legally detained without showing an absence of probable cause for his booking. As in this case, police officers are often called upon to make decisions concerning the protection of themselves and the public on the street and in the middle of the night. We should not espouse a standard that may subject an officer to personal liability because years after the event a court decides that the officer may have had an improper motive – as well as probable cause – for the action he took. Accordingly, I dissent.	{ "pile_set_name": "FreeLaw" }
528 F.3d 727 (2008) UNITED STATES of America, Plaintiff-Appellee, v. Wakon Iron REDCORN, Jr., and Bradley N. Frost, Defendants-Appellants, 728 State of Oklahoma ex rel. Kim Holland, Insurance Commissioner, in her capacity as Oklahoma Insurance Commissioner and as receiver for Heritage National Insurance Company, Amicus Curiae. Nos. 06-5206, 06-5207. United States Court of Appeals, Tenth Circuit. June 9, 2008. 731 Kenneth P. Snoke, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Tulsa, OK, for Plaintiff-Appellee. Robert R. Nigh, Jr., (Clark O. Brewster with him on the brief), Brewster & De Angelis, Tulsa, OK, for Defendant-Appellant Bradley N. Frost. Stanley D. Monroe, Attorney at Law, Tulsa, OK, for Defendant-Appellant Wakon Iron Redcorn, Jr. Daniel D. Draper, III, Draper Law Firm, Owasso, OK, and Michael W. Ridgeway, General Counsel, Oklahoma Insurance Department, Oklahoma City, OK, for Amicus Curiae the State of Oklahoma ex rel. Kim Holland, Insurance Commissioner, in support of Plaintiff-Appellee. Before O'BRIEN, BALDOCK and McCONNELL, Circuit Judges. McCONNELL, Circuit Judge. Appellants Bradley N. Frost and Wakon Iron Redcorn, Jr., were the president and the chief financial officer of Heritage National Insurance Company (HNIC), an Oklahoma health insurer. Using their positions, they managed between them to bleed the company of some $1.7 million. On January 6, 2006, they were indicted in federal district court on charges of embezzlement from a health care benefit program, wire fraud, and money laundering. A jury found them guilty, and each was sentenced to concurrent terms of 72 months' imprisonment on every count. In this direct appeal, we affirm in part, reverse the wire fraud convictions, and remand for resentencing. I. BACKGROUND HNIC sold life, accident, and group health insurance. First licensed to sell insurance in Oklahoma in 1974,[1] by the late 1990s HNIC's fortunes had fallen and it was forced into receivership by the Oklahoma Insurance Department (OID). Mr. Frost and another investor acquired the company, and they, along with Mr. Redcorn, rehabilitated it out of receivership and into the black. As of mid-1999, HNIC was owned by a holding company of which Mr. Frost owned half; a different investor, Steven Silverstein, along with his wife, owned the other half; and Mr. Redcorn had an option to acquire part of their interests. Mr. Frost served as HNIC's president, and Mr. Redcorn as the secretary/treasurer and CFO; Mr. Silverstein was HNIC's chairman and the CEO of the holding company. By 2000, HNIC's revenues had climbed to over twelve million 732 dollars a year. In that year HNIC also purchased the business book of a failing Texas insurer, giving it interstate reach. From early 2000, however, Mr. Frost and Mr. Redcorn started removing money bit by bit from HNIC. They began by "investing" HNIC moneys in other companies they controlled. They would also write checks to themselves on HNIC accounts and designate the payments on the books as "loans" or "consulting fees." Although they would pay back most of the alleged loans and investments, the evidence showed that they retained over $400,000 for themselves. Then in August of that year Mr. Frost opened a new bank account in HNIC's name at Bank of America. The account sat, unused, until March 2001, when Mr. Redcorn instructed Kendra Blevins, an employee in HNIC's financial department, to start diverting incoming premium payments away from the company's ordinary accounts and into the separate account. He told her that he and Mr. Frost were planning to save up a war chest of one million dollars to sue their partner Mr. Silverstein, whom they suspected of stealing from the company. Well over a million dollars was funneled into the account over a period of only weeks. Then, in mid- and late-April 2001, Mr. Redcorn and Mr. Frost withdrew $500,000.00 apiece in checks payable to themselves, recording the payments on HNIC's books as short-term investments. They deposited the funds briefly in their private bank accounts, then shifted them to personal investment accounts with a broker in Florida. They never sued Mr. Silverstein and never returned the money to HNIC. Around this time, federal authorities and state regulators were starting to take an interest in HNIC's finances. The FBI interviewed Mr. Redcorn in January 2001 as part of an investigation of Mr. Silverstein, who was, apparently, independently engaged in a multi-million-dollar bank fraud scheme involving check kiting with HNIC moneys.[2] The focus turned to Mr. Redcorn and Mr. Frost, however, after the Oklahoma Insurance Department began its investigation. At the beginning of May 2001, the OID sent a financial examiner, Hallie Burnett, to HNIC to conduct a review of its records. In late summer, the OID ordered HNIC to be placed under supervision, and appointed Ms. Burnett as conservator with authority to prevent the removal of any more money from the company. On November 11, 2001, a court ordered HNIC into receivership. All its assets were auctioned off, and the insurance guaranty associations of Oklahoma and Texas had to shoulder thousands of outstanding obligations to persons HNIC had insured$19 million dollars' worth. On January 26, 2006, Mr. Frost and Mr. Redcorn were indicted on one count of health care fraud in violation of 18 U.S.C. § 669 (for taking money from a health insurance company), four counts of wire fraud in violation of 18 U.S.C. § 1343 (for transferring the money using interstate wires), and a total of twenty-six counts of money laundering in violation of 18 U.S.C. § 1957(a) (for a variety of financial transactions using the stolen money). At their eight-day trial in December 2005, the defendants claimed that the "investments" they had made for themselves with company money were authorized by the minutes of a 1991 board meeting of HNIC's predecessor, 733 and that the funds they had taken in April 2001 were a legitimate buyout or severance because they were planning to leave the company. They also attacked the OID's special investigator Hallie Burnett as incompetent, possibly corrupt, and the dupe or cat's-paw of Steve Silverstein. But the jury returned a verdict of guilty on all counts on December 16, 2005. Mr. Redcorn and Mr. Frost now appeal, and raise four chief areas of argument: that the indictment was legally insufficient, that the evidence adduced at trial was insufficient to establish their guilt, that they were entitled to a new trial because of evidence they received afterward, and that their sentences violated the Constitution. We reject all these arguments except as to the sufficiency of the evidence to establish the elements of wire fraud. II. SUFFICIENCY OF THE INDICTMENT "`An indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense.'" United States v. Chisum, 502 F.3d 1237, 1244 (10th Cir. 2007) (quoting United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir.1997)). "`[I]t is generally sufficient that an indictment set forth an offense in the words of the statute itself, as long as those words themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the offence intended to be punished.'" United States v. Hathaway, 318 F.3d 1001, 1009 (10th Cir.2003) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). Therefore, where the indictment quotes the language of a statute and includes the date, place, and nature of illegal activity, it "need not go further and allege `in detail the factual proof that will be relied upon to support the charges.'" United States v. Dunn, 841 F.2d 1026, 1029 (10th Cir.1988) (quoting United States v. Crippen, 579 F.2d 340, 342 (5th Cir.1978)). We review the sufficiency of an indictment de novo, United States v. Todd, 446 F.3d 1062, 1067 (10th Cir.2006), but a challenge to the indictment is not a vehicle for testing the government's evidence. "Rather, `[a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true.'" Id. (quoting United States v. Hall, 20 F.3d 1084, 1087 (10th Cir.1994)). A. Count 1: Health Care Fraud Count 1 of the indictment charged Appellants with violation of 18 U.S.C. § 669, which outlaws embezzlement of "any of the moneys ... or other assets of a health care benefit program." "Health care benefit program" is defined in another section: [T]he term "health care benefit program" means any public or private plan or contract, affecting commerce, under which any medical benefit, item, or service is provided to any individual, and includes any individual or entity who is providing a medical benefit, item, or service for which payment may be made under the plan or contract. 18 U.S.C. § 24(b). Appellants contend that a health insurance company cannot be a health care benefit program as so defined, and thus that because the indictment alleged that HNIC was both a health insurance company and a health care benefit program it did not properly state a violation of § 669. They assert also that federal prosecution of insurance-related crimes under § 669 is precluded by the McCarran-Ferguson Act, 15 U.S.C. § 1012(b), which leaves insurance regulation generally in the hands of the states. 734 1. Inconsistency of Allegations Count 1 of the indictment alleges, in its entirety: From on or about April 3, 2000 and continuing through June 7, 2001, in the Northern District of Oklahoma and elsewhere, REDCORN and FROST, defendants herein, aiding and abetting each other, did knowingly and willfully embezzle, steal or otherwise convert to the use of a person other than the rightful owner and did intentionally misapply, approximately $1,264,000.00 of the monies, funds, premiums, credits, and other assets of HNIC, a health care benefit program as defined in Title 18, United States Code, Section 24b [sic]. All in violation of Title 18, United States Code, Sections 2(a) and 669. R., Vol. I, Doc. 3, at 4 (emphasis added)[3]. This sets forth the charged offense in the words of the statute itself, and contains the date, place, and nature of the charged illegal activity. It is thus entirely sufficient to give the defendants fair notice and enable them to determine whether to raise a double jeopardy defense. That is all that our precedents require. The defendants point out, however, that the introduction to the indictment describes HNIC as "an insurance company doing business in Oklahoma." Id. at 3. They contend that it is not possible for a private insurance company to be a "health care benefit program" as that term is defined in the Act, because a company is not a "plan or contract." We are not necessarily persuaded. A private insurance company, which makes payments to providers for the cost of medical services, appears to be the private equivalent of Medicare or Medicaid. These are unquestionably health care programs under § 24(b). See United States v. Morgan, 505 F.3d 332, 341-42 (5th Cir.2007); United States v. McGovern, 329 F.3d 247, 248-49 (1st Cir. 2003) (collecting cases). But there are no precedents squarely on point, and this seems to be an open question. We need not answer it here. Whether HNIC actually was an insurance company is a matter of the evidence, not the indictment, and if it was not, then the issue is moot. Appellants' attempt to characterize the problem as one of internal inconsistency within the indictment gets them no farther. To succeed on such an argument they would have to demonstrate not only that insurance companies are not necessarily health care benefit programs, but that it is impossible for an insurance company also to be a health care benefit program. In light of the existence of hybrid arrangements like health maintenance organizations, which are both insurers and health care providers, we do not think this is impossible. (We are not saying that HNIC was a health maintenance organization, only that there is no logical inconsistency within the indictment.) Moreover, even if there were an inconsistency between the indictment's prefatory averment that HNIC was an insurance company and the averment in Count 1 that it was a health care benefit program, this would not render Count 1 insufficient. "`Each count in an indictment is regarded as if it was a separate indictment.'" United States v. Powell, 469 U.S. 57, 62, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984) (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932)). There is no need to look beyond the borders of a particular count to determine what offense is charged; indeed, it is generally improper to do so except where 735 a count incorporates other allegations expressly, as permitted by Federal Rule of Criminal Procedure 7(c)(1). See United States v. Caldwell, 302 F.3d 399, 412 (5th Cir.2002); United States v. Stoner, 98 F.3d 527, 535 (10th Cir.1996). An indictment need not contain introductory or prefatory matter at all, see Fed.R.Crim.P. 7(c)(1), so if it does such matter is perforce superfluous unless expressly incorporated into one of the counts. "`A part of the indictment unnecessary to and independent of the allegations of the offense [to be] proved may normally be treated as a useless averment that may be ignored.'" United States v. Nickl, 427 F.3d 1286, 1301 (10th Cir.2005) (quoting United States v. Miller, 471 U.S. 130, 136, 105 S.Ct. 1811, 85 L.Ed.2d 99 (1985)); see also, e.g., Ford v. United States, 273 U.S. 593, 602, 47 S.Ct. 531, 71 L.Ed. 793 (1927) ("[A] useless averment is innocuous and may be ignored."). We have here a situation not unlike that presented in United States v. Hajecate, 683 F.2d 894 (5th Cir.1982), in which the defendants claimed that the allegations of the indictment were inconsistent with the government's allegations in a bill of particulars provided, at defendants' request, to explain the indictment. "Even if the bill was inconsistent with the indictment," the Fifth Circuit explained, "the proper remedy is not dismissal of the indictment but clarification of the bill. The indictment ..., unless properly amended or superseded, constitutes the full statement of the charges against the defendants." Id. at 897; accord United States v. Arge, 418 F.2d 721, 724-25 (10th Cir.1969) ("The indictment must stand on its allegations and whatever the bill of particulars contained in the way of variance from this allegation ... does not effect [sic] the sufficiency of the indictment."). The same reasoning applies to each count in an indictment, for each is to be treated as separate. Prefatory factual allegations inconsistent with one count of a thirty-one count indictment, we hold, can warrant dismissal of that count no more easily than factual allegations in a bill of particulars inconsistent with the very count the bill purports to explain. The case might be different in the unusual situation where an indictment's introductory matter made the instrument as a whole so confusing or misleading that a reasonable defendant would not be "on fair notice of the charges against which he must defend." Chisum, 502 F.3d at 1244 (internal quotation marks omitted); cf. Hajecate, 683 F.2d at 898 n. 2 ("We ... will not countenance government tactics that confuse defendants by creating inconsistencies between the indictment and the bill."). But here, the defendants were on notice that they needed to defend against the charge of embezzling from a health care benefit program, and it was not necessary for the government to prove the extraneous allegations in the introduction or for defendants to defend against them. If it is true, as defendants contend, that the allegations about HNIC contained in the introduction and in Count 1 are mutually exclusive, the proper course would have been to wait until it was proved that HNIC was an insurance company and then argue the insufficiency of the evidence to support Count 1. 2. McCarran-Ferguson Act Appellants also challenge the health care fraud charge as precluded by the McCarran-Ferguson Act, which provides that state law shall generally govern insurance matters: No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon 736 such business, unless such Act specifically relates to the business of insurance.... 15 U.S.C. § 1012(b). Appellants say that Section 669 impairs "Oklahoma's administrative efforts to protect insurance policy holders" because their prosecution "undermine[d]" a lawsuit by the state to recover the money they had embezzled from HNIC. Aplts' Br. 43. In their reply brief, they explain the nature of the interference: "Mr. Frost and Mr. Redcorn were completely unable to defend, or work toward settlement of their case with the [OID] while they were preparing for trial and defense of the federal criminal prosecution." Reply Br. 17-18. Indeed, the case was stayed by mutual agreement during the pendency of this prosecution, and subsequently settled. We agree with the government, and with amicus the Director of the Oklahoma Insurance Department, that this type of "interference" does not trigger McCarran-Ferguson preclusion. Section 669 does not "invalidate, impair, or supersede" any state regulation of insurance; state insurance regulations remain fully in force. Appellants' argumentthat being tied up in a federal forum in one kind of proceeding made them unavailable to appear in state court for an insurance-related proceedingcould be made against any federal criminal prosecution. They might as easily have been busy defending charges of importing a mongoose, 18 U.S.C. § 42(a)(1), or using the character "Smokey Bear" for profit without authorization, id. § 711, or shanghaiing a sailor, id. § 2194. All would distract them from defending or working toward settlement of their case with the OID. Yet enforcement of those laws in such a circumstance is surely not precluded by the McCarran-Ferguson Act. The Supreme Court clarified in Humana Inc. v. Forsyth, 525 U.S. 299, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999), that McCarran-Ferguson does not entirely "cede the field of insurance regulation to the States, saving only instances in which Congress expressly orders otherwise." Id. at 308, 119 S.Ct. 710. Rather, "[w]hen federal law does not directly conflict with state regulation, and when application of the federal law would not frustrate any declared state policy or interfere with a State's administrative regime, the McCarran-Ferguson Act does not preclude its application." Id. at 310, 119 S.Ct. 710 (emphasis added). So, in Humana, the Court upheld against a McCarran-Ferguson challenge a private RICO action against an insurer to recover treble damages for corrupt insurance practices, even though state law provided a parallel remedy. The Court observed that "RICO's private right of action and treble damages provision appears to complement Nevada's statutory and common-law claims for relief," and held that "[b]ecause RICO advances the State's interest in combating insurance fraud, and does not frustrate any articulated Nevada policy," the suit was not barred by McCarran-Ferguson. Id. at 313-14, 119 S.Ct. 710. Here, even more clearly, § 669 does not "directly conflict" in any way with Oklahoma insurance law; rather, as the Insurance Department urges, it complements state regulation and furthers the state's policy against financial crimes that jeopardize the stability of insurers. Munich American Reinsurance Company v. Crawford, 141 F.3d 585 (5th Cir. 1998), which predated Humana, is of no assistance to Appellants. That case concerned application of the Federal Arbitration Act to force certain insurance actions into fora other than the state receivership court, which state law made the exclusive forum. See id. at 594-95. This is not at all on point; the statutes conflicted directly 737 and enforcement of the federal law would have thwarted express state policy. That is not the case with Section 669. Indeed, because in the face of a federal criminal prosecution a state retains parallel jurisdiction to prosecute offenses under its own laws, we are skeptical that a federal criminal statute would ever be preempted by McCarran-Ferguson unless it were to forbid something affirmatively required by state insurance law. B. Counts 2-5: Wire Fraud Counts 2 through 5 charged Mr. Redcorn and Mr. Frost with wire fraud. A defendant is guilty of wire fraud if, "for the purpose of executing [a] scheme or artifice" to defraud or to obtain money by false pretenses, he "transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds." 18 U.S.C. § 1343. The allegations here were that Appellants diverted incoming HNIC premiums to an Oklahoma HNIC bank account, moved the funds to their personal accounts at the same bank, and then these are the four charged communicationswired the moneys to their personal investment accounts with a broker in Florida. "It simply cannot be suggested," Mr. Redcorn and Mr. Frost propose first on appeal, "that transfers of funds by the officers of an insurance company are wire fraud." Aplts' Br. 40. This argument is frivolous. The gravamen of the charge is not that funds are transferred, it is that this is done by wire communication in interstate commerce. Communication by wire for whatever function, by whomevercorporate officers, toois wire fraud if done "for the purpose of executing" a fraudulent scheme. Appellants further contend that the indictment was insufficient because it did not "allege false statements or deception of any kind," and these are a necessary component of any scheme to defraud. Id. at 41. Not so. For purposes of the mail and wire fraud statutes, "[t]he concept of `fraud' includes the act of embezzlement, which is `the fraudulent appropriation to one's own use of the money or goods entrusted to one's care by another.'" Carpenter v. United States, 484 U.S. 19, 27, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987) (quoting Grin v. Shine, 187 U.S. 181, 189, 23 S.Ct. 98, 47 L.Ed. 130 (1902)). False statements are not necessary for perpetrating an embezzlement scheme, so they need not be alleged in an indictment for wire fraudunless in some unusual case this were necessary to "put[] the defendant on fair notice of the charges against which he must defend, and enable[] the defendant to assert a double jeopardy defense." Chisum, 502 F.3d at 1244 (internal quotation marks omitted). III. SUFFICIENCY OF THE EVIDENCE At the close of the government's evidence, and again after the verdicts were handed down, Mr. Redcorn and Mr. Frost moved for a judgment of acquittal on the insufficiency of the evidence to support the charges. On appeal, they renew their arguments as to Counts 2 through 31 of the indictment.[4] Our review is de novo, United 738 States v. Mendez, 514 F.3d 1035, 1041 (10th Cir.2008), and in considering whether the record supported conviction "we must view the evidence in the light most favorable to the government, and reverse only if no rational jury could have found the evidence sufficient to convict beyond a reasonable doubt." United States v. Nacchio, 519 F.3d 1140, 1157 (10th Cir.2008). A. Counts 2-5: Wire Fraud Appellants contend that they should have been acquitted of the wire fraud charges because there was no evidence that the four charged transfers, from their private bank accounts in Oklahoma to their out-of-state investment accounts, were "for the purpose of executing [a] scheme or artifice" to "defraud." 18 U.S.C. § 1343. Once the funds were in their personal accounts, they argue, the scheme (if any) was already complete.[5] The transmission charged in Count 2, for example, took place when Mr. Redcorn wired $90,000 of money to his investment account with Janney Montgomery Scott (JMS) in Florida, from funds previously embezzled from HNIC and deposited in his Bank of America (BOA) account. Likewise, the transmission charged in Count 5 was a $300,000 wire transfer from Mr. Frost's personal BOA account to his JMS account on April 20. Mr. Frost had previously embezzled these funds from HNIC by drawing three checks from HNIC's BOA account, signed by himself, for a total of $500,000, and depositing them into his personal BOA account. The transfers charged in Counts 3 and 4 were similar; the money was routed from Mr. Redcorn's BOA account first to his account at Arvest Bank, and thence to JMS. In each instance, the appellants' personal BOA, JMS, and Arvest accounts were opened in their true names with their own Social Security numbers. To meet § 1343's "purpose" requirement, a wire transmission must be "part of the execution of the scheme as conceived by the perpetrator at the time." Schmuck v. United States, 489 U.S. 705, 715, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The defendant need not have made the transmission personally, merely caused it to be made. It need not be at the heart of a scheme, nor necessary or even helpful for its success; it need not itself be false or deceptive. Rather, as we have said, a transmission is "considered to be for the purpose of furthering a scheme to defraud `so long as the transmission is incident to the accomplishment of an essential part of a scheme.'" United States v. Mann, 884 F.2d 532, 536 (10th Cir.1989) 739 (quoting United States v. Puckett, 692 F.2d 663, 669 (10th Cir.1982)); accord Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 98 L.Ed. 435 (1954).[6] Nonetheless, at some point the fraudulent scheme must be complete, and the perpetrators' subsequent enjoyment of its fruitsbuying groceries, going to the movies, redecorating the bathroomis not an "essential" part of the scheme. United States v. Taylor, 789 F.2d 618, 620 (8th Cir.1986); United States v. Altman, 48 F.3d 96, 103 (2d Cir.1995). The defendants claim that once they had deposited the embezzled funds in their personal bank accounts in Oklahoma, the scheme was complete; the subsequent transfers to Florida, they say, were simply a means of using their ill-gotten gains.[7] Reluctantly, we are forced to agree. Once the defendants deposited the funds into their personal bank accounts, they had accomplished their crime and the funds were available for their personal use. That they chose to transfer part of their stolen money to their broker in Florida for the purpose of investments is purely incidental to the fraud; they could just as easily have decided to blow it on a luxury trip to the Ozarks. Without a closer connection to the mechanism of their fraud, what they did with the stolen money afterward cannot itself relate to an "essential part of [the] scheme." Mann, 884 F.2d at 536. (quoting Puckett, 692 F.2d at 669). A chorus of Supreme Court opinions applying the parallel language of the mail fraud statute limns the boundaries of a "scheme to defraud" and explains when liability for post-fraud communications is apt. Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), was a prosecution of several defendants for cashing checks they had received in a fraudulent scheme; the defendants were charged with mail fraud after the paying banks mailed the checks to the drawee banks for recoupment. Id. at 90-92, 65 S.Ct. 148. Although the defendants had caused the use of the mails, the Court held that the interbank mailings were not in furtherance of their fraudulent scheme: The scheme ... had reached fruition. The persons intended to receive the money had received it irrevocably. It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires. Id. at 94, 65 S.Ct. 148. Later, in Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), the Court quoted this passage in holding that mail fraud liability would not lie for fraudulent use of a school district's credit card to purchase gasoline merely because the vendor mailed invoices to the school district and the district mailed the payment. Id. at 393, 80 S.Ct. 1171. Similarly, in United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974), it held that a defendant who had used a stolen credit card at a motel could not be convicted of mail fraud simply because the motel had invoiced the issuing bank by mail: 740 [T]he mailings ... were directed to the end of adjusting accounts between the motel proprietor, the ... bank, and [the card's rightful holder], all of whom had to a greater or lesser degree been the victims of respondent's scheme. Respondent's scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss. Id. at 402, 94 S.Ct. 645. In Schmuck v. United States, 489 U.S. 705, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), the Court at last upheld a mail fraud conviction. The defendant, a used-car distributor, illegally rolled back the odometers on some 150 automobiles before selling them to unknowing dealers at fraudulently inflated prices. The dealers, on later reselling the automobiles to consumers, had to mail title-application forms to the state to transfer title and complete the sale. Id. at 707-08, 109 S.Ct. 1443. The defendant was convicted of mail fraud for causing twelve such mailings and sought reversal, citing Kann, Parr, and Maze to support his claim that his scheme had reached fruition when the dealers had paid him and the later mailings were not in furtherance of it. Id. at 711, 109 S.Ct. 1443. But the Court distinguished its prior cases, noting that the mailings in Schmuck facilitated the defendant's ongoing scheme because "a failure of th[e] passage of title would have jeopardized Schmuck's relationship of trust and goodwill with the retail dealers upon whose unwitting cooperation his scheme depended." Id. at 714, 109 S.Ct. 1443. The government argues that the final, charged transfers to Appellants' JMS accounts "facilitated the scheme to provide Appellants with hundreds of thousands of dollars. ... The wire transfers of money into their [JMS] accounts merely completed the scheme to defraud HNIC and its policyholders. ..." Govt's Br. 27. At a post-conviction motion hearing before the district court, the government had put forward one theory of the role the charged transfers played in the scheme: they "got the money out of Oklahoma and helped conceal the embezzlement from the auditors. The auditors were aware of the Bank of America account of HNIC and they would much easier be able to find and locate the monies if they hadn't got it out of the state." R., Vol. V, at 11. On appeal, the government offers up a somewhat different theory: having the money in the Florida accounts was the goal of Appellants' scheme, and depositing the embezzled checks briefly in their BOA accountswhich required the subsequent, charged transfers to complete the plot "would have speeded the immediate availability of the full face value of the checks to Appellants." Govt's Br. 28. We agree with the government that a transfer is part of a scheme to defraud if it is necessary to put the stolen money in a form useable to the perpetrator. In United States v. Odiodio, 244 F.3d 398 (5th Cir.2001), for instance, the defendant stole and altered a million-dollar check from one corporation to another and deposited it in a bank account he opened in a false name. Id. at 400. He then wired the money to a third party's account, and coerced the third party to wire it overseas to the defendant's real accounta transfer that enabled him to use the funds. See id. at 403. United States v. Rude, 88 F.3d 1538 (9th Cir.1996), provides a similar example. The defendants in that case used an investment swindle to induce a Hawaii nonprofit called Unity House to wire $10 million to a Swiss bank account, opened in its name, over which the defendants had power of attorney. Id. at 1542. Then 741 they wired the funds to their own account in the United States, and later wired $650,000 of the principal back to the victim, falsely representing it as return on the investment. Id. They were charged and convicted of wire fraud, not for the initial transfer to Switzerland, but for the subsequent transfers, and sought reversal on appeal, claiming that "the wire fraud was completed" once the money was out of the victim's coffers and under the defendants' control in Switzerland. Id. at 1544. The Ninth Circuit affirmed. The transfer from Switzerland to the United States, it held, effected a step in the scheme because it "plac[ed] the funds outside of Unity House's account, outside of the scope of Unity House's authorization, and within [defendants'] own control." Id. at 1545. It was a final step toward the goal of having the money in a useable form. Rude illustrates a second, important principle as well: transfers, or other wire communications, may constitute wire fraud if they are carried out to conceal an otherwise completed fraud. Thus, although the funds in Rude were under the defendants' "control" and beyond the victim's grasp once they had been transferred out of the Swiss account, the later transfer of a portion of the funds back to Unity House, "to create the impression that Unity House was earning an immediate, substantial return on its investment, ... was not only relevant to the fraudulent conspiracy, but extended the overall scheme" by lulling Unity House into a false complacency about the fraud. Id. at 1544. The similar notion of the postfraud "lulling letter" as relating to an essential part of a scheme to defraud is well accepted. Even after the schemer has extracted what he wants from his victims, a communication will be mail fraud (or wire fraud) if it is intended to "lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely." Maze, 414 U.S. at 403, 94 S.Ct. 645; accord United States v. Trammell, 133 F.3d 1343, 1352-53 (10th Cir.1998). It has long been understood that "[a]voidance of detection and prevention of recovery of money lost by the victims are within, and often a material part of, the illegal scheme. Further profit from the scheme to defraud, as such, may be over, and yet the scheme itself be not ended." United States v. Riedel, 126 F.2d 81, 83 (7th Cir.1942) However, not every wire transfer of ill-gotten money violates § 1343. As the Supreme Court has repeatedly emphasized in the parallel context of § 1341, "`[t]he federal mail fraud statute does not purport to reach all frauds, but only those limited instances in which the use of the mails is a part of the execution of the fraud, leaving all other cases to be dealt with by appropriate state law.'" Schmuck, 489 U.S. at 710, 109 S.Ct. 1443 (quoting Kann v. United States, 323 U.S. 88, 95, 65 S.Ct. 148, 89 L.Ed. 88 (1944)). It is therefore not correct to claim without qualification, as the government did in its closing argument to the jury, that use of the wires is illegal if at all "in relation to" a scheme to defraud, R., Vol. XIV, at 1625. Setting aside cases where the wires are employed so that the fruits of the fraud are useable to the defendant, and cases of lulling or concealment, "as a general proposition, use of the [wires] after a scheme reaches fruition will not constitute grounds for a conviction." Taylor, 789 F.2d at 620; accord Altman, 48 F.3d at 103. We can find in the record of this case no evidence that, as "the scheme [was] conceived by the perpetrator[s] at the time," Schmuck, 489 U.S. at 715, 109 S.Ct. 1443, the charged wire transfers 742 from Appellants' personal BOA accounts to their personal JMS accounts were necessary to gain control over the funds or to conceal the nature of Appellants' fraud on HNIC. Certainly they do not fit the classic mold of the "lulling" communication, carried out to delay complaint or to enable an ongoing scam to continue, as HNIC had no reason to learn of the transfers at all. The government asserted below that these transfers "helped conceal the embezzlement from the auditors," R., Vol. V, at 11, but that claim was not supported then by reference to the transcripts, and is not supported now by our own review of the auditors' testimony. There is no evidence that the transfers charged in this case helped conceal Appellants' fraud or were meant to do so. If anything, the four charged transfers to separate investment accounts in Florida made it more, not less, obvious that Appellants were taking these funds for themselves: the transfers undercut Appellants' defense that they were holding these funds as a war chest to sue Steve Silverstein on HNIC's behalf.[8] Nor do we find any evidence to support the government's current theory that the transfers to Florida somehow "speeded the immediate availability" of the funds. Govt's Br. 28. The funds were "available" from the moment they were deposited in Appellants' BOA accounts, and could be spent, transferred, or otherwise drawn on at their pleasure. We see nothing to bear out the contention that moving the stolen funds to JMS would have been slower without the intermediate stopovers. On the contrary, in Counts 2, 3, and 4 the BOA stopovers lasted four days or longerhardly a sign that speed was of the essence. It might well be that Appellants' use of their Bank of America accounts speeded the availability of the embezzled funds. But they were not prosecuted for transferring the funds to those accounts; they were prosecuted for subsequent transfers to their broker in Florida. We think the "scheme to defraud" ended at the earlier step, before the interstate wires were used. It was at that point that "[t]he persons intended to receive the money had received it irrevocably" and the scheme "had reached fruition." Kann, 323 U.S. at 94, 65 S.Ct. 148. Although Appellants may have wished to draw an investment return on the proceeds of their fraud, investing stolen money is no more a part of a scheme to defraud than spending it. If Mr. Redcorn and Mr. Frost had used the interstate wires to transfer money directly from an HNIC account to their own, they would be liable for wire fraud. Instead, they deposited the proceeds of their scheme by check into accounts at the same bank. The government has pointed to no evidence in the record that could show that the subsequent, charged transfers from Appellants' checking accounts to their investment accounts were "incident to the accomplishment of" anything more than drawing a better return on the money. Mann, 884 F.2d at 536 (quoting Puckett, 692 F.2d at 669). Without evidence that these transfers were "`a step in the plot'" to defraud HNIC, Schmuck, 489 U.S. at 711, 109 S.Ct. 1443 (quoting Badders v. United States, 240 U.S. 391, 394, 36 S.Ct. 367, 60 L.Ed. 706 (1916)) (alteration omitted), we must reverse the convictions on Counts 2 through 5. B. Counts 6-31: Money Laundering The remaining counts of the indictmentMr. Redcorn was convicted on 743 Counts 6 through 23, and Mr. Frost on Counts 24 through 31fell under 18 U.S.C. § 1957(a), which punishes anyone who "knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity."[9] "Criminally derived property" is "any property constituting, or derived from, proceeds obtained from a criminal offense." Id. § 1957(f)(2). "Specified unlawful activity" includes health care fraud under 18 U.S.C. § 669, see id. §§ 24(a)(1), 1956(c)(7)(F), 1957(f)(3), and wire fraud under 18 U.S.C. § 1343, see id. §§ 1956(c)(7)(A), 1957(f)(3), 1961(1). Appellants now argue that, because they should be acquitted of the health care fraud and wire fraud counts, there was no "criminally derived property" and, as a result, these money laundering counts should be dismissed for lack of an adequate predicate. Our review shows that all the transactions charged under § 1957(a) involved the proceeds of the health care fraud charged in Count 1. As we uphold the convictions on that count, the money laundering counts stand as well. IV. NEWLY DISCOVERED EVIDENCE The jury returned its verdict of conviction on December 16, 2005. On February 6, 2006, the Oklahoma Insurance Department turned over 534 pages of documents it had not previously produced in response to a defense subpoena. Citing this newly discovered evidence, Mr. Redcorn and Mr. Frost moved for a new trial under Rule 33(a) of the Federal Rules of Criminal Procedure, which permits a court to vacate a conviction and grant a new trial "if the interest of justice so requires." In support of their motion, and now their appeal after the district court's denial, Mr. Redcorn and Mr. Frost point to four emails and two letters among the February 6 disclosure which they say could have won them the trial. "A motion for a new trial based on newly discovered evidence is generally disfavored and should be granted only with great caution." United States v. Gwathney, 465 F.3d 1133, 1143 (10th Cir. 2006) (internal quotation marks omitted). Where the basis for a motion is evidence merely newly discovered, and there is no claim that evidence was improperly withheld, the defendant must show that (1) the evidence was discovered after trial; (2) the failure to learn of the evidence was not caused by his own lack of diligence; (3) the new evidence is not merely impeaching; (4) the new evidence is material to the principal issues involved; and (5) the new evidence is of such a nature that in a new trial it would probably produce an acquittal. Gwathney, 465 F.3d at 1144 (quoting United States v. Sinclair, 109 F.3d 1527, 1531 (10th Cir.1997)). But when a movant alleges "suppression by the prosecution of evidence favorable to [the] accused upon request," Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the standard is easier to meet. The defendant need show only that "`(1) the prosecution suppressed evidence, (2) the evidence was favorable to the defendant, and 744 (3) the evidence was material.'" United States v. Mendez, 514 F.3d 1035, 1046 (10th Cir.2008) (quoting United States v. Quintanilla, 193 F.3d 1139, 1149 (10th Cir. 1999)). In the former case, our review of the denial of a motion for a new trial is for an abuse of discretion, Gwathney, 465 F.3d at 1144; in the latter, it is de novo, Mendez, 514 F.3d at 1046. On appeal, Mr. Redcorn and Mr. Frost "contend the Government did not comply with Brady by withholding [the OID disclosures] from the defense." Aplts' Br. 49. However, they made no such claim below, and at a hearing did not elect to differ with the district court's interpretation of their arguments: "We do not have here an assertion of a Brady ... violation. ... This is a straightforward newly discovered evidence issue, which does not involve any suggestion of misconduct by the U.S. [G]overnment in this case." R., Vol. V., at 15. This Brady claim was therefore forfeited, and we review it now for plain error only. In that light we need not decide whether there was error at all, because the error if any was not plain. The material at issue was allegedly withheld by the Oklahoma Insurance Department, not by the United States Attorney's Office or any other federal agency or officer. Although some cases suggest that "[t]he government cannot compartmentalize the Department of Justice" and so "different `arms' of the government, particularly when ... closely connected," should be treated together for Brady purposes, United States v. Deutsch, 475 F.2d 55, 57 (5th Cir.1973), overruled on other grounds by United States v. Henry, 749 F.2d 203 (5th Cir.1984), others emphasize that "Brady expressly applies to material evidence withheld from the defense by the prosecution," United States v. Sherlin, 67 F.3d 1208, 1218 (6th Cir. 1995), and that where "documents were never disclosed to the government and not in the government's possession, th[e] case would not appear to fall within the mandatory disclosure rule of Brady v. Maryland." United States v. Wilson, 798 F.2d 509, 514 (1st Cir.1986). We find nothing in the cases to show that federal prosecutors may be held responsible for the omissions of a state regulatory agencyan arm of a different government altogetherand nothing in the record of this case to indicate that the U.S. Attorney's Office and the OID had a working relationship close enough to trigger such a rule if it existed. Plain error must be "clear or obvious under current law," United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007) (internal quotation marks omitted), which this was not. Moreover, for the reasons explained next, we could not find that any error as to these disclosures affected Appellants' "substantial rights" or "seriously affect[ed] the fairness, integrity, or public reputation of judicial proceedings," as would be required for their claim to succeed. United States v. Chisum, 502 F.3d 1237, 1244 (10th Cir.2007) (internal quotation marks omitted). To the extent Appellants still pursue the newly-discovered-evidence claim they brought below, we find denial of their motion well within the district court's discretion. The item Appellants told the district court they thought most important was a June 26, 2001, internal email from OID Deputy Director Frank Stone, an actuary who testified at the trial, to John Beers, an OID examiner. In it, Mr. Stone mused, "If Brad Frost owns 50% of Heritage National and is the President, how can he be terminated and how could he be stealing from the company?" R., Vol. II, Doc. 122, Exh. C. If this was meant to express the legal opinion that a corporate officer and shareholder cannot steal from his own company, it was both inadmissible 745 and incorrect. Nor could it have been used, as Appellants proposed below, to bolster their defense that they took the money in good faith, or to show that the "resignation letters" they produced at trial, dated April 10, 2001, to support their defense that the money they took was a severance or buyout. The email was written two and a half months later and still assumed that Mr. Frost "is the president" of the company. The same applies to another email from Mr. Stone to Mr. Beers, dated July 6, 2001, in which Mr. Stone wondered why Brad Frost would go to a meeting to sign an HNIC financial statement: "John, I thought that Brad Frost resigned from the company. Can he sign a financial statement today?" Id., Exh. D. This could hardly establish that Appellants had resigned three months prior; if anything, it showed that they were still involved in corporate affairs in a way inconsistent with their claimed resignation. We need not tarry long with the rest. Two other items Appellants cite were letters in April and May 2001 from Steve Silverstein, the co-owner of HNIC, to OID which mentioned loans to corporate officers and which Appellants think would have "demonstrated the department had knowledge of the loans to Appellants." Aplts' Br. 50. Even if this were true, the OID's knowledge could not establish that the "loans" were legitimate and not a cover for embezzlement. Last is a May 17, 2001, email from Hallie Burnett, the OID accountant who investigated HNIC's finances from the inside, to a Mark Jaster at OID. The email discussed offshore bank accounts, blackmail, and other sly dealings of Mr. Redcorn and Mr. Frost. They now say these allegations were false, and that by exposing the falsehoods they could have undermined Ms. Burnett's credibility. Assuming arguendo that her claims were false, it would yet be a risky gambit to point the jury to accusations against one-self in hopes of later disproving them and so discrediting the accuser. If the ploy failed, the self-inflicted damage could be severe. Even if successful, though, at best it would have provided "merely impeaching" ammunition, in no way "material to the principal issues involved," to use against Ms. Burnett. Gwathney, 465 F.3d at 1144. "Denial of a new trial `is an abuse of discretion only if it is arbitrary, capricious, whimsical, or manifestly unreasonable.'" United States v. Lamy, 521 F.3d 1257, 1266 (10th Cir.2008) (quoting Gwathney, 465 F.3d at 1144). Given the weaknesses in the proposed evidence, and the reams of documents and volumes of testimony that were presented to the jury in this case, the district court was not unreasonable to conclude that none of these newly discovered items could possibly be considered so significant as to "probably produce an acquittal." Gwathney, 465 F.3d at 1144. V. SENTENCING Finally, Appellants contend that the sentences imposed upon them by the district court were unconstitutional because the court calculated their advisory ranges under the United States Sentencing Guidelines on the basis of facts, such as the amount of HNIC's loss, which were not specifically found by the jury. We interpret this as an argument that it is unconstitutional for the sentencing judge to rely upon a fact not found by the jury or admitted by the defendant in determining a sentence, where the sentence would not be reasonable in the absence of that fact. That argument, however logical based on the interpretation of the Sixth Amendment in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); see Rita v. United States, ___ U.S. ___, 127 S.Ct. 2456, 2476-78, 168 L.Ed.2d 203 *746 (2007) (Scalia, J., concurring in part and concurring in the judgment), carries no weight under the remedial opinion in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). As the Court explained in Booker, "when a trial judge exercises his discretion to select a specific sentence within a defined [statutory] range, the defendant has no right to a jury determination of the facts that the judge deems relevant." Id. at 233. For a violation of 18 U.S.C. § 669, health care fraud, the statutory maximum term of imprisonment is ten years, id. § 669(a). For wire fraud, the maximum is twenty years, id. § 1343; and for money laundering, ten years, id. § 1957(b). These defendants received concurrent sentences of 72 months apiece on each count of conviction. The district court was within its constitutional authority in finding the facts that led to discretionary sentences within those statutory ranges. VI. CONCLUSION For these reasons, we REVERSE the judgments of conviction as to Mr. Redcorn and Mr. Frost on Counts 2 through 5 of the indictment, and AFFIRM on all other counts. Because the district court ordered each defendant to serve a post-imprisonment term of supervised release of three years on every count except 2 through 5, but of five years on the reversed counts, we REMAND to the United States District Court for the Northern District of Oklahoma for resentencing. NOTES [1] The company was known as First Family Life Insurance until 1991, then as Access Insurance until 1999. [2] On November 9, 2005, Mr. Silverstein was separately indicted on one count of health care fraud and twenty-seven counts of money laundering. Indictment, United States v. Silverstein, No. 05-CR-165-SPF (N.D.Okla. Nov. 9, 2005). On September 13, 2006, the indictment was dismissed without prejudice on the government's motion. Order, id. (Sept. 13, 2006). [3] Mr. Frost and Mr. Redcorn have designated records on appeal that are identical in nearly all respects. Citations correspond to both records. [4] In their brief, the title of the section concerning sufficiency of the evidence appears to announce a challenge concerning Count 1, health care fraud, as well. As the government correctly points out, however, the brief turns out to contain no such argument. We will therefore not consider whether the evidence was sufficient to support that count, notwithstanding a terse and conclusory argument on this point raised for the first time in Appellants' reply brief. See Hanh Ho Tran v. Trustees of State Colls. in Colo., 355 F.3d 1263, 1266 (10th Cir.2004) ("`Issues not raised in the opening brief are deemed abandoned or waived.'" (quoting Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997))); Utahns for Better Transp. v. U.S. Dep't of Transp., 305 F.3d 1152, 1175 (10th Cir.2002) ("[I]ssues will be deemed waived if they are not adequately briefed."). [5] Appellants also claim the evidence was insufficient for a jury to conclude beyond a reasonable doubt that there was a scheme of any sort to defraud. "[V]iewing the evidence," as we must, "in the light most favorable to the government," United States v. Atencio, 435 F.3d 1222, 1232 (10th Cir.2006), we disagree. Additionally, in their reply brief Appellants assert that, "[i]n order ... to have participated in a `scheme to defraud' as alleged in Counts 2-5, they would have been required to have foreknowledge that the company would ultimately fail. There was no evidence to support this proposition." Reply Br. 12. We can answer this bizarre contention only by saying that defrauding a companyjust like defrauding an individual, or the United Statesdoes not require that the victim "fail," let alone that the defendant have "foreknowledge" of it. [6] Interpretations of the federal mail fraud statute, 18 U.S.C. § 1341, are "authoritative in interpreting parallel language in § 1343." United States v. Lake, 472 F.3d 1247, 1255 (10th Cir.2007) (citing Pasquantino v. United States, 544 U.S. 349, 355 n. 2, 125 S.Ct. 1766, 161 L.Ed.2d 619 (2005)). In this section we therefore look to the law of the two statutes without differentiation. [7] We put aside the defendants' insistence that there was no embezzlement and their gains were not ill-gotten, which is irrelevant to the current discussion. [8] The question here is not whether, after the fact, the transfer was useful for purposes of concealment, but with whether that was its purpose. See Schmuck, 489 U.S. at 711, 715, 109 S.Ct. 1443. [9] Section 1957(a) is erroneously drafted so that it is the offender who must be "derived from specified unlawful activity." Compare Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, Title I, § 1352(a), 100 Stat. 3207, 3207-21, and 18 U.S.C.A. § 1957(a) (West), with 18 U.S.C.S. § 1957(a) (LexisNexis) (inserting the phrase "that is" before "of a value greater than $10,000"). However, the requirement is well understood to apply to the criminally derived property instead. See, e.g., United States v. Lake, 472 F.3d 1247, 1260 (10th Cir.2007); United States v. Lovett, 964 F.2d 1029, 1042-43 (10th Cir. 1992).	{ "pile_set_name": "FreeLaw" }
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; [email protected] SJC-12631 COMMONWEALTH vs. DANIEL TAVARES. Bristol. January 6, 2020. - May 6, 2020. Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ. Homicide. Practice, Criminal, Capital case, Request for jury instructions, Motion for a required finding. Indictments found and returned in the Superior Court Department on March 28, 2013. The case was tried before Gary A. Nickerson, J. Theodore F. Riordan (Deborah Bates Riordan also present) for the defendant. Mary E. Lee, Assistant District Attorney, for the Commonwealth. LOWY, J. In December 2015, a jury convicted the defendant, Daniel Tavares, of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty, for the 1988 stabbing death of Gayle Botelho. The judge sentenced 2 the defendant to life in prison.1 On appeal, the defendant seeks reversal of his conviction, arguing that the trial judge erred by denying (1) his requests for a jury instruction pursuant to Commonwealth v. Croft, 345 Mass. 143, 145 (1962); and (2) his motions for a required finding of not guilty because the evidence equally supported two inconsistent propositions, as prohibited by Croft. The defendant also requests that we exercise our power pursuant to G. L. c. 278, § 33E, to reduce his conviction to manslaughter. Finding neither reversible error nor reason to exercise our authority under § 33E, we affirm. Background. We recite the evidence in the light most favorable to the Commonwealth, reserving certain details for later discussion. See Commonwealth v. Rodriguez, 456 Mass. 578, 579 (2010). The victim went missing on or about October 27, 1988. At the time of her disappearance, the victim lived on Prospect Street in Fall River with her boyfriend, Carlos DaPonte, and his brother, Gil DaPonte.2 The defendant lived across the street with his mother, and as relevant here, his mother's friend, Richard Pires. Neither the defendant nor 1 The judge ordered that the defendant serve his sentence from and after the sentence imposed by the State of Washington in or around 2007, as discussed infra. 2 Because they share a last name, we refer to Carlos and Gil individually by their first names and collectively as the DaPontes. 3 anybody else was arrested in connection with the victim's disappearance, until the defendant was charged in 2012. 1. The defendant's first version of events. In 1991, the defendant killed his mother and pleaded guilty to manslaughter. He was sentenced to from seventeen to twenty years in State prison. In September 2000, while incarcerated, the defendant wrote to a Bristol County assistant district attorney, claiming to know the location of a murder victim's body, which he would disclose, along with other relevant information, in exchange for a reduced sentence.3 During a series of interviews that took place over the subsequent months, the defendant told Detective John McDonald the following details about the night the victim was murdered: the victim, Carlos, Gil, and their friend, Raymond Paiva, were all at the defendant's house with the defendant. The defendant gave Carlos some cocaine to sell and Carlos left. The defendant then stepped outside to speak to his girlfriend, Michelle Cardoza, for about ten to fifteen minutes. When the defendant returned to his bedroom, he saw Gil holding a knife and the victim on the floor with stab wounds to her back. The defendant further stated that he was not present during the stabbing. 3 The defendant was not paroled, nor was his sentence reduced in exchange for any information given to police. The defendant also told police that he had contacted them because he had found God and wanted to clear his conscience. 4 When the defendant asked what had happened, Gil confessed to stabbing the victim, and the defendant announced he was going to call for help. Gil then pulled out a handgun, put it to the defendant's head, and fired a round, which grazed the defendant's forehead. The defendant then said he had to leave to pick up Cardoza, and he instructed Gil and Paiva to remove the victim's body. When the defendant returned approximately twenty minutes later, he saw Gil and Paiva carrying the victim's body, wrapped in a blanket, down the stairs and into the back yard.4 Later, Gil and Paiva pointed to an area of the back yard and told the defendant that that was where they had buried the victim's body. The defendant had been clearing that area for a tomato garden, and he suspected that that was where Gil and Paiva buried the body.5 2. The initial investigation. After two interviews with the defendant, in October 2000, the police went to the defendant's former house on June Street. In the defendant's bedroom, they found a bloodstained section of floor. In the back yard, the police recovered a human skeleton and positively 4 The defendant also told police that because Cardoza saw Gil and Paiva carrying the victim, the defendant explained to her that the victim had been hurt. 5 After this meeting with the defendant, Detective McDonald met with Cardoza, who confirmed the defendant's version of events. 5 identified the remains as those of the victim. The autopsy concluded that the cause of death was homicidal violence including stabbing to the victim's back. Shortly thereafter, Lori Moniz, the defendant's former girlfriend, saw a news report that a body had been discovered in the defendant's back yard. She contacted the police. At a subsequent meeting, she reported that, on an evening in late October 1988, the defendant had telephoned and told her to come to his house because he wanted to show her something. When Moniz arrived, the defendant answered the door, appearing nervous and excited. Moniz followed the defendant upstairs to his bedroom and, as she approached, she saw the defendant on his hands and knees scrubbing what appeared to be a large pool of blood from the rug. Upon seeing this, Moniz rushed down the stairs to leave. The defendant ran after her, explaining that the blood was fake and a joke for Halloween. 3. The defendant's second version of events. In 2002, the defendant changed his story: The defendant stated that he witnessed Gil stab and murder the victim and that Cardoza was not there that night. In 2002, Cardoza also told Detective McDonald that, at the defendant's request, she had lied about being with the defendant on the night of the murder. The Commonwealth did not charge the defendant with the victim's murder at this point. 6 4. Further investigation. In 2007, the defendant completed his sentence for his mother's homicide, and within days of his release from prison, he moved to the State of Washington. Shortly thereafter, the defendant killed two people. While incarcerated in Washington, the defendant learned of a book that discussed the victim's murder, including the defendant's cooperation with the police. In 2012, another individual incarcerated in the same Washington prison as the defendant told the Fall River police department that he had discovered an open letter, written on the cover of a book in the prison library, in which the author, later confirmed to be the defendant, refuted the notion that the defendant had cooperated with police and, instead, asserted that he was the only suspect in the victim's murder case, not a "rat." 5. The defendant's 2012 confession. In November 2012, Detective McDonald traveled to Washington to meet with the defendant, at which point, the defendant changed his story again. The defendant stated that he alone murdered the victim (2012 confession). In this version, the defendant was angry with the victim, the DaPontes, and Paiva for stealing cocaine from him, and he planned to kill all of them in retaliation for the theft. On the day of the murder, he walked across the street to the victim's house, and the victim answered the door. The defendant asked if Carlos was home, but he was not. The 7 defendant told the victim that he knew all four of them had stolen from him and that he wanted them to start selling cocaine for him to repay their debt. The defendant then invited the victim across the street to retrieve some cocaine from his house. Upon entering his bedroom, the defendant laid out a line of cocaine for the victim. While the victim bent over to ingest the line, the defendant took a handgun and tried to shoot her, but the slide on the gun jammed. The defendant then reached for a knife that was on his bureau and stabbed the victim seven or eight times. The victim fell, and her blood soaked the floor. The defendant then moved the victim's body to the back yard, removed the victim's clothes, and buried the victim's body, face down, in the back yard. The defendant told Detective McDonald that he would not have confessed if not for the book that had been written, because he refused to be known as a "rat."6 In February 2013, the defendant confessed three more times in writing to (1) his former roommate, Richard Pires; 6 The defendant also said that he accused Gil and Paiva of the murder because they benefited from the stolen cocaine, so by pinning it on them, he could kill two birds with one stone. 8 (2) Detective McDonald;7 and (3) his former false alibi witness,8 Cardoza. A grand jury indicted the defendant for the victim's murder in 2013, and the jury trial began on November 16, 2015. At trial, the defendant argued that he gave a false confession to avoid being labeled a "rat" in prison. He called an expert witness who testified to the dangers of being considered a "rat" within the prison system. The jury convicted the defendant. Discussion. 1. Jury instruction. On appeal, the defendant argues the judge erred in denying the defendant's requests for a jury instruction pursuant to Croft, 345 Mass. at 145.9 Because the defendant preserved this issue at trial, we The defendant had kept in contact with Pires while 7 incarcerated in Massachusetts and in Washington. Pires testified that the defendant wrote to him on a somewhat regular basis. The defendant told Pires that he had to "take them out" because "Carlos and his girl stole something from [him] that was not [his]" and that he "did [the crime] alone." The defendant also said that he confessed to Lori Moniz and a woman who lived across the street. In the letter to Detective McDonald, the defendant wrote, "I acted alone and that's that." The defendant reiterated to both of them that he came clean because the book that had been written about the murder made him look like a "rat." Also in February 2013, the defendant wrote Cardoza, 8 admitting that he had asked her to lie for him and told her not to lie for him anymore. The defendant's requested jury instruction was modified 9 from the language in Croft. The requested instruction stated, "Where the evidence tends equally to sustain either of two 9 review for prejudicial error. See Commonwealth v. Cruz, 445 Mass. 589, 591 (2005). We have long upheld the principle articulated in Croft that "[w]hen the evidence tends equally to sustain either of two inconsistent propositions, neither of them can be said to have been established by legitimate proof." Croft, 345 Mass. at 145, quoting Commonwealth v. O'Brien, 305 Mass. 393, 400 (1940). See Commonwealth v. Kelly, 470 Mass. 682, 693-694 (2015). Our decision in Croft does not provide for a jury instruction, and we have never interpreted it as such.10 Indeed, we previously held that "a reference to the consequences of an even balance in the evidence preferably should not be included in a charge on reasonable doubt," Commonwealth v. Hunt, 462 Mass. 807, 825-826 (2012), quoting Commonwealth v. Beverly, 389 Mass. 866, 872-873 (1983), because such an instruction may lead the jury to improperly infer that if the balance is weighted even slightly inconsistent propositions, neither of them can be said to have established guilt beyond a reasonable doubt. In such a case, the evidence is insufficient to sustain the burden of proof imposed upon the Commonwealth." See Croft, 345 Mass. at 145. 10Even the cases to which the defendant cites in his brief do not mention Croft in the context of a jury instruction. Rather, they discuss the circumstances in which the trial judge should have granted the defendant's motion for a required finding of not guilty. See Commonwealth v. Rivera, 460 Mass. 139, 144 (2011) (judge erred in denying defendant's motion for required finding of not guilty); Croft, 345 Mass. at 145 (same). See Rodriguez, 456 Mass. at 582-583 (insufficient evidence to support convictions). 10 in favor of the defendant's guilt, the jury would be required to find the defendant guilty, see Commonwealth v. Saladin, 73 Mass. App. Ct. 416, 419 (2008). Instead, the principle articulated in Croft provides a standard for judges to apply when considering a motion for a required finding of not guilty and for appellate courts to apply when reviewing the sufficiency of the evidence. There was no error. 3. Required finding of not guilty under Croft. The defendant also argues that the judge erred in denying his motions for a required finding of not guilty both at the close of the Commonwealth's case and at the close of all of the evidence. We review to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Cole, 473 Mass. 317, 334 (2015), overruled on another ground, Commonwealth v. Wardsworth, 482 Mass. 454(2019), quoting Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). Citing Croft, the defendant argues that because the Commonwealth based its entire case on the defendant's 2012 confession, the whole of the evidence supports two inconsistent propositions: (1) the 2012 confession was truthful and he murdered the victim or (2) the 2012 confession was untruthful 11 and was an effort to avoid being labeled a "rat" while serving sentences in prison. The defendant further argues that because the evidence equally supports both propositions, the judge erred in denying the defendant's motions for a required finding of not guilty. See Croft, 345 Mass. at 145. The defendant is correct that Croft requires a judge to grant a defendant's motion for a required finding of not guilty when "the evidence tends equally to sustain either of two inconsistent propositions" (citation omitted). Id. That is not this case. This principle applies only in circumstances in which, even viewing the evidence in the light most favorable to the Commonwealth, "choosing among the possible inferences from the evidence presented," would require a jury "to employ conjecture." Id. at 145 (evidence equally supported inference that defendant possessed heroin with intent to sell it and inference that defendant possessed heroin until he was certain he had defeated his habit). See Rodriguez, 456 Mass. at 582-583 (evidence equally supported inconsistent inferences that buyer either obtained cocaine from third person or from defendant); Commonwealth v. Eramo, 377 Mass. 912, 913 (1979) (evidence equally supported inconsistent inferences that defendant either issued prescription due to his independent medical judgment or pursuant to request without legitimate medical purpose). However, "it is for the jury to determine where the truth lies, 12 for the weight and credibility of the evidence is wholly within their province." Cole, 473 Mass. at 334, quoting Commonwealth v. Lao, 443 Mass. 770, 779 (2005), S.C., 450 Mass. 215 (2007) and 460 Mass. 12 (2011). See Commonwealth v. Merry, 453 Mass. 653, 662 (2009) (jury not required to believe testimony of defendant's expert); Commonwealth v. Clifford, 374 Mass. 293, 297 (1978) (jury not required to disbelieve witnesses' testimony placing defendant at scene of crime). The likelihood of the defendant's 2012 confession being truthful or being untruthful are not in equipoise. The weight of the Commonwealth's evidence in this case, moreover, was overwhelming and, contrary to the defendant's arguments, included much more than just the defendant's 2012 confession to Detective McDonald. See Commonwealth v. Weaver, 474 Mass. 787, 791 (2016), aff'd 137 S. Ct. 1899 (2017), citing Commonwealth v. Forde, 392 Mass. 453, 458 (1984). The victim's body was buried in the defendant's back yard. The police found dried blood in the defendant's bedroom. It was reasonable for the jury to conclude that, just hours after the murder, the defendant's former girlfriend saw the defendant cleaning up a pool of blood in the very same bedroom. One of the defendant's then roommates observed blood on the defendant's shirt in the washing machine, a pool of blood on the basement floor, and a pitchfork and shovel also in the basement near the door leading to the back 13 yard. The roommate had never seen the pitchfork and shovel in that location before. In addition to the 2012 confession to police, the defendant separately confessed to Pires and to Cardoza,11 and the Commonwealth put forth ample evidence corroborating the defendant's confessions.12 The jury were free, but not required, to believe that the defendant truthfully confessed to murdering the victim.13 See Merry, 453 Mass. at 662. Moreover, even without the defendant's explicit confession to the murder, the defendant does not contest the statements he made to police in 2000 and 2002. He also admitted, without recantation, that he knew the victim; that he was angry with her for stealing cocaine from him; that the victim was murdered in his bedroom; and that he knew where the victim's body was The defendant also confessed to Detective McDonald a 11 second time in writing. The defendant confessed to Pires that the defendant cut 12 out a section of his rug, and Pires testified that he had observed the same. The defendant confessed that he stabbed the victim seven or eight times, removed the victim's clothes, and buried the victim's body face down, three facts that were never publicly disclosed. The defendant's recitation of facts that contradict his 13 confessions are of no moment, as we view the evidence in the light most favorable to the Commonwealth when reviewing the sufficiency of the evidence. See Cole, 473 Mass. at 334 ("Here, the defendant has marshaled the evidence, or the purported lack thereof, in the light most favorable to himself. This is not the proper lens through which to view the evidence"); Merry, 453 Mass. at 662 ("That contradictory evidence exists is not a sufficient basis for granting a motion for a required finding of not guilty"). 14 buried. We conclude that, viewing the evidence in the light most favorable to the Commonwealth, a rational jury could have found that the defendant was guilty of murder in the first degree on both the theories of premeditation and extreme atrocity or cruelty. 4. Review under G. L. c. 278, § 33E. We have reviewed the entire record pursuant to our responsibilities under G. L. c. 278, § 33E. We conclude that there is no basis for reducing the defendant's sentence or ordering a new trial. The defendant's conviction is affirmed. So ordered.	{ "pile_set_name": "FreeLaw" }
Order entered May 9, 2013 In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00333-CR LOUIS ONEAL WILKINS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 401st Judicial District Court Collin County, Texas Trial Court Cause No. 401-80751-2011 ORDER Appellant is represented by counsel; therefore, appellant’s pro se motion presents nothing for review and is hereby DENIED. Rudd v. State, 616 S.W.2d 623, 625 (Tex. Crim. App. 1981). Moreover, any motion for a bond hearing must be directed to the trial court. See TEX. CRIM. PROC. CODE ANN. art. 44.04 (West 2006). /s/ DAVID LEWIS JUSTICE	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 21, 2005 Charles R. Fulbruge III Clerk No. 04-61059 Summary Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RICHARD LEE CLONCE, also known as Rick Clonce, Defendant-Appellant. Appeal from the United States District Court for the Southern District of Mississippi USDC No. 4:03-CR-14-1 Before JONES, BARKSDALE, and PRADO, Circuit Judges. PER CURIAM:* Richard Lee Clonce appeals his conviction and sentence for willful failure to pay child support for Ashley, the child he fathered with his ex-wife, Nancy Marsack. See 18 U.S.C. § 228(a)(3). His challenge to federal jurisdiction is without merit. There is no authority to support his argument that the term “residence” as used in 18 U.S.C. § 228(a)(3) has the same meaning as “domicile.” In fact, the only courts to have considered the * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. issue have found to the contrary. See United States v. Namey, 364 F.3d 843 (6th Cir.), cert. denied, 125 S. Ct. 302 (2004); United States v. Venturella, 391 F.3d 120, 131 (2d Cir. 2004). Moreover, the clear language of the statute reveals that the issue was where Ashley resided and not where her parents claimed to be domiciled. 18 U.S.C. § 228(a)(3). Clonce’s inquiry into Marsack’s domicile was irrelevant and was properly excluded. FED. R. EVID. 401, 402. Clonce argues that in light of United States v. Booker, 125 S. Ct. 738 (2005), this case should be remanded for resen- tencing. The Government concedes this issue. Because there does not appear to be anything in the record “that would prove beyond a reasonable doubt that the district court would not have sentenced [Clonce] differently had it acted under an advisory Guidelines regime,” Clonce is entitled to a remand for resentencing. United States v. Akpan, 2005 WL 852416, *11 (5th Cir. 2005). Clonce’s challenge to the constitutionality of 18 U.S.C. § 228 is without merit. See United States v. Bailey, 115 F.3d 1222, 1226-30, 1232-33 (5th Cir. 1997). VACATED AND REMANDED FOR RESENTENCING. 2	{ "pile_set_name": "FreeLaw" }
984 A.2d 938 (2009) Diane C. O'HARA and Joseph O'Hara, h/w, Appellant v. The FIRST LIBERTY INSURANCE CORP. d/b/a Liberty Mutual Insurance Group, Appellee. No. 3054 EDA 2008. Superior Court of Pennsylvania. Argued September 23, 2009. Filed November 9, 2009. Reargument Denied December 30, 2009. 939 David B. Rodden, Philadelphia, for appellants. David A. Santilli, Philadelphia, for appellee. Michael J. Davey, III, and Leonard A. Sloane, Media, for Pennsylvania Association of Justice, amicus curiae. Thomas A. McDonnell, and Gregg A. Guthrie, Pittsburgh, for The Pennsylvania Defense Institute and the Insurance Federation of Pennsylvania, Inc., amicus curiae BEFORE: FREEDBERG, CLELAND and KELLY, JJ. OPINION BY KELLY, J.: ¶ 1 Diane C. O'Hara and Joseph P. O'Hara, Appellants, appeal from the order entered in the Philadelphia County Court of Common Pleas sustaining the preliminary objection raised by The First Liberty Insurance Corp., d/b/a/ Liberty Mutual Insurance Group, Appellee, on the basis of venue and transferring the case to the Court of Common Pleas of Delaware County. We affirm, finding that the trial court properly enforced the forum selection clause contained in the couple's insurance policy. ¶ 2 Appellants live in Delaware County. On March 29, 2007, Appellant Diane C. O'Hara was involved in a motor vehicle accident with another motorist in Delaware County. At the time of the accident, Appellants' vehicle was insured by Appellee. The policy included underinsured motorist coverage and provided that if Appellants sued Appellee, the suit "must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident." (See Appellants' Exhibit B, Underinsured Motorist Coverage Policy Declarations). 940 ¶ 3 After receiving the maximum liability amount available to her from the other driver's insurance company, Appellant submitted an underinsured motorist coverage claim to Appellee, which denied the claim. Thereafter, on August 28, 2008, Appellants filed a civil complaint against Appellee in Philadelphia County alleging breach of contract and loss of consortium. Based on the forum selection clause in the policy, on September 11, 2008, Appellee filed a timely preliminary objection on the basis of improper venue. On October 3, 2008, the trial court sustained the preliminary objection and transferred the case to the Court of Common Pleas of Delaware County. Appellant subsequently filed a timely notice of appeal[1] and a court-ordered concise statement of errors complained of on appeal. The trial court issued its Pa.R.A.P. 1925(a) opinion on December 17, 2008. ¶ 4 On appeal, Appellants raise one issue for our review: whether the trial court committed an error of law in transferring the case to Delaware County on the basis of the forum selection clause contained in the insurance policy. Appellants argue that the forum selection clause should be deemed void and unenforceable as it conflicts with Pennsylvania law and is against public policy. They concede that at the time of the accident, their insurance policy contained the forum selection clause and that their legal domicile was in Delaware County. Nevertheless, they argue that the forum selection clause is "in tension with established law" and thus is "invalid and must yield to the [l]aw." (Appellant's Brief, at 8). We disagree. ¶ 5 Our standard of review of the enforceability of an insurance policy provision is well settled: As the interpretation of an insurance contract is a question of law, our standard of review is de novo; thus, we need not defer to the findings of the lower tribunals. Our scope of review, to the extent necessary to resolve the legal question before us, is plenary. Erie Ins. Exchange v. E.L. ex rel. Lowry, 941 A.2d 1270, 1273 (Pa.Super.2008) (citation omitted), appeal denied, 598 Pa. 768, 956 A.2d 435 (2008). "[W]hen the language of the [insurance] contract is clear and unambiguous, a court is required to give effect to that language." Mitsock v. Erie Ins. Exchange, 909 A.2d 828, 831 (Pa.Super.2006) (citation and internal quotation marks omitted). ¶ 6 Pennsylvania Rule of Civil Procedure 2179 provides the proper venue in which to bring a civil action against an insurance company in Pennsylvania: (a) . . . [A] personal action against a corporation or similar entity may be brought in and only in * * * (2) a county where it regularly conducts business[.] * * * (b) An action upon a policy of insurance against an insurance company, association or exchange, either incorporated or organized in Pennsylvania or doing business in this Commonwealth, may be brought (1) in a county designated in Subdivision (a) of this rule[.] Pa.R.C.P. 2179(a)(2), (b)(1). ¶ 7 The following language was included in Appellants' insurance policy: 941 LAWSUITS AGAINST US You must comply with the terms of the policy before you may sue us. Suit must be brought in a court of competent jurisdiction in the county and state of your legal domicile at the time of the accident. (Appellants' Exhibit B, Underinsured Motorist Coverage Policy Declarations) (emphasis in original). ¶ 8 In Central Contracting Co. v. C.E. Youngdahl & Co., 418 Pa. 122, 209 A.2d 810 (1965), our Supreme Court addressed the enforceability of a forum selection clause in a contract between two construction companies which specified that any lawsuit on the contract must be brought in the state of New York. In response to cases relied upon by the appellee which had held that contractual clauses purporting to strip a court of "jurisdiction" are unenforceable, the Court explained: these cases are correct to the extent that they hold that private parties cannot change by contract the rules of jurisdiction or venue embodied in the various laws of this Commonwealth. Jurisdiction over the party or the subject matter or venue of the cause is not a thing to be determined by private bargaining. However, we do not agree with these cases to the extent that they hold that an agreement between the parties, purporting to determine the forum where future disputes between them should be litigated, is per se invalid and without legal effect. The modern and correct rule is that, while private parties may not by contract prevent a court from asserting its jurisdiction or change the rules of venue, nevertheless, a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation. Such an agreement is unreasonable only where its enforcement would, under all circumstances existing at the time of litigation, seriously impair plaintiff's ability to pursue his cause of action. Mere inconvenience or additional expense is not the test of unreasonableness since it may be assumed that the plaintiff received under the contract consideration for these things. If the agreed upon forum is available to plaintiff and said forum can do substantial justice to the cause of action then plaintiff should be bound by his agreement. Moreover, the party seeking to obviate the agreement has the burden of proving its unreasonableness. Id. at 815-16 (citations omitted, emphasis added).[2] ¶ 9 More recently, this Court addressed the validity of a forum selection clause in Patriot Commercial Leasing Co., Inc. v. Kremer Restaurant Enterprises, LLC, 915 A.2d 647 (Pa.Super.2006), appeal denied, 597 Pa. 720, 951 A.2d 1166 (2008). The Court explained: [T]he modern trend is to uphold the enforceability of forum selection clauses where those clauses are clear and unambiguous. 942 E.g., Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 [111 S.Ct. 1522, 113 L.Ed.2d 622] (1991)[.] In light of these controlling principles from Central Contracting[, supra,] and prevailing case law, a forum selection clause in a commercial contract between business entities is presumptively valid and will be deemed unenforceable only when: 1) the clause itself was induced by fraud or overreaching; 2) the forum selected in the clause is so unfair or inconvenient that a party, for all practical purposes, will be deprived of an opportunity to be heard; or 3) the clause is found to violate public policy. Patriot Commercial, supra at 650-51 (some citations omitted). ¶ 10 In Carnival Cruise, supra,[3] relied upon by this Court in Patriot Commercial, supra, the United States Supreme Court held that a forum selection clause contained in a cruise ticket purchased by the plaintiffs, residents of Washington, from a Florida corporation, that required them to bring any lawsuit stemming from the cruise in Florida, was valid and enforceable. The Court relied upon its decision in The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), where it held that forum-selection clauses, although not "historically ... favored," are "prima facie valid." Carnival Cruise, supra at 589, 111 S.Ct. 1522 (quoting The Bremen, supra at 9-10, 92 S.Ct. 1907). In coming to its holding, the Court rejected the argument that the clause should be deemed unenforceable simply because it was contained in a form contract and not the result of equal bargaining power. Carnival Cruise, supra at 593-94, 111 S.Ct. 1522. Finally, the Court rejected the contention that the clause should be disregarded based on the inconvenience of residents of Washington having to bring suit in Florida, noting that Florida is not a "remote alien forum" and that the plaintiffs had notice of the clause yet nevertheless purchased the tickets. Id. at 594, 111 S.Ct. 1522. ¶ 11 Here, the forum selection clause clearly and unambiguously states that any lawsuit against Appellee must be brought in the "county and state" of the insured's "legal domicile," in this case Delaware County. As this provision is "clear and unambiguous," we are "required to give effect to that language." Mitsock, supra at 831. Furthermore, both Central, supra, and Patriot Commercial, supra, acknowledge the presumptive validity of such clauses. While both of those cases were decided in the context of contracts between commercial entities, neither case contains any language which would suggest they should be limited to such situations. Rather, Patriot Commercial's reliance upon Carnival Cruise, supra, a case involving a form contract between individuals and a large corporation, supports our finding that the forum selection clause at issue in the instant case is presumptively valid. Accordingly, Appellants' first argument fails.[4] *943 ¶ 12 Appellants' alternatively argue, in an implicit attempt to overcome the forum selection clause's presumption of validity, that the clause should be deemed unenforceable as a matter of public policy because "Pennsylvania has a strong policy in allowing a plaintiff his choice of forum." (Appellant's Brief, at 11). Again, we disagree. ¶ 13 Initially, we note that while a plaintiff's choice of forum is to be given great weight, and the burden is on the party challenging the choice to show it was improper ... [,] a plaintiff's choice of venue is not absolute or unassailable. If there exists any proper basis for the trial court's decision to grant a petition to transfer venue, the decision must stand. Forrester v. Hanson, 901 A.2d 548, 552 (Pa.Super.2006) (citation omitted) (emphasis added). ¶ 14 With regard to claims that a contract provision should be deemed unenforceable on public policy grounds, this Court has explained: To be contrary to public policy, a contract must tend to injure the public or be against the public good, or must be inconsistent with good morals as to the consideration to be exchanged or the thing to be done for consideration. Only in the clearest of cases may a court declare a contract void as against public policy. J.F. v. D.B., 897 A.2d 1261, 1279 (Pa.Super.2006) (citations omitted) (emphasis added), appeal denied, 589 Pa. 739, 909 A.2d 1290 (2006). Here, Appellants have failed to persuade us that requiring them to litigate their lawsuit in the county in which they live and in which the accident occurred would "injure the public or be against the public good." Id. Furthermore, as explained in footnote four, supra, the forum selection clause does not impair any substantive right afforded by the MVFRL. Accordingly, we reject Appellants' contention that the clause is unenforceable as a matter of public policy. ¶ 15 Order affirmed. NOTES [1] "An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles." Pa.R.A.P. 311(c). [2] Appellants cite Central, supra, in support of their assertion that "[t]he Pennsylvania Supreme Court has held that private parties cannot change by contract the rules of ... venue embodied by the laws of Pennsylvania." (Appellant's Brief, at 9). While some isolated sentences in the case may seem to support Appellants' argument, they fail to analyze those sentences in the context of the case as a whole, most glaringly the Court's clear directive that "a court in which venue is proper and which has jurisdiction should decline to proceed with the cause when the parties have freely agreed that litigation shall be conducted in another forum and where such agreement is not unreasonable at the time of litigation." Id. at 816. [3] Carnival Cruise is not binding on the instant case as it dealt with federal law, not Pennsylvania law. Nevertheless, we address the High Court's reasoning as we deem it persuasive on the issue before us. [4] In support of their claim, Appellants cite cases in which Pennsylvania courts have invalidated insurance policy provisions at odds with Pennsylvania statutory law. (See Appellant's Brief, at 8). In none of these cases, however, was a provision stricken for altering the Rules of Civil Procedure; rather, the provisions at issue in those cases attempted to narrow the scope of insurance coverage, thus defeating the protective purpose of the Motor Vehicle Financial Responsibility Law (MVFRL). See, e.g., Prudential Prop. & Cas. Ins. Co. v. Colbert, 572 Pa. 82, 813 A.2d 747, 756 (2002) (invalidated provision of insurance policy which excluded son as an "insured" because at odds MVFRL's definition of "insured," and thus at odds with the purpose of the MVFRL which is to protect motorists from the negligence of other drivers); Richmond v. Prudential Prop. & Cas. Ins. Co., 856 A.2d 1260 (Pa.Super.2004) (invalidating a policy which construed the term "motor vehicle" and "insured" more narrowly than permitted by statute). Here, to the contrary, the provision does not limit the protections afforded by the MVFRL, as Appellants are still entitled to pursue their lawsuit in Delaware County, the county in which they live and in which the accident occurred.	{ "pile_set_name": "FreeLaw" }
771 F.2d 51 ONEIDA OF the THAMES BAND, Plaintiff-Appellant,Oneida Indian Nation of Wisconsin, Plaintiff-Appellee,The Houdenosaunee, et al., Plaintiffs-Intervenors-Appellees,v.STATE OF NEW YORK, et al., Defendants-Appellees. No. 629, Docket 84-7642. United States Court of Appeals,Second Circuit. Motion to Recall MandateSubmitted July 2, 1985.Decided Aug. 26, 1985.Certiorari Denied Oct. 7, 1985.See 106 S.Ct. 78 Arlinda Locklear, Native American Rights Fund, Washington, D.C., filed papers in support of the motion of plaintiff-appellee Oneida Indian Nation of Wisconsin. Robert T. Coulter, Curtis G. Berkey, Indian Law Resource Center, Washington, D.C., filed papers in opposition to the motion on behalf of plaintiff-appellant Oneida of the Thames Band and plaintiff-intervenors-appellees The Houdenosaunee. Before NEWMAN, KEARSE and PRATT, Circuit Judges. JON O. NEWMAN, Circuit Judge: 1 This motion to recall a mandate and vacate a prior decision poses in an unusual context issues concerning the orderly process of appellate review, including discretionary review by the Supreme Court in the exercise of its certiorari jurisdiction. For reasons that follow, we conclude that we should not recall our mandate. 2 Our prior decision entertained an appeal from an order of the District Court for the Northern District of New York (Neal P. McCurn, Judge) granting a motion to disqualify counsel in a civil case. See Oneida of the Thames Band v. New York, 757 F.2d 19 (2d Cir.1985). We ruled that counsel should not be disqualified if consent to his participation was given by both his client, an intervening plaintiff, and an original plaintiff with whose interests a conflict was alleged to exist. Id. at 22. Upon remand the District Court held a hearing, satisfied itself that consents were validly given, permitted the previously disqualified counsel to participate, and ordered a turnover of documents that had been resisted in light of the prior order of disqualification. The documents have been turned over, and the case, already long delayed, is proceeding toward adjudication. 3 On June 17, 1985, two months after our mandate had issued, the Supreme Court ruled that an order granting a motion to disqualify counsel in a civil case was not subject to an interlocutory appeal. Richardson-Merrell, Inc. v. Koller, --- U.S. ----, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985). Based on the Richardson-Merrell decision, the plaintiff-appellee, who had unsuccessfully resisted the appeal from the original disqualification order, now urges us to recall our mandate and vacate our decision. The argument is made that, since it is now the law that an appellate court lacks jurisdiction of an interlocutory appeal from an order disqualifying counsel in a civil case, our prior decision exercising such jurisdiction is void and should be vacated. We disagree. 4 First, the judgment we previously rendered with respect to reinstatement of the disqualified counsel on proper consent is not void. The issue of our appellate jurisdiction had been raised in light of the Supreme Court's decision the previous year in Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), precluding interlocutory appeal of an order granting a motion to disqualify counsel in a criminal case. We declined to extend that ruling to civil litigation, following a post-Flanagan precedent of our Circuit. See Interco Systems, Inc. v. Omni Corporate Services, Inc., 733 F.2d 253 (2d Cir.1984) (per curiam); see also Armstrong v. McAlpin, 625 F.2d 433, 440-41 (2d Cir.1980) (in banc) (recognizing appellate jurisdiction over orders granting disqualification motions in civil cases), vacated on other grounds, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). Our prior decision in this case was thus based on a colorable jurisdictional basis, litigated by the parties, and our jurisdictional ruling binds the parties unless the ruling is reversed upon further appellate review. See United States v. United Mine Workers, 330 U.S. 258, 292-93 & n. 57, 67 S.Ct. 677, 695-96 & n. 57, 91 L.Ed. 884 (1947); Restatement (Second) of Judgments Sec. 12 comment c (1982). 5 Second, although the prior judgment is not void, we recognize that it is now voidable in the event that the Supreme Court exercises its discretion to grant the petition for writ of certiorari that has been filed with respect to our decision. Oneida Indian Nation v. Houdenosaunee, petition for cert. filed, 53 U.S.L.W. 3883 (U.S. May 16, 1985) (No. 84-1908). Thus, it is arguable that we should anticipate the action the Supreme Court may take and exercise our authority to recall the mandate and vacate our prior decision. Some support for doing so is provided by the Supreme Court's decision, one week after Richardson-Merrell, in GAF Corp. v. Cheng, --- U.S. ----, 105 S.Ct. 3493, 87 L.Ed.2d 626 (1985). In that case this Court had exercised appellate jurisdiction to review an order granting a motion to disqualify counsel in a civil case and had affirmed. Cheng v. GAF Corp., 747 F.2d 97 (2d Cir.1984). The Supreme Court granted a petition for a writ of certiorari and, applying Richardson-Merrell to a case then pending before it on direct review, vacated our decision and remanded with instructions to dismiss the appeal for want of jurisdiction. 6 We believe that this litigation differs from GAF in significant respects. We had there affirmed a ruling disqualifying counsel. The course of proceedings in the District Court was not altered by our affirmance, nor was it to be altered by a Supreme Court ruling that vacated our affirmance. Here, however, our prior decision reversed the disqualification ruling of the District Court and ordered hearings to determine whether counsel could serve. Those hearings have now been held. Counsel has been found eligible to participate and is participating in complex, protracted litigation. Under these circumstances, we think it far from clear that the Supreme Court will exercise its discretionary authority to grant a petition for certiorari in this case.1 See 28 U.S.C. Sec. 1254(1) (1982); Sup.Ct.R. 17. The Court need not do so simply to reiterate its view that an interlocutory appeal may no longer be taken in cases of this sort. In light of Richardson-Merrell this Court and all other appellate courts are bound to respect that view in any case in which interlocutory review is hereafter sought and in any case currently pending on direct review. But this case is no longer pending before us on direct review, and we do not believe the orderly progress of the case will be enhanced by returning it to the status of direct review. If we were to exercise our authority to recall the mandate, vacation of our prior ruling and dismissal of the appeal would needlessly risk injecting uncertainty into litigation already long delayed. The risk may well be slight; even if we dismissed the appeal at this stage, the District Judge might nevertheless proceed in light of his current ruling that permits the challenged counsel to participate. But we see no reason even to create room for doubt by reopening a judgment for which appellate jurisdiction existed at the time it was rendered. 7 Whether the Supreme Court will exercise its discretion to review our ruling will become known next fall, presumably shortly after the Court reconvenes for the 1985 Term. Though we have no wish to burden the Court, we think the need to apply Richardson-Merrell to this litigation is sufficiently questionable in light of the circumstances we have recounted that a prudent exercise of our discretion is to deny the motion to recall our mandate. 1 We do not mean to suggest that the exercise of certiorari jurisdiction would be appropriate in every case where a court of appeals affirmed an order of disqualification, but inappropriate in every case where such an order was reversed. Our point is the more limited one that the course of events in a district court after ruling on disqualification is relevant in exercising discretion to accord further direct appellate review either by the Supreme Court in determining whether to grant a petition for certiorari or by this Court in determining whether to recall a mandate We note that Supreme Court Rule 17 includes, among the factors to be considered in deciding whether to grant a petition for certiorari, the circumstance that a court of appeals "has decided a federal question in a way in conflict with applicable decisions of this Court," Sup.Ct.R. 17.1(c), a circumstance that has led to a grant of certiorari because of conflict with a subsequent decision of the Supreme Court. See, e.g., GAF Corp. v. Cheng, --- U.S. ----, 105 S.Ct. 3493, 87 L.Ed.2d 626 (1985); Helvering v. Wiese, 292 U.S. 614, 54 S.Ct. 862, 78 L.Ed. 1473 (1934); see also R. Stern & E. Gressman, Supreme Court Practice Sec. 4.5 (4th ed. 1969). Yet we also note that this circumstance is included in a list stated in the Rule to be "neither controlling nor fully measuring the Court's discretion." Sup.Ct.R. 17.1. "It must be emphasized, however, that the presence in a case of any one ... of these factors is not a guarantee that certiorari will be granted." R. Stern & E. Gressman, supra, at 153.	{ "pile_set_name": "FreeLaw" }
970 So.2d 106 (2007) Cynthia BRIDGES, Dept. of Rev., State of La. v. Clark L. WHITE. No. CA 2007-408. Court of Appeal of Louisiana, Third Circuit. October 31, 2007. Daivd M. Hamsen, Monica Doss Washington, Elroy A. James, Joseph F. Stevenson, Louisiana Department of Revenue, Legal Department, Baton Rouge, LA, for Plaintiff/Appellant, Cynthia Bridges, Department of Revenue. William Christian Gambel, Milling, Benson, Woodward, L.L.P., New Orleans, LA, for Defendants/Appellees, Clark L. White, Estate of Lisa White. Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and GLENN B. GREMILLION, Judges. SAUNDERS, Judge. This is an income tax case. The Louisiana Department of Revenue conducted an audit of two taxpayers for the years 1997 through 2001. The taxpayers agreed to pay the taxes according to the audit for the years 1999-2001, but did not agree to pay the audited taxes for the years 1997-1998. The Department filed suit against the taxpayers to collect the taxes from 1997-1998. In response, the taxpayers filed exceptions of prematurity and vagueness. 107 The trial court overruled the taxpayers' exception of vagueness, sustained their exception of prematurity, and dismissed the Department's petition. The Department and the taxpayers have both appealed. We affirm the trial court's ruling on the exception of vagueness, reverse the trial court's ruling on the exception of prematurity, and remand the case for further proceedings. FACTS AND PROCEDURAL HISTORY: The Louisiana Department of Revenue (hereinafter "the Department") audited the tax returns filed by Clark and Lisa White (hereinafter "the taxpayers"), a husband and wife, for the years 1997 through 2001. Prior to 1997 the taxpayers filed Louisiana Resident Returns. For the years 1997 through 2001, the taxpayers filed Louisiana Non-Resident Returns. The issue in the audit was whether the taxpayers were residents of Louisiana during the years 1997 through 2001. The taxpayers claimed that they were residents of Florida for the years in question. The taxpayers agreed to pay the taxes found due for the years 1999-2001. However, the taxpayers did not agree with the audit for the 1997-1998 years. As a result, the Department filed suit to collect the taxes for those unpaid years. The taxpayers responded to the suit by filing Dilatory Exceptions of Prematurity and Vagueness. On August 3, 2006, the trial court sustained the taxpayers' exception of prematurity and dismissed the Department's petition. Further, the trial court overruled the taxpayers' exception of vagueness. The Department has appealed the ruling of the trial court regarding the taxpayers' exception of prematurity. In response, the taxpayers appealed the trial court's ruling regarding their exception of vagueness. We affirm the trial court's overruling of the taxpayers' exception of vagueness. We reverse the trial court's finding that the Department's petition was premature and remand the case for further proceedings not inconsistent with this opinion. DEPARTMENT'S APPEAL: The Department alleges that the trial court erred by sustaining the taxpayers' Dilatory Exception of Prematurity and dismissing its petition. We agree. The issue before us is a question of law which seeks the correct interpretation of La.R.S. 47:1561 and its relation to La.R.S. 47:15(12) and (14) of the Taxpayer's Bill of Rights. Louisiana Revised Statute 47:1561 states: In addition to following any of the special remedies provided in the various chapters of this subtitle, the collector may, in his discretion, proceed to enforce the collection of any taxes due under this subtitle by means of any of the following alternative remedies or procedures: (1) Assessment and distraint, as provided in R.S. 47:1562 through 47:1573. (2) Summary court proceeding, as provided in R.S. 47:1574. (3) Ordinary suit under the provisions of the general laws regulating actions for the enforcement of obligations. The collector may choose which of these procedures he will pursue in each case, and the counter-remedies and delays to which the taxpayer will be entitled will be only those which are not inconsistent with the proceed initiated by the collector, provided that in every case the taxpayer shall be entitled to proceeding under R.S. 47:1576 except (a) after he has filed a petition with the board of tax appeals for a redetermination of the assessment, or (b) when an 108 assessment for the tax in question has become final or (c)when a suit involving the same tax obligation is pending against him; and provided further, that the fact that the collector has initiated proceedings under the assessment and distraint procedure will not preclude him from thereafter proceeding by summary or ordinary court proceedings for the enforcement of the same tax obligation.(Emphasis added.) La.R.S. 47:15, in pertinent part, states: There is hereby established a Taxpayer's Bill of Rights to guarantee that the rights, privacy, and property of Louisiana taxpayers are safeguarded and protected during tax assessment, collection, and enforcement processes administered under the tax laws of this state. This Taxpayer's Bill of Rights consists of a statement, in nontechnical terms, of the rights and obligations of the Department of Revenue and taxpayers. The rights afforded taxpayers to assure that their privacy and property are safeguarded and protected during tax assessment and collection are available only insofar as they are implemented in accordance with the Constitution of Louisiana and Louisiana Revised Statutes of 1950 or the administrative rules of the Department of Revenue. The rights assured Louisiana taxpayers are: . . . (12) The right to request that any assessment of taxes due, including penalty and interest, be reviewed at the management level of the Department of Revenue in accordance with R.S. 47:1563. . . . (14) the right to hearing in order to dispute an assessment of taxes, interest, and penalties by timely filing an appeal with the Board of Tax Appeals in accordance with R.S. 47:1414, 1431, and 1481. A taxpayer shall not be required to pay the disputed tax, interest, and penalties in order to exercise this right. . . . (Emphasis added.) Absent clear evidence of a legislative intent to the contrary, a statute should first be interpreted according to its plain language. Cleco Evangeline, L.L.C. v. La. Tax Comm'n, 01-2162 (La.4/3/02), 813 So.2d 351. "When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." La.Civ.Code art. 9. This principle of statutory interpretation applies to tax statutes. Tarver v. E.I. du Pont de Nemours and Co., 93-1005 (La.3/24/94), 634 So.2d 356. In interpreting the language of La.R.S. 47:1561 it is clear to this court that the collector of taxes, has the discretion to file an ordinary suit to collect taxes as was done in the case before us. It is only if the collector chooses to make a tax assessment that the rights numbered (12) and (14) in the Taxpayer's Bill of Rights can be asserted. Here, no such assessment was made; therefore, the rights cited by the taxpayers cannot be invoked by them. The First Circuit Court of Appeal has addressed a similar issue in the case of Bridges v. Smith, 01-2166 (La.App. 1 Cir. 9/27/02), 832 So.2d 307, writ denied, 02-2951 (La.2/14/03), 836 So.2d 121. The Smith court looked to legislative history and found that La.R.S. 47:15 was not enacted with the intention to create any new rights or change the existing laws. Rather, the Taxpayer's Bill of Rights was an attempt to codify all rights a taxpayer had under Louisiana Law in one place. We agree with the First Circuit's assessment of the Taxpayer's Bill of Rights. It 109 does not create any new rights and does not conflict with or add to the existing rights in the tax assessment and collection procedure found at La.R.S. 47:1561, et seq. Accordingly, we find that the trial court erred in sustaining the taxpayers' Dilatory Exception of Prematurity and erred in dismissing the Department of Revenue's petition. As such, we reverse the trial court's ruling and remand the case for further proceedings. TAXPAYERS' APPEAL: The taxpayers have also appealed from a ruling made by the trial court. The taxpayers contend that the trial court erred in overruling their Dilatory Exception of Vagueness. We disagree. This court recently addressed the Dilatory Exception of Vagueness in Smart v. Gold, Weems, Bruser, Sues & Rundell, 06-1414, p. 5 (La.App. 3 Cir. 4/4/07), 955 So.2d 263, 267: The purpose of the dilatory exception of vagueness, which is provided for by La.Code Civ.P. art. 926, is to place a defendant on notice of the nature of the facts sought to be established and, thus, enable him or her to identify the cause of action and prevent its future re-litigation after a judgment is obtained. Snoddy v. City of Marksville, 97-327 (La.App. 3 Cir. 10/8/97), 702 So.2d 890. See also Thomas v. Sonic, 06-0014 (La. App. 1 Cir. 11/3/06), 950 So.2d 822. However, the exception does not permit the defendant to demand exactitude and detail beyond what is necessary for the above purposes. Snoddy, 702 So.2d 890. An exception of vagueness will be denied if the petition fairly informs the defendants of the nature of the cause of action and includes sufficient particulars for the defendant to be able to prepare his or her defense. Id. The Department's petition clearly meets the requirements to overcome an exception of vagueness. The petition to collect taxes filed by the Department states the cause of action (to collect unpaid Louisiana income taxes), from which tax years (1997-1998), why those taxes are sought (taxpayers filed Louisiana Non-Resident tax returns rather than Louisiana Resident tax returns), on what basis those taxes are sought (an audit of the 1997-1998 years revealed to the Department that the taxpayers were actually Louisiana residents under its tax laws), and, finally, how much was being sought in unpaid taxes, plus interest and penalties ($254,245.00 in unpaid taxes, $272,335.13 in interest, and $127,122.50 in penalties). The taxpayers contend that a petition must plead facts which at least suggest that the suit was brought within the time provided by law. This contention lacks merit as there is no such legal requirement. The petition filed by the Department states the years for which it is seeking that Louisiana resident taxes be paid by the taxpayers. This places the taxpayers on notice of the contested time frame and allows them to assert or plead prescription if they feel it is warranted. The law does not require that the petition filed by a plaintiff negate the affirmative defense of prescription. Nor is the question of whether a suit is brought timely properly addressed with an exception of vagueness. Accordingly, we affirm the trial court's overruling of the taxpayers' exception of vagueness. CONCLUSION: The Department raised one assignment of error, contending that the trial court erred in granting the taxpayers' Dilatory Exception of Prematurity and dismissing its petition. We reverse the trial court's finding and remand the case for further proceedings not inconsistent with this 110 opinion. The taxpayers also raised one assignment of error, contending that the trial court erred in overruling their exception of vagueness. We affirm the trial court's ruling on this issue. All costs of this appeal are to be paid by the taxpayers. REVERSED IN PART, AFFIRMED IN PART, REMANDED.	{ "pile_set_name": "FreeLaw" }
158 F.3d 50 Lawrence G. WILLIAMS, Plaintiff, Appellee,v.UNITED STATES, Defendant, Appellee,William L. Blagg,, Defendant, Appellant.Lawrence G. WILLIAMS, Plaintiff, Appellee,v.UNITED STATES, Defendant, Appellee,Charles J. Cannon, Defendant, Appellant. Nos. 97-2437, 97-2438. United States Court of Appeals,First Circuit. Oct. 16, 1998. BEFORE: TORRUELLA, Chief Judge, CAMPBELL, ROSENN, Senior Circuit Judges, SELYA, BOUDIN, STAHL, LYNCH, & LIPEZ, Circuit Judges. ORDER OF THE COURT 1 The panel of judges that rendered the decision in this case having voted to deny the petition for rehearing and the suggestion for the holding of a rehearing en banc having been carefully considered by the judges of the Court in regular active service and a majority of said judges not having voted to order that the appeal be heard or reheard by the Court en banc, 2 It is ordered that the petition for rehearing and the suggestion for rehearing en banc be denied. Published dissent by Judge Lynch with Chief Judge Torruella and Judge Lipez joining in is attached. 3 LYNCH, Circuit Judge, dissenting. 4 I respectfully dissent from the denial of the request for rehearing en banc. I believe that this case involves a question of exceptional importance which should be addressed by the full court. See Fed.R.App.P. 35(a). 5 A published reprimand is a punishment that is in many cases far more serious than the imposition of monetary sanctions. Reputational damage alone may be worse for a lawyer than any monetary sanction and it seems odd to limit appeals to cases where there is a direct monetary sanction. Indeed, if pecuniary effects are accepted as the test, a reprimand itself may have long-lasting effects on a lawyer's earning ability far worse than an individual monetary sanction. Being branded unethical or incompetent by a federal judge can essentially destroy a lawyer's career. See Walker v. City of Mesquite, 129 F.3d 831, 832-33 (5th Cir.1997). 6 Despite these harsh realities, there are few checks on what judges say about counsel other than the judge's own prudence. A lawyer attempting to pursue a client's interests zealously may, if faced with an arbitrary judge or a judge who has an erroneous view of the facts, end up with a blot on his or her record that will never be erased--unless an appeal is possible to correct the problem. 7 The majority acknowledges these concerns, but focuses the appealability inquiry on whether a judge's words "are expressly identified as a reprimand." In re Williams, 156 F.3d 86, 92-93 (1st Cir.1998). However, if a lawyer's ability to fight reputational damage is dependent on a judge's labeling of an order, then judges who wish to evade appellate review will find it easy to do so. This sort of formalism, which has been abandoned in so many areas of the law, see, e.g., id. at 95-96 (Rosenn, J., dissenting) (noting that orders not labeled injunctions may nonetheless be appealable under 28 U.S.C. § 1292(a)(1) if they have injunctive effect), seems especially inappropriate in an area in which the premise of any appeal is likely to be the assertion that the order was issued by an intemperate decisionmaker. 8 Although the countervailing policy concerns expressed in the panel decision are forceful and significant, see Williams, 156 F.3d at 91-93 (citing Bolte v. Home Ins. Co., 744 F.2d 572, 573 (7th Cir.1984)), much of their force depends on the assumption that a finding of appealability in this case would make almost any negative comment by a trial judge subject to appeal. However, as pointed out by the dissent and the petition for rehearing, limiting principles are available. For instance, appealability could be limited to published reprimands that are issued in the context of a decision on the imposition of sanctions. See id. at 97-98 (Rosenn, J., dissenting); Petition for Rehearing and Suggestion for Rehearing En Banc at 6-8. These sorts of limits would ensure that judges' ability to run their courtrooms and manage their caseloads remains unimpaired. 9 Further, defining a certain limited class of reprimands as appealable under 28 U.S.C. § 1291 and § 158(d) is unlikely to prompt a flood of new appeals to this already busy court. Any lawyer appealing a reprimand takes the risk that this court, reaching the merits, will agree that the sanction is justified--thus giving the sanction far more force than it would have had if it had come from a trial judge unendorsed by a reviewing court. Accordingly, the lawyer's self-interest dictates that an appeal be taken only in cases in which the sanction is particularly damaging to the lawyer's reputation and particularly undeserved. 10 Even if appeals in this area arise infrequently, however, the very possibility of review will act as a check on judges who may be too free to issue unwarranted reprimands. The availability of mandamus, an exceedingly narrow avenue for appellate oversight, see, e.g., United States v. Horn, 29 F.3d 754, 769 (1st Cir.1994), will simply not serve this prophylactic purpose. 11 For these reasons, I dissent from the denial of review en banc. Of the Third Circuit, Sitting by designation	{ "pile_set_name": "FreeLaw" }
436 Pa. Superior Ct. 294 (1994) 647 A.2d 915 COMMONWEALTH of Pennsylvania v. Darryl BLACKWELL, Appellant. Superior Court of Pennsylvania. Submitted July 5, 1994. Filed September 12, 1994. 298 Thomas G. Wolpert, Philadelphia, for appellant. Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for the Com., appellee. Before CAVANAUGH, DEL SOLE and BROSKY, JJ. BROSKY, Judge. Darryl Blackwell appeals from the March 5, 1993 order of the trial court denying his petition under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§ 9541 et seq. The trial court order also granted PCRA counsel's motion to withdraw as counsel, and, informed appellant that he could proceed pro se or retain private counsel. On April 2, 1993 appellant filed a pro se notice of appeal and on March 9, 1994 present counsel 299 entered his appearance on behalf of appellant; counsel filed an appellate brief on appellant's behalf. Appellant and the victim, June Lane, who was his former girlfriend, lived in separate residences in West Philadelphia.[1] On November 16, 1986 appellant lured Ms. Lane into his house on the false pretext that he was repaying a loan owed to her. Once appellant had Ms. Lane in his home he punched her, dragged her to the second floor, bound her with an electrical cord, taped her mouth shut, wrapped a tie around her neck and raped her. Appellant threatened to hurt Ms. Lane and members of her family if she told anyone about the crimes. Ms. Lane returned to her grandmother's home in a hysterical state and told her grandmother that appellant had raped her. The grandmother called her son, who was the victim's uncle, and told him about the rape. He took the victim to a police station and then to the hospital. Appellant was arrested and when the police searched his house they found the electrical cord, the tape and the tie. Appellant was charged with rape. Appellant was released on bail on November 21, 1986. After his release he admitted to a friend, Robert Belk, that he had raped the victim. He also told Belk that he should have killed the victim and disposed of the physical evidence that had been subsequently seized by the police. N.T., 2/26/87, at 18. The victim moved from her grandmother's home to her uncle's home. She appeared at the November 26, 1986 first listing of appellant's preliminary hearing but the case was continued pursuant to appellant's request. On December 7, 1986 the victim spent the night at her grandmother's house. The next morning she left to go to work. Appellant was sitting on his front porch, which was located two houses away from the grandmother's home. Appellant confronted the victim on the sidewalk and grabbed her arm. He ordered her 300 not to testify against him. She ran toward her grandmother's porch and appellant followed her. Appellant produced a .22 caliber revolver and pointed it at the victim. N.T., 5/9/89, at 50. He shot the victim three times, in her head, her face and her hand. Appellant then fled into his home. The victim then staggered to her grandmother's porch and her grandmother helped her into the house. Appellant barricaded himself in his house and police arrived.[2] Over several hours police negotiators and a minister attempted to get appellant to surrender. Appellant was on a second floor landing and threw the .22 caliber revolver to the base of the staircase leading to the second floor. Police then entered the house and found appellant lying at the top of the staircase; police subsequently determined that appellant had apparently shot himself twice in his head. Upon discovering appellant an officer asked him if he was hurt. Appellant replied, "I f----ked up." N.T., 5/8/89, at 64. The police began to assist appellant and appellant stated, "How's the girl?" Id. at 65. An officer asked appellant to whom he was referring. Appellant replied, "The girl I shot." Id. Appellant was eventually charged with retaliation against a witness, aggravated assault, possessing an instrument of crime and related charges.[3] The victim was eventually discharged from the hospital. Because of the seizures resulting from the emergency brain surgery the doctors prescribed Dilantin in an attempt to control any possible future seizures. The victim began to have severe headaches and re-entered the hospital. The victim died on January 26, 1987. The medical examiner determined that the cause of death was fulminating hepatitis (with liver failure[4]) caused by the gunshot wounds, the craniotomy 301 (which is a surgical opening of the skull) performed upon her during emergency surgery immediately after the shooting, and, the Dilantin therapy; the manner of death was determined to be homicide. N.T., 5/9/89, at 52. Appellant was charged with homicide. All of the charges (for the rape and for the subsequent shooting) were consolidated for trial. Appellant attempted to suppress the items seized in the search subsequent to the rape, the gun used in the shooting, and statements made after his arrest for the shooting. After a suppression hearing on May 8, 1989 the trial court suppressed appellant's statement to police regarding the shooting of the victim (in which appellant replied, "The girl I shot." N.T., 5/8/89, at 65), since appellant was not given his Miranda warnings before he made the statement. The trial court denied all other defense requests to suppress evidence. Appellant then entered into a negotiated plea bargain. On May 9, 1989 the trial court conducted a lengthy and thorough guilty plea colloquy. N.T., 5/9/89, at 1-65. Appellant then pled guilty to first-degree murder, possession of an instrument of crime, retaliation against a witness and rape. Appellant also agreed to the sentence, which was determined pursuant to the negotiated plea agreement; he was sentenced to a mandatory life sentence for the first-degree murder, and consecutive sentences of ten-to-twenty years for the rape, three and one-half to seven years for retaliation against a witness and two and one-half to five years for possession of an instrument of crime.[5] During the plea colloquy appellant was told by the trial court that he was going to be bound by the answers that he gave and the statements that he made at the hearing; he was also told that he would not be allowed to subsequently contradict his answers and statements. N.T., 5/9/89, at 11. Appellant responded that he understood those points. Id. at 11-12. 302 Appellant did not seek to withdraw his guilty plea; he filed no motion for reconsideration of sentence. He filed no direct appeal. On September 18, 1989 he filed a pro se PCRA petition and counsel was appointed to represent him. Before court-appointed counsel could file an amended PCRA petition appellant moved to withdraw the petition without prejudice so that he could retain private counsel. The PCRA petition was withdrawn on March 12, 1992.[6] Appellant did not retain private counsel and filed another pro se PCRA petition on June 9, 1992.[7] The trial court appointed another attorney to represent appellant. After counsel reviewed the record and found all of appellant's issues to be without merit he filed a petition to withdraw as counsel, pursuant to Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988).[8] The trial court dismissed appellant's PCRA petition and granted counsel's motion to withdraw. Appellant filed the instant appeal. Appellant's fifth attorney is now representing him in this appeal. Appellant claims on appeal that, I. The only basis of the plea bargain was the threat of the death penalty, which would not have been imposed, and if imposed, could not have withstood Pennsylvania Supreme Court review. A. The statutory mens rea requirement for the only aggravating circumstance the prosecution could have presented is totally inconsistent with the facts as presented by the prosecution's own witnesses. 303 B. Case law decided by the Supreme Court of Pennsylvania available at the time of the plea demonstrates that the death penalty was not sustainable in this case. II. The defendant should be permitted to withdraw his guilty plea because trial counsel had no rational strategy in counseling defendant to forego defenses of arguable merit and counseling a plea bargain that provided no benefit to the defendant. A. The defendant had fact issues of arguable merit as to the cause of the victim's death and premeditation which were surrendered without a quid pro quo. B. A plea colloquy, even if performed conscientiously, is not a substitute for constitutionally mandated effective assistance of counsel. III. The sentencing scheme was an abuse of discretion not justified by any finding of aggravated circumstances and not justified by the one-sided plea bargain. A. The protection against double jeopardy was violated when sentences for the homicide and retaliation failed to merge. B. The trial court disregarded mitigating circumstances, unreasonably hindering the defendant's excellent chances for rehabilitation and possible pardon. IV. The Finley letter and opinion of the lower court fail to address central issues as to ineffectiveness of counsel which vitiate the basis of the defendant's plea. A. Both the opinion of Judge Papalini and the Finley letter assume, without stating reasons, that the only or central issue for ineffective assistance of counsel is whether first-degree homicide is sustainable on the facts. B. The Finley letter is a superficial review of issues the defendant raised pro se, not a legal analysis of the claims the defendant had if properly presented. C. The defendant's decision to plead guilty was made under mistakes of law so destructive to the exercise of basic rights that his plea cannot be deemed knowing and intelligent. 304 D. Defendant had a right to a trial attorney who would ensure that the verdict reached was the [Sic] either the product of adversarial testing, or who would obtain something of legal value for the defendant in the plea bargain. V. Ineffective assistance of counsel at both the PCRA and trial level has deprived the defendant of any meaningful review of the legality of his plea bargain. A. The defendant has not previously litigated his claims and has not waived appellate review of the legality of his plea bargain, a cognizable claim under the PCRA. B. The standard of review for the withdrawal of the defendant's plea should be the presentencing standard of "any fair and just reason." Appellant's Brief at i-iii. Our Court stated in Commonwealth v. Granberry, 434 Pa.Super. 524, 644 A.2d 204 (1994) (No. 1170 Pittsburgh 1992; filed February 7, 1994), Our scope of review, when examining a post-conviction court's grant or denial of relief is limited to determining whether the court's findings were supported by the record and the court's order is otherwise free of legal error. Commonwealth v. McClucas, 378 Pa.Super. 202, 548 A.2d 573 (1988). The findings of the post-conviction court will not be disturbed unless they have no support in the record. Id. To be eligible for relief under the Post Conviction Relief Act, an appellant must plead and prove by a preponderance of evidence that his conviction resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989); 42 Pa.C.S. § 9543(a)(2)(ii). In establishing a claim of ineffectiveness an appellant must initially demonstrate that the issue underlying the claim of ineffectiveness has arguable merit. Commonwealth v. Smith, 380 Pa.Super. 619, 552 A.2d 1053 (1988). Next, if 305 appellant's claim does have arguable merit, we must determine whether counsel's failure to pursue the matter had some reasonable basis designed to serve the interests of his client. Id. Finally, if the record reveals that counsel was ineffective, it must be determined whether appellant has demonstrated that counsel's ineffectiveness so prejudiced the appellant's case that it is likely that the result would have been different absent the errors. Commonwealth v. Tyson, 363 Pa.Super. 380, 526 A.2d 395, appeal denied, 518 Pa. 618, 541 A.2d 745 (1987). The burden of establishing ineffective assistance of counsel rests upon the appellant since counsel's representation is presumed to be effective. Commonwealth v. Jones, 389 Pa.Super. 159, 566 A.2d 893 (1989). Appellant must demonstrate that counsel's omission or commission was arguably ineffective and the likelihood that appellant was prejudiced as a result thereof. Id. A claim of ineffectiveness of trial counsel must be raised at the first opportunity at which the counsel whose ineffectiveness is being challenged no longer represents the defendant. Commonwealth v. Miller, 388 Pa.Super. 7, 564 A.2d 975 (1989). "For the purposes of [the PCRA], an issue is waived if the petitioner failed to raise it and if it could have been raised . . . on . . . appeal or [in any] other proceeding actually conducted or in a prior proceeding actually initiated under [the PCRA]." 42 Pa.C.S. § 9544(b). Appellant must also prove by a preponderance of the evidence that the allegation of error has not been previously litigated. 42 Pa.C.S. § 9543(a)(3). Pa.R.Crim.P. 1507(a) states, in pertinent part, "The [trial] judge shall promptly review the [PCRA] motion. . . . If the judge is satisfied from this review that there are no genuine issues concerning any material fact and that the defendant is not entitled to post-conviction collateral relief, and no purpose would be served by any further proceedings, the judge shall give notice to the parties of the intention to dismiss the motion . . . [without a hearing][.]" 306 The right to an evidentiary hearing on a post-conviction petition is not absolute. Commonwealth v. Box, 305 Pa.Super. 81, 451 A.2d 252 (1982). A hearing may be denied if a petitioner's claim is patently frivolous and is without a trace of support either in the record or from other evidence. Id. A post-conviction petition may not be summarily dismissed, however, as "patently frivolous" when the facts alleged in the petition, if proven, would entitle the petitioner to relief. Id. A defendant is only entitled to counsel during his or her first petition under the Post Conviction Relief Act. Pa. R.Crim.P. 1504(a). Id. 434 Pa.Super. at 529-531, 644 A.2d at 207-08. Appellant first claims that the only basis for his plea bargain was a threat that the death penalty could be imposed for a first-degree murder conviction. Appellant avers that the death penalty could not have been imposed in the instant case since the evidence would not have shown that appellant killed Ms. Lane in order to prevent her from testifying against him (i.e., the "aggravating circumstance" that the Commonwealth would have relied upon would not have been supported by the facts in the instant case). The PCRA states, in pertinent part, (a) To be eligible for relief under this subchapter, a person must plead and prove by a preponderance of the evidence all of the following: . . . . (2) That the conviction or sentence resulted from one of more of the following: . . . . (iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused an individual to plead guilty. 42 Pa.C.S. § 9543(a)(2)(iii). Appellant did not challenge his guilty plea prior to his sentencing. "An attempt to withdraw a plea of guilty after 307 sentencing will only be granted where the defendant is able to show that his plea was the result of manifest injustice." Commonwealth v. Holbrook, 427 Pa.Super. 387, 394, 629 A.2d 154, 158 (1993). To establish manifest injustice, a defendant must show that his plea was involuntary or was given without knowledge of the charge. Id. The decision to plead guilty must be personally and voluntarily made by a defendant. Commonwealth v. Fluharty, 429 Pa.Super. 213, 632 A.2d 312 (1993). Pa.R.Crim.P. 319 mandates that the guilty plea be offered in open court, and, in order to determine the voluntariness of the plea and whether the defendant acted knowingly and intelligently, the trial court must, at a minimum, inquire into the following six areas: (1) Does the defendant understand the nature of the charges to which he is pleading guilty? (2) Is there a factual basis for the plea? (3) Does the defendant understand that he has the right to trial by jury? (4) Does the defendant understand that he is presumed innocent until he is found guilty? (5) Is the defendant aware of the permissible range of sentences and/or fines for the offenses charged? (6) Is the defendant aware that the judge is not bound by the terms of any plea agreement tendered unless the judge accepts such agreement? Commonwealth v. Fluharty, supra at 218, 632 A.2d at 314; Comment to Pa.R.Crim.P. 319. The trial court must determine if there is a factual basis for the plea [i.e., whether the facts acknowledged by the defendant constitute the offense(s) charged]. Commonwealth v. Fluharty, supra. The aforementioned constitute the only required inquiries regarding a guilty plea. Id. The determination of whether the defendant understood the connotations of the plea and its consequences is made by an examination of the totality of the circumstances surrounding the plea. Id. Even if there is an omission or defect in the guilty plea colloquy, the guilty plea will not be 308 deemed invalid if the circumstances surrounding the entry of the plea reveal that the defendant fully understood the nature and consequences of his or her plea and that he or she knowingly and voluntarily decided to plead guilty. Id. A defendant may knowingly and voluntarily plead guilty as a matter of strategy or expedience even though he or she is unable or unwilling to admit guilt regarding the crime(s) charged. Id. The bottom line is whether the defendant understood what he or she was doing, and our Court will look to the colloquy to determine whether he or she did. Id. If a defendant has pled guilty to first-degree murder the trial court must conduct a separate sentencing hearing, before a jury,[9] to determine whether the defendant shall be sentenced to death or life imprisonment. 42 Pa.C.S. § 9711(a)(1) and (b). At the hearing evidence regarding aggravating or mitigating circumstances shall be presented. 42 Pa.C.S. § 9711(a)(2). Aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt. 42 Pa.C.S. § 9711(c)(iii). The trial court must give a jury instruction on aggravating circumstances if "there is some evidence" regarding one or more aggravating circumstances. 42 Pa.C.S. § 9711(c)(i). The verdict must be a death sentence if the jury unanimously finds at least one aggravating circumstance and no mitigating circumstance, or, if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. 42 Pa.C.S. § 9711(c)(iv). In all other cases the verdict must be a sentence of life imprisonment. Id. If the victim was a prosecution witness to a murder or other felony[10] committed by the defendant and was killed for the purpose of preventing his or her testimony against the defendant in any grand jury or criminal proceeding involving such offenses, then at least one aggravating circumstance exists. 42 Pa.C.S. § 9711(d)(5). 309 In the instant case Robert Belk, who had known appellant all of his life, testified at appellant's preliminary hearing. Belk testified that he met with appellant after appellant's release from jail subsequent to the rape of Ms. Lane. Belk testified that appellant told him that he raped Ms. Lane in his house and that "he should have killed her . . . and disposed of certain items that were in the house at the time" (the items that appellant mentioned to Belk were bed sheets, underwear and all of the items that were utilized to bind Ms. Lane during the rape). N.T., 2/26/87, at 18.[11] Immediately before appellant shot Ms. Lane three times at point blank range he ordered her not to testify against him. When she ran from him he gave chase and shot her. Appellant now argues that he was "psychologically disturbed, [and] non-rational," and that his confrontation with Ms. Lane on the morning of the shooting was unplanned and that the shooting was "impulsive."[12] Appellant's Brief at 16. Arguendo, assuming that appellant may have been able to present evidence at trial that may have shown him to have been psychologically impaired when he shot Ms. Lane, the state of the evidence at the time that appellant entered into the plea agreement (i.e., evidence regarding his rape of Ms. Lane, appellant's comments to Mr. Belk and appellant's confrontation with, comments to, and shooting of Ms. Lane coupled with her resulting subsequent death) revealed that there was certainly a strong possibility that appellant could have been convicted of first-degree murder, and that a jury (or the trial court) could have found, beyond a reasonable doubt, at least one aggravating circumstance (i.e., that appellant shot Ms. Lane, who eventually died as a result of her wounds, in 310 order to prevent her from testifying at his trial). 42 Pa.C.S. § 9711(d)(5). We can not speculate whether any mitigating circumstances would have been established at a sentencing hearing.[13] However, if no mitigating circumstances were established or if the aggravating circumstance or circumstances were found to outweigh the mitigating circumstance or circumstances, then appellant may have been sentenced to death for the killing of Ms. Lane. 42 Pa.C.S. § 9711(c)(iv). We have established that there was a real possibility that appellant could have received the death penalty since the Commonwealth possessed, at the pre-trial stage of the proceedings, a considerable capability for proving beyond a reasonable doubt that one aggravating circumstance existed. We must now decide if appellant's guilty plea was involuntary.[14] Since appellant has appealed from the denial of his PCRA petition he must prove, by a preponderance of the evidence, that his guilty plea was unlawfully induced. 42 Pa.C.S. § 9543(a)(2)(iii). We must look to the guilty plea colloquy in order to determine whether appellant's guilty plea was voluntary. Commonwealth v. Fluharty, supra. During the colloquy appellant admitted that the Commonwealth agreed that it would not seek the death penalty if appellant pled guilty to first-degree murder, possession of an instrument of crime, rape and retaliation against a witness. N.T., 5/9/89, at 44. This concession by the Commonwealth was the major inducement that prompted appellant to plead guilty, and appellant was satisfied with the plea agreement. Id. The Commonwealth also agreed to nol pros several of the charges against appellant. The concessions by the Commonwealth were not the only reasons that appellant pled guilty; 311 he also appeared to feel remorse for his crimes as he stated to the trial court, I would like to express my sorrow to the family [of the victim, June Lane] and anybody else that was hurt through these offenses. . . . I am more than sorry and today will not end [Sic]. It's something that I will carry with me for the rest of my days because June [Lane], she was a good person. She tried to help me, but I had a problem. Id. at 71. As our Court stated in Commonwealth v. Fluharty, supra, it really does not matter why a defendant pleads guilty (it can be for strategic reasons or out of remorse), so long as the plea is voluntary. Id. The colloquy was lengthy and thorough. The trial court insured that appellant understood the nature of the charges to which he pled guilty: The trial court explained each element of each crime to appellant and related to appellant exactly how each of appellant's actions (committed during the commission of the crimes) conformed to each element. N.T., 5/9/89, at 55-65. There was a factual basis for the plea: The Assistant District Attorney outlined the facts regarding all of the crimes that appellant was pleading guilty to. Id. at 48-52. The trial court explained to appellant that he had a right to a jury trial and explained all of the rights and privileges appurtenant thereto. Id. at 12-21. Appellant repeatedly stated that he understood all of the trial court's points regarding a jury trial. The trial court explained to appellant, and appellant indicated that he understood, his presumption of innocence. Id. at 12-14. The trial court insured that appellant was aware of the permissible range of sentences and/or fines for the offenses to which appellant was pleading guilty; appellant stated that he understood the range of sentences and/or fines. Id. at 33-37. The trial court also informed appellant that it was not bound by the terms of any plea agreement unless it chose to accept the agreement; appellant indicated that he understood that fact. Id. at 46-48. Therefore, pursuant to Commonwealth v. Fluharty, supra, and the Comment to Pa.R.Crim.P. 319, the trial court conducted all of the required inquiries regarding whether appellant's plea was voluntarily, knowingly and intelligently 312 made. Additionally, appellant stated that he understood all that the trial court explained to him during the colloquy, that he was not under the influence of drugs or alcohol at the time of the plea and that he was not suffering from any mental or emotional disability that prevented him from understanding everything that the trial court had stated to him. Appellant also stated that he was satisfied with his trial counsel's representation. Appellant further stated that he understood that he would be bound by any statements made or answers given during the colloquy, and, that he would not be permitted to, at some future time, contradict those statements and answers.[15]Id. at 11-12. The trial court also explained appellant's post-plea rights. Our review of the totality of the circumstances surrounding the aforementioned colloquy assures this Court that appellant's guilty plea was voluntarily, knowingly and intelligently made. All of the requisite inquiries were conducted and appellant made clear that he understood the connotations of the plea and its consequences. Hence, the trial court did not err in accepting appellant's guilty plea. Additionally, appellant has not shown that his guilty plea was unlawfully induced or that it was the result of manifest injustice; therefore, he is not entitled to relief under the PCRA. Commonwealth v. Holbrook, supra; 42 Pa.C.S. § 9543(a)(2)(iii). Appellant next claims that his guilty plea counsel had no rational strategy in counselling him "to forego defenses of arguable merit", and, in counselling him to accept a plea bargain that provided no benefit to appellant. Appellant's Brief at i. Appellant specifically alleges that he may have been able to prove that the proximate cause of Ms. Lane's death was not the shooting, and, that his "attempted suicide" (and subsequent statements) cast doubt upon the theory of his premeditated murder of Ms. Lane. First, we note that the acceptance of the plea bargain provided a clear benefit to appellant. We have already determined, 313 supra, that there was a genuine possibility that appellant could have received the death penalty had the instant case gone to trial. Hence, his acceptance of the Commonwealth's offer not to seek the death penalty did not constitute an entrance into a bargain from which he derived no benefit. Appellant also avers that the physicians who prescribed Dilantin for Ms. Lane, after she was shot by appellant, were responsible for her death: He avers that she died as a result of her reaction to the medication rather than the three gunshot wounds received from appellant. In support of his claim that Ms. Lane died solely as a result of the medication Dilantin he relies upon a May 29, 1989 letter from Emanuel Rubin, M.D. to appellant's trial attorney. Dr. Rubin, at the request of appellant's counsel, examined Ms. Lane's medical records. He opined in the letter that the cause of Ms. Lane's death was massive hepatic necrosis with liver failure, caused by the Dilantin (Dilantin-induced hepatotoxicity). Dr. Rubin's letter did not state that there was a direct link between the gunshot wounds and Ms. Lane's death. Dr. Rubin's letter was not included in the official record submitted on appeal.[16] However, what was included in the official record was an unrefuted statement, made by the prosecutor during a summarization of the facts at appellant's guilty plea colloquy, which quoted the pathologist who performed the autopsy upon Ms. Lane. The pathologist had stated that the cause of Ms. Lane's death was fulminating hepatitis (with liver failure) caused by the gunshot wounds to her head, the craniotomy performed upon her immediately after being shot by appellant and the Dilantin therapy; the pathologist found that the manner of death was homicide. N.T., 5/9/89, at 52. Hence, the evidence of record at the time of the guilty plea and at present discloses that appellant's 314 shooting of Ms. Lane set into motion an interconnected chain of events that led to her death.[17] Moreover, the conclusions reached by the pathologist and Dr. Rubin are not necessarily inconsistent since Dr. Rubin did not state that Ms. Lane's treating physicians were negligent or that the effects of the gunshot wounds did not necessitate Dilantin therapy. Hence, appellant's plea counsel did not advise appellant to forego a defense that possessed arguable merit. Appellant also avers that his "attempted suicide" after shooting Ms. Lane and a statement to police that he did not mean to shoot Ms. Lane should have been utilized by his trial counsel as evidence tending to negate a premeditated murder. As we stated, supra, appellant's "attempted suicide" could just as easily have been interpreted as evidence of his guilt after shooting Ms. Lane, and, his statement to the police that he did not plan to shoot Ms. Lane had to be considered in tandem with evidence that he did intend to shoot her since she would have testified at his trial for rape (i.e., appellant told Mr. Belk that he should have killed Ms. Lane immediately after the rape and destroyed evidence, appellant possessed a loaded handgun when he approached Ms. Lane, he grabbed her and ordered her not to testify, she broke free and ran, and he chased her and shot her three times and then fled). Trial counsel, who was apprised of all of these facts, made a tactical decision that the instant plea bargain was the most advantageous course for appellant since the risk of a jury verdict of first-degree murder and a finding of one aggravating circumstance (and, hence, the imposition of the death penalty) was too great. Given the facts available to trial counsel, and even considering a hindsight approach, we find that trial counsel had a reasonable basis for his advice to appellant to accept the instant guilty plea; hence, trial counsel was not ineffective for 315 failing to raise a defense of arguable merit. Commonwealth v. Granberry, supra. Appellant also avers that during the colloquy the trial court made an incorrect statement during its discussion of specific intent in the context of premeditated murder. The trial court stated, inter alia, "They have a rule in Pennsylvania that the specific intent to kill can be formulated by the killer's use of a deadly weapon to a vital part of a victim's body." N.T., 5/9/89, at 64. Appellant avers that the trial court's statement was misleading since it conveyed to appellant that "his intent, . . . as to premeditation for first[-]degree homicide . . . was a foregone conclusion. . . ." Appellant's Brief at 26. We disagree. The trial court properly informed appellant of the burden of persuasion that the Commonwealth carries in attempting to prove premeditated murder. A proper jury charge would be that a jury could infer an intent to kill from the use of a deadly weapon upon a vital part of the body of the victim. Commonwealth v. Ly, 528 Pa. 523, 599 A.2d 613 (1991). This type of statement does not shift the burden of persuasion to a defendant. Id. The statement made by the trial court in the instant case is almost identical to a proper jury charge on the subject matter.[18] The statement conveys that a jury "may" find specific intent, and not that it must find specific intent; hence, the matter of specific intent to kill in the instant case was not "a foregone conclusion". This is especially true, when, as in the instant case, appellant was repeatedly informed that he was presumed innocent and that each element of each crime charged had to be proven beyond a reasonable doubt. Appellant next claims that his sentences for rape, retaliation against a witness and possession of an instrument exceeded the Sentencing Guidelines, and, hence, the trial court abused its discretion in sentencing him and all of appellant's attorneys were ineffective for failing to raise the issue. 316 Our Court, in Commonwealth v. Decker, 433 Pa.Super. 402, 640 A.2d 1321 (1994), quoting from Commonwealth v. Murphy, 405 Pa.Super. 452, 592 A.2d 750 (1991), stated, The imposition of a proper sentence is a matter vested in the sound discretion of the trial court whose determination must be respected unless it involves a manifest abuse of discretion. However, the trial court must exercise its discretion in accordance with the applicable provisions of the Sentencing Code, 42 Pa.C.S. §§ 9701 et seq. The Code provides, in pertinent part, that the trial court "shall follow the general principle that the sentence imposed should call for confinement that is consistent with 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. The court shall also consider any [relevant] guidelines for sentencing adopted by the Pennsylvania Commission on Sentencing. In every case where the court imposes a sentence outside the sentencing guidelines the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the guidelines." 42 Pa.C.S. § 9721(b). [A] sentencing court is not required to adopt the recommendations in the Sentencing Guidelines but it must at least consider them. The sentencing guidelines do not preclude judicial discretion. Commonwealth v. Decker, supra, 433 Pa.Super. at 407, 640 A.2d at 1323; Commonwealth v. Murphy, supra, 405 Pa.Super. at 458, 592 A.2d at 753. The trial court should also consult a pre-sentence report, if available, where, as in the instant case, incarceration for one year or more is a possibility. Id. Further, the trial court must state on the record its reasons for the imposition of the particular sentence. Commonwealth v. Fetzner, 372 Pa.Super. 469, 539 A.2d 890 (1988). If the trial court examines a pre-sentence report and is aware of the relevant factors to be considered in sentencing a particular defendant we will assume that it meaningfully weighed the various factors, and, we will not disturb the sentencing court's discretion to sentence 317 that defendant as it did. Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12 (1988). Appellant's claim that his sentences exceeded the Sentencing Guideline ranges is a challenge to the discretionary aspects of his sentence. Such a claim is not cognizable under the PCRA. Commonwealth v. Lewis, 430 Pa.Super. 336, 634 A.2d 633 (1993). The only sentencing issue that is subject to PCRA review is whether the sentence imposed is greater than the lawful maximum. 42 Pa.C.S. § 9543(a)(2)(vii); Commonwealth v. Lewis, supra. Counsel cannot be deemed ineffective for failing to raise a baseless claim. Commonwealth v. Lewis, supra. Hence, this claim is without merit.[19] Appellant also claims that the sentences other than that imposed for first-degree murder were inappropriate since the trial court failed to refer to the Sentencing Guidelines when sentencing appellant outside of the Guidelines, and, that appellant should not have been given consecutive sentences. Again, appellant is not alleging that his sentences were greater than the lawful maximum. Hence, his claim is meritless. Commonwealth v. Lewis, supra. Moreover, the plea bargain was specific regarding the length of each sentence and in stating that the sentences were to run consecutive to each other.[20] The trial court merely imposed the sentences agreed to by appellant, the Commonwealth and the trial court. Hence, appellant, having voluntarily, intelligently and knowingly entered into the plea agreement, cannot now complain that the sentences were improper. 318 Appellant next claims that his plea counsel was ineffective for failing to argue that his sentences for first-degree murder and retaliation against a witness should have merged. Merger for sentencing purposes occurs only when the same facts are used to support convictions for crimes having different elements, and, these same facts support convictions for a greater offense and a lesser included offense. Commonwealth v. Huckleberry, 429 Pa.Super. 146, 631 A.2d 1329 (1993); Commonwealth v. Jones, 427 Pa.Super. 345, 629 A.2d 133 (1993). One of the crimes must be a lesser included offense of the other. Id. A lesser included offense is a crime having elements which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater offense. Commonwealth v. Huckleberry, supra. The elements in the lesser included offense are all contained in the greater offense; however, the greater offense contains one or more elements not contained in the lesser included offense. Commonwealth v. Jones, supra. In order to be convicted of first-degree murder a defendant must have intentionally killed another human being. 18 Pa.C.S. § 2502(a). An intentional killing is one "by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing." 18 Pa.C.S. § 2502(d). A person is guilty of retaliation against a witness or victim if he or she "harms another by any unlawful act in retaliation for anything lawfully done in the capacity of witness or victim." 18 Pa.C.S. § 4953(a). While some of the same facts were used to support appellant's convictions for first-degree murder and retaliation against a witness, the two crimes are not greater and lesser included offenses. The intention to retaliate against a witness or victim is an element of retaliation against a witness, and said element is not a required element of first-degree murder; hence, retaliation against a witness is not a lesser included offense of first-degree murder. Moreover, since the death of the victim is an element of first-degree murder, and that element is not present in the crime of retaliation against a 319 witness, first-degree murder is not a lesser included offense of retaliation against a witness. Hence, pursuant to Commonwealth v. Huckleberry, supra, and Commonwealth v. Jones, supra, the two crimes do not merge for sentencing purposes. Accordingly, appellant's plea counsel was not ineffective for failing to raise the issue. Commonwealth v. Lewis, supra.[21] Furthermore, as we stated, supra, the sentences for the various crimes were agreed to by appellant when he accepted the plea bargain. If he had decided to reject the Commonwealth's offer the case could have proceeded to trial and appellant would have been exposed to a possible death sentence. Therefore, his plea counsel was not ineffective for advising appellant to enter into the plea agreement. Commonwealth v. Granberry, supra. Appellant's next claim is that the "no-merit" letter filed by appellant's fourth attorney pursuant to Commonwealth v. Finley, supra,[22] and the instant trial court opinion, 320 "fail[ed] to address central issues as to ineffectiveness of counsel which vitiate the basis of" his guilty plea. Appellant's Brief at 30. Even if the "no-merit" letter and trial court opinion failed to address ineffectiveness of counsel issues, appellant's current counsel has raised (in a forty-nine page appellate brief) all of the ineffectiveness issues that appellant wished to have raised. We have reviewed and addressed, in this opinion, all of the ineffectiveness issues and found them to be without merit. Hence, appellant has suffered no prejudice as a result of the alleged omissions of PCRA counsel and omissions in the trial court opinion. Therefore, this claim is without merit. Appellant's final claim is that trial and PCRA counsel's ineffective assistance "has deprived [him] of any meaningful review of the legality of his plea bargain." Appellant's Brief at 43. He avers that due to ineffectiveness of counsel we should find none of his claims waived, and, that his request to withdraw his guilty plea should be reviewed by this Court under a pre-sentencing standard. We note that we have not found waiver regarding any of appellant's issues; we have addressed all of his claims and found them to be without merit. Regarding the standard of review pursuant to which we scrutinized appellant's request to withdraw his guilty plea, we utilized the post-sentencing "manifest injustice" standard. Commonwealth v. Holbrook, supra. We did so because appellant's request to withdraw his guilty plea was not raised prior to sentencing. Id. However, as we have explained in this 321 opinion, appellant's trial counsel was not ineffective for advising appellant to accept the instant plea agreement; hence, trial counsel could not have been ineffective for failing to advise appellant to withdraw the plea prior to sentencing. Since appellant has demonstrated no ineffectiveness of counsel prior to sentencing, we properly employed the post-sentencing "manifest injustice" standard of review in determining whether appellant should be permitted to withdraw his guilty plea. In summation, we find all of appellant's issues to be without merit. Accordingly, we affirm the March 5, 1993 trial court order denying appellant's PCRA petition. Order affirmed. NOTES [1] The victim initially lived in her grandmother's house in West Philadelphia. [2] The police took the victim to the hospital where she underwent emergency brain surgery; she suffered seizures as a result of the surgery. [3] Appellant underwent emergency surgery and was hospitalized for two weeks. He was then sent to the Psychiatric Unit of Holmesburg Prison in Philadelphia. [4] The victim had no history of liver problems prior to being shot by appellant. [5] The Commonwealth agreed to drop its request for the death penalty and all other charges were nol prossed (recklessly endangering another person, terroristic threats, violation of the Uniform Firearms Act and intimidation of a witness). [6] Appellant also filed a pro se direct appeal to our Court but said appeal was quashed on June 4, 1992 since the PCRA petition was dismissed without prejudice. [7] For purposes of this appeal we will treat appellant's current PCRA as his first PCRA, since his initial PCRA petition was withdrawn without prejudice. [8] The issues reviewed by counsel included a Rule 1100 claim, an alleged breach of the plea agreement and ineffectiveness of counsel for failing to (a) present a defense of involuntary intoxication to the charge of first-degree murder, (b) challenge the sentences, (c) promptly investigate the possibility of presenting an insanity defense and (d) raise a challenge to the Commonwealth evidence showing that appellant's conduct caused Ms. Lane's death. [9] The jury requirement may be waived by the defendant with the consent of the Commonwealth. 42 Pa.C.S. § 9711(b). [10] The felonies committed by appellant against Ms. Lane included rape and related charges. [11] It is not unreasonable to assume that Mr. Belk would have offered similar testimony had appellant's case proceeded to trial. [12] Appellant refers to his "attempted suicide", in his house as police negotiators were attempting to persuade appellant to disarm and exit the house, as further evidence that he was not attempting to silence a witness when he shot Ms. Lane. However, appellant's "attempted suicide" could also be interpreted as an act that was conceived only after appellant had shot Ms. Lane and realized the desperation of his situation (i.e., he had shot and possibly killed a woman and his house was surrounded by armed police). [13] However, the psychiatric report of Timothy J. Michals, M.D., who examined appellant for the defense during the pre-trial stage of the instant proceedings, indicated that at the time appellant shot Ms. Lane he was not suffering from any mental illness. We do note that the psychiatric report did state that appellant had a history of alcohol and drug abuse. [14] As mentioned, supra, the burden upon appellant is to show that he is entitled to withdraw his guilty plea since it was allegedly the result of manifest injustice. Commonwealth v. Holbrook, supra. [15] Our Court stated in Commonwealth v. Iseley, 419 Pa.Super. 364, 615 A.2d 408 (1992), "A criminal defendant who elects to plead guilty has a duty to answer questions truthfully." Id. at 375, 615 A.2d at 414. [16] This Court cannot consider any material that has not been certified in the record transmitted to us. In Re Estate of Brown, 422 Pa.Super. 448, 619 A.2d 762 (1993); Starr v. Zdrok and Zdrok, P.C., 419 Pa.Super. 60, 614 A.2d 1209 (1992). A document not filed of record does not become part of the certified record by merely making a reproduction and placing that reproduction in the reproduced record portion of the appellate brief. In Re Estate of Brown, supra. [17] Even if we were able to consider Dr. Rubin's letter it does not discount a link between the gunshot wounds and Ms. Lane's death; the letter simply focuses upon the immediate cause of death rather than an analyzation of whether the prescription of the Dilantin was a proper course of treatment for Ms. Lane's medical problems following her emergency brain surgery for the gunshot wounds. [18] In any future colloquies the trial court may want to substitute the word "proven" for the word "formulated". [19] Moreover, our Court stated in Commonwealth v. Murphy, 405 Pa.Super. 452, 592 A.2d 750 (1991), that a sentencing court is not required to adopt the recommendations in the Sentencing Guidelines; it need only consider the recommendations. Id. "The Sentencing Guidelines do not preclude judicial discretion." Id. at 458, 592 A.2d at 753. Hence, the trial court was well within its authority when it sentenced appellant outside of the Guidelines. [20] We note that the trial court, when sentencing a defendant, has the discretion to choose whether the sentences for separate crimes shall run consecutively or concurrently. 42 Pa.C.S. § 9721(a). [21] Appellant cites a quotation from Commonwealth v. Huckleberry, supra, which states that "if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. [Emphasis added.]" Id., 429 Pa.Super. at 153, 631 A.2d at 1332. Appellant argues that the shooting and subsequent death of Ms. Lane was the only act of criminal violence committed, and, hence, the crimes must merge for sentencing purposes. We disagree. The crime of retaliation against a witness involves any unlawful act which harms the witness or victim. There was more than one act of criminal violence (or unlawful act that caused harm) committed against Ms. Lane that was used to support the charge of retaliation against a witness, and, the additional criminal acts were not germane to a conviction for first-degree murder. The multiple criminal acts included the gunshot wounds to Ms. Lane's face and head (which eventually caused her death and resulted in a charge of first-degree murder), plus appellant's prior act of grabbing Ms. Lane while he ordered her not to testify against him, and, his act of shooting her in her hand (this gunshot wound did not contribute to or cause her death). Hence, appellant did not engage in only one act of criminal violence when he committed the crime of retaliation against a witness, and, therefore, the crime of retaliation against a witness would not merge with the crime of first-degree murder. Commonwealth v. Huckleberry, supra. [22] Before a motion to withdraw will be granted, there must be an independent review of the record by competent counsel. Commonwealth v. Finley, 379 Pa.Super. 390, 550 A.2d 213 (1988). Proof is required of each of the following: (1) A "no-merit" letter by [PCRA] counsel detailing the nature and extent of his review; (2) The "no-merit" letter by [PCRA] counsel listing each issue the petitioner wished to have reviewed; (3) The [PCRA] counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless; (4) The [PCRA] court conducting its own independent review of the record; and (5) The [PCRA] court agreeing with counsel that the petition was meritless. Id. at 393, 550 A.2d at 215.	{ "pile_set_name": "FreeLaw" }
FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SAM K., by and through his parents; No. 13-15486 DIANE C.; GEORGE K., Plaintiffs-Appellees, D.C. No. 1:12-cv-00355- v. ACK-BMK STATE OF HAWAII DEPARTMENT OF EDUCATION, Defendant-Appellant. SAM K., by and through his parents; No. 13-16452 DIANE C.; GEORGE K., Plaintiffs-Appellants, D.C. No. 1:12-cv-00355- v. ACK-BMK STATE OF HAWAII DEPARTMENT OF EDUCATION, OPINION Defendant-Appellee. Appeals from the United States District Court for the District of Hawaii Alan C. Kay, Senior District Judge, Presiding Argued and Submitted October 9, 2014—Honolulu, Hawaii 2 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. Filed June 5, 2015 Before: A. Wallace Tashima, Johnnie B. Rawlinson, and Richard R. Clifton, Circuit Judges. Opinion by Judge Clifton; Partial Concurrence and Partial Dissent by Judge Rawlinson SUMMARY* Individuals with Disabilities Education Act The panel affirmed the district court’s judgment in an action brought by a disabled student under the Individuals with Disabilities Education Act. The panel affirmed the district court’s conclusion that the student’s parents were entitled to reimbursement for the costs of a private school program because this placement was bilateral, not unilateral, and so the parents’ request for reimbursement was timely under the two-year statute of limitations set forth in Haw. Rev. Stat. § 302A-443(a). Distinguishing K.D. v. Dep’t of Educ., 665 F.3d 1110 (9th Cir. 2011), the panel held that the placement was bilateral because the State of Hawaii Department of Education tacitly consented to the student’s placement by failing to propose an alternative. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 3 Affirming the district court’s award of attorneys’ fees to the student and his parents, the panel held that the district court did not abuse its discretion in reducing the hourly rate requested by counsel. Concurring in part and dissenting in part, Judge Rawlinson agreed with the majority that the district court acted within its discretion in determining a reasonable hourly rate for the calculation of attorneys’ fees. She disagreed with the majority’s holding that the private school placement became bilateral due to implied consent on the part of the Department of Education. COUNSEL Jocelyn H. Chong, Michelle Puu (argued), and Holly T. Shikada, Deputy Attorneys General, Honolulu, Hawaii, for Defendant-Appellant/Defendant-Appellee. Carl M. Varady, Honolulu, Hawaii, for Plaintiffs- Appellees/Plaintiff-Appellee. OPINION CLIFTON, Circuit Judge: Sam K. is a disabled student. An administrative hearings officer for the State of Hawaii concluded that the State Department of Education (“DOE”) failed to propose a school placement for Sam for the 2010–11 school year that was appropriate and satisfied the requirements of the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 4 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. et seq. The hearings officer further found that the private school program in which Sam was enrolled by his parents was appropriate. In other circumstances, this would have entitled the parents to reimbursement by the DOE for the costs of attending the private program, but the hearings officer also concluded that the parents’ request for reimbursement was untimely under Haw. Rev. Stat. § 302A–443(a). That statute sets two different limitations periods. Parents ordinarily have two years to initiate the process by requesting a hearing, but the statute requires a filing “within one hundred and eighty calendar days of a unilateral special education placement” if the request includes “reimbursement of the costs of the placement.” Id. The hearings officer found that the private placement by the parents was “unilateral” and that their request was not filed within 180 days. Reimbursement was denied on that ground. The district court disagreed. It held that the placement was “bilateral,” not “unilateral,” so that the parents’ request was not untimely, and concluded that the parents were entitled to reimbursement. We affirm the judgment of the district court. The district court also awarded attorney’s fees to Sam and his parents. Contending that the hourly rate used in calculating the award was too low, Sam cross-appeals the amount of the attorney’s fees. We affirm that order as well. I. Background Sam K. suffers from anxiety, depression, language issues, speech issues, social issues, and central auditory processing disorder. In 2003, his parents (“Parents”) removed Sam from public school and placed him in Loveland Academy, a private SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 5 institution in Honolulu, where he was enrolled every year thereafter. The current litigation concerns Sam’s placement for the 2010–11 school year. Previous litigation between the Parents and DOE regarding the three years immediately preceding the 2010–11 school year was resolved by a settlement in May 2010 under which (1) DOE agreed to pay for Sam’s tuition at Loveland for school years 2007–08 through 2009–10, (2) current information from Loveland about Sam would be provided to DOE, and (3) the Parents would participate in an “IEP Reevaluation meeting” by the end of June 2010.1 The Parents and DOE representatives met to discuss Sam’s Individual Education Plan (“IEP”) for the following year several times during the summer and into the fall of 2010. In the meantime, the 2010–11 school year began, and Sam remained at Loveland. The meetings extended into January 2011. No different placement was ever agreed upon. DOE did not present a specific public school placement until January 14, 2011, when DOE produced a signed IEP that provided that Sam would be placed in a public school program at the Windward Intensive Learning Center (“ILC”). DOE followed up on that proposal by sending to the Parents a document entitled Prior Written Notice of Department Action, giving formal notice of the ILC placement, dated January 27, 2011. Sam never joined the ILC program, remaining at Loveland instead. 1 Prior to the settlement, the litigation resulted in several district court orders, one of which was published. See D.C. v. Dept. of Educ., 550 F. Supp. 2d 1238 (D. Haw. 2008). 6 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. The Parents disputed the effectiveness of the IEP and the finality of the ILC placement. The DOE stated in letters dated March 9, 2011, and April 20, 2011, that the IEP issued on January 14, 2011, was the final IEP. The Parents filed a request for a due process hearing on October 27, 2011. Following an extensive due process hearing, the administrative hearings officer issued a 34-page Findings of Fact, Conclusions of Law, and Decision. The decision included at least five determinations that are important for the current appeal. 1. The DOE “predetermine[d] placement to be appropriate at DOE Proposed Placement [the ILC program] in advance and without any significant parental input.” The hearings officer further concluded that “[t]he IDEA is violated when the DOE predetermines placement for [Sam] before the IEP is developed. In addition to being contrary to the procedural requirement that the placement be based on the IEP, pre-determination also deprived [the] Parents of meaningful participation in the IEP process.” 2. The placement proposed by the DOE was “ill advised, inappropriate, and potentially disastrous to [Sam] and his education.” The decision detailed reasons for that strongly- worded conclusion, but as the DOE is no longer contesting the conclusion, it is not necessary to go into them here. The important determination, also no longer disputed by DOE, was that the placement proposed by the DOE was not reasonably calculated to confer educational benefits on Sam and denied him the free appropriate public education to which he was entitled under the IDEA. SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 7 3. The Parents established that Loveland was an appropriate placement for purposes of reimbursement. The hearings officer specifically concluded that it “has provided and can provide educational instruction specially designed to meet the unique needs of [Sam], supported by such services as are necessary to permit [Sam] to benefit from instruction.” (citations omitted). 4. The placement of Sam at Loveland for the 2010–11 school year was a “unilateral placement” by the Parents, without the agreement of DOE. The DOE made its position clear that the IEP process was over and the ILC placement was what it made available. The hearings officer found that DOE stated this view no later than in its letter dated March 9, 2011. This letter was received by the Parents around March 12, 2011, and so the 180-day period began running, at the latest, on March 12, 2011. The Parents’ request for a due process hearing and reimbursement was filed on October 21, 2011. That was untimely as it was more than 180 days later, so the hearings officer concluded that reimbursement was precluded under Haw. Rev. Stat. § 302A–443(a). In reaching that conclusion, the hearings officer’s decision discussed both the previous decision of the district court in D.C. v. Department of Education, 550 F. Supp. 2d 1238 (D. Haw. 2008), and our decision in K.D. v. Department of Education, 665 F.3d 1110 (9th Cir. 2011). 5. The Parents did not establish that DOE was responsible for the failure to have the 2010–11 IEP in place by the conclusion of the August 6, 2010, IEP meeting, which would have been only about one week after the start of the school year. In reaching that conclusion, the hearings officer observed that the IEP process was “very lengthy and very disputatious. . . . As stated by Petitioners’ counsel: ‘We’ll 8 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. stipulate that it [the relationship between the parties] was bad.’” (alteration in original). On appeal from the administrative decision, the district court reversed the hearings officer’s finding as to the statute of limitations, but affirmed in all other respects. The district court followed its own prior decision in D.C., where it held that a subsequent determination by a hearings officer in favor of a student that a private placement was appropriate, while the DOE’s proposed placement was not, constituted an agreement between the DOE and the family rendering the private placement “bilateral” rather than unilateral. See D.C., 550 F. Supp. 2d at 584. The district court also observed that Sam had been placed at Loveland for many years, and that the DOE had agreed in the settlement agreement to pay for the Loveland program for the preceding three years. The court noted that the DOE had not offered an IEP for Sam for those preceding years, that the settlement agreement did not provide for a change in placement, and that no IEP had been offered by the DOE by the beginning of the 2010–11 school year. Under those circumstances, the district court concluded that the “Parents’ decision to continue to enroll Sam in Loveland effectively was a continuation of a bilateral placement rather than a unilateral placement.” The court’s order discussed our decision in K.D., which held that a settlement agreement did not necessarily constitute an agreement by the DOE that continued into following years, concluding that our K.D. decision was distinguishable based on the facts that the district court identified. On appeal to this court, the DOE does not challenge the first three conclusions by the hearings officer identified above, all of which were affirmed by the district court. It is, therefore, no longer in dispute regarding the 2010–11 school SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 9 year that (1) DOE breached a procedural requirement of the IDEA by predetermining Sam’s placement and failing to allow for significant parental input in the IEP process, (2) the ILC placement proposed by DOE was inappropriate for Sam, and (3) the Loveland program in which Sam was enrolled by his Parents was appropriate. DOE appeals only the decision by the district court that the Parents are entitled to reimbursement because the Loveland placement for school year 2010–11 was not “unilateral” and thus that the Parents’ request was not untimely. After the district court rendered its decision on the merits, including the Parents’ entitlement to reimbursement, Sam, through his Parents, brought a motion in the district court for an award of attorney’s fees and costs. Adopting a calculation made in findings and recommendation by a magistrate judge, the district court awarded fees in the amount of $77,226.93. The calculation was primarily based on 255.05 billable hours compensated at a rate of $285 per hour, with small amounts added for work done by a paralegal and for Hawaii general excise tax. Sam’s attorney sought a higher hourly rate of $375 per hour and supported that request with declarations by five Hawaii attorneys stating their opinions that such a rate was reasonable for the attorney in question. The district court noted those declarations but concluded, based on the court’s familiarity with the prevailing rates in the community, that the requested hourly rate was excessive and that an hourly rate of $285 was reasonable. The court awarded fees based on that reduced hourly rate. Sam appeals the amount of fees awarded, raising only the issue of the reduced hourly rate. 10 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. II. Reimbursement Claim In a case under IDEA, this court reviews a district court’s findings of fact for clear error. L.M. v. Capistrano Unified Sch. Dist., 556 F.3d 900, 908 (9th Cir. 2009). We review questions of law and mixed questions of fact and law de novo, unless the mixed question is primarily factual. Amanda J. ex. rel. Annette J. v. Clark Cnty. Sch. Dist., 267 F.3d 877, 887 (9th Cir. 2001). The IDEA aims to provide “all children with disabilities . . . a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employment, and independent living[.]” 20 U.S.C. § 1400(d)(1)(A). If parents believe their child is not receiving a free appropriate public education (commonly referred to as a “FAPE”), they may be able to place the child in a private program and then seek reimbursement from the public school district. 20 U.S.C. § 1412(a)(10)(C)(ii); 34 C.F.R. § 300.148(c). The federal statute provides that the parent must seek a hearing within two years of an alleged denial of a FAPE, but permits states to set a different limitations period. 20 U.S.C. § 1415(b)(6)(B), (f)(3)(C). Under Haw. Rev. Stat. § 302A–443(a), parents in Hawaii have two years to initiate the process by requesting a due process hearing, but a filing is required “within one hundred and eighty days of a unilateral special education placement, where the request is for reimbursement of the costs of the placement.” The statute does not define “unilateral special education placement.” There are no reported Hawaii state court decisions interpreting this provision. SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 11 Our court considered the meaning of “unilateral special education placement” as used in Section 302A–443 in K.D., 665 F.3d at 1110. We adopted a definition previously set forth in a District of Hawaii decision and held that “a unilateral special education placement occurs when one party unilaterally (i.e., without consent or agreement of the other party) enrolls the student in a special education program.” Id. at 1122 (quoting Makiko D. v. Hawaii, No. 06-cv-00189, 2007 WL 1153811, at *7 (D. Haw. Apr. 17, 2007)) (internal quotation marks omitted). In K.D., a student’s family reached a settlement agreement in March 2007 with the Hawaii DOE under which the DOE agreed to pay for the student’s private tuition, by coincidence also at Loveland Academy, for the then-current 2006–07 school year. The agreement provided that the student was to participate in planning for transition to a public school for the following school year, if deemed appropriate. Before that next school year began, the DOE presented a IEP providing for placement in a public school. The family did not respond and re-enrolled the student in the Loveland program. After a due process hearing, the administrative hearings officer concluded that the public school placement proposed by the DOE would have provided a FAPE. The hearings officer also dismissed the family’s claims for private program tuition reimbursement for the 2007–08 year. Although the family argued that it was entitled to maintain the placement at Loveland as a “stay put” placement during the pendency of litigation, the request was rejected as untimely because the placement at Loveland for the 2007–08 year was found to have been “unilateral” and the request for reimbursement was made over a year later. 12 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. Our court affirmed that decision. In particular, we agreed that the placement for 2007–08 was properly described as “unilateral.” We noted that the March 2007 settlement agreement never called for “placement” at Loveland and only required tuition reimbursement for the prior year. Id. at 1119. The agreement also referenced at least the possibility that the student would transition to a public school for the next year. Id. We observed that the “settlement agreement specified in several places that it applied only to the 2006–07 school year[.]” Id. at 1120. The decision to enroll the student at Loveland the following year was, therefore, a “unilateral” decision by the family. “The enrollment thus occurred without consent or agreement of the other party.” Id. at 1122 (internal quotation marks omitted). The DOE points to K.D. and argues that this case is the same. We disagree, however, and conclude that this case is different in at least one important respect. In K.D. the settlement agreement explicitly contemplated a public school placement for the following year, and the DOE proposed such a placement before the next school year began. In the current case, the DOE did not present an IEP providing for a public school placement for the 2010–11 school year until January 2011, at least halfway through that year. The DOE did not make clear that its position was final until it sent a letter to that effect in March 2011, after most of the 2010–11 school year had already gone by. Prior to that time, Sam was still attending the Loveland program, as the DOE necessarily knew. The DOE had not proposed anything else, and it presumably did not intend that Sam would receive no educational services in the meantime. In those circumstances, it does not appear to us that the placement at Loveland for the 2010–11 school year was “without consent SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 13 or agreement” of DOE, as the term “unilateral” was defined in K.D. Agreement may be tacit. The inclusion of “consent” as an alternative to “agreement” in K.D.’s definition of “unilateral” further suggests that the manifestation of agreement need not be explicit. See generally Sierra Club v. Castle & Cooke Homes Hawaii, Inc., 320 P.3d 849, 861 (Haw. 2013) (recognizing “implied consent” as “[c]onsent inferred from one’s conduct rather than from one’s direct expression”) (quoting Black’s Law Dictionary 346 (9th ed. 2009)). Consent may be indicated by silence or inaction where such silence or inaction manifests a willingness for the conduct in question to happen. See generally Restatement (Second) of Torts § 892(1) (1965) (“(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor. (2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.”); Restatement (First) of Property § 516 cmt. c (1944) (“Manifestation of consent. The consent from which a license arises may be manifested by conduct of any kind. The manifestation may consist in the use of language, or in conduct other than the use of language. Such conduct may consist of acts indicative of a consent by the actor to the use of his land by another, or it may consist in failure to take reasonable action when inaction may reasonably lead to an inference of consent.”). Here, the DOE knew that Sam was enrolled at Loveland for the 2010–11 school year. By waiting so long into that school year to propose a different placement, the DOE tacitly consented to his enrollment at Loveland Academy. It is true that the hearings officer found that the Parents did not prove 14 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. that the DOE was responsible for the failure to have an IEP for a public school program in place by the time that the 2010–11 school year began. But that does not change the fact that the DOE knew that Sam was going to be enrolled in Loveland in the meantime and necessarily consented to that enrollment for that school year because it had not offered another alternative. That did not mean that the DOE was precluded from proposing something different thereafter. Had it proposed an appropriate public school placement, it might have been able to maintain the position that Sam’s family should not be entitled to reimbursement for the time following the proposal of a proper public placement. But the hearings officer and the district court both concluded that the DOE’s proposed placement was not appropriate and that the Loveland program was, findings that the DOE no longer disputes. For now, the only question is whether the placement at Loveland for the 2010–11 school year was “unilateral.” We agree with the district court that it was not, and as a result, the 180-day limitations period did not apply. Reimbursement cannot be denied on that basis.2 Sam’s family is entitled to reimbursement for the 2010–11 school year. We affirm the decision of the district court to that effect. 2 The district court identified other reasons for reaching the conclusion that the placement was not unilateral, but we do not need to consider those other reasons. SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 15 III. Attorney’s Fees Sam appeals the amount of attorney’s fees awarded by the district court, contending that the fees should have be calculated at a rate of $375 per hour rather than at the $285 rate used by the district court. We review a district court’s determination of whether to grant attorney’s fees in an IDEA case for an abuse of discretion. Oscar v. Alaska Dept. Of Educ. & Early Dev., 541 F.3d 978, 980–81 (9th Cir. 2008). We review the district court’s factual determinations for clear error and the legal analysis related to the fee determination de novo. Id. The district court did not abuse its discretion in using an hourly rate of $285. In support of his position, Sam’s attorney presented to the district court declarations from other Hawaii attorneys who undertake IDEA or other civil rights cases on behalf of plaintiffs, stating their opinions that the requested rate of $375 per hour, in light of the attorney’s training and experience, was reasonable. It was telling, however, that none of the declarations stated that any of the attorneys had actually been paid fees at that $375 rate for work of this type, or that any attorney of similar training and experience had. Reasonable attorney’s fees are to be calculated according to “the prevailing market rates in the relevant community.” Van Skike v. Dir., Office of Workers Compensation Programs, 557 F.3d 1041, 1046 (9th Cir. 2009) (quoting Blum v. Stenson, 465 U.S. 886, 895 (1984)). The burden is on the fee applicant “to produce satisfactory evidence” of the prevailing market rates. Id. (quoting Blum, 465 U.S. at 896 n. 11). District courts may consider the fees awarded by 16 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. others in the same locality for similar cases. Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008); see also Nat’l Ass’n of Concerned Veterans v. Sec’y of Def., 675 F.2d 1319, 1325 (D.C. Cir. 1982) (“Recent fees awarded by the courts or through settlement to attorneys of comparable reputation and experience performing similar work are also useful guides in setting an appropriate rate.”). District courts may also use their “own knowledge of customary rates and their experience concerning reasonable and proper fees.” Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011). That other attorneys may think that a given rate is “reasonable” does not necessarily say what the prevailing market rates actually are. That is especially true when the opinion are expressed by attorneys whose own professional interests might motivate them to favor higher rates. The D.C. Circuit has expressed skepticism about the value of declarations from attorneys that provide only conclusory statements as to the prevailing rates or whether a given hourly rate is reasonable. See Nat’l Ass’n of Concerned Veterans, 675 F.2d at 1325–26 (“The District Court’s . . . inquiry is aided little by an affidavit which just offers one attorney’s conclusory and general opinion on what [the relevant market] rate is. Nor is it helpful if the affiant simply states that he is familiar with the attorney and the litigation and that he thinks the fee request is reasonable.”). In concluding that the requested hourly rate was excessive and that an hourly rate of $285 was reasonable, the magistrate judge noted the court’s familiarity with the prevailing rates in the community and cited specific fee awards in other cases in the district. The district court accepted that recommendation. Nothing in the record gives us reason to doubt the court’s assessment. SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 17 Sam’s attorney also argues that the district court improperly followed a policy to “hold the line” by adopting a policy to limit fee awards to a certain rate for similar cases, citing our decision in Moreno, 534 F.3d at 1115. The district court rejected a similar attack on the recommendation of the magistrate judge, noting that nothing in the recommendation indicated an effort to “hold the line.” We agree. Indeed, we note that the $285 hourly rate awarded by the district court was, as the magistrate judge’s report described, higher than the $275 rate previously awarded by the court to Sam’s attorney in a different case. In addition, the magistrate judge’s report discussed an even higher hourly rate, $300 per hour, that had been awarded to another attorney in IDEA cases, noting that the attorney awarded that higher rate had many years more experience than Sam’s attorney. That discussion contradicts the claim that the court applied a policy to “hold the line.” We affirm the fee award entered by the district court. IV. Conclusion For the reasons stated above, we affirm both the award of reimbursement in No. 13-15486 and the award of attorney’s fees in No. 13-15452. Each side to bear its own costs. AFFIRMED. 18 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. RAWLINSON, Circuit Judge, concurring in part and dissenting in part: I agree with the majority that the district court acted within its discretion in determining a reasonable hourly rate for the calculation of attorney’s fees in this case. However, I respectfully disagree that the hotly disputed placement at Loveland Academy somehow morphed from a unilateral placement to a bilateral placement due to implied consent on the part of the State Department of Education. Initially, it is important to note that the State Hearings Officer determined that the private placement for the 2010–2011 school year was a unilateral placement. Thus, the adjudicator in the case with the closest nexus to the case did not give “implied consent” to the placement. Relying on K.D. v. Department of Education, 665 F.3d 1110 (9th Cir. 2011), the same case cited by the majority, the State Hearings Officer determined that under the settlement agreement between the State Department of Education and Sam K.’s parents, the State agreed to pay tuition at Loveland only through the end of the 2009–2010 school year. That determination is undisputed. As the hearings officer also noted, the settlement agreement contained no provision regarding placement for Sam K. As the hearings officer pointed out, the settlement agreement was “not a conclusion from a detailed evaluation that determined private placement to be the appropriate educational institution for Student under the [Act]. . . .” (emphasis added). SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 19 The hearings officer’s reasoning is supported by our analysis in K.D. In the context of a “stay put”1 scenario, we held that before a favorable administrative or judicial decision can convert a unilateral placement into an agreed- upon bilateral placement, the favorable decision “must expressly find that the private placement was appropriate.” 665 F.3d at 1118 (emphasis added). We expressly distinguished between placement of a child in an educational setting, and reimbursement of private school tuition. Quoting Zvi D. v. Ambach, 694 F.2d 904, 908 (2d Cir. 1982), we emphasized that “payment and placement are two different matters.” Id. at 1119 (alteration omitted). We contrasted the settlement agreement in Zvi D., where the child was “never placed in the private school—the Board of Education merely agreed to pay for his tuition . . .”, with Bayonne Board of Education v. R.S., 954 F. Supp. 933 (D.N.J. 1997), where the settlement agreement “actually placed the student” rather than merely agreeing to reimburse tuition. Id. (internal quotation marks omitted). We likened the settlement agreement in K.D. to that in Zvi D. as opposed to the one in Bayonne. We observed that “K.D.’s settlement agreement never called for ‘placement,’ and only required tuition reimbursement.” Id. We clarified that the distinction between education placement and tuition reimbursement “is not an insignificant semantic difference.” Id. We explained that simply because the State agrees to pay tuition at a private school for a discrete period of time, “it does not follow that, by doing so, the [State] had conducted the detailed evaluation required to determine whether Loveland was the proper educational institution for K.D. under the [Act].” Id. Indeed, we intimated that 1 The “stay put” provision of the Individuals with Disabilities Education Act (Act) requires the continuation of a “then-current educational placement.” 20 U.S.C. § 1415(j). 20 SAM K. V. STATE OF HAWAII DEP’T OF EDUC. Loveland was not an appropriate educational placement under the Act. See id. at 1128 (“K.D.’s Loveland placement does not square with one of the main purposes behind [the Act]—to combat the apparently widespread practice of relegating handicapped children to private institutions . . .”) (citation and internal quotation marks omitted) (emphasis added). Because the settlement agreement did not place K.D. at Loveland and because the State only agreed to pay tuition for a finite time period, we concluded that the State “never affirmatively agreed to place K.D. at Loveland.” Id. at 1121. In turn, Loveland never became K.D.’s stay put placement and “the settlement agreement did not operate to change the placement from unilateral to bilateral.” Id. at 1122. In a similar vein, we concluded in Clovis Unified School District v. California Office of Administrative Hearings, 903 F.2d 635, 641 (9th Cir. 1990), “that once the State educational agency decided that the parents’ placement was the appropriate placement, it became the [stay put educational location] . . .” (citation omitted) (emphasis added); see also School Committee of the Town of Burlington, Mass. v. Department of Education of Mass., 471 U.S. 359, 369–70 (1985) (concluding that “placement in private schools at public expense” is appropriate under the Act “where a court determines that a private placement . . . was proper . . . and that an [individualized education program] calling for placement in a public school was inappropriate”) (emphasis added). The flaw in the district court’s opinion that is repeated by the majority is that despite the fact that the settlement agreement did not mention placement as required by all the SAM K. V. STATE OF HAWAII DEP’T OF EDUC. 21 cases that have addressed this issue, the district court conflated the reimbursement agreement into a bilateral placement agreement. None of our precedent supports this conflated analysis. I respectfully dissent.	{ "pile_set_name": "FreeLaw" }
18 Cal.Rptr.3d 215 (2004) 121 Cal.App.4th 1401 Carl W. BUCKHORN, Plaintiff and Respondent, v. ST. JUDE HERITAGE MEDICAL GROUP et al., Defendants and Appellants. No. G032748. Court of Appeal, Fourth District. August 31, 2004. 216 Paul, Hastings, Janofsky & Walker, Peter M. Stone, Daniel M. Glassman and Michael J. Rozak, Costa Mesa, for Defendant and Appellant St. Jude Hospital Yorba Linda. Sheppard, Mullin, Richter & Hampton, William V. Whelen and Karin Dougan Vogel, San Diego, for Defendant and Appellant St. Jude Heritage Medical Group. Law Offices of Eric Y. Nishizawa, Eric Y. Nishizawa; Law Offices of Ricardo A. Torres II and Ricardo A. Torres II, Los Angeles, for Plaintiff and Respondent. OPINION ARONSON, J. Defendants St. Jude Heritage Medical Group (Medical Group) and St. Jude Heritage Health Foundation (Health Foundation) appeal from an order denying their motions to compel arbitration in a wrongful termination action filed by Carl Buckhorn, a physician formerly employed by the Medical Group. Buckhorn also sued defendants for various torts allegedly committed after he was discharged, including defamation and interference with prospective economic advantage. Defendants contend Buckhorn is subject to the arbitration clause in his employment agreement, which provides for mandatory arbitration of disputes "concerning the enforcement or the interpretation of any provisions of this Agreement." Buckhorn argues the arbitration clause does not apply because the defendants' tortious conduct occurred after he was terminated. We reject Buckhorn's temporal test and conclude his tort claims fall within the scope of the arbitration clause because they stem from the contractual relationship between the parties. Because we conclude the order denying arbitration under the employment agreement was erroneous, we do not reach defendants' second argument that Buckhorn, as an employee and part owner of the Medical Group, was bound by a separate arbitration provision contained in a Professional Services Agreement (PSA) between the Medical Group and the Health Foundation. Accordingly, we reverse. I FACTS AND PROCEDURAL BACKGROUND In May 1996, Buckhorn, a board certified internist, entered into a 45-page employment agreement with the Medical Group. The contract contained a binding arbitration clause, operable "[i]n the event that a dispute arises between the parties concerning the enforcement or the interpretation of any provisions of this Agreement. ..."[1] (Italics added.) Paragraph 33 of the employment agreement referred to a PSA between the Medical Group and the Health Foundation. The PSA established a "medical practice foundation relationship" between the parties (see Health & Saf.Code, § 1206, subd. (a)), whereby the Health Foundation would provide healthcare facilities and administrative 217 support in exchange for medical services rendered by the Medical Group's physicians. Under paragraph 33, the Health Foundation was named as a third party beneficiary to the employment agreement between Buckhorn and the Medical Group. In July 1997, the Medical Group and the Health Foundation amended the PSA. As pertinent here, paragraph 17.10 provided for mandatory arbitration of "[a]ny dispute between the parties." In paragraph 17.15, the parties excluded potential third party beneficiary claims under the PSA as follows: "No Third Party Beneficiaries. This Agreement has been made and entered into solely for the benefit of [Health Foundation] and [Medical Group], and their respective permitted successors and assigns. Nothing in this Agreement is intended to confer any rights or remedies under or by reason of this Agreement on any persons or entities who are not [parties] to this Agreement. Nothing in this Agreement is intended to relieve or discharge the obligation or liability of any third persons to any party to this Agreement." The Medical Group terminated Buckhorn's employment in September 2001, and in December 2002, he filed a complaint for fraud in the inducement, wrongful termination, defamation, intentional and negligent interference with prospective business advantage, unfair competition, constructive trust, and accounting. According to Buckhorn's complaint, he accepted a position with the Medical Group when he was promised his initial employment contract would be replaced later with a compensation formula similar to other partners and shareholders. He was assured he would be permitted to practice medicine "the way `he practiced medicine,'" which apparently included alternative therapies. Relying on these promises, he brought patients into the Medical Group and declined to seek immediate compensation for doing so. Defendants led him to believe they would fulfill their promises. He was placed into a "management system where it appeared to him that he was a partner/shareholder/owner," since he managed his own 401(k) retirement account, and funds were withheld from his paycheck for "administrative purposes." In April 1997, he was given "1 share" in the Medical Group and received another share in April 1998. Buckhorn's relationship with the Medical Group deteriorated over time, and on the evening of September 11, 2001, he was terminated "without cause." The Medical Group subsequently published a letter to Buckhorn's patients explaining that Buckhorn no longer was with the Medical Group, and offered to direct patients to other Medical Group physicians. Buckhorn also alleged that patients were alternatively informed Buckhorn left the group because of marital problems, mental problems, loss of his insurance coverage, and that he was no longer practicing medicine, or that he had "`just disappeared.'" Relying on both arbitration clauses, defendants Medical Group and Health Foundation moved to compel arbitration. The Medical Group invoked its right to arbitrate as a party to their employment agreement with Buckhorn, and Health Foundation asserted it was a third party beneficiary of the same contract. As for the PSA, both entities claimed Buckhorn was subject to the arbitration clause as an employee and part owner of the Medical Group. Buckhorn opposed the motion, arguing the right to arbitrate had been waived when the defendants answered the complaint and failed to make a written 218 demand.[2] He also claimed the PSA arbitration clause did not apply because he was a nonsignatory, and reliance on the PSA "would include the more costly JAMS service" and leave open the possibility he would have to bear opposing costs and fees in violation of Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 99-113, 99 Cal.Rptr.2d 745, 6 P.3d 669. Neither of these arguments are raised on appeal. Finally, he asserted the arbitration clause in the employment agreement only governed "contract related actions," i.e., his fraudulent inducement and wrongful termination causes of action. Consequently, he argued his tort causes of action were not covered because they were based on damage to his reputation occurring after his wrongful termination. He conceded Health Foundation was a third party beneficiary and entitled to invoke the arbitration clause in the employment agreement. The trial court denied the motion to compel arbitration in August 2003. Focusing solely on the PSA, the court concluded defendants could not invoke the arbitration clause because Buckhorn was not a party to the contract and was specifically excluded as a third party beneficiary. The trial court did not refer to the arbitration clause in the employment agreement in its final order. Defendants timely filed an appeal from the denial of their petition to compel arbitration. (Code Civ. Proc., § 1294, subd. (a); Coast Plaza Doctors Hosp. v. Blue Cross of California (2000) 83 Cal.App.4th 677, 683, 99 Cal.Rptr.2d 809 (Coast Plaza).) II DISCUSSION A. Standard of Review Determining the validity of an arbitration clause, like the interpretation of any contract, is a question of law unless the issue turns on the credibility of extrinsic evidence. (24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, 1212, 78 Cal.Rptr.2d 533.) No extrinsic evidence was introduced below, therefore, our review is de novo. (Maggio v. Windward Capital Management Co. (2000) 80 Cal.App.4th 1210, 1214, 96 Cal.Rptr.2d 168.) The burden is on "the party opposing arbitration to demonstrate that an arbitration clause cannot be interpreted to require arbitration of the dispute." (Coast Plaza, supra, 83 Cal.App.4th at pp. 686-687, 99 Cal.Rptr.2d 809.) Any doubt on the issue must be resolved in favor of arbitration. (Id. at p. 687, 99 Cal.Rptr.2d 809.) B. The Employment Agreement We first turn to the employment contract between Buckhorn and the Medical Group. That agreement provided for arbitration "[i]n the event that a dispute arises between the parties concerning the enforcement or the interpretation of any provisions of this Agreement...." The Medical Group and Health Foundation contend this provision required Buckhorn to arbitrate all claims raised in his complaint. Buckhorn argues the scope of the arbitration clause is too narrow. Vianna v. Doctors' Management Co. (1994) 27 Cal.App.4th 1186, 33 Cal.Rptr.2d 188 (Vianna), is dispositive. There, the 219 employment agreement required arbitration of "`[a]ny dispute of any kind whatsoever, regarding the meaning, interpretation or enforcement of the provisions of this Agreement....'" (Id. at p. 1188, 33 Cal.Rptr.2d 188.) The reviewing court concluded the arbitration provision was broad enough to cover the employee's claims for wrongful termination in violation of public policy, breach of the implied covenant of good faith and fair dealing, negligent infliction of emotional distress, and defamation. The court found plaintiff's tort claims were "rooted in the employment relationship created by [the] contract." (Id. at p. 1190, 33 Cal.Rptr.2d 188, italics added.) Citing the strong public policy in favor of arbitration, the court explained that "[i]t cannot be said that the arbitration clause clearly does not apply to those additional disputes, and the doubt must be resolved in favor of arbitration." (Ibid.) Vianna relied on Merrick v. Writers Guild of America, West, Inc. (1982) 130 Cal.App.3d 212, 181 Cal.Rptr. 530. There, the Court of Appeal concluded that a contract provision requiring arbitration of "[a]ny dispute ... concerning the interpretation of any of the terms of [the contract] and the application and effect of such terms" encompassed tort claims stemming from the parties' contractual relationship. (Id. at p. 217, 181 Cal.Rptr. 530.) Thus, plaintiff's malicious prosecution and abuse of process claims were subject to arbitration because they were not "wholly independent" of the contract between the parties. (Id. at p. 219, 181 Cal.Rptr. 530, see also Tate v. Saratoga Savings & Loan Assn. (1989) 216 Cal.App.3d 843, 855, 265 Cal.Rptr. 440, disapproved on another ground in Advanced Micro Devices, Inc. v. Intel Corp. (1994) 9 Cal.4th 362, 381, 36 Cal.Rptr.2d 581, 885 P.2d 994 [arbitration clause covering "`any controversy aris[ing] between the parties hereto concerning this Joint Venture ... or the rights and duties of any party under this Agreement'" applied to tort claims having their roots in the contractual relationship between the parties].) Buckhorn argues Vianna is distinguishable because the tort claims surfaced during the employment relationship, while Buckhorn's tort claims for defamation and interference with prospective business advantage are based on events occurring after his termination. This analysis is incorrectly "premised on the assumption that if one is not suing on a claim that is based upon the contract, but rather upon the alleged tortious misconduct of the other contracting party, then the contract's requirement of an arbitration process can be ignored. This is simply wrong and actually amounts more to wishful thinking than careful analysis." (Coast Plaza, supra, 83 Cal.App.4th at p. 685, 99 Cal.Rptr.2d 809.) Here, Buckhorn's temporal test misconstrues the applicable standard. The issue turns on whether the tort claims are "rooted" in the contractual relationship between the parties, not when they occurred. For example, Buckhorn's claims for intentional and negligent interference with prospective economic advantage were based on an expectation of future income from his patients. But Buckhorn's patients consulted him in his capacity as an employee of the Medical Group and therefore the employment agreement would inform the extent of any economic interest. Because Buckhorn failed to demonstrate his tort claims were "wholly independent" of the employment agreement, and any doubts must be resolved in favor of arbitration (Vianna, supra, 27 Cal.App.4th at p. 1189, 33 Cal.Rptr.2d 188), we conclude all of Buckhorn's claims must be submitted to arbitration. Medical Group and Health Foundation alternatively asserted a right to arbitrate *220 under the PSA. Because defendants obtain the relief they requested under the employment agreement, resolution of this issue is moot. III DISPOSITION The order is reversed and the case remanded with directions to grant the petition compelling arbitration under the employment agreement. Defendants are awarded costs on appeal. WE CONCUR: O'LEARY, Acting P.J., and FYBEL, J. NOTES [1] The arbitration clause reads: "38. Binding Arbitration. In the event that a dispute arises between the parties concerning the enforcement or the interpretation of any provisions of this Agreement, such dispute shall be submitted to arbitration for resolution. Such arbitration shall be final and binding, and shall be conducted in Orange County, California, before an arbitrator selected from the Commercial Panel of the American Arbitration Association, and shall be conducted in accordance with the rules of the American Arbitration Association then in effect, except that the parties shall be entitled to the same discovery rights normally available to parties involved in civil suits in Superior Court in Orange County." [2] This argument is without merit. "The moving party's mere participation in litigation is not enough" to preclude arbitration (Davis v. Continental Airlines, Inc. (1997) 59 Cal.App.4th 205, 212, 69 Cal.Rptr.2d 79), and a respondent may invoke arbitration either in its answer or by a petition to compel. (See Brock v. Kaiser Foundation Hospitals (1992) 10 Cal.App.4th 1790, 1795, 13 Cal.Rptr.2d 678.)	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT October 22, 2003 Charles R. Fulbruge III Clerk No. 03-40497 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus DAMIAN ARTURO OCHOA-HERNANDEZ, also known as Arturo Hernandez-Hernandez, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-02-CR-757-1 -------------------- Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges. PER CURIAM:* Damian Arturo Ochoa-Hernandez appeals the sentence imposed following his guilty plea conviction of being found in the United States after deportation/removal in violation of 8 U.S.C. § 1326. Ochoa-Hernandez complains that his sentence was improperly enhanced pursuant to 8 U.S.C. § 1326(b) based on a prior conviction. He argues that the sentencing provision is unconstitutional. Ochoa-Hernandez thus contends that his * 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. 03-40497 -2- sentence should not exceed the maximum terms of imprisonment and supervised release prescribed in 8 U.S.C. § 1326(a). In Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), the Supreme Court held that the enhanced penalties in 8 U.S.C. § 1326(b) are sentencing provisions, not elements of separate offenses. The Court further held that the sentencing provisions do not violate the Due Process Clause. Id. at 239-47. Ochoa-Hernandez acknowledges that his argument is foreclosed by Almendarez-Torres, but asserts that the decision has been cast into doubt by Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). He seeks to preserve his argument for further review. Apprendi did not overrule Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). This court must follow Almendarez-Torres “unless and until the Supreme Court itself determines to overrule it.” Dabeit, 231 F.3d at 984 (internal quotation marks and citation omitted). The judgment of the district court is AFFIRMED. The Government has moved for a summary affirmance in lieu of filing an appellee’s brief. In its motion, the Government asks that an appellee’s brief not be required. The motion is GRANTED. AFFIRMED; MOTION GRANTED.	{ "pile_set_name": "FreeLaw" }
984 F.Supp. 22 (1997) SHERATON OPERATING CORP., as agent for Woodley Road Associates, Inc., Plaintiff, v. JUST CORPORATE TRAVEL and Cynthia Grim d/b/a Just Corporate Travel, Defendant. No. 97-1279(PJA). United States District Court, District of Columbia. November 3, 1997. 23 Michael Alan Hordell, Washington, DC, for Plaintiff. William Howard Schladt, Gaithersburg, MD, Alexander Anolik, Marilyn D. Weinstein, San Francisco, CA, for Defendant. MEMORANDUM ORDER ATTRIDGE, United States Magistrate Judge. This matter is before the Court on defendant's, Just Corporate Travel's, motion to dismiss for lack of diversity jurisdiction or, in the alternative, transfer of venue to the Northern District of California [# 16]. Pursuant to 28 U.S.C. § 636(C), the parties consented to proceed before a United States Magistrate Judge for all purposes. Upon consideration of the motion, opposition, reply[1] and the applicable law, and for the 24 reasons explained below, the Court concludes that jurisdiction as well a proper venue is found in the District Court for the District of Columbia. Diversity Jurisdiction28 U.S.C. § 1332 Pursuant to 28 U.S.C. § 1332, this Court has original jurisdiction of civil matters where the controversy exists among "citizens of different states" and the amount in controversy exceeds $75,000. For purposes of this statute, a corporation is a citizen of any state in which it is incorporated and of the State where it has its principal place of business. 28 U.S.C. § 1332(c)(1). In its motion to dismiss, Just Corporate argues that there is not complete diversity of citizenship pursuant to 28 U.S.C. § 1332. Specifically, it argues that the Woodley Road Associates' relationship to this action is manufactured for the purpose of creating diversity, and that the 31 properties the Sheraton Operating Corporation [Sheraton] owns in California, the state of citizenship of the defendant, destroys diversity. The Sheraton, in opposing the motion, explained the relationship between the Sheraton Operating Corporation (acting as an agent for) and Woodley Road Associates (which has been assigned the rights of the owner [pl's opp., exh. C]). It further identified the corporate headquarters or "nerve center" for the Sheraton, a Delaware Corporation, as Boston, Massachusetts; thus, the Sheraton is not a citizen of California for the purposes of this action.[2] Further, the Sheraton points to the forum selection clause, as well as the business conducted by Just Corporate in Washington, D.C., as the basis for which this action was brought in the District Court for the District of Columbia. In reply to the Sheraton's opposition, Just Corporate no longer disputes the plaintiff's showing of diversity of citizenship. Instead, the defendant resorts to an entirely new argumentthat diversity jurisdiction is defeated by the amount in controversy. The plaintiff's complaint alleges a loss in hotel income of $133,355.00well over the $75,000 jurisdictional minimum. Just Corporate disputes this amount by asserting the plaintiff failed to mitigate its damages, that the contract is ambiguous and unconscionable, and that the liquidated damages provision will fail. A plaintiff, however, "does not have to prove exact damages when confronted at the outset with the defendant's motion to dismiss for want of amount in controversy; it is sufficient if the plaintiff can show that the case can go for more than the monetary minimum." 28 U.S.C. § 1332, Commentary on 1988 Revision (emphasis in original). In order for this Court to dismiss this action based on the amount in controversy, it "must be able to say, after crediting all of the plaintiff's factual allegations under the so-called well-pleaded complaint rule, that a verdict in excess of the jurisdictional minimum (now [$75,000]) would have to be set aside as a matter of law." Id. The Court cannot make such a finding, and to allow the defendant's arguments to prevail at this stage would in essence be a premature judgment on the merits, which the Court declines to make. In sum, the plaintiff has satisfied section 1332(a) and (c), thus original jurisdiction properly lies in this Court. Forum Non Conveniens 28 U.S.C. § 1404(a) In its motion and reply, Just Corporate argues that, in the event diversity jurisdiction 25 is found, that the case should be transferred to the Northern District of California in the interest of justice and for the convenience of the parties and witnesses. A district court may transfer a civil action to any other district "where it might have been brought." 28 U.S.C. § 1404(a). As established above, complete diversity exists among the parties who are citizens of California, District of Columbia, and Delaware. As the defendant is a citizen of California, the diversity action could have been brought in the Northern District of California. Since diversity and subject matter jurisdiction exist in both the proposed transferor and transferee courts, the Court must consider whether transfer would serve "the convenience of the parties and witnesses" and be "in the interest of justice." 28 U.S.C. § 1404(a). "The moving party has the burden of showing that the convenience of the parties and witnesses favors transfer ... ordinarily, the `plaintiff's choice of a proper forum is a paramount consideration in any determination of a transfer request.'" Kirschner Brothers Oil, Inc. v. Pannill, 697 F.Supp. 804, 806 (D.Del.1988)(citing Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970)); accord Armco Steel Co. v. CSX Corp., 790 F.Supp. 311, 323 (D.D.C.1991)(citing Harris v. Republic Airlines, Inc., 699 F.Supp. 961, 963 (D.D.C.1988)). District courts retain broad discretion in balancing the asserted conveniences and fairness to the parties. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955); Carr v. Bio-Medical Applications of Washington, Inc., 366 A.2d 1089, 1091 (D.C.1976). Opposing transfer of venue, Sheraton referred the Court to the forum selection clause in the disputed contract by which Just Corporate consented to proceed in "any court of the competent jurisdiction" in the District of Columbia, the situs of the hotel. The contract clause provides in pertinent part: Any controversy, claim or dispute arising out of or relating to this Contract shall, at the option of the Hotel, be settled in the City in which the Hotel is located ... through an action brought in any court of the competent jurisdiction in the State in which the Hotel is located for trial and determination by such court sitting without a jury. In connection with any such litigation, including appellate proceedings, the prevailing party shall be entitled to recover reasonable attorneys fees and costs. By your execution of this Contract you hereby consent to the jurisdiction of a court of competent jurisdiction in the State in which the Hotel in located and to service of process outside the State in which the Hotel is located pursuant to the applicable requirements of such court in any manner so submitted to it and you expressly waive the right to a trial by jury ... [Pl's opp., exh. A, pp. 7-8 (emphasis added)]. The contract was executed on January 10, 1996. [Id. at 9]. Although instructive, the forum selection clause is not necessarily controlling. This Court, quoting leading commentators, has noted: A contractual provision specifying the forum for any litigation arising out of the contract ... cannot be decisive on a motion to transfer. `Congress set down in § 1404(a) the factors it thought should be decisive on a motion for transfer. Only one of thesethe convenience of the parties is properly within the power of the parties themselves to affect by a forumselection clause. The other factorsthe convenience of the witnesses and the interest of justiceare third party or public interests that must be weighed by the district court; they cannot be automatically outweighed by the existence of a purely private agreement between the parties.' Turner & Newall, PLC v. Canadian Universal Ins. Co., 652 F.Supp. 1308, 1311 (D.D.C.1987)(quoting C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3847, quoting Plum Tree, Inc. v. Stockment, 488 F.2d 754, 757-58 (3d Cir.1973) (citation corrected)). Thus, although section 1404(a) "encompasses consideration of the parties' private expression of their venue preferences," Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29-30, 108 S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988), discretion remains with 26 the Court "to adjudicate motions for transfer according to an `individualized, case-by-case consideration of convenience and fairness.'" Id. (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)). While taking into account the forum selection clause in the instant dispute, the Court must also consider other factors including, but not limited to, "`the convenience of the witnesses of plaintiff and defendant; ease of access to sources of proof; availability of compulsory process to compel the attendance of unwilling witnesses; the amount of expense for willing witnesses; the relative congestion of the calendars of potential transferee and transferor courts; and other practical aspect [sic] of expeditiously and conveniently conducting a trial.'" Armco Steel Co. v. CSX Corp., 790 F.Supp. at 323-324 (citing SEC v. Page Airways, Inc., 464 F.Supp. 461, 463 (D.D.C.1978)). First addressing the respective conveniences/inconveniences of the parties, the Court notes that, "[e]ven if a transfer would significantly benefit [the][d]efendant[], the Court will not grant the motion if the result merely would shift the inconvenience from [d]efendant[] to [plaintiff]; the net convenience must increase." Kirschner Brothers, 697 F.Supp. at 807. In this action, the defendant, by affidavit of co-owner of Just Corporate Cynthia Grim, argues that her small company of eight employees located exclusively in Santa Rosa, California, will suffer an enormous financial burden to defend this action on the opposite coastboth in travel expenses and in the disruption of its business activities. Just Corporate further argues that the District Court for the District of Columbia does not have subpoena power over its key witness, Ms. Mary Moran, who is the signatory of the contract in dispute and who is no longer employed by Just Corporate. On information and belief, Ms. Moran is within the subpoena power of the Northern District of California. [Grim affidavit, ¶ 5]. Significantly, however, the defendant has not suggested that Ms. Moran is an unwilling witness. Finally, Just Corporate argues that the dispute has minimal connection with the District of Columbia. This argument has no merit. The Sheraton Hotel is located in the District of Columbia. The defendant sought out the Sheraton in the District of Columbia. Just Corporate concedes that both Ms. Grim and Ms. Moran traveled to Washington in May 1996 to visit the Sheraton.[3] In sum, Just Corporate had very deliberate contacts with the District of Columbia. Accord Reiman v. First Union Real Estate and Mortgage Investments, 614 F.Supp. 255, 258 (D.D.C.1985)("[W]here a non-resident had solicited the business relationship, and the contract called for the performance of work within the District of Columbia, the court found that the transaction had such a substantial connection with the District".) The Sheraton, Just Corporate argues, is in quite the opposite position: The Sheraton can pursue the action with relative ease in northern California where the Sheraton owns several properties. The implication, of course, is that travel expenses incurred by Sheraton would be considerably less and can be better born by the huge corporation. The Sheraton, opposing the motion, makes no specific averments regarding the expense of bringing the action in the Northern District of California; however, the Sheraton does point out that the center of the controversy is in this Districtthe Sheraton Hotel, as are its witnesses and documents. Upon consideration of the interests of the parties and the interests of the public, the Court in its discretion finds that the net conveniences will not increase by transferring the case to the Northern District of California, and thus the plaintiff's choice of forum should not be disturbed. Gulf Oil Corp., v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). The Court is not unsympathetic to the defendant's argument *27 that it will be a burden to defend the litigation in Washington, D.C.; however, the defendant should have considered that possibility before it chose to do business in Washington, D.C. Moreover, it undoubtedly would be a burden on the Sheraton to bring the action in the Northern District of California. Although the plaintiff may have several properties nearby, as the defendant argues, there is no indication that any Sheraton employee associated with any property other than that in the District of Columbia has any knowledge of the contract in dispute. And, as noted supra, the Sheraton avers that the witnesses and documents on which it is relying are located here in the District. Although Just Corporate may be a small company, before the Court is a contract signed by (then-employee) Mary Moran, who traveled from Santa Rosa, California, with Ms. Grim to Washington, D.C. to negotiate the block of rooms in dispute. Ms. Moran reserved over $133,000 worth of rooms. The contract, as discussed supra, provides for resolution of conflicts by a court in this jurisdiction. Although Just Corporate made and initialized changes to other portions of the contract in dispute, it made no objection to the forum selection clause. Further, there is no indication that Ms. Moran is an unwilling witness. Should she be unwilling to travel or should the defendant wish to forgo bringing her due to expense, a de benne esse deposition can be conducted in the Northern District of California to preserve her testimony. Finally, the contract was formed under the laws of the District of Columbia, which are more easily applied by courts in this jurisdiction familiar with the local law. The District of Columbia has a significant interest in ensuring that District of Columbia law is properly applied as this type of litigation is not uncommon in the nation's capital, which thrives on the tourist/hotel industry. All weighed, the balance of factors tilts in favor of maintaining the action in this Court. Accordingly, it is this 4th day of November 1997, ORDERED that defendant's motion to dismiss for want of jurisdiction [# 16] shall be, and hereby is, denied; FURTHER ORDERED that the defendant's motion to transfer the action [# 16] to the United States District Court for the Northern District of California pursuant to forum non conveniens shall be, and hereby is, denied. FURTHER ORDERED that the defendant's motion for an extension of time to file a reply [# 22] shall be, and hereby is, granted, and the reply submitted as an exhibit to the motion, and considered by the Court, shall be deemed filed. NOTES [1] The defendant's unopposed motion for an extension of time to file a reply [# 22] shall be granted, and Just Corporate's reply, which was attached as an exhibit to the motion, shall be deemed filed. [2] The Court notes that both the Sheraton Operating Corporation and Woodley Road Associates are incorporated in, and thus citizens of, Delaware. This, however, will not defeat diversity jurisdiction. "[W]here a party sues or is sued in a representative capacity, its legal status is regarded as distinct from its position when it operates in an individual capacity." Arkwright-Boston Mfrs. Mutual Ins. Co. v. Truck Ins. Exchange, 979 F.Supp. 155,(E.D.N.Y. 1997)(citing Airlines Reporting Corp. v. S and N Travel, Inc., 58 F.3d 857, 862 (2d Cir.1995)). The Sheraton is bringing this action not in its own interests, but pursuant to its contractual obligations as an agent of Woodley Road Associates, the "real and substantial part[y] to the dispute"; thus, the Sheraton's corporate citizenship is not controlling. Airlines Reporting Corp., 58 F.3d at 862. As the assignment of the interest to Woodley Road Associates occurred six years prior to the contract in dispute [pl's opp., exh. C], the Court cannot conclude that the assignment was improperly or collusively made. [3] "A nonresident defendant may be considered to have transacted business within the meaning of [this jurisdiction's long-arm statute] § 13-423(a)(1) without ever having been physically in the District, and, under certain circumstances, even a single act may be sufficient to bring a defendant within the purview of the statute." Reiman v. First Union Real Estate Equity and Mortgage Investments, 614 F.Supp. 255, 256-257 (D.D.C.1985) (discussing personal jurisdiction).	{ "pile_set_name": "FreeLaw" }
96 Cal.App.2d 668 (1950) THE PEOPLE, Respondent, v. JACK CHAPMAN, Appellant. Crim. No. 2192. California Court of Appeals. Third Dist. Mar. 27, 1950. Jack Chapman, in pro. per., for Appellant. Fred N. Howser, Attorney General, and Gail A. Strader, Deputy Attorney General, for Respondent. ADAMS, P. J. Appellant Chapman was convicted by a jury in the Superior Court of Tuolumne County on two counts, robbery while armed with a deadly weapon, and assault by means of force likely to produce great bodily harm. He appealed from the judgment and same was affirmed by this court. (People v. Chapman, 91 Cal.App.2d 854 [206 P.2d 4].) A hearing was denied by the Supreme Court. In September, 1949, Chapman filed in the Superior Court of Tuolumne County what he designated as a motion to annul, vacate and set aside the aforesaid judgment "and/or petition for writ of coram nobis or writ of error," alleging, as grounds therefor: (1) that his prosecution on the two counts had placed him in double jeopardy; (2) that the testimony of Donald Larios, his codefendant, charges against whom had been dismissed during the trial so he could testify against Chapman, was inadmissible for the reason that he had been promised immunity in return for said testimony; (3) that the trial court committed error in allowing the jury to separate during the trial; (4) that it was prejudicial misconduct to assign as bailiffs in charge of the jury two officers who had taken part in the investigation of the crime; (5) that defendant was denied the right to trial by an impartial jury when he was prosecuted by a district attorney who practices civil law in addition to his duties as district attorney; (6) that the trial was not conducted according to law or due process in that defendant was not personally present during the entire trial proceedings; (7) that the district attorney was guilty of prejudicial misconduct in commenting, during his argument to the jury, on the failure of defendant to testify in his own behalf; (8) that the district attorney was further guilty of prejudicial misconduct in charging the jury as to matters of fact; (9) that the verdict and judgment are void for uncertainty; and (10) that the verdict is contrary to the evidence. In a supplement to the motion, which he filed October 26, 1949, it was 670 alleged that the court erred in giving a certain instruction; and in an additional supplement filed November 14, 1949, he set up: (11) that one member of the jury voted not guilty, though he admits that the jury was polled, and that the verdict should have been failure to agree; (12) that the court erred in refusing to inquire into whether or not the jury received evidence out of court; and (13) that the testimony of Audrey Larios (defendant's daughter) was inadmissible under section 1322 of the Penal Code. The trial court, on November 18, 1949, denied defendant's petition and an appeal was taken. After the filing of the record here respondent served and filed a notice of motion to dismiss the appeal, on the ground that it is irregular, frivolous, sham and without merit; and the matter is before us on that motion. [1] We think that the trial court properly denied the petition, and that the appeal should be dismissed upon the grounds stated in respondent's motion. The Supreme Court, in several recent decisions, has definitely adjudicated that the scope of review on such a petition is limited; that its purpose is to secure relief from a judgment rendered while there existed some fact which would have prevented its rendition if the trial court had known it, and which, through no negligence or fault of defendant, was not then known to the court; and that an applicant for the writ must show that the facts upon which he relies were not known to him, and could not, in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ. (People v. Adamson, 34 Cal.2d 320, 326-327 [210 P.2d 13], and cases there cited.) Such a writ may not be availed of to review alleged errors that were either considered on a prior appeal, or, though not raised on such appeal, could have been so raised. Such errors are not even reviewable in a habeas corpus proceeding. See In re Connor, 16 Cal.2d 701, 705 [108 P.2d 10], in which the court said that in this state a defendant is not permitted to try out his contentions piecemeal by successive proceedings attacking the validity of the judgment against him. In In re Lindley, 29 Cal.2d 709, 726 [177 P.2d 918], in referring to the restricted scope of the writ of coram nobis, the court adopted the view that all matters reviewable by appeal or upon motion for a new trial must be so presented, and cannot be made the grounds of an application for the writ of coram nobis. It is obvious that the alleged grounds upon which petitioner 671 depends in his application for the writ are outside the scope of the writ. They refer to facts that were known to petitioner during the trial as they pertain to alleged errors committed during such trial, and they were available to defendant for presentation to the trial court on motion for a new trial, and to this court on defendant's appeal. Appellant here does not deny this, but asserts that he did not, at such times, know the law. However, he was represented by counsel of his own choice, both at the trial and on his appeal; and that he, himself, has since acquired what he may refer to as subsequent knowledge of the law does not permit him to try out his contentions piecemeal, nor authorize a review of the alleged errors in coram nobis proceedings. [2] Furthermore, as the court said in People v. Adamson, supra, at page 330, this court has a right, as had the trial court, after the judgment has become final, to scrutinize appellant's claims with a critical eye, in the light of our familiarity with the facts of the crime as they appear in the record on appeal which we reviewed; and we are not bound, nor was the trial court, to accept at face value the allegations of the petition for the writ, especially since strong presumptions of regularity favor the judgment against petitioner. The motion to dismiss this appeal is granted and the appeal is dismissed. Peek, J., and Van Dyke, J., concurred.	{ "pile_set_name": "FreeLaw" }
129 F.3d 519 39 Fed.R.Serv.3d 691, 13 IER Cases 705,97 CJ C.A.R. 2685 John PIPPINGER, Plaintiff-Appellant,v.Robert E. RUBIN,* Secretary of the UnitedStates Treasury, Defendant-Appellee. No. 96-8057. United States Court of Appeals,Tenth Circuit. Nov. 5, 1997. Charles M. Pratt, Denver, CO, argued the cause, for appellant. Annette M. Wietecha, United States Department of Justice, Washington, DC, argued the cause, for appellee. Gilbert S. Rothenberg assisted on brief. Before ANDERSON, BALDOCK, and EBEL, Circuit Judges. EBEL, Circuit Judge. 1 Because of a romantic relationship with a subordinate, Plaintiff-Appellant John Pippinger was temporarily suspended from his job as an Internal Revenue Service ("IRS") branch manager. Several IRS employees were involved in helping the local IRS District Director reach the decision to suspend Pippinger. Eventually, many IRS employees in the district knew why Pippinger was suspended. 2 Before Pippinger's suspension was carried out, Pippinger's supervisor Patrick Schluck got into trouble with the IRS because he too had a romantic relationship with a subordinate. During the depositions and proceedings pertaining to Schluck's case, Pippinger's case was discussed and the IRS disclosed information from records of Pippinger's case to Schluck and his attorneys. 3 Pippinger sued the IRS, alleging violations of the Privacy Act of 1974, 5 U.S.C. § 552a (1994). The district court granted summary judgment in favor of the IRS. Pippinger appeals. Because we agree with the district court that Pippinger's rights under the Privacy Act were not violated, we affirm. BACKGROUND 4 This is an appeal from a grant of summary judgment. Thus, the following facts are set forth in the light most favorable to Pippinger, the non-movant. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996). All reasonable inferences from the factual record have been drawn in favor of Pippinger. 5 Since 1978, Plaintiff-Appellant John Pippinger has been employed by the Internal Revenue Service ("IRS") as a manager. In July 1988, IRS employee Lynn Boak1 began to work under Pippinger's supervision in the IRS's Cheyenne, Wyoming office. Although both Pippinger and Boak were married to other people at the time, they began having an affair in November 1992. 6 In December 1992, an anonymous tip was phoned in to the IRS's Internal Security Hotline. This tip alleged not only the existence of an affair between Pippinger and Boak, but also that Pippinger was giving preferential treatment to Boak over other employees, and that, without justification, Pippinger had arranged for Boak to travel with him on "official business." Pippinger was given a copy of a memo reporting this allegation, but was not asked to respond to it. Pippinger's supervisor, Patrick Schluck, drafted a response for the District Director's signature, denying the allegations of travel improprieties and preferential treatment. This response did not address the extramarital affair allegation. 7 In March 1993, a second anonymous complaint was made to the Internal Security Hotline. This complaint was nearly identical to the first. At Schluck's request, Pippinger drafted a response to the second complaint which was modeled after Schluck's response to the first complaint. This response, like the first, specifically refuted the allegations of travel improprieties but did not address the issue of a "romantic" relationship between Pippinger and Boak. 8 On March 31, 1993, the IRS District Director for Cheyenne retired and was replaced by an acting District Director, James Walsh. 9 On April 19, 1993, Pippinger informed Schluck that Pippinger and Boak had been romantically involved since November 1992, and were now planning to live together. Schluck then transferred Boak to another group not under Pippinger's supervision. After learning the details of this meeting, acting District Director Walsh wrote to the Officer of Internal Security to explain the situation. Walsh proposed that the matter be closed with no further action. 10 On June 1, 1993, Stephen Taylor became the new, permanent, IRS District Director in Cheyenne. After reviewing the Pippinger affair with members of his staff, Taylor decided to suspend Pippinger without pay for two days for making misleading statements in response to the hotline complaints and crafting the appearance of a conflict of interest. Specifically, Taylor believed that Pippinger should have revealed the nature of his relationship immediately and taken steps to eliminate the supervisor/subordinate relationship. 11 On July 12, 1993, Pippinger received written notice of his proposed suspension, and was advised of his right to reply. He replied to Schluck on July 28, 1993. Schluck affirmed Pippinger's suspension, but informed Pippinger of his right to appeal to Taylor. 12 In August 1993, a short time after Schluck held Pippinger's reconsideration hearing, Schluck also became romantically involved with a subordinate employee. When this affair became known to the District Director, Schluck was quickly demoted from his position as Chief of Exam. A major factor contributing to Schluck's demotion was the fact that, as Pippinger's direct supervisor, Schluck presided over proceedings to discipline Pippinger for having an affair with a subordinate, while Schluck himself was also having an affair with a subordinate. 13 On September 27, 1993, Pippinger's appeal of his suspension was denied by District Director Taylor. Pippinger then filed an Agency Grievance concerning his suspension with the Regional Commissioner's office. 14 In November 1993, Pippinger married Boak. 15 In January 1994, Schluck both resigned from the IRS, and initiated a proceeding through the Merit Systems Protection Board ("MSPB") to have his Chief of Exam position reinstated.2 An MSPB administrative proceeding is similar to a judicial proceeding, and involves a process of discovery. See 5 U.S.C. § 1221(d) (1994). During discovery in Schluck's MSPB proceeding, District Director Taylor, Administrative Officer Stephen Webb, and IRS labor relations specialists Joni Probasco and DeWayne Wicks each gave deposition testimony in which they "disclosed information from ... his personal records concerning John Pippinger." (Affidavit of Patrick Schluck, Aplt.'s App. at 45). IRS attorney Susan Neiser, a private attorney representing Schluck, a court reporter, and Schluck himself were all privy to this deposition testimony. 16 In April 1994, Pippinger was granted a hearing by the Regional Commissioner's office. Around that time, Pippinger learned that his case had been discussed, and his and Boak's identities revealed, during discovery in Schluck's MSPB proceeding. At that time, Pippinger also learned that the IRS had been maintaining a computer database known as the "Automated Labor Employee Relations Tracking System" ("ALERTS"). (Id. at 9-10, 154-56). The nationwide ALERTS system was used by the IRS permanently to record all disciplinary action proposed or taken against any IRS employee. 17 The ALERTS system contained two separate entries on Pippinger: one describing Pippinger's alleged misconduct and his proposed two-day suspension; the other documenting Pippinger's appeal through the agency's grievance process. Information from the ALERTS entry pertaining to Pippinger's misconduct and suspension had been disclosed in depositions taken during Schluck's MSPB proceedings. 18 In May 1994, the Regional Commissioner upheld Pippinger's suspension. Pippinger then requested the appointment of an IRS Grievance Examiner. On November 2, 1994, the Grievance Examiner issued a Report of Findings and Recommendations upholding Pippinger's suspension. 19 On January 19, 1995, Pippinger sued the Secretary of the Treasury (also referred to in this opinion as the "IRS"), alleging that the IRS had violated the Privacy Act of 1974, 5 U.S.C. § 552a (1994), by maintaining disciplinary records on Pippinger in the allegedly unlawful ALERTS database and also by allegedly disclosing information from those records on several occasions. In a second count, Pippinger also claimed that the IRS had violated his First, Fourth and Fifth Amendment rights to Due Process and Privacy. 20 The IRS moved pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss Pippinger's constitutional claims, and moved for summary judgment with respect to Pippinger's Privacy Act claims. Before ruling on the IRS's motions, the district court allowed discovery to proceed. 21 During the course of discovery, Pippinger and several other witnesses were deposed by the IRS. In his deposition, Pippinger admitted that at the time of his two-day suspension, rumors had circulated at his workplace about the cause of the suspension. Pippinger further testified that he was very angry when Taylor first informed him that he would be suspended, and that he told Taylor that "if anybody asked me, I'm going to tell them the truth," including the truth about the fact that he had been suspended for two days. Pippinger also admitted that he had told several of his co-workers about his suspension. 22 Pippinger faced two obstacles to obtaining discovery from the IRS. First, Pippinger sought informally to interview certain IRS employees who were "friendly witnesses" willing to talk to him, outside the presence of IRS counsel. The IRS, however, prohibited its employees from speaking to Pippinger about Pippinger's case, unless formally deposed. Pippinger filed a Motion to Compel, in which, inter alia, he asked the district court to "order [the IRS] to instruct certain witnesses and potential witnesses that they are not prohibited from meeting with and answering questions posed by [Pippinger] and his counsel outside the formal discovery process." In November, 1995, a magistrate judge denied this aspect of Pippinger's motion. Pippinger v. Secretary of the Treasury, No. 95-CV-17-D (D.Wyo. Nov. 28, 1995) (Order on Plaintiff's Motion to Compel) (Beaman, Mag. J.). Pippinger now appeals this denial. 23 Second, Pippinger had difficulty conducting discovery because District Director Taylor and IRS labor relations specialist Probasco, who were deposed by Pippinger, initially claimed a "governmental deliberative process privilege" and refused to answer many of Pippinger's questions. Although the magistrate judge eventually ordered Taylor and Probasco to answer Pippinger's questions, it stayed its order "until January 15, 1996, or such time as the Honorable William F. Downes rules upon the pending dispositive motions, whichever first occurs." Pippinger claims that the dispute over the "governmental deliberative process privilege" claim and the magistrate's order staying further discovery deprived Pippinger of a reasonable opportunity to re-depose Taylor and Probasco before the district court ruled on the merits of IRS's motion for summary judgment. 24 On April 10, 1996, the district court exercised jurisdiction pursuant to 28 U.S.C. § 1331 (1994) (general federal question jurisdiction), and 5 U.S.C. § 552a(g)(1)(D) (1994) (specifically granting jurisdiction to the district court over claims arising under the Privacy Act), granted the IRS's motion to dismiss Pippinger's constitutional claims, Pippinger v. Secretary of the Treasury, No. 95-CV-017-D, slip op. at 4-7 (D. Wyo. April 10, 1996), and granted the IRS's motion for summary judgment on Pippinger's Privacy Act claims. Id. at 7-11. Although Pippinger does not appeal the district court's dismissal of his constitutional claims, he now appeals that portion of the district court's order granting summary judgment in favor of the IRS on his Privacy Act claims. We exercise jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1994). DISCUSSION 25 We review a grant of summary judgment de novo. Applied Genetics International, Inc. v. First Affiliated Securities, 912 F.2d 1238, 1241 (10th Cir.1990). We apply the same standard under Fed.R.Civ.P. 56(c) used by the district court: we determine whether a genuine issue of material fact was in dispute, and, if not, whether the substantive law was correctly applied. Id. I. Maintenance of Disciplinary Records 26 As a threshold matter, Pippinger claims that the Privacy Act of 1974, 5 U.S.C. § 552a (1994), prohibits the IRS from maintaining disciplinary records of its employees in the ALERTS system, because the ALERTS system is not adequately described in the Federal Register. In support of this claim, Pippinger cites 5 U.S.C. § 552a(e)(4) (1994), which provides that: 27 Each agency that maintains a system of records shall ... publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include-- 28 (A) the name and location of the system; 29 (B) the categories of individuals on whom records are maintained in the system; 30 (C) the categories of records maintained in the system; 31 (D) each routine use of the records contained in the system, including the categories of users and the purpose of such use; 32 (E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records; 33 (F) the title and business address of the agency official who is responsible for the system of records; 34 (G) the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him; 35 (H) the agency procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system of records, and how he can contest its content; and 36 (I) the categories of sources of records in the system. 37 In particular, Pippinger claims that the IRS failed to comply with subsections (A) through (E) of 5 U.S.C. § 552a(e)(4) (1994). With respect to subsections (B) through (E), Pippinger's claim is predicated on his factual misconception that the IRS never published any notice regarding the keeping of records on disciplinary actions taken against employees. This assertion is simply incorrect. 38 The ALERTS system contains a limited subset of the information authorized in two systems that are described in the Federal Register: (1) the Appeals, Grievance, and Complaint System; and (2) the General Personnel and Payroll [Records] System. 57 Fed.Reg. 14,056-59 (1992). By erroneously equating the ALERTS system just with the Appeals, Grievance, and Complaint System, Pippinger has completely ignored the General Personnel and Payroll Records System, data from which is also stored in the ALERTS system. 39 The General Personnel and Payroll Records System is defined in the Federal Register to cover "[p]rospective, current and former employees of the IRS." 57 Fed.Reg. 14,056, 14,058 (1992). This statement satisfies the publication requirement of 5 U.S.C. § 552a(e)(4)(B) (1994). Pippinger falls within the category of individuals covered. 40 The General Personnel and Payroll Records System is also defined in the Federal Register to include "a variety of records relating to personnel actions and determinations made about an individual while employed in the Federal service." Id. The categories of records include "reprimands; adverse or disciplinary charges; ... [and] adverse and disciplinary action files." Id.; see also 5 C.F.R. § 293.403(b) (providing numerous examples of employee performance-related records which may be maintained as a system of records within the meaning of the Privacy Act). This statement satisfies the publication requirement of 5 U.S.C. § 552a(e)(4)(C) (1994). Pippinger's disciplinary records fall within the category of records covered. 41 The Federal Register contains an extensive section defining the "Routine uses of records maintained in the [General Personnel and Payroll Records System], including categories of users and the purposes of such uses." 57 Fed. Reg. 14,056, 14,058-59 (1992). One such routine use of records is to provide the records to the Merit Systems Protection Board and other federal agencies "for the purpose of properly administering Federal Personnel systems ... in accordance with applicable laws, Executive Orders, and applicable regulations." Id. at 14,059. This section satisfies the publication requirement of 5 U.S.C. § 552a(e)(4)(D) (1994). Pippinger's personnel records were maintained, in part, so that they could be made available to the Merit Systems Protection Board if necessary, in order properly to administer the IRS's personnel systems. This use falls within the category of routine uses covered in the Federal Register. 42 Finally, the policies and practices of the IRS regarding storage, retrievability, access controls, retention, and disposal of the records contained in the General Personnel and Payroll Records System were all published in the Federal Register. See 57 Fed.Reg. 14,056, 14,059 (1992). The publication requirements of 5 U.S.C. § 552a(e)(4)(E) (1994) were thus satisfied. 43 Pippinger does, however, state one facially valid claim against the legality of the ALERTS system. He correctly notes that the name and location of the ALERTS system have never been published in the Federal Register, which he claims is in violation of 5 U.S.C. § 552a(e)(4)(A) (1994). Thus, we must decide whether the abstraction of certain individual records from a "system of records," or the transcription of such an abstract from paper to computer or electronic storage media, constitutes the creation of a new "system of records" under 5 U.S.C. § 552a(a)(5) (1994), where, as here, the electronic abstract may be accessed only by the same users, and only for the same purposes, as the original "system of records."3 44 Although no court, to our knowledge, has addressed these questions directly, there is limited case authority consistent with the proposition that abstraction of individual records from a "system of records" does not by itself create a new system of records. In Henke v. United States Dep't of Commerce, 83 F.3d 1453, 1459-61 (D.C.Cir.1996), the court addressed whether an agency can be deemed to maintain a computerized "system of records" where it has the capability to retrieve information about an individual by name, but not the practice of doing so. Although this is not the question before us, the approach of the Henke court to determining the meaning of a "system of records" under 5 U.S.C. § 552a(a)(5) is instructive. 45 In holding that the records at issue there did not constitute a "system of records" under the Privacy Act, the Henke court noted that the phrase "system of records" should be narrowly construed, because under an expansive reading of the phrase: 46 an agency faces the threat of being found retrospectively to be maintaining a system of records it did not even know existed, simply by dint of a potential use it neither engaged in nor contemplated. This in turn would create serious compliance problems for the agency, because if it had not recognized that it maintained a system of records and had therefore not published notice of its system in the Federal Register, then neither would it have followed the procedures necessary [under the Privacy Act].... 47 Henke, 83 F.3d at 1461; see also Williams v. Department of Veterans Affairs, 104 F.3d 670, 674 (4th Cir.1997) ("Courts have construed § 552a(a)(5) narrowly") (citing cases). 48 The Henke court expressly disclaimed suggesting "that an agency may simply refuse to acknowledge that it maintains a system of records and thereby insulate itself from the reach of the Privacy Act." Henke, 83 F.3d at 1461. However, it opined that a major factor in determining whether a "system of records" exists "is the purpose for which the information on individuals is being gathered, an approach which is consistent with Congress' distinction between a mere group of records and a system of records." Id. (emphasis in original). 49 In the present case, Pippinger has presented no evidence suggesting that the records abstracted from the Appeals, Grievance, and Complaint System and the General Personnel and Payroll Records System and stored in the ALERTS computer system were used for any purposes other than the purposes, published in the Federal Register, for which those records were intended. Similarly, he has presented no evidence that the abstracted records could be accessed via the ALERTS system by anyone not identified in the Federal Register as an authorized user of the same records contained in the Appeals, Grievance, and Complaint System or the General Personnel and Payroll Records System. Thus, consistent with Henke, a properly "narrow" construction of 5 U.S.C. § 552a(a)(5) leads to the conclusion that ALERTS is not a "system of records." 50 We turn then to the question of whether transcription of a system of records from paper to computer or electronic storage media necessarily constitutes the creation of a new "system of records" under 5 U.S.C. § 552a(a)(5) (1994). In addition to requiring publication of the establishment and existence of a government-maintained "system of records," the Privacy Act also requires government agencies to publish in the Federal Register notice of revisions in the character of existing systems of records. 5 U.S.C. § 552a(e)(4) (1994). For this reason, one circuit court recently remanded a Privacy Act case to the district court to determine whether a government agency had, in fact, transferred a system of records stored in paper documents to a digitally stored format. Williams v. Department of Veterans Affairs, 104 F.3d 670, 676 (4th Cir.1997). In doing so, the Williams court suggested the possibility that if such a change had occurred without proper publication, 5 U.S.C. § 552a(e)(4) would have been violated. Id. 51 We need not, in the present case, decide whether or not we agree with the Williams court that routine transcription of records from paper to computer or electronic storage media always necessitates publication in the Federal Register. Here, unlike in Williams, the IRS properly published the fact that records maintained in both the Appeals, Grievances and Complaint System and the General Personnel and Payroll Records System would be stored on "magnetic media." See 57 Fed.Reg. 14,057 (1992) (Appeals, Grievances and Complaint System records will be stored on "magnetic media"); 57 Fed.Reg. 14,059 (1992) (General Personnel and Payroll Records System records will be stored on "magnetic media" and "discs"). Because the transcription of records stored in the Appeals, Grievances and Complaint System and the General Personnel and Payroll Records System to "magnetic media" was contemplated and announced in the Federal Register, the "character" of the records was not revised when the records were in fact transcribed to the ALERTS system. 52 In addition, even if the ALERTS system were a separate "system of records" under 5 U.S.C. § 552a(e) (1994), Pippinger would lack standing to challenge the IRS's failure to publish the ALERTS system's name and location in the Federal Register. In its "civil remedies" subsection, the Privacy Act provides that: 53 Whenever any agency ... fails to comply with [5 U.S.C. § 552a], ... in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency.... 54 5 U.S.C. § 552a(g)(1)(D) (1994) (emphasis added). 55 Here, Pippinger has introduced no evidence tending to suggest that the mere maintenance in the ALERTS system of records that could be lawfully maintained by the IRS in other systems of records "adversely affected" him in any way. See Parks v. Internal Revenue Serv., 618 F.2d 677, 682 (10th Cir.1980) (Privacy Act plaintiff must be adversely affected by the violation in order to state a cause of action). Indeed, when Pippinger requested copies of all IRS records pertaining to him, the ALERTS system assisted the IRS in locating Pippinger's two records--which were kept in two different systems--in order to provide them to him. Thus, even if the ALERTS system were a "system of records" subject to the publication requirements of 5 U.S.C. § 552a(e)(4)(A) (1994), Pippinger would not recover for the IRS's technical failure to comply with those requirements. II. Disclosure of Disciplinary Records 56 The Privacy Act of 1974 limits the circumstances under which government agencies, including the IRS, may disclose information contained in their records. In general, the Act provides that: 57 No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains 58 .... 59 5 U.S.C. § 552a(b) (1994); accord 5 C.F.R. § 297.401 (1996) (specifically applying to personnel records of government employees). However, the Act goes on to enumerate twelve exceptions to this general prohibition. See id. 60 Pippinger, who did not consent to any disclosure, claims that the IRS unlawfully disclosed his employment records on three different occasions. In analyzing each of these three claims, we must decide whether a record was "disclosed," and, if so, whether it was disclosed pursuant to an exception enumerated in 5 U.S.C. § 552a(b). 61 Although "disclosure" is not defined in the text of the Privacy Act, the Office of Personnel Management ("OPM") has defined "disclosure" under the Privacy Act to mean "providing personal review of a record, or a copy thereof, to someone other than the data subject or the data subject's authorized representative...." 5 C.F.R. § 297.102 (1997). Although the OPM's definition of "disclosure" would appear to be limited to disclosures of the physical records themselves (or mechanical reproductions thereof), this court and other courts have assumed or held that the Privacy Act more broadly prohibits disclosure of information directly or indirectly derived from an agency system of records, even where the physical records are not disclosed. See Wilborn v. Department of Health and Human Servs., 49 F.3d 597, 600 (9th Cir.1995) ("Under a long line of cases interpreting the Privacy Act, courts have agreed that the Act covers more than the mere physical dissemination of records ... [because] the Privacy Act, if it is to be given any force and effect, must be interpreted in a way that does not 'go against the spirit' of the Act.") (citing cases); Kline v. Department of Health and Human Servs., 927 F.2d 522, 524 (10th Cir.1991); Thomas v. United States Dep't of Energy, 719 F.2d 342, 345 (10th Cir.1983). Accord 5 C.F.R. § 293.406 (1997) ("Disclosure of information from this file system shall be made only as permitted by the Privacy Act ....") (emphasis added). 62 As the Wilborn court explained:the Privacy Act applies to a situation where an agency official uses the government's sophisticated information collecting methods to acquire personal information for inclusion in a record, and then discloses that information in an unauthorized fashion without actually physically retrieving it from the record system. 63 Id. at 601 (quoting Bartel v. FAA, 725 F.2d 1403, 1410 (D.C.Cir.1984)) (emphasis in Wilborn ) (internal punctuation marks omitted). 64 The courts' broad interpretation of the Privacy Act's prohibition against disclosure is clearly consistent with Congressional intent. As the Joint House and Senate Report explained, a primary purpose of 5 U.S.C. § 552a(b) is to: 65 require employees to refrain from disclosing records or personal data in them, within the agency other than to officers or employees who have a need for such record or data in the performance of their duties for the agency. 66 This section is designed to prevent the office gossip, interoffice and interbureau leaks of information about persons of interest in the agency or community, or such actions as the publicizing of information of a sensational or salacious nature or of that detrimental to character or reputation. 67 S.Rep. No. 93-1183, H.R.Rep. No. 93-1416, at 51 (1974) (emphasis added), reprinted in 1974 U.S.C.C.A.N. 6916, 6966, and quoted in part in Parks v. Internal Revenue Serv., 618 F.2d 677, 681 n. 1 (10th Cir.1980). 68 With these broad purposes in mind, we proceed to analyze Pippinger's claim that improper disclosures were made on three occasions. A. Disclosure to Taylor's Staff Members 69 As discussed in the "Background" Section, supra, Stephen Taylor began his job as IRS District Director in Cheyenne on June 1, 1993. At that time, Lynn Boak had already been transferred away from Pippinger's supervision, and the investigation of Pippinger's conduct was set to be closed without any action being taken. Taylor had not been present in the office from November 1992 to April 1993, when the events underlying Pippinger's subsequent suspension occurred. Thus, Taylor learned everything he knew about the Pippinger case by reviewing Pippinger's records and by consulting Taylor's staff. 70 Specifically, Taylor consulted with Pippinger's direct supervisor Patrick Schluck, Taylor's administrative officer Steve Webb, Denver-based IRS labor relations specialists Joni Probasco and DeWayne Wicks, IRS Public Affairs/Ethics Officer Tim Harms, Chief Richard Harrod of the IRS Collection and Taxpayer Service Division, and Cheyenne district Equal Employment Opportunity Officer Robert Sonntag. Pippinger concedes that Schluck and Webb "were appropriately involved in these discussions," and he does not make an issue of Probasco's or Wicks's participation. However, Pippinger contends that his Privacy Act rights were violated by improper disclosures made during Taylor's consultations with Harms, Harrod, and Sonntag regarding whether disciplinary action against Pippinger should be pursued. 71 The IRS does not concede that Taylor disclosed any protected record to Harms, Harrod, or Sonntag. Nonetheless, the district court appropriately assumed for purposes of summary judgment that such records were disclosed. Pippinger, slip op. at 8-9. Even under this assumption, the district court held that Taylor did not violate the Privacy Act because: (1) Taylor's staff had "a need for the record in the performance of their duties," a condition which allows disclosure to them under 5 U.S.C. § 552a(b)(1) (1994) and 5 C.F.R. § 293.402(c)(1) (1997), and (2) Taylor did not "act[ ] in a manner which was intentional or willful," a requirement for governmental liability under 5 U.S.C. § 552a(g)(4) (1994). See Pippinger, slip op. at 8-9. Pippinger counters that Taylor's staff members did not need to know Pippinger's name in order to do their jobs, and that Taylor's disclosure of Pippinger's name to Taylor's staff members therefore constituted a willful or intentional violation of Pippinger's privacy. 72 Taylor's staff members' jobs included helping Taylor decide whether and how to discipline Pippinger. For this reason, the staff members clearly "needed to know" the information contained in Pippinger's files pertaining to Pippinger's relationship with Boak and his subsequent allegedly misleading statements pertaining thereto. In addition, contrary to Pippinger's argument, knowledge of Pippinger's identity allowed Taylor's staff members to put the investigation in context, and might potentially have enabled them to connect the information about Pippinger's alleged misconduct with other data already know to them. Because of the inherent difficulty of investigating an unidentified individual, a supervisor conducting an investigation into bona fide allegations of employee misconduct must be allowed some latitude under the Privacy Act's "need to know" exception to disclose the identity of the investigation's subject to staff members who will assist in conducting and disposing of the investigation. To hold otherwise would slice the bread of the "need to know" exception far thinner than we believe Congress intended. 73 We also agree with the district court's second ground for holding that Taylor did not violate the Privacy Act. Under 5 U.S.C. § 552a(g)(4) (1994), a government agency may not be held liable unless "the court determines that the agency acted in a manner which was intentional or willful...." In Andrews v. Veterans Admin., 838 F.2d 418 (10th Cir.), cert. denied, 488 U.S. 817, 109 S.Ct. 56, 102 L.Ed.2d 35 (1988), we defined "intentional or willful" under the Privacy Act to mean "action so patently egregious and unlawful that anyone undertaking the conduct should have known it unlawful, or conduct committed without grounds for believing it to be lawful or action flagrantly disregarding others' rights under the Act." Andrews, 838 F.2d at 425 (internal punctuation and citations omitted). Such conduct "must amount to, at the very least, reckless behavior." Id. 74 Here, Taylor's failure to redact Pippinger's name from necessary discussions of Pippinger's case certainly does not constitute an "intentional or willful" violation of Pippinger's privacy as defined in Andrews. Harms, Harrod, and Sonntag were fellow IRS officials whose job included helping Taylor fashion disciplinary action against Pippinger. In this context, Taylor had ample reason to believe that it was lawful for him to discuss Pippinger's case--including Pippinger's name--with his staff. B. Disclosure to Pippinger's Co-Workers 75 Pippinger also claims that the IRS violated the Privacy Act because most of the people in the Cheyenne district office of the IRS knew about Pippinger's two-day suspension and the reasons underlying it. Pippinger claims that this widespread knowledge gives rise to an inference that Taylor or one of his staff members disclosed private information about Pippinger to Pippinger's co-workers. 76 The district court rejected this claim, noting that "[t]o the extent [Pippinger] argues that other individuals knew about his relationship with Ms. Boak and his suspension, there is no evidence in the record that such information was disclosed by Taylor or someone else within an agency who had learned the information from [Pippinger's] personnel records." Pippinger, slip op. at 9. We agree. 77 In his deposition, Pippinger admitted that rumors concerning his affair had been widespread within the Cheyenne district of the IRS, even before any disciplinary action was taken against him. Pippinger further testified that he was very angry when Taylor first told him about the suspension, and that he told Taylor that "if anybody asked me, I'm going to tell them the truth," including the truth about the fact that Pippinger had been suspended for two days. Pippinger admitted that he discussed the details of his suspension with his paramour/coworker Lynn Boak. Pippinger also admitted that he had told several of his coworkers about his suspension, including Robert Heuschkel and Reggie Bruce, and may also have discussed it with co-workers Marilyn Beaman, Alice Kleiman, and Kent Ewing. 78 Against this background, the mere fact that information contained in Pippinger's personnel files was well-known in his workplace does not give rise to an inference that such knowledge was widespread because of a disclosure from Pippinger's personnel files. As the district court correctly noted, the Privacy Act does not prohibit disclosure of information or knowledge obtained from sources other than "records." Thomas v. United States Dep't of Energy, 719 F.2d 342, 345 (10th Cir.1983). In particular, it does not prevent federal employees or officials from talking--even gossiping--about anything of which they have non-record-based knowledge. Id. 79 A number of people in Pippinger's workplace had personally observed Pippinger's relationship with Boak. Several learned the details of Pippinger's suspension from Pippinger himself. Accordingly, in the absence of any evidence suggesting that the IRS actually disclosed information from Pippinger's records, Pippinger's "inferential" evidence of such disclosure cannot withstand summary judgment. 80 C. Disclosure During Schluck's MSPB Proceedings 81 During Patrick Schluck's MSPB proceeding, IRS District Director Stephen Taylor, Administrative Officer Stephen Webb, and IRS labor relations specialists Joni Probasco and DeWayne Wicks each gave deposition testimony in which they "disclosed information from the ALERTS system and from his personnel records concerning John Pippinger." This deposition testimony was heard by IRS attorney Susan Neiser, and was also heard by a private attorney representing Schluck, a court reporter, and Schluck himself. The district court found that these disclosures did not violate Pippinger's rights under the Privacy Act because they were authorized by either the "need to know" exception of 5 U.S.C. § 552a(b)(1) (1994), or the "routine use" exception of 5 U.S.C. § 552a(b)(3) (1994). See Pippinger, slip op. at 10. 82 Pippinger responds, first, by asserting that there was no need for Webb, Probasco and Wicks to disclose the information about Pippinger's case (especially Pippinger's name) that they disclosed in their depositions. Second, Pippinger claims that disclosure of information obtained from Pippinger's records to the MSPB at Schluck's MSPB proceeding was unauthorized by the Privacy Act. Third, Pippinger claims that deposition testimony is not a "routine use" of the records kept in the ALERTS system, and that the Privacy Act therefore prohibited any disclosure from Pippinger's records to Schluck, Schluck's attorney, and the court reporter, none of whom were then employed by the IRS.4 We address each of Pippinger's three arguments in turn. 83 As discussed in Subpart A, supra, Taylor, Webb, Probasco, and Wicks each "needed to know" the information contained in Pippinger's Appeals, Grievances and Complaint System files and General Personnel and Payroll Records System files, in connection with their duties to investigate the allegations against Pippinger and recommend or implement a disposition. For similar reasons, IRS attorney Neiser also "needed to know" the record information about the Pippinger/Boak incident. Although Neiser was not involved in investigating Pippinger 's case, Neiser was charged with defending the IRS's actions in Schluck 's MSPB proceeding. The IRS's primary charge against Schluck was that Schluck had presided over disciplinary proceedings in which Pippinger was accused of having a romantic affair with a subordinate, while Schluck himself was in a romantic relationship with a subordinate. The IRS's position with respect to Schluck would have been rendered incomprehensible to Neiser if Neiser had not been apprised of Pippinger's situation. Further, for the reasons discussed in Subpart A, supra, redaction of Pippinger's name from Pippinger's records was not required by the Privacy Act. We thus agree with the district court that disclosures from Pippinger's files to IRS employees Taylor, Webb, Probasco, Wicks and Neiser fell squarely within the Privacy Act's "need to know" exception. 84 What's more, the "routine use" exception permits far more disclosure of records than does the "need to know" exception. See generally Deborah Sprenger, Annotation, What Constitutes "Routine Use" Disclosure of Employee Records Exempted from Provisions of Privacy Act of 1974 Under 5 U.S.C. § 552a(b)(3), 107 A.L.R. Fed 857 (1992 & Supp.1995). The "routine use" exception permits disclosure of an otherwise protected record whenever such disclosure would be "for a routine use." 5 U.S.C. § 552a(b)(3) (1994). A "routine use" is defined as "the use of such record for a purpose which is compatible with the purpose for which it was collected." 5 U.S.C. § 552a(a)(7) (1994). Agencies that maintain a system of records are required to publish in the Federal Register a notice of "each routine use of the records contained in the system, including the categories of users and the purpose of each use." 5 U.S.C. § 552a(e)(4)(D) (1994). Records may be disclosed under the "routine use" exception only "under a routine use published ... for the system of records covering [the disclosed] records." 5 C.F.R. § 293.406 (1997). 85 As discussed in Part I, supra, Pippinger's records, though stored in the ALERTS system, were culled from two systems of records described in the Federal Register: the Appeals, Grievance, and Complaint System; and the General Personnel and Payroll Records System. The routine uses of records in both systems have been defined in the Federal Register to include "provid[ing] records and information to the ... Merit Systems Protection Board ... for the purpose of properly administering Federal Personnel Systems in accordance with applicable laws, Executive Orders, and regulations." 57 Fed.Reg. 14,056, 14,057 (Appeals, Grievance, and Complaint System); id. at 14,059 (General Personnel and Payroll Records System). 86 This language is broad enough to authorize the disclosure of Pippinger 's records to the Merit Systems Protection Board during the course of Schluck 's MSPB proceeding, so long as such disclosure is made "for the purpose of properly administering Federal Personnel Systems." Id. In the case at bar, Pippinger has presented no evidence suggesting that his records were disclosed to the MSPB for any other purpose. Accordingly, the disclosures made by Taylor, Webb, Probasco, Wicks, and Neiser to the MSPB were authorized, "routine uses" of Pippinger's records. 87 The disclosures to Schluck, Schluck's attorney, and the court reporter were similarly made in conjunction with the MSPB proceeding and, accordingly, fall within the same "routine use" exception. One of the published uses for these systems of records is to allow the IRS to "disclose relevant, non-privileged information to a court, magistrate, or administrative tribunal, including ... disclosure to opposing counsel or witnesses in the course of civil discovery...." 57 Fed.Reg. 14,056, 14,057 (Apr. 17, 1992) (Appeals, Grievance, and Complaint System) (emphasis added); accord id. at 14,059 (General Personnel and Payroll Records System). To avoid circularity, the qualifier "non-privileged" can only refer to privileges existing outside of the Privacy Act itself, such as the attorney-client privilege or the doctor-patient privilege. Otherwise, this particular "routine use" exception could never be invoked. Cf. Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C.Cir.1987) (analyzing the "pursuant to the order of a court of competent jurisdiction" exception to the Privacy Act (5 U.S.C. § 552a(b)(11)) and holding that the Act does not create any additional privileges that would collide with the federal civil rules of discovery); Bosaw v. National Treasury Employees' Union, 887 F.Supp. 1199, 1216 (S.D.Ind.1995)(same). Thus, the disclosures to Schluck, Schluck's attorney, and the court reporter were authorized under the "routine use" exception to the Privacy Act. 88 Furthermore, we hold that Pippinger has no cause of action against the IRS for two additional reasons. First, Pippinger has presented no evidence indicating that the disclosures to Schluck, Schluck's attorney, or the court reporter, could possibly have had "an adverse effect" on Pippinger, as required under 5 U.S.C. § 552a(g)(1)(D) (1994); see also Parks v. Internal Revenue Serv., 618 F.2d 677, 682 (10th Cir.1980) (Privacy Act plaintiff must be adversely affected by the violation in order to state a cause of action). Although Schluck no longer worked for the IRS at the time of the disclosure, he had been privy to every event described in Pippinger's records at the time the event occurred. We simply fail to see how disclosure to Schluck of facts already known to Schluck could "adversely affect" Pippinger. See generally George Chamberlin, Annotation, Applicability of § 3(b) of Privacy Act of 1974 (5 U.S.C. § 552a(b)), Requiring Individual's Consent to Disclosure of Agency Records Maintained on Individual, To Disclosure of Information Otherwise Known to Federal Agency or Official, 52 A.L.R.Fed 579 (1981 & Supp.1995). 89 Similarly, Schluck would certainly have discussed with his attorney the events leading to Schluck's demotion. In doing so, Schluck could not have avoided telling the attorney about the Pippinger affair. Thus, Schluck's attorney, like Schluck, would already have known the "disclosed" information about Pippinger at the time of the disclosure. Finally, Pippinger has made no attempt to explain how disclosure to the court reporter adversely affected him. Thus, we hold that Pippinger has not satisfied the "adverse effect" requirement of 5 U.S.C. § 552a(g)(1)(D) (1994).5 III. Discovery Issues 90 Pippinger contends that even if the IRS is entitled to summary judgment on the record as it currently stands, the district court committed two errors in regulating the discovery process. Accordingly, Pippinger requests additional discovery to supplement the current record.6 We consider each of his claims in turn. 91 Discovery rulings are reviewed for an abuse of discretion. GWN Petroleum Corp. v. OK-Tex Oil & Gas, Inc., 998 F.2d 853, 858 (10th Cir.1993) (citing Willner v. Budig, 848 F.2d 1032, 1035-36 (10th Cir.1988), cert. denied, 488 U.S. 1031, 109 S.Ct. 840, 102 L.Ed.2d 972 (1989)). "Generally, 'control of discovery is entrusted to the sound discretion of the trial courts, and a denial of a motion to compel discovery will not be disturbed absent abuse of discretion.' " Motley v. Marathon Oil Co., 71 F.3d 1547, 1550 (10th Cir.1995), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 781 (1996) (quoting Martinez v. Schock Transfer and Warehouse Co., 789 F.2d 848, 850 (10th Cir.1986)). A. Informal Interviews 92 Pippinger sought to conduct informal interviews, outside the presence of IRS counsel, with certain IRS employees who were apparently willing to talk to him. However, the IRS forbade its employees from talking to Pippinger about Pippinger's case, unless subpoenaed or deposed. Pippinger filed a motion to compel, asking the court to order the IRS "to inform all of the individuals on [Pippinger's] witness list, who did not have any management responsibility over the matters before the Court, that they may talk to [Pippinger] or to his attorney, and that no adverse action or retaliation will be taken by the IRS in any form." (Plaintiff's Motion to Compel at 9, Aplt.'s App. at 68). A magistrate judge denied Pippinger's motion. Pippinger v. Secretary of the Treasury, No. 95-CV-17-D, slip op. at 7-8 (D.Wyo. Nov. 28, 1995) (Beaman, Mag. J.) (Aplt.'s App. at 77-78). Pippinger appeals from the magistrate judge's order. 93 It is a well established rule that the court of appeals cannot review a magistrate judge's order under 28 U.S.C. § 636(b)(1)(A) unless the party requesting review objected to the order in writing to the district court within ten days of receiving a copy of the order. See Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.1997) ("Properly filed objections resolved by the district court are a prerequisite to our review of a magistrate judge's order under § 636(b)(1)(A)."); Niehaus v. Kansas Bar Association, 793 F.2d 1159, 1164-65(10th Cir.1986)("In examining the right to appeal from a magistrate's order, federal courts of appeals have held that appeals from magistrates' rulings must be to the district courts and that appellate courts are without power to hear appeals directly from orders of federal magistrates."). This rule is designed to advance the policy underlying the Magistrate's Act of increased judicial efficiency. See Niehaus, 793 F.2d at 1165. Moreover, Rule 72(a) of the Federal Rules of Civil Procedure requires parties to file written objections to a magistrate judge's order with the district court within 10 days. See Niehaus, 793 F.2d at 1164-65.7 Pippinger fails to argue or offer proof that he ever filed with the district court any objection to the magistrate judge's order. Therefore, because Pippinger did not file written objections to the magistrate judge's order within the required ten days we may not consider the issues decided in that order on appeal.8 B. Timing of Grant of Summary Judgment 94 Finally, Pippinger claims that the district court abused its discretion by issuing a summary judgment order before Pippinger could complete his discovery process. He asserts two reasons why he should have been allowed more time to take discovery: (1) the magistrate judge had only recently ruled in Pippinger's favor on the IRS's "governmental deliberative process privilege" argument, leaving Pippinger with insufficient time to re-depose District Director Taylor and IRS labor relations specialist Probasco; and (2) the magistrate judge had only recently denied Pippinger's motion to compel with respect to the ex parte interviews, leaving Pippinger insufficient time formally to depose the "friendly" witnesses he had hoped to informally interview. 95 Pippinger originally filed his lawsuit on January 19, 1995. Some discovery began immediately. However, the IRS initially refused to comply with significant portions of Pippinger's discovery requests until after the magistrate judge ruled on its motion to dismiss Pippinger's constitutional claims. In particular, when Pippinger attempted to depose District Director Taylor and IRS labor relations specialist Probasco, these witnesses claimed a "governmental deliberative process privilege" and refused to answer many of Pippinger's questions. Partly for this reason, Pippinger filed his motion to compel on October 10, 1995. 96 On November 28, 1995, the magistrate judge ruled that Taylor and Probasco enjoyed no "governmental deliberative process privilege," and that Pippinger was entitled to re-depose them. However, the magistrate judge stayed these re-depositions "until January 15, 1996, or such time as the Honorable William F. Downes rules upon the pending dispositive motions, whichever first occurs." 97 In the same November 28, 1995 Order, the magistrate judge denied Pippinger's motion to compel with respect to the ex parte interviews. However, Pippinger had been free formally to depose his "friendly" witnesses since filing his complaint in January 1995, and remained free to do so after his motion was denied. 98 The district court granted the IRS's motion to dismiss and its motion for summary judgment on April 10, 1996. By that time, Pippinger had enjoyed fifteen months in which to depose his "friendly" witnesses, and three months in which to take partial re-depositions of two "hostile" witnesses. 99 Although Pippinger did not know when the district court was going to rule on the merits of the IRS's motion for summary judgment, the record contains no evidence suggesting that Pippinger ever asked the district court for more time. See Fed.R.Civ.P. 56(f) (permitting the district court, at the request of a nonmovant for summary judgment, to "order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had," and thereby delay action on the summary judgment motion). Further, Pippinger does not explain what type of evidence he hoped to develop through further discovery. 100 For these reasons, we hold that the district court did not abuse its discretion by ruling on the IRS's substantive motions on April 10, 1996. CONCLUSION 101 The judgment of the district court is AFFIRMED in all respects. * In the present case, Pippinger sued the "Secretary of the United States Treasury" without naming the Secretary personally. We take judicial notice of the fact that Robert E. Rubin is the Secretary of the United States Treasury, and substitute his name accordingly. See Fed. R.App. P. 43(c) 1 Lynn Boak was known as Lynn Orr until 1993, when she obtained a divorce from her former husband 2 An MSPB proceeding is initiated by an employee seeking "corrective action" regarding personnel action which has been taken (or is proposed to be taken) against that employee. 5 U.S.C. § 1221(a) (1994). Its procedures are governed by 5 U.S.C. § 1221 (1994) 3 The Privacy Act defines the term "system of records" to mean "a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual." 5 U.S.C. § 552a(a)(5) (1994) 4 In January, 1994, while pursuing his MSPB action, Schluck retired from the IRS. He was thus no longer an IRS employee at the time of the alleged disclosures 5 Pippinger has also failed to show that any such disclosure violated the "intentional or willful" requirement of § 552(a)(g)(4) (1994) 6 Although Pippinger is not clear about the procedural aspects of his request, it would appear that he would like us to vacate the district court's Order, and remand for further discovery 7 The Wyoming Rules of Court also require parties to file written objections to magistrate judge's orders with the district court within ten days of receipt of those orders. Wyo. D.Ct. R. 74(a). See Niehaus, 793 F.2d at 1164-65 (applying similar Kansas District Court Rule) 8 Even if Pippinger had complied with the rule, his appeal would have failed on the merits. The Secretary of the Treasury, "under the regulations as to the custody, use, and preservation of the records, papers, and property appertaining to the business of his department, may take from a subordinate ... all discretion as to permitting the records in his custody to be used for any other purpose than the collection of the revenue, and reserve for his own determination all matters of that character." Boske v. Comingore, 177 U.S. 459, 470, 20 S.Ct. 701, 705-06, 44 L.Ed. 846 (1900); see also United States ex rel. Touhy v. Ragen, 340 U.S. 462, 71 S.Ct. 416, 95 L.Ed. 417 (1950). The Boske decision was based on a provision of the U.S.Code that has been revised several times, but presently provides that: The head of an Executive department ... may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public. 5 U.S.C. § 301 (1994). Thus, the magistrate judge did not abuse its discretion in denying Pippinger's motion to compel. Pippinger had no legal right to speak "informally" to any particular witness. Fed.R.Civ.P. 26(b)(1) provides that "[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action ...." (emphasis added). Rules 26 through 36 enumerate the formal mechanisms of discovery. Nowhere do the Federal Rules of Civil Procedure provide litigants with a right to conduct informal interviews.	{ "pile_set_name": "FreeLaw" }
Electronically Filed Supreme Court SCMF-12-0000538 28-APR-2017 05:25 PM NO. SCMF-12-0000538 SUPREME COURT OF THE STATE OF HAWAI'I In the Matter of the FEBRUARY 2017 EXAMINATION FOR ADMISSION TO THE BAR OF THE STATE OF HAWAI'I NOTICE OF PASSING THE HAWAI'I BAR EXAMINATION The applicants listed below are hereby notified that each has passed the February 2017 Hawai'i examination for admission to the Bar of the State of Hawai'i, as required by Rule 1.3(g)(1) of the Rules of the Supreme Court of the State of Hawai'i (RSCH): Heipua Maija Ah Loy Brittany Lynn Grunau Semmes Hill Bobo Hailialoha Dawn Hopkins Cody Glenn Bowman Daniel Anthony Joseph Hugo John Chesley Burruss Blair Ralph Jackson Kevin Charles Canty Joshua Caleb James Maria Florencia Casavilla Jeannin-Melissa Kapuakawekiu Rhiannon Renee Tereari'i Panlasigui Russo Jeremiah Chandler-'Iao Steven Dennis Johnson David Yi Chen Kenneth Scott Kasdan Ashley Chamonis Chinen Christine Jo Kim Justine May Chmielewski Kei Kitatani Loan Thi Dao Stephanie Yeun Kwun Lee David Russell Denton Marker Ellsworth Lovell, Jr. Jason Alexander Economou John Andrew Mannle Nicole Chieko Edwards-Masuda Carolina Monserrat Miranda Constanzo Jasmine Maria Fisher Linda Anne Monica Sean Patrick Fitzsimmons Michael Moskowitz James Clark Glenn, IV Gerard Stephen Murphy Brenda Hustis Gotanda Alyssa Mariko Nafarrete -1 Masaki Nakayama Sol Sung Semira Noelani Nikou Michelle Phuong My Tran Eileen Munnig Schmidt Nims Molly Sarah Turpin John Timothy O'Connell James Edward Wager-Smith James Takeshi Ogiwara Margaret LeAnn Webster Shannon Bomie Pae Christian Wellisch Noah Kila Peterson Nathan Alexander Wersal Timothy Joseph Rodes Keyra Kelia Wong Rebecca Michelle Salwin Jennifer Marie Young Julie Ann Sparks Each applicant is reminded that, until he or she has met all other requirements as set forth in RSCH Rule 1.3, and has been admitted to practice law by the Supreme Court of the State of Hawai'i, that applicant may not engage in the practice of law in this jurisdiction. DATED: Honolulu, Hawai'i, April 28, 2017. BOARD OF EXAMINERS By: /s/ Rochelle R.T. Kaui Its Secretary -2	{ "pile_set_name": "FreeLaw" }
361 So.2d 4 (1978) YANCEY & YANCEY CONSTRUCTION CO., INC. v. DeKALB COUNTY COMMISSION et al. 77-191. Supreme Court of Alabama. June 30, 1978. Robert G. Wilson of Scruggs, Rains & Wilson, Fort Payne, for appellant. Patrick H. Tate, Fort Payne, Terry T. Bush, Rainsville, for appellees. PER CURIAM. Plaintiff-appellant brought action to challenge the constitutionality of a coal severance tax levied by the DeKalb County Commission. Its challenge was based upon its contention that Act No. 906, Acts of Alabama 1975, page 1803, approved October 8, 1975, violated Article IV, Section 105 of the Constitution. The trial court held that the act was valid and the plaintiff appealed. It argues that the local act violates Article IV, Section 105 of the Constitution because a general act embodied in Title 51, § 431(23), Code (now § 40-13-9, Code 1975), levies a coal severance tax statewide and provides that no county shall levy a tax upon the privilege of severing coal in Alabama. Act No. 906 permits the County Commission of DeKalb County to levy a tax on the privilege of severing coal in DeKalb County. This court recently held in Peddycoart v. City of Birmingham, 354 So.2d 808, 813 (Ala.1978), that: ". . . By constitutional definition a general law is one which applies to the whole state and to each county in the state with the same force as though it had been a valid local law from inception. Its passage is none the less based upon local considerations simply because it has a statewide application, and already having 5 that effect, the constitutional framers have prohibited the enactment of a local act when the subject is already subsumed by the general statute." That holding, however, was expressly limited to legislation enacted after the date of that opinion: ". . . Henceforth when at its enactment legislation is local in its application it will be a local act and subject to all of the constitutional qualifications applicable to it. With regard to legislation heretofore enacted, the validity of which is challenged, this Court will apply the rules which it has heretofore applied in similar cases." (354 So.2d at 814) We must, therefore, look to rules which were applied to cases such as this prior to Peddycoart. The trial court tested the constitutionality of Act No. 906, supra, by those rules and concluded that it was not violative of Article IV, Section 105 of the Constitution. It noted that the plaintiff's contention when viewed in light of the language of the Constitution itself was sound; but that, in light of cases from this court construing that section, the constitutionality of the act must be upheld. The trial court correctly read the old cases, which hold that Section 105 does not prohibit local legislation merely because a general law deals with the same matter. In Standard Oil Co. of Kentucky v. Limestone County, 220 Ala. 231, 235, 124 So. 523, 526 (1929), this rule was announced: ". . . If, in the judgment of the Legislature, local needs demand additional or supplemental laws substantially different from the general law, the Legislature has power to so enact. Courts are charged with the duty to determine whether there is a substantial difference between the general and the local law, but cannot invade the legislative domain to determine whether a county should have a local law substantially different and in addition to the state law. . . ." A local act providing for a coal severance tax in Cullman County was recently challenged on the same grounds asserted here. This court upheld the act in Drummond Co. v. Boswell, 346 So.2d 955 (Ala.1977). This decision preceded Peddycoart and held: ". . . The test under § 105 is: "`. . . [whether] the object of the local law is to accomplish an end not substantially provided for and effectuated by a general law, notwithstanding there is a general law dealing with the subject or system affected by the local law.' Polytinsky v. Wilhite, 211 Ala. 94, 99 So. 843 (1924)." (346 So.2d at 957) The plaintiff also contested the validity of Act No. 667, Acts of Alabama 1976, page 913, approved August 23, 1976, which readopted the substance of Act No. 906 and, in addition, authorized the county commission to require each producer of coal to file a bond guaranteeing payment of the severance tax. It contends that that act, which originated in the Senate, is repugnant to the constitutional requirements that "All bills for raising revenue shall originate in the house of representatives. . . ." Article IV, Section 70, Constitution 1901. This court has held that that provision of the Constitution refers to bills which levy a tax as a means of collecting revenue. Opinion of the Justices, 259 Ala. 514, 66 So.2d 921 (1953). Act No. 667 does not levy a tax; it merely authorizes the county commission to impose a tax. The Constitution does not require such bills to originate in the House. Lastly, the plaintiff asserts that the bills are unconstitutional in that the legislature delegated to the county commission authority to fix the amount of the severance tax. It argues that counties have no inherent authority to tax and may do so only as authorized by the legislature. By § 11-3-11, Code 1975, the legislature has delegated to county commissions the authority: "To levy a general tax, for general county purposes and a special tax, for special county purposes, according to this Code." Tested by authority which controls legislation enacted before the Peddycoart decision, neither Act No. 906 nor Act No. 667 6 violates the Constitution. The judgment of the trial court is, therefore, affirmed. AFFIRMED. MADDOX, JONES and BEATTY, JJ., concur. TORBERT, C. J., and SHORES, J., concur specially. SHORES, Justice (concurring specially): I dissented in Drummond Co. v. Boswell, 346 So.2d 955 (Ala.1977), and only because the rule announced in Peddycoart v. City of Birmingham, 354 So.2d 808 (Ala.1978), was limited to legislation enacted after release of Peddycoart, do I concur here. TORBERT, C. J., concurs.	{ "pile_set_name": "FreeLaw" }
428 N.W.2d 310 (1988) In re the MARRIAGE OF Kenneth Robert ATHY and Ann Harriet Athy. Upon the Petition of Kenneth Robert Athy, Petitioner-Appellant, and concerning Ann Harriet Athy, Respondent-Appellee. No. 87-1337. Court of Appeals of Iowa. June 29, 1988. As Corrected September 19, 1988. 311 Jennifer J. Rose, Shenandoah, for petitioner-appellant. Thomas E. Stamets, Red Oak, for respondent-appellee. Considered by OXBERGER, C.J., and DONIELSON and SCHLEGEL, JJ. OXBERGER, Chief Judge. Kenneth Athy appeals the district court's decision granting custody of his two children, Erin and Annette, to their mother, Ann Athy, upon dissolution of their marriage. Kenneth requests this court grant both him and his wife joint custody of their children and award Kenneth physical custody. Both parties request a clarification of visitation rights. Additionally, Kenneth argues that the economic distribution was inequitable. We affirm the district court's decision as herein modified. Review of dissolution cases is de novo. Iowa R.App.P. 4. We give weight to the trial court's findings of fact, especially where the credibility of witnesses is involved; but we are not bound by them. Iowa R.App.P. 14(f)(7). Kenneth and Ann Athy were married on June 4, 1972. Two children were born of this marriage, Annette Louise and Erin, ages now ten and eight. Kenneth petitioned the district court for dissolution of this marriage on February 17, 1987. Trial was held on July 1, 1987, and the district court issued its decision regarding this matter on August 5, 1987. I. JOINT CUSTODY Kenneth requests the court grant both he and his wife joint custody of their children. In child custody cases, the best interests of the child is the first and governing consideration. Iowa R.App.P. 14(f)(15); Schoonover v. Schoonover, 228 N.W.2d 31, 34 (Iowa 1975). The factors considered in awarding custody are enumerated in section 598.41(3) of the Iowa Code and in In re Marriage of Winter, 223 N.W.2d 165, 166-67 (Iowa 1974), and need not be repeated here. The critical issue in determining the best interests of the child is which parent will do better in raising the child; gender is irrelevant and "neither parent should have a greater burden than the other in attempting to gain custody in a dissolution proceeding." In re Marriage of Bowen, 219 N.W.2d 683, 689 (Iowa 1974). Because our object is to make a custody award "which will assure the child the opportunity for the maximum continuing physical and emotional contact with both parents" after dissolution of the marriage, Iowa Code § 598.41(1) (1985), we favor granting joint custody whenever reasonable and in the child's best interests. When either parent applies for joint custody, we shall consider granting it even when the other parent opposes joint custody. Iowa Code § 598.41(2) (1985). In the event that joint custody is not awarded, it is necessary to cite "clear and convincing evidence... that joint custody is unreasonable and not in the best interest of the child to the extent that the legal custodial relationship between the child and a parent should be severed." Id. "These changes reflect a legislative preference for maximum parent-child contact in determining reasonable visitation, and require a court denying a request for joint custody to expressly cite clear and convincing evidence supporting its decision." In re Marriage of Miller, 390 N.W.2d 596, 599 (Iowa 1986). The trial court cited the following specific evidence as relevant to its determination of joint custody. 1. Kenneth testified the girls wanted to live with him. However the school nurse said Annette requested her mother attend her when she was recently hurt. 312 2. Kenneth permitted the girls to watch vulgar HBO movies. 3. Kenneth blacked out information put on day camp registration by Ann. The court found this "quite arrogant on the part of the petitioner." The trial court made the following conclusions: The parties are unable to communicate and Kenneth especially would "use these children as pawns in his relationship with the respondent." The trial court at the close of the trial orally addressed the parties and said: I would caution the parties, and especially Mrs. Athy, that it's obvious that she is extremely bitter. I hope that now that you have had your day in court that you can start restoring some balance between you and the children. With these facts and events in mind, we must determine whether the trial court erred in awarding sole custody to Ann and in rejecting an award of joint custody. We shall consider the best interests of the minor children by considering the factors stated in section 598.41(3). Positive factors indicating that joint custody is viable are as follows: 1. Each parent would be a suitable custodian for the children. 2. Both parents cared for the children when they were sick, assisted them in homework, disciplined the children and shared household maintenance activities. This activity occurred before and after the dissolution proceedings began. 3. Kenneth stayed in the hospital overnight with the children. He provided home care when one child had a tonsillectomy. He puts the children to bed and gives them their bath. He reviewed their school work and attends their school conferences. He makes their breakfast and plans their sack lunches. 4. The geographical location is advantageous to joint custody since both parties are remaining in Stanton. 5. Prior to trial the parties agreed to the distribution of their household goods. 6. The trial court felt the parties could agree to a visitation schedule so it did not make a special schedule. Neutral factors include the following: 1. Because of the children's ages, nine and seven at the time of trial, their wishes are not controlling. 2. A professional witness was not consulted by the parties or appointed by the trial court. The following are negative factors: 1. Ann is opposed to joint custody. 2. Ann opposed counseling for their children at Waubonsie Mental Health Center in Clarinda. 3. The parties lived together during the period between filing the dissolution action and trial. Many instances occurred during this period where each parent interfered with the other's relationship with the children. Both parties have bitterness toward each other that interferes with their communication with each other. 4. Ann was reluctant to permit Kenneth to have summer visitation with the girls. 5. Ann testified she was not willing at the present time to renew communication between herself and Kenneth. She said the following would be required before she would be willing to reopen communication: That family relationships are restored and that communication is positive and that those things which we agree are good for the children are followed and some of these negative things are eliminated. We conclude there isn't clear and convincing evidence sufficient to deny joint custody in this case. We believe the hostility between the parents is a temporary situation exacerbated by the continued living together during the post-dissolution filing period. Prior to this period of time the parties were jointly involved in the daily care of their children. We see insufficient reason to deny Kenneth the right to share in the normal parental responsibilities of the children's legal status of medical care, education, 313 extracurricular activities, and religious instruction. We modify the trial court's decree to provide Ann and Kenneth joint custody of their children Annette and Erin. II. PHYSICAL CARE We now turn to address the issue of which parent should have physical care of Annette and Erin. In our de novo review of the record we find that both parents are equally capable of properly raising these girls. We find insufficient reason to change the decision made by the trial court and so we affirm their physical care with Ann. III. VISITATION RIGHTS Kenneth requests that the district court's decision granting him nonspecific "liberal rights of visitation" is too vague. We agree. Black v. Black, 203 N.W.2d 121, 125 (Iowa 1972). Liberal visitation rights are in the best interests of the children. Iowa Code § 598.41(1). In Re Marriage of Muell, 408 N.W.2d 774, 777 (Iowa App.1987). We adopt the following visitation schedule: a) Kenneth will have visitation rights with his daughters every other weekend from 5:00 p.m. on Friday until the following Sunday at 5:00 p.m. commencing the first weekend following the date of this decision. b) Kenneth will have visitation rights with his daughters one night each week, any day between Monday and Thursday, from 5:00 p.m. until 8:00 p.m. c) Beginning in 1988, Kenneth will have the girls with him during the children's school Christmas vacation. Kenneth will have the girls during spring break in 1990. Following years the parties are to alternate Christmas and spring breaks accordingly. The parties shall cooperate so the girls may spend part of Christmas day with each parent. d) Beginning in 1989, Kenneth will have visitation rights with his daughters on their birthdays in alternating years. The parties shall cooperate so the girls may spend a part of the birthday with each parent. e) Beginning in 1988, Ann will have the girls with her on Thanksgiving Day. In years thereafter, the parties will continue to alternate this holiday. Kenneth shall have the girls for four weeks each summer, beginning in 1988. IV. ECONOMIC DISTRIBUTIONS Kenneth argues that the district court, in determining economic distribution between the parties, undervalued the equity in the family home, made no finding concerning his inherited and gifted properties, and erroneously valued the amount of cash on hand held by each party. We affirm the district court's economic distribution as herein modified. Iowa courts apply a standard of equity in determining economic distribution in dissolution cases. Iowa Code § 598.21(1) (1987) and Locke v. Locke, 246 N.W.2d 246, 251 (Iowa 1976) (court quoting Schantz v. Schantz, 163 N.W.2d 398, 405 (Iowa 1968)). In the case presently before us, it is unclear whether the donors, Kenneth's parents, intended to give the money solely to Kenneth. Kenneth testified that this money was a gift to him alone; Ann testified otherwise. Kenneth's mother spoke at length concerning other issues, but gave no testimony regarding her donative intent. It is only clear from the record that such money was placed in Ann and Kenneth's joint banking account and used for family debts. The money has been spent in the exercise of fulfilling the parties' responsibility to provide for the family unit. Kenneth has received full benefit of the use of this money in discharging this responsibility. To set aside this sum for Kenneth would give rise to an inequitable result. Kenneth argues that the trial court undervalued the equity in the home. The district court awarded Ann all rights, title and interest in the family home and severed all of Ken's claims to that title. Ann estimates the equity in the family home to be $701.44; whereas Kenneth estimates the 314 equity to be $11,202, the trial court found the equity to be $5,700, a figure we accept. Each partner is "entitled to a just and equitable share of the property accumulated through their joint efforts." In re Marriage of Havran, 406 N.W.2d 450, 452 (Iowa App.1987). All economic aspects of the decree must be considered in reaching an equitable distribution. Id. Ann's earning capacity is presently larger than Kenneth's. However, Kenneth chose to leave the teaching profession and enter a less profitable line of work. Ann has custody of the children and will be primarily responsible for their financial needs unless modification for support is made to the court in the future. This decree finds Ann's assets (cash on hand) to be $20,892 and Kenneth's assets to be $18,099. Kenneth is awarded the Datsun as an inheritance valued at $1,250, and is awarded the Dodge pickup valued at $2,695. Ann is awarded the family Buick valued at $3,000. We find the trial court did substantial equity and we affirm the economic matters. We affirm the district court's award of trial attorney fees and trial court costs. Neither party is awarded attorney fees. Appellate court costs are taxed equally. AFFIRMED AS MODIFIED.	{ "pile_set_name": "FreeLaw" }
291 F.2d 859 UNITED STATES of America, Appellee,v.Howard J. McCALL, Defendant-Appellant. No. 398, Docket 26633. United States Court of Appeals Second Circuit. Argued May 25, 1961.Decided June 26, 1961. J. Robert Lunney, of Shearman & Sterling, New York City, for appellant. Arthur I. Rosett, Asst. U.S. Atty., S.D.N.Y., New York City (Robert M. Morgenthau, U.S. Atty., and George I. Gordon, Asst. U.S. Atty., New York City, on the brief), for appellee. Before CLARK and WATERMAN, Circuit Judges, and ANDERSON, District judge. CLARK, Circuit Judge. 1 Appellant was convicted on two counts for violations of 18 U.S.C. 876, and received concurrent suspended sentences of two years on each count. The first count alleged that appellant had sent a threatening letter to one Lane with the intention of extorting money from him, and the second count alleged only the sending of the threatening letter, without reference to an intent to extort. Both counts are based on the sending of the same letter on December 18, 1959. During the period that appellant was in custody he vountarily gave the FBI a written statement admitting that he wrote the letter mentioned in the indictment. At the trial, appellant testified in his own behalf, primarily in an attempt to mitigate punishment, and admitted writing and mailing the letter for which he was indicted. He claimed that Lane was an individual of dubious character who owed him $30,000, and that he wrote the letter in exasperation after Lane had repeatedly given him the runaround. 2 Appellant's principal point on appeal relates to the admission in evidence of certain papers seized from him at the time of his arrest on January 7, 1960. Appellant claims that the warrant for his arrest was issued upon an insufficient, complaint, and that the arrest and accompanying search and seizure were therefore illegal. Doubt may well exist as to whether the complaint was sufficient under the standards laid down in Giordenello v. United States, 357 U.S. 480, 78 S.Ct. 1245, 2 L.Ed.2d 1503, and Di Bella v. United States, 2 Cir., 284 F.2d 897, certiorari granted 365 U.S. 809, 81 S.Ct. 692, 5 L.Ed.2d 690, and as to whether the papers taken from appellant were properly subject to seizure, even if the arrest were legal. See Abel v. United States, 362 U.S. 217, 234-235, 80 S.Ct. 683, 4 L.Ed.2d 668. But we do not need to consider these troublesome questions, because we are convinced that the documents seized had no effect whatsoever on the substantial rights of the appellant. Fed.R.Crim.P. 52(a). The only purpose for which the documents were used at trial was to make handwriting and typewriting comparisons. Since appellant freely admitted writing the letter, both before and during the trial, there could be no possible prejudice from the admission of samples of his handwriting even if they had been improperly seized. Moreover, defense counsel stated in his summation to the jury that the doubtful validity of the handwriting comparison was not 'of any great moment here at this time because when the defendant took the stand in his own behalf he admitted having written the letter.' 3 Appellant's second point concerns an alleged appeal to religious prejudice in the prosecution's closing statement to the jury. The letter written by the defendant had contained some rather vicious remarks in this connection. In closing, the prosecution admonished the jury not to let such factors influence it. The judge gave a similar instruction to the jury. While the interjection of the issue of prejudice into the trial was unfortunate, it was made inevitable by the contends of defendant's letter; and we do not find any reversible error. 4 We express our appreciation to assigned counsel for the appellant for his devoted service both as trial counsel and on this appeal. 5 Conviction affirmed.	{ "pile_set_name": "FreeLaw" }
70 N.J. 178 (1976) 358 A.2d 469 IN THE MATTER OF JAMES J. CALLAHAN, AN ATTORNEY AT LAW. The Supreme Court of New Jersey. Argued December 2, 1975. Decided May 11, 1976. Mr. John Lee Madden argued the cause for the Burlington County Ethics Committee. 179 Mr. Francis J. Hartman argued the cause for respondent (Messrs. Hartman, Schlesinger, Schlosser & Faxon, attorneys). PER CURIAM. This disciplinary proceeding against respondent, a member of the bar of this State, grows out of an investigation by the Ocean County Prosecutor's office of official corruption in Jackson Township of which respondent was Township Attorney during 1969 and 1970. As a result of the investigation, respondent and several others were indicted on various charges of conspiracy, bribery and corruption arising out of Township approval of an application for a trailer park license. A separate indictment was also returned against respondent charging him with soliciting a bribe, misconduct in office and conspiracy to bribe involving a senior citizens garden apartment in the Township. Respondent was tried separately on each indictment and ultimately acquitted of the charges by jury verdict. Thereafter, at the direction of this Court, respondent's conduct as an attorney in these same matters was investigated by the Burlington County Ethics Committee, which filed a statement of charges in two counts.[1] The first count alleged that respondent, while Township Attorney, worked against his own client's interests and conspired with two individuals to bribe public officials in Jackson Township to remove an age restriction on occupancy of an 18 to 20 unit senior citizens garden apartment owned by Doral Construction Company. A summary of the factual background of this matter is set forth in this Court's opinion in In re Sabatino, 65 N.J. 548 (1974). The owners of the garden apartment had attempted to comply with the restriction which limited occupancy to persons over 62 years of age, but were plagued by substantial 180 vacancies with resultant serious financial problems. Consequently, they began to rent to persons without regard to age. Efforts were then made to have the age restriction lifted, but the Township took no action on these applications. The owners also were confronted with a suit brought by the municipality to enforce the restriction. Frank Vogel, who had been one of the principals of Doral, suggested that the most expeditious way to have the restriction lifted was to bribe certain Township officials. He called upon Murray Eisdorfer, another principal of Doral, to furnish $9,000 which was to be used largely for that purpose.[2] Eisdorfer, however, reported the matter to the prosecutor's office and implicated Vogel and one Arthur Sabatino, who was then a New Jersey attorney representing Vogel. As a result, the prosecutor's office, with Eisdorfer's cooperation, made recordings of telephone conversations which Eisdorfer had with Vogel and Sabatino and of a personal conversation between Eisdorfer and Sabatino.[3] When Vogel and Sabatino were confronted with the incriminating evidence against them they agreed to assist the prosecutor's office which was trying to reach the public officials involved. It was through their cooperation that recordings of conversations were made which directly implicated respondent in the case. The transcripts of these conversations demonstrate that a conspiracy to bribe public officials existed, that respondent knew of the plan and discussed terms and ramifications of the bribe or attempted bribe with Vogel and Sabatino. On one occasion, May 15, 1970, Vogel and Sabatino went to respondent's office with $4,000 in marked money and tendered it to him on the basis that it would "take care 181 of everything." Respondent refused the money saying he had originally figured "I could get it for a thousand dollars a vote. I can't guarantee that now * ," adding that the members of the Board of Adjustment were suspicious and that if he walked in with four thousand dollars they would think he "got ten." He suggested that the Chairman of the Board of Adjustment be approached directly. At a subsequent meeting between the same parties held in respondent's office on June 16, 1970, a discussion was had about how to get the Board of Adjustment to recommend that the senior citizen restriction be lifted. In answer to an inquiry from Sabatino as to whether each member would have to be paid individually, respondent answered "no" and he gave the name of an individual who he said would be the "bag man" for the Board of Adjustment and probably also for the Township Committee. Respondent also said that at least three members of the Board would have to be paid and suggested a thousand dollars "for each vote." However, with regard to the Township Committee, which would have to approve the Board's recommendation, respondent said three councilmen would have to be paid and he did not think "you'll get by" for a thousand apiece; that it was "usually a thousand dollars a unit they go, that's for the entire package." (The project contained 18 to 20 units.) When Sabatino expressed amazement at the figure, respondent merely said "It's a big business Art." Respondent concedes, as indeed he must, that the transcripts indicate the proposed bribery of Jackson Township public officials. His explanation is that he did not want to appear to be a "goody goody," nor did he want to hurt the feelings of Vogel and Sabatino by refusing to indicate his participation. Accordingly, he just strung them along with talk but "I never went along" and never intended to be a party to an actual bribery. This explanation is incredible. If words mean anything, respondent's recorded conversation plainly implicates him in the proposed bribery. Even were we to give some credence 182 to respondent's story, which we do not, his failure as Township Attorney to report an ongoing plan to bribe Township officials to the appropriate authorities constituted a gross violation of his ethical responsibility. The Ethics Committee's finding that respondent's conduct was a violation of the then Canons of Professional Ethics, Articles 15, 16, 29, 32 and 44, is supported by clear and convincing evidence. The second count of the statement of charges heard by the Ethics Committee set forth that respondent, while Jackson Township Attorney, knowingly participated in an illegal plan whereby one Clarence Sprinkle paid $5,000 in return for a favorable vote from Committeeman "X" approving an application for a trailer park license in Jackson Township. In particular, respondent was charged with having received the $5,000 for his friend and client Committeeman "X", knowing the money was a bribe. The record shows that Sprinkle, who was a former Township Committeeman, had entered into an agreement with the principals of the proposed trailer park, which was to be located in Jackson Township, in which he was to help obtain approval of the pending application for a trailer park license. In return, he would be awarded the park building contract on a cost-plus basis (he testified that this is where the "real money" was) and was to receive a $35,000 cash payment. It was understood that the $35,000 was to be used to the extent necessary to buy votes. Sprinkle received the money in several installments, one of which, $20,000, was paid by one of the principals of the trailer park on May 5, 1970, the day after the application had been approved by the Township Committee. The involvement of Committeeman "X" stemmed from his serious financial problems which were climaxed by the entry of a judgment, the sequestration of assets and the prospect of civil arrest. "X" had approached Sprinkle and asked to borrow $5,000 from him. The two met in respondent's office where respondent explained the nature and gravity of "X's" financial problem. 183 At the same meeting, Sprinkle agreed to give "X" the money if the trailer park application was approved. However, Sprinkle said that this part of the arrangement was not made in the presence of respondent and respondent testified that, as far as he understood, the $5,000 payment was to be a bona fide loan from Sprinkle to Committeeman "X." The application for the trailer park was approved by the Township Committee on May 4, 1970 by a two-to-one vote with Committeeman "X" voting in favor of the application. Respondent was present at this meeting. The next day, by arrangement, Sprinkle met with respondent and "X" in a diner and delivered a $5,000 check payable to respondent. This was a part of the $20,000 which Sprinkle had received that morning from one of the principals of the trailer park. Respondent and "X" then went to the creditor's attorney and satisfied the judgment, using respondent's check on his escrow account.[4] Upon returning to his office respondent deposited the check he had received from Sprinkle in his escrow account. Respondent testified that he did not learn that the "loan" to "X" was actually a bribe until three years later. Yet in the transcript of the May 15, 1970 office conversation between respondent, Vogel and Sabatino, concerning the removal of the age restriction on the senior citizens garden apartment, respondent mentioned that "X" "got five thousand dollars for voting yes" in a matter that passed by a two-to-one vote.[5] Respondent concedes that he was referring to the May 4, 1970 trailer park vote in this comment. When asked to 184 explain it, he said that, after the vote, he had heard remarks by people who attended the meeting made in "a kidding fashion" that some chicanery had taken place with regard to this vote. It seemed to him, at the time, advantageous "to use this as an antidote to explain to Vogel and Sabatino that bribery is not the course of action that should be taken." He said the $5,000 figure just "popped" into his head. This explanation simply does not make any sense. To put it plainly, it is pure gibberish. The above mentioned excerpt from the May 15, 1970 transcript demonstrates that ten days after the $5,000 had been paid by Sprinkle, respondent referred to it as a payment for a vote. Aside from the foregoing, respondent's admitted knowledge that Sprinkle was a "wheeler-dealer," the sequence of events, the timing of the $5,000 payment and the fact that the check was signed by a principal of the mobile home project, all point clearly and convincingly to respondent's knowledge of and participation in the corrupt venture. There is much more evidence in the record clearly and convincingly linking respondent to the bribery and corruption heretofore set forth. Suffice it to say we find that respondent's attempted explanation of his conduct (including his taped conversations) given at length before the Ethics Committee is patently unbelievable. We recognize that respondent was acquitted of criminal charges based on substantially the same conduct involved in the Ethics Committee Presentment. However, such acquittal is not res judicata in a disciplinary proceeding. In re Pennica, 36 N.J. 401, 418 (1972). Respondent does not question this proposition. The extent of discipline to be imposed is mandated by In re Sabatino, supra, and In re Colsey, 63 N.J. 210 (1973). See also, In re Hyett, 61 N.J. 518 (1972). We have heretofore referred to the bribery of public officials as a blight that destroys the very fabric of government. There are no extenuating circumstances. Respondent has demonstrated his *185 unfitness to practice law. His name is hereby stricken from the rolls. For disbarment Chief Justice HUGHES, Justices MOUNTAIN, SULLIVAN, PASHMAN, CLIFFORD and SCHREIBER and Judge CONFORD 7. Opposed None. NOTES [1] The matter was not heard by the Ocean County Ethics Committee because of personal relationships between members of that Committee and respondent. [2] According to Vogel, Eisdorfer had previously taken $9,000 of Doral funds for his own use. [3] These recordings subsequently formed the basis of disciplinary proceedings against Arthur Sabatino resulting in his disbarment. See In re Sabatino, supra. [4] Satisfaction of the judgment required $8,055.35. The difference between this amount and the $5,000 had been furnished that morning by "X" to respondent's office and deposited in respondent's escrow account. [5] This comment by respondent in the May 15, 1970 transcript alerted the prosecutor's office to a possible bribe other than the one they were then investigating, and ultimately led it to the trailer park application and vote.	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT AUGUST 2, 2007 No. 06-12820 THOMAS K. KAHN Non-Argument Calendar CLERK ________________________ D. C. Docket No. 05-00272-CR-J-20-TEM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDUARDO IRVIN, a.k.a. Marc Jean Phillipe, a.k.a. Wayne Alfanso Wilmot, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Middle District of Florida _________________________ (August 2, 2007) Before BIRCH, BARKETT and PRYOR, Circuit Judges. PER CURIAM: Lynn Palmer Bailey, appointed appellate counsel for Eduardo Irvin, has filed a motion to withdraw on appeal, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Irvin’s conviction and sentence are AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS OF VIRGINIA Present: Judges Coleman, Elder and Senior Judge Cole Argued at Salem, Virginia JANET SUSAN BOYD LOONEY OPINION BY v. Record No. 0802-99-3 JUDGE MARVIN F. COLE APRIL 4, 2000 TEDDY RUSSELL LOONEY FROM THE CIRCUIT COURT OF BUCHANAN COUNTY Keary R. Williams, Judge Robert M. Galumbeck (Dudley, Galumbeck & Necessary, on brief), for appellant. S. T. Mullins (Street, Street, Street, Scott & Bowman, on brief), for appellee. Janet Susan Boyd Looney (mother) appeals the decision of the circuit court awarding her child support in an amount which deviated from the statutory child support guidelines contained in Code § 20-108.2(B). The trial court ordered Teddy Russell Looney (father) to pay $200 in child support pursuant to the terms of the parties' Separation and Property Settlement Agreement (agreement). Mother contends on appeal that the trial court erred by failing to award the presumptive guideline support amount of $548. We find that the trial court did not err when it deviated from the statutory guidelines. Accordingly, we affirm the decision of the trial court. The evidence was received by the trial court ore tenus. On review, we consider the evidence in the light most favorable to the party prevailing in the trial court. Where the trial court's decision is based upon an ore tenus hearing, its determination will not be disturbed on appeal unless it is plainly wrong or without evidence in the record to support it. Schoenwetter v. Schoenwetter, 8 Va. App. 601, 605, 383 S.E.2d 28, 30 (1989). The record on appeal includes a written statement of facts setting out the evidence presented below. On June 6, 1997, the parties executed a written agreement under which father agreed to pay $200 in monthly child support for the parties' two minor children. Father agreed to pay support until the older child reached the age of twenty-two, at which time the parties agreed father would pay $100 in monthly support. Both parties waived spousal support, although mother agreed to provide health insurance coverage for father for three years as long as she was covered through her employment. Father was required to pay the cost of any additional premiums. Under their agreement to split certain jointly owned real estate, mother received the marital residence and an adjacent piece of property, while father received a parcel of property near the Grundy Airport. The parties waived all interest in the other's retirement benefits and agreed to their current division of personal property. Mother also waived any interest in three companies in which father was a part owner. - 2 - Mother filed her bill of complaint on December 24, 1997, seeking a divorce on the ground that the parties had lived separate and apart in excess of one year. See Code § 20-91(A)(9). In her bill of complaint, mother asked the trial court to ratify, approve and confirm the agreement into its decree. Father admitted the allegations set out in mother's complaint and also asked the court to ratify the agreement into its final decree. By notice filed April 1, 1998, mother indicated that she was seeking child support pursuant to the Code § 20-108.2 guidelines rather than the amount set out in the parties' agreement. The trial court held an evidentiary hearing on May 29, 1998. As set out in the written statement of facts approved by the trial court, mother testified that she agreed to the reduced amount of child support because father told her that his monthly income had decreased to no more than $1,200. However, when father subsequently purchased a motorcycle and made changes to his house, mother believed he was earning more than he had disclosed. Mother admitted the marital residence she received under the agreement was worth approximately $70,000 and that her retirement account contained about $30,000. She estimated that the airport property received by father was worth about $10,000 and that father's retirement account contained about $4,000. Mother agreed it was possible that at least one of father's - 3 - companies had debts exceeding its assets. Mother testified that she earned $60,000 annually in her new job. Mother stated that the terms of the property settlement were not a factor in the agreement as to child support and that she agreed to the reduced child support amount solely because father represented that he could not pay more per month. On cross-examination, however, mother admitted the terms of the agreement were dependent on the others and she would not have agreed to the child support amount absent the other terms. Father presented evidence that his income in 1997 was $30,277. He testified that he assumed additional personal debt in January 1998 to purchase a piece of heavy equipment. He also testified that he purchased the motorcycle on credit and performed the work around his home himself. Father testified that he viewed the terms of the agreement as dependent on each other. He would not have waived spousal support and his right to mother's retirement benefits while agreeing to support the older child past his majority without the agreement as to child support. The trial court found that there had been no substantial change in father's income after the agreement was executed. The court also found that agreement as to child support was an integral part of the parties' entire agreement, including father's agreement to pay support beyond the older child's majority. - 4 - We find no error in the trial court's determination that the circumstances warranted a downward deviation from the presumptive amount of child support. "In determining child support, there is a rebuttable presumption that the amount determined in accordance with the statutory guidelines, Code § 20-108.2, is the correct award." Should the trial judge conclude that "application of [such] guidelines would be unjust or inappropriate in a particular case as determined by relevant evidence pertaining to the factors set out in §§ 20-107.2 and 20-108.1," the court may depart from the statutory schedule, provided the attendant order adequately explains the deviation. Cooke v. Cooke, 23 Va. App. 60, 63, 474 S.E.2d 159, 160 (1996) (citations omitted). The trial court determined the presumptively correct amount of child support pursuant to Code § 20-108.2(B). See Richardson v. Richardson, 12 Va. App. 18, 21, 401 S.E.2d 894, 896 (1991). The court then enumerated the factors it considered before concluding that the circumstances of this case warranted a deviation from the statutory guidelines. See Code § 20-108.1. The court specifically found that the agreement protected the best interests of the children. The trial court complied with the statutory requirements, and its conclusion has evidentiary support. Therefore, we find no reversible error. - 5 - Accordingly, the decision of the circuit court is affirmed. Affirmed. - 6 -	{ "pile_set_name": "FreeLaw" }
207 F.2d 503 Elizabeth S. HALBACH and Franklin H. Stafford, as TrusteesUnder Agreement of Trust Made by Ernest K.Halbach, Dated December 6, 1940,v.James E. MARKHAM, as Alien Property Custodian.Appeal of Anne Halbach BUMSTED and Mary Elizabeth Kemmerer,Successors in Interest to the Above-named Trustees. No. 10907. United States Court of AppealsThird Circuit. Argued Oct. 22, 1953.Decided Nov. 2, 1953. Alvin O. West, Washington, D.C. (Joseph B. Keenan, Washington, D.C., Thomas J. Brogan, Jersey City, N.J., on the brief), for appellants. David Schwartz, Washington, D.C. (Rowland F. Kirks, Asst. Atty. Gen., Director, Office of Alien Property, Washington, D.C., Paul V. Myron, Deputy Director, Dorchester, Mass., Grover C. Richman, Jr., U.S. Atty., Dist. of N.J., Camden, N.J., James D. Hill, George B. Searls, Paul E. McGraw, Washington, D. C., Attorneys, on the brief), for appellee. Before MARIS, GOODRICH and KALODNER, Circuit Judges. PER CURIAM. 1 The plaintiffs appeal from an order of the district court denying their motion filed January 25, 1951 to vacate the stipulation and judgment of dismissal with prejudice which had been entered by the district court on February 2, 1945 in their action to recover from the defendant 4725 shares of stock of General Dyestuffs Corporation which he had seized on June 30, 1942 under the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 1 et seq. The stipulation and judgment in question involved a compromise settlement of the litigation under which the defendant paid the plaintiffs the sum of.$557,550, or $118 per share, and retained the shares which were then worth much more than that amount. 2 In support of their motion the plaintiffs assert that neither the defendant Alien Property Custodian nor the Attorney General who represented him in the litigation were legally authorized to make the compromise settlement in question and that the stipulation agreeing to the settlement was executed by the plaintiffs under duress. Both contentions were fully considered by the district court and were held to be without merit in a comprehensive and well reasoned opinion filed by Judge McLaughlin. 106 S.Supp. 475. We find ourselves in complete accord with the views therein expressed and need add nothing thereto. 3 The order of the district court will be affirmed.	{ "pile_set_name": "FreeLaw" }
71 F.Supp. 266 (1947) HALL et al. v. AMERICAN CONE & PRETZEL CO. et al. Civil Action No. 6368. District Court, E. D. Pennsylvania. April 1, 1947. Morton P. Rome, Sundheim, Folz, Kamsler & Goodis, and M. Walton Sporkin, Jr., all of Philadelphia, for plaintiffs. J. Hector McNeal, Nathaniel Shapiro, C. Brewster Rhoads, and Sidney L. Wickenhaver, all of Philadelphia, Pa., and John S. Rhoda, of Reading, Pa., for defendants. KIRKPATRICK, District Judge. This is a stockholders' suit, both derivative and representative, based on injuries 267 to the corporation and to its stockholders, alleged to have been caused by misconduct on the part of officers and directors in their official capacity. The defendants are American Cone and Pretzel Company, a West Virginia corporation, which will be called "the company," six subsidiary or affiliated corporations of various states and thirteen persons, including officers and directors of the company and comprising a "control group." The defendants have filed motions to dismiss and sever the complaint and for a more definite statement. I am satisfied that each of the counts sufficiently states a cause of action upon which relief can be granted and that, without further particularization, they sufficiently apprise the defendants of its nature. The important question is whether the action involves such a degree of interference with the internal affairs and management of a foreign corporation that this Court should decline to exercise its jurisdiction. The complaint contains nine counts each of which deals with separate transactions, not directly related to one another but all alleged to be manifestations of a general plan and course of conduct on the part of the defendants in which they used their corporate offices and the company itself for their own personal profit. The third and eighth counts attack the legality of two consummated plans of recapitalization of the company, the first in 1924 and the second in 1944. The prayers for relief based on these two counts ask for the complete nullification of the very substantial alterations of the company's charter by which each of the two reorganizations was accomplished and a return to the status quo ante, with the object of restoring the first prefered stockholders to all the rights which they had prior to the reorganizations, including par value, accumulated dividends and guarantee and redemption fund rights. The remaining counts seek accounting and reimbursement by the individual defendants for alleged wrongs done the company and its stockholders, ouster of officers and directors, election of new officials, appropriate injunctions and the appointment of a receiver and accountants for the company and the allied corporations, if needed. In Williams et al. v. Green Bay & Western R. Co., 326 U.S. 549, 66 S.Ct. 284, 287, the Supreme Court considered fully the general principles governing the question here presented. Without attempting a complete analysis of the opinion (almost all of which has a bearing upon the present problem), the gist of it is that the mere fact that a suit concerns the internal affairs of a foreign corporation is not decisive and does not of itself require the court to decline to take the case. On the contrary, the Supreme Court fully recognizes throughout the opinion that the rule of forum non conveniens means no more than that the circumstances of a particular case may be such that it could be better tried in the state of incorporation and if so that it is the duty of the court to decline to hear it, otherwise it may, in its discretion, entertain it. The opinion refers to a number of factors which the court must consider in determining whether to exercise its discretion, among which are mentioned the possible vexatious or oppressive result of a suit away from the domicile of the defendant and the difficulty of the court's making its decree effective, because of its limited territorial jurisdiction, all of which the Court summed up as follows: "The relief sought against a foreign corporation may be so extensive or call for such detailed and continuing supervision that the matter could be more efficiently handled nearer home." Efficiency of handling involves administering the remedy as well as establishing the right. In the Green Bay case, supra, the relief asked for was nothing more than a money judgment against the corporation. The Court assumed for the purpose of the decision that the ascertainment of the amount of the judgment would necessitate a review of the discretion of the directors of the corporation in withholding certain payments out of profits and, of course, that would involve the internal affairs of the company. Pointing out that many types of actions against foreign corporations involve 268 in a sense its internal affairs, Mr. Justice Douglas said, "The point is that, however this suit be viewed, the relief sought is not of such a character as to suggest that the federal court of New York would be so handicapped that it should remit the parties to Wisconsin." In the present case the third and eighth counts go far beyond matters of management, policy and discretionary acts of officers. The entire corporate structure is attacked and the relief sought (practically a new charter for the company) could not be accorded without the most complete, drastic and thorough-going interference with its internal affairs imaginable. Without stressing the difficulties which might arise in compelling administrative action by the officials of the State of West Virginia necessary to accomplish the result desired, it seems plain from the nature of the issue and of the relief sought that this Court must decline to exercise its jurisdiction, so far as these two counts are concerned. In the remaining seven counts, the interference with the internal affairs of the company is so much less in degree and the relief asked is so different in kind that they must be considered in an entirely different category. As to them, unless this Court is bound by the law of the State of Pennsylvania (a point to be discussed later), considerations such as those which caused the Supreme Court in the Green Bay case to direct the Court to take jurisdiction, are all in favor of this Court's doing so. There is no difficulty about an appropriate remedy if the plaintiff establishes his case. An accounting, a money judgment and restitution, all can be readily obtained by a decree enforceable against the individual defendants. The authorities cited with approval in the footnote of the Green Bay opinion put a rather heavy burden on the party seeking to persuade the court to hold its hand. "The inconvenience, then, must amount to actual hardship, and this must be regarded as a condition sine qua non of success in putting forward a defense of forum non conveniens. For the general rule is that a court possessing jurisdiction must exercise it unless the reasons to the contrary are clear and cogent." In the present case, except as to the third and eighth counts, it is the reasons for, rather than those against, exercising jurisdiction which are clear and cogent. The principal plant and business office of the company is and always has been in the Eastern District of Pennsylvania. Only the minimum acts necessary to keep the corporation alive are performed in West Virginia. The primary bank account of the company is kept in this district. The transfer books, minute books and main official records are kept here. Directors' and stockholders' meetings have usually been held here. The bulk of the trading in the company's stock has been carried on in the over-the-counter market in Philadelphia. Dividend checks are mailed from Philadelphia. The majority of the Board of Directors has always consisted of residents of Philadelphia. Three of the five directors, including the one alleged to have been the controlling stockholder throughout, are residents of Philadelphia. These facts leave little doubt as to where the balance of convenience lies. In addition, only one or two of the defendants are residents of West Virginia and this fact raises the doubt whether, if suit on these counts had to be brought in West Virginia, there might not be such difficulty in subjecting the majority of the defendants to process as to leave the plaintiff practically remediless. These seven counts, then, come fairly within the scope of the decision in the Green Bay case, supra, holding that such a suit is properly retained by the court. This makes it necessary to consider the defendant's contention that this Court is bound, under the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, by the law of Pennsylvania. If so, then, in spite of the Green Bay case, these counts also would have to be dismissed because the rule of the Pennsylvania courts, as correctly stated by the defendants, is as follows: "The courts of Pennsylvania have always stated categorically this rule of non-interference with a foreign corporation. They have not placed the rule on the ground of convenience and have not attempted to distinguish cases in which a 269 Pennsylvania court might be a convenient tribunal. The sole test of exercise of jurisdiction has been whether the suit actually involves the internal affairs of a foreign corporation," and it cannot be denied that these counts do involve the internal affairs of the company as the Pennsylvania courts have interpreted those words. The Supreme Court in the Green Bay case, although it noted the decision of the Circuit Court of Appeals of the Second Circuit in Weiss et al. v. Routh et al., 2 Cir., 149 F.2d 193, 159 A.L.R. 658, to the effect that the federal court in a diversity case is required to apply the local rule of forum non conveniens, expressly refrained from ruling upon the point. In view of the fact that almost all of the opinion is devoted to discussing general principles for the guidance of the federal courts, without reference to state rule, it can hardly be assumed that the Court was ready to sanction Weiss v. Routh, supra, as a fully acceptable statement of the law. In fact, if any inference at all is to be drawn from the mention of the case, it would appear to be in the opposite direction. The opinion in the Green Bay case nowhere suggests that the discretion of the court to decline jurisdiction on the ground of forum non conveniens is absolute. On the contrary, the principles governing and setting limits upon its exercise of discretion are carefully pointed out, and thus there seems to be no ground for Judge Hand's apprehension that if it be held that the considerations which will set the court in motion are peculiar and personal to itself, it would follow that the decision to accept jurisdiction is "not controlled by any principle and may be at the judge's whim." Jurisdiction of subject matter and persons is not questioned. If it were, there would be not the slightest doubt that state law would be entirely without effect. The propriety of exercising jurisdiction is what is in issue a discretionary matter, very closely related to jurisdiction and involving the freedom of the federal courts to act in their own domain. It seems to me that the policy governing the primary question applies in a large degree to the related one, and that a federal court's discretion in the exercise of its jurisdiction should not be controlled by rules made by state courts for their own guidance. What has just been said applies to the 1st, 2nd, 4th, 5th, 6th, 7th and 9th counts. One of these counts (the 6th) charges violation of the Securities Act of 1934, 15 U.S.C.A. § 78a et seq., and as to it, the reasons for not following the state rule are even stronger. The right under the statute is not derived from one of the states but from the United States, and the mode and place of enforcing that right are matters which belong to the federal courts. We thus have a suit based on a number of causes of action some of which, had they been sued upon separately, would have been properly cognizable by this court and others not. As long as the suit remains entire and so includes the 3rd and 8th counts, it cannot be proceeded with without such degree of interference with the internal affairs of the company as forbids this court to entertain it. The defendants have moved to sever the causes of action in the complaint, and I think they are severable, but it is conceded that severance is a matter within the discretion of the court. The plaintiff is opposing any severance at the present time. Whether he will continue to do so, in view of what has been decided in this opinion, I do not know. He may now be willing to agree to the severance and proceed in this court with the trial of all the causes of action except the 3rd and 8th. On the other hand, the two main brands are somewhat interrelated, and it may be that it would be unfair to him to compel him to try his case on the fraud and misconduct grounds here while at the same time depriving him of the opportunity to attack the two recapitalizations of the company which are complained of in the 3rd and 8th counts. He can try his suit as a whole in West Virginia, which is what the defendants want him to do. However, he brought it here as a whole and I think that if he desires to have it disposed of as such he is entitled to do so. An order will, therefore, be entered that the entire complaint will be dismissed unless within twenty days the plaintiff either moves or stipulates for severance of the 270 3rd and 8th counts from the others, in which case the 3rd and 8th counts only will be dismissed.	{ "pile_set_name": "FreeLaw" }
10 Kan. App. 2d 319 (1985) 698 P.2d 392 OLDRICH BROZEK, Claimant, v. LINCOLN COUNTY HIGHWAY DEPARTMENT, COMMERCIAL UNION INSURANCE COMPANY, Appellees, and KANSAS WORKERS' COMPENSATION FUND, Appellant. No. 57,179 Court of Appeals of Kansas. Opinion filed April 18, 1985. John C. Nodgaard and Stuart R. Collier, of Arn, Mullins, Unruh, Kuhn & Wilson, of Wichita, for appellant. James T. McIntyre and Casey R. Law, of Turner & Boisseau, Chartered, of Great Bend, for appellees. Before ABBOTT, P.J., PARKS and MEYER, JJ. 320 PARKS, J.: This is an appeal by the Workers' Compensation Fund from the district court's judgment holding it liable to the employer's insurer for the entire amount of compensation paid its injured employee. The employee's claims for compensation were settled and he is not a party to this appeal. The claimant, Oldrich Brozek, worked as a member of the Lincoln County Highway Department road maintenance crew for fifteen years. On October 28, 1981, he was injured when he fell four or five feet from a bridge, landing on his buttocks. Brozek was taken to the hospital where he was examined, admitted and diagnosed as having sustained a compression fracture of the L1 vertebra. After about a month of rest, claimant was released to return to light duty at work. Brozek returned to work but his duties were principally confined to driving a truck. Whenever he attempted more strenuous work, claimant suffered back pain. He therefore decided to consult a specialist, Dr. Sloo. Dr. Sloo examined Brozek on March 22, 1982, and admitted him to the hospital for lab work and a myelogram. The doctor confirmed the earlier diagnosis and assessed claimant's disability as a 15% functional impairment of the body as a whole. Sloo prescribed conservative treatment. When he saw Brozek on May 19, Sloo believed the fracture was healed and released claimant for his regular heavy work. On June 22, 1982, Brozek reinjured his back while swinging a sledge hammer to knock down old bridge banisters. During the work, Brozek began having severe back pains and swelling in the stomach. The claimant left work and has not returned to the job. He filed a second workers' compensation claim based on this second accident. When Dr. Sloo examined claimant on July 9, he concluded that Brozek could never again perform heavy labor and assigned him a 100% work disability. The doctor testified that the June 22 injury would not have occurred had it not been for the compression fracture suffered in the earlier accident but he maintained that the second incident was not a separate injury from the first. Sloo stated that he could detect no objective changes in the claimant's back condition and that in his opinion, the June incident made an existing condition symptomatic but was not a new injury to the back. Sloo acknowledged that an individual 321 may suffer an injury without manifesting any objective proof of that injury. The claimant and the employer's insurer entered settlement negotiations and reached an agreement to settle the claims arising out of both the October 28, 1981, and the June 22, 1982 accidents. The Fund was impleaded for the settlement hearing where it made no objection to the settlement but reserved any question concerning its obligation to reimburse the employer's insurer. The settlement provided that claimant would receive $9,709.61 based on a 15% permanent partial disability for the first accident and a lump sum payment of $5,616 plus $72,000 in monthly payments of $300 each for the injury sustained in the second accident. The cost of the annuity to generate the monthly payments was $28,159.70. The Fund and the employer's insurer then litigated the issue of the Fund's liability for reimbursement of the amount paid by the employer's insurer as settlement for the second injury. The administrative law judge (ALJ) held that the claimant sustained two compensable accidents and was a handicapped worker at the time of the second injury. Since there was medical testimony that the second injury would not have occurred but for the first accident, the ALJ ordered complete reimbursement of the $28,159.70 cost borne by the employer's insurer for the second injury. Upon director's review this decision was reversed. The director held that while the claimant's back condition became more symptomatic after the June incident, there was no evidence that he suffered any new permanent disability. Since the director found there was no second injury there was no liability assessed against the Fund. On appeal, the district court reversed the director and reinstated the decision of the administrative law judge. The Fund now appeals to this court. The Workers' Compensation Fund is obligated to reimburse employers for liabilities incurred as a result of injury to handicapped employees knowingly retained by an employer. K.S.A. 1984 Supp. 44-567. Thus, for the respondent to shift a portion of its liability to the Fund, it has to establish that the employee Oldrich Brozek became handicapped by the October 28, 1981, accident, was retained despite the employer's knowledge of this handicap and then that Brozek sustained a second injury June 22, 1982, for which compensation should be made by the Fund. Spencer v. Daniel Constr. Co., 4 Kan. App.2d 613, 619, 609 P.2d 322 687, rev. denied 228 Kan. 807 (1980). The Fund has not contested either claimant's status as a handicapped worker after the 1981 accident or the employer's knowledge of this handicap. In fact, the only disputed issue in this litigation has been the existence of a second injury and the amount of any reimbursement which might be due if such a second injury did occur. Arguing from the opinion testimony of Dr. Sloo, the Fund contends that the pain manifested by claimant's back after the June 22 incident was simply a symptom of the preexisting injury and not itself a separate injury. The respondent, on the other hand, argues that since claimant was able to return to work and Dr. Sloo believed his previous injury was healed to the point that he could resume his normal activities, the second accident, which left claimant completely unable to perform his job, caused a reinjury of the back. The existence of an injury is a factual question which must be upheld on appeal if supported by substantial competent evidence. Furthermore, the evidence must be considered in the light most favorable to the prevailing party. Hampton v. Professional Security Co., 5 Kan. App.2d 39, 40, 611 P.2d 173 (1980). An injury is defined in K.S.A. 1984 Supp. 44-508(e) as any lesion or change in the physical structure of the body, causing damage or harm thereto, so that it gives way under the stress of the worker's usual labor. It is not essential that such lesion or change be of such character as to present external or visible signs of its existence. An accident is the event or manifestation of force which precipitates injury. K.S.A. 1985 Supp. 44-508(d). The evidence indicated that prior to the sledge hammer incident, claimant experienced periodic back pain but was able to continue working. After June 22, he suffered from swelling and disabling pain which has since kept him from working at the job. Viewed from the light most favorable to claimant, this evidence is sufficient to support the conclusion that the claimant suffered a change in the physical structure of his body. The testimony of Dr. Sloo may well reflect a medical viewpoint of claimant's condition but it does not control the factual issue of whether a compensable injury has been sustained pursuant to the workers' compensation law. We conclude that the district court did not erroneously apply the definition of "injury" and find that the evidence of pain and 323 swelling experienced by claimant on June 22 provided substantial competent evidence that a second injury was sustained. Once it has been determined that a knowingly retained handicapped worker has sustained an injury, the amount of the Fund's liability must be determined. The general rule is that if the ultimate injury or disability would not have occurred but for the preexisting handicap, the Fund is liable for the entire amount of the award paid for the subsequent injury. On the other hand, if the injury or disability probably or most likely would have occurred regardless of the handicap, but was contributed to by it, the Fund is only liable for that portion of the award for the subsequent injury which is attributable to the preexisting impairment. K.S.A. 1984 Supp. 44-567. In this case, Dr. Sloo testified that the second injury would not have occurred had it not been for the occurrence of the first injury. The Fund does not dispute the conclusion that this testimony is sufficient to render it liable for the entire award paid because of the second injury but it does dispute the cost which may actually be attributed to the second injury. Since the claimant and the employer entered into a structured settlement which assessed some of the total settlement against the first injury and the balance against the second injury, the ALJ and district court simply adopted the amount of the settlement for the second injury as representing the liability of the Fund. The Fund contends that the apportionment accomplished in settlement of the two claims should not be determinative of the amount of its liability. It argues that the district court must still make findings concerning the extent of claimant's final disability which is attributable to the first injury and that resulting from the second. In addition, the Fund contends that even if the amount of the settlement figure agreed by the claimant and respondent to be due to the second injury is binding or appropriate, it is entitled to a credit under K.S.A. 44-510a for overlapping benefits. In Spencer v. Daniel Constr. Co., 4 Kan. App.2d at 619-22, this court was faced with a similar situation. The claimant suffered two back injuries less than a month apart and filed two separate compensation claims. The Fund was impleaded on the ground that the claimant became handicapped as a result of the first injury. The respondent and the claimant negotiated a settlement of both claims and the Fund reserved its right to contest any 324 apportionment against it. The settlement did not apportion the total amount agreed to between the two accidents and the examiner entered a single award based on the settlement. When the issue of the liability of the Fund was subsequently litigated before the examiner and the district court, no findings were made regarding the portion of the settlement which was payable as a result of the first injury. Instead, the court apportioned 90% of the total settlement award against the Fund apparently concluding that the medical testimony indicating that 90% of the ultimate disability was contributed to by the preexisting handicap meant that the same proportion of the cost of the award should be assumed by the Fund. This court initially held that the district court erred in failing to hold the employer and its insurer totally liable for the amount of the award attributable to the first injury. The court then discussed the manner in which the case should have been addressed by the district court and the findings which must be made on remand, stating as follows: "In view of the medical testimony that the disc herniated when the first accident occurred, the examiner should have considered the two accidents separately. He must determine the percentage of disability attributable to the first accident and assess liability for that award against the employer. The Fund may not be held liable for any part of the award for the first accident and the payment of that entire award is the responsibility of the employer. Day and Zimmerman, Inc. v. George, 218 Kan. 189. The Fund is liable for only the proportion of the cost of the award attributable to the second injury and then only to the extent the second injury was contributed to by the preexisting impairment. K.S.A. 1975 Supp. 44-567(a)(2). "The Fund takes the position the examiner and district judge have already determined that 90 percent of the award is attributable to the first accident. This argument assumes that the examiner's finding that 90 percent of the claimant's present disability is attributable to the first injury is equivalent to a finding that 90 percent of the monetary award for both injuries combined would be the same amount as the monetary award for the first injury if such an award had been made. This assumption is erroneous. Evidence existed in the record from which a trial judge conceivably could have found that 90 percent of claimant's injury is attributable to the first accident, but that specific finding was not made and attempting now to say that the actual finding is equivalent to that suggested by the Fund is somewhat like comparing apples and oranges. "On remand, after making an award for the first injury, the examiner should consider the second accident, then determine the percentage of disability and assess liability for it, giving due consideration to K.S.A. 1975 Supp. 44-566. The examiner should also give the Fund the benefit of K.S.A. 1975 Supp. 44-510a (the anti-pyramiding statute) in computing liability for the award. This statute provides 325 for a credit against compensation for permanent disability if such disability was contributed to by a prior permanent disability for which compensation was paid or is collectible. The credit shall consist of the extent, expressed as a percentage, by which the prior permanent disability contributes to the overall disability following the later injury." Spencer, 4 Kan. App.2d at 620-21. The holding in Spencer indicates that regardless of the terms of the settlement, the apportionment of the award between the Fund and the respondent must be based on the actual amount of the disability which is attributable to the second injury as well as the extent that the handicap contributed to the second injury. Similarly, in this case the fact that the settlement assessed some of the award to the first accident and some to the second should not control the apportionment of liability to the Fund. Since the uncontradicted medical testimony indicated that but for the first injury the second most probably would not have occurred, the percentage of the Fund's liability for the second injury would have to be fixed at 100% (K.S.A. 1984 Supp. 1984 44-567[a][A]), but the dollar amount of the award attributable to the second injury would still have to be determined. Dr. Sloo testified that claimant suffered a permanent partial functional disability of 15% after the first accident and that this disability was not increased by the second accident. Moreover, despite the fact that work disability is a judicial rather than a medical concept, the doctor also testified that Brozek's work disability was 100% after the second injury. The court apparently adopted this work disability figure as its own stating that claimant's work disability "went up to 100%." Since a claimant may recover compensation based on either work or functional disability, whichever is greater, (Desbien v. Key Milling Co., 3 Kan. App.2d 43, 45, 588 P.2d 482 [1979]), the court should have compared disability figures before and after the second injury to determine the proportion of the total cost of the settlement which is attributable to the second injury. The functional disability rating did not change so the difference in work disability would be controlling. Since the court made no finding concerning work disability after the first accident, there is no basis for comparison. Therefore, like Spencer, there are insufficient findings upon which review of the apportionment may be made. Spencer, 4 Kan. App.2d at 618, citing Burch v. Dodge, 4 Kan. App.2d 503, 608 P.2d 1032 (1980). The respondent argues that the absence of findings indicates 326 that the court found the apportionment effected by the structured settlement to be reflective of the evidence. However, the settlement provided that $9,709 of the total award was due to the first injury while an annuity costing the employer $28,160 was assessed as resulting from the second injury. The medical testimony, if anything, certainly indicated that the major portion of the final disability was due to the injury sustained in the first accident. Therefore, it would seem that the employer, not the Fund, should bear the majority of the financial responsibility for the award. We cannot assume that the court's factual findings would parallel the apportionment made by the settlement. The Fund also argues that any liability it might have to the employer for compensation paid for the second injury should have been reduced by a credit as provided in K.S.A. 44-510a. As explained in Spencer, this credit prevents the collection of duplicative compensation for a permanent disability. If a worker suffers a compensable injury which renders him handicapped and later sustains a new injury contributed to by his handicap, he will not be permitted to stack permanent disability payments as if the injuries were unrelated or compensated from different sources. The precise means of calculating the allowable credit is described as follows: "The amount of the credit is figured by applying the percentage of contribution for the prior disability to disability compensation resulting from the later injury. The resulting figure is then subtracted from the amount of weekly permanent disability compensation resulting from the later disability. The product represents the reduced rate of compensation. The credit, however, is not applicable to temporary total disability resulting from the later injury. Moreover, the credit is limited to only those weeks of prior permanent disability for which compensation is paid or is collectible, which occur subsequent to the date of the later injury, the credit terminates, in other words, on the date that compensation for the prior disability terminates and compensation for weeks due after such date is paid at the unreduced rate." Spencer, 4 Kan. App.2d at 621. This credit is applicable to reduce the liability of the Fund standing in the shoes of the employer, despite the fact that the employer may not actually have reaped the benefit of the credit in its settlement. Therefore, once the portion of the Fund's liability for the monetary amount paid by the respondent is figured, it should also be reduced by the credit permitted for the presumed overlapping of payments. From Spencer, we learn that despite the fact that the respondent 327 settles with the claimant, the workers' compensation fact-finders are not relieved of responsibility to determine the amount of an appropriate award when a second injury is involved. The Fund may not be held liable to the respondent based on figures settled by the respondent without reference to the actual relationship between the award and the contribution of the preexisting handicap. In addition, the fact that the settlement is not structured in weekly payments should not deprive the Fund of the right to a credit for overlapping disabilities. Accordingly, the judgment of the district court concerning the occurrence of a second injury is affirmed. The judgment assessing the cost of the annuity in the amount of $28,159.70 against the Fund is reversed and remanded with directions to determine the amount of liability for the second injury and whether a credit should be allowed in accordance with the discussion in this opinion.	{ "pile_set_name": "FreeLaw" }
6 So.3d 63 (2009) HILE v. STATE FARM MUT. AUTO. INS. CO. No. 2D08-435. District Court of Appeal of Florida, Second District. April 3, 2009. Decision without published opinion. Affirmed.	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 10-13773 ELEVENTH CIRCUIT Non-Argument Calendar JUNE 7, 2011 ________________________ JOHN LEY CLERK Agency No. A012-360-841 ALBERT A. CAMPBELL, a.k.a. Albert Campbell, a.k.a. Albert A. Campbell, a.k.a. Glenn Campbell, Petitioner, versus U.S. ATTORNEY GENERAL, Respondent. ________________________ Petition for Review of a Decision of the Board of Immigration Appeals ________________________ (June 7, 2011) Before EDMONDSON, CARNES, and KRAVITCH, Circuit Judges. PER CURIAM: Proceeding pro se, Albert Anthony Campbell petitions for review of the final order of the Board of Immigration Appeals affirming the Immigration Judge’s order of removal. In March 2008, the Department of Homeland Security served Campbell with a notice to appear charging that he was removeable (1) under Immigration and Nationality Act § 212(a)(2)(C) as an alien who has engaged in the trafficking of a controlled substance and (2) under INA § 212(a)(2)(A)(i)(II) as an alien convicted of a controlled substance offense. At Campbell’s removal hearing, the government submitted evidence of his 1981 conviction for distribution of and possession with intent to distribute heroin. The IJ denied Campbell’s request for a hearing on the trafficking charge because Campbell remained removeable based on his prior conviction for a controlled substance offense. At a later hearing Campbell submitted an application for a waiver of inadmissibility under former INA § 212(c) and an application for withholding of removal under the United Nations Convention Against Torture, 8 C.F.R. § 208.16(c). The IJ denied Campbell’s request for a hearing on his § 212(c) 2 application, granted the government’s motion to pretermit Campbell’s § 212(c) application, and denied Campbell’s CAT claim after a separate hearing. Campbell contends that the IJ and the BIA erred by finding that: (1) he was ineligible for a waiver of inadmissibility under former INA § 212(c) because he was convicted after a jury trial rather than after pleading guilty, and (2) his evidence was insufficient to establish eligibility for withholding of removal under CAT. Campbell also contends that he was deprived of due process because the IJ denied his requests for an evidentiary hearing and because the IJ deprived him of a fair hearing on his CAT claim. I. We review de novo issues of subject matter jurisdiction. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). The plain language of the INA precludes judicial review of an IJ’s final order of removal for an alien who is removeable for having committed certain offenses, including a controlled substance offense. 8 U.S.C. § 1252(a)(2)(C), INA § 242(a)(2)(C) (“Notwithstanding any other provision of law . . ., no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed [a controlled substance offense].” Accordingly, “[w]hen [a criminal] alien petitions for review of a removal order denying his CAT 3 claim, we may not review the administrative fact findings of the IJ or the BIA as to the sufficiency of the alien’s evidence and the likelihood that the alien will be tortured if returned to the country in question.” Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1280–81 (11th Cir. 2009). Campbell admitted that he had been convicted of distribution of and possession with intent to distribute heroin. Therefore, to the extent Campbell challenges the IJ’s and the BIA’s finding that he failed to establish his eligibility for relief under CAT, we dismiss the petition for review for lack of jursidiction. II. The INA does, however, preserve our jurisdiction to review the legal and constitutional issues Campbell raises. 8 U.S.C. § 1252(a)(2)(D), INA § 242(a)(2)(D) (“Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for review filed with an appropriate court of appeals.”) Because the BIA did not expressly adopt the IJ’s opinion, we review only the BIA’s decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review questions of law de novo, with appropriate deference to the BIA’s reasonable interpretation of the statute in question. Ferguson v. U.S. Att’y Gen., 4 563 F.3d 1254, 1269 n.25 (11th Cir. 2009). However, no deference is owed to an agency interpretation involving the retroactive application of a statute. Id. Under the law as it existed at the time of Campbell’s 1981 conviction, an alien could apply for discretionary relief under former INA § 212(c) during the course of removal proceedings. However, § 212(c) was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) and “replaced . . . with a new section that gives the Attorney General the authority to cancel removal for a narrow class of inadmissible or deportable aliens.” INS v. St. Cyr, 533 U.S. 289, 297, 121 S.Ct. 2271, 2277 (2001). Nevertheless, in St. Cyr, the Supreme Court held that §212(c) relief remained available to an alien who had been convicted of a disqualifying offense by plea agreement before enactment of IIRIRA. St. Cyr, 533 U.S. at 314–15, 121 S.Ct. at 2287. Focusing on the quid pro quo nature of a plea agreement, the Supreme Court held that IIRIRA’s repeal of § 212(c) had an impermissible retroactive effect on “people who entered into plea agreements” because such persons “almost certainly relied upon [the] likelihood [of obtaining § 212(c) relief] in deciding whether to forgo [the] right to a trial.” Id. at 321–25, 121 S.Ct. at 2291–93. In this case, the BIA found that Campbell was ineligible for relief under former INA § 212(c) because he was convicted of distribution of and possession 5 with intent to distribute heroin—a drug trafficking offense—after a jury trial rather than after pleading guilty in reliance on the continued availability of § 212(c) relief. Campbell argues that the BIA erred because the IIRIRA’s repeal cannot retroactively be applied to him. That argument is foreclosed by our precedent. In Ferguson v. U.S. Att’y Gen., 563 F.3d 1254 (11th Cir. 2009), an alien who was convicted of a felony after a trial sought to “extend St. Cyr outside of the guilty plea context.” Id. at 1263; see St. Cyr, 533 U.S. at 297, 121 S.Ct. at 2277. We held that “reliance is a core component of St. Cyr’s retroactivity analysis as it applies to aliens challenging the application of IIRIRA’s repeal of § 212(c).” Id. at 1269–70. Joining the majority of other circuits, we held that St. Cyr does not apply—and § 212(c) relief is unavailable—to aliens who were convicted after a trial “because such aliens’ decisions to go to trial do not satisfy St. Cyr’s reliance requirement.” Id. Thus, Ferguson could not seek relief under the repealed statute because she did not enter a guilty plea in reliance on the continuing availability of § 212(c) relief. Id. at 1271. Campbell’s case in indistinguishable from Ferguson. Because Campbell did not plead guilty to his drug trafficking offense, he cannot demonstrate that he detrimentally relied on the continued availability of a § 212(c) waiver of inadmissibility. Since detrimental reliance is a critical element of any claim for § 6 212(c) relief based on an alleged impermissible retroactive application of IIRIRA, we deny Campbell’s petition for review of the BIA’s denial of § 212(c) relief. III. Campbell also contends that he was denied due process of law because the IJ refused his requests for a hearing on his removability and on his application for § 212(c) relief and that he was deprived of a fair hearing on his CAT claim. Campbell’s due process claim concerning the IJ’s refusal to conduct a hearing on his request for relief under former INA § 212(c) is without merit because “[t]here is no constitutionally protected right to discretionary relief, which is the relief requested here.” Zafar v. United States Atty. Gen., 461 F.3d 1357, 1367 (11th Cir. 2006) (citation omitted). Campbell’s other constitutional claims also lack merit. Due process requires “a full and fair hearing.” Ibrahim v. INS, 821 F.2d 1547, 1550 (11th Cir. 1987). Accordingly, aliens must receive “notice and an opportunity to be heard in their removal proceedings.” Fernandez-Bernal v. U.S. Att’y Gen., 257 F.3d 1304, 1310 n.8 (11th Cir. 2001). To prevail on a due process claim, however, an alien must show substantial prejudice—namely, that the outcome would have been different “in the absence of the alleged procedural deficiencies.” Patel v. U.S. Att’y Gen., 334 F.3d 1259, 1263 (11th Cir. 2003). 7 To the extent that Campbell argues that he was denied due process by the IJ’s failure to hold a hearing on his removability, his claim lacks merit because he has failed to identify any evidence that he could have presented to rebut the charges of removal. And even if Campbell successfully challenged the drug trafficking charge under INA § 212(a)(2)(C), he remained removeable under § 212(a)(2)(a)(i)(II) as an alien convicted of a controlled substance offense; he admitted his 1981 conviction. See De Sandoval v. U.S. Att’y Gen., 440 F.3d 1276, 1285 (11th Cir. 2006) (“Petitioner fails to show how the additional procedures she demands would have changed the result in her case because she has admitted all of the facts necessary to warrant reinstatement of the original removal order . . . .”). Finally, Campbell argues that the IJ exhibited hostility toward him at his CAT hearing and that the IJ’s bias against him amounted to a denial of due process because he was deprived of a full and fair hearing. But even though the IJ expressed frustration with Campbell’s counsel at the hearing, “expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect men and women . . . sometimes display,” do not establish bias or partiality. Liteky v. United States, 510 U.S. 540, 555–56, 114 S.Ct. 1147, 1157 (1994). Furthermore, as the BIA noted, the IJ reviewed Campbell’s evidence and 8 gave his counsel multiple opportunities to identify what evidence he was relying on to assert that Campbell would be tortured after being deported. Accordingly, Campbell was not deprived of a full and fair hearing on his CAT claim. PETITION DISMISSED IN PART and DENIED IN PART. 9	{ "pile_set_name": "FreeLaw" }
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 07a0107p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ BAPTIST PHYSICIAN HOSPITAL ORGANIZATION, INC. X - Plaintiffs-Appellees, - and BAPTIST HOSPITAL OF EAST TENNESSEE, INC., - - No. 06-5364 , v. > - - Defendant-Appellant. - HUMANA MILITARY HEALTHCARE SERVICES, INC., - - N Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 01-00588—Thomas W. Phillips, District Judge. Argued: January 31, 2007 Decided and Filed: March 21, 2007 Before: NORRIS, COLE, and CLAY, Circuit Judges. _________________ COUNSEL ARGUED: Michael J. Kitchen, J. BRUCE MILLER LAW GROUP, Louisville, Kentucky, for Appellant. Reuben N. Pelot IV, EGERTON, McAFEE, ARMISTEAD & DAVIS, Knoxville, Tennessee, for Appellees. ON BRIEF: Michael J. Kitchen, J. Bruce Miller, J. BRUCE MILLER LAW GROUP, Louisville, Kentucky, for Appellant. Reuben N. Pelot IV, Cheryl G. Rice, EGERTON, McAFEE, ARMISTEAD & DAVIS, Knoxville, Tennessee, for Appellees. _________________ OPINION _________________ CLAY, Circuit Judge. In this appeal, Defendant, Humana Military Healthcare Services, Inc., appeals the district court’s order finding Defendant liable to Plaintiffs, Baptist Physician Hospital Organization, Inc. and Baptist Hospital of East Tennessee, Inc., for breach of contract and awarding Plaintiffs $1,277,872.90 in compensatory damages, as well as $731,488.65 in prejudgment interest. Plaintiffs properly invoke diversity of citizenship as the basis for federal jurisdiction in this case. See 28 U.S.C. § 1332. For the reasons that follow, we AFFIRM the district court’s order. 1 No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 2 Humana Military Healthcare Services, Inc. BACKGROUND This Tennessee breach of contract suit was previously before this Court. See Baptist Physician Hosp. Org., Inc. v. Humana Military Healthcare Servs., Inc., 368 F.3d 894 (6th Cir. 2004) (hereinafter “Baptist Physician I”). That appeal arose when the district court granted summary judgment to Defendant on Plaintiffs’ breach of contract claim, and separately dismissed Plaintiffs’ remaining claims as untimely. On appeal, this Court reversed and remanded. Baptist Physician I aptly set forth background relevant to the initial contract between the parties: Pursuant to authority delegated to it by Congress, the Department of Defense established the Civilian Health and Medical Program of the Uniformed Services, called CHAMPUS, in 1967. CHAMPUS beneficiaries include retired armed forces personnel and dependents of both active and retired military personnel. In 1995, the Department of Defense established TRICARE, a managed health care program operating as a supplement to CHAMPUS and involving the competitive selection of private contractors to financially underwrite the delivery of health care services under CHAMPUS. The overall goal of the TRICARE program is to improve the quality, cost, and accessibility of healthcare to the nation’s military through the mechanism of a managed care program, and one aspect of the new TRICARE program was the establishment of “Civilian Preferred Provider Networks.” See 32 C.F.R. § 199.17(p). TRICARE Management Activity, which was previously known as Office of CHAMPUS, is the government office charged with the responsibility of administering TRICARE/CHAMPUS. In January 1996, Humana Military Healthcare Services, Inc. was awarded the TRICARE contract for Regions 3 and 4, which covers seven states and includes the State of Tennessee. Under the contract, Humana became the managed care support contractor charged with the responsibility of establishing and managing a Civilian Preferred Provider Network throughout the seven state area. Humana established the preferred provider network by entering into contractual arrangements with individual CHAMPUS participating providers of medical services, one of which was Baptist. Broadly speaking, TRICARE preferred network providers agreed to accept from a managed care support contractor lower reimbursement rates than those authorized under the CHAMPUS reimbursement system, with the understanding that in exchange they would see an increase in directed volume. These discounted rates might be expressed as discounts from the maximum allowable rate under the CHAMPUS diagnostic grouping system (DRG),1 or as a fixed per diem rate, or as some other agreed-upon rate of reimbursement. In the early spring of 1996, Baptist Physician Hospital Organization, Inc. and Baptist Hospital of East Tennessee, or more simply “Baptist,” entered into negotiations with Humana to become a TRICARE preferred network provider. Baptist Physician I, 368 F.3d at 895-97. 1 Diagnostic related groups (DRGs) are “a method of dividing hospital patients into clinically coherent groups based on the consumption of resources.” 32 C.F.R. § 199.2. “Patients are assigned to the groups based on their principle [sic] diagnosis (the reason for admission, determined after study), secondary diagnoses, procedures performed, and the patient’s age, sex, and discharge status.” Id. No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 3 Humana Military Healthcare Services, Inc. At trial, the parties presented a more detailed picture of their relationship preceding, during, and subsequent to executing the Letter of Agreement (hereinafter “Agreement”), by which Plaintiffs contracted to provide care to TRICARE beneficiaries in Defendant’s network.2 On August 6, 1996, Defendant’s Director of Network Development, Richard Mancini (“Mancini”), signed the Agreement on Defendant’s behalf. Therein, Defendant contracted to reimburse Plaintiffs according to the terms of a “Hospital Payment Arrangement.” As the court in Baptist Physician I explained, the parties adopted a three-tiered system of discounted reimbursement from the CHAMPUS rates depending on the number of other TRICARE providers in the area . . . . [T]he “Hospital Payment Arrangement” . . . was expressed as a percentage discount off the CHAMPUS DRG reimbursement rate with a “stop loss” provision (in the italicized language below) consisting of an increased rate of payment for certain high-dollar inpatient claims as an alternative to a percentage discount from standard government rates. The purpose of the stop-loss provision is to reduce the risk of losses to Baptist in large individual cases that Baptist believed the percentage discount off CHAMPUS DRG rates would create. The contractual provision was expressed as follows: Baptist Health System as Exclusive Provider Inpatient 20% Discount from CHAMPUS DRG rates; Any case with provider charges greater than $30,000 reverting to a 45% discount from provider charges. Outpatient 30% Discount from CHAMPUS allowables. Baptist Health System + 1 Additional Provider Inpatient 20% Discount from CHAMPUS DRG rates; Any case with provider charges greater than $25,000 reverting to a 35% discount from provider charges. Outpatient 25% Discount from CHAMPUS allowables. Baptist Health System + 2 Additional Providers Inpatient 15% Discount from CHAMPUS DRG rates; Any case with provider charges greater than $25,000 reverting to a 30% discount from provider charges. 2 We are largely guided in our narrative by the district judge’s findings of fact, which we find – with one insignificant exception – were not clearly erroneous. See Kalamazoo River Study Group v. Rockwell Int’l Corp., 355 F.3d 574, 589 (6th Cir. 2004). No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 4 Humana Military Healthcare Services, Inc. Outpatient 25% Discount from CHAMPUS allowables. (Emphasis added.) Under each tier, Baptist and Humana agreed to the “stop loss” language which increased reimbursement to Baptist when a particular inpatient hospital stay exceeded a certain dollar amount. In such cases, the reimbursement rate would not be a percentage discount off the CHAMPUS DRG rate, but rather would “revert” to a percentage discount off the provider charges, which are the charges the hospital would otherwise charge for the services rendered. An example illustrates how the “stop loss” provision would work. Suppose a certain hospital stay resulted in provider charges of $77,098, but the maximum CHAMPUS DRG reimbursement rate for this particular stay is only $27,755.00. Without the stop loss provision, Baptist as the exclusive TRICARE provider under the above agreement would receive $22,204, which represents a 20% discount from the CHAMPUS DRG rate and an effective 71% discount from provider charges. Under the stop loss provision, however, Baptist would receive $42,404, or a 45% discount from the provider charges. In effect, the stop loss provision operates to increase the net overall discount for the business associated with the TRICARE program. As illustrated above, for certain claims the reimbursement amount calculated as a percentage of provider charges was greater than 100% of the CHAMPUS DRG rate. Baptist Physician I, 368 F.3d at 896-97. At the time he signed the Agreement, Mancini knew Defendant had no intention of paying the stop loss claims pursuant to the Agreement inasmuch as they exceeded CHAMPUS allowable charges. Two days after he executed the Agreement, in an August 8, 1996 letter to Plaintiffs’ representative, Jim Goodloe, Mancini wrote as follows: Jim, as we move toward the next round of negotiations, specifically: Inpatient per diem rates, I want to make sure we both understand that your claims will be paid according to a discount from Government allowables. I know there has been some question that you wanted to be paid more than the Government provides, but we aren’t allowed to pay your facilities any greater than the non-network rate. Accordingly, the per diem rates that we agree upon will need to be comparable as provided for in paragraph M of our contract. Baptist Physician Hosp. Org., Inc. v. Humana Military Healthcare Servs., Inc., 415 F. Supp. 2d 835, 848 (E.D. Tenn. 2006) (hereinafter “Baptist Physician II”). The district court3 found that this letter concerned physician reimbursement terms, and not the stop loss provisions. The Agreement contemplated additional negotiations in September 1996 to establish a system of reimbursement on a per diem basis and, at trial, Mancini testified that he believed that the parties would have dispensed with the stop loss provisions at that time. No subsequent renegotiation occurred, and the stop loss provisions remained in effect throughout the life of the Agreement. Mancini further testified that Defendant did not pursue renegotiation because the process would have clarified that Defendant intended to cap payments at government allowables, and not to pay according to the Agreement. 3 In fact, the district court found that the parties amended the physician payment provisions in September 1996, but that those amendments did not impact hospital reimbursement for stop loss claims. No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 5 Humana Military Healthcare Services, Inc. In August 1996, Plaintiffs lacked the personnel and technology necessary to closely monitor payments from third party payors, including Defendant, to insure payment of submitted claims according to negotiated contract terms. However, over the course of the Agreement with Defendant, Plaintiffs took steps to improve claims tracking. To start, Plaintiffs purchased software (called “PCMS”) capable of auditing payments and exposing payment variances. This software required Plaintiffs to load their contracts into the system before it could adequately monitor payment compliance. Plaintiffs also hired a contract analyst, Anahita Hodge (“Hodge”), primarily assigning her to scrutinize payments from third party payors. Ultimately, Plaintiffs loaded their contract with Defendant into the PCMS system in November 1998. In early 1999, Hodge identified the underpaid stop loss claims and, in February 1999, requested that Defendant reprocess the claims in compliance with the terms of the Agreement. In a July 22, 1999 letter to Defendant’s government benefits administrator, Hodge again requested the additional stop loss reimbursement. Subsequently, Hodge spoke to Carmen Montanez (“Montanez”), then one of Defendant’s employees, who informed her that Defendant would not pay the full stop loss amount on the contested claims. During the conversation, Montanez cited the TRICARE / CHAMPUS policies and procedures and told Hodge that those policies foreclosed Defendant from paying rates in excess of the CHAMPUS DRG-rates. In the months that followed, Plaintiffs at no point communicated to Defendant an intent to drop the stop loss claims. Ultimately, Defendant sent Plaintiffs a letter on February 5, 2001 notifying Plaintiffs that it was exercising its right to terminate the Agreement, effective May 6, 2001. Defendant terminated the Agreement due to Plaintiffs’ continued insistence that they be reimbursed according to the Agreement’s stop loss provisions. Between July 1, 1996 and May 6, 2001 – the life of the Agreement – 85 inpatient claims for medical care rendered at Plaintiffs’ facilities exceeded the stop loss threshold. In each instance, Plaintiffs did not receive reimbursement according to the stop loss provisions. Rather, without Plaintiffs’ knowledge, Defendant capped reimbursement at 100% of the CHAMPUS DRG-rate. Applying the stop loss provisions of the Agreement, Plaintiffs should have received $2,595,294.94 in payment of those claims. In actuality, Defendant paid only $1,317,422.05, thus yielding an underpayment of $1,277,872.89 on the stop loss claims.4 The district court considered several issues at trial on remand, including: (1) whether the parties modified the Agreement so that high-dollar claims would be paid under the CHAMPUS DRG-based payment system as opposed to the stop loss provisions; (2) whether Plaintiffs waived their claims; (3) whether equitable doctrines barred Plaintiffs’ claims; and (4) whether Defendant was entitled to recover alleged overpayments on outpatient claims. Ultimately, the district court ruled in favor of Plaintiffs on their breach of contract claim, and against Defendant on its defenses of modification, estoppel, failure to mitigate damages, and laches. The district court further found that Defendant failed to prove damages, a required element of its counterclaim. In an opinion dated February 13, 2006, the district court awarded Plaintiffs $1,277,872.90 on their breach of contract claim, along with prejudgment interest totaling $731,488.65. Defendant timely appealed. 4 The district court additionally found facts relevant to Defendant’s counterclaim that it had overpaid Plaintiffs for a number of outpatient claims by misapplying the “tier” system established in the Agreement. On appeal, Defendant waives its challenge to the district court’s dismissal of its counterclaim. Accordingly, we need not further explore the circumstances of Defendant’s overpayment. No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 6 Humana Military Healthcare Services, Inc. DISCUSSION I. THE DISTRICT COURT DID NOT ERR IN DEEMING CAPITAL REIMBURSEMENT EVIDENCE IRRELEVANT As a matter of law, the district court concluded that “[t]he monies paid to [Plaintiffs] pursuant to Capital Reimbursements are totally irrelevant to the Agreement at issue, would have been paid with or without an agreement between the parties, and were not paid pursuant to the Agreement.” Baptist Physician II, 415 F. Supp. 2d at 853. Defendant vehemently disagrees and, in fact, rests the weight of its appeal on this very question. Because the district court’s disposition does not elucidate the rationale underlying its conclusion that capital payment evidence was irrelevant, we review the matter de novo as a conclusion of law.5 Kalamazoo River Study Group, 355 F.3d at 589. The relevance of the proffered capital payment evidence substantially turns on a question of regulatory interpretation. That is, whether capital payments flow only to those preferred network providers subject to the DRG-based payment system, or whether providers which contract for alternative payment methodologies may also receive capital payments consistent with the TRICARE / CHAMPUS regulations. As a corollary, we must also consider the significance of certifications submitted to obtain capital payments, wherein providers document the total number of inpatient days “provided to all patients in units subject to DRG-based payment,” as well as the “[t]otal allowed CHAMPUS inpatient days provided in units subject to DRG-based payment.” See 32 C.F.R. § 199.14(a)(1)(iii)(G)(3)(vi)-(vii). As with all matters of regulatory interpretation, we look first to the plain and unambiguous meaning of the regulation, if any. See Henry Ford Health Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir. 2000) (quoting Bartlik v. U.S. Dep’t of Labor, 62 F.3d 163, 165-66 (6th Cir. 1995)) (“We read statutes and regulations with an eye to their straightforward and commonsense meanings,” and where the regulation’s language reveals an “unambiguous and plain meaning . . . , our task is at an end”). Defendant fails to identify provisions either in the applicable regulations or the authorizing statutes that plainly sets forth the meaning of the regulations. Nor could it, for the TRICARE / CHAMPUS regulations do not squarely address this question. We next look to the regulatory scheme, reading the regulation in its entirety to glean its meaning. In so doing, we find that the TRICARE / CHAMPUS regulations do not preclude capital payments to preferred network providers which, by agreement with Managed Care Support (“MCS”) Contractors, receive reimbursement for inpatient care under alternative payment methodologies. As detailed in the TRICARE regulations, [t]he TRICARE program implements management improvements primarily through managed care support contracts that include special arrangements with civilian sector health care providers . . . . Implementation of these management improvements includes adoption of special rules and procedures not ordinarily followed under CHAMPUS . . . . This section establishes those special rules and procedures. 5 In the alternative, we could construe this as a ruling on the admissibility of the capital payment evidence and, accordingly, could review for abuse of discretion. See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). Although the district court’s review of the evidence presented at trial notably excludes reference to Defendant’s proffered capital payment exhibits (Exhibits 54(A)-(K)), it does recount witness testimony on the issue. See Baptist Physician II, 415 F. Supp. 2d at 841, 847. Because we cannot say with certainty that the district court intended to rule on the admissibility of the capital payment exhibits, we err on the side of caution and apply the less deferential de novo standard of review. No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 7 Humana Military Healthcare Services, Inc. 32 C.F.R. § 199.17(a)(1). While managed care contractors may enter into special arrangements with preferred network providers consistent with the “special rules and procedures” set forth in the TRICARE regulations, CHAMPUS regulations remain effective and applicable to TRICARE providers unless the special rules and procedures state otherwise. As CHAMPUS providers, by default, Plaintiffs were entitled to receive capital payments regardless of their Agreement with Defendant. Federal regulations permit all CHAMPUS providers to receive capital payments to offset the costs of treating CHAMPUS beneficiaries. See 32 C.F.R. § 199.14(a)(1)(iii)(G).6 Under 32 C.F.R. § 199.14, a TRICARE preferred network provider is not rendered ineligible for capital payments merely because they have negotiated an “alternative payment methodology” for reimbursement. Regulations implementing the TRICARE Program provide that where “rules, procedures, rights and obligations” under TRICARE differ from those under CHAMPUS, those set forth in the TRICARE regulations “take precedence and are binding.” 32 C.F.R. § 199.17(a)(4). Illustratively, the TRICARE Reimbursement Manual (“the Manual”) cites to 32 C.F.R. § 199.14 as authority for its discussion of capital payments. Accordingly, where the TRICARE regulations do not explicitly conflict with the CHAMPUS regulations, those pre-existing regulations apply to TRICARE as well. Defendant directs our attention to the section of the Manual that discusses adjustments to payment amounts, such as capital payments, and, specifically, to the introductory paragraph on ‘Applicability.’ There, the Manual states – This policy is mandatory for reimbursement of services provided by either network or non-network providers. However, alternative network reimbursement methodologies are permitted when approved by TMA and specifically included in the network provider agreement. TRICARE / CHAMPUS Policy Manual, 6010.53-M, Ch. 6, Section 8 at I (available at J.A. at 1050 (emphasis added)) The Agreement at issue does not specifically include language excepting Plaintiffs from the category of providers typically eligible to receive capital payments under the regulations. In fact, that same section of the Manual details the entitlement to, and procedures for payment of, capital costs. More specifically, it establishes the obligations of both the provider and the MCS contractor. In a subpart with the heading “Negotiated Rates,” the Manual states: If a contract between the MSC prime contractor and a subcontractor or institutional network provider does not specifically state the negotiated rate includes all costs that would otherwise be eligible for additional payment, such as capital and DME, the MCS prime contractor is responsible for reimbursing these costs to the subcontractors and institutional network providers if a request for reimbursement is made. 6 Specifically, the regulations state: When requested in writing by a hospital, CHAMPUS shall reimburse the hospital its share of actual capital costs reported annually to the CHAMPUS fiscal intermediary. Payment for capital costs shall be made annually based on the ratio of CHAMPUS inpatient days for those beneficiaries subject to the CHAMPUS DRG-based payment system to total inpatient days applied to the hospital’s total allowable capital costs. Reductions in payments for capital costs which are required under Medicare shall also be applied to payments for capital costs under CHAMPUS. 32 C.F.R. § 199.14(a)(1)(iii)(G)(1). No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 8 Humana Military Healthcare Services, Inc. Id. at III.B.4.d. (available at J.A. at 1058-59 (emphasis added)) Defendant, as the MCS contractor for its region, negotiated rates with Plaintiffs, an institutional network provider.7 Consistent with the Manual, the Agreement could have expressly stipulated that payment at the negotiated rate would incorporate capital payments. The Agreement did not make Plaintiffs’ receipt of reimbursement under the stop loss provisions conditional upon forbearance from receipt of capital payments.8 Plaintiffs therefore remained entitled to receive capital payments notwithstanding the operation of the negotiated alternative to the DRG-based rates. This reading of the regulations is reinforced by the Department of Defense’s (“DOD’s”) intent in implementing the TRICARE program. In response to its Proposed Rule, DOD received comments suggesting that the Final Rule should more specifically detail special reimbursement methods for network providers under § 199.17(p). DOD responded: The rule provides added flexibility to vary payment provisions from those established by regulation, to accommodate local market conditions. To attempt to specify in advance the possible reimbursement approaches would defeat our purpose of providing a flexible mechanism. We also disagree that network rate setting should be the same as under standard CHAMPUS rules; a key aim of managed care programs is to negotiate lower rates of reimbursement with networks of preferred providers. TRICARE Program; Uniform HMO Benefit; Special Health Care Delivery Programs, 60 Fed. Reg. 52,078-01, at 52,086 (Oct. 5, 1995) (now codified at 32 C.F.R. § 199.17). Although the parties here did not negotiate lower rates of reimbursement for the stop loss claims, Defendant did have increased flexibility in negotiations enabling it to insure access to health care for the TRICARE beneficiaries in its region. We additionally note that this result is manifestly consistent in purpose and effect with more traditional CHAMPUS reimbursement methods, which permit payment of capital costs along with additional payments for outlier cases. 32 C.F.R. § 199.14(a)(1). Specifically, the regulations provide reimbursement greater than the standard DRG-rate for cost outliers and for length-of-stay outliers. Id. at § 199.14(a)(1)(iii)(E)(1)(ii) (providing additional payment for “[a]ny discharge which has standardized costs that exceed a[n established] threshold”); id. at § 199.14(a)(1)(iii)(E)(1)(i) (additional payment for “[a]ny discharge . . . which has a length-of-stay (LOS) exceeding a threshold established”). The additional outlier payment in no way diminishes the provider’s entitlement to capital payments under the same regulatory provision. Id. at § 199.14(a)(1)(iii)(G). Thus, Plaintiffs’ receipt of both capital payments and inpatient reimbursement under the stop loss provisions runs consistent with the apparent intent of the regulators to appropriately reimburse more costly patient care. 7 Neither the statute nor the regulations reveal a relevant distinction between an “MSC prime contractor” and an “MSC contractor” more generally. The statutory provisions that, in part, establish the TRICARE program define “TRICARE Prime” as “the managed care option of the TRICARE program.” 10 U.S.C. § 1079(g)(5); 10 U.S.C. § 1097a(f)(1). Although those provisions make the definition applicable only to those sections, no more generally applicable definition of TRICARE Prime exists in the current statute or regulations. Nor do the statute or regulations define “MSC Prime Contractor.” The Manual lends further support to this view in clarifying that the MCS Contractor is responsible for all TRICARE Prime, Extra, and Standard claims. (See J.A. at 1006) 8 On appeal, Defendant argues “there is no question that the parties can contractually eliminate the entitlement to Capital Reimbursement.” (Def.’s Br. at 28-29) We agree. Yet, while this may be true, Defendant does not identify any provision in the Agreement to this effect and, accordingly, the argument does little to advance Defendant’s cause. No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 9 Humana Military Healthcare Services, Inc. Other portions of the TRICARE / CHAMPUS regulations demonstrate the DOD did not intend to preclude capital payments to providers under special programs, even though they may be reimbursed in excess of government allowable rates. For example, under the Supplemental Care Program, a program related to CHAMPUS, the military provides payment for health care services rendered at civilian facilities for its active duty members. See 32 C.F.R. § 199.16(a)(2). The regulations implementing the Supplemental Care Program acknowledge that the CHAMPUS provider reimbursement regulations generally will guide payment and administration of Supplemental Care claims. 32 C.F.R. § 199.16(c). However, the regulations further establish exceptions and clarifications to the general rule. See 32 C.F.R. § 199.16(d). Specifically, the regulations clarify that “annual cost pass-throughs for capital . . . costs that are available under the CHAMPUS DRG-based payment system are also available, upon request, under the supplemental care program.” 32 C.F.R. § 199.16(d)(4). Notwithstanding the entitlement to capital payments, that same subsection goes on to clarify that for some providers, “payment in excess of CHAMPUS allowable amounts” may be authorized. Id. at § 199.16(d)(5). Accordingly, the Supplemental Care Program regulations demonstrate that DOD contemplated simultaneous entitlement to capital payments and payments exceeding typical CHAMPUS allowable amounts. In view of the foregoing, we hold that the regulations authorize capital payments to TRICARE preferred network providers regardless of the methodology employed to reimburse claims for inpatient care – whether it be the DRG-based system, or some alternative. We next examine the significance, if any, of the capital payment certifications. Because the regulations authorize capital payments for all TRICARE / CHAMPUS providers, we find the certifications do not somehow operate to make Plaintiffs’ application for and receipt of capital payments dispositive. Defendant would rely on Plaintiffs’ capital payment certifications as evidence of mutuality of assent to modify the Agreement. To that end, Defendant seizes upon language contained on the capital payment certification forms and in correspondence between Plaintiffs and Defendant’s government benefits administrator. The certification forms refer to TRICARE / CHAMPUS inpatient days as “[p]rovided in units subject to DRG-based payment,” while the correspondence characterizes capital payments as “reimbursement . . . under the CHAMPUS DRG- based payment system.” (See, e.g., J.A. at 1294, 1299) Looking first to the plain language of the regulations, we find that Plaintiffs’ hospitals were “subject to the DRG-based payment system.” The CHAMPUS regulations provide – (ii) Applicability of the DRG system. ... (B) Services subject to the DRG-based payment system. All normally covered inpatient hospital services furnished to CHAMPUS beneficiaries by hospitals are subject to the CHAMPUS DRG-based payment system. ... (D) Hospitals subject to the CHAMPUS DRG-based payment system. All hospitals within the fifty states . . . which are certified to provide services to CHAMPUS beneficiaries are subject to the DRG-based payment system except for . . . hospitals units which are exempt. 32 C.F.R. § 199.14(a)(1)(ii)(D) (emphasis added). Typically, only hospital units exempt from the Medicare Prospective Payment System are exempt from the CHAMPUS DRG-based payment system. Id. at § 199.14(a)(1)(ii)(D)(1)-(5). Additionally, “[a]ll hospitals subject to the CHAMPUS DRG-based payment system . . . may be reimbursed for allowed capital . . . costs by submitting a request to the CHAMPUS contractor.” Id. at § 199.14(a)(1)(iii)(G)(3). No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 10 Humana Military Healthcare Services, Inc. The capital payment provision of the CHAMPUS regulations lists the information required in order to verify the appropriate capital payment amount. Among this list, the regulation directs providers to submit “[t]otal inpatient days provided to all patients in units subject to DRG-based payment” and “[t]otal allowed CHAMPUS inpatient days provided in units subject to DRG-based payment.” Id. at § 199.14(a)(1)(iii)(G)(3)(vi)-(vii) (emphasis added). The regulations notably do not define “DRG-based payment.” Nor do the regulations clarify whether “DRG-based payment” in the former context refers collectively to Medicare and CHAMPUS inpatients, to some broader group, or to CHAMPUS alone.9 The Manual makes clear, however, that TRICARE uses the certification forms to insure that it does not pay capital costs for patients whose other (primary) health insurance fully covered the patient’s charges. TRICARE / CHAMPUS Policy Manual, 6010.53-M, Ch. 6, Section 8 at III.B.3 (available at J.A. at 1053) (setting forth the method of calculating capital payment and noting “[t]hroughout these calculations claims on which TRICARE / CHAMPUS made no payment because other health insurance paid the full TRICARE / CHAMPUS-allowable amount are not to be counted”). The Manual details the steps that providers must follow in determining the “total allowable TRICARE / CHAMPUS capital payment for DRG discharges.” Id. To begin, providers calculate the total TRICARE / CHAMPUS inpatient days. According to the Manual, providers should exclude – (1) Any days determined to be not medically necessary, and (2) Days included on claims for which TRICARE / CHAMPUS made no payment because other health insurance paid the full TRICARE / CHAMPUS-allowable amount. Id. (emphasis added). Later in the same section, the Manual clarifies that TRICARE will not make capital payments for claims of dual-eligible beneficiaries that were paid by Medicare. Id. at B.4.f (available at J.A. at 1058) Rather, it expressly states that “TRICARE capital . . . cost payments will be made only on claims on which TRICARE is the primary payer.” Id. Thus, the point of the certification forms is to separate the claims for which TRICARE / CHAMPUS serves as the primary payor from those where third parties foot the bill. As careful review of the regulations makes abundantly clear, the CHAMPUS regulations were never thoroughly amended following implementation of the TRICARE program to allow for the possibility that MCS contractors would enter into alternative payment arrangements with health care providers in their networks. In fact, the DOD Final Rule implementing the TRICARE program proves as much. TRICARE Program; Uniform HMO Benefit; Special Health Care Delivery Programs, 60 Fed. Reg. 52,078-01, at 52,079 (Oct. 5, 1995) (now codified at 32 C.F.R. § 199.17) (“Our regulatory approach is to leave the existing CHAMPUS rules largely intact and to create new sections 199.17 and 199.18 to describe the TRICARE Program and the uniform HMO benefit.”). As a result, the claims forms and the capital payment request forms that the TRICARE / CHAMPUS regulations require TRICARE providers to use essentially pound a square peg to a round hole. They simply do not neatly fit together. Furthermore, as a strictly factual matter, Defendant’s proffered capital payment evidence does not “tend[] to make the existence of any fact that is of consequence to the determination of the action more probable than it would be” otherwise. See Fed. R. Evid. 401. Importantly, the 9 As the regulation provides, “All costs reported to the CHAMPUS contractor must correspond to the costs reported on the hospital’s Medicare cost report.” 32 C.F.R. § 199.14(a)(1)(iii)(G)(3). The term “DRG-rate” originated in Medicare. See id. at § 199.14(a)(1)(i)(A). No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 11 Humana Military Healthcare Services, Inc. Agreement at issue remained in effect from August 6, 1996 to May 6, 2001. Accordingly, only Plaintiffs’ certifications for purposes of capital payment during Fiscal Years (FY) 1997 through 2001 would even arguably be relevant. In Plaintiffs’ FY 1997 submission, they certified 536 “[t]otal inpatient days . . . [b]ased on discharges within [the] reporting period.” (J.A. at 1284) From FY1998-2000, when TRICARE modified the certification form to request “[t]otal TRICARE/CHAMPUS inpatient days . . . [p]rovided in units subject to DRG-based payment,” Plaintiffs’ certification forms did not set forth a number. (J.A. at 1299, 1343, 1378) Rather, on each occasion, Plaintiffs directed the government benefits administrator to “Use System Data.” (Id.) In FY 2001, Plaintiffs failed to timely submit certification for capital payments. Thus, none of Plaintiffs’ requests for capital payments during the relevant period affirmatively certified that the stop loss claims were “subject to DRG-based payment;” rather, Defendant’s own government benefits administrator put forth the numbers that included Plaintiffs’ stop loss inpatients. It strikes this Court as disingenuous that Defendant now seeks to rely on those certifications to establish mutuality of assent to modification of the Agreement, and communication of intent to waive its rights under the stop loss provisions. This is particularly so because evidence pre-dating and post- dating the relevant period clearly demonstrates that Plaintiffs applied for and received capital payments at times not covered by the Agreement. Whether viewed as a legal conclusion or an evidentiary ruling, we affirm the district court’s view on the significance of capital payment evidence. II. ADDITIONAL CLAIMS ON APPEAL On appeal, Defendant challenges several of the district court’s conclusions of law, alleging: (1) Plaintiffs’ application for and acceptance of capital payments effectively modified the contract such that the stop loss claims would be subject to the DRG-based payment system; (2) Plaintiffs waived their rights to payment under the stop loss provision and “decisively communicated . . . intent to waive” by certifying, for purposes of capital payment, that those “claims were subject to DRG-based payment,” (Def.’s Br. at 38).10 Additionally, Defendant asserted defenses of equitable estoppel, failure to mitigate, and laches. Finally, Defendant claims the district court abused its discretion in awarding prejudgment interest. A. No Valid Modification Occurred Defendant posits that Plaintiffs’ application for and acceptance of capital payments effectively modified the contract. In Defendant’s view, Plaintiffs demonstratively assented to modify the Agreement by certifying that the inpatient stop loss claims were “subject to the DRG- based payment system.” Moreover, Defendant contends that the capital payments themselves constitute consideration. The district court concluded that “[t]he evidence did not reveal a meeting of the minds or an exchange of consideration necessary to support defendant’s claim of modification.” Baptist Physician II, 415 F. Supp. 2d at 851. We review the district court’s conclusions of law de novo. See Kalamazoo River Study Group, 355 F.3d at 589. In doing so, we uphold the district court’s determination that the parties did not validly modify the Agreement. Tennessee substantive law controls in the instant case, as it comes before us on diversity. In Tennessee, the parties to an existing contract can modify its terms at any time. Bonastia v. Berman Bros., Inc., 914 F. Supp. 1533, 1538 (W.D. Tenn. 1995). However, an existing contract cannot be unilaterally modified. Balderacchi v. Ruth, 256 S.W.2d 390, 391 (Tenn. Ct. App. 1952). 10 Although Defendant’s “Statement of Issues” contemplates additional challenges to the district court’s rulings, as we later note, Defendant waived them on appeal. No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 12 Humana Military Healthcare Services, Inc. Rather, valid modification requires “the same mutuality of assent and meeting of the minds as required to make a contract” in the first instance. Id.; see also Prudential Sec., Inc. v. Mills, 944 F. Supp. 631, 635 (W.D. Tenn. 1996). Additionally, consideration must be exchanged to effect modification of an existing contract. Boyd v. McCarty, 222 S.W. 528, 529-30 (Tenn. 1920). Importantly for our purpose today though, “[p]erforming what was already promised in the original contract is not consideration to support a second contract.” Dunlop Tire & Rubber Corp. v. Serv. Merch. Co., 667 S.W.2d 754, 758-59 (Tenn. Ct. App. 1983) (citing Am. Fruit Growers, Inc. v. Hawkinson, 106 S.W.2d 564 (Tenn. Ct. App. 1937)). To show mutual assent, Defendant relies on the certifications Plaintiffs submitted requesting capital payments. We cannot agree that the certifications manifest Plaintiffs’ intent to modify the Agreement and forego payment under the stop loss provisions therein contained. As previously discussed at length, neither the statute, nor the implementing regulations, nor the policy manual preclude Plaintiffs, as preferred network providers, from requesting and receiving capital payments. This is so notwithstanding the operation of an Agreement establishing a negotiated rate of reimbursement for inpatient care which exceeds 100% of the DRG-rate. Although Defendant, and other MCS Contractors, can expressly provide that negotiated rates include costs otherwise additionally payable under the statute and regulations, such as capital costs, providers remain eligible to receive such additional payments upon request. See TRICARE / CHAMPUS Policy Manual, 6010.53-M, Ch. 6, Section 8 at III.B.4.d. (available at J.A. 1057-58). Defendant analogizes the instant case to Bonastia. There, a company hired the plaintiff as an account manager and by letter conveyed that plaintiff’s “annual salary will be $62,400 for the next two years.” Bonastia, 914 F. Supp. at 1535. On his first day of work, the plaintiff signed a document acknowledging that he “read and received the company’s Employee Handbook and agrees to abide by the policies, procedures, and rules it contains.” Id. The document continues, however, and clarifies that the “Employee Handbook is not, and is not intended to be, a contract of employment,” and that the plaintiff’s “employment is ‘at will.’” Id. Nearly a year later, the plaintiff signed yet another copy of the acknowledgment form. Id. Less than two years after reporting to work, the company terminated the plaintiff, who then sued for breach of an employment contract. Id. at 1535-36. The court in Bonastia assumed that the company’s letter constituted a binding two- year employment contract, but found the second acknowledgment form modified that contract to create an employment at-will arrangement. Id. at 1538-39. Bonastia is not on point. Defendant likens Plaintiffs’ capital payment certifications to the acknowledgment form in Bonastia. The acknowledgment form indicates an agreement to comply with the policies and procedures of the Employee Handbook. The capital payment certifications, however, do not reference the regulations, policies, or procedures governing TRICARE / CHAMPUS and, even if they did, those regulations and policies comprise a complex federal regulatory scheme devoid of a definition of “DRG-based payment.” Ambiguously, the phrase “units subject to DRG-based payment” appears at two places in the certification forms – both under “inpatient days” and under “total TRICARE/CHAMPUS inpatient days.” (See J.A. at 1343) What is more, the information certified must comport with information submitted in the hospital’s Medicare cost report and “DRG-based payment” is a phrase with its origins under the Medicare program. Thus, unlike the rather straightforward acknowledgment form in Bonastia, the signature of which could appropriately be taken to manifest intent, Plaintiffs’ certifications for capital payment in the case at hand cannot be employed to demonstrate Plaintiffs’ intent. At any rate, Defendant cannot show valid consideration. The Agreement did not strip Plaintiffs of their entitlement to capital payment, even for the stop loss claims. In making capital payments to Plaintiffs, Defendant’s government benefits administrator merely performed consistently with a pre-existing duty under the Agreement and the applicable regulations. See No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 13 Humana Military Healthcare Services, Inc. Dunlop Tire & Rubber Corp., 667 S.W.2d at 758-59. Additionally, under the TRICARE / CHAMPUS regulations and policies, Defendant’s government benefits administrator made capital payments independently of Plaintiffs’ regularly submitted claims for reimbursement under the Agreement. These constitute “pass-through” payments and, accordingly, although Plaintiffs submitted their capital payment requests to Defendant’s government benefits administrator, the payments themselves flow directly from the federal government. See 32 C.F.R. § 199.14(a)(1)(iii)(G)(3) (“CHAMPUS shall reimburse the hospital its share of actual capital costs.”) (emphasis added); see also General Accounting Office, Defense Health Program (DHP), B-287619, (July 5, 2001), http://redbook.gao.gov/17/fl0083859.php (“For payment of pass through costs, the contractor provides information to DOD to seek approval for payment. If DOD approves payment, the contractor is notified to pay the claim.”). Thus, Defendant’s claim of modification falls on two swords. We affirm the district court on this claim. B. Plaintiffs Never Waived Their Rights Defendant asserts that Plaintiffs waived their right to receive stop loss payments. To support this claim, Defendant states that, in early 1999, Plaintiffs knew of the stop loss underpayment and of Defendant’s actions in capping those claims at 100% of the DRG-rate and, yet, did not terminate the Agreement. Defendant further relies on Plaintiffs’ capital payment certifications as evidence of intent to waive. In fact, on more than one occasion, Defendant goes so far as to classify Plaintiffs’ submission of capital payment requests as “unequivocal and decisive acts.” (Def.’s Br. at 35, 37) The district court concluded, as a matter of law, that Plaintiffs did not “intentionally and knowingly waive[] their rights to receive payments pursuant to the stop loss provisions,” nor did Plaintiffs “manifest any such intent.” Baptist Physician II, 415 F. Supp. 2d at 851. Reviewing this issue de novo, see Kalamazoo River Study Group, 355 F.3d at 589, we agree with the district court that Plaintiffs did not waive their right to payment under the stop loss provisions. Waiver is the knowing and intentional relinquishment or abandonment of a known right. Gitter v. Tenn. Farmers Mut. Ins. Co., 450 S.W.2d 780, 784 (Tenn. Ct. App. 1969); Faught v. Estate of Faught, 730 S.W.2d 323, 325 (Tenn. 1987). There can, therefore, be no effective waiver of rights where a party either does not know its rights or fails to fully understand those rights. Faught, 730 S.W.2d at 326. Put another way, intent to waive is required. “Waiver may be proved by express declaration; or by acts and declarations manifesting an intent and purpose not to claim the supposed advantage; or by a course of acts and conduct.” Reed v. Wash. County Bd. of Educ., 756 S.W.2d 250, 255 (Tenn. 1988); see also Faught, 730 S.W.2d.at 326; Gitter, 450 S.W.2d at 784. Where a party seeks to prove waiver by course of conduct, “there must be clear, unequivocal and decisive acts of the party or an act which shows determination not to have the benefit intended in order to constitute a waiver.” Gitter, 450 S.W.2d at 784 (citing Webb v. Bd. of Trs. of Webb Sch., 271 S.W.2d 6, 19 (1954)). Plaintiffs did not knowingly relinquish their rights to reimbursement. At the time Plaintiffs entered into the Agreement, Plaintiffs lacked the resources necessary to adequately monitor third party payor compliance with agreed-upon contract terms and, thus, to identify underpayments. To more closely track payments, Plaintiffs acquired new payment tracking software (PCMS) and hired a contract analyst whose primary task was to monitor payments. Plaintiffs loaded their contract with Defendant into the PCMS system in November 1998 and, in early 1999, Plaintiffs learned – through Hodge, its contract analyst – that Defendant had been reimbursing stop loss claims at an amount lower than the stop loss amounts. Plaintiffs’ contract analyst began conversations with Defendant in February 1999 to secure full payment of the stop loss claims. On July 22, 1999, she wrote to Defendant’s government benefits administrator demanding full payment of the stop loss claims. Plaintiffs never No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 14 Humana Military Healthcare Services, Inc. communicated an intent to waive Plaintiffs’ rights under the Agreement, nor did Plaintiffs intend to waive those rights. By letter dated February 5, 2001, Defendant ultimately terminated the Agreement with Plaintiffs because they had reached an impasse on the amount due under the stop loss provisions. Additionally, Plaintiffs’ request and receipt of capital payments cannot be deemed “clear, unequivocal and decisive acts . . . which show[] determination not to have the benefit intended.” See Gitter, 450 S.W.2d at 784. Our exploration of the regulatory scheme underlying the TRICARE / CHAMPUS program proves as much. Consequently, we find that Plaintiffs did not waive their rights under the Agreement.11 C. Laches Does Not Bar Plaintiffs’ Claim, Nor Did Plaintiffs Fail to Mitigate The district court concluded that the doctrine of laches did not bar Plaintiffs’ claim since Plaintiffs took action to obtain full reimbursement upon learning of the underpayment and filed suit “when [it] felt it had exhausted all options of receiving payment.” Baptist Physician II, 415 F. Supp. 2d at 852. Additionally, the district court determined that, after learning of the breach, Plaintiffs did not fail to mitigate damages. Defendant challenges these conclusions. Again, we review de novo, see Kalamazoo River Study Group, 355 F.3d at 589, and Defendant’s claims fail. “[E]quitable defenses may bar purely legal claims.” M.J. Jansen v. Clayton, 816 S.W.2d 49, 52 (Tenn. Ct. App. 1991). To successfully invoke the doctrine of laches, a defendant must show “an inexcusably long delay in commencing the action which causes prejudice to the other party,” and mere delay will not suffice. Patton v. Bearden, 8 F.3d 343, 347 (6th Cir. 1993) (internal citations omitted); see also M.J. Jansen, 816 S.W.2d at 51. A finding of sufficient prejudice frequently follows from “the death of witnesses[,] . . . the loss of evidence,” M.J. Jansen, 816 S.W.2d at 52 (collecting cases), or “failure of memory resulting in obscuration of facts” which “render uncertain the ascertainment of truth, and make it impossible for the court to pronounce a decree with confidence.” Brown v. Ogle, 46 S.W.3d 721, 727 (Tenn. Ct. App. 2000). Laches does not bar Plaintiffs’ claim. Plaintiffs timely filed this suit within the applicable statute of limitations. See Tenn. Code Ann. § 28-3-109 (six-year statute of limitations). Moreover, Plaintiffs filed suit in December 2001 – ten months after Defendant notified Plaintiffs of its intent to terminate the Agreement following impasse, seven months after the effective termination date, and approximately two years and ten months following discovery of the underpayments. Up until February 1999, Plaintiffs did not know that Defendant was reimbursing its stop loss claims at below the agreed-upon rate. At that time, Plaintiffs’ contract analyst began conversations with Defendant to secure full payment of the stop loss claims. On July 22, 1999, the analyst wrote to Defendant’s claims administrator demanding full payment of the stop loss claims. This delay does not rise to the level of “inexcusably long.” Further, Defendant has not shown that it suffered prejudice in the form of lost evidence, deceased witnesses, or failed memory sufficient to impede the truth-finding process. See M.J. Jansen, 816 S.W.2d at 52; Brown, 46 S.W.3d at 727. Neither can Defendant succeed on its claim of failure to mitigate. The party alleging breach of contract “has a legal duty to exercise reasonable and ordinary care under the[] circumstances to prevent and diminish the damages.” ACG, Inc. v. Se. Elevator, Inc., 912 S.W.2d 163, 169 (Tenn. Ct. App. 1995). Although the injured party must take “reasonable and ordinary” steps to mitigate, 11 Although Defendant’s brief on appeal alludes to implied waiver, Defendant wholly fails to develop such an argument. Accordingly, Defendant has waived a challenge on implied waiver grounds. See Moore v. LaFayette Life Ins. Co., 458 F.3d 416, 448 (6th Cir. 2006) (“The courts of appeals are not self-directed boards of legal inquiry and research, but essentially arbiters of legal questions presented and argued by the parties.”); Indeck Energy Servs., Inc. v. Consumer Energy Co., 250 F.3d 972, 979 (6th Cir. 2000) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”). No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 15 Humana Military Healthcare Services, Inc. “[o]ne is not required . . . to make extraordinary efforts.” Id. (citing Arkansas River Packet Co. v. Hobbs, 58 S.W. 278, 282 (Tenn. 1900)). Plaintiffs acted with “reasonable and ordinary care” by informing Defendant promptly upon discovery that, in their view, Defendant was in breach of the Agreement’s stop loss provisions. Plaintiffs pressed their view in a subsequent letter and phone call with Defendant. Defendant concedes in its brief that it terminated the Agreement with Plaintiffs in February 2001 “because [Plaintiffs] insisted on being paid the full stop loss, and in excess of DRG.” (Def.’s Br. at 21) Defendant knew of this insistence long before February 2001. Plaintiffs were not required “to make extraordinary efforts” to further clarify their position for Defendant’s benefit. See ACG, Inc., 912 S.W.2d at 169. Consequently, we find that the district court correctly ruled that the defense of laches does not bar Plaintiffs’ claim, and that Plaintiffs took reasonable steps to mitigate. D. Prejudgment Interest Defendant further argues that the district court abused its discretion in awarding prejudgment interest because “[u]p to the day of trial the number and amount of stop loss claims was contested.” (Def.’s Br. at 46) The district court awarded prejudgment interest at a rate of ten percent per annum “from the date that payment was actually posted on each inpatient claim” improperly reimbursed. Baptist Physician II, 415 F. Supp. 2d at 853. In so doing, the district court observed that Plaintiffs “ha[d] remained without the use of the money” and “[Defendant] could have entirely avoided the dispute . . . had it simply disclosed to [Plaintiffs] prior to signing the Agreement that it had no intention of paying more than CHAMPUS DRG on those claims.” Id. On review, challenges to the district court’s award of prejudgment interest “will not be disturbed . . . unless the record reveals a manifest and palpable abuse of discretion.” Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998); see also Daily v. Gusto Records, Inc., 14 F. App’x 579, 591 (6th Cir. 2001) (noting that state law determines the appropriate standard of review). We find no abuse of discretion. Where consistent with principles of justice and equity, Tennessee Code provides for the award of prejudgment interest at a rate not to exceed ten percent per annum. Tenn. Code Ann. § 47- 14-123. First and foremost, principles of equity guide trial courts in exercising their discretion to award prejudgment interest. Myint, 970 S.W.2d at 927; see also Otis v. Cambridge Mut. Fire Ins. Co., 850 S.W.2d 439, 447 (Tenn. 1992). Second, a trial court will more readily award prejudgment interest “when the amount of the obligation is certain, or can be ascertained by proper accounting.” Myint, 970 S.W.2d at 927 (citing Mitchell v. Mitchell, 876 S.W.2d 830, 832 (Tenn. 1994)). Third, “interest is allowed when the existence of the obligation itself is not disputed on reasonable grounds.” Id. While useful as guideposts, the Tennessee Supreme Court has observed that “these criteria have not been used to deny prejudgment interest in every case where the defendant reasonably disputed the existence or amount of an obligation.” Id. The district court did not abuse its discretion in awarding prejudgment interest. First, the award is consistent with principles of equity. Defendant entered into the Agreement knowing full well it had no intention of ever paying over 100% of the CHAMPUS DRG-rate on the stop loss claims. Defendant deliberately failed to reimburse Plaintiffs according to the stop loss provisions, and thereby deprived Plaintiffs of the use of the difference in reimbursement. Second, the parties stipulated to the “accuracy, and admissibility” of a list detailing the inpatient claims at issue in the case. (J.A. at 1568, 1570-74) Thus, the amount of the obligation could be readily “ascertained by proper accounting.” See Myint, 970 S.W.2d at 927. Finally, although Defendant disputed Plaintiffs’ claim of breach, it did not “reasonably dispute” the claim in light of its intent from the start of the Agreement not to honor the stop loss reimbursement provisions contained therein. Accordingly, we find the district court did not abuse its discretion in awarding prejudgment interest. No. 06-5364 Baptist Physician Hospital Organization, Inc., et al. v. Page 16 Humana Military Healthcare Services, Inc. E. Claims Waived on Appeal At the outset, Defendant’s brief contemplates challenges to the district court’s conclusions on Defendant’s equitable estoppel claim and its counterclaim. However, Defendant’s brief is notably devoid of any developed argumentation on these issues. Accordingly, Defendant has waived these challenges. See Moore, 458 F.3d at 448; Indeck Energy Servs., Inc., 250 F.3d at 979. CONCLUSION For the foregoing reasons, we AFFIRM the district court’s order.	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS December 18, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 03-40258 Summary Calendar GERALD MASTERSON, Plaintiff-Appellant, versus UNITED STATES OF AMERICA; UP GARRETT, Individually & In His Official Capacity as Captain; UP Herrera, Individually and In His Official Capacity as Officer; JAMES FULCHER, Individually and In His Official Capacity as Officer; DAVID CHAMPAGNE, Individually and In His Official Capacity as Officer; UNIDENTIFIED PARTY, #1 - 10, Defendants-Appellees. -------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:01-CV-596 -------------------- Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges. PER CURIAM:* Gerald Masterson, federal prisoner # 06186-112, filed a pro se complaint under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging the use of excessive force and the denial of medical care in connection with a beating * 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. 03-40258 -2- incident. He appeals the denial of his FED. R. CIV. P. 60(b) motion and the final judgment dismissing his complaint. See FED. R. APP. P. 4(a)(4)(A)(vi). “[T]he decision to grant or deny relief under Rule 60(b) lies within the sound discretion of the district court and will be reversed only for an abuse of that discretion.” Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir. 1996)(en banc). Gross carelessness, ignorance of the rules, or ignorance of the law are insufficient bases for Rule 60(b)(1) relief. Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 356 (5th Cir. 1993). Masterson has made no argument demonstrating good cause for his failure to complete service on the individual defendants or for his failure to correctly serve the United States. See Systems Signs Supplies v. United States Dep’t of Justice, 903 F.2d 1011, 1013 (5th Cir. 1990). Nor do his arguments demonstrate that the district court abused its discretion by denying him relief under Rule 60(b). See Edwards, 78 F.3d at 995. Masterson also argues that the district court erred in sua sponte dismissing his remaining claims for failure to exhaust administrative remedies. “[F]ederal prisoners suing under Bivens must first exhaust inmate grievance procedures just as state prisoners must exhaust administrative processes prior to instituting a § 1983 suit.” Porter v. Nussle, 534 U.S. 516, 524 (2002). No. 03-40258 -3- Masterson is correct in his assertion that other circuits have held that exhaustion is an affirmative defense that must be pleaded. See Ray v. Kertes, 285 F.3d 287, 293-94 (3d Cir. 2002) (citations therein). However, Masterson failed to object to the magistrate judge’s determination that he had failed to exhaust administrative remedies. Masterson’s argument is thus limited to review upon grounds of plain error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc). We perceive no plain error in the district court’s dismissal of the claims for failure to exhaust administrative remedies. See Highlands Ins. Co. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 27 F.3d 1027, 1032 (5th Cir. 1994). Accordingly, the district court’s judgment dismissing such claims is AFFIRMED. AFFIRMED.	{ "pile_set_name": "FreeLaw" }
347 F.Supp. 478 (1972) Lorean DYER, Plaintiff, v. Elliot L. RICHARDSON, etc., Defendant. Civ. A. No. 1088. United States District Court, E. D. Tennessee, Winchester Division. June 8, 1972. 479 Ben P. Lynch, Lynch, Lynch & Lynch, Winchester, Tenn., for plaintiff. John L. Bowers, Jr., U. S. Atty., Knoxville, Tenn., and Jerry Foster, Asst. U. S. Atty., Chattanooga, Tenn., for defendant. MEMORANDUM OPINION NEESE, District Judge. This is an action for judicial review of the decision of the defendant administrator, 42 U.S.C. § 405(g), denying the plaintiff's claim for disability benefits under the Social Security Act. 42 U.S. C. §§ 416(i), 423. Both parties have moved for summary judgment. Rule 56, Federal Rules of Civil Procedure. The plaintiff initially filed an application for benefits under the act on March 17, 1970, alleging that she became unable to work on December 19, 1969, due to: " * * hard of hearing, blind left eye, low blood pressure, asthma * * ." The claim was denied initially and on reconsideration. A hearing was held on February 5, 1971, and the examiner denied the plaintiff's application on March 9, 1971. This became the final decision of the defendant administrator, when an appeals council denied the plaintiff's request for a review. The hearing examiner found that: 1. the claimant, Mrs. Lorean Dyer, was born November 3, 1927 [sic: 1928] and meets the earnings requirement for a disability determination on the alleged onset date and at least through December 31, 1973; 2. the claimant has not established by substantial and persuasive evidence that she has any impairment or a combination of impairments which may be expected to last or which have lasted for as long as twelve months, and which have or can be expected to prevent all substantial gainful activity; and, 3. the record in this case does not establish that the claimant is unable 480 to engage in the previous job at which she was regularly employed prior to December 1969 by reason of any medically determinable impairments. These findings are not supported by substantial evidence: Dr. William E. Fann, a psychiatrist, made the only psychiatric evaluation in the record of the claimant. He found: * * * * * * Diagnosis: 1. Chronic anxiety reaction, severe, with some depression. 2. Deafness, unknown idiology. Prognosis: Prognosis for any improvement in her present mental state would be poor without therapy. However, she would probably be a poor candidate for therapy because of her background. * * * If she has no physical cause of deafness this could possibly represent a conversion reaction. * * * * * * * * * Dr. George Copple, a vocational expert, testified at the hearing, after having had an opportunity to view the plaintiff under the stress of the hearing: * * * * * * Q. Now, there is in the record, of course, doctor, an additional factor which you asked about just a moment ago and which I excluded from the assumption that you were just discussing. There is some evidence that there may be what one physician has described as an anxiety reaction with some depression, perhaps being manifested, in part at least, by some of the ostensible organic problems which we have observed. Does that factor in terms of its effect on her ability to carry on regularly and being manifest, if it is, by the hearing deficit and the visual problem, affect what she would be able to do in a vocational environment? A. Yes, I think very strongly so. * * * Q. Doctor, I understand that you're not a psychiatrist, but I also appreciate that your work has involved you with, I assume, a large number of persons over the years who are suffering from this kind of a condition, has it not? A. Yes, sir, it has. Q. Does this lady, in your opinion, exhibit what in the past you have described to be a severe psychoneurosis of a kind described by the medical evidence in this record? A. Yes, I would probably add that there are heavy elements of inadequate personality. But the total impact, [in] psychological and psychiatric terms is much the same. The depressive features are seemingly rather striking to me. Q. This lady apparently has only a third-grade education. I believe that's what we were told, can do no more than write her name, and although she can, has been able in the past, to carry on normal commercial transactions of one in her station. What is your impression of her intellectual capacity, based upon the file that you've seen and the information which we've had at the hearing today? Can you offer one based on that information? A. I think one always has to be careful with the hard of hearing or the deaf or those who behave in that way because our tendency is to underestimate what they can do. Still, on the basis of educational level and what we do see in the record by which I am more impressed than what I actually see here and make my decision. I would think that borderline is about it. Q. So that the resources in that area of the personality are not great? A. They're not great. * * * [A]ctually I know of nothing which would be more suitable 481 than what she has done. She knows this work and, in my judgment, if she can do any work, work of this kind is as suitable as any. Q. I was about to ask, in other words, it is your opinion that if the lady is capable of working, she is as capable of working in her former job as in anything else? A. I think so. * * [emphasis supplied.] The plaintiff had the burden of proving her disability within the meaning of the act. 42 U.S.C. §§ 416(i), 423; Osborne v. Cohen, C.A. 6th (1969), 409 F.2d 37, 39[2]. The findings of the Secretary, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g); King v. Celebrezze, C. A. 6th (1965), 341 F.2d 108, 109. "* * * We have defined `substantial evidence' as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Consolidated Edison Co. of New York v. National Labor Relations Board, [(1938)] 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 `[I]t must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury.' National Labor Relations Board v. Columbian Enameling & Stamping Co., [(1939)] 306 U.S. 292, 300, 59 S.Ct. 501, 505, 83 L.Ed. 660, 665. * * " Consolo v. Federal Maritime Com. (1966), 383 U.S. 607, 619-620, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131, 140-141 (headnote 9). Applying this criteria, there is no substantial evidence in this record to support the finding of the hearing examiner that the claimant has not established an impairment or that she is unable to engage in her previous job. There is no evidence that Mrs. Dyer is a malingerer. She started to work during World War II as a presser in the garment industry and continued in such occupation until December, 1969 at which time she claims her disability started. The psychiatric evidence is undisputed that Mrs. Dyer suffers from a substantial mental disorder with a poor chance of recovery even through therapy. " * * Mental impairment alone may result in disability entitling the one suffering therefrom to disability benefits under the Social Security Act. * * " Ross v. Gardner, C.A. 6th (1966), 365 F.2d 554, 558[4]. The medical evidence is further undisputed that Mrs. Dyer has lost the use of her left eye. Coupled to this must be the difficulties caused by her real or imagined lack of hearing. " * * Employers are concerned with substantial capacity, psychological stability, and steady attendance; they will not unduly risk increasing their health and liability insurance costs. It is unrealistic to think that they would hire anyone with the impairments of this claimant. * * " Thomas v. Celebrezze, C.A. 4th (1964), 331 F.2d 541, 546. " * * It should also be remembered that the Act is concerned not with the average man of ordinary and customary abilities, but with the particular person who may claim its benefits; and the effect of the impairment upon that person with whatever abilities he has. * * * Therefore, the background, education, training and age of this particular applicant becomes pertinent to his undisputed physical and mental condition. * * " Ellerman v. Flemming, D.C. Mo. (1960), 188 F.Supp. 521, 526[7]. In summary, this is not a case of the Secretary's resolving conflicting evidence, as is his right; but rather, it is a case of his ignoring the only psychiatric and vocational evidence in the record and substituting lay opinion in its place. Where " * * reliance has been placed upon one portion of the record to the disregard of overwhelming evidence to the contrary, the courts are equally bound to decide against the Secretary. * * * In such a circumstance the courts are empowered either to modify or reverse the Secretary's decision `with or without remanding the 482 cause for a rehearing.' 42 U.S.C. § 405(g). * " Thomas v. Celebrezze, supra, 331 F.2d at 543[3]. " * * The test on remanding is whether more evidence is necessary to develop the facts necessary to determine the cause. * * *" Forbes v. Finch, D.C.Tenn. (1969), 307 F.Supp. 1000, 1005[11]. Here, the proof of the claimant's mental disorder is undisputed. After the long pendency of her claim, there appears to be no reason to remand for the taking of any further testimony. Sayers v. Gardner, C.A. 6th (1967), 380 F.2d 940, 955[11]. Judgment will enter, denying the defendant's motion for summary judgment, granting the plaintiff's motion for summary judgment, reversing the final decision of the defendant Secretary and remanding this action to him with direction to award Mrs. Dyer the disability benefits claimed. 42 U.S.C. § 405(c) (8); Rule 58(2), Federal Rules of Civil Procedure.	{ "pile_set_name": "FreeLaw" }
669 S.E.2d 859 (2008) STATE of North Carolina v. Marlon Damon CHARLES. No. COA08-601. Court of Appeals of North Carolina. December 16, 2008. 860 Attorney General Roy Cooper, by Assistant Attorney General James M. Stanley Jr., for the State. Kimberly P. Hoppin, Chapel Hill, for defendant-appellant. McCULLOUGH, Judge. On 2 November 2007, a jury convicted Marlon Damon Charles ("defendant") on six charges of trafficking in marijuana: by sale, by delivery, and by possession. On appeal, defendant contends that the trial court erred by (1) entering judgment on convictions which were the product of ambiguous jury verdicts, (2) denying defendant's motion to dismiss, and (3) admitting a paper writing into evidence over defendant's objection. After careful review of the record, we find no prejudicial error. I. Background On 3 April 2007, defendant was indicted on two charges of trafficking in marijuana by sale, two charges of trafficking in marijuana by delivery, and two charges of trafficking in marijuana by possession. The charges were related to transactions that occurred on 29 January 2007 and 9 February 2007. All of the indictments alleged that the amount of marijuana involved was "10 pounds or more but less than 50 pounds[.]" The case was tried before a jury at the 29 October 2007 Criminal Session of Wake County Superior Court, before the Honorable R. Allen Baddour, Jr. The State's evidence at trial tended to show the following: Frederico "Fred" Johnson ("Johnson") began working as a paid police informant in April of 2006 after he was charged with trafficking in cocaine. Johnson first met defendant in 2005, when Johnson was involved in selling marijuana. Johnson bought marijuana from defendant on numerous occasions, generally in amounts weighing 10 to 20 pounds. After Johnson's arrest in 2006, he continued to purchase marijuana from defendant and agreed to cooperate with the police in providing information about drug transactions. On 18 January 2007, Johnson met with Agent Jeffrey Morales of the North Carolina State Bureau of Investigation ("SBI"). Johnson told Agent Morales that defendant, whom he knew as "Lion," was trafficking marijuana and had directed the delivery of some packages containing marijuana. Based on this information, Agent Morales contacted Special Agent Kathy O'Brien and started an investigation. Under supervision of the SBI, Johnson engaged in a series of controlled buys with defendant. At defendant's trial, Johnson testified about his dealings with defendant in January and February of 2007. Before each meeting with defendant, the SBI provided Johnson with money to purchase marijuana, conducted a search of Johnson, and installed a recording device on his person. Johnson met with defendant on 29 January 2007 at 5512 Wood Pond Court in Raleigh, North Carolina, the residence of defendant's girlfriend, Sasha Fox ("Fox's house"). Special Agent O'Brien testified that the SBI was unable to view Johnson entering and departing from Fox's house and could only hear small portions of Johnson's conversation with defendant over the monitor. Johnson paid defendant $2,000.00 to satisfy a prior debt, and defendant gave Johnson a packaged box containing what Johnson believed to be 12 pounds of marijuana. After this exchange, Johnson returned to the SBI lab, where the SBI took possession of the box and submitted the contents for testing. A forensic drug chemist from the City County Bureau of Investigation (CCBI) testified that she had determined the contents of the box to be marijuana in an amount weighing 11 pounds. Johnson returned to Fox's house on 7 February 2007 to meet with defendant a second time. During this meeting, Johnson gave defendant $9,000.00 to pay for the 29 January 2007 transaction. After waiting at Fox's house for a few hours, Johnson and defendant drove to a few other locations, but were unable to obtain any marijuana. The SBI was unable to hear any of the conversations over the monitor between Johnson and defendant. Johnson met defendant for a third time at Fox's house on 9 February 2007. The SBI observed Johnson entering and leaving Fox's house. After Johnson entered the house, 861 defendant went into a bedroom and returned with a Christmas tree box and a Pampers box, which Johnson believed to contain 16 pounds of marijuana. A forensic drug chemist from the CCBI testified that the two packages collectively contained 13 pounds of marijuana. On 16 February 2007, the SBI obtained search warrants for Fox's house as well as defendant's residence at 5605 Cilantro Drive in Raleigh. The SBI seized about $8,000.00 in cash from defendant's residence and approximately three pounds of marijuana from Fox's house. At Fox's house, the SBI also found a piece of paper with the notation, "Fred 12" written on it. The CCBI examined fingerprints lifted from the various items of packaging involved in the drug transactions between defendant and Johnson. An evidence technician from CCBI identified three of the prints as belonging to defendant and one of the prints as belonging to Johnson. At the close of the State's evidence, defendant moved to dismiss all charges for insufficiency of evidence, which the trial court denied. Defendant renewed his motion to dismiss, which was also denied by the trial court. On 2 November 2007, the jury returned unanimous verdicts of guilty on all six charges. The trial court entered judgment and sentenced defendant to a term of 25 to 30 months' imprisonment and imposed fines in the amount of $13,000.00. Defendant gave notice of appeal in court on 2 November 2007. II. Jury Instructions Defendant assigns error to all of his trafficking in marijuana convictions under N.C. Gen.Stat. § 90-95(h)(1), arguing that due to the overly broad jury instructions, his convictions were the product of ambiguous jury verdicts. We disagree. Our State Constitution provides that "[n]o person shall be convicted of any crime but by the unanimous verdict of a jury in open court." N.C. Const. Art. I, § 24. "To convict a defendant, the jurors must unanimously agree that the State has proven beyond a reasonable doubt each and every essential element of the crime charged." State v. Jordan, 305 N.C. 274, 279, 287 S.E.2d 827, 831 (1982). "If the trial court instructs a jury that it may find the defendant guilty of the crime charged on either of two alternative grounds, some jurors may find the defendant guilty of the crime charged on one ground, while other jurors may find the defendant guilty on another ground." State v. Petty, 132 N.C.App. 453, 460, 512 S.E.2d 428, 433, appeal dismissed and disc. review denied, 350 N.C. 598, 537 S.E.2d 490 (1999). "Submission of an issue to the jury in the disjunctive is reversible error if it renders the issue ambiguous and thereby prevents the jury from reaching a unanimous verdict." State v. Diaz, 317 N.C. 545, 553, 346 S.E.2d 488, 494 (1986). Defendant was convicted of six counts of trafficking in marijuana by possession, sale, and delivery, pursuant to N.C. Gen.Stat. § 90-95(h)(1), which reads: Any person who sells, manufactures, delivers, transports, or possesses in excess of 10 pounds (avoirdupois) of marijuana shall be guilty of a felony which felony shall be known as "trafficking in marijuana" and if the quantity of such substance involved: a. Is in excess of 10 pounds, but less than 50 pounds, such person shall be punished as a Class H felon and shall be sentenced to a minimum term of 25 months and a maximum term of 30 months in the State's prison and shall be fined not less than five thousand dollars ($5,000). N.C. Gen.Stat. § 90-95(h)(1)(a) (2007) (emphasis added). "Weight of the marijuana is an essential element of trafficking in marijuana under G.S. [§ ]90-95(h)." State v. Goforth, 65 N.C.App. 302, 306, 309 S.E.2d 488, 492 (1983). "The weight element upon a charge of trafficking in marijuana becomes more critical if the State's evidence of the weight approaches the minimum weight charged." State v. Anderson, 57 N.C.App. 602, 608, 292 S.E.2d 163, 167, disc. review denied, 306 N.C. 559, 294 S.E.2d 372 (1982). In this case, the trial court deviated from the language used in N.C. Gen.Stat. § 90-95(h)(1) to describe the weight element of 862 trafficking in marijuana. Specifically, the trial court instructed the jury that it should find defendant guilty if it found that defendant sold "between ten and fifty pounds" of marijuana. Defendant claims these erroneous instructions permitted the jury to find him guilty if it found the weight of the marijuana to be exactly 10 pounds, which does not qualify as a trafficking offense under the statute. Because defendant did not object to this aspect of the jury instructions at trial, the challenged instructions are reviewable only for plain error. See N.C. R.App. P. 10(b)(2); State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983). The plain error rule is always to be applied cautiously and only in the exceptional case. Id. Under this standard, defendant has the burden of showing "`(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.'" State v. Stanfield, 134 N.C.App. 685, 689, 518 S.E.2d 541, 544 (1999) (quoting State v. Bishop, 346 N.C. 365, 385, 488 S.E.2d 769, 779 (1997)). In deciding whether a defect in the jury instructions constitutes plain error, we must examine the entire record and determine if the instructional error had a probable impact on the jury's finding of guilt. Odom, 307 N.C. at 661, 300 S.E.2d at 378-79. Defendant relies on our decision in State v. Trejo, 163 N.C.App. 512, 594 S.E.2d 125 (2004), in support of his argument. In Trejo, the trial court instructed the jury that if it found that the defendant possessed "ten pounds or more but less than fifty pounds" of marijuana, it should find him guilty of trafficking in marijuana. Trejo, 163 N.C.App. at 517-18, 594 S.E.2d at 129. The State provided evidence that the box of marijuana transported by the defendant weighed 18 pounds, while the defendant testified that the box only weighed 6 or 7 pounds. Id. at 518, 594 S.E.2d at 129. Because the evidence in Trejo could have supported an inference that the defendant possessed exactly ten pounds of marijuana, we reversed his convictions. Id. Contrary to the facts in Trejo, there was not any evidence presented at defendant's trial which would support an inference that defendant sold, delivered, or possessed exactly 10 pounds of marijuana. Here, the State provided evidence that weight of the marijuana involved in Johnson's transactions with defendant was 11 pounds and 13 pounds. Defendant did not contradict this evidence, nor did he offer any evidence regarding the weight of the marijuana involved. The jury was not presented with any evidence that the weight of marijuana involved was exactly 10 pounds, and therefore, it is not probably that the instructional error had a probable impact on the jury's verdicts. Thus, defendant has failed to show any plain error in the instructions to the jury. III. Motion to Dismiss Defendant also appeals the trial court's denial of his motion to dismiss. Defendant moved to dismiss all charges at the close of the State's evidence and again at the close of all evidence, both of which were denied. Defendant argues that there was insufficient evidence to convict him of trafficking in marijuana by possession, sale, and delivery. We find no error. The standard of review for a motion to dismiss for insufficient evidence is whether there is substantial evidence of each element of the offense charged and that the defendant is the perpetrator of such offense. State v. Powell, 299 N.C. 95, 98, 261 S.E.2d 114, 117 (1980). "Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion." State v. Crawford, 344 N.C. 65, 73, 472 S.E.2d 920, 925 (1996). The reviewing court must view the evidence in the light most favorable to the State, giving the State every reasonable inference arising from the evidence. Powell, 299 N.C. at 99, 261 S.E.2d at 117. "[T]he rule for determining the sufficiency of evidence is the same whether the evidence is completely circumstantial, completely direct, or both." State v. Wright, 302 N.C. 122, 126, 273 S.E.2d 699, 703 (1981). Any contradictions or discrepancies arising from the evidence are for the jury to resolve and do not warrant dismissal. State v. King, 343 863 N.C. 29, 36, 468 S.E.2d 232, 237 (1996), cert. allowed in part, 348 N.C. 507, 506 S.E.2d 252 (1998). In the present case, the evidence, viewed in the light most favorable to the State, tends to show the following: On 29 January 2007, Johnson gave defendant $2,000.00 and received 11 pounds of marijuana from him. Johnson paid defendant $9,000.00 in exchange for two boxes containing 13 pounds of marijuana, which he received on 9 February 2007. A latent print examiner from the CCBI determined that three fingerprints on the boxes of marijuana were made by defendant. Based on the above-mentioned evidence, we conclude that the trial court was presented with sufficient evidence to satisfy all elements for each of defendant's convictions. Defendant claims that the above-mentioned evidence is insufficient because it is solely based on the uncorroborated testimony of Johnson. Defendant contends that Johnson was a "witness of questionable reliability" due to his prior drug convictions, his belief that his testimony would get his sentence reduced for cooperating with law enforcement, and the fact that he was being paid by law enforcement for his participation in undercover drug transactions. Defendant's arguments are misplaced in that the arguments do not concern the sufficiency of evidence but instead relate to the credibility of Johnson. On a motion to dismiss, it is not the duty of the trial court to weigh the evidence or determine any witness' credibility. State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 256, cert. denied, 537 U.S. 1006, 123 S.Ct. 488, 154 L.Ed.2d 404 (2002) (citation omitted). "When ruling on a motion to dismiss, the trial court should be concerned only about whether the evidence is sufficient for jury consideration, not about the weight of the evidence." State v. Fritsch, 351 N.C. 373, 379, 526 S.E.2d 451, 455-56, cert. denied, 531 U.S. 890, 121 S.Ct. 213, 148 L.Ed.2d 150 (2000). We conclude that the State presented sufficient evidence to survive defendant's motion to dismiss and therefore find no error. IV. Admission of Evidence Defendant contends that the trial court erred in admitting State's Exhibit No. 1 ("Exhibit 1") into evidence. Exhibit 1 was a piece of paper containing the notation "Fred 12" that the police found at Fox's house, pursuant to a search warrant. During trial, the State moved to introduce Exhibit 1 to corroborate the testimony of Johnson, who goes by the name "Fred," that he purchased 12 pounds of marijuana from defendant on 29 January 2007. Defendant's objections were overruled. The trial court's decision to exclude or admit evidence is generally reviewed for an abuse of discretion. Brown v. City of Winston-Salem, 176 N.C.App. 497, 505, 626 S.E.2d 747, 753 (citations omitted), cert. denied, 360 N.C. 575, 635 S.E.2d 429 (2006). Defendant argues that the trial court erred in admitting Exhibit 1 because it was not properly authenticated,[1] irrelevant, and prejudicial. These arguments have no merit. Irrelevant evidence is harmless unless the defendant shows that he was so prejudiced by the erroneous admission that a different result would have ensued if the evidence had been excluded. State v. Harper, 96 N.C.App. 36, 42, 384 S.E.2d 297, 300 (1989). Defendant has not met this burden. Furthermore, defendant's claim that Exhibit 1 was not admissible because it was prejudicial has no merit. It is assumed that evidence which is probative in the State's case will have a prejudicial effect on a defendant; the question, then, is one of degree. State v. Mercer, 317 N.C. 87, 93-94, 343 S.E.2d 885, 889 (1986). Relevant evidence is properly admissible unless the court determines that it must be excluded, for instance, because of the risk of unfair prejudice. Id. at 94, 343 S.E.2d at 889. Defendant has failed to show unfair prejudice. Thus, we overrule this assignment of error. *864 V. Conclusion For the above-mentioned reasons, we find no error warranting the reversal of defendant's convictions. No error. Judges TYSON and CALABRIA concur. NOTES [1] We do not reach the merits of this argument and dismiss because it does correspond with the assignments of error set out in the record on appeal. See N.C. R.App. P. 10(a) (stating that "the scope of review on appeal is confined to consideration of those assignments of error set out in the record on appeal").	{ "pile_set_name": "FreeLaw" }
Case: 11-14989 Date Filed: 04/11/2014 Page: 1 of 29 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 11-14989 ________________________ D.C. Docket Nos. 1:10-cv-24652-FAM, 1:06-cr-20734-FAM-1 DEMOND L. OSLEY, Petitioner - Appellant, versus UNITED STATES OF AMERICA, Respondent - Appellee. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (April 11, 2014) Before MARCUS, DUBINA, and WALKER, * Circuit Judges. MARCUS, Circuit Judge: * Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting by designation. Case: 11-14989 Date Filed: 04/11/2014 Page: 2 of 29 Demond Levail Osley, a federal prisoner convicted of various offenses involving the sexual trafficking of a minor, appeals the district court’s denial of his motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255. We granted a certificate of appealability concerning whether Osley’s trial counsel was ineffective for failing to advise him during plea negotiations that a violation of 18 U.S.C. § 1591(b) carried a statutory mandatory minimum sentence as well as a potential life term of supervised release; and for failing to object that impermissible double counting occurred at sentencing. After thorough review we affirm. I. A. The facts and procedural history are straightforward. On November 21, 2006, a federal grand jury in the Southern District of Florida returned an indictment charging Osley and his co-defendant, Stacey Greer, with multiple counts stemming from the commercial sex trafficking of a minor. Specifically, Osley was charged with: causing a minor to engage in a commercial sex act by means of force, fraud, and coercion, in violation of 18 U.S.C. § 1591(a)(1) and (b)(1) (Count One); knowingly transporting an individual for prostitution, in violation of 18 U.S.C. § 2421 (Count Three); persuading, inducing, enticing, and coercing an individual to travel to engage in prostitution, in violation of 18 U.S.C. 2 Case: 11-14989 Date Filed: 04/11/2014 Page: 3 of 29 § 2422(a) (Count Four); and persuading, inducing, enticing, and coercing a minor to engage in prostitution, in violation of 18 U.S.C. § 2422(b) (Count Five). Before trial, the parties discussed the possibility of Osley entering a guilty plea. In an e-mail dated January 17, 2007, the prosecutor informed Osley’s lawyer, Philip Reizenstein, that he rejected the defendant’s counteroffer to a plea that had been offered by the government. The prosecutor agreed with defense counsel’s calculation that Osley’s estimated guideline imprisonment range would be between 97 and 121 months “if his Criminal History is determined to be a III, as we are estimating.” He also said he would seek a sentence at the high end of the range if Osley were convicted at trial. The prosecutor further explained that if Osley accepted the government’s offer, the defendant would “receive a three-level reduction for acceptance of responsibility,” lowering his guideline range to between 70 and 87 months, and the government would recommend a sentence at the low end of that range. He also predicted that with good behavior, Osley “would likely be incarcerated at most for 59.5 months, which is less than five years.” The Assistant U.S. Attorney added that he was still willing to consider “a 5K or Rule 35 motion,” which could further reduce Osley’s sentence by a third. Two weeks later, the prosecutor again e-mailed defense counsel, reiterating that the government was “definitely interested in Mr. Osley’s proffer / debriefing / assistance.” Moreover, the prosecutor explained, “if all goes well [Osley] could 3 Case: 11-14989 Date Filed: 04/11/2014 Page: 4 of 29 potentially receive as much as a third off his sentence” in addition to three points off for acceptance of responsibility. On February 2, 2007, the district court held a hearing regarding Osley’s plea status. The court expected Osley to plead guilty, but things didn’t go as planned. Instead, counsel for Osley informed the court that his client, who was “wrestling very hard with a tough decision,” had not yet accepted the government’s plea agreement. Osley’s counsel explained that he had sought changes to the plea deal and had “gotten the best that we could.” The prosecutor informed the court that: (1) the maximum sentence in this case was life; (2) if Osley were to plead guilty, the prosecution planned to ask for 80 months; (3) there was no mandatory minimum sentence under the Sentencing Guidelines for the charged offenses; and (4) if Osley were found guilty of all charges, the Guidelines called for a range of between 90 and 121 months of imprisonment. The court said that it was time for Osley to make a decision, “to fish or cut bait.” Osley chose to roll the dice, reject the offer, and proceed to trial. The government’s star witness was the seventeen-year-old victim, who provided damning testimony of the ordeal she suffered at the hands of the accused. Specifically, she described the “desperate” and “horrible” state she was in when she met Osley in Michigan on October 30, 2006, having run away from home without “anything besides the clothes on [her] back” after an “excruciating” fight 4 Case: 11-14989 Date Filed: 04/11/2014 Page: 5 of 29 with her ex-fiancé. While she was at a payphone calling her mother for assistance, Osley approached the victim and asked if she needed to use his cellular telephone. Osley began “trying to get to know” the victim, and he told her he owned a house and fancy cars. He persuaded the victim to travel to Florida with him by promising that he would be her boyfriend and “buy [her] everything brand new.” Because she had no identification, Osley encouraged the victim to obtain a false police report in order to board a plane with him that night. Induced by Osley’s promises of “a new life, [a] time to start over,” she acquiesced, and he subsequently purchased a ticket for her. But on the flight from Michigan, the victim’s expectations came crashing down. Osley dropped a bombshell, informing her that she was expected to earn $500 per night for him by “selling [her] body.” Upon landing in South Florida, the victim met other prostitutes who worked for Osley. They taught her the “rules of the game,” such as not being “allowed to look another male” in the face when “on the street,” and being forced to call Osley “Daddy.” The victim also testified that Osley referred to the women who worked for him, including the victim, as “[b]itch, ho.” Osley put the victim to work the same night she arrived. On November 2, 2006, she was arrested for obstruction and trespassing in Broward County. Osley, who was “very angry” with her for getting arrested and for not bringing in enough money, picked her up from jail. They got into a heated argument, which was, as she described it, “very physical, very 5 Case: 11-14989 Date Filed: 04/11/2014 Page: 6 of 29 verbal.” She testified that Osley beat her and even placed his gun in her mouth. The next day, Osley turned the victim over to another pimp, co-defendant Greer. The victim worked for Greer until she was arrested for prostitution by the Miami Beach Police Department on November 9, 2006. On February 7, 2007, the jury convicted Osley of all charges. As for Count One, the jury specifically found that Osley knew the victim “was less than 18 years of age” and that “force, fraud or coercion would be used.” As for Count Five, the jury determined that Osley did not use a firearm. Although during the plea discussions the parties had agreed and expressly said that no mandatory minimum applied, in fact a violation of Title 18 U.S.C. Section 1591(b)(1) carried a fifteen-year mandatory minimum sentence. Unbeknownst to the parties, Congress had changed the law adding the mandatory minimum on July 27, 2006, notably before Osley violated the statute. See 18 U.S.C. § 1591(b).1 But it was not until Osley was interviewed by his probation 1 The previous version of section 1591(b)(1) stated: (b) The punishment for an offense under subsection (a) is -- (1) if the offense was effected by force, fraud, or coercion . . . by a fine under this title or imprisonment for any term of years or for life, or both . . . . 18 U.S.C. § 1591(b)(1) (2000) (amended 2006) (emphasis added). The Adam Walsh Child Protection and Safety Act of 2006 amended this section to read this way: (b) The punishment for an offense under subsection (a) is -- (1) if the offense was effected by force, fraud, or coercion . . . by a fine under this title and imprisonment for any term of years not less than 15 or for life . . . . 6 Case: 11-14989 Date Filed: 04/11/2014 Page: 7 of 29 officer on March 28, 2007, after trial and in preparation for sentencing, that he and his counsel first became aware that a mandatory minimum sentence applied to his case. The Probation Department’s Presentence Investigation Report (“PSI”) confirmed that a fifteen-year mandatory minimum sentence applied to Osley’s conviction under 18 U.S.C. § 1591(b)(1). The PSI assigned Osley a base offense level of 30, determining that the cross reference to section 2A3.1 contained in section 2G1.3 under the 2006 Sentencing Guidelines applied because the offense involved conduct described in 18 U.S.C. §§ 2241 or 2242 (aggravated sexual abuse or sexual abuse). Moreover, a four-level enhancement was applied because the offense involved conduct described in 18 U.S.C. §§ 2241(a) or (b) (using force or threats). Finally, two more levels were added because the victim of the crime was a vulnerable victim pursuant to U.S.S.G. § 3A1.1(b)(1). With an adjusted offense level of 36 and a criminal history category of II, Osley’s advisory guideline range was 210 to 262 months. An addendum to the PSI noted that the court could impose supervised release up to a term of life under 18 U.S.C. § 3583(k), but it set the guideline range for a term of supervised release between three years and life. 18 U.S.C. § 1591(b)(1) (2006) (emphasis added); see Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, § 208, 120 Stat 587, 615. 7 Case: 11-14989 Date Filed: 04/11/2014 Page: 8 of 29 Osley objected to the PSI calculation, arguing that the cross reference to U.S.S.G. § 2A3.1 and the four-level enhancement constituted uncharged conduct in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Notably, Osley did not claim that these enhancements amounted to impermissible double counting. Osley also objected to the application of the two-level vulnerable victim enhancement and the fifteen-year mandatory minimum. Finally, Osley objected to the description of the offense conduct, asserting that he was innocent. The district court conducted a sentencing hearing on May 16, 2007. Osley offered his rationale for going to trial: The reason I took it to trial is the government offered me a plea of 70 months. When I figured out my own [G]uidelines and figured out what my level was, the top end of my [G]uidelines was 71 months, so why would I take a plea to 70 months? What they giving me, a deal of a month? I might as well take it to trial. The district court overruled Osley’s objections to the PSI, agreeing with the probation officer that his guideline range was 210 to 262 months. The court noted that a life sentence was not appropriate since the jury had not found that a firearm had been used. But it concluded that Osley should be subject to an above-range sentence based on a number of aggravating factors: the victim’s age, acts of coercion (including a beating the victim sustained), the devastation to the victim’s future, and Osley’s utter lack of remorse. The court explained that it was going to 8 Case: 11-14989 Date Filed: 04/11/2014 Page: 9 of 29 “go up three levels,” thereby increasing the total offense level from 36 to 39, and yielding a new range of 292 to 365 months. The court ultimately sentenced Osley to 365 months of imprisonment on Count One, 120 months as to Count Three, 240 months on Count Four, and 365 months as to Count Five, all to run concurrently. The court also imposed a life term of supervised release and a $400 special assessment fee. B. On April 10, 2008, Osley moved pro se for a new trial, which the district court summarily denied. Osley then appealed his convictions and sentence, as well as the denial of his motion. A panel of this Court vacated and remanded for the sole purpose of allowing the district court to clarify whether it had imposed a variance or a departure when calculating Osley’s sentence; it affirmed as to all of the other claims. United States v. Osley, 302 F. App’x 896, 898 (11th Cir. 2008) (per curiam). At a resentencing hearing conducted on May 5, 2009, the district court explained that the original sentence was an upward variance, not a departure. The court reimposed the same concurrent 365-month sentence, followed by supervised release for life and a $400 special assessment fee. The court observed that Osley’s conduct evinced more coercion than was covered by the guideline range sentence, and the substantially enhanced sentence was designed “to reflect the seriousness of 9 Case: 11-14989 Date Filed: 04/11/2014 Page: 10 of 29 the offense,” “promote respect for the law,” “provide just punishment,” and “afford adequate deterrence.” On October 15, 2009, a panel of this Court affirmed, concluding that the total sentence of 365 months was not unreasonable. United States v. Osley, 349 F. App’x 418, 420 (11th Cir. 2009) (per curiam). The Supreme Court subsequently denied certiorari. Osley v. United States, 558 U.S. 1128 (2010). C. Osley then filed a timely pro se motion to vacate, set aside, or correct the sentence pursuant to 28 U.S.C. § 2255. He advanced five arguments, only three of which are relevant to this appeal. First, Osley claimed that trial counsel was ineffective for failing to inform him of the mandatory minimum fifteen-year sentence for a violation of 18 U.S.C. § 1591(b), asserting that the lawyer’s failure was “the result of inadequate / non-existent research into the law and a misplaced reliance on the government’s erroneous interpretation of the law.” Second, Osley averred that counsel was ineffective at sentencing and on direct appeal because he failed to challenge an “obvious” double counting violation in the calculation of Osley’s guideline range. Finally, Osley said his counsel improperly failed to advise him that there was a potential life term of supervised release for a § 1591(b) conviction. 10 Case: 11-14989 Date Filed: 04/11/2014 Page: 11 of 29 Along with this motion, Osley filed an affidavit declaring, in relevant part, that: (1) Reizenstein never apprised him of the fifteen-year mandatory minimum sentence; (2) Osley did not become aware of the mandatory sentence until he was interviewed by his probation officer on March 28, 2007; and (3) if he had been correctly informed by Reizenstein of the mandatory sentence and his correct sentencing exposure, he would have pled guilty. Osley attached several relevant documents to this affidavit, including a letter defense counsel sent to Osley on May 17, 2007. Reizenstein acknowledged in the letter that neither the government, nor counsel, nor the court informed the defendant about the new fifteen-year mandatory minimum sentence. However, Reizenstein explained why he did not seek a new trial this way: “[Y]ou did not want an offer that appeared to expose you to a sentence of seven to ten years, so how logically, could I argue that you would immediately have accepted an offer that guaranteed you would serve a minimum of fifteen years?” On July 25, 2011, a magistrate judge recommended that Osley’s section 2255 motion be denied. As for the mandatory minimum sentence, the judge concluded that even though trial counsel admitted in writing that he failed to advise Osley of the mandatory minimum, Osley was not entitled to habeas relief because he could not demonstrate prejudice. The magistrate judge reasoned that since Osley rejected a plea deal of 70 to 87 months (5.8 to 7.25 years), there was no 11 Case: 11-14989 Date Filed: 04/11/2014 Page: 12 of 29 reasonable probability that he would have accepted a plea to the statutory minimum of fifteen years (180 months) had it been offered. As for Osley’s double counting claim, the magistrate judge found that although it appeared a viable double counting issue was present -- because U.S.S.G. § 2G1.3(c)(3) and § 2A3.1 punish the same conduct (“knowingly causing another person to engage in a sexual act by use of force [and] placing in fear”) -- any error did not prejudice Osley because the court had imposed an upward variance anyway. Finally, the magistrate judge determined that counsel was not ineffective for failing to advise Osley that section 1591(b) carried a life term of supervised release for the same reasons the court rejected Osley’s claim about the mandatory minimum. Over Osley’s objections, the district court adopted the magistrate judge’s Report and Recommendation in its entirety. Osley timely appealed the order. Although the district court denied Osley’s motion for a certificate of appealability (“COA”), we granted his COA request concerning whether counsel was ineffective for failing to argue that impermissible double counting occurred; and for not telling Osley that a violation of the statute carried both a potential life term of supervised release and a mandatory minimum fifteen-year sentence. Osley filed his initial brief pro se; thereafter, however, we appointed counsel who filed supplemental briefing. 12 Case: 11-14989 Date Filed: 04/11/2014 Page: 13 of 29 II. In a section 2255 proceeding, we review legal conclusions de novo and factual findings for clear error. Devine v. United States, 520 F.3d 1286, 1287 (11th Cir. 2008) (per curiam). Ineffective assistance of counsel claims are mixed questions of law and fact that we review de novo. Id. To prevail on an ineffectiveness claim, the defendant must satisfy the familiar two-part test established in Strickland v. Washington, 466 U.S. 668 (1984). First, he must show that counsel’s performance was deficient. To meet this prong, the defendant must demonstrate that counsel made errors so serious that he was not functioning as counsel guaranteed by the Sixth Amendment. Id. at 687. There is a strong presumption that counsel’s conduct fell within the range of reasonable professional assistance, and, therefore, counsel’s performance is deficient only if it falls below the wide range of competence demanded of lawyers in criminal cases. Id. at 689. Then, the defendant must show that he suffered prejudice as a result of that performance. Id. at 687. This requires establishing a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. A habeas petitioner claiming ineffective assistance of counsel must carry his burden on both Strickland prongs, and a court need not address both prongs if the defendant has made an 13 Case: 11-14989 Date Filed: 04/11/2014 Page: 14 of 29 insufficient showing on one. See id. at 697; Johnson v. Alabama, 256 F.3d 1156, 1176 (11th Cir. 2001). The Supreme Court has long recognized that Strickland’s two-part inquiry applies to ineffective assistance of counsel arising out of the plea process. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). Recently, in Missouri v. Frye, --- U.S. ---, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, --- U.S. ---, 132 S. Ct. 1376 (2012), the Court clarified that the Sixth Amendment right to the effective assistance of counsel extends specifically “to the negotiation and consideration of plea offers that lapse or are rejected.” In re Perez, 682 F.3d 930, 932 (11th Cir. 2012) (per curiam). The Court concluded that, in order to establish prejudice, a defendant must show a reasonable probability that but for counsel’s ineffectiveness: (1) “the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances)”; (2) “the court would have accepted its terms”; and (3) “the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler, 132 S. Ct. at 1385; see Frye, 132 S. Ct. at 1409. III. A. 14 Case: 11-14989 Date Filed: 04/11/2014 Page: 15 of 29 First, Osley says the district court erred in denying his ineffectiveness claim because counsel failed to advise him that he faced a mandatory minimum fifteen- year sentence if convicted under 18 U.S.C. § 1591(b)(1). We are not persuaded. It is beyond dispute that the parties negotiated Osley’s plea agreement under the erroneous assumption that a previous version of section 1591(b), which did not contain a mandatory minimum sentence, governed Osley’s case. As defense counsel himself admitted, he failed to inform his client of the application of a 180- month mandatory minimum. Thus, in calculating Osley’s probable sentencing range under the Sentencing Guidelines, the parties did not contemplate the effect of the mandatory minimum on the Guidelines recommendation. The prosecutor and defense counsel incorrectly informed Osley that his estimated guideline sentencing range was 97 to 121 months. Only after conviction, Osley learned that he not only faced a mandatory minimum fifteen-year penalty, but also that his guideline sentencing range was actually between 210 and 262 months. We need not decide, although we have serious doubts about, whether counsel’s performance satisfied the standard of reasonableness required by the Sixth Amendment. Instead, we hold only that Osley cannot succeed on his claim of ineffective assistance of counsel because he has not come close to meeting his burden under Strickland’s prejudice prong. See Strickland, 466 U.S. at 697. 15 Case: 11-14989 Date Filed: 04/11/2014 Page: 16 of 29 To prove prejudice in the context of a foregone guilty plea, Osley must satisfy the three-part test the Court articulated in Lafler v. Cooper, 132 S. Ct. at 1385. 2 He can meet none of the requirements. As for whether he would have accepted the original offer, Osley claims he would have taken a plea that resulted in a fifteen-year mandatory minimum had he known he was facing up to 262 months under the Guidelines after a conviction at trial. To back this up, Osley points to his sworn statement that he would have pled guilty had he been apprised of the actual penalties he faced. As an initial matter, Osley’s declaration that his plea deal would have resulted in a fifteen-year sentence is wholly speculative since it is unclear what plea terms the prosecution would have offered if it had known about the mandatory minimum. But, even assuming the prosecution would have offered Osley a plea agreement that recommended a mandatory period of incarceration of fifteen years, Osley has failed to establish a reasonable probability he would have accepted the deal since he had already refused to accept a deal that proposed a significantly lower sentence. Notably, Osley turned down a plea agreement (albeit an unenforceable one) that would have exposed him to a sentencing range of only 70 to 87 months, along with a promise that the prosecutor would recommend to the court the low end of 2 Lafler had not been decided when the magistrate judge issued his Report and Recommendation, although the court analyzed whether there was prejudice based on Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985). 16 Case: 11-14989 Date Filed: 04/11/2014 Page: 17 of 29 that range. The prosecutor had also informed Osley (through his counsel) that, with good behavior, Osley could face as little as 59.5 months’ imprisonment, and that the government was still willing to consider “a 5K or Rule 35 motion, which could potentiall[y] reduce his sentence by a third.” Osley opted to take his chances and go to trial. Osley’s unwillingness to accept a plea that offered the prospect of spending fewer than five years in prison utterly undercuts his claim that he would have accepted a deal that involved a fifteen-year mandatory minimum, yielding a term of imprisonment at least three times as large. The government also informed Osley that if he took his case to trial, it would seek a sentence at the high end of his (incorrectly) estimated guideline range: about 121 months. Thus, by rejecting the guilty plea and proceeding to trial, Osley knowingly risked at least doubling his time in prison if convicted. The fifteen-year deal Osley claims he would have taken would have given him far less than the deal he rejected. Moreover, defense counsel informed Osley during plea discussions that he faced a maximum of life in prison if convicted. And, even knowing that he could spend the rest of his life behind bars, Osley still rolled the dice, as he was entitled to do, and submitted his case to a jury. Based on this calculus, we are hard- pressed to accept the claim that Osley would have taken a fifteen-year deal, even if he had known that he would be facing a guideline range of up to 262 months. 17 Case: 11-14989 Date Filed: 04/11/2014 Page: 18 of 29 Osley’s claim that he would have pled guilty had he been properly informed is also undermined by his repeated claims of innocence. At his sentencing hearing, Osley’s counsel asserted that his client had “maintained his innocence from the beginning of the case.” Confirming this, Osley himself stated, I just really want to add on to what Mr. Reizenstein said that there’s a lot of facts in this case that weren’t proven. The government, they virtually proved their case on the word of a young lady who admitted that she lied on the stand. And I don’t understand how this woman could [perjure] herself basically and I still get convicted. I’m sorry that we had to go through this whole little deal because if you ask me, if the young lady would have never lied about her age, we would have never been here from the start. Osley insisted that he should not have to “bear all the weight” for his convictions because the only thing he was guilty of was traveling with the victim to South Florida, and “it didn’t even get around to the point of me pimping her out.” Osley went on to explain that the victim “completely” lied when she testified that Osley demanded she make $500 per day, and the reason the jury found him guilty was because of the picture the “prosecution painted . . . to the jury of me.” Even at his resentencing hearing, Osley continued to urge that the victim fabricated certain parts of her story, 3 and he provided the judge with a letter in which he attempted to 3 Osley did admit at the resentencing hearing, “I know that’s a -- it’s a harsh and an immoral crime that I committed. I know that, and I understand that.” But then he reverted to denying his guilt: There is some kernel of truth to the story, but that some -- like I said in the letter, some just did not happen. I don’t understand why the young lady would fabricate 18 Case: 11-14989 Date Filed: 04/11/2014 Page: 19 of 29 minimize his culpability. The district court judge described the letter this way: Osley “said he’s learned a lesson, but there’s a little back peddling in the letter, too, I call it. ‘I didn’t really beat up the girl,’ the girl in quotes . . . . He’s kind of innocent is what I get from this letter.” While Osley’s denial of guilt surely is not dispositive on the question of whether he would have accepted the government’s plea offer, it is nonetheless a relevant consideration. See, e.g., Humphress v. United States, 398 F.3d 855, 859 (6th Cir. 2005) (noting that the defendant’s assertion of innocence during and after trial undermined his contention that he would have accepted a plea deal); Sanders v. United States, 341 F.3d 720, 723 (8th Cir. 2003) (same); Cullen v. United States, 194 F.3d 401, 407 (2d Cir. 1999) (same); United States v. Stevens, 149 F.3d 747, 748 (8th Cir. 1998) (same). Indeed, Osley’s insistence on his innocence, both before and after trial, makes it more difficult to accept his claim that he would have taken a fifteen-year plea deal. Quite simply, the district court did not err in finding that Osley has not carried his burden of establishing the first part of prejudice. B. the story as she did. I don’t know, but it just didn’t happen. And I’m telling that to be truthful. 19 Case: 11-14989 Date Filed: 04/11/2014 Page: 20 of 29 Nor has Osley satisfied Lafler’s second prejudice prong. In addition to establishing a reasonable probability that “the plea offer would have been presented to the court,” Osley shoulders the burden of proving that the “the court would have accepted [the plea agreement’s] terms.” Lafler, 132 S. Ct. at 1385. Unlike the expired plea offers in Frye and the rejected plea deal in Lafler, here the original plea agreement’s terms, as laid out in the prosecutor’s letter to defense counsel, were invalid. If Osley had pled guilty, the district court could not have sentenced him to the prosecutor’s recommended 70-month sentence. See United States v. Castaing-Sosa, 530 F.3d 1358, 1360 (11th Cir. 2008) (“It is well-settled that a district court is not authorized to sentence a defendant below the statutory mandatory minimum unless the government filed a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 or the defendant falls within the safety-valve of 18 U.S.C. § 3553(f).”). Instead, Osley undoubtedly would have moved to withdraw his guilty plea upon discovering that the mandatory minimum applied, and, in any event, the court necessarily would have vacated the agreement.4 See Fed. R. Crim. P. 11(b)(1) (“Before the court accepts a plea of 4 Not surprisingly, Osley’s co-defendant, Greer, filed a motion to withdraw his guilty plea upon being informed that a fifteen-year mandatory minimum sentence applied under section 1591(b)(1). The court granted this motion, explaining, I cannot sentence someone on a guilty plea who wasn’t told of a minimum mandatory. . . . I’m fairly confident that if I did not vacate it, I would be reversed, because a minimum mandatory is a minimum mandatory. And you know what, it would be a good reversal. 20 Case: 11-14989 Date Filed: 04/11/2014 Page: 21 of 29 guilty . . . the court must inform the defendant of, and determine that the defendant understands, . . . any mandatory minimum penalty.”); United States v. Siegel, 102 F.3d 477, 481 (11th Cir. 1996) (holding that the district court’s failure to advise a defendant, prior to the entry of his guilty plea, that the plea will result in the imposition of a mandatory minimum sentence violates Rule 11). To the extent Osley avers that the prosecutor would have then offered a new deal amenable to him, and the district court would have accepted it, this claim is wholly speculative. See Frye, 132 S. Ct. at 1410 (“[A] defendant has no right to be offered a plea, nor a federal right that the judge accept it.” (citations omitted)). As the Fourth Circuit recently noted, “[t]he lack of definition in the plea offer makes it substantially harder to determine it likely that a plea acceptable to [the defendant] would have been entered without the prosecution canceling it or the trial court refusing to accept it.” Merzbacher v. Shearin, 706 F.3d 356, 370 (4th Cir. 2013) (internal quotation marks omitted) (emphasis added). We are not at all convinced that the trial judge would have accepted a plea agreement on this record. C. Finally, Osley’s claim also comes up short under the third prong of Lafler’s prejudice test, which requires demonstrating a reasonable probability “that the Greer proceeded to trial. 21 Case: 11-14989 Date Filed: 04/11/2014 Page: 22 of 29 conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Lafler, 132 S. Ct. at 1385. In Frye, handed down on the same day as Lafler, the Supreme Court explained that a defendant must show “a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Frye, 132 S. Ct. at 1409 (emphasis added). The district court correctly noted in denying the section 2255 motion that “a plea below the statutory minimum was not legally available” to Osley. As we’ve observed, the record shows that if Osley had accepted the prosecutor’s original plea deal recommending a 70-month sentence, the district court would have set aside the plea upon discovering that the mandatory minimum applied. Because the terms under the original deal were invalid, analyzing whether the “sentence . . . under the offer’s terms would have been less severe” than the 365-month sentence imposed requires the rankest form of speculation on our part. Lafler, 132 S. Ct. at 1385. Osley has offered us nothing in the record even remotely suggesting that a new plea “would have resulted in . . . a lower sentence.” In re Perez, 682 F.3d at 932. And, in fact, the district court’s extensive justification for its steep sentence 22 Case: 11-14989 Date Filed: 04/11/2014 Page: 23 of 29 strongly suggests otherwise.5 In short, we are hard-pressed to find that Osley has met his burden on the third prong of Lafler either. IV. A. Osley also claims defense counsel was ineffective for failing to advise him that section 1591(b) carried the possibility of a life term of supervised release. Again, we are unpersuaded. Since Osley’s counsel informed him that his potential maximum sentence if convicted was life in prison, counsel’s failure to inform Osley of the life term of supervised release was not so deficient as to deprive him of his Sixth Amendment right to counsel. See Strickland, 466 U.S. at 687. Indeed, in United States v. Bejarano, 249 F.3d 1304, 1307 (11th Cir. 2001) (per curiam), we held that because the court informed the defendant that it could impose a maximum sentence of life imprisonment and that the defendant’s sentence would include a period of supervised release, the defendant’s substantial rights were not affected by the court’s failure to inform the defendant at his plea colloquy of the specific term of 5 Appellant’s counsel insists that if Osley hadn’t proceeded to trial, the district court would not have been exposed to the victim’s or Osley’s testimony. Because the court justified its upward variance on factors gleaned from this testimony, the argument goes, the court would have been inclined to sentence Osley to the mandatory minimum of fifteen years. We are unpersuaded. In the first place, the bell cannot be unrung at this point; in reviewing Osley’s claim on appeal, we cannot erase the victim’s searing testimony that plainly influenced the district court’s sentence. Moreover, even if the defendant had not gone to trial, the district court likely would have learned of the egregious circumstances surrounding the crimes both at the time of accepting the plea and through a thorough PSI. 23 Case: 11-14989 Date Filed: 04/11/2014 Page: 24 of 29 supervised release required by statute. Moreover, even if Osley could show that counsel rendered deficient performance by failing to advise him of the possible life term of supervised release, Osley’s claim again fails Strickland’s prejudice prong. See Lafler, 132 S. Ct. at 1384-85; Strickland, 466 U.S. at 694. Equipped with the knowledge that he potentially faced a sentence of life imprisonment, Osley still went to trial. On this record, Osley has failed to sustain a Strickland claim. B. Next, Osley urges us to find his counsel ineffective for failing to object at sentencing and on direct appeal that impermissible double counting had taken place since the four-level enhancement that was applied to his offense level under U.S.S.G. § 2A3.1(b) was based on the same conduct that determined his base offense level under § 2G1.3(c)(3)’s cross-reference provision. This claim fails as well. Impermissible double counting occurs when a court applies one part of the Sentencing Guidelines to increase a defendant’s punishment on account of the same kind of harm that was already fully accounted for by the court’s application of another part of the Guidelines. United States v. Dudley, 463 F.3d 1221, 1226-27 (11th Cir. 2006). But double counting a factor during sentencing is allowed if the Sentencing Commission “intended that result and each guideline section in question concerns conceptually separate notions relating to sentencing.” Id. at 1227 24 Case: 11-14989 Date Filed: 04/11/2014 Page: 25 of 29 (quoting United States v. Stevenson, 68 F.3d 1292, 1294 (11th Cir. 1995)). “Absent a specific direction to the contrary, we presume that the Sentencing Commission intended to apply separate sections cumulatively, and, as a result, a defendant asserting a double counting claim has a tough task.” United States v. Kapordelis, 569 F.3d 1291, 1315 (11th Cir. 2009) (quoting United States v. Lebovitz, 401 F.3d 1263, 1270 (11th Cir. 2005)) (internal quotation marks omitted). Here, the probation officer applied the cross reference to section 2A3.1 found in section 2G1.3(c)(3) (“Criminal Sexual Abuse, Attempt to Commit Criminal Sexual Abuse”) and determined that Osley had a base offense level of 30. Next, she proceeded to apply the specific offense characteristic enhancement in section 2A3.1(b)(1), presumably for the force and threats Osley employed. After reviewing the presentence investigation report and conducting the sentencing hearing, the district court decided to compute the guideline range in accordance with the probation officer’s suggestions. In so doing, the court did not appear to punish Osley twice for precisely the same aspect of his conduct, but rather for his sexual abuse of the victim and then for the aggravated nature of that abuse. The Sentencing Guidelines state that a “cross reference (an instruction to apply another offense guideline) refers to the entire offense guideline (i.e., the base offense level, specific offense characteristics, cross references, and special 25 Case: 11-14989 Date Filed: 04/11/2014 Page: 26 of 29 instructions).” U.S.S.G. § 1B1.5(a). The four-level enhancement under U.S.S.G. § 2A3.1(b)(1) is a specific offense characteristic under § 2A3.1 and, therefore, the Sentencing Commission appears to have intended for both to apply. Consistent with this approach, several of our sister circuits have held that applying section 2G1.3(c)(3)’s cross-reference provision and the four-level enhancement does not constitute impermissible double counting because the Guidelines do not indicate otherwise. See, e.g., United States v. Archdale, 229 F.3d 861, 869 (9th Cir. 2000); United States v. Kizer, 517 F. App’x 415, 420 (6th Cir. 2013); United States v. Scott, 434 F. App’x 103, 106-07 (3d Cir. 2011). When analyzing an ineffectiveness claim, we “indulge a strong presumption that counsel’s conduct fell within the wide range of reasonably professional assistance.” Smith v. Singletary, 170 F.3d 1051, 1053 (11th Cir. 1999). For starters, we are not convinced that the district court erred in applying the four-level sentencing enhancement together with the cross-reference provision. Thus, counsel’s failure to lodge a double counting objection at sentencing cannot fall below Strickland’s objective standard of reasonableness. See Smith, 170 F.3d at 1054 (asserting that while “[i]gnorance of well-defined legal principles is nearly inexcusable” for purposes of an ineffective assistance of counsel claim, “the rule that an attorney is not liable for an error of judgment on an unsettled proposition of law is universally recognized”). 26 Case: 11-14989 Date Filed: 04/11/2014 Page: 27 of 29 But even if a viable double counting issue arguably existed, Osley cannot establish that he was prejudiced by counsel’s failure to raise the claim. Contrary to his view, the record abundantly reveals that the district court would have imposed the same sentence even without the alleged double counting. See Kapordelis, 569 F.3d at 1315 (holding that any double counting error was harmless since the record indicated that the court would have imposed the same upward variance regardless of any Guidelines discrepancy due to the defendant’s “long history of abuse, parity, and the need for incapacitation”). Specifically, at Osley’s sentencing hearing, the district court judge explained that a sentence above the guideline range was appropriate because the convictions by themselves show that the aggravating factors of coercion, of the age, of the beating, of where this victim had to prostitute herself . . . would impact her tremendously . . . . I think in this particular case, having seen and heard the victim testify, the devastation to a young woman in the future, any relations that she may want to have with men in the future . . . is affected. Moreover, the judge highlighted Osley’s flagrant lack of remorse: This defendant has shown even today absolutely no remorse. It’s almost a cavaier attitude, yeah, I did that, I didn’t know she was under age. And what this case is all about is modern day slavery of underage, vulnerable people and it calls for aggravation . . . . Would this defendant do it again? Absolutely. The judge, who witnessed the victim’s fear as she testified at trial, also observed that he could count on his fingers the number of cases he had presided over that involved conduct more egregious than Osley’s. 27 Case: 11-14989 Date Filed: 04/11/2014 Page: 28 of 29 At the resentencing hearing, the district court judge again justified the upward variance this way: But the nature and circumstances of the offense, they’re very serious; and they’re not necessarily taken care of totally by the [G]uidelines because there was more coercion than indicated within the [G]uidelines. The need for the sentence imposed to reflect the seriousness of the offense, promote respect for the law, to provide just punishment for the offense, and to afford adequate deterrence to criminal conduct, not just to this defendant but others is I think a sentence as I previously imposed is appropriate. Based on this detailed record, it seems clear to us that the district court would have imposed the same sentence even if it had not applied the four-level enhancement. Again, Osley has not met his burden of showing that counsel’s failure to object to any double counting error prejudiced him. C. As a final matter, Osley insists that, at a minimum, we should “remand with instructions that the lower court hold an evidentiary hearing on his ineffective assistance of counsel claims.” We disagree. Pursuant to section 2255, “if the petitioner alleges facts that, if true, would entitle him to relief, then the district court should order an evidentiary hearing and rule on the merits of his claim.” Aron v. United States, 291 F.3d 708, 714-15 (11th Cir. 2002) (internal quotation marks omitted). But a district court is not required to hold a hearing when the petitioner’s claims are clearly contradicted by the record or are patently frivolous. Id. at 715. 28 Case: 11-14989 Date Filed: 04/11/2014 Page: 29 of 29 Here, the factual bases of Osley’s claims -- that is, the information counsel provided to Osley during his plea negotiation and counsel’s failure to raise a double counting objection -- are not in dispute. Moreover, the record, which undeniably establishes that Osley refused to accept a plea deal that could have resulted in fewer than five years in prison, affirmatively contradicts Osley’s allegation that he would have pled guilty to a fifteen-year deal if properly advised. The record unambiguously establishes that Osley is entitled to no relief; the district court was not required to conduct an evidentiary hearing. AFFIRMED. 29	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS OF VIRGINIA Present: Judges Baker, Elder and Fitzpatrick LAURA BURNSIDE BARBER v. Record No. 1010-95-2 MEMORANDUM OPINION * PER CURIAM OSCAR MARION BARBER NOVEMBER 28, 1995 FROM THE CIRCUIT COURT OF MIDDLESEX COUNTY John M. Folkes, Judge (Theresa Rhinehart, on brief), for appellant. (Jeffrey M. Steingold, on brief), for appellee. Laura Burnside Barber appeals the decision of the circuit court denying her motion for rehearing. The commissioner found, and the circuit court confirmed, that Laura had fraudulently induced Oscar Marion Barber to convey to her his interest in jointly-owned property. On appeal, Laura contends the trial court erred in refusing to admit into evidence a letter supporting her position. Upon reviewing the record and briefs of the parties, we conclude that this appeal is without merit. Accordingly, we summarily affirm the decision of the trial court. Rule 5A:27. "Whether to reopen a case lies within the sound discretion of the trial judge." Minor v. Commonwealth, 16 Va. App. 803, 805, 433 S.E.2d 39, 40 (1993). Laura admits the letter does not * Pursuant to Code § 17-116.010 this opinion is not designated for publication. qualify as after-discovered evidence. Therefore, the matter was solely in the trial court's discretion, and we cannot say that the trial court abused that discretion by refusing to reopen the hearing to allow into evidence a letter which Laura had in her possession during each of the several hearings. Accordingly, the decision of the circuit court is summarily affirmed. Affirmed. 2	{ "pile_set_name": "FreeLaw" }
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 JOHN R. NORTON, in his capacity as Trustee of the NORTON FAMILY LIVING TRUST DATED 2/15/96, and ROGER L. STEVENSON, in his capacity as Managing Successor Trustee of the NORTON FAMILY LIVING TRUST DATED 2/15/96, individually and on behalf of PHONEJOCKEY INVESTORS NO. 2, LLC, a Wyoming limited liability company, Plaintiffs/Appellants, JOHN R. NORTON, in his capacity as Trustee of the NORTON FAMILY LIVING TRUST DATED 2/15/96 and individually; PJI-2 COLLECTION, LLC, Cross-Appellees, v. PHONEJOCKEY LLC, a Wyoming limited liability company; JUDSON C. BALL and NANCY SUE BALL, husband and wife; and PHONEJOCKEY INVESTORS NO. 2, LLC, a Wyoming limited liability company, Defendants/Appellees/Cross-Appellants. No. 1 CA-CV 15-0186 FILED 10-13-2016 Appeal from the Superior Court in Maricopa County Nos. CV2011-014515, CV2012-053571, CV2012-053572, CV2013-012882 (Consolidated) The Honorable Lisa Daniel Flores, Judge The Honorable Patricia A. Starr, Judge AFFIRMED IN PART; VACATED IN PART COUNSEL Gallegher & Kennedy, P.A., Phoenix By John P. Flynn, Peter J. Moolenaar Counsel for Plaintiffs/Appellants/Cross-Appellees Hovore Law, PLLC, Scottsdale By F. Thomas Hovore Counsel for Defendants/Appellees/Cross-Appellants MEMORANDUM DECISION Presiding Judge Peter B. Swann delivered the decision of the court, in which Judge Lawrence F. Winthrop and Judge Donn Kessler joined. S W A N N, Judge: ¶1 The superior court entered judgment partially in favor of the plaintiff and partially in favor of the defendants in this derivative action. Both the plaintiff and the defendants appeal. We affirm all aspects of the judgment except its imposition of attorney’s fees under Arizona law. FACTS AND PROCEDURAL HISTORY ¶2 Phonejockey Investors No. 2, LLC (“PJI-2”), is a Wyoming limited liability company managed by Phonejockey, LLC (“Phonejockey”), which is owned and controlled by Judson C. Ball. PJI-2 was formed in 2004 to develop and operate executive suites in the Phoenix metropolitan area. A membership offering agreement identified the first parcel to be purchased and developed (“the Property”). ¶3 The Norton Family Living Trust Dated 2/15/96 (“the Norton Trust”) invested in PJI-2, contributing $1,400,000 from 2004 to 2009. During the same period, the Norton Trust also invested in several similar limited liability companies (collectively, “the ADR Companies”) managed directly or indirectly by Ball. ¶4 PJI-2 purchased the Property in 2005 and built a commercial facility (“the Facility”) on it in 2006. PJI-2 paid Ball a $30,183 finder’s fee related to the Property, and a $626,262 development fee related to the Facility. The Facility opened for business in the beginning of 2007 and 2 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court over the next five and a half years operated at a cumulative loss of more than $7,000,000. PJI-2 ultimately lost the Property and the Facility to foreclosure in mid-2012. ¶5 Meanwhile the Norton Trust had commenced an action in the superior court asserting direct and derivative claims against Phonejockey and Ball related to their management of PJI-2. Also, around the same time, the Norton Trust commenced arbitration proceedings against Ball, Phonejockey, and another of Ball’s entities with respect to their management of the ADR Companies. The ADR Companies’ governing documents, unlike PJI-2’s governing documents, required arbitration. The parties did not agree to arbitrate the claims related to PJI-2. ¶6 A three-person panel decided the arbitration matter in March 2013. The Norton Trust was partially successful in the arbitration. The panel concluded, in relevant part, that Ball was indebted to certain of the ADR Companies for unauthorized finder’s and development fees. The panel explained that none of the ADR Companies’ governing documents authorized Ball to receive finder’s fees for the properties identified as the subjects of the investment offerings, and that Ball had received a development fee from one company that did not provide for such a fee in its governing documents. ¶7 Soon after the arbitration award issued, the Norton Trust moved for partial summary judgment in the PJI-2 litigation, arguing that the arbitration award collaterally estopped the defendants from arguing that there was no obligation to repay finder’s and development fees taken from PJI-2. The Norton Trust emphasized a substantial similarity between PJI-2’s and the ADR Companies’ governing documents with respect to finder’s fees, and noted that the PJI-2 documents do not provide for development fees. Phonejockey and Ball did not dispute the similarities in the governing documents. Nor did they dispute that Ball received the finder’s fee for the Property and the development fee for the Facility. They argued, however, that the arbitration award did not satisfy the elements of issue preclusion. ¶8 After the arbitration award was confirmed, the superior court granted the Norton Trust’s motion and gave preclusive effect to the arbitration panel’s determination that finder’s and development fees were inappropriate. The court held that Ball was indebted to PJI-2 for the finder’s and development fees it had paid. 3 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court ¶9 The Norton Trust also filed a motion for summary judgment requesting PJI-2’s dissolution and liquidation. The Norton Trust argued that dissolution was statutorily required because the loss of the Facility to foreclosure rendered PJI-2’s activities no longer reasonably practicable. The defendants objected on jurisdictional grounds, arguing that only a Wyoming court may declare dissolution of a Wyoming entity. The court agreed that it lacked jurisdiction to order PJI-2’s involuntary dissolution, and it therefore denied the Norton Trust’s motion. ¶10 The litigation ultimately proceeded to a jury trial on claims of breach of fiduciary duty, breach of contract, and breach of the covenant of good faith and fair dealing, all related to the defendants’ decision to construct the Facility (and thereby earn management fees) despite unexpectedly difficult economic realities. The jury returned a defense verdict on all of the claims. ¶11 The court entered a final judgment that ordered Ball to pay $656,445 to PJI-2 for the unauthorized finder’s and development fees, with pre- and post-judgment interest of 4.25% per annum, and dismissed all other claims and counterclaims. The court awarded Phonejockey and Ball $785,484 in attorney’s fees and costs under A.R.S. §§ 12-341 and -341.01(A) with post-judgment interest of 4.25% per annum, and awarded the Norton Trust $131,149 in expenses under A.R.S. § 29-833(A). ¶12 The Norton Trust appeals, and Phonejockey and Ball cross- appeal. The Norton Trust challenges the attorney’s fees award, the interest rate on the award against Ball, the amount of the expenses award, the court’s refusal to grant its request to redirect PJI-2’s award to the Norton Trust’s counsel’s trust fund, and the court’s refusal to order PJI-2’s dissolution. The defendants challenge the order requiring Ball to repay the finder’s and development fees, and they contend that the Norton Trust was not entitled to recover any expenses. DISCUSSION I. THE SUPERIOR COURT DID NOT ERR BY ORDERING BALL TO REPAY THE FINDER’S AND DEVELOPMENT FEES. ¶13 We first address the defendants’ contention in the cross- appeal that the superior court erred by determining Ball’s liability for the finder’s and development fees based on issue preclusion. We review the grant of summary judgment de novo, viewing the evidence and reasonable inferences in the light most favorable to the non-moving party. Andrews v. Blake, 205 Ariz. 236, 240, ¶ 12 (2003). We review the application 4 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court of issue preclusion de novo. Campbell v. SCZ Props., Ltd., 204 Ariz. 221, 223, ¶ 8 (App. 2003). ¶14 Issue preclusion binds a defendant to an adverse decision on an issue in a previous lawsuit if: (1) the issue was actually litigated in the previous proceeding, (2) the parties had a full and fair opportunity and motive to litigate the issue, (3) a valid and final decision on the merits was entered, (4) resolution of the issue was essential to the decision, and (5) there is common identity of the parties. Id. at ¶ 9. ¶15 Subject to the same qualifications and exceptions, issue preclusion may apply to issues decided in an arbitration proceeding. Restatement (Second) of Judgments § 84 & cmt. c.1 For issue preclusion to apply, the arbitration proceedings must have “the elements of adjudicatory procedure.” Restatement (Second) of Judgments § 84(3)(b). Only “[w]hen arbitration affords opportunity for presentation of evidence and argument substantially similar in form and scope to judicial proceedings [should] the award . . . have the same effect on issues necessarily determined as a judgment has.” Restatement (Second) of Judgments § 84 cmt. c. ¶16 Here, the arbitration proceedings were extensive. In discovery, the parties produced over 73,000 pages of documents and deposed 18 witnesses. The panel considered motions for summary judgment, heard 11 days of testimony from 16 witnesses, and received opening statements, closing statements, and post-hearing briefs. On this record, we conclude that the arbitration was sufficiently similar to a judicial proceeding to permit the application of issue preclusion. Further, 1 We generally follow the Restatement in the absence of controlling state authority. Dixon v. City of Phoenix, 173 Ariz. 612, 621 (App. 1992). Under the Restatement, issue preclusion will not attach to an arbitration decision if it would be inconsistent with a legal policy or contractual provision authorizing the court to make an independent determination on the issue, or if the arbitration scheme is summary in nature. Restatement (Second) of Judgments § 84(3)(a). 5 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court the record reveals no legal policy or contractual provision prohibiting application of the doctrine. ¶17 The elements of issue preclusion were satisfied. The Norton Trust asserted derivative claims against Ball, in his capacity as a manager, in both the arbitration and the litigation. The parties had a full and fair opportunity and motive in the arbitration proceedings to dispute the meaning of the finder’s fees provisions and the effect of the absence of a development fee provision, and they actually did so. The resolution of those issues was essential to determine liability, and the parties disputed them at length. ¶18 The defendants argue, however, that they cannot be precluded from re-litigating issues that they could not appeal. But to accept this argument would be to render all arbitration decisions automatically ineligible for issue preclusion. This would eviscerate the rule that arbitration awards may be given preclusive effect. When parties voluntarily agree to a process that contains no right of appeal, we generally recognize arbitration decisions as valid and final on questions of fact and law. Smitty’s Super-Valu, Inc. v. Pasqualetti, 22 Ariz. App. 178, 180- 81 (1974). The defendants had the opportunity to challenge the award under A.R.S. §§ 12-3023 or -3024, but they ultimately stipulated to a final judgment confirming it. The judgment was valid and final for purposes of the issue preclusion doctrine. ¶19 Defendants also argue that the arbitration decision could not be used as issue preclusion in the litigation because the panel’s decisions were limited to the ADR Companies, not PJI-2. But PJI-2 is a nominal party only, and it is undisputed that all of the companies’ governing documents share substantially similar provisions regarding management fees. In these circumstances, we see no barrier to the application of issue preclusion. We discern no error in the superior court’s decision to preclude re-litigation of the question whether Ball was indebted to PJI-2 for the finder’s and development fees. II. THE SUPERIOR COURT SHOULD HAVE APPLIED WYOMING LAW TO DETERMINE ATTORNEY’S FEES, BUT PROPERLY APPLIED ARIZONA LAW TO CALCULATE JUDGMENT INTEREST. ¶20 We next address the Norton Trust’s contention that the superior court erroneously applied Arizona instead of Wyoming law to determine whether to award attorney’s fees and to calculate interest. We 6 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court review choice-of-law questions de novo. Swanson v. The Image Bank, Inc., 206 Ariz. 264, 266, ¶ 6 (2003). We apply Arizona law to determine choice- of-law issues. Pounders v. Enserch E&C, Inc., 232 Ariz. 352, 354, ¶ 8 (2013). ¶21 PJI-2’s governing documents contain inconsistent choice-of- law provisions: the subscription agreement (between PJI-2 and the Norton Trust) and the management agreement (between PJI-2 and Phonejockey) invoke Arizona law, but the operating agreement (between PJI-2 and the Norton Trust) provides that Wyoming law governs. Further, consistent with the operating agreement, PJI-2’s articles of organization provide that the operating agreement may not govern PJI-2’s internal affairs in a manner inconsistent with Wyoming law. Both the operating agreement and the management agreement define the scope of the manager’s authority and compensation. The operating agreement contains no provision addressing attorney’s fees, but the management agreement specifies that the prevailing party in any litigation arising out of the management agreement shall be entitled to reasonable attorney’s fees. The operating agreement provides that the management agreement shall apply in the event of any conflict with respect to compensation. A. Wyoming Law Governs Attorney’s Fees. ¶22 Though the choice-of-law provisions of the various agreements conflict, we conclude that application of Wyoming law is necessary with respect to attorney’s fees — even as a matter of Arizona law. Had the parties clearly chosen Wyoming law, no further analysis would be necessary. And had the parties clearly chosen Arizona law, A.R.S. § 29-801(A) would require the application of Wyoming law. That statute provides: “the laws of the state or another jurisdiction under which a foreign limited liability company is organized govern its organization and internal affairs and the liability of its members.” A.R.S. § 29-801(A). The rule, known as the “internal affairs doctrine,” is “a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation’s [or other business entity’s] internal affairs— matters peculiar to the relationships among or between the [entity] and its current officers, directors, and shareholders—because otherwise a[n entity] could be faced with conflicting demands.” Edgar v. MITE Corp., 457 U.S. 624, 645 (1982); see also CTS Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 90 (1987) (“Th[e] beneficial free market system depends at its core upon the fact that a corporation—except in the rarest situations—is organized under, and governed by, the law of a single jurisdiction, traditionally the corporate law of the State of its incorporation.”). Accordingly, whether the Arizona or Wyoming choice-of-law provision 7 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court controls, the result is the same — directly (through a contractual provision) or indirectly (by operation of § 29-801(A)), Wyoming law governs disputes between members and managers of PJI-2. ¶23 The derivative claims at issue here, which concern management fees and decisions, fall within the scope of PJI-2’s internal affairs. See Edgar, 457 U.S. at 645; see also AMERCO v. Shoen, 184 Ariz. 150, 152 n.1 (App. 1995) (relying on the Restatement (Second) of Conflict of Laws §§ 302 and 309 to conclude that “because this lawsuit concerns fiduciary relations between shareholders and management, where there is a choice of law to be made, the law of Nevada, the place of incorporation, should apply”). So does the question of attorney’s fees. ¶24 At oral argument before this court, the defendants argued that Wyoming law would actually require application of Arizona law on attorney’s fees, citing Smithco Engineering, Inc. v. International Fabricators, Inc., 775 P.2d 1011 (Wyo. 1989). But Smithco was based on the Wyoming court’s determination that Oklahoma law treats attorney’s fees as procedural. Id. at 1018. In Arizona, by contrast, A.R.S. § 12-341.01 is considered substantive. Bouldin v. Turek, 125 Ariz. 77, 78 (1979). Attorney’s fees in this case are governed by A.R.S. § 29-801(A), which dictates that Wyoming law shall apply. See Cardon v. Cotton Lane Holdings, Inc., 173 Ariz. 203, 206 (1992) (“[S]ubstantive matters are governed by ‘the law of the jurisdiction to which the court is referred by the choice-of-law rules of the forum.’” (citation omitted)). ¶25 Under Wyoming law, “each party [is] responsible for its own fees unless an award is permitted by contract or statute.” Dishman v. First Interstate Bank, 362 P.3d 360, 365, ¶ 14 (Wyo. 2015). The parties agree that Wyoming has no statutory counterpart to A.R.S. § 12-341.01. And though the management agreement included a provision authorizing attorney’s fees awards, the Norton Trust was not a party to that agreement and therefore could not be ordered to pay fees under it. The court’s assessment of attorney’s fees against the Norton Trust was therefore error, and we vacate it. B. Arizona Law Governs Interest on the Judgment. ¶26 The court applied an annual interest rate of 4.25% pre- and post-judgment to the awards in favor of the Norton Trust based on issue preclusion because the same rate was used in the arbitration decision. The Norton Trust challenges this decision. 8 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court ¶27 For issue preclusion to apply, the issue must have been actually raised and submitted for determination in the previous proceedings. Campbell, 204 Ariz. at 223, ¶ 9; Chaney Bldg. Co. v. City of Tucson, 148 Ariz. 571, 573 (1986). Though the defendants contend that the Norton Trust moved unsuccessfully to modify the interest rate in the arbitration proceedings, they do not support that assertion with any citations to the record. Nonetheless, the court properly calculated interest under A.R.S. § 44-1201. The right to interest is procedural, Dos Picos Land Lt’d P’ship v. Pima County, 225 Ariz. 458, 465, ¶ 23 (App. 2010), and was therefore governed by Arizona law. Cardon, 173 Ariz. at 206. The court’s imposition of a 4.25% interest rate complied with A.R.S. § 44-1201(B). III. THE SUPERIOR COURT APPROPRIATELY ALLOWED THE NORTON TRUST TO RECOVER A PORTION OF ITS EXPENSES FROM PJI-2’S AWARD. ¶28 The parties next dispute the propriety of the superior court’s award of expenses, including attorney’s fees, to the Norton Trust under A.R.S. § 29-833(A). ¶29 Though the court should have applied Wyoming law for the reasons set forth above, we need not automatically vacate the award because the relevant portions of the Wyoming and Arizona statutes are functionally identical (and mirrored by Uniform Limited Liability Company Act § 806 (2006)). Under either W.S. § 17-29-906(b) or A.R.S. § 29-833(A), the court may award a wholly or partially successful derivative plaintiff its reasonable expenses, including reasonable attorney’s fees, to be paid from the entity’s recovery. W.S. § 17-29-906(b); A.R.S. § 29-833(A); Cal X-Tra v. W.V.S.V. Holdings, L.L.C., 229 Ariz. 377, 401, ¶ 82 (App. 2012). ¶30 We first consider the defendants’ argument on cross-appeal that the Norton Trust was not entitled to recover expenses from PJI-2’s recovery. We assume that the defendants assert this argument on PJI-2’s behalf in their managerial roles. We reject their contention that the arbitration award’s failure to grant such expenses precluded imposition of the award in the litigation. Because there is no evidence in the record that expense-sharing was actually litigated in the arbitration proceedings, issue preclusion does not apply. See Campbell, 204 Ariz. at 223, ¶ 9; Chaney Building Co., 148 Ariz. at 573. ¶31 We also reject the defendants’ contention that expense- sharing was inappropriate because the Norton Trust was only partially 9 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court successful. Wyoming law authorizes an award if a derivative action is successful “in whole or in part.” W.S. § 17-29-906(b) (emphasis added). The Norton Trust prevailed on its claims that the defendants received unauthorized finder’s and development fees. The Norton Trust’s failure to prevail on other claims did not disqualify it from defraying its expenses by sharing in PJI-2’s recovery. See Wallop Canyon Ranch, LLC v. Goodwyn, 351 P.3d 943, 950-51, ¶¶ 25-32 (Wyo. 2015) (construing analogous statute governing limited partnerships). ¶32 For its part, the Norton Trust contends that the amount of the award was insufficient. The expense-sharing statute is “an application of the equitable common fund doctrine.” See Steer v. Eggleston, 202 Ariz. 523, 526, ¶ 11 (App. 2002) (construing analogous Arizona statute governing limited partnerships). Aimed at promoting equity and encouraging legitimate claims, it spreads the expense of litigation among the members of the benefited entity. See Cal X-Tra, 229 Ariz. at 401, ¶¶ 81- 82. Common fund awards may be calculated by a flat-percentage, lodestar, or hybrid approach. See, e.g., Gottlieb v. Barry, 43 F.3d 474, 482-83 (10th Cir. 1994). ¶33 Here, the court apparently utilized a flat-percentage method, awarding the Norton Trust approximately 20% of the principal amount that Ball was ordered to repay PJI-2. We cannot say that the court’s method was unreasonable. Nothing in W.S. § 17-29-906(b) prohibits use of a flat-percentage calculation. Further, nothing in the statute requires the court to use a certain percentage or to include pre-judgment interest in the base amount. Though “[t]he benchmark percentage in awarding fees in a common-fund case is 25%, [the percentage is] to be adjusted in accordance with the individual circumstances of each case.” John Bourdeau et al., Federal Procedure § 20:439 (2016). Here, in view of the Norton Trust’s failure to prevail on several of its claims, we discern no reversible error in the court’s chosen calculation. IV. THE SUPERIOR COURT DID NOT ERR BY REFUSING TO REDIRECT PJI-2’S AWARD. ¶34 The Norton Trust next contends that the superior court erred by rejecting its request that PJI-2’s recovery be paid into its counsel’s trust account. The Norton Trust argues that the court’s judgment erroneously left “the wrongdoers” in control of PJI-2’s award and its distribution. ¶35 The Norton Trust relies on Lynch v. Patterson, 701 P.2d 1126 (Wyo. 1985). In Lynch, the trial court awarded judgment on a derivative 10 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court claim to the individual shareholder-plaintiff rather than the corporation, and the Wyoming Supreme Court affirmed. Id. at 1129-31. The Court held that “[a]s a general rule, recovery in [derivative] actions inures to the corporation rather than to the stockholders as individuals,” but “[n]everthless, courts sometimes permit pro-rata recovery by individual shareholders to prevent an award from reverting to the wrongdoers who remain in control of the corporation.” Id. at 1130 (emphasis added). Noting that the director-defendants managed the corporation, that two of them held 70% of the voting stock, and that the family orientation and small number of shareholders made a change in control unlikely, the Court concluded that direct recovery was warranted to avoid the risk that the plaintiff would have to bring a second action to compel the directors to declare a dividend or apply the award to legitimate corporate purposes. Id. at 1130-31. ¶36 The result in Lynch, as Lynch itself recognizes, reflects the exception rather than the rule. “Direct recovery cases are rare . . . and those that exist have been criticized on the grounds that individual recovery impairs the rights of creditors and other shareholders.” Daniel S. Kleinberger & Imanta Bergmanis, Direct vs. Derivative, or “What’s a Lawsuit Between Friends in an ‘Incorporated Partnership?’”, 22 Wm. Mitchell L. Rev. 1203, 1224 (1996); see also Individual Pro Rata Recovery in Stockholders’ Derivative Suits, 69 Harv. L. Rev. 1314 (1956). Here, we perceive no exceptional circumstances that would require diversion of PJI-2’s award. Ball is a minority shareholder in PJI-2. The mere fact that he is PJI-2’s manager and the person liable for the award cannot, by itself, compel divesting PJI-2 of the award. The superior court did not err by declining the Norton Trust’s request to order that the award be paid into its counsel’s trust account. V. THE SUPERIOR COURT DID NOT ERR BY CONCLUDING THAT IT LACKED JURISDICTION TO DISSOLVE PJI-2. ¶37 The Norton Trust finally contends that the superior court erred by concluding that it lacked jurisdiction to dissolve PJI-2. ¶38 In Spurlock v. Santa Fe Pac. R. Co., we held: The respective supremacies of the state and national governments in their particular spheres must be observed in regard to their power to create and destroy corporations. Neither may terminate the existence of a corporation of the other. Therefore, no court can declare a forfeiture of 11 NORTON et al. v. PHONEJOCKEY et al. Decision of the Court franchise or dissolution of a corporation except the courts of the jurisdiction which created it. 143 Ariz. 469, 482 (App. 1984) (internal quotation marks omitted); accord MHS Venture Mgmt. Corp. v. Utilisave, LLC, 63 A.D.3d 840, 841 (N.Y. Apr. Div. 2009). ¶39 The Norton Trust argues that we should now adopt what it terms the “modern view,” as set forth in the Restatement (Second) of Conflict of Laws. The Norton Trust cites § 313, comment c, of the Restatement, which provides that “when the corporation is only technically a foreign corporation, since all, or the great majority, of its contacts, other than the place of its incorporation, are in the state of the forum, the courts will even entertain actions which call for relief affecting the corporation’s organic structure or internal administration.” The balance of that comment gives as examples “action[s] which question[ ] the validity of a stock issue or of a dividend or which seek[ ] to enjoin a proposed reorganization of the corporation or to require the calling of a shareholders’ meeting.” ¶40 Nothing in comment c to § 313, or in § 313 itself, specifically addresses the question of jurisdiction to order a foreign company’s dissolution. Moreover, comment c to § 299 specifically provides: “While a state may not terminate or suspend the existence of a foreign corporation, it may, in the absence of constitutional prohibition, forbid a foreign corporation to do business within its territory and may wind up the corporation’s affairs there.” (Emphasis added.) The Restatement therefore actually contradicts the Norton Trust’s arguments, and we are unpersuaded by the Norton Trust’s citation to cases from other jurisdictions. The superior court did not err by determining that it lacked jurisdiction to dissolve PJI-2. CONCLUSION ¶41 We vacate the portion of the judgment awarding attorney’s fees to the defendants. We otherwise affirm. We deny the defendants’ request for attorney’s fees on appeal. AMY M. WOOD • Clerk of the Court FILED: AA 12	{ "pile_set_name": "FreeLaw" }
Slip Op. 20-72 UNITED STATES COURT OF INTERNATIONAL TRADE ABB INC., Plaintiff, v. UNITED STATES, Before: Mark A. Barnett, Judge Court No. 16-00054 Defendant, and HYUNDAI HEAVY INDUSTRIES CO., LTD. AND HYUNDAI CORPORATION USA, Defendant-Intervenors. OPINION [Sustaining the U.S. Department of Commerce’s third remand results.] Dated: May 26, 2020 Melissa M. Brewer, R. Alan Luberda and David C. Smith, Kelley Drye & Warren LLP, of Washington, DC, for Plaintiff ABB Inc. John J. Todor, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC. Of counsel was David W. Richardson, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC. David E. Bond, Ron Kendler, Walter J. Spak, and William J. Moran, White & Case LLP, of Washington, DC, for Defendant-Intervenors Hyundai Heavy Industries, Co., Ltd.1 and Hyundai Corporation USA. 1 Hyundai Electric & Energy Systems Co., Ltd. is the successor-in-interest to Hyundai Heavy Industries, Co., Ltd. See Letter from David E. Bond, Attorney, White & Case LLP, to the Court (Sept. 12, 2018), ECF No. 120. Court No. 16-00054 Page 2 Barnett, Judge: This matter is before the court following the U.S. Department of Commerce’s (“Commerce” or “the agency”) third redetermination upon remand. See Final Results of Redetermination Pursuant to Court Remand (Apr. 26, 2019) (“Third Remand Results”), ECF No. 182-1. Commerce conducted this second administrative review of the antidumping duty order on large power transformers from the Republic of Korea for the period of review August 1, 2013, to July 31, 2014. Large Power Transformers From the Republic of Korea, 81 Fed. Reg. 14,087 (Dep’t Commerce Mar. 16, 2016) (final results of antidumping duty admin. review; 2013–2014) (“Final Results”), ECF No. 27-2; and accompanying Issues and Decision Mem., A-580-867 (Mar. 8, 2016), ECF No. 27-2. The court assumes familiarity with its earlier opinions resolving substantive issues this case. See ABB Inc. v. United States (“ABB I”), 41 CIT ___, 273 F. Supp. 3d 1200 (2017); ABB Inc. v. United States (“ABB II”), 42 CIT ___, 355 F. Supp. 3d 1206 (2018), recons. denied, 43 CIT ___, 375 F. Supp. 3d 1348 (2019); ABB Inc. v. United States (“ABB III”), Slip Op. 20-21, 2020 WL 996919 (CIT Feb. 19, 2020). Briefly, Defendant-Intervenor Hyosung Corporation (“Hyosung”) 2 and Plaintiff ABB Inc. (“ABB”) filed separate motions for judgment on the agency record challenging certain aspects of the Final Results, and Defendant United States (“the Government”) responded by requesting a remand for Commerce to reconsider issues raised by ABB: the agency’s treatment of certain U.S. commission expenses incurred by Hyosung and 2 On August 29, 2019, the court granted Hyosung’s motion for partial final judgment and to amend the statutory injunction, thereby granting final judgment with respect to all of Hyosung’s counts and Count I of ABB’s Complaint as it relates to Hyosung. See Order (Aug. 29, 2019), ECF No. 169. Court No. 16-00054 Page 3 Defendant-Intervenors Hyundai Heavy Industries Co., and Hyundai Corporation USA (together, “Hyundai”) and Hyundai’s sales-related revenue. See ABB I, 273 F. Supp. 3d at 1203–04. The court granted the Government’s request for remand and rejected arguments raised by Hyosung. Id. at 1205–06, 1208–12. Commerce filed the first remand results on February 9, 2018. Confidential Final Results of Redetermination Pursuant to Court Remand (Feb. 9, 2018) (“First Remand Results”), ECF No. 96. Therein, for certain services that Hyundai provided to unaffiliated customers, Commerce capped service-related revenue by the amount of associated service-related expenses. Id. at 6–8, 19–25. Commerce also applied partial facts available with an adverse inference (or “partial AFA”) in connection with service- related revenues. Id. at 24. While the court sustained Commerce’s resort to facts available, the court remanded the First Remand Results with respect to Commerce’s use of an adverse inference and they agency’s application of a cap to so-called service revenue for those transactions for which substantial evidence did not support a finding that the services at issue were separately negotiable. See ABB II, 355 F. Supp. 3d at 1220–23.3 In the second remand results, Commerce did not cap revenue for transactions for which substantial evidence did not support a finding that the services were separately negotiable with third parties consistent with the court’s instructions in ABB II. See 3 In the First Remand Results, Commerce also revisited its methodology for making home market commission offsets for U.S. commissions incurred in the United States, which the court sustained. See ABB II, 355 F. Supp. 3d at 1211–15. Court No. 16-00054 Page 4 Confidential Final Results of Redetermination Pursuant to Court Remand (Apr. 26, 2019) (“Second Remand Results”), at 17–28, 20–22, ECF No. 149. With respect to two transactions, Commerce made circumstance of sale adjustments to normal value for services identified as delayed delivery charges. Id. at 17–18. Commerce also further explained its use of an adverse inference, noting that Hyundai “failed to cooperate to the best of its ability with regard to the reporting of service-related revenue” because Hyundai had the ability to report the information but failed to do so in response to Commerce’s information requests. Id. at 14–15. The court remanded Commerce’s circumstance of sale adjustments for the delayed delivery charges but otherwise sustained the Second Remand Results. See ABB III, 2020 WL 996919 at 3. The court explained that, pursuant to 19 C.F.R. § 351.410, a circumstance of sale adjustment involves “an actual or implied expenditure by the respondent.” Id. at 6 (quoting Habaú Sinai Ve Tibbi Gazlar Istihsal Endüstrisi, A.ù. v. United States, 43 CIT ___, ___, 415 F.Supp.3d 1195, 1211 (2019)). Because the delayed delivery charges are revenue for Hyundai, Commerce’s use of a circumstance of sale adjustment for them was not in accordance with the law. See id. at *6–7. In the Third Remand Results, Commerce removed the circumstance of sale adjustments for the delayed delivery charges to determine Hyundai’s normal value. See Third Remand Results at 9. Court No. 16-00054 Page 5 JURISDICTION AND STANDARD OF REVIEW The court has jurisdiction pursuant to subsection 516A(a)(2)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2012), and 28 U.S.C. § 1581(c). The court will uphold an agency determination that is supported by substantial evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). “The results of a redetermination pursuant to court remand are also reviewed for compliance with the court’s remand order.” SolarWorld Ams., Inc. v. United States, 41 CIT ___, ___, 273 F. Supp. 3d 1314, 1317 (2017) (citation and internal quotation marks omitted). DISCUSSION Hyundai submitted comments during the remand proceedings agreeing that Commerce’s removal of the circumstance of sale adjustments for the delayed delivery charges is consistent with ABB III. Third Remand Results at 10. ABB also does not object to the Third Remand Results. Ltr. from Melissa M. Brewer, Kelley Drye & Warren LLP, to the Court (May 15, 2020), ECF No. 184. No other comments were received. Thus, Commerce’s determination is uncontested. Upon review of the Third Remand Results, Commerce’s removal of circumstance of sale adjustments for the delayed delivery charges complies with the court’s order in ABB III and is otherwise consistent with the agency’s regulations governing circumstance of sale adjustments. Court No. 16-00054 Page 6 CONCLUSION There being no challenges to the Third Remand Results, and those results being otherwise lawful and supported by substantial evidence, the court will sustain Commerce’s Third Remand Results. Judgment will enter accordingly. /s/ Mark A. Barnett Mark A. Barnett, Judge Dated: May 26, 2020 New York, New York	{ "pile_set_name": "FreeLaw" }
[Cite as Cincinnati Metro. Hous. Auth. v. Brown, 2013-Ohio-4143.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO CINCINNATI METROPOLITAN : APPEAL NO. C-120580 HOUSING AUTHORITY, TRIAL NO. 12CV-02818 : Plaintiff-Appellee, : vs. O P I N I O N. : LEAH D. BROWN, Defendant-Appellant. : Civil Appeal From: Hamilton County Municipal Court Judgment Appealed From Is: Affirmed Date of Judgment Entry on Appeal: September 25, 2013 Angela Stearns, for Plaintiff-Appellee, Legal Aid Society of Greater Cincinnati and Virginia Tallent, for Defendant- Appellant. Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS CUNNINGHAM, Judge. {¶1} Defendant-appellant Leah D. Brown contests the trial court’s entry of summary judgment in favor of her landlord, plaintiff-appellee the Cincinnati Metropolitan Housing Authority (“CMHA”), on its action for forcible entry and detainer. Brown also challenges the trial court’s denial of her motion for partial summary judgment on her counterclaim seeking money damages for CMHA’s alleged violations of federal fair housing laws. CMHA initiated this eviction action when Brown threatened and yelled racially derogatory names at another public- housing tenant. Because Brown engaged in criminal activity which posed a direct threat to other tenants, CMHA was entitled to terminate her lease and we affirm. {¶2} Brown had been a CMHA public-housing tenant since 2007. She suffers from bipolar and panic disorders, and from multiple physical disabilities affecting her mobility. Her lease included a federally mandated “zero tolerance” provision that permitted CMHA to terminate her tenancy if Brown engaged in criminal activity that threatened the health, safety, or right to peaceful enjoyment of another tenant. See, e.g., Cincinnati Metro. Hous. Auth. v. Browning, 1st Dist. Hamilton No. C-010055, 2002-Ohio-190, ¶ 3. {¶3} In December 2011, Brown threatened and yelled racially derogatory names at her fellow public-housing tenant Maimou Ndiaye. Brown was charged with menacing and ethnic intimidation. She ultimately pled guilty to charges of disorderly conduct. CMHA investigated the incident, determined that Brown posed a direct threat to other residents, and served Brown with notice that it was 2 OHIO FIRST DISTRICT COURT OF APPEALS terminating her lease. When Brown failed to vacate, CMHA filed this action seeking her eviction. See Browning at ¶ 27. {¶4} In response, Brown urged CMHA to make reasonable accommodations for her disabilities, under the federal Fair Housing Amendments Act (“the FHAA”). See 42 U.S.C. 3604. She requested that CMHA dismiss its eviction action and that the housing authority participate in a behavioral-intervention plan, including a provision that CMHA would contact Brown’s “case manager and/or therapist if concerns related to her tenancy arose in the future.” The housing authority denied the request. Brown then filed an amended answer to the eviction action and raised a counterclaim, in both of which she asserted that CMHA had discriminated against her based upon her disabilities. {¶5} CMHA moved for summary judgment on its forcible-entry-and- detainer action relying, in part, upon the attached affidavit of the assistant property manager at Brown’s housing unit. Brown filed a memorandum in opposition and also filed a motion for partial summary judgment on her housing-discrimination counterclaim. She reserved the issue of damages and fees for trial. On August 14, 2012, the trial court issued its entry granting CMHA’s motion for summary judgment and issuing a writ of restitution of the premises. The court also denied Brown’s motion for partial summary judgment. The trial court stayed its judgment pending Brown’s appeal. {¶6} The trial court’s entry granted the housing authority a present right to possession of the property. Thus the trial court’s judgment was immediately appealable by Brown even though other claims remained for adjudication. See Cuyahoga Metro. Hous. Auth. v. Jackson, 67 Ohio St.2d 129, 132, 423 N.E.2d 177 3 OHIO FIRST DISTRICT COURT OF APPEALS (1981) (holding Civ.R. 54[B] inapplicable in forcible-entry-and-detainer proceedings). {¶7} In her first assignment of error, Brown argues that the trial court erred in entering summary judgment in favor of CMHA on its eviction action. We review cases decided on summary judgment de novo, without deference to the trial court’s determinations. See Comer v. Risko, 106 Ohio St.3d 185, 2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. {¶8} Civ.R. 56(A) makes summary judgment available to a party seeking to recover upon a claim or counterclaim. Where, as here, a party seeks affirmative relief on its own claim or counterclaim as a matter of law, it bears the burden of affirmatively demonstrating that there are no genuine issues of material fact with respect to every essential element of its claim. See Civ.R. 56(A); see also Capital Fin. Credit, LLC v. Mays, 191 Ohio App.3d 56, 2010-Ohio-4423, 944 N.E.2d 1184, ¶ 4 (1st Dist.). Its motion for summary judgment must be denied if the party fails to satisfy this initial burden. Only when the movant has met its initial burden does the nonmoving party’s reciprocal burden to establish the existence of triable, genuine issues of material fact, by the means listed in Civ.R. 56(C) and 56(E), arise. See Capital Fin. Credit, LLC at ¶ 5; see also Dresher v. Burt, 75 Ohio St.3d 280, 293, 662 N.E.2d 264 (1996). {¶9} The substantive law governing CMHA’s eviction action and Brown’s discrimination counterclaim identifies the factual issues that are material and thus could preclude summary judgment. See Gross v. Western-Southern Life Ins. Co., 85 Ohio App.3d 662, 666-667, 621 N.E.2d 412 (1st Dist.1993). The FHAA makes it unlawful to discriminate against a tenant on the basis of that person’s mental or 4 OHIO FIRST DISTRICT COURT OF APPEALS physical disability. See 42 U.S.C. 3604(f). But federally subsidized public-housing authorities, such as CMHA, are also charged with providing “decent and safe dwellings” for all of their tenants. 42 U.S.C. 1437(a)(1)(A). To achieve that end, Congress modified federal fair housing laws in 1988. The FHAA now provides that: Each public housing agency shall utilize leases which * * * provide that any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants or any drug-related criminal activity on or off such premises, engaged in by a public housing tenant, any member of the tenant's household, or any guest or other person under the tenant's control, shall be cause for termination of tenancy. 42 U.S.C. 1437d(l)(6). Brown’s lease includes this provision. {¶10} In affirming the constitutionality of the act’s eviction provision, the United States Supreme Court held that 42 U.S.C. 1437d(l)(6) “unambiguously requires lease terms that vest local public housing authorities with the discretion to evict tenants for the drug-related activity of household members * * * .” Dept. of Hous. and Urban Dev. v. Rucker, 535 U.S. 125, 130, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002). The decision to evict is entrusted to the public housing authorities, who are in the best position to take account of, inter alia, the seriousness of the offending action, the duration of the problem, the administrative burden on the housing authority, and the extent to which the tenant has taken reasonable steps to prevent or mitigate the offending action. See id. at 134; see also Groner v. Golden Gate Gardens Apts., 250 F.3d 1039, 1046 (6th Cir.2001). The holding applies equally when non-drug-related criminal activity threatens the safety of other tenants. See 5 OHIO FIRST DISTRICT COURT OF APPEALS Portage Metro. Hous. Auth. v. Brumley, 11th Dist. Portage No. 2008-P-0019, 2008- Ohio-5534, ¶ 85. Thus a public housing authority has the discretion to terminate a lease if a tenant engages in criminal activity that threatens another tenant’s health, safety, or right to peaceful enjoyment of the housing premises. See id. {¶11} Brown argues that she was entitled to reasonable accommodations for her disabilities before CMHA reached a decision to evict her. She notes that the refusal “to make reasonable accommodations in rules, policies, practices, or services” when the accommodations may be necessary to afford the disabled individual an equal opportunity to use and enjoy housing, is a type of unlawful discrimination under the FHAA. 42 U.S.C. 3604(f)(3)(B). The agencies tasked with executing and monitoring the FHAA advise that a housing authority ought to grant accommodation requests where the tenant’s attorney provides satisfactory assurances “that the [tenant] will receive appropriate counseling and periodic medication monitoring.” Joint Statement of the Department of Housing and Urban Development and the Department of Justice, Reasonable Accommodations Under the Fair Housing Act 5-6 (May 17, 2004). {¶12} But the FHAA does not mandate the automatic accommodation of tenants who would harm other residents. In amending the federal housing laws in 1988, Congress recognized the importance of providing safe housing for low-income tenants, and made “clear that housing need not be made available to persons whose impairments make them dangerous to others.” Schwemm & Allen, For the Rest of Their Lives: Seniors and the Fair Housing Act, 90 Iowa L.Rev. 121, 161-162 (2004). While an agency’s interpretation is due substantial deference, there is no language in the FHAA or in the relevant implementing regulations that would impose a duty on 6 OHIO FIRST DISTRICT COURT OF APPEALS landlords and tenants to engage in an interactive process to accommodate Brown’s disability. See Groner, 250 F.3d at 1047. {¶13} The FHAA does, however, expressly provide that “nothing” in the subsection that makes discrimination unlawful—including the failure to make reasonable accommodations—requires a landlord to provide housing for “an individual whose tenancy would constitute a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damage to the property of others.” 42 U.S.C. 3604(f)(9). {¶14} In light of Congress’ unequivocal instruction, “a person who constitutes a direct threat to others is not eligible for the benefits provided by the FHAA.” Howard v. City of Beavercreek, 108 F.Supp.2d 866, 875 (S.D.Ohio 2000), quoting Roe v. Hous. Auth. of Boulder, 909 F.Supp. 814, 822 (D.Colo.1995). As the United States Court of Appeals for the Tenth Circuit has held, the direct-threat provision of 42 U.S.C. 3604(f)(9) permits reasonable restrictions on the terms or conditions of housing when justified by public safety concerns, “given that housing can be denied altogether for those same reasons.” Emphasis added. Bangerter v. Orem City Corp., 46 F.3d 1491, 1503 (10th Cir.1995); see also Laflamme v. New Horizons, Inc., 605 F.Supp.2d 378, 386 (D.Conn.2009) (the anti-discrimination protections of the FHAA do not extend to individuals whose tenancy would constitute a direct threat to the health or safety of other tenants); Stout v. Kokomo Manor Apts., 677 N.E.2d 1060, 1065 (Ind.App.1997). {¶15} We note that any housing restriction or denial predicated on public safety must be narrowly tailored to specific concerns about an individual tenant and cannot be based on prejudice or blanket stereotypes about persons with disabilities. 7 OHIO FIRST DISTRICT COURT OF APPEALS See Bangerter at 1503, citing H.R.Rep. No. 100-711, 100th Cong., 2d Sess., at 24 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2185. {¶16} Here, CMHA’s termination of Brown’s tenancy was not based upon the housing authority’s speculation or its subjective fear of Brown. It was based upon objective evidence of Brown’s behavior and overt acts which directly threatened harm to other residents. The materials attached to CMHA’s motion for summary judgment, including the affidavit of the investigating property manager, established that in 2009 CMHA had received complaints about Brown’s behavior from other residents, that in 2011 she had been arrested for screaming racial epithets in a threatening manner at Ndiaye, that Ndiaye and another tenant had vacated their units in response to Brown’s threats, that the manager had met with Brown to discuss the incident, that Brown had pled guilty to a criminal offense resulting from that incident, that Brown’s actions violated the zero tolerance provision of her lease, and that CMHA had determined her to be a direct threat to other tenants. Thus CMHA discharged its affirmative burden of demonstrating the absence of genuine issues of material fact with respect to every essential element of its forcible-entry- and-detainer claim. {¶17} Moreover, Brown was unable to discharge her reciprocal duty of demonstrating the existence of genuine issues of material fact which would have precluded summary judgment for CMHA, and which would have entitled her to summary judgment on her affirmative defense and counterclaim. See Dresher, 75 Ohio St.3d at 293, 662 N.E.2d 264; see also Todd Dev. Co. v. Morgan, 116 Ohio St.3d 461, 2008-Ohio-87, 880 N.E.2d 88, ¶ 24 (a party moving for summary judgment 8 OHIO FIRST DISTRICT COURT OF APPEALS does not bear the initial burden of disproving the nonmoving party’s affirmative defenses); Groner, 250 F.3d at 1045. {¶18} Brown’s memorandum and motion were supported by her own affidavit, the deposition testimony of CMHA property managers, and two one- paragraph letters from her treating psychiatrist and a doctor of osteopathy. Her healthcare providers described Brown’s mental illness and her physical limitations and indicated that she had been receiving treatment for the conditions. But neither doctor made any statement that Brown’s threatening activity was a result of her disabilities. Neither made any statement that an accommodation would alleviate the threat to the health and safety of other tenants. Despite having received long-term treatment for her disabilities, Brown was unable to prevent the 2011 incident and has not demonstrated how a behavioral-modification plan would negate the threat that she has posed to other residents. {¶19} Because CMHA has a legitimate interest in ensuring the safety and quiet enjoyment of all its tenants, and because CMHA has demonstrated that no genuine issue of material fact remains as to whether Brown engaged in criminal activity and that her actions were a direct threat to other tenants, CMHA is entitled to summary judgment on its forcible-entry-and-detainer action. The first assignment of error is overruled. {¶20} In her second assignment of error, Brown asserts that the trial court erred in rejecting her reasonable-accommodation defense and in “dismissing [her] Counterclaim.” Appellant’s Brief at 1. In light of our resolution of the first assignment of error, that portion of the second assignment of error asserting that the trial court erroneously rejected her affirmative defense is overruled. 9 OHIO FIRST DISTRICT COURT OF APPEALS {¶21} The remainder of her argument must also fail. Brown’s challenge is based upon the false premise that the trial court’s August 2012 entry dismissed her counterclaim. It did not. The trial court simply denied Brown’s partial summary- judgment motion seeking affirmative relief, as a matter of law, on her counterclaim. See Civ.R. 56(A). Brown’s counterclaim for money damages remains in the trial court for ultimate resolution. Since the record certified for our review does not demonstrate the erroneous dismissal of the counterclaim, we overrule the remainder of the second assignment of error. {¶22} Therefore, the trial court’s judgment is affirmed. Judgment affirmed. HILDEBRANDT, P.J., and FISCHER, J., concur. Please note: The court has recorded its own entry on the date of the release of this opinion. 10	{ "pile_set_name": "FreeLaw" }
[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS ________________________ ELEVENTH CIRCUIT MAY 13, 2010 No. 09-16128 JOHN LEY Non-Argument Calendar CLERK ________________________ D. C. Docket No. 09-00028-CR-5-RS UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANTHONY LAQUAN OLIVER, a.k.a. Ant, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Florida _________________________ (May 13, 2010) Before BARKETT, HULL and HILL, Circuit Judges. PER CURIAM: Jonathan Dingus, appointed counsel for Anthony Laquan Oliver, has filed a motion to withdraw on appeal, supported by a brief prepared pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Our independent review of the entire record reveals that counsel’s assessment of the relative merit of the appeal is correct. Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Oliver’s conviction and sentence are AFFIRMED. 2	{ "pile_set_name": "FreeLaw" }
[Cite as State v. Anderson, 2018-Ohio-1776.] IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO STATE OF OHIO, : OPINION Plaintiff-Appellee, : CASE NOS. 2017-L-070 - vs - : 2017-L-071 JOSEPH R. ANDERSON, : Defendant-Appellant. : Criminal Appeals from the Lake County Court of Common Pleas, Case Nos. 2017 CR 000193 and 2016 CR 000589. Judgment: Affirmed in part; reversed in part and remanded. Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert, Assistant Prosecutor, and Kelsey R. Lutz, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff- Appellee). Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant). THOMAS R. WRIGHT, P.J. {¶1} Appellant, Joseph R. Anderson, appeals his convictions and sentences after pleading guilty in two separate Lake County Court of Common Pleas cases. He challenges the length of his sentences and the court’s imposition of two, one-year prison terms for his post-release control violations on a 2006 felonious assault. We affirm in part, reverse in part, and remand. {¶2} In case number 2016-CR-589, his 2016 case, Anderson pleaded guilty to two counts of attempted felonious assault, third-degree felonies in violation of R.C. 2923.02 and 2903.11(A)(1). These charges arose from a bar fight during which Anderson assaulted several individuals. One of the victims suffered a concussion and bruised ribs, and another victim sustained a fractured right forearm and cuts to his face. {¶3} In case number 2017-CR-193, his 2017 case, Anderson pleaded guilty to felonious assault, a second-degree felony in violation of R.C. 2903.11(A)(1). The charge in this case arose following Anderson’s assault of his friend, Keith Hamilton, who had been staying with Anderson and his girlfriend. Anderson believed Hamilton stole $200 from Anderson’s girlfriend’s purse, so Anderson attacked him when he returned to their shared residence. Hamilton was in intensive care for two days, suffered facial and orbital fractures, and needed reconstructive facial surgery from his injuries. {¶4} Anderson was serving a single term of post-release control for his 2006 felonious assault conviction at the time he committed these 2016 and 2017 offenses. {¶5} Following a consolidated sentencing hearing, the trial court issued separate sentencing entries. Anderson was sentenced to a total of 16 years, comprised of two, 36-month prison terms for the two attempted felonious assault charges stemming from the bar fight in his 2016 case to run consecutive to eight years in his 2017 case for the felonious assault of Hamilton to run consecutive to a one-year term for Anderson’s post-release control violation on his 2006 felonious assault, based on his convictions in his 2016 case, and another one-year prison term for his post-release control violation on his 2006 felonious assault, based on his conviction in his 2017 case. 2 {¶6} Anderson’s first of two assigned errors asserts: {¶7} “The trial court’s imposition of two judicial sanction prison terms is contrary to law.” {¶8} We review alleged sentencing errors under R.C. 2953.08(G)(2), which states in part: {¶9} “The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court. {¶10} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court’s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following: {¶11} “(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; {¶12} “(b) That the sentence is otherwise contrary to law.” {¶13} Anderson challenges the trial court’s imposition of two, one-year prison terms for his post-release control violations as contrary to law because the plain language of R.C. 2929.141 only allows a sentencing court to impose one prison term for a post-release control violation. The state agrees and concedes error. {¶14} R.C. 2929.141 states: 3 {¶15} “(A) Upon the conviction of or plea of guilty to a felony by a person on post-release control at the time of the commission of the felony, the court may terminate the term of post-release control, and the court may do either of the following regardless of whether the sentencing court or another court of this state imposed the original prison term for which the person is on post-release control: {¶16} “(1) In addition to any prison term for the new felony, impose a prison term for the post-release control violation. The maximum prison term for the violation shall be the greater of twelve months or the period of post-release control for the earlier felony minus any time the person has spent under post-release control for the earlier felony. In all cases, any prison term imposed for the violation shall be reduced by any prison term that is administratively imposed by the parole board as a post-release control sanction. A prison term imposed for the violation shall be served consecutively to any prison term imposed for the new felony. The imposition of a prison term for the post-release control violation shall terminate the period of post-release control for the earlier felony.” {¶17} R.C. 2929.141(A)(1) states that upon sentencing an offender for a new felony, a court may also impose “a” prison term for the post-release control violation in addition to any prison term for the new felony. It then states that the imposition of “a” prison term for the post-release control violation shall terminate the period of post- release control for the earlier felony. The plain language of R.C. 2929.141 authorizes the imposition of a singular prison term for a post-release control violation even when multiple post-release control violations occur. {¶18} In State v. Harkins, 2d Dist. Clark No. 2012 CA 2, 2012-Ohio-4746, the Second Appellate District considered an analogous issue when the trial court there 4 imposed two prison terms for Harkins’ post-release control violations based on Harkins’ two separate criminal cases commenced while he was on post-release control. Finding error, Harkins reversed and directed the trial court on remand to prepare a corrected sentencing entry based on the erroneous imposition of two distinct terms for the post- release control violations. Id. at ¶22-24. {¶19} Thus, Anderson’s first assigned error has merit because the trial court’s imposition of a second, one-year term of imprisonment for his post-release control violations in his 2006 case is contrary to law. {¶20} Anderson’s second assignment of error asserts: {¶21} “The trial court erred by sentencing the defendant-appellant to fourteen years in prison.” {¶22} As previously stated, an appellate court may vacate a sentence only when it clearly and convincingly finds that the sentence is contrary to law or if it finds “by clear and convincing evidence that the record does not support the sentence.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶23. {¶23} “Neither R.C. 2929.11 nor 2929.12 requires trial courts to give reasons for their sentencing decisions or to make specific findings. R.C. 2929.11 requires only that courts be guided by certain principles (like the purposes of felony sentencing) and consider certain matters (like deterrence and rehabilitation). And R.C. 2929.12 requires courts only to consider factors relating to the seriousness of an offender’s conduct and the likelihood of recidivism. ‘Trial courts, therefore, are required to consider the factors set forth in R.C. 2929.12, but they need not articulate their considerations explicitly on the record.’ State v. Mabra, 2d Dist. Clark No. 2014-CA-147, 2015-Ohio-5493, ¶56.” 5 State v. Brandon, 2d Dist. Clark Nos. 2014-CA-143, 2014-CA-144, and 2014-CA-145, 2016-Ohio-227, ¶8. {¶24} Here, Anderson argues the trial court erred when it imposed an eight-year prison term and two, 36-month prison terms where its findings under R.C. 2929.11 and 2929.12 were not supported by the record. He challenges the length of the prison terms, not the imposition of consecutive terms. Anderson claims the trial court ignored mitigating factors including his abusive childhood and the fact that he suffers from post- traumatic stress disorder, resulting from his prior prison term. {¶25} Anderson also asserts the trial court’s conclusion that he showed little remorse was contrary to the evidence. He directs our attention to his presentence investigation report that quotes him as expressing remorse for his actions. He also points to his statements at the sentencing hearing as establishing his regret and sorrow for the victims. Thus, he claims his sentence is contrary to law. We disagree. {¶26} The trial court explained its consideration of the mitigation and recidivism factors at Anderson’s sentencing. It found recidivism was more likely since he was on post-release control at the time he committed these offenses and noted that he was out on bond in case number 2016-CR-589 when he committed the offense in case number 2017-CR-193. It explained: {¶27} “In terms of recidivism the [20]16 case was committed while on post release control from a felonious assault maximum prison term that I imposed in 2006. The Defendant was released from prison on December 9, 2014. He was put on 3 years of post release control. A year and a half later on May 28, 2016 he committed the first two crimes. The plea was attempted felonious assault, 2 counts. He bonded out and 6 the 193 case was committed on January 29th, 2017 while out on bond on the 589 case, and while on post release control from the 2006 prison case.” {¶28} The trial court also emphasized that Anderson had a high score on the Ohio Risk Assessment test, a long criminal history, and that he hid from police when they came to arrest him. It also found that Anderson committed the worst form of each of the offenses based on the physical, psychological, and financial harm suffered by the victims. {¶29} Upon explaining its consideration of the applicable factors, the trial court stated that Anderson failed to take any steps to secure mental health treatment when he was released from prison in 2014 despite his participation in prison programs. Moreover, the trial court discredited Anderson’s statements of remorse, stating: {¶30} “The court finds little remorse. Based on what he told [the] probation department, he was blaming the victims for their addictions. Blaming the victim for stealing money. All used as a justification for his assaults. Most importantly, he expects others to know what his triggers are, which is extremely unrealistic in today’s society. Recidivism is more likely * * *.” {¶31} Based on the foregoing, the trial court’s findings are supported by the record, and Anderson’s second assigned error lacks merit. {¶32} The trial court’s decision is affirmed in part, reversed in part, and remanded for resentencing consistent with this opinion. CYNTHIA WESTCOTT RICE, J., TIMOTHY P. CANNON, J., concur. 7	{ "pile_set_name": "FreeLaw" }
793 F.2d 767 INRYCO, INC., Plaintiff-Appellee,v.EATHERLY CONSTRUCTION COMPANY and Safeco Insurance Companyof America, Defendants-Appellants. No. 85-5640. United States Court of Appeals,Sixth Circuit. Argued April 8, 1986.Decided June 19, 1986. Angus Gillis, III (argued), Shulman, Leroy and Bennett, Nashville, Tenn., W. Wayne LeRoy, for defendants-appellants. Elizabeth Penn Payne (argued), Vaughan, Phears, Roach, Davis & Murphy, Atlanta, Ga., C. Eric Stevens, Trabue, Sturdivant & Dewitt, Nashville, Tenn., for plaintiff-appellee. Before KRUPANSKY and GUY, Circuit Judges, and HOLSCHUH, District Judge.* Ralph B. GUY, Jr., Circuit Judge. 1 Defendants, Eatherly Construction Company (Eatherly) and Safeco Insurance Company of America (Safeco), appeal from a grant of summary judgment to plaintiff, Inryco, Inc. (Inryco), after the filing by the parties of cross-motions for summary judgment. At issue was whether Inryco, as a supplier of materials to a highway project on which Eatherly was the general contractor, was within the ambit of protection provided under performance and payment bonds on which Safeco was the surety and which were given by Eatherly to the State of Tennessee. 2 Eatherly was awarded a contract by the Department of Transportation (DOT) of the State of Tennessee for a highway project in Putnam County, Tennessee. Part of the contract requirements involved the installation of sound barriers along certain portions of the highway. On October 15, 1981, Hall Metal Products (Hall) submitted an offer to Eatherly to supply the sound barrier materials. Any such sale was subject to DOT approval of shop drawings for the barriers, which drawings were to be prepared by Hall. The necessary approval was obtained, and Hall and Eatherly executed a contract. 3 Hall was a dealer for Inryco since November of 1980 and submitted an order to Inryco in connection with the Putnam County project for such items as wall panels, flashing, screws and clamps. Other components for the sound barrier were also ordered from suppliers other than Inryco. In February, 1982, Inryco fabricated to specifications provided by Hall the metal panels ordered. Due to project delays, the panels were not shipped until April of 1982, having been retained in Inryco's marshalling yard in the interim. The materials were shipped directly to the job site and consigned to either Eatherly or Hall. They were accepted at the job site by Eatherly employees. Inryco invoiced these materials to Hall in June and July of 1982. For reasons not made clear by the record and unknown to Inryco, Hall and Eatherly billed DOT for this work before Inryco had even fabricated the panels. DOT paid Eatherly and it in turn paid Hall.1 At the time Eatherly paid Hall, it made no inquiry as to whether Hall had paid Inryco, nor did it seek any lien waivers or releases. Although Hall paid Inryco in part, it failed, due to Hall's financial difficulties, to pay Inryco $58,991.88.2 Inryco instituted this litigation against Eatherly and its surety, Safeco, to collect the unpaid balance. Eatherly and Safeco defended on the basis of Inryco not being a protected party under the performance and payment bond.3 4 The contract of surety executed between Eatherly and Safeco in favor of DOT provides that: 5 In addition to the special terms and conditions hereinafter set out, it is understood and agreed by the contractor and his surety that all the terms, conditions and obligations contained in Chapter 4 of Title 12 of T.C.A. and in Section 54-519 et seq. of T.C.A.4 , relating to bonds required of contractors on highways and public works, constitute a part of this contract bond and obligation as fully as if copied herein.5 6 (App. at 11.) Tennessee Code Annotated Sec. 12-4-201 provides in pertinent part: 7 Contractors bond to pay for labor and materials.--No contract shall be let for any public work in this state, by any city, county or state authority, until the contractor shall have first executed a good and solvent bond to the effect that he will pay for all the labor and materials used by said contractor, or any immediate or remote subcontractor under him, in said contract, in lawful money of the United States. 8 (Emphasis added.) Tennessee Code Annotated Sec. 54-5-119 provides in pertinent part: 9 Contractors must give bonds--Actions--Limitations.--All contractors with whom contracts are made by the bureau [DOT] shall enter into good and solvent surety bond in an amount fixed by the bureau, conditioned that acceptance or service of process upon the director shall be service on them as their agent duly authorized to that end, and for the full and faithful performance of every part and stipulation of the contract, especially the payment for all materials purchased and for all labor employed in the contemplated work. 10 Also relevant, although not specifically referenced in the surety bond, is a companion section of the Tennessee Code which reads in pertinent part: 11 (2) The contractor shall furnish evidence to satisfy the department [DOT] that all the material used by him, his subcontractors or his agents has been fully paid for and all laborers and other employees working for him, his subcontractors, or his agents have been fully paid. 12 Tenn.Code Ann. Sec. 54-5-122 (1984). 13 In order to determine whether these bond provisions afford protection to Inryco, it is necessary to determine the interrelationship of these statutory provisions as well as the nature of the relationship among Inryco, Hall, and Eatherly. 14 It is clear that the two main purposes of the requirements that a contractor provide a payment and performance bond are to protect the State of Tennessee from liability and to provide protection for those who furnish labor and materials to public construction projects since they have no lien rights against such public construction. Scott v. Travelers Indemnity Co., 215 Tenn. 173, 384 S.W.2d 38 (1964). See also Wal-Board Supply Co., Inc. v. Daniels, 629 S.W.2d 686 (Tenn.App.1981). 15 Since public surety bond requirements are intended to afford those working in the public sector similar protection as that afforded by the Mechanics Lien Law to those working in the private sector, it is not unusual that the Tennessee courts have stated that: 16 The mechanics' lien statutes ... and the statutes requiring the execution of bonds by persons engaged in public works have been found to contain similar provisions with respect to the protection afforded furnishers of materials, and it has been clearly intimated by this court that a uniform construction and application of the several statutes in this regard is both possible and desirable. 17 Nicks v. W.C. Baird & Co., 165 Tenn. 89, 52 S.W.2d 147 (1932) (citations omitted). 18 Although seeking a uniform construction and application, the Tennessee courts have recognized that the Tennessee legislature has elected to address bonds on public works projects in general (Tenn.Code Ann. Sec. 12-4-201) and bonds on highway projects (Tenn.Code Ann. Sec. 54-5-119) in different statutory sections. To the degree that these sections are not in harmony the Supreme Court of Tennessee stated in Pan American Petroleum Corp. v. McQuary, 164 Tenn. 646, 51 S.W.2d 854 (1932): 19 We think a proper construction of the statutes is that the Act of 1899 and the Act of 1925 relate to contracts for public works generally. [Predecessors to Tenn.Code Ann. Sec. 12-4-201] That the Act of 1917 and the Act of 1929 relate to highway contracts only [predecessor to Secs. 54-5-119 and 54-5-122]. Insofar as the provisions of the Acts of 1899 and 1925 ... and the provisions of the Acts of 1917 and 1929 ... are out of harmony, the provisions of the two Acts last mentioned control the rights of all parties to highway contracts. 20 51 S.W.2d at 855. See also Thompson & Green Machine Co. v. Travelers Indemnity Co., 57 Tenn.App. 592, 421 S.W.2d 643 (1967), and Southern Construction Co. v. Halliburton, 149 Tenn. 319, 258 S.W. 409 (1923). 21 Defendants reason from Pan American and Southern Construction that, although the language in the surety bond at issue here references statutory sections dealing with both public works bonds and highway bonds, the courts of Tennessee have ruled that where the project is a highway project those sections relating to highway bonds control. The court below did not agree and held that Inryco can look to both the public works bond section and the highway bond sections for protection since both are incorporated in the surety contract. The trial court then went on to hold that under either bond provision Inryco could collect because both are "intended to protect those parties that provide a 'direct contribution' to the construction project" (App. 5). In reaching this conclusion, the court read Sec. 12-4-201 of the highway bond statute as if it read "remote material/supplier subcontractor" rather than "remote subcontractor" without any explanation for such a reading. The trial court further introduced the concept of "direct contribution" as if it were a term of art, although neither the bond statute nor the Tennessee courts reference this term. 22 Whether the contract language extends the protection of both the general public works bond provisions and the highway bond provisions to Inryco is a close question.6 It is one we need not resolve, however, since we conclude that Inryco is not protected under either statute. 23 Under the highway statutes, it is required that there be a guarantee that material used by the contractor (Eatherly) or its "subcontractors ... be fully paid for...." The general public works statute requires that the contractor (Eatherly) guarantee payment for all "materials used by ... any immediate or remote subcontractor." Thus, if Hall is a "subcontractor" of Eatherly and Inryco is a material supplier to a subcontractor (Hall) or a "remote subcontractor in its own right," then Inryco is covered by the bond provisions.7 We conclude that Hall is not a subcontractor and that Inryco is not a remote subcontractor.8 In reaching this conclusion, we are persuaded by the logic of the Tennessee courts that these bonds statutes attempt to do for those dealing with public entities what the Mechanics' Lien Law does for those dealing with private entities and should receive a uniform construction. Nicks, supra. Therefore, we look to the Tennessee statutes governing mechanics' and materialmen's liens. 24 Tennessee Code Annotated Sec. 66-11-101 provides definitions of all the terms relevant to the resolution of this dispute. In Sec. 66-11-101(10), " '[m]aterialman' or 'furnisher' means any person who, under contract, furnishes material to the owner, contractor, or subcontractor of any degree, on the site of the improvement or for direct delivery to the site of the improvement, or who specially fabricates materials for the improvement, and who performs no labor in the installation thereof." Section 66-11-101(16) defines "subcontractor" as "a person other than a materialman or laborer who enters into a contract with a contractor for the performance of any part of the contractor's contract, or who enters into a contract with a subcontractor as above defined, and in any degree, for the performance of any part of such subcontractor's contract." 25 Since the definition of "materialman" covers those who have contracts for the furnishing of material even if that material is specially fabricated, it is clear that it covers precisely the part played by both Hall and Inryco. This is made even clearer since the definition goes on to state that they (materialmen) perform "no labor in the installation thereof." Although both Hall and Inryco alleged that they did special fabricating, neither played any role in the installation of the allegedly specially fabricated materials which were merely delivered to the job site and then installed by Eatherly employees.9 26 Similarly, since the definition of "subcontractor" by its express terms excludes those who meet the definition of "materialmen," neither Hall nor Inryco could be a "subcontractor." Furthermore, they did not enter into a contract with Eatherly for the "performance of any part of the contractor's contract" but, rather, only for furnishing the materials to perform a part of the contractor's contract, albeit a distinct and identifiable part. 27 It goes without saying that if Inryco could not meet the definition of "subcontractor," it also could not meet any definition of "remote subcontractor."10 28 It appears that the trial court was greatly influenced in its decision by the fact that Eatherly knew or had reason to know that Inryco was, in fact, a supplier of materials. Although that does create an "equity" in favor of Inryco, we are dealing here with a matter of contract and statutory construction and, where Tennessee has provided definitions as clear as those with which we deal here, we must interpret both the contract and the statutes in keeping with those definitions. 29 The summary judgment in favor of plaintiff is REVERSED and the case is REMANDED for entry of summary judgment in favor of the defendants. * Honorable John D. Holschuh, United States District Court, Southern District of Ohio, sitting by designation 1 Both payments were less a 7 percent retainage. Hall received approximately $220,409.54 as its payment 2 Inryco has an uncollectible judgment against Hall for this balance 3 The defendants also rely on a provision of the Uniform Commercial Code found in Tenn.Code Ann. Sec. 47-2-403(2) which provides: "Any entrusting of possession of goods to a merchant who deals in goods of that kind gives him power to transfer all rights of the entrustor to a buyer in the ordinary course of business." As did Judge Wiseman, we find this provision inapplicable to this dispute. The issue here is not the passing of title about which there is no dispute, but the issue of payment under specific bond provisions 4 Chapter 4 of Title 12, Tenn.Code Ann., is now Tenn.Code Ann. Sec. 12-4-201. Section 54-519, et seq. of Tenn.Code Ann. is now Tenn.Code Ann. Sec. 54-5-119. The current reference, rather than that contained in the surety contract, will be used herein 5 It should be noted that this language is in the surety contract because it is a requirement of the State of Tennessee and was not incorporated at the request of either Safeco or Eatherly 6 The better view is probably that suggested by Judge Wiseman that since the State of Tennessee requires the reference to both statutes in surety contracts of this nature, the protections of both should be available. The judicial interpretation of these sections only holds that where they conflict, the highway statute controls in the case of highway projects. The fact that the reach of the sections is defined in different terminology is not in and of itself a conflict. The problem is complicated, however, by the fact that the contract provision that Tennessee requires is obviously an old one as evidenced by the fact that the statutory reference used is not the one currently in use. Thus, it is hard to discern whether we deal with historical accident or current-day intent 7 See, supra, note 6 8 Although the parties argued this issue of "subcontractor" in their summary judgment motions below, the trial court did not make any ruling on this issue 9 Defendants deny that Inryco or Hall actually did "special fabricating." We do not need to resolve that issue because its only importance here is that, even if they did, it would not convert their role to that of "subcontractor." 10 Tenn.Stat.Ann. Sec. 66-11-102(a) sets forth who may claim a lien under Tennessee's Mechanics' and Materialmen's Liens Act in the following language: LIEN FOR WORK AND MATERIALS.--(a) There shall be a lien upon any lot of ground or tract of land upon which a house or structure has been erected, demolished, altered, or repaired, or for fixtures or machinery furnished or erected, or improvements made, by special contract with the owner or his agent, in favor of the contractor, mechanic, laborer, founder or machinist, who does the work or any part of the work, or furnishes the materials or any part of the materials, or puts thereon any fixtures, machinery, or material, and in favor of all persons who do any portion of the work or furnish any portion of the materials for such building. Although the statute references a lien existing in "favor of all persons who ... furnish any portion of the materials," this language has been interpreted to exclude those who supply materials to another materialman, since the former are without "special contract" with the owner as is required by the statutes. Carolina Portland Cement Co. v. Hitt Lumber & Box Co., 141 Tenn. 210, 208 S.W. 336 (1918). Thus, the proposition advanced at oral argument, that if analogy is made to the Mechanics' Lien Act, under that Act Inryco would have a lien, is not supported by Tennessee case law.	{ "pile_set_name": "FreeLaw" }
317 U.S. 228 (1942) UNITED CARBON CO. ET AL. v. BINNEY & SMITH CO. No. 71. Supreme Court of United States. Argued November 13, 1942. Decided December 7, 1942. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. Mr. Hugh M. Morris, with whom Messrs. George P. Dike, Arthur M. Smith, and Osman E. Swartz were on the brief, for petitioners. Mr. Dean S. Edmonds, with whom Mr. William H. Davis was on the brief, for respondent. Mr. Edward F. McClennen filed a brief on behalf of Godfrey L. Cabot, Inc., as amicus curiae, urging reversal. MR. JUSTICE JACKSON delivered the opinion of the Court. Respondent sued for infringement of Patent No. 1,889,-429, issued to Weigand and Venuto, relating to carbon black in aggregated form and a process for its conversion 229 to that form. Its complaint was particularized to apply only to claims 1 and 2 of the patent, which are product claims and not process claims. The District Court found these claims invalid as lacking novelty and invention and because they failed to define the product asserted to have been invented in such clear, definite, and exact terms as required by patent law. It also found no infringement. 37 F. Supp. 779. The Circuit Court of Appeals held to the contrary on each of these propositions and reversed. 125 F.2d 255. The importance of the questions in the case prompted us to grant certiorari. 316 U.S. 657. Carbon black has been manufactured from natural gas since the 1870's. At present the most extensive of its many uses is as a binder in automobile tires.[1] The particles of carbon black in its original form are extremely fine and dispersible. They are smaller than the length of a light wave, having a diameter of about one-millionth of an inch. One pound of them is said to present surfaces sufficient to cover 12 or 13 acres. Unprocessed carbon black weighs but ten pounds or less per cubic foot. The fineness and dispersibility of the substance causes it to raise in clouds of dust when handled, with consequent losses, discomfort to workmen, and difficulties in manufacturing processes. Since 1915, when carbon black first came to be widely used in the manufacture of rubber, many attempts have been made to cope with the dust problem. In many cases, mixing rooms were segregated at great expense from other parts of rubber factories, and the mills where the carbon black was mixed into the rubber were enclosed to confine the clouds of dust. Efforts were made to prevent as well as to control the dust. Compressing the carbon black to force out the 230 air and increase its density met with some, but only indifferent, success. Attempts were made to prevent dust by the use of binders in the carbon black to make the particles adhere. These were not satisfactory, since the binders were unwanted and sometimes injurious substances and, at best, foreign matter to rubber formulas. Wetting and drying the carbon black also proved unsatisfactory, since this caused the particles to adhere in such manner that the aggregate product was not sufficiently friable (i.e., breakable) and dispersible when mixed with other substances. Weigand and Venuto experimented extensively, and the patent in litigation is the outcome. They mixed carbon black with a liquid such as water; displaced the water with another liquid, such as gasoline, which was substantially immiscible with the first and had a greater ability to wet the carbon particles; agitated the mixture until the water was substantially free from carbon; and finally removed the gasoline by evaporation. As it apparently must in order to assert invention and infringement, respondent argues that Weigand and Venuto solved the problem of carbon black dust by a product consisting of carbon black aggregates formed without the use of any binder, sufficiently hard and flowable to prevent the formation of dust, yet sufficiently friable and dispersible for use as a component in the manufacture of rubber and other products. Manufacture was undertaken, one Glaxner being employed to put into use the process taught by this patent. He soon bettered his instruction by devising a simpler and much less expensive process employing but one liquid. His process was the subject of another patent,[2] and at once superseded that of the patent in suit, which thereupon became obsolete. Several other processes to achieve 231 very similar results, including those used by the petitioner, have also been developed and patented.[3] Commercial success of respondent's process was short-lived, and the really impressive commercial success has been achieved since the development of the Glaxner process.[4] The product claims which respondent says the petitioner's product infringed, regardless of the process by which it was made, read as follows: "1. Sustantially (sic) pure carbon black in the form of commercially uniform, comparatively small, rounded, smooth aggregates having a spongy or porous interior. 2. As an article of manufacture, a pellet of approximately one-sixteenth of an inch in 232 diameter and formed of a porous mass of substantially pure carbon black." Section 4888 of the Revised Statutes, 35 U.S.C. § 33, requires that the applicant for a patent "shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery." As the Court recently stated in General Electric Co. v. Wabash Corp., 304 U.S. 364, 369: "Patents, whether basic or for improvements, must comply accurately and precisely with the statutory requirements as to claims of invention or discovery. The limits of a patent must be known for the protection of the patentee, the encouragement of the inventive genius of others and the assurance that the subject of the patent will be dedicated ultimately to the public. The statute seeks to guard against unreasonable advantages to the patentee and disadvantages to others arising from uncertainty as to their rights. The inventor must `inform the public during the life of the patent of the limits of the monopoly asserted, so that it may be known which features may be safely used or manufactured without a license and which may not.' The claims `measure the invention.' . . . In a limited field the variant must be clearly defined." The District Court found that the claims did not meet these requirements, and the Circuit Court of Appeals held that they did. Much testimony was directed to this question at the trial, and it has been discussed in the briefs and argument in this Court. Petitioner seeks reversal on the grounds of anticipation and non-infringement. The scope and sufficiency of the claims in suit necessarily present themselves as preliminary problems in the resolution of these ultimate issues. The courts in determining the questions of invention and infringement brought to them by respondent, no less than the parties-litigant, need and may insist upon the precision enjoined by the statute. 233 To sustain claims so indefinite as not to give the notice required by the statute would be in direct contravention of the public interest which Congress therein recognized and sought to protect. Cf. Muncie Gear Works v. Outboard, Marine & Mfg. Co., 315 U.S. 759. Here, as in many other cases, it is difficult for persons not skilled in the art to measure the inclusions or to appreciate the distinctions which may exist in the words of a claim when read in the context of the art itself. The clearest exposition of the significance which the terms employed in the claims had for those skilled in the art was given by the testimony of Weigand, one of the patentees, whom respondent called as its witness. Weigand was employed as Director of Research of the Columbian Carbon Company, whose stock respondent owned, and for whom respondent acted as sole selling agent. His testimony in this respect was given principally upon cross-examination, but it was in no wise impeached or contradicted, and is borne out by that of other witnesses. From it we learn that "substantially pure" refers, not to freedom from ash and other impurities, but rather to freedom from binders; "commercially uniform" means only the degree of uniformity demanded by buyers; "comparatively small" is not shown to add anything to the claims, for nowhere are we advised what standard is intended for comparisons; "spongy" and "porous" are synonymous, and relate to the density and gas content of aggregates of carbon black. Although sponginess or porosity is not a necessary attribute of a friable substance, it does contribute to the friability of aggregates of carbon black. It is of value only in that regard. A spongy or porous aggregate of carbon black may be so friable as to permit of the formation of dust; and, on the other hand, it is conceivable that it might not be sufficiently friable to mix satisfactorily with other substances such as those used in the manufacture of rubber products. The correct degree of friability can be ascertained 234 only by testing the performance of the product in actual processes of manufacture of products of which carbon black is a component. A "pellet" of carbon black is "a spheroidal shaped aggregate that has substance and strength to it." For "strength" "we have this rough and ready test: does it survive under gentle rubbing of the fingers. I would not say that is an adequate test to predicate rubber behavior on, but it is a rough and ready test"; and if it responds to that test it is a pellet within the meaning of the claim. Finally, what on first impression appears to be reasonable certainty of dimension disappears when we learn that "approximately one-sixteenth of an inch in diameter" includes a variation from approximately 1/4th to 1/100th of an inch. So read, the claims are but inaccurate suggestions of the functions of the product, and fall afoul of the rule that a patentee may not broaden his claims by describing the product in terms of function. Holland Furniture Co. v. Perkins Glue Co., 277 U.S. 245, 256-258; General Electric Co. v. Wabash Corp., supra, at 371-372. Respondent urges that the claims must be read in the light of the patent specification,[5] and that as so read they are sufficiently definite. Assuming the propriety of this 235 method of construction, cf. General Electric Co. v. Wabash Corp., supra, at 373-375, it does not have the effect 236 claimed, for the description in the specification is itself almost entirely in terms of function. It is therefore unnecessary to consider whether the rejection of certain claims[6] by the Patent Office might in turn deprive the specification of any curative effect in this regard. Cf. Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211; Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126. The statutory requirement of particularity and distinctness in claims is met only when they clearly distinguish what is claimed from what went before in the art and clearly circumscribe what is foreclosed from future enterprise. A zone of uncertainty which enterprise and experimentation may enter only at the risk of infringement claims would discourage invention only a little less than unequivocal foreclosure of the field. Moreover, the claims must be reasonably clear-cut to enable courts to determine whether novelty and invention are genuine. Congress has provided that a patent may be awarded only for a new and useful manufacture "not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof." R.S. 237 § 4886, 35 U.S.C. § 31. While we do not find it necessary to consider questions of novelty and invention, in the view we take of the claims in suit, a mere reading of prior art patents shows how, if they are read with the liberality and inclusiveness claimed for those in suit, they describe products, if not identical, at least of confusing similarity.[7] Whether the vagueness of the claim has its source in the language employed or in the somewhat indeterminate character of the advance claimed to have been made in the art is not material. An invention must be capable of accurate definition, and it must be accurately defined, to be patentable. Cf. General Electric Co. v. Wabash Corp., supra, at 372-373. We are of opinion that the claims in litigation are bad for indefiniteness, and have no occasion to consider questions of novelty, invention, and infringement. The judgment below is Reversed. NOTES [1] Carbon black is also used as an ingredient in various rubber, wax and resin compositions, phonograph records, paints and lacquers, printer's ink, and carbon paper. [2] Glaxner, Re. No. 21,379. [3] Billings & Offutt, Re. No. 19,750; Nos. 2,039,766, 2,120,540, 2,120,541; Price, No. 2,127,137; Heller & Snow, No. 2,131,686; Offutt, No. 2,134,950; Grote, Re. No. 21,390. [4] Commercial success may be gauged by reference to the following statistics on the sales of pounds of carbon black aggregates: --------------------------------------------------------------------------- \| \| Sales by petitioner \| \| \|-----------------------------------------\| Sales by Year \| Sales by \| "Extrusion" \| \| \| Cabot Co. \| respondent \| process[] \| "Sayre" \| "Cabot" \| "Cabot" \| \| \| process[] \| process[] \| process -------\|------------\|-------------\|------------\|--------------\|------------ 1929 _ \| 20,000 \| ___________ \| __________ \| ____________ \| __________ 1930 _ \| 164,000 \| ___________ \| __________ \| ____________ \| __________ 1931 _ \| 194,000 \| (Total gross sales price, about $2,000.) 1932 _ \| 281,000 \| (In this year the Weigand and Venuto process was \| \| superseded by the Glaxner process, which made \| \| possible the elimination of a price premium.) 1933 _ \| 800,000 \| ___________ \| __________ \| ____________ \| 8,000,000 1934 _ \| 3,300,000 \| 2,000 \| __________ \| ____________ \| 23,000,000 1935 _ \| 15,000,000 \| 84,875 \| __________ \| 3,656,294 \| 39,000,000 1936 _ \| 30,000,000 \| 7,031,000 \| __________ \| 18,135,756 \| 62,000,000 1937 _ \| 44,000,000 \| 26,205,000 \| 680,363 \| 11,928,742 \| 58,000,000 1938 _ \| 53,000,000 \| 29,858,000 \| 3,747,538 \| 11,298,887 \| 45,000,000 1939 _ \| 97,000,000 \| 48,578,000 \| 17,752,439 \| 11,533,200 \| 73,000,000 --------------------------------------------------------------------------- [] In this process, carbon black mixed with water is forced through small apertures, dried, and broken into short cylinders. [] This process, like the Glaxner process, employs but one liquid, water, and agitation. [] This is a "dry" process, employing only agitation to cause the particles of carbon black to adhere. It is the subject of a number of patents, the first of which was applied for by Billings and Offutt on July 18, 1932 and issued as No. 2,120,540. Manufacture is under license of the Cabot Company, patent owner. [5] This states in pertinent part that: "The main object of our invention is to secure carbon black having the desired dispersive properties, greater density, freedom from dust, freedom from gritty particles, less absorbed or occluded gases, reduced oil absorption than the ordinary powder form, and capable of considerable handling without crushing or dusting. ..... "This process, if carried out under certain conditions, causes the carbon black to form into pellets which are hard enough to stand any ordinary shipment or handling without dusting, flying or breaking down, and which at the same time are easily crushed by moderate pressure, as between the fingers or by the pressures commonly employed in the rolls of rubber compounding machinery, printer's ink mixers and the like. The crushed particles have substantially their original softness and the material disperses freely without leaving any particles of undispersed carbon in the material. "While the pellet form is a very convenient form of the carbon black, the shape of the particles is not the most important characteristic of this novel carbon black. ..... "The pellets are very porous, of substantially spherical or globular form, have a smooth somewhat lustrous outer surface which is not easily broken by handling, are more compact than untreated carbon, are fragile under light pressure, and may be easily reduced to soft minute particles which cannot be told from the original particles except that possibly they have a more unctuous feel. They somewhat resemble lead shot and may be rolled in the hand without dirtying or dusting. Apparently the outer surface portion or shell of each pellet is slightly more compact than the inner part, but still porous. "In shipping or storing, we find that approximately twice the number of pounds of these pellets can be placed in a container of a given size than is the case with the untreated carbon black. Thus, expense is reduced for shipment or storage. ..... "There are various factors which enter into the process and these may be varied to get the pellets harder or softer or larger or smaller. Among these factors are the thickness of the paste, the amount of gasoline used, the adding of the gasoline in bulk or a little at a time, speed of agitation, temperature, type of gasoline used, and character of the carbon black. ..... "If small pellets are desired, a lesser amount of gasoline or other liquid should be used in respect to the amount of water and carbon, and greater agitation should be employed. To secure large pellets, we use a larger amount of gasoline and slower agitation. In practice, we do not consider a size larger than one-quarter of an inch desirable. There are many kinds, grades or varieties of carbon black and often identification of the particular kind or grade is difficult. With our improved process the different kinds or grades may be made into pellets of different sizes so that identification is facilitated, for instance, very small pellets may be made for printer's ink and larger ones for rubber, etc." [6] To meet objections of the examiner, the following product claims were withdrawn in course of prosecution of the application: "4. A pellet formed of (substantially pure)[] soft carbon black particles, the pellet being sufficiently hard to withstand ordinary shipment or handling, but readily breaking down to a fine state of subdivision upon the application of slight pressure. "8. Soft carbon black particles cohering in small masses of substantially uniform size and having smooth outer surfaces. "2. Carbon black in the form of pellets of sponge-like or porous structure. "7. A carbon black pellet formed of soft carbon black, the pellet having sufficient hardness to withstand ordinary shipment or handling without dusting, but sufficiently fragile to permit reduction to the original fine state of subdivision upon the application of light pressure." [*] Added by amendment. [7] The prior Knowlton and Hoffman patent, No. 1,286,024, stated in the specification that "Instead of using the lampblack in its natural condition, we prepare and treat the fine powder so as to cause its concretion into friable grains or small lumps, dry and substantially free from dust, and in this form incorporate it with the rubber on the roller mill . . . the friability of the lumps or grains permitting a uniform distribution of the filler throughout the rubber." Claim No. 7 of this patent is: "The method of compounding rubber with lampblack which consists in mixing the lampblack with water and a binder, producing a granular condition, evaporating the water, and incorporating the dry, granular lampblack with rubber on a heated mixing mill." Claim No. 10 of the prior Coffin and Keen patent, No. 1,561,971, is: "As a new article of manufacture, dried pulverulent material in the form of very small individually dried friable globular masses composed of lightly cohering particles of the material."	{ "pile_set_name": "FreeLaw" }
`U NITED S TATES N AVY –M ARINE C ORPS C OURT OF C RIMINAL A PPEALS _________________________ No. 201800030 _________________________ UNITED STATES OF AMERICA Appellee v. BRANDON C. LIGHTSEY Hospitalman (E-3), U.S. Navy Appellant _________________________ Appeal from the United States Navy-Marine Corps Trial Judiciary Military Judge: Commander Jason L. Jones, JAGC, USN . Convening Authority: Commander, Navy Region Southeast, Naval Air Station, Jacksonville, FL. Staff Judge Advocate’s Recommendation: Lieutenant Commander George W. Lucier, JAGC, USN. For Appellant: Captain Bree A. Ermentrout, JAGC, USN. For Appellee: Brian K. Keller, Esq. _________________________ Decided 10 May 2018 _________________________ Before HUTCHISON, P RICE , and H INES , Appellate Military Judges _________________________ After careful consideration of the record, submitted without assignment of error, we affirm the findings and sentence as approved by the convening authority. Art. 66(c), Uniform Code of Military Justice, 10 U.S.C. § 866(c). For the Court R.H. TROIDL Clerk of Court	{ "pile_set_name": "FreeLaw" }
FILED NOT FOR PUBLICATION OCT 26 2015 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 14-30104 Plaintiff - Appellee, D.C. No. 2:13-CR-00463-BR v. MEMORANDUM* JOHN M. WASSON, Defendant - Appellant. Appeal from the United States District Court for the District of Oregon Anna J. Brown, District Judge, Presiding Submitted October 14, 2015 Portland, Oregon Before: FERNANDEZ, GILMAN,* and BEA, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). * The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. John Wasson occupied land in the National Forest System from April 2012 until March 2013. Some of his time was spent working on a small, unpatented mining claim, but he also set up a permanent campsite and began continuously residing on the land. Wasson did not obtain authorization for this residency from the Forest Service, and he stored human feces in a bucket located on his campsite. The government charged Wasson with violating 36 C.F.R. § 261.10(b) (unauthorized residency on Forest System lands) and 36 C.F.R. § 261.11(d) (improper removal or disposal of sewage). A magistrate judge conducted a trial for these misdemeanor offenses, found Wasson guilty of violating both regulations, and fined him $400. Wasson appealed that decision to the district court, which affirmed the magistrate judge’s ruling. He now appeals the district court’s judgment. Wasson presents two arguments. First, he contends that the Forest Service lacks authority to interfere with his occupancy vis-à-vis his mining claim. Second, he contends that the evidence at trial was insufficient to establish that he improperly disposed of or failed to remove sewage from his campsite. Wasson’s first argument is based on the General Mining Law of 1872, which provides that an individual who discovers mineral deposits on federal land “shall have ‘exclusive right of possession and enjoyment of all the surface included within the lines’” of his claim. United States v. Backlund, 689 F.3d 986, 991 (9th Cir. 2012) -2- (quoting 30 U.S.C. § 26). The law also states that, “[e]xcept as otherwise provided, all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration.” 30 U.S.C. § 22. Wasson apparently reads the law’s references to “exclusive . . . possession and enjoyment” and “free and open” exploration as foreclosing Forest Service interference with his mining claim. This court in Backlund addressed a similar argument. It noted that, even if the General Mining Law speaks of “exclusive . . . possession and enjoyment,” other statutes—such as the Multiple Use Act of 1955—nonetheless limit a miner’s activities. 689 F.3d at 991. Hence, “use of an unpatented mining claim on public land is limited to activities that are reasonably incident to prospecting, mining and processing operations,” and such uses are “subject to the right of the United States to manage surface resources.” Id. The court then concluded that the same regulation at issue in this case—36 C.F.R. § 261.10(b)—is a valid exercise of the government’s resource-management rights. Id. at 990, 996. Based on Backlund, the Forest Service was entitled to regulate Wasson’s occupancy with regard to his mining claim. Further, Wasson’s persistent and continual residency on his claim was not “reasonably incident” to the limited scope of his mining activities. Wasson therefore needed to obtain authorization for his residency from the Forest Service. See 36 C.F.R. § 251.50 (requiring authorization -3- for most uses of Forest System lands); id. § 261.10(b) (specifically prohibiting residency on Forest System lands without the required authorization). But Wasson failed to do so. The district court therefore did not err in holding that Wasson had violated 36 C.F.R. § 261.10(b). Wasson’s second argument is that the district court lacked sufficient evidence to conclude that he had violated 36 C.F.R. § 261.11(d). That regulation prohibits the following conduct: “Failing to dispose of all garbage, including any paper, can, bottle, sewage, waste water or material, or rubbish either by removal from the site or area, or by depositing it into receptacles or at places provided for such purposes.” The regulation thus requires a person to dispose of waste by either (1) removing it from “the site or area,” or (2) depositing it “into receptacles or at places provided for such purposes.” In the present case, Wasson stored waste (human feces) in a bucket. The bucket and feces were still present on his campsite when the Forest Service eventually removed Wasson’s property, so Wasson himself did not remove the waste from “the site or area.” That leaves Wasson with the argument that the bucket qualifies as a “receptacle[] or . . . place[] provided for such purposes.” 36 C.F.R. § 261.11(d). Wasson argues that the phrase “provided for such purposes” modifies only the word “places,” rather than modifying both “receptacles” and “places.” He therefore contends that a person can comply with § 261.11(d) by depositing waste into any sort -4- of “receptacle,” regardless of whether it was provided for the purpose of waste disposal. Wasson’s argument rests on the “rule of the last antecedent,” see, e.g., Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 343 (2005) (“[T]he grammatical rule of the last antecedent [states that a] limiting clause or phrase should ordinarily be read as modifying only the noun or phrase that it immediately follows.” (internal quotation marks and ellipsis omitted)), but this rule is “not an absolute and can assuredly be overcome by other indicia of meaning,” Barnhart v. Thomas, 540 U.S. 20, 26 (2003). In the current case, “other indicia of meaning” demonstrate that 36 C.F.R. § 261.11 is intended to prevent the release of potentially hazardous or unsanitary material. See, e.g., 36 C.F.R. § 261.11(b) (prohibiting the possession of “refuse, debris, or litter in an exposed or unsanitary condition”); id. § 261.11(c) (prohibiting the release of “any substance” that might cause pollution in a stream or lake). Contrary to this regulatory purpose, Wasson’s reading of 36 C.F.R. § 261.11 would allow a person to place waste of any kind in any type of receptacle, regardless of whether the waste is hazardous or if the receptacle is designed to prevent the release of such waste. For example, a person could comply with Wasson’s reading of 36 C.F.R. § 261.11(d) by depositing waste such as the human feces at issue in this case in anything from a used coffee cup to an empty soda can to a plastic garbage bag. -5- See Merriam Webster’s Collegiate Dictionary 975 (10th ed. 1997) (defining “receptacle” as anything that “receives and contains something”). Such haphazard disposal of dangerous waste would undercut the Forest Service’s goal of maintaining the forest in a sanitary condition, so we do not read subsection (d) of the regulation as broadly as Wasson would like. Instead, we read the regulation to require the disposal of waste in a receptacle specifically provided for the purpose of waste disposal. The question then becomes whether the district court had sufficient evidence to conclude that Wasson’s bucket was not such a receptacle. Relevant to this issue is the fact that Wasson’s “Notice of Intent” had informed the Forest Service that any human waste would be “collected in a port-a-potty” at his campsite. The Forest Service approved this arrangement. But Wasson conceded during trial that he collected his feces in a bucket, not in a port-a-potty. This concession demonstrates that Wasson placed his waste in a receptacle that had not been provided for the purpose of human waste disposal, so the district court did not err in concluding that there was sufficient evidence that Wasson violated 36 C.F.R. § 261.11(d). For all of the above reasons, WE AFFIRM. -6-	{ "pile_set_name": "FreeLaw" }
21 So.3d 629 (2008) Thomas Glen GARNER, Appellant, v. STATE of Mississippi, Appellee. No. 2007-CP-00600-COA. Court of Appeals of Mississippi. October 14, 2008. Rehearing Denied April 7, 2009. Certiorari Granted June 25, 2009. Certiorari Dismissed as Improvidently Granted November 19, 2009. 630 Thomas Glen Garner (Pro Se), attorney for appellant. Office of the Attorney General by Deirdre McCrory, attorney for appellee. Before MYERS, P.J., GRIFFIS and ISHEE, JJ. MYERS, P.J., for the Court. ¶ 1. Thomas Glen Garner pleaded guilty in the Circuit Court of Forrest County to the charge of aggravated assault. Garner was sentenced to serve a term of ten years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $1,500, a $100 assessment to the Mississippi Crime Victims' Compensation Program, restitution to the victim in the amount of $1,263, and all costs of court. The execution of the sentence was suspended for a three-year period of post-release supervision pursuant to Mississippi Code Annotated section 47-7-34 (Rev. 2004). On December 20, 2005, the circuit court determined that Garner violated the terms of his post-release supervision by testing positive for crystal methamphetamine. The post-release supervision was revoked, and Garner was ordered to serve the full ten-year sentence. ¶ 2. Garner then filed a motion for post-conviction relief, seeking clarification of his sentence. Garner argued that the sentence was improper and illegal because it did not contain a valid term for post-release supervision. Garner also contended that he was denied effective assistance of counsel. The circuit court summarily dismissed Garner's motion, and this appeal followed. STANDARD OF REVIEW ¶ 3. A trial court's dismissal of a post-conviction relief petition will not be reversed absent a finding that the trial court's decision was clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). We "employ[] the clearly erroneous standard in determining whether an appellant's plea was voluntarily given." Wilcher v. State, 921 So.2d 400, 401(¶ 3) (Miss.Ct.App.2006) (citing Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss. Ct.App.2001)). "The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence." Id. (quoting Stevenson, 798 So.2d at 602(¶ 7)). DISCUSSION I. WHETHER GARNER'S SENTENCE WAS IMPROPER OR ILLEGAL. ¶ 4. First, Garner contends that his sentence was improper because it did not contain a valid term of post-release supervision. Garner argues that he was not eligible for a suspended sentence under Mississippi Code Annotated section 47-7-33 (Rev.2004) because he was a previously convicted felon. Garner also alleges that he was improperly sentenced to both probation and post-release supervision simultaneously. ¶ 5. The State cites to Jefferson v. State, 958 So.2d 1276, 1279(¶ 11) (Miss.Ct.App. 2007), arguing that "because [Garner] benefitted from the allegedly illegal sentence imposed by the trial court . . . any error committed by the trial court in imposing such illegal sentence [was] harmless." The State argues that because Garner benefitted from this alleged error, he cannot now complain of prejudice on appeal. ¶ 6. In this case, Garner pleaded guilty to the charge of aggravated assault and received his ten-year sentence. The circuit court suspended the execution of the sentence for a period of three years on 631 post-release supervision. Garner received the post-release supervision based upon meeting and maintaining a set of conditions, which Garner violated. As a result, the circuit court revoked the suspension and ordered him to serve the ten-year sentence. Garner's sentence was suspended pursuant to Mississippi Code Annotated section 47-7-34 (Rev.2004), under the post-release supervision program, not pursuant to Mississippi Code Annotated section 47-7-33. ¶ 7. The Mississippi Supreme Court noted the difference between section 47-7-33 and section 47-7-34, stating: Miss.Code Ann. § 47-7-33 provides for supervised probation, while Miss.Code Ann. § 47-7-34 provides for post-release supervision. At least two major differences in these two statutes are (1) supervised probation may not be imposed on a convicted felon while post-release supervision may be imposed on a convicted felon; and, (2) supervised probation is limited to five years while post-release supervision is not. Johnson v. State, 925 So.2d 86, 101(¶ 27) (Miss.2006) (quoting Miller v. State, 875 So.2d 194, 199(¶ 10) (Miss.2004)). The supreme court further explained the differences between probation and suspension of a sentence, stating: [W]hile both probation and the suspension of sentence involve the trial court's discretionary and conditional release of a convict from the service of a sentence within the penal system, a probationary sentence is served under the supervision of probation officers, whereas a suspended sentence is served without such supervision, but on such legal terms and conditions as are required by the sentencing judge. Id. at 92(¶ 12). ¶ 8. "By definition, a `suspended sentence' is a unique mechanism by which the court may postpone the imposition of a sentence altogether or delay the execution of a sentence once it has been pronounced." Id. at (¶ 10) (citing 21A Am. Jur.2d, Criminal Law § 895). "Simply stated, `suspension' is the restriction placed upon the power of the State to act during that (the suspended portion of a sentence) period." Id. (quoting Wilson v. State, 735 So.2d 290, 292(¶ 5) (Miss.1999)). However, the circuit court still retains authority to revoke the suspended sentence if the terms are violated. Id. at (¶ 12). ¶ 9. This Court addressed a similar issue in Johnson v. State, 883 So.2d 607, 608(¶ 2) (Miss.Ct.App.2004), where Johnson was sentenced to two consecutive ten-year prison sentences, with five years' post-release supervision. Johnson filed a motion for post-conviction relief, claiming that his sentence was illegal because, in light of his prior felonies, he was legally unable to receive probation. Id. at 608(¶ 4). However, this Court held: What Johnson received was a period of post-release supervision under Mississippi Code Annotated Section 47-7-34 (Supp.2003). The fact that Johnson had prior convictions is not relevant in considering this type of sentence. Johnson will not serve probation, rather he will undergo post-release supervision, an alternative to probation designed specifically for felons. Accordingly, Mississippi Code Annotated Section 47-7-33 (Rev.2000) does not govern his sentence; rather, his sentence falls under Mississippi Code Annotated Section 47-7-34 (Supp.2003) and comports fully with that statute. There was no error on the part of the court in its sentencing. Id. at 609(¶ 8) (internal citations omitted). In Sweat v. State, 912 So.2d 458, 461(¶ 9) (Miss.2005), the Mississippi Supreme Court stated: 632 The Court of Appeals has recently held that there is no prejudice suffered when a defendant receives an illegally lenient sentence. Edwards v. State, 839 So.2d 578, 580-81 (Miss.Ct.App.2003). Further, when the error benefits the defendant in the form of a more lenient sentence, it is harmless error. Chancellor v. State, 809 So.2d 700, 702 (Miss.Ct. App.2001). The law which relieves defendants from the burden of an illegal sentence applies to situations where the defendant is forced to suffer a greater sentence rather than the luxury of a lesser sentence. Id. ¶ 10. From our review of the record, this Court finds no error in the circuit court's dismissal of Garner's motion for post-conviction relief. Garner's sentence was suspended under Mississippi Code Annotated section 47-7-34, and he was given post-release supervision for a three-year period. Garner was required to meet certain terms under the post-release-supervision agreement, but subsequently failed two drug tests and failed to pay his fine, assessment, restitution, and court costs during the supervision period. As a result, his post-release supervision was revoked, and the suspended sentence of ten years was imposed on Garner for his guilty plea to aggravated assault under Mississippi Code Annotated section 97-3-7 (Rev. 2004). We cannot find that the circuit court's dismissal of the post-conviction relief motion was clearly erroneous. This issue is without merit. II. WHETHER GARNER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL AND WHETHER HIS GUILTY PLEA WAS VOLUNTARY. ¶ 11. Garner argues that he received ineffective assistance of counsel when his attorney failed to object to the terms of his sentence. Garner alleges that the recommendation should have been for three years' imprisonment suspended for three years' post-release supervision. Garner argues that his plea was not knowingly, voluntarily, and intelligently made because it was based on the incorrect information provided by his defense counsel-that his sentence would be only three years suspended for time served, and that he would be placed on three years of post-release supervision. Garner argues that the transcript of the plea proceedings demonstrates that his attorney failed to object to the sentence and failed to ensure that he was afforded a speedy trial. ¶ 12. The State argues that the challenge to Garner's counsel is only supported by an affidavit from Garner. Further, the State notes that Garner's sworn testimony during his plea colloquy contradicts his present assertions. Therefore, the State contends that the post-conviction relief motion was without merit and was properly dismissed. ¶ 13. In order to establish an ineffective assistance of counsel claim, Garner must show "that his counsel's performance was deficient and that this deficiency prejudiced [Garner's] defense." Thornhill v. State, 919 So.2d 238, 240(¶ 4) (Miss.Ct.App. 2005) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Garner carries the burden of proof to demonstrate ineffective assistance of counsel, and an appellate court "will measure the alleged deficiency within the totality of circumstances." Id. (citing Hiter v. State, 660 So.2d 961, 965 (Miss.1995)). "However, a presumption exists that the attorney's conduct was adequate." Id. (citing Burns v. State, 813 So.2d 668, 673(¶ 14) (Miss.2001)). ¶ 14. From a review of the record before us, this Court cannot find that Garner's counsel was deficient and that this deficiency prejudiced Garner's defense. 633 Garner has simply failed to meet his burden of proof in demonstrating that his counsel's performance was deficient. Further, this Court cannot say that the circuit court's determination on the record that Garner's plea was voluntarily, intelligently, and knowingly given was clearly erroneous from the record before us. Therefore, this issue is without merit. III. WHETHER GARNER PROPERLY RAISED ADDITIONAL ERRORS ALLEGED FOR THE FIRST TIME ON APPEAL. ¶ 15. In addition, the State points out that in Garner's original motion for post-conviction relief filed in the circuit court, he only raised two basic errors: (1) that the suspension of his sentence was illegal because of his prior-felony conviction and (2) that he received ineffective assistance of counsel. Therefore, the State argues that these are the only issues that are appealable, citing Rivers v. State, 807 So.2d 1280, 1281(¶ 5) (Miss.Ct.App.2001) (holding in part that "[i]f a prisoner fails to raise all of his claims in his original petition for post-conviction relief, those claims will be procedurally barred if the petitioner seeks to bring them for the first time on appeal to this Court." (citing Williams v. State, 752 So.2d 477, 479(¶ 7) (Miss.Ct.App. 1999))). ¶ 16. This Court previously held in Haley v. State, 864 So.2d 1022, 1024(¶ 8) (Miss.Ct.App.2004), that: [A]n appellate court will not consider or review issues that were not raised in the trial court. Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988). A defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial. Jones v. State, 606 So.2d 1051, 1058 (Miss.1992). A trial judge cannot be put in error on a matter which was not presented to him for decision. Logan v. State, 773 So.2d 338, 346(¶ 29) (Miss.2000). As such, we decline to address Garner's additional issues raised for the first time on appeal. ¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY. KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.	{ "pile_set_name": "FreeLaw" }
891 F.2d 277 In re Sharrocks NO. 89-3041 United States Court of Appeals,Second Circuit. OCT 20, 1989 1 Appeal From: N.D.N.Y. 2 DENIED.	{ "pile_set_name": "FreeLaw" }
NO. 4-01-0528 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT In the Matter of the Estate of ROBERT CHARLES HURST, Deceased, ALICIA E. HURST and JULIE ANN HURST, Petitioners-Appellees and Cross-Appellants, v. PATSY J. HURST, Individually, PATSY J. HURST, Administratrix With the Will Annexed of the Estate of ROBERT CHARLES HURST, Deceased; LORI L. HOFFERBERT, and TODD A. REID, Respondents-Appellants and Cross-Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from Circuit Court of Woodford County No. 98P75 Honorable John B. Huschen, Judge Presiding. ______________________________________________________________ JUSTICE TURNER delivered the opinion of the court: This appeal involves the interpretation of two written instruments, a promissory note and a will, and the possible use of extrinsic evidence. Patsy J. Hurst, individually and as administratrix of the will annexed of the estate of Robert Charles Hurst, along with Lori L. Hofferbert and Todd A. Reid, cross-appellees, appeal the judgment of the trial court with respect to the promissory note and will, respectively. Alicia E. Hurst and Julie Ann Hurst, cross-appellants, also appeal the trial court’s ruling concerning the Dead-Man’s Act (735 ILCS 5/8-201 (West 2000)). We affirm in part, reverse in part, and remand the cause with directions. I. BACKGROUND Initially, the parties involved in these appeals necessitate an introduction. Robert Charles Hurst (Chuck) married Diane Neises in September 1961. Chuck and Diane had two children: Lori L. Hurst and Todd A. Hurst (Lori and Todd). Chuck and Diane were divorced in April 1964, and Diane remarried to Alex Reid. Diane and Alex legally adopted Lori (now Hofferbert) and Todd (now Reid). In April 1965, Chuck married his second wife, Karan E. Hurst. They had two children: Alicia E. Hurst and Julie A. Hurst (Alicia and Julie). Chuck and Karan were divorced in April 1990. Later, Chuck married his third wife, Patsy J. Hurst (Patsy). A. The Note In 1993, Chuck and Patsy Hurst decided to open and operate an adult entertainment club in Tazewell County. Thereafter, with the assistance of counsel, Club Cabaret, Inc., was formed in which the Hursts retained a 51% controlling interest. The stock certificate indicated the shares were issued to “Robert C. Hurst and Patsy J. Hurst, Joint Tenants.” In 1996, the Hursts decided to sell their interest in the business to other individuals involved with the corporation. Attorney Richard D. McCoy prepared a promissory note (note) and mortgage on behalf of the Hursts. Chuck and Patsy allegedly told McCoy they wanted the note to be payable to both of them jointly so if one of them died, the survivor would become the sole owner of the note. McCoy drafted the note which read, in part: “FOR VALUE RECEIVED, the undersigned, CLUB CABARET, INC. (Maker), promises to pay to the order of ROBERT C. HURST and PATSY J. HURST, or either of them, or any holder of this note (Payee) the sum of U.S. $1,140,000.00 *.” Similarly, the mortgage stated, in relevant part: “This mortgage is made this 26 day of September 1996, by CLUB CABARET, INC., an Illinois corporation (Mortgagor), * and delivered to ROBERT C. HURST and PATSY J. HURST (jointly and severally (Mortgagee)) *.” Chuck and Patsy accepted the note believing it conformed to their wishes of joint ownership with each having a full right of survivorship. The corporation made monthly payments in accordance with the terms of the obligation by electronic transfer to an account at Morton Community Bank. Chuck and Patsy held the bank account as joint tenants with right of survivorship. In October 1997, Chuck and Patsy sought out McCoy for his services as to their estate plans. They sought assurance from McCoy the proceeds of the note would be paid to the survivor of Chuck and Patsy if one predeceased the other. McCoy checked the note and assured them it was owned jointly with right of survivorship. In June 1998, Chuck died before completing his estate planning. It was believed he died without a will. In August 1998, Patsy was appointed independent administratrix of the estate. In August 1999, Alicia and Julie filed a petition for citation to discover assets against Patsy, in her individual and representative capacities, and against Club Cabaret, Inc. The petition alleged the payees of the promissory note held it as tenants in common and not as joint tenants. Thus, Chuck’s undivided one-half interest in the note passed into his estate and should be inventoried as an asset of his estate. Patsy, believing the note created a joint tenancy, did not include the note in Chuck’s estate, maintaining she was the sole owner. In April 2000, Alicia and Julie filed a motion for summary judgment on their petition for citation to discover assets, arguing the note and mortgage are clear and unambiguous on their face and create a tenancy in common. In February 2000, Patsy, in her individual capacity, filed a complaint to reform the note. The complaint sought a reformation of the note to express the true intent of Patsy and Chuck, by substituting the words “ROBERT C. HURST and PATSY J. HURST, or either of them, as joint tenants with right of survivorship” in place of the phrase “ROBERT C. HURST and PATSY J. HURST, or either of them.” In March 2000, Alicia and Julie filed an answer to the complaint, admitting most of the allegations but stating the note speaks for itself. In October 2000, Patsy filed a motion for summary judgment and attached affidavits from Richard McCoy, Robert Tudor, and James Mamer. In his affidavit, McCoy stated Chuck wanted the note to be drafted jointly with Patsy with right of survivorship. He believed he was fulfilling Chuck’s wishes by using the language “or either of them.” Tudor, vice-president of Club Cabaret, Inc., stated the corporation made monthly payments by electronic transfer to Chuck and Patsy. Mamer, president of Morton Community Bank, stated Chuck and Patsy held a joint account at the bank as joint tenants with right of survivorship. Alicia and Julie filed a motion to strike the three affidavits as either irrelevant or barred by the Dead-Man’s Act. Specifically, they alleged McCoy’s affidavit was barred by the Dead-Man’s Act because McCoy was a person directly interested in the action based on Patsy’s malpractice action against him. Patsy filed a professional negligence suit, in December 1999, against Richard McCoy, Kirk Bode, and McCoy & Bode for the alleged negligence in drafting the note. Patsy argued the Dead-Man’s Act did not apply because McCoy was not directly interested in the action and had not been called to testify on his own behalf. Alicia and Julie also filed a cross-motion for summary judgment arguing the note’s language created a tenancy in common. They argued if the McCoy affidavit was inadmissible, Patsy had no evidence of a mistake to justify a reformation of the note. They claimed the mistake alleged was one of law, not fact, which was not the proper subject for reformation. In November 2000, the trial court denied Alicia and Julie’s motion to strike the affidavits. As to the McCoy affidavit, the trial court found McCoy was not directly interested in the action because, regardless of the outcome of this case, the malpractice action would still be pending. In May 2001, the trial court, in an amended order, denied Patsy’s motion for summary judgment and granted Alicia and Julie’s cross-motion for summary judgment. The trial court reasoned the note was a tenancy-in-common instrument and, since there was a mistake of law, not fact, reformation was prohibited. The court declared Chuck’s estate as the owner of an undivided one-half interest in the note and the mortgage that secures it. Patsy filed a posttrial motion to reconsider, arguing equity provided an exception to the general rule that a mistake of law cannot be reformed and her case fell within the exception. The trial court denied the motion to reconsider. The court acknowledged some mistakes of law may be reformed, but attorney McCoy’s mistake was a legal one pertaining to a general rule of law, and equity did not offer relief. This appeal and cross-appeal followed. B. The Will In October 1999, Chuck’s original will, dated January 30, 1991, was found in the safe deposit box of the law firm of McCoy & Bode. The will stated, in relevant part: “ARTICLE II I give all of my personal effects, household goods, automobiles, and all other items of goods and chattels to my children who survive me in shares of substantially equal value, with the descendants of any deceased child to take the deceased child’s share per stirpes . Currently I have two children whose names are as follows: ALICIA ELIZABETH HURST and JULIE ANN HURST If any child of mine has not attained legal age at my death, the executor may deliver his or her share of goods and chattels to the guardian of his or her person or estate, or to the person with whom he or she resides, for the benefit of the child, and the receipt of this guardian or person shall discharge the executor. ARTICLE III I give the residue of my estate, excluding any property over which I have a power of appointment, to my children who survive me in equal shares with the descendants of any deceased child to take the deceased child’s share per stirpes . If any child of mine is under the age of 25 years at the date of my death, I direct the executor to give said residue to my ex-wife, KARAN E. HURST, as trustee for the benefit of my children (Children’s Trust). * ARTICLE VIII I designate my wx-wife [ sic ], KARAN E. HURST, as the guardian of the persons and estates of my children. I direct that no security be required on the bond of any guardian designated by me.” In November 1999, Alicia and Julie filed a petition to construe decedent’s will naming as defendants Patsy, Lori, and Todd. The petition sought relief from the court by way of an order construing decedent’s will so the word “children” is defined to include only Alicia and Julie, and specifically to exclude Lori and Todd. In March 2000, Lori and Todd both filed responses to the petition to construe decedent’s will. The responses sought a declaration that Lori and Todd are heirs under the Illinois Probate Act of 1975 (755 ILCS 5/1-1 through 30-3 (West 2000)), and an order construing decedent’s will so the term “children” is defined to include Lori and Todd for all purposes except article II. In April 2000, Alicia and Julie filed a motion for judgment on the pleadings, arguing decedent’s will did not contain a latent ambiguity and demonstrated decedent’s intention to disinherit his two children not named in the will: Lori and Todd. In June 2000, the trial court found the will contained a latent ambiguity and parol evidence was necessary to determine whether Lori and Todd should be included. In December 2000, an evidentiary hearing was held on the petition to construe the will. The parties did not produce any extrinsic evidence but relied on their arguments based on the language of the will. In May 2001, the trial court entered judgment in favor of Alicia and Julie and against Lori and Todd. The trial court found Alicia and Julie were the only persons who take under decedent’s will because case law tended to abolish the traditional rules regarding class gifts and instead reclassify the gift as an individual bequest when a person is specifically identified. This appeal followed. II. ANALYSIS A. The Note Patsy argues the trial court erred in granting summary judgment in favor of Alicia and Julie. We agree. As our analysis of the note involves a question of law, we review the trial court’s decision de novo . See Subway Restaurants of Bloomington-Normal, Inc. v. Topinka , 322 Ill. App. 3d 376, 381, 751 N.E.2d 203, 208 (2001) (question of law when dealing with motion for summary judgment). The general rule is that before a court will reform an instrument on the ground of mistake, "'"the mistake must be of fact and not of law, mutual and common to both parties, and in existence at the time of the execution of the instrument, showing that at such time the parties intended to say a certain thing and, by a mistake, expressed another."' [Citations.]" Zannini v. Reliance Insurance Co. of Illinois, Inc. , 147 Ill. 2d 437, 449, 590 N.E.2d 457, 462 (1992); see also Spies v. DeMayo , 396 Ill. 255, 272, 72 N.E.2d 316, 324 (1947) (to justify reformation, mistake must be of fact and not of law); Ambarann Corp. v. Old Ben Coal Corp. , 395 Ill. 154, 166, 69 N.E.2d 835, 841 (1946). While this general rule has had a long history, courts of equity have created exceptions in the interests of justice. Our supreme court in Peter v. Peter , 343 Ill. 493, 498, 175 N.E. 846, 849 (1931), noted “[w]hile it has been stated as a general rule that a mistake of law pure and simple is not adequate ground for relief in equity, yet even when the mistake is one of law equity sometimes intervenes. [Citation.] Courts of equity have aided mistaken parties because of the demands of justice.” Later, the court indicated “[r]elief is not barred in a proper case because the mistake is one of law.” Darst v. Lang , 367 Ill. 119, 123, 10 N.E.2d 659, 662 (1937). The court reiterated this principle when it revisited the issue of granting relief to mistakes that include elements of law in Barkhausen v. Continental Illinois National Bank & Trust Co. of Chicago , 3 Ill. 2d 254, 269-70, 120 N.E.2d 649, 657 (1954). In Harbaugh v. Hausman , 210 Ill. App. 3d 715, 720-22, 569 N.E.2d 523, 527-29 (1991), this court cited Barkhausen for the proposition that a court of equity can grant relief even in cases where the mistake is one of law. In Harbaugh , the court stated "where a person is mistaken 'as to his own antecedent existing legal rights,' relief may be granted in regard to a subsequent contract he enters into in reliance on his mistaken belief as to antecedent rights." Harbaugh , 210 Ill. App. 3d at 722, 569 N.E.2d at 528, quoting 3 J. Pomeroy, Equity Jurisprudence §849, at 308 (5th ed. 1941). Unlike Harbaugh , this case does not involve a mistake as to an antecedent existing legal right. Nevertheless, we find the rationale of Barkhausen applicable to the circumstances presented in this case. As the Barkhausen court stated: "But, appellee says that this court is powerless to remedy the mistake, if there was one, because it was a mutual mistake of law. What constitutes a mistake of law or a mistake of fact is a subject upon which many conflicting and irreconcilable discourses have been written. In Illinois there are well-reasoned opinions that hold that relief is appropriate whether one views a mistake to be one of fact or one of law. Darst v. Lang , 367 Ill. 119, [at 123-24, 10 N.E.2d at 662,] is one that is peculiarly applicable. In that case[,] aging parents deeded to their beloved daughter their farm, intending to reserve unto themselves a life estate but mistakenly failing to do so. This daughter[,] after several years, upon learning of their failure to reserve their life estate, sought to deprive her father and mother of the proceeds of the premises which they had been enjoying uninterruptedly since the execution of the deed. In that proceeding[,] reformation was sought because of a mistake, but the daughter urged the applicability of the rules that extrinsic evidence cannot be considered and that a court of equity is powerless to remedy a mistake of law. The court in rejecting those arguments used this language which we believe appropriately applies to the situation before us: 'Relief is not barred in a proper case because the mistake is one of law.'" Barkhausen , 3 Ill. 2d at 269, 120 N.E.2d at 657. In the case sub judice , Chuck and Patsy Hurst were the owners of a restaurant and nightclub which they operated as a corporation. The Hursts owned a 51% controlling interest in the corporation represented by a stock certificate registered in both of their names as joint tenants with right of survivorship. They agreed to sell their interests in the business and hired a lawyer to represent them in the transaction. Their lawyer prepared the documents necessary to consummate the sale. The documents included the preparation of a promissory note payable to Chuck and Patsy for the purchase of the stock. Chuck and Patsy told their lawyer they wanted one promissory note payable to both of them jointly so that if one of them died, the other became the sole owner of the note. After the note was executed, the corporation began making monthly payments in accordance with the terms of the note to a bank account set up by Chuck and Patsy as a joint tenancy with right of survivorship. Chuck and Patsy relied upon their legal counsel, who apparently believed that naming Chuck and Patsy, "or either of them," as payees was sufficient to establish a joint tenancy. Alicia and Julie argue other supreme court decisions plainly state that no mistake of law is reformable by a court of equity (see David v. Schiltz , 415 Ill. 545, 114 N.E.2d 691 (1953); Wilcox v. Natural Gas Storage Co. of Illinois , 24 Ill. 2d 509, 182 N.E.2d 158 (1962); Zannini v. Reliance Insurance Co. of Illinois, Inc. , 147 Ill. 2d 437, 509 N.E.2d 457 (1992)) and that Barkhausen has dubious precedential value. We are not persuaded inasmuch as Wilcox and Zannini did not even cite Barkhausen , and David was decided prior to the Barkhausen decision. Although each opinion does state that equity addresses only mistakes of fact and not law, all three are decidedly distinguishable from the facts present here. In David , an erroneous legal description in a deed was deemed a mistake of fact and the court reformed the deed some 16 years after its original delivery. David , 415 Ill. at 554, 114 N.E.2d at 696. In Wilcox , the mistake was unilateral in nature and reformation, therefore, was not available. Wilcox , 24 Ill. 2d at 513, 182 N.E.2d at 160. In Zannini , an insurance contract as issued did not set forth the true agreement entered into between an insured and an agent of the insurance company. Zannini , 147 Ill. 2d at 440-41, 509 N.E.2d at 458. The supreme court deemed the mistake to be one of fact and remanded for reformation of the contract. Zannini , 147 Ill. 2d at 457, 509 N.E.2d at 465-66. Thus, the general principle of law-- i.e. , no mistake of law is reformable by a court of equity`--was not at issue in any of these cases. Alicia and Julie also argue that even if a mistake of law can be remedied by a court of equity, the mistake here was a "pure and simple" mistake which does not fall within the exception allowing for reformation of a mistake of law. We disagree. The supreme court in Barkhausen stated, in part: “'Whenever it is clearly shown that parties in their dealings with each other have acted under a common mistake of law and the party injured thereby can be relieved without doing injury to others, equity will afford him redress.'" Barkhausen , 3 Ill. 2d at 270, 120 N.E.2d at 657-58, quoting Peter , 343 Ill. at 499-500, 175 N.E. at 849. Here, it has been clearly shown Chuck and Patsy acted under a common mistaken belief that they were named as payees to hold the note as joint tenants rather than as tenants in common. Their ownership as tenants in common defeats the right of survivorship, and thus it works an injustice upon them. We hold that such an injustice under these facts may be avoided by the equitable remedy of reformation. Our decision today finds further support by leading authorities on the law of contracts. See Restatement (Second) of Contracts §151, Comment b, at 384 (1981); 13 W. Jaeger, Williston on Contracts §1585, at 555-56 (3d ed. 1970). “The desirable rule governing reformation is that if the writing actually executed does not contain all that the parties agreed that it should contain, it will be reformed whether the reason why it fails to express the agreement is due to a mistake of fact or of law.” 13 W. Jaeger, Williston on Contracts §1586, at 559 (3d ed. 1970). Alicia and Julie next argue the note cannot be reformed because (1) the mistake is unilateral only and (2) Patsy has an adequate remedy of law. We disagree with both of these contentions. On the question of mutuality, Alicia and Julie claim the maker of the note, Club Cabaret, Inc., has not been shown to be a party to the mistake. This claim, however, avoids the heart of the issue before this court. The maker of the note had no interest in whether Chuck and Patsy held the note as joint tenants or tenants in common. The mutual mistake at issue was between Chuck and Patsy. There is no claim or issue before this court that Club Cabaret, Inc., intended for the note to be payable to Chuck and Patsy as tenants in common rather than as joint tenants. Hence, the argument that no mutual mistake exists is unavailing to Alicia and Julie. We also disagree Patsy is precluded from seeking reformation because she has an adequate remedy of law in pursuing her malpractice claim against McCoy. The appellees cite no cases in support of this proposition, and we decline to hold the malpractice claim adequately remedies the ramifications of the mutual mistake of Chuck and Patsy or justifies a windfall to Alicia and Julie never intended by Chuck and Patsy. The Hurst sisters' final argument is that Richard McCoy's affidavit is barred by the Dead-Man's Act (735 ILCS 5/8-201 (West 2000)). Patsy argues the Dead-Man's Act does not apply in this litigation and does not bar McCoy's testimony. We agree with Patsy. The Dead-Man's Act provides in pertinent part: "In the trial of any action in which any party sues or defends as the representative of a deceased person or person under a legal disability, no adverse party or person directly interested in the action shall be allowed to testify on his or her own behalf to any conversation with the deceased or person under legal disability or to any event which took place in the presence of the deceased ***." 735 ILCS 5/8-201 (West 2000). The trial court found, and we agree, the Dead-Man's Act does not apply because McCoy is not a person directly interested in the action and McCoy was not called to testify on his own behalf. A witness may be disqualified from testifying if the witness is "directly interested in the action." The witness' interest in the judgment must be such that a monetary “gain or loss will come to the witness directly as the immediate result of the judgment.” Michalski v. Chicago Title & Trust Co. , 50 Ill. App. 3d 335, 339, 365 N.E.2d 654, 657 (1977), citing Brownlie v. Brownlie , 351 Ill. 72, 76, 183 N.E. 613, 615 (1932). In Michalski , the plaintiffs maintained that deeds in their favor had been executed and delivered to the defendant trust company, but the deeds were unrecorded and lost, mislaid, or destroyed. Michalski , 50 Ill. App. 3d at 337, 365 N.E.2d at 655. The attorney who drafted the deeds on behalf of the grantors was allowed to testify as to his conversations and consultations with the grantors when the dispute arose after the death of the grantors. Michalski , 50 Ill. App. 3d at 338, 365 N.E.2d at 656. Although the attorney involved had not been sued, he did testify that he had notified his insurance company of the possibility of a claim against him for the handling of the deeds. Michalski , 50 Ill. App. 3d at 338, 365 N.E.2d at 656. In finding the attorney's testimony was admissible, the Michalski court stated, "[n]o matter what the result of these proceedings would be, there would be no certain, direct, or pecuniary effect on Piggott [(the attorney)]. If an interest in an action is of a doubtful or uncertain nature, that fact may go to the credibility of the witness, but not to his competency." Michalski , 50 Ill. App. 3d at 339, 365 N.E.2d at 657. Although a malpractice case had not been filed against the attorney in Michalski , and a suit has been filed against McCoy here, their positions are similar. Neither stood to benefit directly from the outcome of the case in which he testified. The interest of the witness must be direct and be such that a pecuniary gain or loss will inure to the witness directly as the immediate result of the judgment. Appellees also cite Groce v. South Chicago Community Hospital , 282 Ill. App. 3d 1004, 669 N.E.2d 596 (1996), and Hoem v. Zia , 239 Ill. App. 3d 601, 606 N.E.2d 818 (1992), but neither case supports their position. In both cases, a physician's testimony was barred when the physicians offered testimony as to conversations with the decedent in malpractice actions filed against the physicians by the decedents' estates. The Dead-Man's Act is also not applicable because McCoy, as a nonparty witness, was not called to testify on his own behalf. McCoy specifically admitted that he had drafted the note at issue and that he advised his clients the language in the note established a joint tenancy with the right of survivorship. McCoy was not called to testify on his own behalf and his testimony was therefore not barred by the Dead-Man's Act. See In re Estate of Sewart , 274 Ill. App. 3d 298, 652 N.E.2d 1151 (1995); In re Estate of Henke , 203 Ill. App. 3d 975, 561 N.E.2d 314 (1990). Based upon our findings, we need not address the issues pertaining to joint tenancy or the allegedly ambiguous language in the note. Therefore, we reverse the trial court’s judgment granting Alicia and Julie’s motion for summary judgment and remand to the trial court to reform the note indicating a joint tenancy with right of survivorship between Chuck and Patsy. B. The Will Lori and Todd argue Chuck’s will is latently ambiguous, and they should come within the meaning of Chuck’s “children” under the residuary clause of article III. We disagree. The cardinal rule in the construction of wills is to ascertain the true intention of the testator as expressed in the will. In re Estate of Cancik , 106 Ill. 2d 11, 17, 476 N.E.2d 738, 741 (1985); In re Estate of Garrett , 325 Ill. App. 3d 123, 126, 756 N.E.2d 920, 924 (2001). “'This intention is to be gathered from the words and expressions used in the will itself. The different provisions and parts of the instrument are to be compared with and read in the light of each other, so as, if possible, to deduce therefrom an [ sic ] harmonious whole . The general intent of the will is to be carried into effect at the expense of any particular intent, provided such general intent is consistent with the rules of law, for when there are conflicting intents that which is the most important must prevail.’” (Emphasis in original.) Morrison v. Tyler , 266 Ill. 308, 319, 107 N.E. 602, 605 (1914), quoting Howe v. Hodge , 152 Ill. 252, 266, 38 N.E. 1083, 1086 (1894) . If the language of a will is clear and unambiguous, extrinsic evidence is not admitted to vary that language. Steinke v. Novak , 109 Ill. App. 3d 1034, 1038, 441 N.E.2d 883, 886 (1982). However, where latent ambiguities exist in the will, extrinsic evidence will be considered to determine the testator’s intent. In re Estate of Levin , 231 Ill. App. 3d 634, 637, 596 N.E.2d 722, 725 (1992). “A latent ambiguity occurs when the will appears clear on its face but some fact external to the will reveals that a description of a bequest or of a legatee in the will is inadequate to determine who or what was intended by the testator.” Coussee v. Estate of Efston , 262 Ill. App. 3d 419, 424, 633 N.E.2d 815, 818 (1994). In the case sub judice , Chuck devised his personal effects in article II to his children who survived him. Thereafter, he stated: “Currently I have two children whose names are as follows: ALICIA ELIZABETH HURST and JULIE ANN HURST.” By specifically designating his children as Alicia and Julie, Chuck’s indication was to include them within the meaning of “my children.” Our supreme court has noted the “words 'child' and 'children' are not technical legal terms to which a fixed and determined meaning must be given regardless of the sense in which they are employed, but they are flexible and subject to construction, in order to give effect to the testator’s intention.” Beall v. Beall , 331 Ill. 28, 32-33, 162 N.E. 152, 154 (1928). When Chuck drafted his will to indicate he currently had two children, Alicia and Julie, his further references to “my children” were to include them and to exclude Lori and Todd, who were alive at the time the will was drafted. The fact that Chuck inserted the word “currently” does not make the will ambiguous because, although future children could have been born to Chuck, Lori and Todd were not to be considered within the meaning of “children.” As the meaning of the word “children” is flexible and not rigid, we find Alicia and Julie were to take under Chuck’s will to the exclusion of Lori and Todd. Our conclusion is further supported by reading the particular provisions of the will in light of each other to deduce that “harmonious whole.” As stated, article II devises Chuck’s personal effects to his children, Alicia and Julie. Article III devised the residue of Chuck’s estate “to my children who survive me.” Further, article III states Chuck’s ex-wife, Karan Hurst, mother of Alicia and Julie, was to be given the residue as trustee for the benefit of his children if any child was under the age of 25. Article VIII also designated Karan Hurst as the guardian of the persons and estates of Chuck’s children. Nowhere in Chuck’s will is there any mention of Lori and Todd or of his first wife. The necessary implication from the reading of the entire will is that Chuck sought to provide for Alicia and Julie (and perhaps a child born in the future) to the exclusion of Lori and Todd. Although we are aware of the maxim: “No will has a twin brother,” and thus analogies to other cases are less than exacting, we find our supreme court’s decision in Young v. Whisler , 19 Ill. 2d 501, 504, 167 N.E.2d 191, 192 (1960), to be helpful. In that case, the decedent devised a will which provided, in part, that in the event his wife predeceased him, all the property would go "to my children, Zella Lee Rath and Thelma Louise Yoeman, in equal parts, share and share alike.” Young , 19 Ill. 2d at 503, 167 N.E.2d at 192. The decedent had four children: George and Donald Young, sons by his first wife, and Zella and Thelma, daughters by his second wife. Young , 19 Ill. 2d at 503, 167 N.E.2d at 192. George and Donald argued the will’s language pertaining to “my children, Zella Lee Rath and Thelma Louise Yoeman” was latently ambiguous and uncertain because the decedent had two sons by a prior marriage. Young , 19 Ill. 2d at 503, 167 N.E.2d at 192. The supreme court, in deciding whether the will’s language created a latent ambiguity stated: “It is readily apparent that the devise, 'to my children, Zella Lee Rath and Thelma Louise Yoeman,' falls within the rule that where legatees are named as individuals and also described as a class, and there is nothing more to show the testator’s intention, the gift by name constitutes a gift to individuals, to which the class description is added by way of identification. [Citations.] Moreover, the natural meaning of the words 'my children' in the phrase is to identify the legatees and their relationship to the testator. The words are in no way inconsistent with the two names which follow. Since the named individuals are both children of the testator, they are accurately described, and the existence of two other children by a former marriage does not impair the accuracy of that description, nor render it ambiguous.” Young , 19 Ill. 2d at 504-05, 167 N.E.2d at 193. The court found the clause giving the decedent’s property to named individuals had the effect of falling under “the rule that ordinarily a will purporting to devise and bequeath all property of a testator to a named beneficiary is equivalent to the expression of an intention to disinherit all other persons.” Young , 19 Ill. 2d at 505, 167 N.E.2d at 193. Further, had the decedent inserted language indicating his intention to include his sons in the will, the court noted it would have reason to not apply the rule. “The fact that the testator had additional children cannot of itself bar our giving effect to his expressed intention to devise the property to the named children.” Young , 19 Ill. 2d at 505-06, 167 N.E.2d at 193. Thus, the supreme court found no latent ambiguity from the fact the testator had other children in existence. Young , 19 Ill. 2d at 506, 167 N.E.2d at 193. In the present case, the fact that Chuck had other children in existence, namely Lori and Todd, does not create a latent ambiguity. The will’s language in article II specifically indicates Alicia and Julie were Chuck’s children. Further references to “children” in later clauses describe the identities set forth by Chuck in article II. The entire will, comparing the parts and provisions and reading them in light of each other, leads to the conclusion that Chuck’s intent in articles II and III was to devise his property to his children, Alicia and Julie. It is a basic principle that courts have a duty to construe wills as they find them rather than change or rewrite them. In re Estate of Laas , 134 Ill. App. 3d 504, 509, 480 N.E.2d 1183, 1187 (1985). With this in mind and based on a reading of the four corners of Chuck’s will, we find the language is clear and unambiguous. Thus, the trial court’s order that only Alicia and Julie take under the will was proper. III. CONCLUSION For the reasons stated, we affirm in part, reverse in part, and remand the trial court's judgment with directions. Affirmed in part and reversed in part; cause remanded with directions. MYERSCOUGH and APPLETON, JJ., concur.	{ "pile_set_name": "FreeLaw" }
J-S35037-15 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. FRANCIS GALLO, Appellant No. 62 EDA 2015 Appeal from the Judgment of Sentence October 8, 2014 in the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0001793-2014 BEFORE: MUNDY, J., OLSON, J., and PLATT, J.* MEMORANDUM BY PLATT, J.: FILED JUNE 02, 2015 Appellant, Francis Gallo, appeals from the judgment of sentence imposed after the revocation of his probation.1 Appellant’s counsel seeks to withdraw from representation pursuant to Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). We quash and deny counsel’s application to withdraw as moot. ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 Appellant purports to appeal from the court’s denial of his post-sentence motion. (See Notice of Appeal, 12/31/14, at 1). However, an appeal properly lies from the judgment of sentence. See Commonwealth v. Rojas, 874 A.2d 638, 642 (Pa. Super. 2005). We have amended the caption accordingly. J-S35037-15 On March 28, 2014, Appellant entered a negotiated guilty plea to one count of possession of marijuana.2 While serving his twenty-four month probationary sentence, (see Guideline Sentence Form, 4/11/14, at 1), Appellant failed to report, and tested positive for morphine and oxycodone. (See Request for Bench Warrant, 6/13/14, at 1). At his October 8, 2014 Gagnon II3 hearing, he stipulated to the probation violation. (See N.T. Gagnon II Hearing, 10/08/14, at 3). The same day, the court adopted Adult Probation’s recommendation and imposed a sentence of not less than nine nor more than twenty-three months’ incarceration, plus drug and alcohol evaluation, and community service. (See id. at 4, 9; see also Judgment of Sentence, 10/08/14, at 1). On December 9, 2014, the court denied Appellant’s nunc pro tunc post-sentence motion. Appellant filed a notice of appeal on December 31, 2014. On March 12, 2015, counsel filed an application to withdraw and an Anders brief on the basis that the appeal is frivolous.4 Preliminarily, we must address this appeal’s timeliness. As this Court recently stated: Rule 720 of the Pennsylvania Rules of Criminal Procedure in general governs the timing of post-sentence motion procedures ____________________________________________ 2 35 P.S. § 780-113(a)(16). 3 Gagnon v. Scarpelli, 411 U.S. 778 (1973). 4 Appellant did not respond to counsel’s application to withdraw. -2- J-S35037-15 and appeals. See Pa.R.Crim.P. 720. The disposition of a motion to modify a sentence imposed after a revocation hearing, however, is governed by Rule 708 (Violation of Probation, Intermediate Punishment, or Parole: Hearing and Disposition). See Pa.R.Crim.P. 720 Comment. Rule 708(E) states: “A motion to modify a sentence imposed after a revocation shall be filed within 10 days of the date of imposition. The filing of a motion to modify sentence will not toll the 30–day appeal period.” Pa.R.Crim.P. 708(E) (emphasis added). Rule 708 makes clear Rule 720 does not apply to revocation cases. Id. Comment. See also Commonwealth v. Parlante, 823 A.2d 927, 929 (Pa. Super. 2003) (internal citation omitted) (stating: “An appellant whose revocation of probation sentence has been imposed after a revocation proceeding has 30 days to appeal her sentence from the day her sentence is [imposed], regardless of whether . . . she files a post-sentence motion. Therefore, if an appellant chooses to file a motion to modify her revocation sentence, she does not receive an additional 30 days to file an appeal from the date her motion is denied”). Time limitations for taking appeals are strictly construed and cannot be extended as a matter of grace. This Court can raise the matter sua sponte, as the issue is one of jurisdiction to entertain the appeal. Absent extraordinary circumstances, this Court has no jurisdiction to entertain an untimely appeal. Commonwealth v. Burks, 102 A.3d 497, 499 (Pa. Super. 2014) (some case citations omitted). Here, the court revoked Appellant’s probation and resentenced him on October 8, 2014. Although Appellant filed a post-sentence motion nunc pro tunc on November 5, 2014, this did not toll the thirty-day appeal period. See id. Therefore, Appellant had until November 7, 2014 to file an appeal, -3- J-S35037-15 regardless of the post-sentence motion.5 However, he did not file his notice of appeal until December 31, 2014. Therefore, Appellant's failure to file his notice of appeal within thirty days of the sentence imposed after the probation revocation divested this Court of appellate jurisdiction. See id. Accordingly, we quash this appeal as untimely. Appeal quashed. Counsel’s application to withdraw denied as moot. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/2/2015 ____________________________________________ 5 Counsel advised Appellant at sentencing that he had thirty days from the date of sentencing to file a notice of appeal. (See N.T. Hearing, 10/08/14, at 9). -4-	{ "pile_set_name": "FreeLaw" }
In the United States Court of Appeals For the Seventh Circuit ____________ No. 05-2846 HIFZUR REHMAN, Petitioner, v. ALBERTO R. GONZALES, Attorney General of the United States, Respondent. ____________ Petition for Review of Orders of the Board of Immigration Appeals ____________ ARGUED FEBRUARY 23, 2006—DECIDED MARCH 20, 2006 ____________ Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges. EASTERBROOK, Circuit Judge. In 1977 Zulfikar Ali Bhutto was deposed as Prime Minister of Pakistan. General Zia ul- Haq took over in a coup. Hifzur Rehman was among Zia’s subordinate officers. Rehman and his family had been, and remained, friends of the Bhutto family. In 1980 Rehman made remarks at a military meeting that the presiding officer construed as criticism of the Zia government; he was admonished to desist from politics while in military service. When Rehman made these unwelcome statements he was a second lieutenant; he retired in 2002 as a major. Having arrived in the United States on a tourist visa, Rehman sought asylum on the theory that Zia and his successors slowed his advancement through the ranks, kept him under 2 No. 05-2846 surveillance, and posted him to remote and undesirable locations. Rehman acknowledged that he had not experi- enced overt persecution but contended that he was at greater risk once out of uniform. He contends that since his arrival in the United States his wife, who remains in Pakistan, has received telephonic threats. (The record does not show the substance of the threats.) An immigration judge thought that these events fell well short of persecution entitling an alien to asylum. Rehman does not mount a serious challenge to the agency’s deci- sion on the merits. Many military officers (indeed, many employees in civilian life) think that their skills are under- appreciated and their careers impeded by jealous rivals or conniving superiors. That is not a form of “persecution.” Benazir Bhutto, Zulfikar’s daughter, was Prime Minister from shortly after Zia’s death in 1988 until 1990, and again from 1993 to 1996. Yet Rehman’s military career fared no better when she was in charge than when the Bhuttos’ opponents held sway. Rehman does not point to any evidence implying that friends of the Bhuttos are at risk in contemporary Pakistan. Benazir is in exile, and her husband served a term in prison following conviction on corruption charges, but their political supporters are at liberty. The current government of Pakistan is long removed from the coup that overthrew Zulfikar in 1977. Benazir’s tenure ended when her party lost control of parliament, and the current head of government (Pervez Musharraf) has no apparent ax to grind concerning the Bhuttos’ friends. Instead of challenging the decision’s substance, Rehman complains that the immigration judge denied him due process of law by curtailing the time allotted to the hearing and interrupting his lawyer’s questioning. It is unclear, however, whether we may consider even these limited arguments. The immigration judge rendered his decision on No. 05-2846 3 February 2, 2004, and Rehman had 30 days to seek review by the Board of Immigration Appeals. On the 30th day, however, he filed a motion asking the immigration judge to reconsider. This motion was denied on March 23, and on April 16 Rehman filed two appeals: one from the initial decision of February 2, and the other from the order of March 23. The Board of Immigration Appeals dismissed the first on February 1, 2005, as untimely, explaining that a mo- tion to reconsider does not affect the time for appeal. While the second appeal was under advisement, Rehman asked the Board to reconsider that decision. On May 26, 2005, the Board entered a decision that (a) denied the motion to reconsider the decision of February 1, and (b) resolved adversely to Rehman, on the merits, his appeal from the immigration judge’s decision of March 23. Rehman then filed a petition for judicial review, which is timely only with respect to the May 26 decision—for a motion asking the BIA to reconsider one of its decisions does not toll the time to seek judicial review, Stone v. INS, 514 U.S. 386 (1995), and the Board’s disposition of February 1 therefore is unassail- able. Despite an order that this court issued before briefing informing counsel that the Board’s order of May 26 is the sole administrative action now open to review, most of Rehman’s brief proceeds as if this were a direct appeal from the immigration judge’s initial decision on February 2, 2004. None of Rehman’s arguments rests on any fact that came to light after that date or any new legal development. Yet motions to reconsider—whether made to an immigra- tion judge or to the Board—are not replays of the main event. Reconsideration depends on something new, if not necessarily new factual developments (motions to reopen in immigration practice are strictly limited to such post- decision events, 8 C.F.R. §1003.23(3)) then at least new arguments showing that the IJ or Board overlooked some- 4 No. 05-2846 thing important. See 8 C.F.R. §1003.23(2). Rehman does not have any new arguments; he is rehashing old ones. Stone prevents us from deciding whether the Board’s order of February 1, 2005, dismissing his direct appeal was a mistake. All we can consider is whether the stan- dards for reconsideration have been met. Yet the lack of new argument or new evidence makes it all but impos- sible to say that the immigration judge and Board both abused their discretion in declining to reconsider their initial decisions. Oddly, however, the brief for the agency makes little of these procedural obstacles. Instead counsel has met the due process argument on the merits. The Board itself treated the appeal from the order denying reconsideration just as if it were an appeal from the IJ’s initial order of removal. We therefore shall do likewise, without implying that this would be proper had the Board and its advocate invoked the alien’s procedural default. Cf. Pasha v. Gonzales, 433 F.3d 530 (7th Cir. 2005). The immigration judge gave Rehman three hours to present his claim and, when counsel’s meandering question- ing began to fritter away that time, intervened to put matters on track. Rehman contends that these steps violated the due process clause of the fifth amendment. Why counsel should start with the Constitution rather than the statutes and regulations that govern removal proceed- ings is beyond us. Non-constitutional arguments always come first; constitutional contentions must be set aside until their resolution is unavoidable. See, e.g., New York Transit Authority v. Beazer, 440 U.S. 568, 582-83 (1979). Aliens have both statutory, 8 U.S.C. §1229a(b)(4), and regulatory, 8 C.F.R. §1240.1(c), entitlements to present all material evidence at impartial hearings. Any proceeding that meets these requirements satisfies the Constitution as No. 05-2846 5 well. See Galicia v. Gonzales, 422 F.3d 529, 538 (7th Cir. 2005); Nazarova v. INS, 171 F.3d 478, 482 (7th Cir. 1999). It would be necessary (and appropriate) to consider constitutional claims only if Congress had provided for kangaroo tribunals (in general) or adopted some specific rule that is open to constitutional doubt. Yet Rehman does not challenge the validity of any of the many stat- utes and rules of procedure that govern removal hear- ings. We have remarked before on the tendency of flabby constitutional arguments to displace more focused con- tentions. See Magala v. Gonzales, 434 F.3d 523, 526-27 (7th Cir. 2005). Leading with an open-ended due process argu- ment may divert attention from potentially sound but technical legal points. Aliens should stick with claims based on the statutes and regulations unless they believe that one of these rules violates the Constitution or that lacunae in the rules have been filled with defective pro- cedures. Reframed in statutory language, counsel’s contention is that he lacked “a reasonable opportunity . . . to pre- sent evidence on the alien’s own behalf”. 8 U.S.C. §1229a(b)(4)(B). But if he had been given more time, what additional evidence would he have presented? Counsel offers no specifics, which is a fatal shortcoming. When a court excludes evidence, counsel must make an offer of proof or otherwise alert the tribunal to the substance of what the evidence would have been. Fed. R. Evid. 103(a)(2). That rule does not apply directly to administra- tive proceedings, but its substance still governs—for courts do not set aside agencies’ decisions unless mistakes cause prejudice, and how could we ascertain prejudice without an offer of proof or some substitute? Cf. Alimi v. Ashcroft, 391 F.3d 888, 890-91 (7th Cir. 2004). The Board remarked that it had no idea what additional evidence Rehman had been unable to present. Even after the Board’s observation, Rehman did nothing to supply what is lacking and tell us 6 No. 05-2846 why whatever is missing is material—though we may assume that an affidavit would have sufficed even at this late date, none has been produced. Counsel’s appellate brief is maddeningly vague. It is hard to resist the conclusion that there is nothing more to offer. The immigration judge’s questions seem to us designed to keep the hearing focused on material issues, while counsel’s questioning implied that he could not distinguish the material from the irrelevant. Rehman has received the hearing to which he is entitled. If this is wrong, and the IJ should have given his lawyer more time, still the record does not afford reason to think that counsel could have used that time to supply material evidence in Rehman’s favor. Accordingly, the petition to set aside the Board’s orders is denied. A true Copy: Teste: ________________________________ Clerk of the United States Court of Appeals for the Seventh Circuit USCA-02-C-0072—3-20-06	{ "pile_set_name": "FreeLaw" }
106 B.R. 834 (1989) In re RAVICK CORPORATION, Debtor. Bankruptcy No. 88-08017. United States Bankruptcy Court, D. New Jersey. August 30, 1989. 835 John W. Hargrave, Voorhees, N.J., for debtor. Lampf, Lipkind, Prupis & Petigrow by Scott D. Jacobson, West Orange, N.J., for Gary Prisand, Mt. Laurel Development Associates and Union Mill Farms Associates. Markowitz & Zindler by Michael A. Zindler, for Mainstay Federal Sav. and Loan Assn. OPINION ROSEMARY GAMBARDELLA, Bankruptcy Judge. The matter before the court is a motion, filed on April 10, 1989 by Gary Prisand ("Prisand"), Mt. Laurel Development Associates ("MLDA") and Union Mill Farms Associates ("UMFA") (hereinafter referred to collectively, where appropriate, as "Prisand"), (1) for dismissal of Ravick Corporation's (the "debtor") Chapter 11 bankruptcy case pursuant to 11 U.S.C. § 1112(b), (2) for this court to abstain from exercising its jurisdiction over a certain adversary proceeding before it entitled Ravick Corporation v. Gary Prisand, Mt. Laurel Development Associates, and Union Mill Farms Associates, Adversary No. 88-1089, pursuant to 28 U.S.C. § 1334(c)(1) and (2) for modification of the automatic stay pursuant to 11 U.S.C. § 362(d) to allow the continuation of an action entitled Gary Prisand et al. v. Ravick Corporation and Raymond L. Girard Docket No. C-16251-88E, in the Superior Court of New Jersey, Chancery Division, Burlington County. Because the court finds that the debtor's Chapter 11 bankruptcy case was not filed in good faith within the meaning of § 1112(b), and that "cause" exists for dismissal of the petition, the debtor's Chapter 11 case is hereby dismissed. The relevant facts of this matter follow.[1] In 1968 Raymond L. Girard purchased 104.158 acres of undeveloped land (hereinafter the "Property"), zoned R-3 residential, described as Lots 1 and 2, Block 278 on the tax map of Mt. Laurel Township, located on Union Mill Road, Mt. Laurel Township, Burlington County, at a cost of $2,000.00 per acre (Deposition Transcript of January 13, 1989 of Raymond L. Girard at pp. 22, 36-37, 62) (hereinafter "Girard Dep. at ___"). Girard apparently contributed the Property to the Ravick Corporation in consideration for his receipt of the debtor's common stock (Girard Dep. at 63). Girard is presently the sole shareholder, officer and employee of the Ravick Corporation (Girard Dep. at 8). In July 1983 Ravick Corporation applied to the Planning Board of Mt. Laurel Township to subdivide and develop 512 dwelling units ("The Project") on the Property (Affidavit of Girard dated August 22, 1988 at ¶ 3) (hereinafter Girard Affidavit # 1 at ___). On May 9, 1985, Ravick received preliminary plat approval for Phase I of the subdivision, Phase 1 consisting of 50 single family units (Girard Affidavit # 1 at ¶ 6). In 1983 the New Jersey Supreme Court issued the landmark decision of Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 456 A.2d 390 (1983), which decision obligated municipalities to provide low and moderate income housing through the mechanism of 836 land use regulations. Ravick Corporation was made a party to a multi-party litigation in the Superior Court of New Jersey, Atlantic County involving Mt. Laurel Township. The final consent order, issued by The Honorable L. Anthony Gibson on September 12, 1985 directed Mt. Laurel Township to permit Ravick to construct up to 512 dwelling units on the Property and required the developer to reserve 15% of the units to low and moderate income housing. By way of resolution dated September 26, 1985, the Mt. Laurel Township Planning Board granted to the debtor final approval for development of 50 single family homes on the Property. On October 10, 1985, the Planning Board granted preliminary approval for Phase II (the remainder of the single family detached units) and Phase III (the townhouse units) of the development project (hereinafter referred to collectively as the "Project"). The Planning Board expressly conditioned preliminary approval of Phases II and III on, inter alia, Ravick's procuring a valid and current stream encroachment permit from the New Jersey Department of Environmental Protection ("DEP"). The preliminary approval, however, did not require approval by the United States Army Corps of Engineers ("Army Corps"). According to the Honorable Harold B. Wells, III's letter opinion dated October 18, 1988 (hereinafter "Letter Opinion") in the state court matter of Prisand v. Ravick, C-16251-88E, granting Prisand's motion for partial summary judgment for specific performance of the contract, see infra, Ravick Corp. received preliminary approval for an R-3 single family development of 141 units in 1978. As one of the conditions of preliminary approval, Ravick was required to procure a stream encroachment permit from DEP, which the seller did without applying to the United States Army Corps of Engineers. That plan, however, was never implemented and the permit expired (See Letter Opinion, p. 2). Ravick contends that in November 1985, it made application to DEP for a stream encroachment permit (Girard Affidavit # 1 at ¶ 11). On March 20, 1986, the debtor's engineers received a letter from the DEP, Division of Water Resources, which stated: It has been determined that your submission of a revised project delineation on U.S.G.S. scale dated March 14, 1986 accurately represents the project site as shown on the site plan. This delineation indicates that the project borders but does not contain any wetlands, based on U.S. Fish and Wildlife Service's National Wetlands Inventory maps. (Emphasis added in Affidavit). (Girard Affidavit at ¶ 12; See also Letter Opinion at p. 3). On September 15, 1986 Ravick Corporation and Raymond Girard entered into a written Contract of Sale ("Contract") with Gary M. Prisand for the purchase of the Property by Prisand. The Contract covered 510 fully improved lots and townhouse units which are part of the subdivision known as Union Mills Farms (Agreement at ¶ 1). MLDA is a New Jersey partnership which is the assignee of Gary Prisand's rights under the Contract (See Verified Complaint entitled Gary Prisand, Mt. Laurel Development Associates and Union Mill Farms Associates, L.P. v. Ravick Corporation and Raymond L. Girard at ¶ 2, filed in the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-162-21-88E) (hereinafter "State Court Complaint"). UMFA is a New Jersey partnership and is an assignee of certain of MLDA's interests in the Contract of Sale and is developing the Property. (See State Complaint at ¶ 3). Paragraph 2 of the Contract sets forth the purchase price and states that Prisand would pay $21,208.23 for each lot and unit. Paragraph 4.1 of the Contract states in relevant part that "the purchase price of $21,208.23 per lot or unit is to be allocated $11,568.23 for the land and governmental approvals and $9,640.00 for the improvements to be made with respect to each lot and unit by [Ravick Corporation]." Pursuant to Paragraph 3 of the Contract, the parties scheduled seven closings to consummate the transaction. Paragraph 3 states in relevant part: 837 3.1 Subject to the fulfillment of all the conditions of this Agreement by the Seller [Debtor], the initial closing shall occur on or before October 15, 1986, at which closing forty-eight (48) single-family lots shall be purchased. The Purchaser [Prisand] shall also reimburse the Seller the amount of Seventy-Two Thousand ($72,000.00) Dollars for forty-eight (48) sewer connection permits for such lots. 3.2 After the initial closing, closings shall occur in accordance with the following schedule, at which time the Purchaser [Prisand] shall purchase the following lots and units: Lots & Units (a) February 15, 1987 100 (b) August 15, 1987 75 (c) February 15, 1988 73 (d) August 15, 1988 73 (e) February 15, 1989 73 (f) May 15, 1989 68 Paragraph 9 of the Contract sets forth the seller's representations and covenants wherein the debtor and Girard warranted and represented to Prisand that: (a) the Subject Property was zoned and improved for construction of 510 residential units, consisting of 238 single-family detached units and 272 single-family attached townhouse units; and (b) the debtor and Girard would obtain all of the necessary and non-appealable governmental approvals for The Project by the initial closing. Paragraph 9 of the Contract states in pertinent part: 9. Representations and Covenants of Seller Seller represents and warrants to and covenants with, Purchaser [Prisand], knowing and intending that Purchaser [Prisand] shall rely thereon, and which representations and covenants shall survive each and all closing as follows: 9.1 The Premises conform to existing zoning and site plan approval which allow for the construction of a residential development consisting of two hundred thirty-eight (238) single family detached units and two hundred seventy-two (272) single family attached townhouse unts. The five hundred ten approved lots and units are subject to a fifteen (15%) percent allocation for low and moderate housing in accordance with the final consent order of the Superior Court of New Jersey which provides that such allocation may be satisfied entirely in townhouse units and shall be satisfied by the construction of not more than thirty-eight (38) one bedroom townhouse units not less than twelve (12) three bedroom townhouse units which are allocated to low and moderate housing. 9.3 Seller represents that it has or will have by the initial closing all necessary final non-appealable government approvals required for the development of the premises for two hundred thirty-eight (238) single family detached units and two hundred seventy-two (272) single family attached townhouse units, including but not limited to all final non-appealable approvals from the Department of Environmental Protection, the municipal utility authority, stream encroachment permits, sewer and water approvals, and as to each closing, there is adequate sewer and water capacity to service the lots and units which are then being closed. According to Judge Harold B. Wells' Letter Opinion dated October 18, 1988, the only permit Ravick was waiting for at the time the Contract was executed was the stream encroachment permit from the DEP. (Letter Opinion at p. 4). The debtor, however, contends herein as it did before the state court that it was unaware, before November 26, 1986, that Army Corps approval was required for the issuance of the permit. (Girard Affidavit # 1 at ¶ 14). On November 26, 1986 the DEP issued a stream encroachment permit to the debtor (the "Permit"), effective December 19, 1986, with an expiration date of November 19, 1988. The Permit expressly required the debtor and Girard to obtain approvals from the United States Army Corps of Engineers. The permit states in relevant part: This permit DOES NOT GIVE ANY PROPERTY RIGHTS in either real or personal property, nor any exclusive privileges; neither does it authorize any injury to private property; nor invasion of private rights; nor any infringement 838 of Federal, State or local laws or regulations; nor does it waive the obtaining of Federal or other State or local government consent when necessary. THIS PERMIT IS NOT VALID AND NO WORK SHALL BE UNDERTAKEN UNTIL SUCH TIME AS ALL OTHER REQUIRED APPROVALS AND PERMITS HAVE BEEN OBTAINED INCLUDING BUT NOT LIMITED TO PERMITS AND APPROVALS FROM THE FOLLOWING: U.S. Army Corps of Engineers (Philadelphia District). (Permit at ¶ 8, emphasis in original). The debtor contends herein, as it did before the state court, that the requirement of Army Corps approval was a complete reversal of DEP's original position as stated in the March 20, 1986 letter that the Property did not contain wetlands. According to Judge Wells' Letter Opinion, Ravick Corporation embarked upon a fourteen month struggle with the Army Corps, following issuance of the Permit, over the subject (Letter Opinion at p. 5). In the interim, on February 26, 1987, the Debtor, Mr. Girard and Mr. Prisand held the Initial Closing for the forty-eight (48) single family lots constituting Phase I of the Project. Mr. Prisand paid directly to the Seller $1,089,995.04 and paid in escrow $160,024.00 for unfinished site improvements. (Letter to Gary Prisand from Raymond Girard dated February 6, 1987 entitled "Settlement Section No. 1, Union Mill Farms, Mt. Laurel, New Jersey"). Also on February 26, 1987, Girard executed a "Certification" on his own behalf and as President of Ravick Corporation wherein he reaffirmed the warranties in Paragraph 9 of the Contract (see supra). In particular, the certification provided in relevant part that: The initial closing under the Contract is being held this date. In accordance with Section 12.4 of the Agreement, the Seller hereby certifies to the Assignee as follows: 1. All representations and warranties of the Seller in the Contract are true and correct and in all respects on and as of the date hereof as though made as of the date hereof. By way of letter dated February 9, 1988, about one year after the initial closing, the Army Corps informed the debtor that 18.57 acres of the Property were wetlands. By way of letter dated March 7, 1988, Ravick Corporation and Girard informed Prisand of the new wetlands determination and that the previously approved preliminary subdivision would have to be resubmitted for approval. The debtor further informed Prisand that it was increasing the contract price for improved lots from $21,208.23 to $26,280.00. The March 7, 1988 correspondence provided in relevant part: The enclosed Preliminary Plan of Union Mill Farms in Mt. Laurel Township, revised to January 12, 1988, shows the lands confiscated by the U.S. Government and labeled as "Limits of Federal Jurisdiction". These lands comprise 18.57 acres. This revised Preliminary Plan further shows the revised townhouse and single family units. The revised plans together with the engineering details are again being submitted to Mt. Laurel Township. On September 15, 1986 Ravick Corporation entered into a Contract of Sale with Gary M. Prisand. This Contract of Sale was based on the aggregate of five hundred ten (510) improved lots and townhouse units as described on the Preliminary Plan of Union Mill Farms dated March 13, 1984 and revised to February 4, 1986. This Preliminary Plan no longer exists. The purpose of this correspondence is to advise you that the purchase price for the improved lots and units shall be $26,280 per lot and unit. In order for Ravick Corporation to proceed with the final approval process, it will be necessary for you to inform Ravick by March 16, 1988 of your interest in the Union Mill Farms Project. By way of a statement dated March 28, 1988, the Debtor indicated that the revised unit price of $26,280 was premised on the ability to deliver 428 units as follows: 839 UNION MILL FARMS Units Available Based on Revised Preliminary Plan 428 Units Price Per unit Improved (Excluding Sidewalks) $26,280/Unit SCHEDULE OF PAYMENTS 1. Preliminary Approvals Payment due at signing of Contract. $ 6,000/Unit. 2. Land & Final Approvals $14,780/Unit 3. Improvements $ 5,800/Unit The above per unit prices are based on a total of 428 units in Union Mill Farms. If the final plans reflect less than 428 units, the price per unit will be adjusted accordingly. By way of letter dated April 4, 1988, Raymond Girard advised Prisand that Ravick Corporation and Girard considered the Contract between Ravick Corporation and Prisand, dated September 15, 1986, to be void. In response, by way of letter dated April 7, 1988, Prisand notified the debtor that Prisand considered the Contract to remain in full force and effect. On May 24, 1988, Prisand, MLDA and UMFA filed a verified complaint and order to show cause seeking inter alia specific performance of the contract in the Superior Court of New Jersey, Chancery Division, Burlington County, Docket Number C-16251-88E. (see supra). Thereafter, the debtor and Girard made a revised application to the Mt. Laurel Township Planning Board for preliminary approval of Phases II and III and hearings were held on May 26, 1988 and June 9, 1988. By reason of the delineation of wetlands by the Army Corps, the number of units covered under the Project was reduced as follows: 190 single family units reduced to 160 units, and 272 townhouses reduced to 177. (Letter Opinion at p. 5). The Planning Board resolution granting preliminary approval was adopted on June 23, 1988. By way of letter dated June 10, 1988, the Debtor and Mr. Girard indicated to Prisand, MLDA and UMFA, through respective counsel, their ability to deliver units, at a higher price of $34,000.00 per unit. That correspondence states in pertinent part: My client is willing to meet with you and your clients to negotiate a revised contract of sale based upon the new subdivision plan. The negotiations would be without prejudice to any party with respect to the pending lawsuit. With regard to the purchase price, my client is of the opinion that the Township will approve 340 units in the balance of the tract. Consequently, the price per unit is to be revised from $21,208.23 to $34,000.00. (Emphasis Added). On October 18, 1988 Judge Wells granted Prisand's motion for partial summary judgment for specific performance and denied the Debtor's and Mr. Girard's cross-motion for partial summary judgment excusing future performance of the Contract based on the doctrine of impossibility of performance. Specifically, Judge Wells' opinion provides as follows: Based on the contract it is clear that the Seller expressly assumed the risk that further necessary government approvals would not be granted. See Section 9.3 of the contract supra at 3. Specifically, the Seller represented and covenanted that `it has or will have by the initial closing all necessary final non-appealable government approvals required for the development of the premises [including] . . . stream encroachment permits.' The fact that the Seller did not in fact have or could not obtain all government approvals for the contracted property does not therefor entitle the Seller to excuse its performance since it was a foreseeable risk which was expressly assumed by the Seller. It was particularly foreseeable after November 1986 when the Seller knew that the DEP has reversed itself and was requiring Army Corps approval. Yet the Seller proceeded to close at the agreed price on the first 48 lots and reaffirmed its guaranty that all approvals were in hand or would be forthcoming. As to the Seller's argument that the contract is not enforceable because the subdivision plan to which it referred was vacated by Mount Laurel, the fact is that the seller has offered no proof that the new subdivision, which received preliminary approval in June 1988, was substantially 840 more costly per unit that the original plan. True, the June 1988 plan approved by Mt. Laurel represents a 17.8% reduction in the acreage and a 24% drop in the number of lots, but there were not minimums set forth in the contract triggering Seller's right to raise the per unit price or an excuse for non-performance. Indeed, it is inequitable to the buyer now after it has committed over $1 million to the project, for the Seller to pull out. In addition, the Court also finds that notwithstanding the Seller's assumption of the risk in this case, the decrease in available lots from 510 to 385 due to the Army Corps' wetlands determination and subsequent revised plan does not, as a matter of law, entitle the Seller to the defense of impossibility. * * * * * * In this case, the preliminary plans for the property following small revisions contemplated 510 lots. Under the new development plan, the amount of lots has been reduced by 125 lots. The fact remains that 76% of the original amount of lots are still available for conveyance. The sale of the property has not been made impossible. This is made evident by Seller's letters which seek a higher price. The fact that the Seller may derive less on the sale does not render the contract impossible. * * * * * * [T]he contract of sale dated September 15, 1986 is declared enforceable and the seller is ordered to specifically perform that portion of the contract concerning the conveyancing of land and the obtaining of government approvals in exchange for the amount of $11,568.23 per lot. This transaction should occur as soon as reasonably practical. The buyer retains all rights to sue for monetary damages under the contract which it suffers as a result of the improvements it undertakes to gain final approvals. (Letter Opinion at pp. 6-7, 10) (emphasis added). The decision of Judge Wells directing the transfer of the remaining 340 subdivided lots requires Gary Prisand to pay the Debtor approximately $3.95 million. The decision by its terms does not compel the debtor or Mr. Girard to perform the improvements to the remaining subdivided lots, as provided under the terms of the Contract. In accordance with Judge Wells' decision, a proposed form of order was submitted to Judge Wells under cover letter dated October 31, 1988 by Prisand. By way of letter dated November 3, 1988, the debtor objected to the form of order. On or about November 15, 1988, Ravick Corporation and Girard filed a motion for reconsideration of Judge Wells' decision. Judge Wells apparently set down both the return date on the motion for reconsideration and a hearing on settlement of the form of order for December 9, 1988. On November 18, 1988 Raymond L. Girard, in his capacity as president of Ravick Corporation, adopted the following corporate resolution pursuant to a "special meeting" held at the offices of his attorney, John W. Hargrave: IT IS HEREBY RESOLVED that the President of Ravick Corporation be and he is hereby authorized to execute and file on behalf of the corporation a Petition for Relief under Chapter 11 of the United States Bankruptcy Code for the district of New Jersey. IT IS FURTHER RESOLVED, that John W. Hargrave, Esquire is hereby retained to act on behalf of Ravick Corporation and to represent it in connection with such proceedings. On December 7, 1988, two days before the parties were scheduled to appear before Judge Wells in the New Jersey Superior Court, Ravick Corporation filed a voluntary Chapter 11 petition pursuant to the Bankruptcy Reform Act of 1978, as amended by the Bankruptcy Amendments and Federal Judgeship Act of 1984 as further amended by the Bankruptcy Judgeship, United States Trustee's and Family Farmer Act of 1986 (hereinafter "Bankruptcy Code"). On December 19, 1988, Judge Wells apparently ruled that Ravick's Chapter 11 filing did not stay the state court from 841 entering an order against the non-debtor Girard, consistent with its Letter Opinion. On that day, Judge Wells denied the non-debtor Girard's motion for reconsideration and directed counsel for Prisand to submit a form of order granting partial summary judgment as against the non-debtor Girard, which counsel did under cover letter dated December 20, 1988. On December 21, 1988, the debtor filed a motion with this court seeking authorization to reject the Contract entered into between the debtor and Prisand as an "executory contract" pursuant to 11 U.S.C. § 365(a)[2]. On December 21, 1988 the debtor filed an adversary proceeding in this court entitled Ravick Corporation v. Gary Prisand, Mt. Laurel Development Associates and Union Mill Farms Associates, Adversary No. 88-1089, titled "Verified Complaint for Injunctive Relief and to Object to Claim." By that complaint the debtor seeks an order of this court declaring that the debtor's further performance under the Contract be excused under the doctrine of impossibility and rejecting any claim Prisand may have pursuant to 11 U.S.C. § 365. By that same complaint the debtor, Ravick, seeks an injunction against Prisand continuing the prosecution of the state court action, including any action against the non-debtor Raymond Girard, pending further order of this court. On January 13, 1989 Prisand filed an Answer seeking dismissal with prejudice of the complaint, together with attorneys' fees and costs of suit. By its answer Prisand asserts the following separate defenses: (1) the complaint fails to state a claim upon which relief can be granted; (2) the court should abstain from accepting jurisdiction of the subject claims pursuant to 28 U.S.C. § 1334(c)(1) or (c)(2); (3) this court lacks jurisdiction over the subject matter of the complaint. Pursuant to the aforementioned complaint the debtor on December 21, 1988 filed an application for a temporary restraining order seeking an order temporarily restraining Prisand from proceeding with entry of judgment in the state court proceeding against Raymond Girard and setting a date for hearing on the debtor's application to continue the restraints until this court has passed on the debtor's motion to reject the Contract pursuant to § 365 and the aforesaid adversary proceeding. By way of letter dated January 4, 1989, Prisand notified this court that the parties agreed to adjourn the order to show cause without date and that the parties would engage in limited discovery. Counsel for Prisand also requested that the state court abstain from signing the proposed form of order submitted by Prisand. It appears that as of the date of the hearing on the instant matter, May 9, 1989, by agreement of counsel of Prisand and the debtor, an order as against Mr. Girard was not entered in the state court proceeding. Prisand's position in connection with this motion to dismiss Ravick's Chapter 11 petition is that the bankruptcy petition was filed in bad faith and that other "cause" exists for dismissal of the case pursuant to § 1112(b) including the inability to effectuate a plan and unreasonable delay prejudicial to creditors or for abstention and dismissal of the case pursuant to § 305; or alternatively, that the facts of this case establish the existence of "cause" warranting the modification of the stay pursuant to § 362(d) and abstention by this court pursuant to 28 U.S.C. § 1334(c)(1) from exercising jurisdiction over the pending adversary proceeding filed by Ravick against Prisand in this court and to grant relief from the automatic stay pursuant to § 362 to permit completion of the state court action. The debtor, on the other hand, argues that (1) the debtor's filing was done in good faith and that its ability to reorganize makes dismissal inappropriate; and (2) the 842 interests of all parties would best be served if the bankruptcy court does not abstain pursuant to 11 U.S.C. § 305 and does not permit completion of the state court action pursuant to 28 U.S.C. § 1334(c) or grant relief from the stay pursuant to 11 U.S.C. § 362. DISCUSSION Section 1112(b) of the Bankruptcy Code states: (b) Except as provided in subsection (c) of this section, on request of a party in interest or the United States trustee, and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title or may dismiss a case under this chapter, whichever is in the best interest of creditors and the estate, for cause, including (1) continuing loss to or diminution of the estate and absence of a reasonable likelihood of rehabilitation; (2) inability to effectuate a plan; (3) unreasonable delay by the debtor that is prejudicial to creditors; (4) failure to propose a plan under section 1121 of this title within any time fixed by the court; (5) denial of confirmation of every proposed plan and denial of a request made for additional time for filing another plan or a modification of a plan; (6) revocation of an order of confirmation under section 1144 of this title, and denial of confirmation of another plan or a modified plan under section 1129 of this title; (7) inability to effectuate substantial consummation of a confirmed plan; (8) material default by the debtor with respect to a confirmed plan; (9) termination of a plan by reason of the occurrence of a condition specified in the plan; or (10) nonpayment of any fees or charges required under chapter 123 of title 28. 11 U.S.C. § 1112(b). The legislative history of this section explains that: [s]ubsection (b) gives wide discretion to the court to make an appropriate disposition of the case when a party in interest requests. The court is permitted to convert a reorganization case to a liquidation case or to dismiss the case, whichever is in the best interest of creditors and the estate, only for cause. Cause may include . . . [the ten factors listed in § 1112(b)]. The list is not exhaustive. The court will be able to consider other factors as they arise, and to use its equitable powers to reach an appropriate result in individual cases. H.R.Rep. No. 595, 95th Cong., 1st Sess. 405-06 (1977), U.S.Code Cong. & Admin. News 1978, pp. 5787, 6361, 6362. Section 1112(b) does not define the term "cause" but instead sets forth a list of non-exclusive grounds which may constitute cause. See e.g., In re Victory Construction Co., 9 B.R. 549, 558-60 (Bankr.C.D.Cal.1981), vacated on other grds, 37 B.R. 222 (9th Cir. BAP 1989) ("cause" is any reason cognizable to the equity power and conscious of the court as constituting an abuse of the bankruptcy process). It is well established that a debtor's bad faith filing of a bankruptcy petition is sufficient "cause" to warrant dismissal of the case under § 1112(b). See also In re Waldron, 785 F.2d 936 (11th Cir.1986) (construing comparable sections under Chapter 13); Matter of Little Creek Development Co., 779 F.2d 1068, 1072 (5th Cir.1986); In re Albany Partners Limited, 749 F.2d 670, 674 (11th Cir.1984); Matter of Century City, Inc., 8 B.R. 25, 30 (Bankr. D.N.J.1980). Prisand contends that dismissal of Ravick's case under § 1112(b) is justified on the grounds that (1) the debtor filed its petition in bad faith; (2) the debtor cannot effectuate a reorganization plan pursuant to 11 U.S.C. § 1112(b)(2); and (3) the debtor's filing constitutes unreasonable delay prejudicial to creditors pursuant to 11 U.S.C. § 1112(b)(3). Since Ravick opposed the motion to dismiss, Prisand has the burden of proof on the issue of "cause." See 3 Collier Bankruptcy Manual, ¶ 1112.04 at p. 1112-17 (3d Ed.1987). Congress' grant of authority to the bankruptcy courts to dismiss chapter 11 petitions for "cause," and the requirement 843 of good faith, are intended to preserve the integrity of the bankruptcy process. Matter of Little Creek Development Co., 779 F.2d 1068, 1072 (5th Cir.1986). Dismissal of a case is appropriate where a case is not filed to achieve the valid, legitimate purposes of the rehabilitate provisions of Chapter 11. In re Randy Homes Corporation, 86 B.R. 259, 261 (Bankr.M.D.Fla. 1988). In determining whether bad faith exists, courts have focused on whether the particular circumstances of a case, viewed in their totality, evidence the debtor's intent to abuse the judicial process and the purposes of the reorganization provisions of the Code. In re Phoenix-Piccadilly, Limited, 849 F.2d 1393, 1394 (11th Cir. 1988); Century City, 8 B.R. at 33. In making such a determination, the facts and circumstances of the particular case must be examined and no one factor should be controlling. In re Kasdorf, 64 B.R. 294, 295 (Bankr.D.Colo.1986); see also Matter of Grieshop, 63 B.R. 657, 662-63 (N.D.Ind. 1986). The case of Little Creek, supra, identified a "conglomerate" of factors which have been considered in determining whether a bankruptcy case was filed in bad faith. The existence of certain of the factors identified by the Little Creek court may be considered in a motion to dismiss for "cause" including: The debtor has one asset, such as a tract of undeveloped or developed real property. The secured creditors' liens encumber this tract. There are generally no employees except for the principals, little or not cash flow, and no available sources of income to sustain a plan of reorganization or to make adequate protection payments pursuant to 11 U.S.C. §§ 361, 362(d)(1), 363(e), or 364(d)(1). Typically, there are only a few, if any, unsecured creditors whose claims are relatively small. The property has usually been posted for foreclosure because of arrearages on the debt and the debtor has been unsuccessful in defending actions againt the foreclosure in state court. Alternatively, the debtor and one creditor may have proceeded to a standstill in state court litigation, and the debtor has lost or has been required to post a bond which it cannot afford. Bankruptcy offers the only possibility of forestalling loss of the property. There are sometimes allegations of wrongdoing by the debtor or its principals. The "new debtor syndrome," in which a one-asset entity has been created or revitalized on the eve of foreclosure to isolate the insolvent property and its creditors, exemplifies, although it does not uniquely categorize, bad faith cases. Id. at 1072-73. In Little Creek, the Fifth Circuit emphasized that determining whether the debtor's filing is in good faith depends "largely upon the bankruptcy court's on-the-spot evaluation of the debtor's financial condition, motives, and the local financial realities." Id. at 1072. In that case the Fifth Circuit held that the bankruptcy court's finding that "cause" existed to lift the automatic stay pursuant to 11 U.S.C. § 362(d)(1) based solely on the remarks of counsel for the debtor that the bankruptcy petition was filed in order to escape the necessity of posting a substantial bond in an ongoing state court proceeding was clearly erroneous and that more evidence was necessary to support the bankruptcy court's conclusions. Id. at 1070. The Little Creek court reversed the bankruptcy court's judgment and the district court's judgment affirming the bankruptcy court order and remanded the matter with instructions. In remanding the matter, the Little Creek court noted: We do not, in reversing the bankruptcy court's somewhat hasty conclusion in this case, imply that a finding of lack of good faith would be improper after fuller consideration of the issue on remand. Unless facts appear in the record that clearly warrant a finding of bad faith, however, a debtor should ordinarily be given an opportunity to respond to a charge of abuse of the bankruptcy process. From the foregoing discussion, it should be clear that a debtor may not counter allegations of bad faith solely 844 with an attempt to relitigate the issues presented in its state court case. If the circumstances surrounding Little Creek's filing demonstrate that the goals of the bankruptcy laws cannot be fulfilled by permitting Little Creek to stave off foreclosure by Commonwealth, then it makes no difference whether Little Creek had, or has, a cause of action for damages against Commonwealth in state court. Additionally, as the issue of good faith arose during a hearing on a motion to lift the stay, Little Creek will not be permitted to undermine the expedited treatment of this motion, see 11 U.S.C. § 362(e), by interpreting the state court issues. See In re Johnson, 756 F.2d 738, 740 (9th Cir.), cert. denied, [474 U.S. 828], 106 S.Ct. 88, 88 L.Ed.2d 72 (1985); In re Born, 10 B.R. 43, 48-50 (Bankr.S. D.Tex.1981). The bankruptcy court was correct in striking the extrinsic state law defenses from the debtor's response to the motion to lift the stay. 779 F.2d at 1074. In the case of In re Apex Properties, Limited, Civil Action No. 88-0056 (D.N.J. May 6, 1988), the Honorable Mitchel H. Cohen, Senior Judge, United States District Court, relied upon the Little Creek decision in affirming an order of the Honorable Judith H. Wizmur, which granted dismissal of the chapter 11 involuntary bankruptcy petition filed against Apex Properties, Ltd. In that case the state court had issued an order dissolving Apex Properties, Ltd., a New Jersey limited partnership, and directing that its sole asset, a property in Atlantic City, be sold. One of the limited partners submitted an offer on behalf of a third party to purchase the property. The state court appointed receiver recommended the sale of the property to another party. The state court issued an order adopting the recommendation of the receiver. The limited partner obtained a temporary stay of the sale. At the time that the limited partner was required to post a $1.5 million bond to continue the stay, no bond was posted, instead an Involuntary Chapter 11 was filed against the limited partnership. Apex then filed a motion to dismiss the involuntary petition which was granted by the bankruptcy court. Judge Cohen found that: Apex has only one asset, the Atlantic City property; there are no employees and no ongoing business; the Mayflower property is to be sold by order of the state court; and, Shamy [the limited partner] has been required to post a bond to stay the sale pending appeal of the state court decision to the state appellate division. When the above-mentioned circumstances are present, [r]esort to the protection of the bankruptcy laws is not proper . . . because there is no going concern to preserve, there are no employees to protect, and there is no hope of rehabilitation, except according to the debtor's "terminal euphoria." Little Creek, supra, 779 F.2d at 1073. Id. at p. 16. Generally, where a debtor's reorganization effort involves essentially a two party dispute resolveable in state court, and the filing for relief under the Bankruptcy Code is intended to frustrate the legitimate efforts of creditors to enforce their rights against the debtor, dismissal for "cause" is warranted. See e.g., In re Brandywine Associates, Limited, 85 B.R. 626 (Bankr.M.D.Fla.1988). (Dismissal warranted where single asset debtor without direct employees or material unsecured creditors and with one secured creditor, sought to forestall foreclosure); In re Waldron, 785 F.2d 936 (11th Cir.1986) (Solvent debtors invoked the bankruptcy process to reject real estate option agreement to secure more profitable deal, and prevent creditor from seeking specific performance in state court); In re Randy Homes Corporation, 86 B.R. 259 (Bankr.M.D.Fla. 1988) (Debtor, whose sole asset is an undeveloped parcel of real property, generating no income and who had no employees or existing business operations and never made any attempts to develop the real property, filed petition to forestall state court foreclosure action); In re Noco, Inc., 76 B.R. 839 (Bankr.N.D.Fla.1987) (Court's dismissal of the bankruptcy petition 845 grounded in part on finding that the debtors were ". . . clearly attempting to use the reorganization process to litigate nonbankruptcy issues and to avoid the burdens of a contract . . ."); Matter of Young, 76 B.R. 376 (Bankr.D.Del.1987) (Dismissal warranted where the debtor filed a chapter 11 petition in an attempt to stop a court ordered award of specific performance). The facts in the case of In re Wally Findlay Galleries (New York), Inc., 36 B.R. 849 (Bankr.S.D.N.Y.1984) are strikingly similar to the facts now before the court. In that case, the debtor operated an art gallery under a franchise agreement with Wally Findlay Galleries International, Inc. (International) and a lease with Walstein C. Findlay Realty, Inc. (Realty) which were executed on October 1, 1980. At that time the debtor executed a promissory note in favor of International in partial payment of the franchise fee. As part of the transaction, International sold all of its outstanding stock to the Borynack Corporation. In partial payment for the stock Borynack Corporation executed a promissory note in favor of International for $96,000.00 payable in installments. Both notes provided for acceleration in the event of a default. James R. Borynack, the sole shareholder of Borynack Corporation guaranteed the obligations of the corporation. Ultimately the debtor and Borynack Corporation defaulted in payment of installments on their respective obligations. On February 4, 1983 the New York State Supreme Court granted International's motion for summary judgment in lieu of complaint on inter alia, the instruments above mentioned. On May 3, 1983 the state court entered a judgment obligating the debtor to pay $147,129.80 to International and obligating Borynack Corporation and James R. Borynack to pay the sum of $113,820.00 to International. On October 26, 1982 Realty terminated its lease with the debtor due to the nonpayment of the notes as an event of default under the lease. Thereafter, Realty filed a complaint in state court which included a cause of action for ejectment. On June 16, 1983, the state court granted Realty's summary judgment on this cause of action. On May 3, 1983, the same date as the court entered summary judgment on the notes, the debtor filed a voluntary Chapter 11 bankruptcy petition which stayed litigation with Realty. By application filed June 1, 1983 the debtor removed these actions to the bankruptcy court. The matter before the court in Wally was brought on by International and Realty seeking dismissal of the debtor's petition "for cause" pursuant to § 1112(b). The bankruptcy court concluded: It is clear that the debtor did not file its petition to reorganize, but rather as a litigating tactic in its dispute with International and Realty. The petition was filed the same day that judgments on the promissory notes were entered in the state court. See In re Ripples of Clear-view, Inc., 26 B.R. 453, 455 (Bkrtcy.E.D. N.Y.1983). Neither the debtor, the Borynack Corporation, nor Mr. Borynack has sufficient assets to post a bond in order to stay these judgments pending appeal. The debtor filed its petition herein to avoid the consequences of adverse state court decisions while it continues litigating. This court should not, and will not, act as a substitute for a supersedeas bond of state court proceedings. The debtor also seeks to use this court as an appellate forum to review the state court's grant of summary judgment on the notes in the context of a lease assumption. Pursuant to 11 U.S.C. § 365, in order for an unexpired lease to be assumed, defaults must be cured, or adequate assurance of prompt cure must be provided. Id. at 851. In response to the debtor's proposal to cure the defaults under its lease with Realty and the nonpayment of franchise fees by litigating its claim that International and Realty conspired to devalue the debtor's franchise in order to recapture the lease, the Wally court found: Justice Fraiman of the New York State Supreme Court granted summary judgment on the notes, rejecting the debtor's assertion of meritorious counterclaims based on the alleged conspiracy. He denied the debtor's motion to renew or reargue. It is not this court's function to 846 review a state court grant of summary judgment. See In re Pagoda International, Inc., 26 B.R. 18, 21 (Bankr.D.Md. 1982). Id. The Wally case is instructive on the proposition that a debtor's employment of litigation tactics, such as the use of the bankruptcy forum for purposes other than reorganization, constitutes "cause" for dismissal within the meaning of 11 U.S.C. § 1112(b). The Eleventh Circuit in the case of Phoenix Piccadilly Ltd., 849 F.2d 1393 (11th Cir.1988) affirmed four orders of the bankruptcy court affirmed by the district court of which three orders granted relief from the automatic stay to three secured creditors and from an order dismissing the Chapter 11 case. In that case the bankruptcy court had made a finding that the petition was not filed in good faith but rather for the purpose of delaying and frustrating the efforts of secured creditors to enforce their rights in the subject property. The property was comprised of four phases known as Phases I, II, III and IV. The three secured creditors separately held first mortgage liens on all four phases. An additional party held a note which was secured by a "wraparound" mortgage encumbering the entire property. On June 19, 1987 mortgage foreclosure proceedings were instituted by one of the three secured creditors. On June 29, 1987 an order was entered in the state court action appointing a receiver for Phase III of the property. The debtor filed its Chapter 11 petition on November 19, 1987, the day before a hearing in the state court action to appoint a receiver for the other three phases of the property. All three secured creditors filed motions for relief from the automatic stay and subsequently filed motions to dismiss the Chapter 11 case. The Eleventh Circuit noted that while there is no particular test for determining whether a debtor has filed a petition in bad faith, "the courts may consider any factors which evidence `an intent to abuse the judicial process and the purposes of the reorganization provisions' or, in particular, factors which evidence that the petition was filed `to delay or frustrate the legitimate efforts of secured creditors to enforce their rights.'" Id. at 1394 (citation omitted). The Eleventh Circuit held that the bankruptcy court's finding of bad faith was supported by the record where the court found that: (i) The Debtor has only one asset, the Property, in which it does not hold legal title; (ii) The Debtor has few unsecured creditors whose claims are small in relation to the claims of the Secured Creditors; (iii) The Debtor has few employees; (iv) The Property is the subject of a foreclosure action as a result of arrearages on the debt; (v) The Debtor's financial problems involve essentially a dispute between the Debtor and the Secured Creditors which can be resolved in the pending State Court Action; and (vi) The timing of the Debtor's filing evidences an intent to delay or frustrate the legitimate efforts of the Debtor's secured creditors to enforce their rights. 849 F.2d at 1394. In so ruling the Eleventh Circuit noted that the possibility of a successful reorganization cannot transform a bad faith filing into one undertaken in good faith: Because the bankruptcy court found that a bad faith filing had occurred, it properly did not change the consequences of that finding simply because of the debtor's possible equity in the property or potential for successful reorganization. We reject the debtor's argument that the bankruptcy court cannot ever dismiss a case for bad faith if there is equity in the property because the presence of equity indicates the potential for a successful reorganization. Rather, as this Court stated in In re Natural Land [825 F.2d 296 (11th Cir.1987)]: the taint of a petition filed in bad faith must naturally extend to any subsequent reorganization proposal; thus, any proposal submitted by a debtor who filed his petition in bad faith 847 would fail to meet section 1129's good faith requirement. 825 F.2d at 298. 849 F.2d at 1395. In this case, the debtor corporation was formed for the purpose of dividing and developing the Property. (Girard Dep. at 62). Except for the utilization of professionals, including engineers, planners and attorneys, Ravick Corporation has no employees except for Girard, who is also its sole officer, shareholder and employee. (Girard Dep. at 8). The debtor has no cash flow, and no source of income, except for cash generated by disposal of portions of the Property. (Girard Dep. at 47-48). Nor does the debtor own or lease any machinery, office equipment or automobiles (Girard Dep. at 13-14). The debtor does not produce any goods or perform any services; it maintains no inventory, has no accounts receivable and it does not maintain financial statements (Girard Dep. at 46-48). Moreover, it appears that at the time of the bankruptcy filing the debtor was not a party to any formal legal proceedings aside from the state court action before Judge Wells. (Girard Dep. at 16). The debtor's bankruptcy petition indicates that the Ravick Corporation has only one secured creditor, Mainstay Federal Savings & Loan Association, which, according to the debtor's schedules, holds a first mortgage on 85.626 acres of the Property to secure the payment of $2,001,705.00 (See Schedule A-2). At the May 9, 1989 hearing on the instant motion, counsel for Mainstay Savings & Loan Association represented that Mainstay had failed to receive interest payments due from the debtor since June 1988 and that as of March 31, 1989 Mainstay was due from the debtor the total sum of $2,163,673.10 comprising principal of $1,944,027.76, past due interest of $199,598.28 and an extension fee of $20,047.06. The debtor's Schedule A-3 lists its unsecured creditors, other than Prisand,[3] as follows: (1) DeFalco & Bisconti, (for a claim in the amount of $8,936.00); (2) First Indemnity of America Insurance Company (for contingent liability on two construction bonds; amount of claim listed as $1.00 on debtor's Schedule A-3); (3) Lord, Anderson, Worrell, Barnett (for a claim in the amount of $1,520.00); and (4) Mat'l Engrg. & Testing Service (for a claim in the amount of $2,416.40). In sum, the class of unsecured creditors other than Prisand total four, the aggregate amount of which is $12,873.40. The claims of unsecured creditors are clearly relatively small in connection with the other claims. In the "Debtor's Opposition to Application of Gary Prisand" the debtor asserts that at the time of the filing the debtor was encountering problems with its primary lender, Mainstay Federal Savings & Loan Association for payment of $37,943.38 in interest, together with the sum of $3,000.00 for the costs of an appraisal, and that payment of same would have exhausted nearly all the funds of the debtor. (See Debtor's Opposition to Application for Prisand at ¶ 57). In support of this proposition the debtor presents two separate letters which the debtor received in September 1988 and November 1988. On September 28, 1988 Raymond Girard, as President of the debtor received a letter from Frank P. Sullivan, of RAM Mortgage Investors, Inc. which stated: Pursuant to our meeting of September 2, 1988, we anxiously await the outcome of your lawsuit with Gary Prisand. Please be advised however, that as the month comes to a close an interest payment must be made. Mainstay Federal has been extremely patient while you have worked through your problems and will continue to work along with you be it to restructure the loan or whatever. They must receive some interest in order to get the loan current, which helps to facilitate their ability to work with you. 848 Please feel free to contact me should you have any questions or comments. Very truly yours, FRANK P. SULLIVAN (See Debtor's Exhibits, Exhibit J). On November 2, 1988 Mr. Girard, again as President of the debtor received the following letter from James L. Stites, Senior Vice-President of Mainstay Federal Savings & Loan Association which stated: Enclosed please find your most recent interest billing indicating a payment of $37,943.38 due. Also, enclosed please find the copy of TMR Appraisal Services bill for $3,000.00, which has been charged to your loan balance. Kindly advise me as to the status of his project. Has the court made final judgment concerning the Prisand Contract? When can we expect this project to move forward toward completion? We are anxious, as we are sure you are to resolve the problems holding up progress of this development. Very truly yours, James L. Stites Senior Vice President (See Debtor's Exhibits, Exhibit K). Notwithstanding Mainstay's request for payment, nothing in the record before this court indicates that at the time the petition was filed, creditors were pressing the debtor to take any action.[4] Most significantly, the record indicates that the debtor and/or Girard filed its chapter 11 petition in order to (1) avoid the Ravick-Prisand contract and liquidate the Property (Girard Dep. at 48); (2) avoid personal liability on the part of Girard on the Mainstay loan and the Prisand Contract (Girard Dep. at 95-97); and (3) avoid entry of an order by Judge Wells granting Prisand partial summary judgment against the debtor on the issue of specific performance on the Contract (Debtor's Opposition to Application at ¶ 2). The very timing of the petition in this case, just two days before the return date on the debtor's and Girard's motion for reconsideration in the state court action, makes the debtor's motives suspect. See e.g. Century City, 8 B.R. at 33. This court cannot sanction the debtor's use of the bankruptcy court as a litigation tactic. See e.g. Wally, supra, 36 B.R. 849. Ravick claims that it comes into this bankruptcy proceeding with four assets which it wishes to utilize to reorganize. The assets, according to Ravick, include: (1) Approximately 67 acres located in Mt. Laurel, New Jersey for which preliminary approval has been obtained to construct 341 living units. The debtor values this "asset" at $7,949,991.00. This is real property which is the subject of the Prisand Contract. (2) Two vacant lots with final Township approval valued at $90,000.00. (3) A vacant parcel of land consisting of 6.4 acres and valued at $600,939.00. (4) A Contingent unliquidated claim against the United States Government for the "taking" which resulted from the classification of 18.5 acres of the Property as wetlands. This cause of action was valued at $1.00. (See Debtor's Opposition to Application of Prisand, ¶ 1). Ravick claims that it made a good faith decision to use the bankruptcy process to maximize the value of its assets. Ravick believes that it can realize at least $6,639,000.00 from the liquidation of these four assets and that it can then make an outright distribution to creditors. This distribution is based upon a total valuation of assets of $8,640,931.00 less the lien of Mainstay calculated at $2,001,000.00. (See Debtor's Opposition to Application of Prisand at ¶ 3). The debtor relies upon a real estate appraisal dated October 6, 1988 performed by TMR Appraisal Services, Inc., for Mainstay Federal Savings & Loan Association, which indicates a Market Value as of September 28, 1988 for real property identified as Block 904, Lots 1 and 2 of $8,040,000.00. (See Debtor's "Exhibit A"). The debtor also asserts that with regard to 849 its claim against the United States Government for compensation resulting from the taking caused by classification of 18.5 acres of the debtor's land as wetlands while the likelihood of recovery is uncertain at this time, the debtor stands to recover approximately $2,114,000.00 which will also be utilized to fund its plan. (See Debtor's Opposition to Application of Prisand at ¶ 4). Of course, this plan would require a decision by this court to release Ravick from its obligation to Prisand under the Contract pursuant to 11 U.S.C. § 365. In an affidavit filed on May 2, 1989 Girard states with regard to "Options Available to Ravick Corporation in Formulating a Plan of Reorganization": 1. Ravick Corporation has not and will not seek a new purchaser for the land which is the subject of the Prisand contract unless the Court rules favorably on Debtor's Motion to reject that contract. 2. Ravick Corporation has been approached by at least one regional developer who would like to purchase this property. 3. Again, assuming the Court does allow Ravick to reject the contract of Gary Prisand, Debtor does have an option other than an outright sale of its land. 4. Ravick Corporation could undertake the construction and sale of townhouses/residences on Debtor's land, either by itself or as a joint venture with another entity. 5. Residences in this development which have been constructed by Gary Prisand are now selling at prices between $165,000.00 and $235,000.00 each. 6. It is clear that this option could result in sufficient proceeds to pay creditors in full and allow Ravick to continue in business. (See Affidavit at ¶ 10-15). This court rejects the debtor's position in this matter for at least two reasons. First, the fact that a tract of property, such as the one at issue, has been subdivided, does not mean that more than one asset has been created. In this case, all of the property of the debtor's estate is the subject of the Ravick-Prisand contract except for (a) two vacant lots, and (b) a vacant parcel consisting of 6.4 acres. Second, ultimate resolution of this matter would force this court to decide issues already determined by Judge Wells in the state court action including the debtor's claims that it was a "victim" of both the Army Corps' wetlands determination and the New Jersey Supreme Court's decision in the Mount Laurel case. Judge Wells expressly found, inter alia, that (1) Ravick's performance under the Agreement was not excusable since failure to obtain government approvals for the contracted property was a foreseeable risk which Ravick expressly assumed; and (2) the decrease in the number of lots due to the Army Corps' wetlands determination does not entitle Ravick to the defense of impossibility. These findings undercut the thrust of Ravick's position that final approval for the balance of the development from the Mt. Laurel Township Planning Board was a condition precedent to completion of the subject Agreement. (See Girard Affidavit, filed May 2, 1989, at ¶ s 31-34). Ravick Corporation is a classic example of the "new debtor syndrome" described by the Honorable Edith Hollan Jones for the Fifth Circuit in the Little Creek Development case. "The `new debtor syndrome,' in which a one-asset entity has been created or revitalized on the eve of foreclosure to isolate the insolvent property and its creditors, exemplifies, although it does not uniquely categorize, bad faith cases." 779 F.2d at 1073 (citations and footnote omitted). All of the foregoing leads this court to conclude that Ravick Corporation's true motives in filing its Chapter 11 petition were not rehabilitative but were to utilize the bankruptcy court as a means of renegotiating the terms of its Contract with Prisand, in view of what the debtor believes to be the increased value of the property since the execution date of the Contract, and the possibility of securing a purchaser that would enhance the debtor's ultimate profit on the Property. In this regard the court notes that "the bankruptcy laws are intended 850 as a shield not a sword." Waldron, 785 F.2d at 940. The debtor's alleged actions in aid of reorganization and its preliminary plan of reorganization, not yet submitted to the court, do not undermine the court's finding that Ravick's motives in filing were not rehabilitative. Girard represents to the court that since the filing of the petition, Ravick secured a renewal extension to December 19, 1989 of its stream encroachment permit from the State of New Jersey Department of Environmental Protection. (Girard Supplemental Affidavit, filed May 9, 1989, at ¶ 2). The debtor further represents that it has a loan commitment from Mainstay Federal Savings & Loan Association for an additional $1 million which it can use to finance its business plan (Debtor's Opposition at ¶ 24). Ravick proposes (1) to sell or develop the 6 acre parcel of property adjacent to the land which is the subject of the Prisand Contract, which has been listed for sale at a price of $675,000.00 (Debtor's Opposition at ¶ 13 and ¶ 19); (2) to construct and sell housing units on the 2 lots reserved from the first closing and the approximately 341 lots which are the subject of the Prisand Contract either on its own or as a joint venture with another entity (Debtor's Opposition at ¶ 20); (3) to pursue a claim against the United States for compensation for the "taking" of property; and (4) to seek rejection of the executory contract with Prisand. To begin with, the Contract at issue requires transfer of developed units and valid permits the actions taken by the debtor in this regard are contractual obligations, not actions in aid of reorganization. Moreover, the debtor's plans with respect to the possible sale of the Property to potential third party buyers, based upon a successful rejection of the executory contract, bolster this court's finding that the debtor's intent behind filing its petition was to avoid the Prisand Contract and obtain enhanced profit. The fact that Ravick plans at this time to also pursue a claim against the United States does not negate this court's findings. In addition to the foregoing, the court rejects Ravick's argument that this case is factually distinguishable from a typical two-party dispute on several grounds including that Mainstay Savings & Loan Association holds a first mortgage on 85.626 acres of the Property. This court recognizes that bankruptcy petitions arising out of two party disputes do not per se constitute a bad faith filing. In re Stolrows, Inc., 84 B.R. 167, 171 (9th Cir. BAP 1988) citing In re Hulse, 66 B.R. 681, 683 (Bankr.M.D.Fla.1986). However, the court cannot disregard the other factor indicative of Ravick's misuse of the Bankruptcy Code's reorganization provisions, including the clear intent of the debtor and Girard to avoid liability on the Contract; the timing of the filing of the Chapter 11 petition; and the debtor's unsecured debt relative to its entire estate; Girard's position as sole employee, officer and shareholder of Ravick Corp. The very essence of a determination of good faith in the context of a motion to dismiss is the cumulative impact of the particular facts of a case. The fact that Mainstay maintains a first mortgage on the Property due to construction financing simply does not suffice to show that dismissal is unwarranted. Finally, the debtor relies heavily on the case of In re Marina Enterprises, Inc., 14 B.R. 327 (Bankr.S.D.Fla.1981) in support of the proposition that single asset debtors have been allowed to continue chapter 11 proceedings. In Marina, the debtor's sole asset was an undeveloped tract of real estate subject to a lease requiring the debtor, as lessor to construct an 18-story building to be used as a casino and hotel. The petition was filed on January 28, 1981, immediately following a partial summary judgment of foreclosure of a purchase money mortgage on January 27, 1981. After filing its Chapter 11 petition, the debtor, as lessor filed an application with the bankruptcy court for an order rejecting and disaffirming the lease on the subject property between itself as lessor and lessee, Casino by the Sea Corporation ("Casino"). Casino filed an answer to the debtor's application and also filed a motion to dismiss the Chapter 11 proceeding to transfer 851 venue to the Bankruptcy Court for the District of New Jersey. The bankruptcy court denied the motion to dismiss, noting that: It is true that the debtor has no business or going concern value. However, it does have its equity in the subject property on which a successful reorganization might be predicated. The court cannot prejudge whether or not a successful and confirmable plan of reorganization will be submitted. The issue of equity in its assets will be explained more fully below when the issue of rejection of the lease is considered. Id. at 331. The Marina court rejected the Casino's assertion that the debtor's utilization of the bankruptcy process and particularly its effort to reject the lease which Casino held on the subject property was an improper use of the bankruptcy process. The court stated: "The experience of this court is that most of the business debtors which come to it do so as a result of undercapitalization and poor business judgment in the past." Id. In addition, the Marina court denied Casino's motion to transfer venue and permitted rejection of the contract pursuant to 11 U.S.C. § 365, finding that "there could be no realistic anticipation of successful reorganization or rehabilitation without rejection of the lease." Id. at 333. The court recognized that (1) the rent the debtor was to receive would not even cover debt service much less give a realistic return on investment; (2) the debtor was unable to obtain construction financing because of the "improvident lease"; and (3) under the facts in that case the debtor-in-possession was entitled to reject the subject lease in the exercise of its business judgment. Id. This court rejects Ravick's reliance on the Marina case. Rejection of the lease in that case served a useful purpose for the debtor which was financially troubled and who could not obtain the financing required to complete the lease terms. "In [Marina], rejection was permitted to serve the intended purpose of chapter 11 to facilitate the adjustment of debts through reorganization." Waldron, 785 F.2d at 940. The record before this court clearly and unambiguously establishes that the debtor herein simply seeks to renegotiate the original Contract with Prisand, and to essentially relitigate issues decided by the state court. In sum, this court finds that the Ravick's filing of its chapter 11 bankruptcy petition was not done in "good faith" but rather for an improper purpose and hereby grants Prisand's motion to dismiss the bankruptcy for "cause" pursuant to 11 U.S.C. § 1112(b). As a result, the court finds it unnecessary to reach the issues of (1) whether the debtor can effectuate a reorganization plan; (2) whether Ravick's filing caused undue delay to creditor; and (3) whether abstention is appropriate in this case or in the pending adversary proceeding.[5] 852 An order in conformance with this opinion shall be submitted to the court. NOTES [1] The court notes that its findings involve in part consideration of affidavits. The court in In re Apex Properties, Ltd., Civil Action No. 88-0056 (D.N.J., May 6, 1988) noted: It is axiomatic that affidavits constitute proper evidence on motions. Fed.R.Civ.P. Rule 43(e). More specifically, a court may rely upon affidavits on a motion to dismiss. See Young v. Garrett, 149 F.2d 223, 225 n. 1 (8th Cir.1945); Lucking v. Delano, 129 F.2d 283, 285 (6th Cir.1942); Central Mexico Light & Power Co. v. Munch, 116 F.2d 85, 87 (2nd Cir.1940); American Ins. Co. v. Bradley Mining Co., 57 F.Supp. 545, 547 (N.D.Cal.1944)). Op. at p. 9. Fed.R.Civ.P. Rule 43(e) is made applicable to cases under the Bankruptcy Code by Bankruptcy Rule 9017. [2] Title 11 U.S.C. § 365(a) provides: (a) Except as provided in sections 765 and 766 of this title and in subsections (b), (c), and (d) of this section, the trustee, subject to the court's approval, may assume or reject any executory contract or unexpired lease of the debtor. [3] Prisand is listed as an unsecured creditor having the following claims: (1) Advanced payment for buildings lots $100,000.00 (2) Breach of Contract Debtor intends to seek determination that contract with Prisand is void. Claim is contingent and unliquidated. $1.00 [4] Since that time, Mainstay on May 11, 1988 filed a motion for relief from the automatic stay, which is pending before this court. [5] It is self evident that, as a general rule, the dismissal of a bankruptcy petition results in the concomitant dismissal of all pending adversary proceedings. In re Stardust Inn, Inc., 70 B.R. 888, 890 (Bankr.E.D.Pa.1987); In re Pocklington, 21 B.R. 199, 202 (Bankr.S.D.Cal.1982). This is particularly true of adversary proceedings which are "related" to the bankruptcy case pursuant to 28 U.S.C. § 157(c)(1) since the related proceeding can only be heard by a bankruptcy court because of its nexus to the debtor's bankruptcy case. See Stardust Inn, supra, 70 B.R. at 890. See generally, Pacor v. Higgins, 743 F.2d 984 (3d Cir.1984). Cf. In re Lake Tahoe Land Co., Inc., 12 B.R. 479 (Bankr.D.Nev.1981) (bankruptcy court maintained jurisdiction over adversary proceeding after underlying bankruptcy proceeding dismissed where the statute of limitations for creditor to file action to recover a deficiency judgment in state court lapsed). Accordingly, dismissal of the Chapter 11 bankruptcy petition herein results in dismissal of Adversary Proceeding No. 88-1089 entitled Ravick Corporation v. Gary Prisand, Mt. Laurel Development Associates and Union Mill Farms Associates. In the case of Matter of Solar Equipment Corp., 19 B.R. 1010 (W.D.La.1982) the District Court for the Western District of Louisiana held that, upon dismissal of the debtor's bankruptcy petition, the bankruptcy court relinquished subject matter jurisdiction to continue the automatic stay provisions of § 362, and to make a determination of the debtor's tax liability pursuant to § 505. This rationale applies with equal force to the debtor's motion, filed December 21, 1988, to reject the contract entered into between the debtor and Prisand pursuant to 11 U.S.C. § 365. Accordingly, the court having dismissed the debtor's bankruptcy petition, hereby relinquishes subject matter jurisdiction to decide the debtor's pending § 365 motion.	{ "pile_set_name": "FreeLaw" }
811 F.Supp. 294 (1993) Dorothy NEWKIRK, Plaintiff, v. Louis SULLIVAN, Secretary of Health and Human Services, Defendant. No. 91-CV-75829-DT. United States District Court, E.D. Michigan, N.D. January 19, 1993. 295 Jeffrey G. Nutt, Candace Crowley, County of Wayne Neighborhood Legal Services, Detroit, MI, for plaintiff. Elizabeth J. Larin, E.D. Michigan, Detroit, MI, for defendant. ORDER ACCEPTING REPORT AND RECOMMENDATION HACKETT, District Judge. The Court has reviewed the file and the Magistrate Judge's Report and Recommendation submitted herein and any timely objections filed thereto. The proposed Report and Recommendation is hereby accepted and entered as the findings and conclusions of the Court; Now, therefore, IT IS ORDERED that Defendant's Motion for Summary Judgment is hereby DENIED, the Motion for Summary Judgment of Plaintiff is hereby GRANTED and the case remanded to the Secretary for computation of benefits. LET JUDGMENT BE ENTERED ACCORDINGLY. STEVEN D. PEPE, United States Magistrate Judge. REPORT AND RECOMMENDATION Plaintiff Dorothy Newkirk has brought this action under 42 U.S.C. § 405(g) to challenge a final decision of defendant Secretary denying her application for Supplemental Security Income (SSI) Benefits. Both parties have filed summary judgment motions, which have been referred to me for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). Plaintiff applied for SSI benefits on February 2, 1990, claiming disability as of May 1, 1975, due to "seizures, liver, kidney, nerves" (R. 68-71). Her application was denied initially (R. 72-77) and on reconsideration (R. 78-85). On September 20, 1990 and December 12, 1990, administrative hearings were conducted by Administrative Law Judge Jesse Butler ("ALJ"). The first hearing was adjourned, apparently because the plaintiff was unrepresented and was unable to understand all the medical information filed in her case (R. 29-32). At the second hearing, however, plaintiff testified accompanied by a paralegal, Yvonne Johnson Taylor (R. 33). Dr. Lois Brooks, a vocational expert ("VE"), also testified (R. 33). On February 25, 1991, Judge Butler issued his decision finding plaintiff not disabled (R. 7-17). The Appeals Council upheld this decision on September 9, 1991 (R. 3-4). BACKGROUND Plaintiff was born in June 9, 1943 and was 47 years old at the time of the ALJ's decision (R. 37). She has not completed high school, although the record is unclear as to which grade she did complete. At one point, plaintiff indicated she finished the ninth grade (R. 90), while at other times 296 she states she finished the eleventh (R. 38-39, 128). Plaintiff moved to Detroit in 1975 (R. 39) and worked for a few years, first as a bartender (R. 41) and then as a second cook (R. 40). She last worked in 1978 or 1979 (R. 44). She evidently left her job due to extreme weakness and dizziness (R. 44). Plaintiff received ADC payments until her son turned 18, and then she was switched to general assistance (R. 45). Administrative Law Judge's Decision The ALJ found that plaintiff had not engaged in any substantial gainful activity since February 1990, and that she suffers from the impairments of a schizoaffective disorder, severe osteoarthritis, and alcoholism (R. 12). Judge Butler also concluded that these impairments, singly or in combination, do not meet or exceed any on the Listing of Impairments (R. 12). These impairments do, however, make it impossible for claimant to perform her past relevant work (R. 13). Despite the fact that plaintiff does not have any transferable work skills, the ALJ did feel she retained the residual capacity to do a limited range of sedentary work, involving simple, repetitive tasks (R. 13). The ALJ rejected plaintiff's testimony regarding the extent of her pain as not fully credible (R. 13). Using the Medical Vocational Guidelines, and the testimony of a vocational expert, Judge Butler found that plaintiff could perform a significant number of jobs which exist in the national economy (R. 13). Consequently, he ruled that plaintiff was not disabled under the Social Security Act (R. 13). I asked plaintiff's counsel to state with specificity those areas of the ALJ's opinion that were incomplete, inaccurate, or mischaracterized the evidence. A copy of the Administrative Law Judge's findings of fact, as supplemented by the comments of plaintiff's counsel, is included in plaintiff's motion for summary judgment. The Administrative Law Judge's Report with counsel's annotations, as well as the statement of facts in support of the Secretary's motion for summary judgment, provide an adequate summary of the facts and plaintiff's medical history for purposes of this review. ANALYSIS Standard of Review In adopting federal court review of Social Security administrative decisions, Congress limited the scope of review to a determination of whether the Secretary's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Sherrill v. Secretary of HHS, 757 F.2d 803, 804 (6th Cir.1985). Substantial evidence has been defined as "[m]ore than a mere scintilla," it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). Furthermore, the Secretary's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.1984)). The substantial evidence standard presupposes that there is a "zone of choice" within which the Secretary may proceed without interference from the courts. Id. If the Secretary's decision is supported by substantial evidence, a reviewing court must affirm. Kirk v. Secretary of HHS, 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983); Studaway v. Secretary of HHS, 815 F.2d 1074, 1076 (6th Cir.1987). In this case, the issue is whether there is substantial evidence to support the ALJ's finding that plaintiff retains the residual function capacity to perform a limited range of sedentary work. Plaintiff's attorney advances several arguments as to why the ALJ's decision is not supported by substantial evidence and should be overturned: 1) The ALJ's statement of the medical evidence is incomplete and misleading; 2) The ALJ should have considered plaintiff's chronic alcoholism as a separate 297 basis for a determination of disability; and 3) Plaintiff suffers from non-exertional impairments, and thus it was erroneous for the ALJ to rely on the grid in making his disability determinations. I agree that the ALJ's decision that plaintiff can do simple, repetitive work is not supported by substantial evidence. Consequently, plaintiff's motion for summary judgment should be granted. Plaintiff is correct that application of the grid to direct a finding is improper when the claimant is incapable of performing a full range of work at a given exertional level. See, e.g., Cole v. Secretary of HHS, 820 F.2d 768, 772 (6th Cir. 1987); Gibson v. Heckler, 762 F.2d 1516, 1521 n. 7 (11th Cir.1985) (where claimant could neither sit nor stand for more than four hours in an eight hour day, the grids would be "grossly overinclusive" with respect to claimant's residual functional capacity and hence use of the grids even as a "frame of reference" would be inappropriate); Wages v. Secretary, 755 F.2d 495, 498-99 (6th Cir.1985); Kirk v. Secretary of HHS, 667 F.2d 524, 528-29 (6th Cir.1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). In the present case, however, the ALJ acknowledged that plaintiffs' nonexertional limitations preclude her from performing a full range of sedentary work (Finding 11, R. 13), and he uses the grid in Finding 10 only as a framework for decision-making (R. 13). The ALJ took testimony from a VE,[1] and he used that testimony as the basis for his finding that plaintiff is not disabled (R. 13). If the Secretary seeks to rely on VE testimony to carry his burden of proving the existence of a substantial number of jobs that plaintiff can perform, other than her past work, the testimony must be given in response to a hypothetical question that accurately describes plaintiff in all significant, relevant respects; for a response to a hypothetical question to constitute substantial evidence, each element of the question must accurately describe the claimant.[2] A response to a flawed hypothetical question is not substantial evidence and cannot support a finding that work exists which the plaintiff can perform. In this case, the ALJ found that plaintiff could not return to her past relevant work. Thus, the burden of proof has shifted to the Secretary to demonstrate that there are other jobs in the national economy which plaintiff can perform.[3] The primary issue for review, then, is whether the ALJ's hypothetical question to the VE accurately described the plaintiff, so that the VE's response constitutes substantial evidence to uphold the ALJ's decision. In the present case, the ALJ's hypothetical question to the VE was broken into several parts as follows: ALJ: Let's assume that I found that Mrs. Miss Newkirk could walk a half a block that she says she can do before she has to stop and catch her breath for a five or 10-minute period, she can stand for 15 to 20 minutes and could sit for approximately 30 minutes as she indicated, and while we were not able to get some poundage in terms of weight it would appear from the bucket the fivegallon 298 container that she talked about being approximately half full, would fall within the light category of 10 to 20 pounds, and if I made this a finding on the basis of the evidence in this case would that permit her former work? VE: No. ALJ: Would there be any other unskilled jobs of the low stress variety that you can identify, and if so, what and in what numbers do they exist if at all in this general geographic region? VE: Within that hypothetical would have to put her at a sedentary level job, exertional level, and approximately 12,000 of the various industrial assembly, sorting, packaging [sic]. ALJ: If I found that Mrs. Miss Newkirk experiences the give-away weakness in the right leg as described here today so that certainly we would have to have her to avoid unprotected heights, climbing and being around dangerous or moving machinery, with that problem would that affect the jobs or the numbers? VE: I would say within that could only do the sedentary jobs [sic]. (R. 62-63). The VE then went on to testify that if any of plaintiff's three major complaints drowsiness, dropping things, and depression were true, plaintiff would be disabled from any work (R. 63-65). While these hypothetical questions, with the exception of the three factors just listed, do account for plaintiff's physical limitations, they do not adequately account for plaintiff's mental impairments. The only reference made by the ALJ to these mental impairments during his questioning of the VE occurred early in that questioning: ALJ: There is an indication in the record here that there is the absence of a significant exertional impairment but there is an emotional problem that prevents Mrs. Miss Newkirk from doing things other than simple repetitive type tasks and they should be of a limited or low stress variety and if that were my finding on the basis of the evidence in this case, would she be able to do her former work? (R. 62). For reasons stated below, the ALJ did not adequately account for plaintiff's mental condition in reaching his conclusion that she could do simple, repetitive tasks. In his written opinions, the ALJ addresses the plaintiff's mental condition in two primary paragraphs. In those paragraphs, he states: The record as a whole fails to support the extent of severe pain and other functional limitations, including a nervous or emotional condition, which would preclude her from performing at least work at the sedentary level. Consequently, in light of the vocational testimony, the claimant cannot be found to be disabled through the date of this decision. . . . . . The claimant was examined by a psychiatrist on behalf of the Administration in March, 1990 (Exhibit 10). The psychiatrist, Jean Alce, M.D., reported that the claimant complained of bad nerves as she expressed at the hearing but with findings showing depression as opposed to anxiety or the like. The claimant did have some anxiety. Dr. Alce indicated that the claimant again denied that she does not drink alcohol [sic]. The claimant was also reported to spend her day reading the bible, taking her medications, she cooks for herself, attends church every Sunday and socializes with her son. The claimant also was reported to enjoy fishing and gardening, although not involved in those activities at the time of the examination (as the examination was in early March, 1990, with the weather not conducive to these activities). Memory was reported to be slightly impaired with a small fund of information. The diagnosis was for a schizo-affective disorder. (R. 10). Attached to the ALJ's decision is an OHA Psychiatric Review Technique Form, which was signed by the ALJ. According to this form, plaintiff often experiences "deficiencies of concentration, persistence or pace resulting in failure to complete tasks in a timely manner (in work settings or elsewhere)", and one or twice had "episodes of deterioration or decompensation 299 in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors)" (R. 17). In both of these categories, if plaintiff was evaluated at one level higher, i.e., "frequent" for the first category or "repeated (3+)" for the second category, plaintiff would have satisfied the Listing of Impairments, which would render her automatically disabled (R. 17). Plaintiff received these same ratings at two other points in the review process. The first was on March 19, 1990 (R. 140) and the second was on June 15, 1990 (R. 163). Plaintiff has objected to the ALJ's characterization of Dr. Alce's report on several grounds, two of which are of primary importance. First, plaintiff asserts that she "suffers from more than merely `some' anxiety. Dr. Alce found that Claimant felt hopeless, depressed, clearly sad, and obviously anxious from the beginning to the end of the interview." Pl. Brief in Support, p. 7 n. P-4. A review of Dr. Alce's report shows that plaintiff is correct in claiming the ALJ mischaracterized the report. On the first page of the report, Dr. Alce stated that Ms. Newkirk has not complained about any depression, even though she referred to experiencing "bad nerves". However, she appears to be depressed. Her communication skills seem to be good, however, because of her depressed status, she could not come out and evolve appropriately in the interview. She remained anxious from the beginning to the end of the interview. She would sit somewhat motionless in the chair and at no point was able to relax and lean to get support from the chair. (R. 128). These conclusions continued throughout the report: She presented herself with low self esteem, though she claims to feel good about herself, but apparently in the way she spoke about herself, she feels hopeless and does not think she will ever feel better and be able to return to the work force (R. 130). In summary, Ms. Newkirk appeared to be depressed, very much preoccupied with her physical health. Her affect was flat, constricted and her mood definitely sad (R. 130). At the present time, she is depressed, appears clearly sad. Her affect is flat as well as constricted (R. 131). The prognosis for Ms. Newkirk appears to be guarded. She has been in treatment over the years and apparently she has not improved significantly to be able to resume her daily activities (R. 132). While the ALJ's decision does reflect some of these conclusions, it appears to discount the severity of plaintiff's mental disorder without clearly stating why. In addition to the ALJ's characterization of Dr. Alce's report, plaintiff has also objected to the ALJ's asserted reasons as to why plaintiff does not currently engage in fishing and gardening. According to the ALJ, the Michigan winter weather prevalent in March restricted plaintiff's leisure pursuits. Nowhere in the record, however, does anyone mention the weather in connection with these pursuits. The plaintiff said nothing about it at the hearing, and Dr. Alce's report simply says: Ms. Newkirk claims to like fishing and gardening. However, she is not involved in any of those activities at the present time. (R. 129). As the plaintiff argues, "[t]he record is silent as to whether Ms. Newkirk is still capable of performing these activities. The weather is clearly not said to be a factor." Pl. Brief in Support, p. 8 n. P-7. While the ALJ can interpret ambiguities in the record, such as Dr. Alce's "fishing and gardening" statement, it is unfortunate that if this was a relevant consideration to the ALJ, he did not ask plaintiff about these activities at her December 12, 1990, hearing. Dr. Alce's findings regarding plaintiff's mental state and memory problems are in accord with the April 4, 1989, discharge summary from the Michigan Health Center, where plaintiff was admitted for alcohol problems. In that report, Dr. Sonnora Reed, D.O., stated: 300 Patient remained very confused and it was discussed that patient may need extended care facility, however, the patient's son was very reluctant to do this and wanted to have the patient home. She gradually became more alert, less confused and calm, however, still had some of the effects of her alcoholic encephalopathy which are felt to be quite chronic in nature, and patient will certainly continue to demonstrate gradual decline in her health. She was subsequently discharged from the hospital in stable condition; however, again her overall prognosis is felt to be quite poor. (R. 107). In fact, none of the medical reports indicate any improvement in plaintiff's mental condition. The ALJ has not pointed to any evidence which contradicts these reports. The plaintiff also challenges the ALJ's finding that her testimony regarding her drowsiness was not credible. At her hearing, plaintiff testified that her Librium made her sleepy and her Wygesic caused her to fall asleep (R. 49 & 47). The ALJ's primary reason for discounting this testimony seems to be that plaintiff never reported the drowsiness to a physician. Yet, as the ALJ notes, plaintiff did tell Dr. Alce about the drowsiness. Also, a week after her application for SSI, plaintiff reported to the Michigan Disability Determination Service on February 9, 1990, that she sleeps two to three hours during the day (R. 101). The ALJ failed to note that, according to the 1992 Physician's Desk Reference, two of plaintiff's medications (R. 147, 179-80, 189) may each cause drowsiness (Librium, p. 1931, and Wygesic, p. 2542). The ALJ did not question plaintiff about whether she complained of drowsiness to any of her medical doctors, nor did the ALJ request any of plaintiff's treating physicians to comment on whether such complaints were made. Given the prior consistent statements of plaintiff on her drowsiness and the PDR notations of side effects of Librium and Wygesic, the ALJ's asserted reasons for rejecting plaintiff's testimony, without more, are not sufficient to totally reject this drowsiness problem in the hypothetical question to the VE. Thus, the record does not contain substantial evidence to support the ALJ's decision to discount the severity of plaintiff's mental problems and drowsiness. The VE testified that either of these conditions could preclude plaintiff from working. When the evidence concerning plaintiff's mental impairments are combined with the Social Security Administrations's psychiatric review results, I conclude that the ALJ's determination that plaintiff can do simple, repetitive work is not supported by substantial evidence. Consequently, the Secretary has failed to sustain his burden of proof and the ALJ's decision should be reversed. The remaining issue is whether the case should be remanded for further proceedings or whether benefits should be awarded. 42 U.S.C. § 405(g) provides for two types of remands. Sentence four of that section permits "a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing," and sentence six allows a remand before an adjudication on the merits. A case can be remanded pursuant to sentence six of 42 U.S.C. § 405(g) for consideration of additional evidence only upon a showing that the evidence is new and material, and that good cause exists for having failed to include the evidence in the prior administrative record. The Sixth Circuit has been strict in applying these requirements. See, e.g., Oliver v. Secretary, 804 F.2d 964 (6th Cir.1986); Willis v. Secretary, 727 F.2d 551 (6th Cir. 1984). Prior to the 1980 amendments, remand was permitted on any showing of good cause. In 1980, Congress limited the sentence six remands by requiring a specific showing that the remand was for "new" and "material" evidence and a specific showing of "good cause for the failure to incorporate such evidence into the record in a prior proceeding". It was anticipated that many of these remands would be made prior to the district court's adjudication on the merits and entry of judgment. The 301 language of the amendment clearly applies to remands initiated by the Secretary or the court, and case law has applied similar restrictions to plaintiffs' requests for remands. Melkonyan v. Sullivan, ___ U.S. ___, ___, 111 S.Ct. 2157, 2164, 115 L.Ed.2d 78 (1991). The Supreme Court in Melkonyan noted that when Congress limited sentence six remands, Congress did not limit the district courts' general post-adjudication power under sentence four to enter a judgment with or without remanding for a rehearing. ___ U.S. at ___ - ___, 111 S.Ct. at 2164-65. Yet, the policy considerations behind Congress' actions in amending sentence six can help guide the exercise of the district court's post-adjudication discretion under sentence four. Through its amendments, Congress sought to limit remands requested by either side merely to supplement the record with new evidence and to correct errors that could have been avoided in the first instance. The Supreme Court noted that Congress, in imposing the requirement that the party seeking new evidence show why it was not gathered and presented before, sought "to speed up the judicial process so that these cases would not just go on and on and on." ___ U.S. at ___, 111 S.Ct. at 2164 (quoting Congressman Pickle, 125 Cong.Rec. 23383 (1979)). Encouraging the parties to prepare their cases adequately at the administrative level will reduce erroneous decisions and time-consuming appeals and remands. Plaintiffs who make such errors have to reapply for benefits starting from the date of the new application. The Secretary, when making such errors, can seek to terminate future benefits under 42 U.S.C. § 423(f).[4] Thus, in cases such as the present one, although this Court has the power to do so, it should decline to exercise its post-adjudication discretion to remand for the purpose of allowing the Secretary to obtain additional evidence unless the Secretary can demonstrate good cause for why such evidence was not presented before. See Carroll v. Secretary of HHS, 705 F.2d 638, 644 (2d Cir.1983). A remand to allow the Secretary to try again to develope substantial evidence to rebut plaintiff's prima facie case without such a showing would be contrary to the congressional policy of encouraging greater care at the administrative level and preventing these cases from going "on and on and on." ___ U.S. at ___, 111 S.Ct. at 2164 (quoting Congressman Pickle, 125 Cong.Rec. 23383 (1979)). A remand in the present case is different from a sentence four remand that the Supreme Court suggested would be appropriate, such as a remand to accord the plaintiff a full and fair hearing, or to make explicit findings essential to federal court review, or to make findings under a correct interpretation of the law or regulations. ___ U.S. at ___ - ___, 111 S.Ct. at 2164-65 (quoting from House Report No. 96-100, at 13). From the Secretary's briefs in other cases, I am aware that the Sixth Circuit in Buck v. Secretary, 923 F.2d 1200, 1205 (6th Cir.1991), noted that a remand for taking VE testimony is a sentence four rather than a sentence six remand. Yet, this descriptive statement in Buck should not be read as a ruling that a district court should always exercise its discretion to allow the Secretary a remand to correct the evidentiary mistakes of his ALJ's. The issue in Buck was not how a district court should exercise its discretionary authority to remand. Rather, Buck was concerned with the time frame in which a district court retains jurisdiction to hear a petition for attorneys' fees under the Equal Access to Justice Act. The lower court in Buck completed an adjudication on the merits in upholding 302 the Secretary's residual functional capacity determination but remanded to obtain VE testimony on potential jobs a person with such a residual functional capacity could perform. 923 F.2d at 1202. It is not clear from the Sixth Circuit's opinion whether the Secretary took any VE testimony in the earlier administrative proceedings. The Sixth Circuit statement concerning the remand is merely a factual description that the lower court remanded the case under sentence four of § 405(g). Again, the Sixth Circuit did not evaluate the wisdom of that exercise of discretion. Consequently, the language in Buck on remands for vocational testimony, 923 F.2d at 1205, is dicta, not the actual holding of the case. Thus, this language is not binding on this Court. While this Court is not bound by the language in Buck, the question remains whether this Court should exercise its discretion in the same manner as the district court in Buck. I am not persuaded that we should look to Buck for guidance for several reasons. In the Buck opinion, the Sixth Circuit did not discuss the policy considerations behind Congress' actions, which I discussed above. It is clear these were not briefed, argued, or considered. In addition, the Buck opinion seems to have an overly narrow view of sentence six remands, and it apparently misread the statute. In the text of Buck, the court implies that a sentence six remand can only occur on the motion of the Secretary, while the statute actually states that a court can at any time exercise its own judgment to order a remand, in addition to doing so after a motion by the Secretary.[5] Finally, Buck is further diminished as a persuasive guidepost since the Supreme Court in Melkonyan rejected the reasoning of Buck on its primary holding and reversed the Ninth Circuit case upon which Buck relied. See Fergason v. Sullivan, 771 F.Supp. 1008, 1010 (W.D.Mo.1991) (noting that the holding in Buck was abrogated by Melkonyan). For reasons state above, I believe that while our sentence four discretion under 42 U.S.C. § 405(g) is not limited by the 1980 amendments to sentence six of this subsection, I believe this Court's exercise of its discretion under sentence four should be informed and guided by the policy considerations of Congress in its amending sentence six of § 405(g). Here, the remand would be to allow the Secretary to ask the VE additional hypothetical questions factoring in various predicates regarding plaintiff's mental impairments and the drowsiness side effects of her medication. These were facts in the record at the December 1990 hearing. Accordingly, they are not new facts. Furthermore, the case law requirements on vocational expert hypothetical questions were clearly established in December of 1990. Thus, these questions could have been, and should have been, asked at that earlier time. Had the Secretary moved for a remand under sentence six of § 405(g), this Court under Sixth Circuit cases would have had to deny the request. I do not believe there is any good cause to allow such a remand under sentence four of § 405(g). Consequently, the decision of the Secretary should be reversed, and the case remanded for a determination and award of benefits. RECOMMENDATION For the reasons stated above, it is recommended that plaintiff's motion for summary judgment be granted, and that defendant's motion for summary judgment be denied. It is further recommended that the case be remanded for an award of benefits. The parties to this action may object to and seek review of this Report and Recommendation, but are required to act within ten (10) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D.Mich.LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.1981), Thomas *303 v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985), Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir.1991). Filing of objections which raise some issues but fail to raise others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987), Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991). Pursuant to E.D.Mich.LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within ten (10) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than five (5) Pages in length unless by motion and order such page limit is extended by the Court. The response shall address specifically, and in the same order raised, each issue contained within the objections. NOTES [1] When the grid cannot be used, the Secretary should call a vocational expert to identify jobs the claimant is capable of performing. See, e.g., Gonzalez v. Secretary of HHS, 784 F.2d 1417, 1419-20 (9th Cir.1986); McLain v. Schweiker, 715 F.2d 866, 869-70 n. 1 (4th Cir.1983); Carter v. Heckler, 712 F.2d 137, 142 (5th Cir.1983); O'Banner v. Secretary of HEW, 587 F.2d 321, 323 (6th Cir.1978). [2] See, e.g., Cole v. Secretary of HHS, 820 F.2d 768, 775-76 (6th Cir.1987) (Milburn, J., dissenting) ("A vocational expert's responses to hypothetical questions may constitute substantial evidence only if the questions posed accurately portray the claimant's impairments."); Varley v. Secretary of HHS, 820 F.2d 777, 779 (6th Cir. 1987) (hypothetical question must accurately portray claimant's "individual physical and mental impairments"); Bradshaw v. Heckler, 810 F.2d 786, 790 (8th Cir.1987) ("The question must state with precision the physical and mental impairments of the claimant."); Myers v. Weinberger, 514 F.2d 293, 294 (6th Cir.1975); Noe v. Weinberger, 512 F.2d 588, 596 (6th Cir. 1975). [3] The shifted burden of proof applies to Supplemental Security Income cases as well as to disability insurance benefits cases. [4] Even in the absence of showing medical improvement, 42 U.S.C. § 423(f) permits a termination of benefits if there is a showing that plaintiff's physical or mental impairments are not disabling, and that finding is supported by "substantial evidence (which may be evidence on the record at the time any prior determination of entitlement based on disability was made, or newly obtained evidence which relates to that determination) which demonstrates that a prior determination was in error." Thus, if the Secretary can demonstrate through supplemental VE testimony that there are jobs that plaintiff can perform notwithstanding her mental and physical impairments, this may show that an earlier determination of disability that resulted in the district court because of a deficient administrative record and a shifted burden of proof was "in error". [5] Sentence six of 42 U.S.C. § 405(g) reads: The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding....	{ "pile_set_name": "FreeLaw" }
698 F.2d 743 1984 A.M.C. 301 NEWPARK SHIPBUILDING & REPAIR, INCORPORATED and AmericanHome Assurance Company, Petitioners,v.James P. ROUNDTREE and Director, Office of Workers'Compensation Programs, United States Department ofLabor, Respondents. No. 81-4308. United States Court of Appeals,Fifth Circuit. Feb. 22, 1983. E.D. Vickery, Houston, Tex., for petitioners. Stephen Vaughan, Houston, Tex., for Roundtree. Laurie M. Streeter, Assoc. Sol., Mark C. Walters, Marianne Demetral Smith, U.S. Dept. of Labor, Washington, D.C., for respondents. Petition for Review of an Order of the Benefits Review Board. Before GARZA, TATE and WILLIAMS, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge. 1 This appeal arises from a claim for workers' compensation under the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 901 et seq. The employer urges that we find jurisdiction to lie in this appeal and that we rule on the proper statutory basis for computing compensation benefits under the facts presented. We find that jurisdiction does lie, and that Sec. 10(b) of the Act, 33 U.S.C. Sec. 910(b), is the proper statutory basis by which to compute benefits in this case. I. Background 2 James Roundtree has been a welder in the shipyards since 1941, and he worked as an independent contractor between 1954 and 1975. During the last days he worked as an independent contractor, he charged a rate of $12.50 per hour for his services. For a variety of personal and career-related reasons, Roundtree abandoned his work as an independent contractor and began working as an hourly employee for the firm now known as Newpark Shipbuilding. Roundtree's wage as a welder was $5.50 per hour, with available overtime and a ten cent per hour shift differential. Other welders in the shipyard were paid as much as $5.95 per hour at the time. 3 Roundtree's first day on the job, April 22, 1975, was an unfortunate one for him. He was working on a barge. While welding a hole that had been fitted and tacked, Roundtree fell off his scaffold and injured his back, resulting in his disability. His claim for workers' compensation under LHWCA came before an Administrative Law Judge (ALJ) with the Office of Workers' Compensation Programs. The ALJ determined that Roundtree was entitled to compensation, and then considered the possible methods for computing Roundtree's average weekly wage pursuant to Sec. 10 of the Act. The ALJ first considered Sec. 10(a), which looks to the employee's wages during the prior year, and found that subsection inapplicable because of the change in Roundtree's employment from independent contractor to hourly employee. He then considered Sec. 10(b), which looks to the prior year's wages of coworkers performing the same or similar work. The ALJ rejected that theory, in part because the shipyard workers had recently received a wage hike that would not be reflected fully in a Sec. 10(b) calculation based on twelve prior months. He therefore concluded that it would not be "fair and equitable" for Sec. 10(b) to apply, and looked to Sec. 10(c) for guidance. Section 10(c) points toward the earnings potential of the employee at the time of injury, rather than actual prior wages. Applying Sec. 10(c), the ALJ looked at Roundtree's earnings capacity as an independent contractor and determined his weekly wage to be $360.41, approximately $10.29 per hour, based on Roundtree's earnings of $18,741.20 in the preceding year. He then ordered compensation accordingly as provided in Sec. 8(b). 4 Both Roundtree and his employer appealed to the Benefits Review Board (BRB). The employer argued that Sec. 10(b) rather than Sec. 10(c) should control. Roundtree cross-appealed to call for application of Sec. 10(a), but apparently switched his view during the BRB proceedings and agreed with the ALJ's application of Sec. 10(c). The BRB affirmed the use of Sec. 10(c) for determining the weekly wage, but ruled that the ALJ had erred in using the gross earnings of an independent contractor for determining the amount of Roundtree's weekly wage. The BRB suggested that the net earnings of an independent contractor, after business expense deductions, might be an appropriate wage determination. In any event the BRB remanded for a redetermination of Roundtree's weekly wage under Sec. 10(c). 5 The employer appeals the BRB's ruling to this Court, pursuant to Sec. 21(c) of the Act, 33 U.S.C. Sec. 921(c). It argues that Sec. 10(b) rather than Sec. 10(c) should control this determination of average weekly wage. Further, it argues that the appeal is ripe for review as a "final order" because the record in this case is sufficiently complete. It urges that an appellate determination of this question will effectively terminate the litigation. Since our authority to review an administrative ruling under LHWCA is limited to "final orders", 33 U.S.C. Sec. 921(c), we must begin by examining our jurisdiction over the subject matter of this case. 6 II. Examination of Subject Matter Jurisdiction 7 Appellate review of BRB orders is restricted under 33 U.S.C. Sec. 921(c) to "final orders".1 The "final order" requirement follows the contours of the finality rule expressed in 28 U.S.C. Sec. 1291. Director, Office of Workers' Compensation Programs v. Brodka, 643 F.2d 159, 161 (3d Cir.1981); National Steel and Shipbuilding Co. v. Director, Office of Workers' Compensation Programs, 626 F.2d 106, 107-08 (9th Cir.1980). The requirement sometimes, but not always, excludes from appellate review a remand order to an administrative agency. Id. at 108; United Fruit Co. v. Director, Office of Workers' Compensation Programs, 546 F.2d 1224, 1225 (5th Cir.1977). We believe, however, that the case before us is properly reviewable at this time even though the administrative body directed a remand. 8 Our determination of whether jurisdiction lies does not depend on a single formula or a simple rule. "The inquiry requires some evaluation of the competing considerations underlying all questions of finality--'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' " Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974), quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950). 9 This Circuit recently faced the question of what constitutes a final administrative order in a LHWCA case. In Ingalls Shipbuilding Division, Litton Systems, Inc. v. White, 681 F.2d 275 (5th Cir.1982), White and his employer entered into a compromise settlement of his LHWCA workers' compensation claim resulting from White's employment-based injury. An ALJ approved the settlement agreement after a cursory examination. The Director of the Office of Workers' Compensation Programs appealed the order of the ALJ to the Benefits Review Board, which held that the Director had standing to challenge the settlement, and that the ALJ's approval of the settlement must be set aside. The BRB remanded the claim to the ALJ, and the employer appealed to this Circuit. 10 We noted first that considering the appeal would not raise the specter of piecemeal review before the court, id. at 279, because the record was complete, the legal conclusions had been made, and the issue on appeal was only whether the power of the ALJ had been exercised properly. Reaching the merits effectively eliminated the need for later review, while dismissal would only have caused the same legal issue to come before us after the agency held additional hearings based on its tentative interpretation of its role. We therefore recognized jurisdiction. 11 Similarly in the case before us today, the issue presented challenges the proper legal standard, rather than constitutes a factual dispute. The record itself is factually complete, and application of Sec. 10(b) can be accomplished on the record. The only question presented is that of ruling on the proper formula. 12 If we were to dismiss for lack of jurisdiction, the next proceeding would be the ALJ's application of Sec. 10(c) to the record and a pronouncement of a definite monetary award. If applying Sec. 10(c) is not supported in the law, that proceeding would be a wasted one. If, however, we were to defer our review and determine at a later date that there is no error, we would have little effect on the risk of piecemeal review but merely would delay the resolution of the dispositive issue in the case. No party has raised any other issues on appeal, and there is little risk of a new appellate issue developing in the proceedings to come. 13 With our decision today, the remaining issues will not be questions of law but merely the largely ministerial job of applying the law to the preexisting record. This task is properly left to the sound discretion of the administrative body. Obviously our decision would be definitive guidance to the agency. Hence, we believe that the order of the BRB is ripe for review. 14 We recognize that cases in this and other Circuits have denied appellate review of pending actions from the BRB. But these cases involved incomplete determinations or administrative records, thus placing them in a less "final" posture than Ingalls or the immediate case. In United Fruit Co. v. Director, Office of Workers' Compensation Programs, supra, we dismissed the appeal as untimely. The unresolved issues were more than a simple calculation of disability benefits; the ALJ had not properly ruled on the nature and extent of the employee's disability, or the "possible liability of the special second injury fund." In Sun Shipbuilding & Dry Dock Co. v. Benefits Review Board, United States Dep't of Labor, 535 F.2d 758 (3d Cir.1976), (per curiam) the court dismissed the appeal, because, even though liability had been decided, the extent of disability due to the worker's loss of hearing remained undetermined. In Newport News Shipbuilding and Dry Dock Co. v. Director, Office of Workers' Compensation Programs, 590 F.2d 1267 (4th Cir.1978) (per curiam), the ALJ had not made complete findings as to "the nature of the injury, the degree of physical impairment ... and any other factor ... including the effect of disability as it may naturally extend into the future." Id. at 1269, quoting 33 U.S.C. Sec. 908(h). All these cases, unlike the case before us, had unresolved factual determinations that appellate review could not settle. 15 The Director of the Office of Workers' Compensation Programs (Director), respondent in this case, offers a different argument in urging a narrow construction of the term "final order". He presses an analogy to attorneys' fees cases, where courts have held that an order is not final, hence not appealable, until the amount of awarded attorneys' fees is determined. Since, in the case before us, the determination of disability is known but the dollar amount of the award must still be set, the Director urges that the same principles of lack of finality apply in this case as in the attorneys' fees cases. 16 In Director, Office of Workers' Compensation Programs v. Brodka, 643 F.2d 159 (3d Cir.1981), the Third Circuit held that a LHWCA case is not yet final when the substantive claim and the availability of attorneys' fees are both settled but the amount of the attorneys' fees award is undetermined. Similarly, in Croker v. Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir.1981) (en banc), the court determined that a district court order is not final for purposes of 28 U.S.C.A. Sec. 1291 until the amount of attorneys' fees has been settled. This Court has held similarly. E.g., Williams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976). 17 We acknowledge that an order is not "final" under 28 U.S.C. Sec. 1291 until the amount of awarded attorneys' fees has been determined. However, we find those cases distinguishable. In the attorneys' fees cases, the applicable legal standard is already established when the district court rules on the award. There need be no appeal at that time regarding what the law ought to be for the determination. See Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974) (Title VII case, 42 U.S.C. Sec. 2000e et seq., establishing a twelve-pronged test in awarding attorneys' fees). But at that point, the record would not yet contain the factual material needed to rule on the amount of the award. The case before us, by contrast, already contains uncontested full factual findings.2 18 Furthermore, these cases usually come before an appellate court with challenges to both the merits and the award of attorneys' fees. To hold an order to be final before the final award of attorneys' fees would only lead to two appeals, one on the merits and one on the attorneys' fees, with no corresponding increase in the fundamental fairness to the parties. Such is not the case here.3 19 The Supreme Court has stated that the question of finality deserves a "practical rather than a technical construction" because it would be "impossible to devise a formula to resolve all marginal cases coming within what might well be called the 'twilight zone' of finality." Gillespie v. United States Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964) (exceptions to finality rule under 28 U.S.C. Sec. 1291). In the case before us, the question on appeal is to determine the proper legal standard to be applied. Our decision will settle this question and minimize the risk of a wasted agency hearing and a later appeal. We find that an appeal at this stage in this case will be more efficient and will not prejudice the parties, especially since the employee's workers' compensation checks will not reflect the proper award until the conclusion of this litigation. Accordingly, we recognize appellate jurisdiction in this case where the substantive legal issue is clearly posed and all that will remain after it is decided is use of the record already completed to calculate the wage base for the recovery. 20 III. Determination of the Proper Legal Standard A. General Considerations 21 The substantive dispute before us is not a complex one. We must decide which of three statutory formulas is to be used in computing Roundtree's weekly wage base for purposes of workers' compensation benefits under LHWCA. Roundtree's somewhat unusual situation, having changed on the very day of his injury from independent contractor at $12.50 per hour to hourly employee at $5.50 per hour makes the method of computation an issue of intense concern to the parties. 22 Our standard of review is necessarily limited, Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir.1976), to whether the administrative findings are supported by substantial evidence, Banks v. Chicago Grain Trimmers Ass'n, 390 U.S. 459, 467, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968), in accord with the law, Cardillo v. Liberty Mutual Ins. Co., 330 U.S. 469, 67 S.Ct. 801, 91 L.Ed. 1028 (1947), and not arbitrary, O'Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359, 85 S.Ct. 1012, 13 L.Ed.2d 895 (1965) (per curiam). 23 The nature of our review is also restricted by the statutory scheme of Sec. 10. The statute assumes that most workers will fall into subsection (a), which looks to the actual wages of the injured worker in the year prior to the injury as the monetary base for determination of the amount of compensation. Subsection (b) operates only where subsection (a) cannot be applied due to a fundamental change in the nature of the injured worker's employment. Method (b) looks to the actual wages of other workers in the same employment situation. The statute presumes that either (a) or (b) will fit the circumstances of the injured employee in most cases, but adds the "earnings capacity" formula of subsection (c) as a general, "catch-all" provision in case the other methods cannot be used as, for example, where the employee has worked for substantially less than a year and there are no other employees in the particular business whose jobs are comparable. Our task, then, is not to choose the most attractive method, but to determine which of the formulas is called for by the step-by-step statutory scheme. B. Specific Determination 24 Roundtree urges on appeal, as he had in the proceedings below, that Sec. 10(a) of the Act controls. Basically, Sec. 10(a) relies on the actual wages of the injured employee during the previous year.4 Roundtree was earning between $10.50 and $12.50 per hour during the previous year as an independent contractor. 25 However, we agree with both the ALJ and the BRB that Sec. 10(a) is not a proper formula to be applied in this case. Roundtree had a complete change in the nature of his employment when he voluntarily relinquished his self-employment as independent contractor and accepted an hourly job in the shipyard. This change was not a simple change in employer or place of business. Jobhoppers performing substantially the same work for different employers are covered by the 10(a) formula just as are their less peripatetic coworkers. But Roundtree's situation is much further removed from 10(a) applicability. 26 First of all, his prior work as an independent contractor was not "covered employment" under workers' compensation, since he was self-employed. Under Sec. 10(a) he had no employer. Further, Roundtree's new position required only the skills of a welder, while his work as a contractor, as the ALJ found, entailed "a considerable amount of expenses involved in operating his own business such as purchasing oxygen, welding rods, hand tools, acetylene, a welding rig mounted to his truck, insurance coverage, as well as various utility expenses." Self-employment also requires a knowledge of bookkeeping, contracts, and government regulations that an hourly job does not demand. Finally, an independent contractor works on a job basis and may well not be working a full 40 hour week every week. These critical distinctions explain, at least in part, why workers like Roundtree would trade a $12.50 an hour contractor's life for a $5.50 guaranteed wage. Since Roundtree was not "employed" for the year prior to the accident, he was not working in the same employment on the day of the accident, and Sec. 10(a) is not applicable. 27 The employer contends that Sec. 10(b) is the proper formula. Subsection (b) determines a weekly wage by counting the last year's wages of coworkers performing substantially the same work at the same place of employment as the injured worker.5 This subsection applies 28 to claims in which the injured worker has had too little time on the job to permit an accurate and fair computation of average daily wage: for example, the subsection would apply if a worker had been recently hired after having been unemployed, or out of the work force, or in a lower paying position. See O'Hearne v. Maryland Casualty, 177 F.2d at 982; California Ship Service Co. v. Pillsbury, 175 F.2d at 876. 29 Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, 686 F.2d 1336, 1341-42 (9th Cir.1982). 30 The record shows that the employer presented pay records of three welders who performed comparable work at the same site. This is an adequate statistical base for Sec. 10(b) purposes, even though there were over 100 welders in the shipyard at the time. There was no attempt to introduce any evidence that these three were not doing comparable work and instead were picked as the lowest-earning welders. Absent such an intent to distort the comparable wages, even one worker's pay record could fulfill the statutory requirement.6 31 The Director counters the claim of Sec. 10(b) applicability by pointing out that Sec. 10(b) should not be used when the result would fail "reasonably and fairly" to represent the worker's earnings. The Director urges us to uphold the application of Sec. 10(c).7 32 The Director points out that the welders in this shipyard received a 50 cent per hour wage increase just two months before Roundtree's accident. Examining ten months of older, lower wages with only two months of the then-current wages would diminish Roundtree's compensation base. Since the purpose of the overall statute is to compensate the injured worker, the Director argues, the government should take all possible steps to provide the employee with the maximum recovery allowable under the statute. Hence, he urges us to affirm the BRB's use of Sec. 10(c). 33 We are sympathetic to the Director's view that claimants should receive the maximum compensation allowable under the statute. However, we find that an award under Sec. 10(c) is not allowable under the statute in the case before us, and we hold that Sec. 10(b) is the applicable formula. 34 First, we point out that the statutory hierarchy of compensation formulas will allow the use of Sec. 10(c) only when neither Sec. 10(a) or Sec. 10(b) can be applied "fairly and reasonably". The Director argues that any substantial wage increase within the year preceding injury would make Sec. 10(a) or Sec. 10(b) unfair, and that the larger the raise and the closer to the date of injury, the more unfair the other methods become. He believes that any worker whose employer gave a substantial raise before the date of injury should be able to claim a Sec. 10(c) "catch-all" computation, whether or not that worker has been employed there for the entire previous year. 35 Yet such an interpretation is not in keeping with the intent of the statute, for it would effectively eradicate virtually all applications of methods (a) or (b). Most employers now offer some sort of annual wage boost. Congress, in creating this statutory scheme, did not intend for Sec. 10(a) and Sec. 10(b) to be wiped off the books. The "catch-all" provision of Sec. 10(c) is properly to be applied only in cases where it would be unrealistic to apply the normal formulas. As legislative history describes Sec. 10(c): 36 This subsection in the present law is used where the employment itself, in which the injured employee was engaged when injured, does not afford a full year of work.... Thus, subsection (c) applies to seasonal, intermittent, discontinuous, and like employment which affords less than a full workyear or workweek. 37 Senate Rep. No. 1315, 80th Cong., 2d Sess., reprinted in [1948] U.S.Code Cong.Serv.1979, 1982, quoted in Strand v. Hansen Seaway Service, Ltd., 614 F.2d 572, 575 (7th Cir.1980). 38 Case law clarifies the limited nature of Sec. 10(c). In Todd Shipyards Corp. v. Director, Office of Workers' Compensation Programs, 545 F.2d 1176 (9th Cir.1976), the court upheld the use of Sec. 10(c) when "no evidence was introduced which could clearly determine the claimant's average daily wage" under Sec. 10(a) or Sec. 10(b). Id. at 1179 (emphasis added). The Ninth Circuit also stated in Palacios v. Campbell Industries, 633 F.2d 840, 842 (9th Cir.1980) that "[s]ection 10(c) applies to intermittent and irregular employment, when application of the mathematical formulas provided in sections 10(a) or 10(b) would be unreasonable or unfair, or when insufficient evidence is presented at the hearing to permit proper application of section 10(a) or (b)." 39 On occasion, some courts have recognized a general unfairness in using Sec. 10(a) or Sec. 10(b) when those formulas would not reflect a claimant's earning capacity at the time of injury. These cases usually involve a worker who had been off the job for much of the preceding year, so that a Sec. 10(a) determination of wages while working would lead to a significantly larger computed wage base than the worker's actual earnings during the prior year. In Strand v. Hansen Seaway Service, Ltd., supra, the Seventh Circuit found that where a cold water port is normally closed for fixed times of year, the use of Sec. 10(a) or Sec. 10(b) to determine an average weekly wage would be unreasonable and unfair. In Duncanson-Harrelson Co. v. Director, Office of Workers' Compensation Programs, 686 F.2d 1336 (9th Cir.1982), the Ninth Circuit upheld the use of Sec. 10(c). The court admitted that use of Sec. 10(c) might be error, but refused to reverse because the use of Sec. 10(a) would have inflated the worker's wage base unfairly. See also Johnson v. Britton, 290 F.2d 355 (D.C.Cir.), cert. denied, 368 U.S. 859, 82 S.Ct. 99, 7 L.Ed.2d 56 (1961) (Sec. 10(a) would result in a "highly distorted earnings figure" when the worker worked only 180 days of the prior 52 weeks). 40 In Andrew F. Mahony Co. v. Marshall, 56 F.2d 74 (9th Cir.1932), the court sanctioned the use of Sec. 10(c) to an intermittent employee. Winkler, the employee, had earned $1,266.20 in the year prior to his injury, and was awarded the maximum $25.00 weekly compensation, based on the higher wages of a coworker. Recognizing that Sec. 10(b) would provide greater compensation to Winkler than he had earned through his prior, intermittent employment, the court allowed the use of Sec. 10(c). The court stated that Sec. 10 "does not provide that every case must be measured by subdivisions (a) or (b) if it is possible to force the transaction into the formula which those subdivisions prescribe and that subdivision (c) is to be applied only to cases which cannot be measured by (a) or (b)." Id. at 78. However, the use of subsection (b) in the case before us does not require forcing or even a gentle push. It is method (c) that calls for the push--a push that would give Roundtree the benefit of the recent raise in the shipyard. 41 It is the clear intent of the statute that if one of Roundtree's co-workers was injured and he had worked for the whole of the preceding year, Sec. 10(a) would apply. When this was pointed out to government counsel during oral argument, counsel was forced to take the position that any welder in the shipyard who was injured should be able to claim a wage base calculated under Sec. 10(c). We cannot accept such a departure from the manifest statutory scheme. We hold that Sec. 10(b) is the applicable formula by which to compute Roundtree's wage base. IV. Conclusion 42 We find that this Court has jurisdiction over the subject matter of this appeal. Further, we hold that Sec. 10(b) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S.C. Sec. 910(b), sets out the proper formula by which to determine Roundtree's workers compensation benefits. We therefore reverse the Benefits Review Board and remand for proceedings consistent with this opinion. 43 REVERSED AND REMANDED. TATE, Circuit Judge, dissenting: 44 With respect for my brethren of the majority, I nevertheless dissent from their holding that the present order of remand by the Benefits Board of Review is a "final order" and, thus, subject to judicial review at this time. 33 U.S.C. Sec. 921(c). In a commendable effort to expedite judicial review in the present case, the majority has adopted a principle of case-by-case determination of "finality" that will, however, unsettle the relative certainty that was previously attached to that concept. While the benefits of expeditious review in the present case may be apparent, the general rule enunciated will require, as its consequence, many premature appeals in the future and much additional resultant delay before the final award or rejection of compensation claims. 45 In the present case, the principal (but not the only) issue before the Administrative Law Judge and the Board was whether the injured employees should be awarded compensation based upon Sec. 10(a) (the employee's wages during the prior year), or upon Sec. 10(b) (prior years' wages of coworkers), or upon Sec. 10(c) (an alternative, when either of the former methods "cannot reasonably be applied" to arrive at the annual earnings of the injured employee) of the Act, 33 U.S.C. Sec. 910(a), (b), or (c). Affirming the ALJ, the Board held that Sec. 10(c) applied to the facts of this case, but it remanded for additional findings of fact, with leave to reopen the record to take additional evidence, for a redetermination of the claimant's weekly wage, as well as for consideration of other issues, such as attorney's fees. Independent of whether we ultimately decide whether the Board was correct in finding Sec. 10(c) to provide the proper method for computing the award of compensation,1 we must first decide whether this order was "final" so as to permit us to exercise appellate jurisdiction to review it. 46 The majority notes, correctly, the settled jurisprudence to the effect that the "final order" appealability-requirement of 33 U.S.C. Sec. 921(c), with regard to Board decisions, is essentially determined by the same criteria that apply to the "final judgments" appealability-requirement of 28 U.S.C. Sec. 1291 with regard to district court decisions.2 As to the latter, the Supreme Court recently reiterated the test of finality as being " 'a decision by the District Court that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." ' " Firestone Tire & Rubber Company v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). The Court emphasized several of the important purposes served by the requirement of finality: the avoidance of piecemeal appeals and of the obstruction to just claims by permitting a succession of separate appeals from the various rulings to which litigation may give rise, as well as the promotion of efficient judicial administration. Id. As this court itself has reiterated, 47 [The finality] requirement has the support of considerations generally applicable to good judicial administration. It avoids the mischief of economic waste and of delayed justice. Only in very few situations, where intermediate rulings may carry serious public consequences, has there been a departure from this requirement of finality for federal appellate jurisdiction. 48 In re Corrugated Container Antitrust Litigation, 611 F.2d 86, 89 (5th Cir.1980). 49 The present Board order, although determining a central issue of the claim--the method of calculating weekly compensation due--, remanded the proceedings to the Administrative Law Judge for further findings as to the actual weekly rate to be awarded and as to attorney's fees. It did not end the litigation on the merits, and no final administrative order awarding weekly compensation and attorney's fees would be entered until after the remand. 50 Under such circumstances, where in effect a central issue of liability has been determined to administrative finality by the Board but remand is ordered to calculate and make a specific monetary award, the decisions until the present have uniformly refused to consider the Board order of liability as "final" for purposes of judicial reviewability at that time, both in this circuit, United Fruit Company v. Director, Office of Workers' Compensation Programs, 546 F.2d 1224 (5th Cir.1977), and in other circuits, Director, Office of Worker's Compensation Programs v. Brodka, 643 F.2d 159 (3d Cir.1981); National Steel and Shipbuilding Company v. Director, Office of Workers' Compensation Programs, 626 F.2d 106 (9th Cir.1980); Newport News Shipbuilding Corporation v. Director, Office of Workers' Compensation Programs, 590 F.2d 1267 (4th Cir.1978). As stated in one of the lead decisions applying this rule, "[i]t is a well-established rule of appellate jurisdiction ... that where liability has been decided but the extent of damages remains undetermined, there is no final order." Sun Shipbuilding & Dry Dock Company v. Benefits Review Board, 535 F.2d 758, 760 (3d Cir.1976). 51 The virtues of this rule are apparent. It avoids dual appeals on both liability and award, with the consequent doubled judicial appellate delays, in favor of a single review of the final administrative award. An injured worker, whose award is vacated by the Board for recalculation as to the properly exact amount of weekly compensation due, does not suffer the prolonged denial of compensation that will occur as his employer seeks judicial review of the singled issue of liability (which, moreover, in the preponderant number of cases will be affirmed) decided by a Board opinion that affirms liability but vacates and remands for exact calculation. The certainty of the rule of nonfinality in such instances permits all parties to rely on judicial review only after administrative remand and final calculation of the actual award, without being forced to take a precautionary appeal to the courts lest a failure to do so result in the loss of judicial review of the liability issue as determined by the Board's remand order, if it is subsequently characterized as "final" as to the liability decision. 52 In failing to follow this (until now) well-settled jurisprudential rule, the majority analyzes the facts and issues of this particular case, and decides that because in this particular case the appellate court decision now will determine the proper legal standard to be applied on the remand, and minimize the risk of a wasted agency hearing and later appeal, an appeal at this stage of the proceedings in this case will be more efficient and will not prejudice the parties (because the proper award of compensation cannot be made until the conclusion of the litigation). The majority concludes that we will "recognize appellate jurisdiction in this case where the substantive legal issue is clearly posed and all that will remain after it is decided is use of the record already completed to calculate the wage base for recovery." 53 Before noting some of the practical consequences to this newly created exception from the "finality" requirement for reviewability of administrative orders, I point out the tenuous authority upon which creation of this exception is based. Unlike all of the previously cited decisions, the majority does not advert to the traditional and quite limited exceptions to the finality rule rarely permitted. See, e.g., Brodka, supra, 643 F.2d at 163 & n. 9 (collateral order final in nature and severable from merits; irreparable injury; unresolved issues purely ministerial in nature); 16 Wright, Miller, Cooper and Gressman, Federal Practice and Procedure, Sec. 3942, see esp. at p. 314 (1977); 15 Wright, Miller and Cooper, Federal Practice and Procedure, Sec. 1910-13 (1976). Rather, the majority purports to find in Ingalls Shipbuilding Division v. White, 681 F.2d 275 (1982), a rather free-wheeling authority to dispense with the finality requirement in any individual case where the spectre of piecemeal review is not raised because in a given case the record is complete, the issue presented is a legal standard rather than a factual dispute, and the same legal issue (perhaps incorrectly decided initially by the Board) would recur on the subsequent resort to judicial review after the remand. 54 Ingalls, however, is a case presenting exceptional and distinguishable facts. The sole issue there concerned whether an administrative law judge had the power to approve a settlement, with an important collateral question as to the reviewability or not of a settlement so approved, as against contentions (ultimately upheld by us) that the judge was without authority to do so and that the Director, Office of Workers' Compensation Programs, did have standing to appeal the ALJ's order approving the compromise. The Board had upheld such power in the ALJ, but had remanded for his reconsideration of certain factors. Balancing competing considerations of piecemeal review and the danger of denying justice by delay in the decision of this crucial issue in the administration of the compensation act, Ingalls concluded that "the facts here fall within the unique situation that is established as an exception to technical finality in Gillespie [v. United States Steel Corp., 379 U.S. 148, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964).]" 681 F.2d at 279 (emphasis added). 55 Ingalls did not explicitly specify the unique and exceptional facts. However, its reference to Gillespie--where, as in Ingalls, there was a close or at least unresolved issue as to the appealability itself of the basic order (in Ingalls, on whether any order of an ALJ approving a settlement was reviewable at the instance of the Director)--would indicate to me that no blanket exception to finality was intended whenever, in a panel's view, the spectre of piecemeal review was not raised by deciding the initial appeal. That the "pragmatic finality" exception to finality recognized by Gillespie applies only in extremely limited and extraordinary circumstances may be recognized by the Supreme Court's recent characterization of that decision's holding: 56 In Gillespie, the Court upheld an exercise of appellate jurisdiction of what it considered a marginally final order that disposed of an unsettled issue of national significance because review of that issue unquestionably 'implemented the same policy Congress sought to promote in Sec. 1292(b),' id., at 154, 85 S.Ct. at 312, and the arguable finality issue had not been presented to this Court until argument on the merits, thereby ensuring that none of the policies of judicial economy served by the finality requirement would be achieved were the case sent back with the important issue undecided. 57 Cooper & Lybrand v. Livesay, 437 U.S. 463, 477 n. 30, 98 S.Ct. 2454, 2462 n. 30, 57 L.Ed.2d 351 (1978). 58 The present petition for judicial review of a Board order presents no unusual or unique circumstances such as are implicated in Gillespie or in the quite limited exceptions to finality previously recognized. Absent the present decision by the majority, there was no issue of marginal appealability that justified this court's immediate determination of the appealability issue and of the correctness of the underlying order. The issue decided, although important, is not of such national significance to the administration of the Act as to require its decision on this (premature) appeal rather than by the appeal from the final order that awards compensation and resolves all unsettled issues. Nor, for reasons to be set forth, does the new general exception to finality created by the majority avoid thwarting the purposes of the finality rule. 59 Rather, by importing into the finality concept a case-by-case measure of exception, in general application the newly created judicial exception substantially impedes these purposes of the finality concept and must inevitably result in multiple appeals, additional delays before final decision, and new issues of appellate jurisdiction that will impede the decision by judicial review of the merits of administrative orders. This may be illustrated by reference to the present proceedings. 60 The majority's exception permits immediate reviewability, despite technical non-finality, where the record is complete as to factual matters and where only a legal standard is at issue, immediate decision of which will facilitate the ultimate decision after remand. With regard to the present case, I note: 61 1. The majority assumes the record is complete, probably subconsciously influenced by its ultimate determination that Sec. 10(c) does not apply and that the record now contains all facts needed to decide under Sec. 10(b). Absent that determination, the record is not complete, as the Board recognized in vacating and remanding for additional findings of fact, including the taking of evidence if necessary, to make a proper weekly award under Sec. 10(c). If we had affirmed (instead of reversed) the Board's determination that Sec. 10(c) furnishes the proper measure of weekly disability compensation, the effect of our decision retaining appellate jurisdiction would be to remand (as the Board ordered on June 10, 1981, some eighteen months ago) to the Administrative Law Judge to calculate the weekly award, following which the employer (or the claimant) would be entitled once again to appeal this now-final order. Whether the majority had affirmed or reversed the Board's non-final order, however, in either event the majority's new exception rule builds into the administrative compensation-awarding processes an additional delay, in this case extending more than a year and a half (so far), by allowing an initial appeal as to the liability-standard, to be followed (quite possibly) by yet a second resort to the review process after, on remand, the ALJ fixes the rate of compensation and decides the subsidiary undecided issues, such as attorney's fees. 62 2. The employer sought judicial review of the Board's remand order, until now considered a non-reviewable non-final order. Assume that instead the parties had followed the previously accepted methodology, applying for judicial review only after a final order, and thus had complied with the remand and secured an expeditious administrative determination of unresolved issues, including the compensation, to be incorporated in a technically as well as actually final order. Upon judicial review from the true final order, the parties are faced with the possibility that, under the majority's new "pragmatic finality" exception, their failure to appeal the initial "final" order (determining only the standard of liability) forecloses subsequent review of the initial liability decision.3 What must the parties do to avoid this possibility? Obviously, to avoid this possibility, a party must seek initial review of the initial Board remand-order, although it involves considerable additional appellate delays (here, eighteen months so far), and although the court may decide that, after all, the appeal is premature because the order is not "final" under the flexible finality rule envisioned by the majority's new exception. 63 3. If the previously accepted concept of "finality" for purposes of judicial review had been followed in this case, then on the single judicial review the courts would be concerned only with the merits of the litigation. (If a party appealed despite the accepted rule, the usual practice in this court would probably result in a dismissal by summary order of an administrative panel, since the rule of finality previously followed was certain and was easily administerable.) Under the new rule of appealability sanctioned by the majority, a new adjective issue of appealability is injected into every appeal from a Board remand-order or from an order by the Board following an unappealed Board remand-order.4 Is or was the initial order "pragmatically" final? This will involve individual analysis in each case to determine whether where what the Board decided was a "legal standard" (instead of the factual application of a legal standard, a mixed law-fact question, for example) and whether the initial record was "complete" such that immediate judicial review of the initial order would add to the efficiency of disposition and would theoretically avoid the spectre of piecemeal judicial review. To replace the former certain definition of administrative finality, the majority substitutes a rule that requires case-by-case analysis in each individual appeal, that in many instances will result in the prolongation of judicial review by the frequent necessity of oral argument and collegiate interchange as to the variables now injected into this adjective issue of appealability per se--and one as to the application of which, I predict, reasonable appellate minds will differ. For the previously certain rule of "technical" as well as actual finality, the majority substitutes a flexible "pragmatic" finality rule of uncertain case-by-case application that must inevitably encourage precautionary interlocutory appeals, and their consequent delay, and that may in an appreciable number of cases delay the decision of the merits by injecting a complicated threshold adjective issue of appealability. 64 4. And what about the claimant (such as poor Roundtree, here), as the reviewing court entertains the initial appeal as to the legal standard of liability, despite a remand by the Board to calculate the weekly compensation. Here, back in June 1981, the Board vacated the provision of the order of the Administrative Law Judge awarding Roundtree a weekly compensation award, see Record Excerpts, p. 43, and remanded to that judge for him to make further findings and to take further evidence, if necessary, in order to calculate the proper weekly amount. We are informed that here the employer has continued to pay the claimant weekly compensation. 65 However, when the Board vacates the only order that requires an employer to pay weekly compensation, then--in the absence of a subsequent order by the administrative judge on the remand renewing the employer's obligation to pay weekly compensation--I would suppose that, as the Director in brief suggests, it is at least arguable whether the employer was obliged to continue to make compensation payments to its disabled employee before there was an administrative order fixing their actual amount. Should in such circumstances an employer terminate weekly compensation until an order as to its weekly amount is finally issued, the availability of interlocutory review of the Board's remand order (deciding the measure of liability, but remanding for calculation of the amount due) will add a considerable period of delay during which the disabled employee will receive no weekly compensation (here, more than eighteen months, so far), solely for the purpose of judicial review of the Board's interlocutory order. Only following conclusion of that interim lengthy judicial review of the measure-of-liability portion of the Board's remand-order, will the proceedings finally be remanded to the Administrative Law Judge to issue an order awarding weekly compensation in calculated amount--as would have occurred, absent interim judicial review, many months earlier. I cannot believe that either the purposes or intent of the compensation act are served by an interpretation of the judicially-reviewable "finality" provision of 33 U.S.C. Sec. 921(c), that will insert such additional interlocutory-review delays that may disrupt for an appreciable time the continued payment of weekly compensation to an admittedly disabled employee solely for the purpose of affording interlocutory judicial review. 66 I sympathize with my brothers of the majority in their commendable desire to decide now a central issue of this proceeding, since the appeal is already here, because in this case they view it to be more efficient to do so, under the particular issue and record presented to us. I share their general view that formal procedural rules should be applied in the light of their function, and that a practical rather than a technical construction is often suitable to advance the end purpose of a procedural rule. Here, however, the very purpose of the finality rule is thwarted by the practical construction accorded it; although it may advance the efficient decision of this particular case, the flexible rule of pragmatic finality adopted by the majority will impede the efficient and expeditious decisions of many, many appeals from administrative remand-orders in the future. At the same time, the newly created exception to finality replaces with large elements of uncertain administration the previously certain and efficient rule of finality as accorded to Board orders. The need for clear and easily administered rules as to the threshold adjective issue of reviewability overrides any values of flexible case-by-case administration. As has been stated in a related context: 67 Although well-established rules of appealability might at times cause an action to be determined unjustly, slowly, and expensively, they have nonetheless the great virtue of forestalling the delay, harassment, expense, and duplication that could result from multiple or ill-timed appeals. The great value of the final judgment rule may well be that it combines generally effective review with guides sufficiently clear to prevent most of the great waste that could result from protective appeals and litigation over appellate jurisdiction. Earnest pursuit of a "practical approach" could quickly destroy this accomplishment. 68 15 Wright, Miller, and Cooper, supra, Sec. 3913 at p. 523. 69 I therefore must respectfully dissent from the majority's opinion. 1 33 U.S.C. Sec. 921(c) provides in part: Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside. 2 Judge Tate, in his dissent, expresses his belief that the factual findings in the record may not be complete. Yet we find the record to contain clear and ample evidence of Roundtree's earnings history, the earnings records of his coworkers, and all other necessary information concerning the wages of Newpark's welders. The task of applying Sec. 10(b) to the existing record will be ministerial in nature. The case before us does not require us to determine whether the application of Sec. 10(c) would also be ministerial in nature, hence we need not speculate as to whether the BRB's order would be final, hence reviewable, if Sec. 10(c) rather than Sec. 10(b) were the proper formula 3 We recognize that some unresolved collateral issues may remain in the instant case as presented in this appeal. Roundtree, for example, has requested attorneys' fees stemming from the prior hearing before the ALJ. However, these issues are substantially unrelated to the heart of this appeal and therefore do not bar our jurisdiction to consider the central issue. "When attorney's fees are similar to costs or collateral to an action, a lack of determination as to the amount does not preclude the issuance of a final, appealable judgment on the merits." Holmes v. J. Ray McDermott & Co., Inc., 682 F.2d 1143, 1146 (5th Cir.1982) (citations omitted) 4 Section 10(a) of the Act, 33 U.S.C. Sec. 910(a), provides: If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary for a six-day worker and two hundred and sixty times the average daily wage or salary for a five-day worker, which he shall have earned in such employment during the days when so employed. 5 Section 10(b) provides: If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings, if a six-day worker, shall consist of three hundred times the average daily wage or salary, and, if a five-day worker, two hundred and sixty times the average daily wage or salary, which an employee of the same class working substantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed. 6 The statute calls for comparison to "an employee of the same or most similar employment." See id. See also Andrew F. Mahony Co. v. Marshall, 56 F.2d 74 (9th Cir.1932) 7 Section 10(c) states: If either of the foregoing methods of arriving at the average annual earnings of the injured employee cannot reasonably and fairly be applied, such average annual earnings shall be such sum as, having regard to the previous earnings of the injured employee in the employment in which he was working at the time of the injury, and of other employees of the same or most similar class working in the same or most similar employment in the same or neighboring locality, or other employment of such employee, including the reasonable value of the services of the employee if engaged in self-employment, shall reasonably represent the annual earning capacity of the injured employee. 1 Here, for instance, the majority decides that instead, Sec. 10(b) is the proper formula, so that more efficient non-piecemeal review is appropriate. However, had the majority decided that the Board correctly applied Sec. 10(c), the result of the majority rationale would permit (or require, see text below) two judicial reviews of the same award--the first (the present) as to the method of calculating the compensation benefits, and the second, if one of the parties disagreed as to the actual dollar rate of the actual award or as to the attorney's fees or other remaining issues in the case I may add that I entertain very serious reservations as to the correctness of the majority's conclusion that the Board improperly used Sec. 10(c) under the Board's determination that neither Sec. 10(a) nor Sec. 10(b) provided a reasonable and fair method of determining the "annual earning capacity", Sec. 10(c), of this particular employee, injured on the first day of his new employment after having left much more highly remunerative work of the same nature. Cf. also Sec. 8(h), defining "wage-earning capacity" and providing that "actual earnings" measure if they "fairly and reasonably represent his earning capacity." I read Sec. 10(c) as a Congressional grant of administrative discretion, subject to review only as an abuse, to determine the annual earning capacity of an injured employee where Sec. 10(a) and Sec. 10(b) do not reasonably and fairly result in a calculation of the annual earning capacity of the particular employee injured. See, to same effect, 1A Benedict on Admiralty, Sec. 74 at pp. 4-41 through 44 (7th ed. 1982). Thus, Sec. 10(a) and Sec. 10(b) were not legislatively intended to be a statutory straight jacket mechanically applied. In the present case, had the claimant Roundtree worked for the present employer (instead of for himself, doing the same type of work) for the preceding year, it would be obvious that his previous year's earning capacity and annual wages were greater than those of his present co-employees who had worked "in the same or in similar employment in the same or a neighboring place", Sec. 10(b), during the preceding year (upon which compensation is based, rather than on the increased pay such employees were now paid during the year of Roundtree's injury). In terms, Sec. 10(b) seems addressed to an injured employee who had not worked for the employer defendant "during substantially the whole of such [preceding] year," in which event his average annual wage is calculated as if he had worked the whole rather than only part of the year for that employer. However, since I do not believe we have jurisdiction to review this interlocutory order of the Board, I will comment no further as to the majority's ruling on the merits. 2 Particular requirements of an administrative review scheme may sometimes impose "special considerations" on the determination of finality that vary from the "classical jurisdictional requirements" applied to appeals from district courts. Sun Shipbuilding and Dry Dock Company v. Benefits Review Board, 535 F.2d 758, 760 (3d Cir.1976), see Weinberger v. Salfi, 426 U.S. 749, 764-67, 95 S.Ct. 2457, 2566-67, 45 L.Ed.2d 522 (1975). No such particular requirements or special considerations are relied upon or appear with regard to the present clearly delineated administrative and judicial review scheme 3 This type of problem is illustrated by Croker v. Boeing Co., 662 F.2d 975 (3d Cir.1981) (en banc). The district court entered judgment on the merits against the defendant in October 1979, leaving for determination only the amount of attorney's fees. In March 1980, the district court set the amount of attorney's fees, and the employees timely appealed within thirty days of the latter order. The defendant moved to dismiss the appeal by the plaintiffs as to certain merit-rulings in the October 1979 judgment. The defendant contended that the 1979 judgment was final, since it had decided all issues in the appeal. The court of appeal rejected this contention, holding that the 1979 judgment was not "final" under the general test that it did not terminate the litigation and leave nothing to be done to enforce the judgment The majority, rather unsuccessfully in my view, distinguishes this decision and numerous others to same effect by noting that the record at the time of the initial order did not contain all the factual matter necessary for the final determination of the amount of attorney's fees, so the initial order was not "final" and was not reviewable at that time. I am unable to see how the present record differs--even aside from the lack of complete evidence to decide the Sec. 10(c) issue. In the present case also, there was not a complete factual record necessary to fix the amount of attorney's fees due, an issue that the Board had remanded to the ALJ. This circumstance may indicate some of the difficulty and uncertainty in determining whether there is a "complete record" so as to permit a reviewing court to consider the order under review as "final". Perhaps some of the obvious possibilities of injustice and the necessity for precautionary appeal could be avoided by holding that, when an appeal is perfected, the order may be pragmatically "final" enough to be reviewable, but that a failure to appeal at that time will not preclude subsequent review of the technically (and actually) "final" order. However, such flexible interpretation would thwart the purposes of the finality concept, aside from raising fundamental issues of judicial disregard of the legislative final-order basis of appellate jurisdiction. 4 See note 3 supra	{ "pile_set_name": "FreeLaw" }
THIRD DIVISION September 17, 2003 No. 1-02-1330 THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Cook County. ) PERCY CRUMP, ) ) Defendant-Appellant, ) Honorable ) John J. Mannion, ) Judge Presiding. JUSTICE SOUTH delivered the opinion of the court: On March 25, 2002, defendant Percy Crump entered negotiated pleas of guilty to three charges: possession of a controlled substance in case number 00 CR 23269, aggravated battery to a police officer in case number 00 CR 08991, and aggravated unlawful use of a weapon in case number 01 CR 07880. Pursuant to the plea agreement, the State nol-prossed seven other charges, which included armed violence, possession of a controlled substance with intent to deliver, and other aggravated unlawful use of a weapon charges. Defendant was sentenced to one year's conditional discharge for possession of a controlled substance and two years for aggravated battery to a police officer, consecutive to two years for aggravated unlawful use of a weapon. At the plea hearing, the trial court first identified defendant and learned that he was 20 years old. The trial court then stated the following: "All right, I have before me, first of all, an Information filed by the State's Attorney of Cook County which alleges that on or about August 21 st , 2000, you committed the offense of possession [of] a controlled substance, you knowingly and unlawfully possessed, otherwise than authorized by the Illinois Controlled Substance Act, less than fifteen grams of a substance containing a certain controlled substance, to-wit: cocaine. That is a violation of 720-570/402(c), Illinois Compiled Statutes, 1992 as amended. I have also an Indictment returned by the Cook County Grand Jury which alleges on or about March 7 th , 2000, you committed the offense of aggravated battery to a police officer, in that you, in committing a battery, other than by discharge of a firearm, knowingly and intentionally caused bodily har [ sic ] to Diane Gryzd (phonetic), to-wit: struck her about the body and knocked her down, knowing her to be a peace officer engaged in the execution of her official duties. That is in violation of Chapter 720, Act 5/12-4(B)(6), Illinois Compiled Statutes, 1993 as amended. I also have another Indictment returned by the Cook County Grand Jury that on or about February 26 th , 2001, you committed the offense of aggravated unlawful use of a weapon, in that you knowingly carried on or about your person a firearm at a time when you were not on your own land or abode or fixed place of business, and that in violation of 720, Act 5/24-1.6(A)(1)3(A), Illinois Compiled Statutes, 2000 as amended." The trial court then asked defendant if those were the offenses to which he was pleading guilty, to which defendant replied in the affirmative. The trial court then went on to describe the class of each offense, the sentencing ranges and other penalties associated with those offenses. The court also admonished defendant that because he was on bond for the first offense when he committed the second and on bond for the second offense when he committed the third, it was mandatory that he be sentenced to both consecutively. When asked whether he understood, defendant replied that he did. The court then admonished defendant as follows: "THE COURT: Do you also understand that by pleading guilty there won't be a trial, and you will be waiving or giving up certain rights that you have under the law? Do you understand that? MR. CRUMP: Yes. THE COURT: Do you understand that you have the right to plead not guilty, you have the right to remain silent, you have the right to confront and cross examine the witnesses against you, and you have the right to force the State to prove you guilty beyond a reasonable doubt. Do you understand that? MR. CRUMP: Yes, sir. THE COURT: You also have the right to a trial by jury on all charges. Do you know what a jury trial is? MR. CRUMP: Yes, sir. THE COURT: And you have indicated to me that you are aware of that and want to give up that right pursuant to that agreement by signing those documents entitled jury waiver. Is that what you want to do? MR. CRUMP: Yes, sir. THE COURT: You also have the right to a presentence investigaition [ sic ], and that means that before any disposition you would be interviewed by a probation officer about your background and about these cases. The purpose of that report is to help me determine what the correct sentence should be. We know what the sentence is going to be, so there is no need for it, but it is a right that you have. You indicated that you are aware of that and want to waive that also, is that right? MR. CRUMP: Yes, sir. THE COURT: No one has promised you anything in exchange for your plea of guilty other than what your lawyer told you the disposition on the cases would be, is that correct? MR. CRUMP: Yes." The State then provided a factual basis for the pleas, which was stipulated to by defense counsel. The court then found that defendant knowingly understood the nature of the charges against him, the consequences thereof, and the possible penalties under the law. The court also found that defendant knowingly understood and comprehended his rights under the law, that defendant wished to waive those rights, plead guilty and stipulate to the facts. The court then entered defendant's guilty pleas on all three offenses and sentenced him as agreed in the plea agreement. After sentencing, the trial court admonished defendant on his appeal rights as follows: "You have the right to appeal. Should you choose to appeal, before you file a notice of appeal, you must file in this courtroom, within thirty days to today's date [,] a written motion asking to have your guilty pleas withdrawn, - - pleas withdrawn, judgments entered on the findings vacated, setting forth your ground in the motion. If you were successful, all these charges would be reinstated, and you would be standing trial on them. And if you were indigent, you have a right to a free transcript of these proceedings. You also have a right to have an attorney appointed for you free of charge to assist you in drafting that motion and perfecting your notice of appeal." Defendant did not file a motion to withdraw his pleas but instead filed a pro se notice of appeal on April 25, 2002, in which he stated that he was indigent and sought appointed counsel. Defendant has raised three issues on appeal: (1) whether he was properly admonished under Supreme Court Rule 605(c) (188 Ill. 2d R. 605(c)); (2) whether the trial court's failure to state the terms of the plea agreement in open court violated Supreme Court Rule 402(b) (177 Ill. 2d R. 402(b)); and (3) whether the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6 (West 2000)) violates due process because it requires no mental state and permits a felony conviction based on innocent conduct. Defendant first contends that the trial court did not strictly comply with Rule 605(c) (188 Ill. 2d R. 605(c)). Specifically, he argues that the trial court did not admonish him of the requirements of Rule 605(c)(6) (188 Ill. 2d R. 605(c)(6)), which requires the court to advise a defendant who pleads guilty pursuant to a negotiated plea that he will waive any issues not raised in his motion to withdraw his guilty plea and vacate the judgment. Defendant contends that he is accordingly entitled to have his case remanded so that he may be re-admonished and given the opportunity to file a post-plea motion. Initially, we must determine if defendant's appeal is properly before this court. The State contends that defendant has waived his right to a direct appeal by failing to comply with the requirement that he file a motion to vacate his guilty plea within 30 days. A defendant's failure to file a Rule 604(d) (188 Ill. 2d R. 604(d)) motion is a prerequisite and a "condition precedent" to a defendant's right to appeal following the entry of a guilty plea. See People v. McKay , 282 Ill. App. 3d 108, 110 (1996). A number of appellate court opinions have construed the "condition precedent" language as mandating the Rule 604(d) motion as a jurisdictional requirement. See People v. Clark , 276 Ill. App. 3d 1002, 1005 (1995); People v. Castillo , 243 Ill. App. 3d 818, 820-21 (1993). Other courts have concluded that the failure to file a Rule 604(d) motion results in the waiver of a defendant's right to appeal. See People v. Cochrane , 257 Ill. App. 3d 1047, 1050 (1994); People v. Young , 250 Ill. App. 3d 55, 63 (1993). Our supreme court concluded in People v. Wilk , 124 Ill. 2d 93, 107-09 (1988), that defendants who fail to file a Rule 604(d) motion may not pursue a direct appeal; instead the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq . (West 2000)) is the appropriate avenue of relief for such defendants. Thus, the failure to file a Rule 604(d) motion does not remove jurisdiction from the reviewing court; the reviewing court is simply precluded from considering the appeal. See McKay , 282 Ill. App. 3d at 111-12. In the case at bar, defendant failed to file a Rule 604(d) motion to withdraw his guilty plea and has seemingly waived his right to a direct appeal. However, our inquiry does not end there, for our supreme court has adopted an admonition exception to such requirement. See People v. Foster , 171 Ill. 2d 469, 473 (1996). In that case, the court held that Rule 605(b) is a necessary corollary to Rule 604(d), and where a trial court failed to issue Rule 605(b) admonishments, the appellate court may entertain an appeal despite the defendant's noncompliance with the Rule 604(d) written-motion requirements. Foster , 171 Ill. 2d at 472-73. Rule 605 has been amended since the supreme court's decision in Foster and now includes subsection (c), which applies when a judgment and sentence are entered upon a negotiated plea of guilty. See 188 Ill. 2d R. 605(c) (amended October 5, 2000, effective November 1, 2000). The admonishments contained in the amended Rule 605 are essentially identical to the admonitions contained in subsection (b) of the rule, which previously applied to all cases where defendant entered a guilty plea. See 145 Ill. 2d R. 605(b). We note that the admonition exception contained in Foster concerned admonitions given under Rule 605(b) ( Foster , 171 Ill. 2d at 473); however, because the admonitions in Rule 605(c) that are at issue here concern the consequences of withdrawing a guilty plea and the appellate rights are almost identical to those in Rule 605(b), we find the admonishment exception applies to that rule as well. See People v. Lloyd , 338 Ill. App. 3d 379, 384 (2003). Therefore, we must determine if the case at bar is covered by the admonition exception, by determining whether the trial court complied with Rule 605(c). Because this issue concerns compliance with a supreme court rule, our review is de novo . Lloyd , 338 Ill. App. 3d at 384. In analyzing this issue, we find the decision in People v. Wyatt , 305 Ill. App. 3d 291 (1999), to be instructive. That case dealt with the precise issue we are facing in the case at bar, except it was pursuant to Rule 605(b)(6). In that case, the trial court admonished defendant as follows: " 'You do have the right to appeal the sentence of this Court. To do so, you must file within 30 days of today's date your motion to either withdraw your plea of guilty, motion to reconsider the sentence and then follow it up with your notice of appeal. If you fail to file those written motions, you would lose your right to appeal. Of course, Mr. Light will remain on the case to assist you should you choose to exercise your right to appeal.' " Wyatt , 304 Ill. App. 3d at 295. Rule 605(b)(6) provides that "in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to reconsider the sentence or to vacate the judgment and to withdraw the plea of guilty shall be deemed waived." 188 Ill. 2d R. 605(b)(6). The court found that although the trial court failed to inform defendant that any allegation of error not raised in his motion would be waived on appeal or that any nol-prossed charges could be reinstated if his motion to vacate judgment and withdraw his plea was granted, there was no issue on appeal that allegations were left out of defendant's motion or that any charges were reinstated to defendant's surprise. Wyatt , 305 Ill. App. 3d at 295-96. The court concluded that the trial court substantially admonished the defendant in accordance with the rule, and that any missed verbiage did not prejudice defendant in his pursuit of post-sentencing relief. Wyatt , 305 Ill. App. 3d at 296. The instant case is governed by Rule 605(c)(6), which contains a provision very similar to Rule 605(b)(6). Rule 605(c)(6) provides that "in any appeal taken from the judgment on the plea of guilty any issue or claim of error not raised in the motion to vacate the judgment and to withdraw the plea of guilty shall be deemed waived." 188 Ill. 2d R. 605(c)(6). Here, as in Wyatt , the trial court failed to inform defendant that any allegation of error not raised in his motion would be waived on appeal or that any nol-prossed charges could be reinstated if his motion to vacate judgment and withdraw his plea was granted. However, we conclude that defendant was substantially advised of his appeal rights following his guilty plea and that he was not prejudiced by the missing verbiage. We, therefore, find that defendant was properly admonished under Rule 605(c) and that his failure to file a Rule 604(d) motion is not covered by the admonition exception. Consequently, defendant has waived his right to a direct appeal, and accordingly we dismiss this appeal. Appeal dismissed. WOLFSON and HALL, JJ., concur.	{ "pile_set_name": "FreeLaw" }
Digitally signed by Reporter of Decisions Reason: I attest to Illinois Official Reports the accuracy and integrity of this document Appellate Court Date: 2018.12.10 08:50:40 -06'00' In re O.S., 2018 IL App (1st) 171765 Appellate Court In re O.S., a Minor (The People of the State of Illinois, Caption Petitioner-Appellee, v. O.S., Respondent-Appellant). District & No. First District, Second Division Docket No. 1-17-1765 Filed June 26, 2018 Rehearing denied July 27, 2018 Decision Under Appeal from the Circuit Court of Cook County, Nos. 17-JD-155, Review 17-JD-662; the Hon. Stuart F. Lubin, Judge, presiding. Judgment Affirmed. Counsel on James E. Chadd, Patricia Mysza, and Rebecca Cohen, of State Appeal Appellate Defender’s Office, of Chicago, for appellant. Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Mary P. Needham, and Clare Wesolik Connolly, Assistant State’s Attorneys, of counsel), for the People. Panel JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Mason and Justice Hyman concurred in the judgment and opinion. OPINION ¶1 Following a bench trial conducted in accordance with the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2016)), minor respondent O.S.1 was adjudicated delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a weapon and committed to the Department of Juvenile Justice for an indeterminate period of time. On appeal, respondent contests his delinquency adjudication, arguing (1) the circuit court erred in denying his pretrial motion to suppress and (2) the State failed to prove him delinquent of the offenses beyond a reasonable doubt. For the reasons explained herein, we affirm the judgment of the circuit court. ¶2 BACKGROUND ¶3 On January 18, 2017, during the course of an encounter with Chicago police officers, minor respondent was found to be in possession of a firearm. The State subsequently filed a petition for adjudication of wardship against respondent in connection with those events. In the filing, the State alleged that respondent was “delinquent by reason of the following facts: On or about January 18, 2017, in violation of SECTION 24-1.6(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of AGGRAVATED UNLAWFUL USE OF A WEAPON, in that the above-named minor knowingly carried on or about his or her person, a firearm, at a time when he was not on his own land, or in his own abode, or a fixed place of business, and the person possessing the firearm has not been issued a currently valid Firearm Owner’s Identification Card (Section (3)(c)), this being a Class 2 felony as the Minor-Respondent has previously been adjudicated delinquent for Aggravated Unlawful Use of a Weapon. On or about January 18, 2017, in violation of SECTION 24-1.6(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of AGGRAVATED UNLAWFUL USE OF A WEAPON, in that the above-named minor knowingly carried on or about his or her person a firearm, at a time when he was not on his own land, or in his own abode, or a fixed place of business, and the person possessing the weapon was under 21 years of age and in possession of a handgun as defined in Section 24-3, unless the person under 21 is engaged in lawful activities under the Wildlife Code, this being a Class 2 felony as the Minor-Respondent has previously been adjudicated delinquent for Aggravated Unlawful Use of a Weapon. On or about January 18, 2017, in violation of SECTION 24-3.1(a)(1) of ACT 5 of CHAPTER 720 of the Illinois Compiled Statutes, as amended, [O.S.] committed the offense of UNLAWFUL POSSESSION OF FIREARMS, in that the above-named minor, being a person under 18 years of age, knowingly had in his possession a firearm of a size which may be concealed upon the person.” 1 To better preserve the privacy of minor respondent, this court has elected not to identify his first name and instead will simply use his initials or refer to him as “respondent.” This court has also changed the caption of this case to reflect this decision. -2- ¶4 Respondent, in turn, filed a motion to quash his arrest and suppress evidence, arguing that he was unlawfully detained and searched absent a warrant, probable cause, or reasonable suspicion that he was armed or engaged in criminal activity, in contravention of his constitutional rights. The circuit court subsequently presided over a hearing on respondent’s motion. ¶5 At the hearing, respondent testified that at approximately 9 p.m. on January 18, 2017, he was in the company of his cousin Max and his friend Kevin. The three young men were seated in Kevin’s vehicle, which was idling in front of an apartment building located near the intersection of Lotus and Wellington Avenues. Respondent was seated in the front passenger seat, and Max was in the backseat. Respondent explained that they were waiting for a friend who lived at that apartment building to join them. The car was stopped parallel to the curb, approximately five feet from the intersection. Because of the cold temperature, the windows of the car were rolled up, and Kevin kept the car running as they waited. In addition, Kevin activated his vehicle’s hazard lights. Respondent denied that anyone was smoking marijuana in the vehicle that evening. He specifically denied that anyone was smoking marijuana as the car was idling in front of the apartment building. ¶6 Respondent estimated that Kevin’s car had been idling in front of the apartment building for approximately three minutes when a grey “detective car” pulled up alongside of them. The law enforcement vehicle then maneuvered “diagonally in front of” Kevin’s car and activated its emergency lights. Three police officers then exited the vehicle and approached and surrounded Kevin’s car. Respondent explained that one of the officers stood in front of Kevin’s car, the second approached the driver’s side door, and the third approached the front passenger-side door. Kevin provided his license and registration in response to an officer’s request. The officer standing on the passenger side of the vehicle then used his illuminated flashlight to tap the window and request that respondent lower the window. Respondent complied with the officer’s request. After this brief interaction, the officers subsequently opened the doors of Kevin’s vehicle and ordered the young men out of the car. As soon as respondent exited the vehicle, one of the officers conducted a pat down of his person. During the course of the pat down, the officer recovered a handgun from the right pocket of respondent’s jacket. Respondent confirmed that he had been concealing the gun in his jacket pocket. ¶7 Respondent testified that he did not feel free to leave at any time during the encounter with the police officers. He explained that the officers essentially “jumped out of nowhere” and surrounded and “trapped” them. ¶8 On cross-examination, respondent admitted that he was unable to recall the name of the friend who he, Max, and Kevin were waiting for that evening. He was also unable to recall whether his cousin Max had a “blunt” tucked behind his ear. Respondent, however, denied that there were remnants of burnt cannabis in the backseat of Kevin’s vehicle. Respondent was also unable to recall whether Kevin’s vehicle had been stopped in a no parking zone. Upon being shown a photograph of the intersection of Lotus and Wellington, respondent acknowledged that there was a no parking sign located where Kevin’s vehicle had been stopped on the evening of January 18, 2017. Respondent, however, did not recall observing the sign that evening. He did recall observing a stop sign at the intersection of Lotus and Wellington and estimated that Kevin’s vehicle was stopped approximately “five feet away” from that -3- intersection. Finally, respondent was unable to recall whether his cousin was also arrested that evening after the police officers recovered marijuana and cocaine from his person. ¶9 Following respondent’s testimony, his attorney rested. Chicago police officer Jason Cloherty was called upon to testify on behalf of the State. Officer Cloherty testified that on the evening of January 18, 2017, he was a member of a three-person tactical team. Officer Rodriguez and Officer Ramos were the other members of the team. At approximately 9 p.m., the three officers were patrolling the 5400 block of West Wellington Avenue in an unmarked vehicle. He explained that they were patrolling that area because there had been reports of shots fired in that general vicinity during the previous three or four nights. Officer Cloherty testified that he was seated in the backseat of the vehicle and had his window “cracked.” As the officers were traveling westbound on Wellington, Officer Cloherty “smelled the odor of cannabis.” Officer Cloherty explained that cannabis has a distinctive smell and that he was familiar with that smell as a result of his frequent exposure to the drug during his years as a police officer. Upon smelling the distinctive odor, he looked to his immediate right and observed a Lexus sport utility vehicle (SUV) stopped in a no parking zone. Officer Cloherty knew the vehicle was in a no parking zone because there was a street sign that designated the area as such. ¶ 10 After observing the Lexus parked in a no parking zone and smelling the odor of cannabis, Officer Cloherty alerted Officer Rodriguez, who was driving the unmarked car, and directed him to “put a stop [t]here.” Officer Rodriguez stopped the vehicle, and the officers then approached the Lexus. Officer Cloherty testified that he approached the front passenger side of the vehicle, while Officer Rodriguez approached the driver’s side of the vehicle. Officer Rodriguez then began speaking to the driver through the lowered driver’s side window, and it became apparent that the odor of cannabis was emanating from inside the Lexus. Officer Cloherty then requested respondent to lower the front passenger side window, and respondent complied. After respondent rolled down the window, Officer Cloherty used his flashlight to illuminate the interior of the Lexus. He observed another young man situated in the backseat of the vehicle. That young man “had a hand-rolled cigar with cannabis [tucked behind] his ear.” After smelling marijuana and observing the blunt tucked behind the rear passenger’s ear, Officer Cloherty and his partners ordered all of the passengers out of the vehicle. Officer Cloherty testified that he opened the front passenger side door so that respondent could exit the vehicle. When he opened respondent’s door, he observed respondent reach his hand into his right jacket pocket and stand up. Officer Cloherty immediately instructed respondent “not to do that” and then put his own hand “on that pocket” and “felt a gun.” He explained that he handles a handgun every day and has made “a lot” of gun-related arrests. As such, he was eminently familiar with the shape and feel of handguns. Officer Cloherty recovered the handgun from respondent’s person. He identified the gun as a semiautomatic, black .22-caliber Beretta loaded with six live rounds and one in the chamber. Officer Cloherty then handcuffed respondent. He testified that other contraband was subsequently recovered from the Lexus, including a “partially smoked hand-rolled cigar with cannabis inside it.” ¶ 11 On cross-examination, Officer Cloherty acknowledged that at the time the officers encountered the Lexus on October 18, 2017, they did not have any type of warrant for the vehicle or any of the occupants of that vehicle. He also acknowledged that Officer Rodriguez parked their unmarked police vehicle in a manner that “blocked” the Lexus. He confirmed that the Lexus’s windows were all raised when police initially approached the car. Officer Cloherty -4- further acknowledged that he did not observe any smoke in the vehicle or any marijuana or marijuana paraphernalia on respondent’s person at any time during the encounter. He denied that he drew his weapon at any time during the encounter. ¶ 12 Upon the conclusion of Officer Cloherty’s testimony, the State rested, and the parties then argued their respective cases. The circuit court, after hearing the aforementioned testimony and the arguments of the parties, denied respondent’s motion to quash his arrest and suppress evidence. The court explained its rationale in open court as follows: “[Respondent] testified that on January 18th, he was on his way to pick up a friend. He was a passenger in the car in the front seat. They parked in front of the building at approximately 5400 West Wellington. The car was running. The windows were up. [Respondent] denied that there was any cannabis smoking or that any cannabis had been smoked in the car, and frankly, the facts of the case lead me to believe that that’s not a credible statement because the passenger had a blunt behind his ear and another burned blunt was recovered from the vehicle. [Respondent] testified that a car pulled up on the side of them and then parked diagonally in front of their car. He didn’t deny that there was a blunt behind Max’s ear. He just couldn’t recall if there was one. That was [respondent’s] testimony. He did deny that there was a blunt with burned cannabis in the rear seat, but that was recovered by the police. He testified that [the officers] asked Kevin for his license and registration. Apparently, that window was down, which made the smell of cannabis even stronger to these trained officers. The officer then opened the door on the passenger side. The [respondent] got out, was patted down, and arrested for the concealed weapon that was recovered in his jacket—jacket pocket. There is a no parking sign, which justified the initial stop. The police asked the driver to roll down his window first, and that’s when the smell was even stronger. The [respondent] denies he put his hand on his right jacket pocket, and I don’t believe him because he wasn’t credible about the cannabis smoking in the vehicle. Officer Cloherty, whose testimony I believe, testified that he always keeps his windows cracked when he’s driving, winter and summer. They pulled parallel to this parked Lexus. He smelled cannabis coming from the car parked in a no parking zone. He went to the front passenger side. Officer Rodriguez went to the driver side and asked the driver to roll down the window, and then Officer Cloherty directed the passenger, [respondent] to roll down the window on the passenger side, and he again smelled an even stronger smell of marijuana. He testified that the person sitting behind the [respondent] had a hand-rolled cigar in his ear. [Officer Cloherty] could see the green, the green substance inside of it. He testified that as the [respondent] got out of the car, which the police have the right to do according to the cases given to me, the [respondent] reached for his right jacket pocket while Officer Cloherty said, don’t do that. [Officer Cloherty] touched the pocket, immediately realized it was a gun, and arrested the [respondent]. In the rear seat, a partially smoked hand-rolled blunt was recovered. So the motion to quash arrest and suppress evidence is respectfully denied.” ¶ 13 Following the court’s ruling, the cause proceeded to an immediate bench trial. At trial, the parties stipulated to the testimony that Officer Cloherty provided during the earlier suppression hearing. Defense counsel, however, elected not to stipulate to respondent’s testimony. The State then called upon Officer Cloherty to provide additional details about his interaction with -5- respondent on the evening of January 18, 2017. Officer Cloherty testified that after he recovered the loaded .22-caliber, black Beretta handgun from respondent’s jacket pocket, he placed respondent under arrest. Respondent was then transported to the police station for processing. At that time, Officer Cloherty learned that respondent was 16 years old and identified respondent’s date of birth.2 Officer Cloherty testified that respondent did not show him a valid Firearm Owner’s Identification (FOID) card. He further testified that respondent had not been issued a valid FOID card. Moreover, at the time that he found the gun on respondent’s person, respondent was not hunting or complying with any conditions under the Illinois Wildlife Code. Officer Cloherty testified that he inventoried the handgun in accordance with proper police protocol. ¶ 14 On cross-examination, Officer Cloherty acknowledged that he had not observed the handgun prior to conducting the pat down of respondent’s person. Upon the conclusion of Officer Cloherty’s testimony, the State rested. Respondent elected not to testify, and his attorney rested without calling any witnesses. The parties then delivered closing arguments. The circuit court ultimately adjudicated respondent delinquent of the offenses of aggravated unlawful use of a weapon and unlawful possession of a firearm that were contained in the State’s adjudication petition. In doing so, the court found that the “State’s proven beyond a reasonable doubt that the [respondent] [wa]s in possession of a loaded handgun without a Firearm Owners Identification Card. He was not on his own home, land, or fixed place of business, and he is under 18, and [the gun was of a] size that was concealed. There’s a finding of guilty on Count 2, aggravated unlawful use of a weapon, Counts 1 and 3 merge into Count 2.” ¶ 15 At the sentencing hearing that followed, the court heard evidence presented in aggravation and mitigation. After considering the evidence, including the respondent’s prior arrests and delinquency adjudications, the court remanded respondent to the custody of the Department of Juvenile Justice. This appeal followed. ¶ 16 ANALYSIS ¶ 17 Motion to Suppress ¶ 18 On appeal, respondent first challenges the circuit court’s denial of his pretrial motion to quash his arrest and suppress evidence. He submits that his constitutional right to be free from unreasonable searches and seizures was violated when police officers “seized the stopped vehicle in which he was a passenger even though the driver was merely standing temporarily in a no parking zone and the smell of burnt cannabis near the vehicle did not indicate * criminal activity.” ¶ 19 The State responds that the circuit court properly denied respondent’s motion to suppress because the police officers had a reasonable articulable suspicion to initiate a Terry stop. Specifically, the State argues that “there was a reasonable, articulable suspicion of criminal activity to support the brief detention of minor-respondent where the police officer smelled cannabis emanating from the illegally parked vehicle * which minor-respondent occupied.” 2 Officer Cloherty identified respondent’s specific date of birth at the bench trial; however, in order to better preserve the privacy of respondent, this court will not include that information in this disposition. -6- ¶ 20 As a general rule, a circuit court’s ruling on a motion to suppress is subject to a bifurcated two-prong standard of review. See Ornelas v. United States, 517 U.S. 690, 699 (1996); People v. Johnson, 237 Ill. 2d 81, 88 (2010). Pursuant to this standard, a reviewing court will afford great deference to the circuit court’s factual findings and will disregard those findings only where they are against the manifest weight of the evidence. Johnson, 237 Ill. 2d at 88; People v. Lopez, 2013 IL App (1st) 111819, ¶ 17. The circuit court’s ultimate legal finding as to whether suppression is warranted, however, is subject to de novo review. People v. Colyar, 2013 IL 111835, ¶ 24; People v. Bartelt, 241 Ill. 2d 217, 234 (2011). Accordingly, “[a] court of review ‘remains free to engage in its own assessment of the facts in relation to the issues presented and may draw its own conclusions when deciding what relief should be granted.’ ” People v. Gherna, 203 Ill. 2d 165, 175-76 (2003) (quoting People v. Crane, 195 Ill. 2d 42, 51 (2001)). When conducting this analysis, a reviewing court may consider the evidence presented at trial in addition to the evidence presented during the prior suppression hearing. People v. Almond, 2015 IL 113817, ¶ 55. ¶ 21 The right to be free from unlawful searches and seizures is protected by both the federal and state constitutions. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; Bartelt, 241 Ill. 2d at 225-26. “The ‘essential purpose’ of the fourth amendment is to impose a standard of reasonableness upon the exercise of discretion by law enforcement officers to safeguard the privacy and security of individuals against arbitrary invasions.” People v. McDonough, 239 Ill. 2d 260, 266-67 (2010) (quoting Delaware v. Prouse, 440 U.S. 648, 653-54 (1979)). This constitutional guarantee “applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest.” People v. Thomas, 198 Ill. 2d 103, 108 (2001). Not every interaction between police officers and private citizens, however, results in a seizure within the meaning of the fourth amendment. Almond, 2015 IL 113817, ¶ 56; McDonough, 239 Ill. 2d at 268. Courts evaluating the nature and propriety of police-citizen encounters have grouped those interactions into three tiers: (1) an arrest or detention of an individual supported by probable cause; (2) brief investigative stops, commonly referred to as “Terry stops,” supported by a reasonable, articulable suspicion of criminal activity; and (3) consensual encounters involving neither coercion nor detention that do not implicate the fourth amendment. People v. Luedemann, 222 Ill. 2d 530, 544 (2006); People v. Smith, 2016 IL App (3d) 140648, ¶ 28. ¶ 22 For purposes of the fourth amendment analysis, a person is considered seized when a law enforcement officer, “ ‘ “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” ’ ” Luedemann, 222 Ill. 2d at 550 (quoting Florida v. Bostick, 501 U.S. 429, 434 (1991), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)). More specifically, the relevant inquiry to determine whether an individual seated in a parked or stopped vehicle has been seized is whether a reasonable person in the defendant’s position would have believed that he was free to decline the officer’s requests or otherwise terminate the encounter. Luedemann, 222 Ill. 2d at 550-51; Smith, 2016 IL App (3d) 140648, ¶ 29; People v. Bozarth, 2015 IL App (5th) 130147, ¶ 15. Our supreme court has emphasized that this “test presupposes a reasonable innocent person.” (Emphasis in original.) Luedemann, 222 Ill. 2d at 551 (citing Bostick, 501 U.S. at 438). ¶ 23 Relevant factors to consider when determining whether an individual was seized include (1) the threatening presence of multiple officers, (2) the display of a weapon by an officer, (3) some physical touching of the individual’s person, and (4) the use or language or tone of -7- voice indicating that compliance might be compelled. United States v. Mendenhall, 446 U.S. 544, 554 (1980); Luedemann, 222 Ill. 2d at 553. “In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person.” People v. Fields, 2014 IL App (1st) 130209, ¶ 22. In addition to the four aforementioned Mendenhall factors, other factors that courts have “found indicative of a seizure of a parked vehicle are ‘boxing the car in, approaching it on all sides by many officers, pointing a gun at the suspect and ordering him to place his hands on the steering wheel, or use of flashing lights as a show of authority.’ ” Luedemann, 222 Ill. 2d at 557 (quoting 4 Wayne R. LaFave, Search and Seizure § 9.4(a), at 434-35 (4th ed. 2004)). ¶ 24 As a threshold matter, the parties agree that respondent was seized when police officers arrived on scene and positioned their unmarked squad car diagonally in front of Kevin’s vehicle and then surrounded the vehicle. Upon review, we agree with the parties. The relevant testimony at the suppression hearing established that once Officer Cloherty directed his fellow officers to “put a stop” to Kevin’s car, the unmarked police vehicle positioned itself diagonally in front of the idling SUV. The manner in which the police vehicle was positioned effectively blocked the idling car from driving away from the scene. It is well established that a police encounter with persons in a parked car may be classified as a seizure where a police officer positions his car in a manner that “blocks” the other vehicle. See, e.g., Luedemann, 222 Ill. 2d at 559. In addition, we find the positioning of the officers around the idling vehicle further supports the conclusion that respondent and the other occupants were subject to an immediate seizure. Officer Cloherty also testified that once the police car was positioned diagonally in front of the idling SUV, he approached the front passenger side of the vehicle and Officer Rodriguez approached the driver’s side door. The positioning of the officers had the effect of further restraining the movement of the SUV’s occupants. See, e.g., Gherna, 203 Ill. 2d at 179-80 (finding that occupants of a parked vehicle were seized when two bike officers positioned themselves on either side of a parked car, thereby restraining the movement of the car’s occupants and preventing them from either exiting the vehicle or driving away from the scene, and began putting questions to the occupants). ¶ 25 This does not end our inquiry, however, as we must next determine whether the seizure was reasonable. Id. at 181 (“[O]nly those seizures which are ‘unreasonable’ violate the fourth amendment.”). At the suppression hearing, Officer Cloherty testified that the seizure was initiated after he observed the vehicle stopped in a no parking zone and smelled cannabis coming from the direction of the idling vehicle. Upon making those two aforementioned observations—the location of the stopped vehicle and the smell emanating from that vehicle—Officer Cloherty instructed his partners to “put a stop” to the vehicle. Respondent, however, suggests that neither the location of the parked vehicle nor the smell of cannabis provided the officers with the requisite reasonable suspicion to validate the seizure. Respondent first disputes that the vehicle in which he was a passenger was “parked” in a no parking zone. In support, he notes that the Chicago Municipal Code defines the term “parking” as “the standing of an unoccupied vehicle otherwise than temporarily for the purpose of and while actually engaged in the loading or unloading [of] property or passengers.” (Emphasis added.) Chicago Municipal Code 9-4-010 (amended Nov. 16, 2016). Given that Kevin’s vehicle was occupied while it was stopped, respondent argues that the vehicle was not actually “parked” in violation of the no parking sign; rather, it was simply “standing” in an area designed as a no parking area. The State, in turn, argues that the Illinois Vehicle Code prohibits -8- the “[s]tand[ing] or park[ing] [of] a vehicle, whether occupied or not, except momentarily to pick up or discharge passengers” within 30 feet upon the approach of a stop sign or “[a]t any place where official signs prohibit standing.” 625 ILCS 5/11-1303(a)(2)(d), (f) (West 2016). The State notes that respondent testified that Kevin’s vehicle was positioned approximately five feet from the intersection of Lotus and Wellington and that the intersection contained a stop sign. The State thus argues that officers had reasonable suspicion that the vehicle was positioned in violation of the Illinois Vehicle Code even though Officer Cloherty’s testimony did not identify the vehicle’s positioning in relation to the stop sign as a basis for the seizure. We need not resolve this issue, however, because we conclude that the odor of cannabis afforded the officers with the reasonable suspicion required to justify the seizure. ¶ 26 It is well established that distinctive odors can be “persuasive evidence” of criminal activity. People v. Stout, 106 Ill. 2d 77, 87 (1985). More specifically, Illinois courts have repeatedly recognized that the distinctive smell of burning cannabis emanating from a vehicle will provide police officers familiar with and trained in the detection of controlled substances with probable cause to search a vehicle and all persons seated therein. See, e.g., id.; People v. Zayed, 2016 IL App (3d) 140780, ¶ 22; People v. Williams, 2013 IL App (4th) 110857, ¶ 34; People v. Hansen, 326 Ill. App. 3d 610, 615 (2001); People v. Boyd, 298 Ill. App. 3d 1118, 1122 (1998). Such searches are justified pursuant to the “automobile exception” to the warrant requirement, which is derived from the recognition that there is a diminished expectation of privacy with respect to automobiles. Stout, 106 Ill. 2d at 86. ¶ 27 Respondent acknowledges this legal precedent; however, he submits that the odor of marijuana can no longer furnish police officers with probable cause or reasonable suspicion of criminal activity in light of the recent amendment decriminalizing the possession of small amounts of marijuana in Illinois. See Pub. Act 99-697, § 40, (eff. July 29, 2016) (amending section 4 of the Illinois Cannabis Control Act (720 ILCS 550/4) and decriminalizing the possession of “not more than 10 grams of any substance containing cannabis” and categorizing such possession as a “civil law violation punishable by a minimum fine of $100 and a maximum fine of $200). He relies on Commonwealth v. Cruz, 945 N.E.2d 899, 908-10 (Mass. 2011), a case in which the Massachusetts Supreme Judicial Court found that the mere odor of marijuana no longer provided law enforcement officers with reasonable suspicion of criminal activity following a recent referendum decriminalizing the possession of small amounts of marijuana. Id. In doing so, the court found that by voting in favor of the referendum, “the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes.” Id. at 909-10. Accordingly, given the fact that the referendum “changed the status of possessing one ounce or less of marijuana from a crime to a civil violation,” the court concluded that “odor of burnt marijuana alone cannot reasonably provide suspicion of criminal activity”; rather, there must be “some other additional fact to bolster a reasonable suspicion of actual criminal activity.” (Emphasis omitted.) Id. at 910. ¶ 28 Some courts have found the rationale employed by the Massachusetts court persuasive. See, e.g., People v. Brukner, 25 N.Y.S.3d 559, 572 (2015) (concluding that “the mere odor of mari[j]uana emanating from a pedestrian, without more, does not create reasonable suspicion that a crime has occurred, and consequently does not authorize law enforcement to forcibly stop, frisk, or search the individual” (emphasis in original) following the New York legislature’s decriminalization of possession of less than 25 grams of marijuana). A number of other jurisdictions that have considered the issue, however, have reached different results. In -9- doing so, courts have emphasized decriminalization is not synonymous with legalization and that the odor of marijuana remains indicative of criminal activity despite the passage of statutes decriminalizing the possession of smaller amounts of cannabis. See, e.g., Robinson v. State, 152 A.3d 661, 681 (Md. 2017) (concluding that a recent amendment to Maryland’s marijuana statute decriminalizing, but not legalizing, the possession of less than 10 grams of marijuana did not “alter existing case law concerning the search, seizure, and forfeiture of marijuana, which remains illegal” and that a “warrantless search of a vehicle is permissible upon the detection of the odor of marijuana emanating from the vehicle”); People v. Cannergeiter, 65 V.I. 114, 132, 136 (2016) (emphasizing that “decriminalization” is not synonymous with “legalization” and concluding that “the Legislature’s enactment of Act No. 7700 decriminalizing the possession of one ounce or less or marijuana in the Virgin Islands does not preclude law enforcement officers from stopping a vehicle based on the detection of an odor of marijuana emanating from that vehicle”); People v. Zuniga, 2016 CO 52, ¶¶ 23, 28 (concluding that “the odor of marijuana remains relevant to probable cause determinations and can support an inference that a crime is ongoing even though possession of one ounce or less of marijuana is allowed [pursuant to a new] Colorado law” because “a substantial number of other marijuana-related activities remain unlawful,” and thus “the odor of marijuana is still suggestive of criminal activity”); see also State v. Senna, 2013 VT 67, ¶ 16, 194 Vt. 283, 79 A.3d 45 (concluding that the passage of Vermont’s medical marijuana law “does not undermine the significance of the smell of marijuana as an indicator of criminal activity”); State v. Sisco, 373 P.3d 549, 553 (Ariz. 2016) (rejecting the argument the odor of marijuana no longer provided law enforcement officers with probable cause to believe that criminal activity is taking place following the passage of Arizona’s medical marijuana statute, which “makes marijuana legal in only limited circumstances,” because “the odor of marijuana in most circumstances will warrant a reasonable person believing there is a fair probability that contraband or evidence of a crime is present); People v. Strasburg, 56 Cal. Rptr. 3d 306, 311 (Ct. App. 2007) (finding that California’s medical marijuana act “provides a limited immunity—not a shield from reasonable investigation” and concluding that the odor of marijuana in a parked car provided a police officer with probable cause to search the vehicle and the occupants therein). ¶ 29 Upon consideration, we are unpersuaded by respondent’s argument regarding the effect of the recent amendment to the Cannabis Control Act on fourth amendment search and seizure jurisprudence. Illinois law still prohibits the knowing possession of cannabis. 720 ILCS 550/4 (West 2016) (“It is unlawful for any person knowingly to possess cannabis.”). The recent amendment to the Cannabis Control Act simply treats the possession of “not more than 10 grams of any substance containing cannabis” as a “civil law violation” punishable by a fine. Id. § 4(a). Possession of more than 10 grams of cannabis remains a crime subject to criminal penalties. See id. § 4(b)-(g). Because decriminalization is not synonymous with legalization, even though possession of less than 10 grams of cannabis is no longer a crime in Illinois, it remains illegal. Moreover, we note that it remains a crime to drive while impaired due to the ingestion of cannabis. 625 ILCS 5/11-501 (West 2016). We therefore conclude that case law holding that the odor of marijuana is indicative of criminal activity remains viable notwithstanding the recent decriminalization of the possession of not more than 10 grams of marijuana. - 10 - ¶ 30 Applying the aforementioned viable legal precedent, we further find that the search and seizure of respondent did not run afoul of the fourth amendment. The record establishes that at the time of the seizure, Officer Cloherty had smelled the distinctive odor of marijuana coming from the direction of a car that was idling in a no parking zone. Given that Illinois prohibits the knowing possession of marijuana and prohibits operating a vehicle while impaired and under the influence of marijuana, the distinctive odor of marijuana was indicative of criminal activity and provided the officers with reasonable suspicion to believe that criminal activity was afoot. When the officers approached the idling vehicle and spoke to the occupants through lowered windows, the odor of marijuana became more apparent. In addition, Officer Cloherty was able to see a marijuana cigarette tucked behind the ear of the rear seat passenger. Such observations provided the officers with probable cause to search the vehicle and the vehicle’s occupants. Stout, 106 Ill. 2d at 87-88; Zayed, 2016 IL App (3d) 140780, ¶¶ 22-23; Williams, 2013 IL App (4th) 110857, ¶ 34; Hansen, 326 Ill. App. 3d at 615; Boyd, 298 Ill. App. 3d at 1127. Respondent’s weapon was recovered during the course of this lawful search. Accordingly, we find that the circuit court properly denied respondent’s motion to suppress. ¶ 31 Sufficiency of the Evidence ¶ 32 Respondent next challenges the sufficiency of the evidence. He argues that the State failed to present sufficient evidence concerning his age and his lack of a FOID card, which were necessary elements to prove him delinquent of aggravated unlawful use of a weapon and unlawful possession of a firearm. ¶ 33 The State disputes respondent’s challenge to the sufficiency of the evidence and contends that Officer Cloherty’s testimony conclusively established respondent’s juvenile status as well as the fact that he had not been issued a FOID card at the time he was found in possession of a firearm. ¶ 34 Due process requires proof beyond a reasonable doubt to convict any person of a criminal offense. People v. Ross, 229 Ill. 2d 255, 272 (2008). This standard is applicable to juvenile delinquency proceedings. In re Q.P., 2015 IL 118569, ¶ 24; In re Jonathon C.B., 2011 IL 107750, ¶ 47. In reviewing a challenge to the sufficiency of the evidence, it is not a reviewing court’s role to retry the respondent; rather, “in delinquency proceedings, as in criminal cases, a reviewing court must decide ‘ “whether, [after] viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” ’ ” In re Q.P., 2015 IL 118569, ¶ 24 (quoting People v. Austin M., 2012 IL 111194, ¶ 107, quoting In re Jonathon C.B., 2011 IL 107750, ¶ 47). Because the trier of fact is in the best position to evaluate the credibility of the witnesses, draw reasonable inferences from the evidence, and resolve any inconsistencies in the evidence (Austin M., 2012 IL 111194, ¶ 107; In re Jonathon C.B., 2011 IL 107750, ¶ 59), a reviewing court may not substitute its judgment for that of the trier of fact and will not reverse a respondent’s delinquency adjudication unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to his guilt (In re Q.P., 2015 IL 118569, ¶ 24). ¶ 35 A person commits the offense of aggravated unlawful use of a weapon when “he or she knowingly *** [c]arries or possesses on or about his or her person or in any vehicle or concealed on his or her person except when on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person’s permission, any pistol, revolver, stun gun or taser or other - 11 - firearm” and one or more of the statute’s aggravating factors are present. 720 ILCS 5/24-1.6(a) (West 2016). In this case, the State’s adjudication petition alleged that respondent was delinquent of two counts of aggravated unlawful use of a weapon. In the first count, the aggravating factor was the fact that respondent “has not been issued a currently valid [FOID] card” (id. § 24-1.6(a)(1), (a)(3)(C)), whereas the second count was predicated on the fact that respondent was “under 21 years of age” (id. § 24-1.6(a)(1), (a)(3)(I)). The adjudication petition also alleged that respondent was delinquent of the offense of unlawful possession of a firearm in that he was under 18 years of age at the time he possessed the firearm, which was of a size that could be concealed on his person. Id. § 24-3.1(a)(1) (“A person commits the offense of unlawful possession of firearms or firearm ammunition when: (1) He is under 18 years of age and has in his possession of any firearm of a size which may be concealed upon the person.”). Accordingly, respondent’s status as a juvenile was a relevant factor with respect to the offenses of AUUW and unlawful possession of a firearm. ¶ 36 It is well settled that a person’s age may be established as an element of an offense beyond a reasonable doubt when “a police officer testifies before the court about an offender’s response to inquiries from law enforcement officers regarding his age.” (Emphasis omitted.) In re S.M., 2015 IL App (3d) 140687, ¶ 16; see also In re Gabriel W., 2017 IL App (1st) 172120, ¶ 51 (recognizing that “the appellate court has found that a police officer’s testimony at a bench trial may suffice to establish a juvenile respondent’s age”). In this case, Officer Cloherty testified that when respondent was brought to the police station for processing, he learned respondent’s birth date3 and that he was 16 years old. Such testimony is sufficient to establish respondent’s status as a juvenile beyond a reasonable doubt. In re Gabriel W., 2017 IL App (1st) 172120, ¶ 52 (finding that the State proved the respondent possessed a firearm while he was a juvenile based in part on the testimony of police officer who “testif[ied] to the age obtained while processing the arrest”). In addition to Officer Cloherty’s testimony, we note that defense counsel “stipulate[d] to Juvenile jurisdiction” at respondent’s earlier arraignment. See, e.g., id. ¶ 48 (rejecting the respondent’s argument that the State failed to prove his juvenile status, based in part, on the fact that defense counsel stipulated to juvenile jurisdiction at respondent’s arraignment, reasoning that “by stipulating to juvenile jurisdiction, respondent was stipulating to the fact that he was under 18 years old on the day of the alleged offense”). Accordingly, we find that the State presented sufficient evidence of respondent’s juvenile status. ¶ 37 Respondent, however, also argues that the State failed to present sufficient evidence that he had not been issued a valid FOID card. Like the element of an offender’s age, a police officer’s testimony may be sufficient to establish the lack of a FOID card. See, e.g., People v. Grant, 2014 IL App (1st) 100174-B, ¶¶ 25-26 (rejecting the defendant’s argument that the State failed to establish he had not been issued a FOID card where the arresting officer testified that the defendant did not present the officer with a valid FOID card and that the defendant responded “no” when asked if he had been issued a card, concluding that the “trial court could reasonably interpret [the officer’s] testimony as evidence that the defendant had not been issued and did not possess a valid FOID card”). Here, at respondent’s adjudication hearing, Officer Cloherty testified that respondent never showed him a valid FOID card and that respondent did not have 3 As mentioned previously, although Officer Cloherty identified respondent’s date of birth at the bench trial, this court will not include that information in this disposition. - 12 - and had not been issued a valid FOID card. Respondent acknowledges Officer Cloherty’s testimony, but argues that the testimony was insufficient because Officer Cloherty did not specifically explain how he knew that respondent had not been issued a valid FOID card. Although it is true that Officer Cloherty did not explain the basis for his knowledge regarding respondent’s lack of a FOID card at respondent’s adjudication hearing, we reiterate that a reviewing court considering a challenge to the sufficiency of the evidence is required to view the evidence in the light most favorable to the prosecution (In re Q.P., 2015 IL 118569, ¶ 24) and that a police officer’s testimony is sufficient to establish that an offender has not been issued a FOID card. Viewing Officer Cloherty’s testimony in the light most favorable to the State, we find that there was sufficient evidence that respondent had not been issued a FOID card. See, e.g., Grant, 2014 IL App (1st) 100174-B, ¶¶ 25-26. Accordingly, we reject respondent’s challenge to the sufficiency of the evidence. ¶ 38 CONCLUSION ¶ 39 The judgment of the circuit court is affirmed. ¶ 40 Affirmed. - 13 -	{ "pile_set_name": "FreeLaw" }
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 File Name: 06a0177p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ X Plaintiff-Appellant, - AEREL, S.R.L., - - - No. 05-3864 v. , > PCC AIRFOILS, L.L.C., - Defendant-Appellee. - N Appeal from the United States District Court for the Northern District of Ohio at Cleveland. No. 04-00744—Patricia A. Gaughan, District Judge. Argued: April 25, 2006 Decided and Filed: May 23, 2006 Before: SUHRHEINRICH, GILMAN, and ROGERS, Circuit Judges. _________________ COUNSEL ARGUED: Timothy John Fitzgerald, GALLAGHER SHARP, Cleveland, Ohio, for Appellant. M. Neal Rains, FRANTZ WARD LLP, Cleveland, Ohio, for Appellee. ON BRIEF: Timothy John Fitzgerald, George H. Carr, James F. Koehler, GALLAGHER SHARP, Cleveland, Ohio, for Appellant. M. Neal Rains, Lindsey A. Carr, FRANTZ WARD LLP, Cleveland, Ohio, for Appellee. _________________ OPINION _________________ RONALD LEE GILMAN, Circuit Judge. Aerel, S.R.L., an Italian company that served as the exclusive sales agent for PCC Airfoils, L.L.C. in Italy, sued PCC for the breach of a contract that the parties executed in 2000. PCC is an Ohio-based company that provides castings for parts used in jet engines and power generating equipment. Aerel maintains that the contract required PCC to pay Aerel commissions for all orders that Aerel obtained for PCC in Italy during the term of the contract, even if those orders were not finalized until after the contract had expired. The district court concluded that the contract unambiguously permitted PCC to cease paying commissions upon the termination of the contract on December 31, 2002, and therefore granted summary judgment in favor of PCC. For the reasons set forth below, we AFFIRM the judgment of the district court. 1 No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 2 I. BACKGROUND A. Factual background Aerel entered into its first contract with PCC in July of 1987. Under that contract, PCC agreed to pay Aerel commissions at a rate of 4% on the sale of certain PCC products in Italy, with the understanding that higher or lower commissions on other products or services could be established by mutual agreement. Commission payments were to extend for 18 months following the 1989 expiration date of the contract. Aerel would thus receive commissions during this extended period on orders placed, but not completed or paid for, during the contract term. Article V of the contract provided in relevant part as follows: 5-C Upon the termination of this AGREEMENT, PCC Airfoils, Inc.[’s] obligation to pay commission on sales of PRODUCTS promoted by AEREL hereunder shall cease except AEREL shall be paid commission on purchase orders then in force for castings to be delivered up to 18 months after the termination of the contract where the PRODUCTS covered thereby have not been delivered or paid for. After the initial contract expired in December of 1989, the parties renewed their arrangement with similar agreements—all of which contained ¶ 5-C—in 1990, 1993, and 1995. Aerel continued to serve as PCC’s exclusive sales agent in Italy following the expiration of the 1995 agreement, but operated without a written contract. In July of 2000, the parties signed a new sales agreement that modified their previous arrangement. Three provisions of the 2000 contract are at issue in the present case: 2-F PCC AIRFOILS, INC. agrees to pay AEREL in full under terms of net thirty (30) days from the date of receipt of payment to PCC AIRFOILS, INC. from the customer. 2-G On all sales originating from the Territory, PCC AIRFOILS, INC. shall pay AEREL as follows: 1. Tooling and fixtures 0% 2. Commission to be paid for CF6-8OC2 and GE90 airfoils sold to any Italian customer will not exceed 2% 3. Castings for any other program of PCC AIRFOILS, INC. 4% 4. It is understood that higher or lower commissions may be required with regard to certain products or services, by mutual agreement. *** 5-B Upon the termination of this Agreement, PCC AIRFOILS, INC.[’s] obligation to pay commission on sales of Products promoted by AEREL hereunder shall cease. Just three months after signing the new contract, the parties further modified the terms of the agreement by amending subparagraph 2 of ¶ 2-G to include other PCC products at the 2% rate. No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 3 Absent from the 2000 contract, however, was any language confirming Aerel’s right to commission payments for timely placed orders delivered and paid for during the 18 months after the contract terminated. All of the prior contracts between the parties had included that language in ¶ 5-C. Luciano Cosentini, Aerel’s principal, testified in his deposition that he knew of the change in the language and was not pleased with it. But he acknowledged that he had signed the 2000 contract voluntarily. Notwithstanding this testimony, Cosentini filed an affidavit accompanying Aerel’s motion for partial summary judgment in which he offered a detailed reason for the deletion of ¶ 5-C. Cosentini claimed that the language previously in Article V was eliminated because Aerel had requested a commission “tail” that would have permitted Aerel to collect commissions on orders that were negotiated directly by PCC, without Aerel’s help, after the contract had expired. Aerel insisted that it was entitled to these extra commissions because it had developed a market in Italy for PCC products. But PCC rebuffed Aerel’s efforts and, according to Cosentini, employed language in the new ¶ 5-B that expressly rejected the idea of commission tails. Cosentini maintained, however, that this did not alter his ongoing oral understanding with PCC’s Sales Director Alan Peterson that Aerel would continue to receive commissions on all Aerel-obtained orders placed during the contract term, even if those orders were not completed and paid for until after the contract expired. During the term of the 2000 contract, Aerel negotiated blanket purchase orders of PCC products with two Italian companies, FiatAvio and Nuovo Pignone. As the parties explained at oral argument, the blanket purchase orders in question, although submitted during the period of the agreement, did not become binding contracts until both the purchaser and PCC confirmed a specific draw-down against the blanket purchase order. These specific purchase orders led to continued sales in 2003, 2004, and 2005. In 2003, for example, sales under the specific purchase orders totaled $30,974,297. The FiatAvio purchase orders expired at the end of 2003, but the Nuovo Pignone orders still led to significant sales in 2004 and 2005. At the rates in the 2000 contract, Aerel estimated that it would have earned over $650,000 in commissions on the FiatAvio and Nuovo Pignone purchase orders between 2003 and 2005. But in October of 2002, two months before the contract was set to expire, PCC informed Aerel that the sales arrangement would not be renewed. PCC sent a check and an accompanying explanatory letter in March of 2003, purporting to pay Aerel for all of the commissions owed under the expired contract. B. Procedural background Aerel filed its complaint in the district court in April of 2004. The complaint sought recovery under the theories of breach of contract, quasi-contract, and unjust enrichment. After attempts at mediation failed, PCC filed a motion for summary judgment. Aerel responded with a cross-motion for partial summary judgment. The district court denied Aerel’s cross-motion and granted PCC’s motion. Aerel, S.R.L. v. PCC Airfoils, L.L.C., 371 F. Supp. 2d 933, 943 (N.D. Ohio 2005). Aerel argued that the language of the contract clearly requires PCC to pay commissions on all orders initiated during the contract period or, in the alternative, that the contract was ambiguous. Rejecting both of these arguments, the district court held that, under ¶ 5-B of the contract, “Aerel is not entitled to commissions after the termination of the contract.” Id. at 939. The district court also rejected Aerel’s contention that an alleged oral modification of the terms of ¶ 5-B after the contract was executed precluded summary judgment. This contention, the district court observed, was supported only by Cosentini’s affidavit. Id. at 941. In paragraphs 7 and 11 of the affidavit, Cosentini averred that PCC Sales Director Peterson had told him during and after the negotiation of the 2000 contract that Aerel would receive the contested commissions, and that Peterson’s representations “either confirmed [his] interpretation of the written contract, or modified the written contract to match [his] previous interpretation.” But the district court determined that these statements should have been revealed in Cosentini’s deposition testimony. It therefore struck No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 4 the two paragraphs in the affidavit that related to the alleged oral modification. Id. at 942. Finally, the district court granted summary judgment to PCC on the quasi-contract and unjust-enrichment claims, neither of which Aerel has pursued on appeal. Id. at 943. II. ANALYSIS A. Standard of review We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, the district court must construe the evidence and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). B. The district court did not err in determining that no commissions were due after the contract expired Aerel first argues, as it did before the district court, that ¶ 2-G of the contract clearly entitles Aerel to all of the post-termination commissions that it seeks. This argument fails for two reasons. The first is that Aerel itself recognizes that the operative phrase in ¶ 2-G—“sales originating from the Territory”—“is susceptible to two or more reasonable interpretations.” See Schachner v. Blue Cross & Blue Shield of Ohio, 77 F.3d 889, 893 (6th Cir. 1996) (“Contract language is ambiguous if it is subject to two reasonable interpretations.”). Those varied interpretations center on the word “originating,” which could mean simply “ordered,” or, alternatively, could include the entire transactional process, from placement of the order through manufacturing, shipping, and receipt of payment. In other words, ¶ 2-G, standing alone, does not answer the question of whether the contract required PCC to pay Aerel commissions for products ordered, but not yet shipped, accepted, or paid for, during the term of the contract. The second reason that Aerel’s argument fails is that ¶ 5-B specifically covers the topic of post-termination commissions and therefore supersedes the more general terms of ¶ 2-G. Under Ohio law, “[a] specific provision controls over a general one.” Monsler v. Cincinnati Cas. Co., 598 N.E.2d 1203, 1209 (Ohio Ct. App. 1991); see also BP Chemicals, Inc. v. First State Ins. Co., 226 F.3d 420, 426-27 (6th Cir. 2000) (explaining the principle that “more specific provisions control over general ones”). Unlike ¶ 2-G, which governs commission rates generally for “all sales” during the contract period, ¶ 5-B focuses on the precise time when PCC’s duty to pay commissions ended. The latter paragraph fixes the cessation of that duty at the termination of the contract, and does so in plain terms. Aerel’s response—that ¶ 5-B refers only to “products that had previously been promoted by Aerel”—is unpersuasive both because it adds a nonexistent term to an otherwise clear contractual provision and because, as soon as the contract period ended, any PCC product promoted by Aerel would be one that Aerel “previously promoted.” Because the plain language of ¶ 5-B controls and displaces the general terms of ¶ 2-G, and because ¶ 2-G does not address the payment of post-termination commissions, we reject Aerel’s first argument. Aerel’s alternative argument is that ¶¶ 2-F and 2-G, when juxtaposed with ¶ 5-B, create an ambiguity that must be construed against PCC as the drafter. See Graham v. Drydock Coal Co., 667 N.E.2d 949, 952 (Ohio 1996) (reciting the rule that “a contract is to be construed against the party who drew it”). Rejecting this contention, the district court concluded that the unambiguous language of ¶ 5-B controls the issue of post-termination commissions. Aerel, 371 F. Supp. 2d at 939. The No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 5 district court further reasoned that the structure of the contract favored the interpretation advocated by PCC, since Article II discusses the various aspects of the parties’ dealings during the contract term, whereas the two provisions in Article V specifically refer to when the contract expires and what happens upon termination. Id. at 940. We agree with the district court’s interpretation of the contract and reject Aerel’s argument that the contract is ambiguous. Aerel insists that the phrase “sales of Products promoted by AEREL hereunder” in ¶ 5-B is susceptible to at least two reasonable interpretations, one of which is that the phrase refers only to those products “previously promoted and marketed by Aerel.” These latter products would be distinguished from products sold by PCC to existing customers during the requested tail period that would follow the termination of the contract. Aerel’s reading of this otherwise straightforward language is an obvious attempt to create ambiguity where none exists, an attempt that contravenes Ohio law in two ways. The first way is that Aerel, in support of its reading, relies on the extrinsic evidence of its request for commission “tails” to prove that ¶ 5-B addressed only that request. Ohio courts, however, will “not use extrinsic evidence to create an ambiguity; rather, the ambiguity must be patent, i.e., apparent on the face of the contract.” Covington v. Lucia, 784 N.E.2d 186, 190 (Ohio Ct. App. 2003) (citations and quotation marks omitted); see also Shifrin v. Forest City Enterprises, Inc., 597 N.E.2d 499, 501 (Ohio 1992) (explaining that extrinsic evidence will “be considered in an effort to give effect to the parties’ intentions” only if “the language of a contract is unclear or ambiguous”). No such patent ambiguity exists in the 2000 contract. Second, Aerel appears to believe that the existence of competing readings of contractual language is sufficient in and of itself to render the provision ambiguous. This argument has been consistently rejected by various Ohio courts. See, e.g., Ohio Water Dev. Auth. v. W. Res. Water Dist., 776 N.E.2d 530, 535 (Ohio Ct. App. 2002) (explaining that “the fact that parties may adopt conflicting interpretations of a contract between them, while involved in litigation, will not create ambiguity or a basis for unreasonable interpretation of the language”). The Ohio Supreme Court has recently reaffirmed that a contract’s susceptibility to more than one reading does not necessarily render the writing ambiguous. See State v. Porterfield, 829 N.E.2d 690, 692-93 (Ohio 2005) (discussing the “level of lucidity necessary for a writing to be unambiguous” in the context of statutory interpretation); see also United Tel. Co. of Ohio v. Williams Excavating, Inc., 707 N.E.2d 1188, 1200 (Ohio Ct. App. 1997) (observing that contract language is ambiguous only if “it is susceptible of two conflicting but reasonable interpretations”) (emphasis added). Aerel’s proposed construction of ¶ 5-B strikes us as unreasonable because such a construction would require PCC to pay Aerel sales commissions for an indefinite period of time following termination—something that not even former ¶ 5-C required PCC to do under the previous agreements between the parties. The structure of the contract also supports the district court’s conclusion. Article II contains nine provisions that, among other things, established Aerel as PCC’s exclusive sales representative in Italy, bound Aerel via a noncompete clause for one year after the contract period, and dictated the time of payment and the commission rates. In contrast, Article V contains only two provisions, the first of which set forth the beginning and the end of the contract period and the second of which, ¶ 5-B, eliminated PCC’s obligation to pay commissions upon the termination of the contract. As explained above, nothing in Article II covers the payment of post-termination commissions, leaving the clear language of ¶ 5-B as the only section of the contract to address that issue directly. Paragraphs 2-F and 2-G are therefore logically read as governing particular aspects of the parties’ ongoing relationship during the contract period, whereas ¶ 5-B resolves a question left unanswered by the former provisions. The argument emphasized by Aerel in its Reply Brief—that the district court’s attempt to harmonize Articles II and V leads to an absurd result—is likewise unpersuasive. Aerel contends No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 6 that, under the district court’s interpretation of ¶¶ 2-F and 5-B, PCC could have refused to pay Aerel’s commission on a completed contract if PCC’s payment obligation did not mature until less than 30 days remained before the contract expired. This is possible, Aerel says, because ¶ 2-F required that PCC pay Aerel within 30 days of receiving payment from the customer, thereby permitting PCC to deprive Aerel of commissions otherwise due simply by withholding payment until after the contract expired. We do not believe that the interpretation adopted by the district court leads to the absurd consequences that Aerel postulates. First and foremost, the scenario envisioned by Aerel is not the one at issue in the present case, which concerns blanket purchase orders that potentially generated commissions well after the termination date of the contract. These blanket purchase orders, as we explained above, did not become binding contracts—and thus did not generate sales commissions—until the customer confirmed a specific draw-down against its blanket purchase order. Secondly, Aerel’s counsel confirmed at oral argument that no commissions on these specific draw-downs became due in the last 30 days of the contract term. In any event, principles of equity, which “regard[] as done that which ought to be done,” Syring v. Sartorious, 277 N.E.2d 457, 458 (Ohio Ct. App. 1971) (citations and quotation marks omitted), would likely have barred PCC from withholding commissions fully payable within 30 days of the contract’s expiration. Aerel therefore confuses a hypothetical attempt by PCC to deprive Aerel of commissions with PCC’s right under the contract to decline to pay commissions on orders that were initially negotiated during the contract term but were not finalized until after termination. In other words, ¶ 5-B of the contract would not likely have permitted PCC to deny Aerel the commission payments otherwise due at the time of termination, but did permit PCC to refuse to pay commissions for orders that did not even become final until after the contract had expired. We acknowledge that, read in this manner, the 2000 contract might have decreased Aerel’s incentive to seek out long-term contracts on PCC’s behalf, and might also have affected Aerel’s desire to work for PCC during the final months of the contract period. But enforcement of the document’s unambiguous terms, although adverse to Aerel’s financial interests, is no more absurd or manifestly unjust than refusing to grant PCC the benefit of a bargain that it successfully negotiated with another experienced commercial entity. Finally, the district court correctly distinguished this court’s decision in Harry W. Applegate, Inc. v. Stature Electric, Inc., 275 F.3d 486 (6th Cir. 2001). As in the present case, Applegate involved a dispute over commissions on blanket purchase orders placed before the contract expired but not paid for until after termination. Id. at 488. This court first found that the written agreement was ambiguous and then, applying New York law, held that the plaintiff was entitled to the requested commissions. Id. at 489. Central to this court’s holding was the fact—repeated three times in the opinion—that “the Agreement does not clearly provide a contrary provision.” Id.; see also id. at 488 (mentioning twice that the plaintiff was entitled to the commissions under New York law because the agreement was silent on the issue). In the present case, in contrast, ¶ 5-B of the contract unambiguously addresses the issue of post-termination commissions and renders resort to default principles of state contract law unnecessary. Because Aerel’s ambiguity argument finds no support in the decisions of either this court or the Ohio courts, we agree with the district court’s conclusion that the contract was unambiguous. C. The district court’s decision to strike two paragraphs from Cosentini’s affidavit Aerel next attacks the district court’s decision to strike paragraphs 7 and 11 from the post- deposition affidavit submitted by Cosentini. Had those sections of the affidavit not been excluded, No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 7 Aerel contends, there would have been a genuine issue of material fact as to whether the 2000 contact was orally modified after its signing. The district court based its decision on the rule that a party cannot create a disputed issue of material fact by filing an affidavit that contradicts the party’s earlier deposition testimony. See Penny v. United Parcel Service, 128 F.3d 408, 415 (6th Cir. 1997) (“[A] party cannot create a genuine issue of material fact by filing an affidavit, after a motion for summary judgment has been made, that essentially contradicts his earlier deposition testimony.”); see also Reid v. Sears, Roebuck & Co., 790 F.2d 453, 460 (6th Cir. 1986) (establishing this general principle). According to Aerel, the district court erred by extending the rule announced in Reid—which applies where the later affidavit “essentially contradicts” the earlier testimony—to a situation where the affidavit covers a topic omitted in the prior testimony. We will not overturn a district court’s decision to grant or deny a motion to strike an affidavit unless the lower court abused its discretion. Int’l Union, United Automobile, Aerospace, and Agricultural Implement Workers of Am. v. Aguirre, 410 F.3d 297, 304 (6th Cir. 2005) (applying the abuse-of-discretion standard in evaluating a challenge to the district court’s decision to strike the affidavit of an expert witness). A district court abuses its discretion when it “relies on erroneous findings of fact, applies the wrong legal standard, misapplies the correct legal standard when reaching a conclusion, or makes a clear error of judgment.” Reeb v. Ohio Dept. of Rehabilitation and Correction, 435 F.3d 639, 644 (6th Cir. 2006). In striking the two paragraphs from Cosentini’s affidavit, the district court relied both on the general rule announced in Reid and also on three unpublished opinions from this court applying that rule. Aerel, 371 F. Supp. 2d at 942 (citing the three unpublished decisions of Lockard v. General Motors Corp., 52 F. App’x 782, 788-89 (6th Cir. 2002), Smith v. Consolidated Rail Corp., No. 95- 3727, 1996 WL 366283, at 4 (6th Cir. 1996), and Rosinski v. Electronic Data Systems Corp., No. 90-2133, 1991 WL 105747, at 6 (6th Cir. 1991) (per curiam)). This court’s decision in Smith v. Consolidated Rail Corp. provides little insight into the present case because that decision concerned only the basic factual setting addressed in Reid, where the deponent had been “specifically questioned” about the key factual issue. See Smith, 1996 WL 366283, at 4; Reid, 790 F.2d at 460. The Rosinski decision, however, expands the Reid rule to cover a situation in which the later- filed affidavit revealed an omission in the party’s deposition testimony. See Rosinski, 1991 WL 105747, at 6 (striking an affidavit that, though not directly contradictory, “point[ed] to a significant omission in” the plaintiff’s deposition testimony). Finally, the court in Lockard appears to have recast one of the policy justifications underlying the Reid rule—that a party’s “ample opportunity during discovery to present evidence provides courts with reason to prevent that party from introducing new evidence in an affidavit opposing summary judgment”—as an independent ground for striking portions of an affidavit. See Lockard, 52 F. App’x at 789 (citing Biechele v. Cedar Point, Inc., 747 F.3d 209, 215 (6th Cir. 1984)). In our opinion, the expansive view of the Reid rule adopted in the latter two of these nonprecedential opinions is unwarranted. The rule set forth in Reid is grounded on the sound proposition that a party should not be able to create a disputed issue of material fact where earlier testimony on that issue by the same party indicates that no such dispute exists. Reid and its progeny have thus barred the nonmoving party from avoiding summary judgment by simply filing an affidavit that directly contradicts that party’s previous testimony. See, e.g., Peck v. Bridgeport Machines, Inc., 237 F.3d 614, 619 (6th Cir. 2001) (holding that a post-deposition affidavit submitted by the plaintiff’s expert was “not cognizable for purposes of the summary judgment decision” because it was “plainly contradictory” to the expert’s previous deposition testimony). This is a far cry, however, from preventing a party who was not directly questioned about an issue from supplementing incomplete deposition testimony with a sworn affidavit. Such an affidavit fills a gap left open by the moving party and thus provides the district court with more No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 8 information, rather than less, at the crucial summary judgment stage. Because the deponent is under no obligation to volunteer information not fairly sought by the questioner, we see no reason to apply Reid and its progeny to such a situation. See Bass v. City of Sioux Falls, 232 F.3d 615, 618 (8th Cir. 1999) (reversing the district court’s decision to disregard an allegedly inconsistent affidavit because the deponent “had no duty to volunteer [the relevant] information during the deposition absent a question from plaintiffs’ counsel seeking that information”); see also In re B-E Holdings, Inc., 240 B.R. 751, 753 (Bankr. E.D. Wisc. 1999) (observing that although deponents must appear and provide forthright answers, they need not “volunteer information, explain trial strategies, or reveal privileged information”). Our conclusion is in accord with the variations of the Reid rule adopted by our sister circuits. As the Supreme Court has observed, the lower federal courts have held with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive summary judgment simply by contradicting his or her own previous sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier sworn deposition) without explaining the contradiction or attempting to resolve the disparity. Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (collecting cases). These rules invariably reflect the importance of distinguishing legitimate efforts to supplement the summary judgment record from attempts to create a sham issue of material fact. The Fifth Circuit, for example, has held that a nonmoving party “cannot defeat a motion for summary judgment by submitting an affidavit [that] directly contradicts, without explanation, his previous testimony.” Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223, 228 (5th Cir. 1984). That court does not, however, permit a district court to strike or “disregard a party’s affidavit merely because it conflicts to some degree with an earlier deposition.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893-94 (5th Cir. 1980) (holding that the district court erred in refusing to consider an affidavit that was “not inherently inconsistent” with the party’s deposition testimony) (emphasis added). Rather, the post- deposition affidavit should be considered unless “the issue raised by the contradictory affidavit constituted a sham.” Id. at 894; see also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (distinguishing Bone as a case in which the later affidavit “simply supplement[ed] the previous sworn deposition”). Other circuits likewise permit district courts to consider post-deposition affidavits that appear to contradict prior deposition testimony so long as the affidavit is not intended to create a sham issue of fact—that is, if the nonmoving party was confused during the deposition or has some other legitimate justification. See, e.g., Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986) (holding that a contradictory affidavit should be disregarded when it attempts to create a sham fact issue, and listing factors to be used in determining whether the affidavit creates such an issue); Miller v. A.H. Robins, Co., 766 F.2d 1102, 1104 (7th Cir. 1985) (holding that “an inconsistent affidavit may preclude summary judgment . . . if the affiant was confused at the deposition and the affidavit explains those aspects of the deposition testimony or if the affiant lacked access to material facts and the affidavit sets forth the newly-discovered evidence”). Both these rules and the exceptions thereto recognize, as the Tenth Circuit has cogently explained, “that the utility of summary judgment as a procedure for screening out sham fact issues would be greatly undermined if a party could create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” Franks, 796 F.2d at 1237. As we interpret Reid and the other relevant authorities, then, a district court deciding the admissibility of a post-deposition affidavit at the summary judgment stage must first determine whether the affidavit directly contradicts the nonmoving party’s prior sworn testimony. See Albertson, 749 F.2d at 228 (employing the “directly contradicts” language). A directly contradictory No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 9 affidavit should be stricken unless the party opposing summary judgment provides a persuasive justification for the contradiction. See A.H. Robins, 766 F.2d at 1104 (setting forth instances in which “an inconsistent affidavit may preclude summary judgment”). If, on the other hand, there is no direct contradiction, then the district court should not strike or disregard that affidavit unless the court determines that the affidavit “constitutes an attempt to create a sham fact issue.” See Franks, 796 F.2d at 1237. A useful starting point for this inquiry is the nonexhaustive list of factors articulated by the Tenth Circuit in Franks, where the court noted that the existence of a sham fact issue turns on “whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion [that] the affidavit attempts to explain.” Id. The district court in the present case struck portions of Cosentini’s affidavit that admittedly did not directly contradict his deposition testimony, but rather revealed information that was not fully explored during that testimony. See Aerel, 371 F. Supp. 2d at 942 (recognizing that paragraphs 7 and 11 did “not represent a direct contradiction between Cosentini’s Affidavit and prior deposition testimony”). Absent a direct contradiction, as we have said, the district court should not have struck those two paragraphs unless they were added in an attempt to create a sham fact issue. But nothing in the record suggests that Cosentini attempted to “create an issue of fact merely by submitting an affidavit contradicting his own prior testimony.” See Franks, 796 F.2d at 1237. The transcript of Cosentini’s deposition testimony instead reveals that he was questioned about his understanding of the contract and that he referred to discussions with PCC Sales Director Alan Peterson, but that PCC’s counsel quickly shifted the inquiry to topics other than Cosentini’s discussions without fully exploring the issue. Paragraphs 7 and 11 of the affidavit are therefore properly viewed as an “attempt[] to explain” the oral understandings that were alluded to but not explored during the three- hour deposition. See id. (listing “whether the earlier testimony reflects confusion [that] the affidavit attempts to explain” as one factor in determining the existence of sham fact issue). The district court’s ruling, though consistent with the unpublished decisions of this court discussed above, therefore strikes us as a potentially significant extension of the principle announced in Reid—one that threatens to transform the straightforward, objective inquiry needed to decide whether an affidavit contradicts deposition testimony into a more subjective evaluation of a party’s prior “opportunit[ies] during discovery to present evidence” and whether that party could have or should have been more forthcoming in her deposition. See Lockard, 52 F. App’x at 789. This court has not yet endorsed such an extension of Reid in any published decision, and we decline to do so today. We do not need to decide, however, whether the district court’s apparent extension of the Reid rule or its reliance on this court’s unpublished decisions rose to the level of an abuse of discretion. This is because, even if the district court improperly applied that rule and should have accepted the affidavit in full, PCC was still entitled to summary judgment. Cf. Lockard, 52 F. App’x at 790 (“More importantly, even if the district court had acted improperly in granting [the defendant’s] motion to strike, any error would not change the disposition of the present case.”). Under Ohio law, an oral modification to a written contract, other than a contract for the sale of goods, must be supported by additional consideration to be binding. Valmac Industries, Inc. v. Ecotech Machinery, Inc., 738 N.E.2d 873, 875 (Ohio Ct. App. 2000) (applying this rule in assessing the validity of a forum-selection clause); see also Richland Builders v. Thome, 100 N.E.2d 433, 437 (Ohio Ct. App. 1950) (“An oral agreement, to have the effect to alter or modify the terms of a prior written contract, must be a valid and binding contract of itself, resting upon some new and distinct consideration.”). Consideration is defined as “bargained for legal benefit and/or detriment.” Kostelnik v. Helper, 770 N.E.2d 58, 61 (Ohio 2002) (citation omitted). “[E]ither a detriment to the No. 05-3864 Aerel, S.R.L. v. PCC Airfoils, L.L.C. Page 10 promisee or a benefit to the promisor” suffices to establish consideration under Ohio law. Ford v. Tandy Transp., Inc., 620 N.E.2d 996, 1009 (Ohio Ct. App. 1993). In the present case, PCC’s alleged post-signing promise to pay the disputed commissions is not supported by “new and distinct consideration.” See Richland Builders, 100 N.E.2d at 437. The purported promise to pay was not exchanged for anything that benefitted PCC or caused a detriment to Aerel. See Ford, 620 N.E.2d at 1009. Instead, the promise—if in fact it was made—would constitute a one-sided deal in which PCC gratuitously agreed to pay additional commissions for services that Aerel had already agreed to provide in the written agreement. The result of such a deal would not have been “regarded by [PCC] as beneficial enough to induce [its] promise.” See Carlisle v. T & R Excavating, Inc., 704 N.E.2d 39, 43 (Ohio Ct. App. 1997) (holding that a husband’s desire to help his wife’s business in order to increase marital income did not constitute consideration). Aerel’s oral-modification argument therefore fails as a matter of law, entitling PCC to summary judgment even if Cosentini’s affidavit should have been admitted in its entirety. III. CONCLUSION For all of the reasons set forth above, we AFFIRM the judgment of the district court.	{ "pile_set_name": "FreeLaw" }
972 So.2d 1169 (2008) Sheila ROBIN v. Jason W. WONG, BSCPT, and Pendleton Memorial Methodist Hospital. No. 2007-C-2245. Supreme Court of Louisiana. January 11, 2008. Denied.	{ "pile_set_name": "FreeLaw" }
Case: 11-41248 Document: 00511963982 Page: 1 Date Filed: 08/21/2012 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED August 21, 2012 No. 11-41248 Conference Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOSE DELFIDES FLORES-LOPEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 7:11-CR-942-1 Before SMITH, ELROD, and SOUTHWICK, Circuit Judges. PER CURIAM:* The Federal Public Defender appointed to represent Jose Delfides Flores- Lopez has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Flores-Lopez has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 11-41248 Document: 00511963982 Page: 2 Date Filed: 08/21/2012 No. 11-41248 GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5TH CIR. R. 42.2. 2	{ "pile_set_name": "FreeLaw" }
	{ "pile_set_name": "FreeLaw" }
Case: 19-10876 Document: 00515463053 Page: 1 Date Filed: 06/23/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-10876 June 23, 2020 Summary Calendar Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. JESSICA ARNOLD, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CR-234-1 Before CLEMENT, ELROD, and OLDHAM, Circuit Judges. PER CURIAM: * Jessica Arnold pleaded guilty to using a facility of interstate commerce to aid a racketeering enterprise in violation of 18 U.S.C. § 1952(a)(3)(A) and was sentenced to five years of probation. The probation officer twice reported that Arnold had violated the conditions of her probation by using controlled substances. Each time, Arnold was permitted to remain on probation but was required to participate in additional drug treatment programs and undergo * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 19-10876 Document: 00515463053 Page: 2 Date Filed: 06/23/2020 No. 19-10876 more frequent drug tests. When Arnold violated the conditions of her probation for a third time, again by using controlled substances as she admitted at her revocation hearing, the district court revoked her probation and sentenced her to 24 months in prison, which was above the recommended range of four to ten months, and three years of supervised release. This appeal followed. Arnold argues for the first time that the district court committed a procedural error by failing to adequately explain the chosen sentence. Because Arnold failed to preserve the issue for appeal, our review is for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Kippers, 685 F.3d 491, 497 (5th Cir. 2012). The record demonstrates that the district court considered the Chapter 7 policy statements; the 18 U.S.C. § 3553(a) sentencing factors; the probation officer’s reports; and the evidence and arguments presented, including Arnold’s request for leniency, ultimately articulating a reasoned basis for imposing a sentence above the recommended range. See Kippers, 685 F.3d at 498-99. Accordingly, there is no procedural error with respect to the adequacy of the district court’s explanation. See id. at 498-99. Arnold also argues that her sentence is substantively unreasonable because the district court erred in balancing the sentencing factors and considered an inappropriate factor. Because Arnold preserved this issue of substantive reasonableness for appeal, our review is for abuse of discretion in light of the totality of the circumstances. See Kippers, 685 F.3d at 499-500. The district court determined that a 24-month sentence was warranted in light of the following sentencing factors: the nature and circumstances of Arnold’s probation violations, including their frequency and seriousness; Arnold’s history and characteristics, including her drug addiction and mental health 2 Case: 19-10876 Document: 00515463053 Page: 3 Date Filed: 06/23/2020 No. 19-10876 issues; and the need to deter Arnold from engaging in future criminal activity, especially given that the court’s prior leniency did not prevent her from violating the conditions of her probation. See § 3553(a); Kippers, 685 F.3d at 499-500. In light of the significant deference that we afford a district court’s consideration of not only the § 3553(a) factors but also the reasons for its sentencing decision, Arnold has not demonstrated that her 24-month sentence is substantively unreasonable under the abuse-of-discretion standard. See Kippers, 685 F.3d at 500-01. The judgment of the district court is AFFIRMED. 3	{ "pile_set_name": "FreeLaw" }
208 Okla. 511 (1953) 257 P.2d 799 STATE ex rel. MOORE v. CURRY, Judge. No. 35913. Supreme Court of Oklahoma. May 26, 1953. Charles Besly, Pawnee, for plaintiff. P.D. Erwin, Chandler, for defendant. WILLIAMS, J. This is an original proceeding in this court for a writ of prohibition. The pertinent facts giving rise to this action are as follows: Mike Moore filed a suit in the district court of Pawnee county against several defendants, including E.L. Irwin, alleging, among other things, that they were members of a copartnership. Irwin was originally designated in the petition by the name of "Irvin Cotton"; later, with permission of the court, the name "Irvin Cotton" was changed to read "E.L. Irvin", The statement by plaintiff that Irwin was commonly known as "Cotton Irwin" is not denied by respondent. A summons was issued to be served on "Irvin Cotton"; the return of service shows that it was served on "E.L. Irvin". Plaintiff Moore later recovered judgment in this suit. Eight months later, Irvin, whose true name is E.L. Irwin, filed suit in the district court of Lincoln county against Mike Moore and the sheriff of Lincoln county, asking that the sheriff be restrained and enjoined from making a levy upon an execution issued out of the district court of Pawnee county pursuant to the judgment recovered in the above mentioned suit. No service was had on Moore, but the sheriff was served with summons, and the district court of Lincoln county granted the restraining order, and later, a permanent injunction. Six weeks later, Mike Moore, appearing specially, filed in the Lincoln county case a motion to vacate judgment, which motion was overruled. Moore (hereinafter referred to as petitioner) now seeks a writ of prohibition commanding the district court of Lincoln 512 county and the judge thereof (hereinafter referred to as respondent) to refrain from further proceedings in the Lincoln county case mentioned above; and to refrain from exercising jurisdiction over the sheriff of Lincoln county in the exercise of his legal duty in levying upon property of Irwin under the execution from the district court of Pawnee county; and that he be ordered to vacate, set aside, and hold for naught all purported orders, judgments and decrees rendered in the Lincoln county case mentioned. As grounds for the issuance of such writ, petitioner Moore recites the facts as above set out and argues that a district court of one district in Oklahoma has no superior authority nor superintending control over a district court of another district. Since we deem this proposition to be controlling in the instant case, we will not consider the other contentions advanced herein by petitioner. In Harris v. Hudson, 122 Okla. 171, 250 P. 532, which was a proceeding for a writ of prohibition, this court said: "A district court of one judicial district of this state has no superior authority nor superintending control over a district court of another judicial district, nor any authority to enjoin or interfere with a judge of another judicial district in the enforcement of his own judgments." "Where a district court of one judicial district assumes to exercise a superintending control over the judge of another district by issuing a restraining order, purporting to restrain the judge of such other district from enforcing a judgment of his own court, a writ of prohibition will issue to the judge thus exceeding his jurisdiction and powers." In the instant case, though the restraining order and injunction were issued against the sheriff of Lincoln county, they had the effect of preventing the judge of the district court of Pawnee county from enforcing the judgment of his own court. It is apparent from the brief that the gist of respondent's argument is to the effect that the judgment in the Pawnee county suit was void on its face as to E.L. Irwin for the reason that E.L. Irwin was not properly served with summons, and that the above rule of law does not apply. With this we cannot agree. In Stocker v. Dobyns-Lantz Hardware Co., 101 Okla. 134, 224 P. 303, this court considered a situation wherein the wrong initials were used in the name of a defendant served with summons. The court said in the body of the opinion: "An individual who has been served with a summons in which he is designated by the wrong name is entitled to plead a misnomer, but the service of summons designating the defendant by the wrong name, where it is personally served upon the right defendant, is sufficient to give the court jurisdiction of the defendant, and such defect becomes immaterial, unless the defendant appears and pleads the misnomer." (Emphasis supplied.) See, also, 42 Am. Jur. Process, § 18, which reads in part: "As a general rule, an objection that the defendant was sued by the wrong name is matter of abatement only, and will not avoid a judgment against him if he has been actually served. It is true there are some cases which hold that one sued and served by a wrong name may disregard the summons, but the better view is that one summoned by a wrong name, being thus informed that he is sued, although not correctly described by his true name, who does not avail himself of his opportunity to object, whereby the true name would be inserted in the proceedings, is precluded from afterward doing so. * * "* * * The test in such cases appears to be whether the defendant could have been misled by the error in his name." (Emphasis supplied.) In the instant case, it is not denied that the summons was actually served upon the right party. Though the last name was misspelled, and the names were reversed, we believe, pursuant to the principles of law above set out, that said summons was sufficient to apprise 513 E.L. Irwin of the fact that he had been sued, and to give the district court of Pawnee county jurisdiction over him. Since the sheriff who served the summons had no difficulty in determining the identity of the person actually intended, we do not believe that the person himself could have been misled. Respondent presents five arguments against the issuance of the writ prayed for. The first one is based upon the following rule of law, which respondent quoted: "It is a rule generally observed by the courts that an application for writ of prohibition, restraining an inferior court from proceeding in a cause, will not be entertained until lack of jurisdiction of the cause is called to the attention of the lower court in some manner." Adams v. District Court of Muskogee County, 166 Okla. 263, 27 P.2d 611. The record before us shows that petitioner Moore, in his motion to vacate judgment, filed in the Lincoln county action, specifically mentioned the Pawnee county judgment; it also shows that the original petition in the Lincoln county action substantially set out the facts concerning the Pawnee county judgment. The above rule is therefore not applicable, since its requirements have been complied with. Respondent's second argument is that petitioner Moore had "An adequate remedy by appeal". Granting for purposes of argument only that Moore could have appealed (he was not served with summons in the Lincoln county action, and no judgment was rendered against him), this contention is not applicable here. By the positive terms of the rule expressed in the Harris case, above quoted, petitioner Moore is entitled to a writ of prohibition under the facts herein existing for the very reason that E.L. Irwin himself did not pursue his "adequate remedy by appeal" in the Pawnee county action, but chose to ignore the summons, allow the Pawnee county case to go to judgment, and then file a separate action in Lincoln county. If respondent's argument herein were sustained, an absurdity would result in that, so long as either party could keep getting injunctions from different courts, neither party would be entitled to a writ of prohibition, and endless confusion would result. See Harris Foundation v. District Court of Pottawatomie County, 196 Okla. 222, 163 P.2d 976, wherein this court said: "Prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force, and the writ will not be withheld because other concurrent remedies exist; it not appearing that such remedies are equally adequate and convenient." It appears from the record before us that the Pawnee county judgment has become final. Under respondent's reasoning that petitioner has an "adequate remedy by appeal", Moore would be forced to prosecute an ordinary appeal to the Supreme Court in order to enforce the valid and regular judgment which he won in the lower court, in which he now has a vested property right, and which he is entitled to have enforced now. Under such circumstances, it can hardly be said that an appeal is "equally adequate and convenient." Respondent presented three other propositions in his brief, but since they are all based on the assumption that the judgment from the district court of Pawnee county was void, which assumption we have shown to be false, we will not consider them. We hold that, in the absence of the pleading of a misnomer in the Pawnee county case, the service of summons upon E.L. Irwin was valid; that the judgment therein rendered was a valid judgment; and that the district court of Lincoln county exceeded its jurisdiction in issuing a restraining order and injunction which amounted to an assertion of "superior authority" or "superintending control over a district court of another judicial district." 514 Writ granted. JOHNSON, V.C.J., and WELCH, CORN, DAVISON, O'NEAL, and BLACKBIRD, JJ., concur.	{ "pile_set_name": "FreeLaw" }
211 B.R. 1006 (1997) In re Gussie Mae TAYLOR, Debtor. SEARS, ROEBUCK AND CO., Plaintiff, v. Gussie Mae TAYLOR, Defendant. G.E. CAPITAL CORPORATION/MACY'S, Plaintiff, v. Gussie Mae TAYLOR, Defendant. MONTGOMERY WARD CREDIT CORPORATION, Plaintiff, v. Gussie Mae TAYLOR, Defendant. FDS NATIONAL BANK, Plaintiff, v. Gussie Mae TAYLOR, Defendant. Bankruptcy No. 96-06051-8C7, Adversary Nos. 96-823, 96-830 through 96-832. United States Bankruptcy Court, M.D. Florida, Tampa Division. July 25, 1997. 1007 1008 Ralph S. Marcadis, Tampa, FL, Chris Vorbeck, Sarasota, FL, for Sears, Roebuck and Co. Louis Bakkalapulo, Clearwater, FL, for FDS National Bank, G.E. Capital Corporation/Macy's, and Montgomery Ward Credit Corporation. Michael Barnett, Tampa, FL, for Defendant. FINDINGS OF FACT AND CONCLUSIONS OF LAW C. TIMOTHY CORCORAN, III, Bankruptcy Judge. The court tried these four adversary proceedings jointly on March 25 and 26, 1997. Based upon the stipulated facts, the testimony and the evidence, the court's evaluation of the credibility of the witnesses, the parties' trial briefs (Documents Nos. 32, 35, and 38),[1]1009 and the parties' post-trial submissions (Documents Nos. 46 and 47), the court finds the following facts by a preponderance of the evidence and makes the following conclusions of law: I. The defendant, Gussie Mae Taylor, filed a petition for relief under Chapter 7 of the Bankruptcy Code in this court on May 9, 1996. The court granted the defendant a Chapter 7 discharge on August 15, 1996. Within the time permitted by the rules, four creditors filed adversary proceedings against the defendant seeking to except their debts from the defendant's discharge. The plaintiff, Sears, Roebuck and Co. ("Sears"), filed Adversary Proceeding No. 96-823; the plaintiff, G.E. Capital Corp./Macy's ("GECC"), filed Adversary Proceeding 96-830; the plaintiff, Montgomery Ward Credit Corp. ("Montgomery Ward"), filed Adversary Proceeding No. 96-831; and the plaintiff, FDS National Bank ("FDS"), filed Adversary Proceeding No. 96-832. The complaints in these adversary proceedings were substantially the same. Each alleged credit card indebtedness owed by the defendant to the plaintiff. Each alleged a claim of non-dischargeability of that indebtedness because of fraud in the use of the credit card within the meaning of Section 523(a)(2)(A) of the Bankruptcy Code. Each also alleged a claim for willful and malicious injury by the defendant to the plaintiff or the property of the plaintiff within the meaning of Section 523(a)(6) of the Bankruptcy Code. These Section 523(a)(6) claims alleged that the defendant disposed of the merchandise purchased with the credit cards in derogation of the plaintiffs' alleged security interests in that merchandise. Because each of these four adversary proceedings involved common fact and legal issues, the court set them all for pretrial proceedings and trial on the same schedule, ordered a single, joint pretrial stipulation, and conducted a joint trial (Document Nos. 9, 10, and 33). The issues tried are described more specifically in the parties' pretrial stipulation (Document No. 31) as modified by the court's order on final pretrial conference (Document No. 33).[2] In addition, the court's order granting plaintiffs' motion to strike third affirmative defense (Document No. 40), entered on March 25, 1997, determined that the plaintiffs were legally able to take security interests in merchandise purchased under Florida "revolving accounts" as described in Sections 520.30 et seq., Florida Statutes, if the parties otherwise complied with applicable law as to the creation of such security interests. Sears, Roebuck & Co. v. Taylor (In re Taylor), 208 B.R. 720, 722 (Bankr. M.D.Fla.1997). The court has jurisdiction of the parties and the subject matter pursuant to the provisions of the United States Bankruptcy Code, 11 U.S.C. §§ 101 et seq., 28 U.S.C. § 1334, 28 U.S.C. § 157(a), and the standing, general order of reference entered by the district court. These are core proceedings within the meaning of 28 U.S.C. § 157(b) and adversary proceedings governed by the Federal Rules of Bankruptcy Procedure, including Part VII of those rules. II. These adversary proceedings involve events that generally occurred in the fall of 1995. During this period, the defendant had the following credit card accounts with the plaintiffs: two accounts with Sears; accounts with Rich's and Burdines (represented by the plaintiff, FDS); an account with Montgomery Ward; and an account with Macy's (represented 1010 by the plaintiff, GECC).[3] At all material times, these accounts were open and available to the defendant for use; at no time before the charges in issue did any plaintiff revoke the defendant's card privileges. In addition to these accounts, the debtor also had accounts with other creditors, including AmSouth Bank, AT & T Universal Card, Amoco VISA, Capital One, Chase VISA, Dillards, Discover Card, Gordon's, J.C. Penney, Prime Option Master Card, Service Merchandise, Society Bank VISA, Belks, and Zales. The defendant is a middle aged woman with grown children. In the years before the filing of the bankruptcy case she held two jobs. She worked full-time as an assistant in the pharmacy at Tampa General Hospital, and she also held a part-time job at a Target retail store. In 1994 her total income from employment was about $19,000. Historically, the defendant used her credit card accounts responsibly. Her credit account history was "clean," and she paid her accounts when they were due. In December, 1994, the defendant was laid off from her job at Tampa General Hospital and was receiving only $600 per month from her part-time job at Target. About six weeks later, she began receiving unemployment assistance in the amount of $200 every other week. This assistance continued during most of 1995. Although it was a time of financial distress, the defendant was able to pay her monthly obligations as they became due. She did this by cutting her expenses, and she also received assistance from her mother and her sister. In June, 1995, the defendant met a man, Bobby Davis, through a personal advertisement in The Tampa Tribune. The defendant and Mr. Davis were married one month later on July 7. Although Mr. Davis was unemployed and had no income, he told the defendant that he was to begin working in the fall as a professor at the University of Tampa. He also told her that he was to receive a quarter million dollar inheritance from his deceased adopted father's estate that was being administered in Canada. Mr. Davis told the defendant that he needed money to "spring" the inheritance from the estate in Canada. Mr. Davis represented to the defendant that the money was needed to pay back taxes and to pay attorneys. He also told the defendant that he needed to give gifts to his mother and family to prevent them from challenging the inheritance. The defendant gave Mr. Davis $1,800 from her savings and obtained an additional $1,000 for Mr. Davis from her son who was serving in the Marines. She also obtained more funds from her parents and her sister for Mr. Davis. Mr. Davis was to repay these monies from the inheritance when it was received. Before any monies were loaned to Mr. Davis, Mr. Davis showed the defendant papers that appeared to substantiate his claim of entitlement to an inheritance. At one point, Mr. Davis telephoned a Montreal bank, and the defendant listened in on the conversation. This telephone call further substantiated in the defendant's mind the bona fides of Mr. Davis' claim to an inheritance. When these funds provided by and through the defendant were insufficient, Mr. Davis suggested taking cash advances from her VISA and Master Card accounts. The defendant took cash advances on these accounts to the full extent of her credit limits and gave the money to Mr. Davis. When the cash advances were insufficient to obtain the inheritance, Mr. Davis next suggested using the defendant's retail store credit cards to purchase items that would bring the highest return on resale, such as jewelry and electronics. The defendant and Mr. Davis bought a series of luxury items on credit at the retail stores at which the defendant had accounts. The defendant and Mr. Davis did this by exhausting the credit line at 1011 each store before moving on to the next. The last stores and accounts used in this spending spree were the accounts represented by the plaintiffs in these four adversary proceedings. The items that were purchased using retail store credit were mostly jewelry and electronics. Both the defendant and Mr. Davis were together when they purchased the items, but Mr. Davis, rather than the defendant, selected the items. The defendant, however, signed the charge slips for each item. At the time of the bankruptcy filing, the defendant retained none of the merchandise that was purchased. At the Section 341 meeting of creditors, the defendant testified that Mr. Davis bought many of these items as gifts for his family. At trial, however, it appeared that much of the merchandise had been pawned for cash at pawnshops in Tampa and Jacksonville. Although the defendant signed the pawn tickets involved, Mr. Davis received the pawn money. When all of the credit accounts were exhausted in this fashion, Mr. Davis disappeared. He vanished just before Thanksgiving, 1995, taking the defendant's automobile. Shortly after Mr. Davis left, the defendant visited the Hillsborough County Sheriff's Office in Brandon to report the theft of her automobile. Deputy Sheriff Michael Eastman was dispatched to her home the same day. The defendant informed Deputy Eastman that her husband had stolen her car and had used her credit cards and run up large bills. Because the parties were married, Deputy Eastman considered the matter to be a civil problem, and Deputy Eastman advised the defendant that he could take no criminal action. By this time, the total amount of credit card indebtedness incurred by the defendant exceeded $100,000. Included in that amount is $10,009.74 owed to Sears, $3,136.60 owed to GECC on the Macy's account, $4,155 owed to Montgomery Ward, and $13,940.28 owed to FDS on the Rich's and Burdines accounts. Each plaintiff is the owner of the account or accounts described and is a proper party plaintiff with regard to each respective account. The defendant made no payments to the plaintiffs after the merchandise representing the indebtedness was purchased. The defendant now recognizes that Mr. Davis duped her and that she foolishly allowed him to use her and her credit accounts. The defendant met Mr. Davis in June, they were married in July, the charges in issue occurred in September and October, and Mr. Davis left in early November. Although the defendant did not have the ability to repay the charges from her income at the time the charges were made, she believed that Mr. Davis would receive the inheritance shortly and that the accounts could and would be repaid from that source. The defendant had the same belief at the time she participated in the pawning of many of the items purchased. The defendant's expectancy with regard to the inheritance was specific and direct. She believed that the inheritance existed and that it would be paid to Mr. Davis promptly. In many ways, the story of the defendant and the way in which Mr Davis victimized her is a story that is stranger than fiction. Accordingly, the court closely scrutinized the defendant as she testified because her story is one that would be easy to disbelieve. Despite this close scrutiny, the defendant testified candidly and credibly. This trial occurred over the span of two days. The court therefore had ample opportunity to observe the defendant and her demeanor. As a consequence of this experience, the court accepts her testimony as completely credible. In addition, Deputy Eastman's testimony, based upon contemporaneous discussions with the defendant, supports the defendant's story and is inconsistent with the plaintiffs' claim that her story is a recent fabrication. All of the store credit card accounts involved in these proceedings were pre-existing and pre-dated the spree except one, the Macy's account that was opened at the time of the purchases involved. When the defendant opened the Macy's account, she told Macy's that her income was $3,833 per 1012 month from Tampa General Hospital. At the time, of course, this information was untrue. Macy's opened the account on the spot based upon a credit report obtained from TRW that showed 26 trade lines, ten open accounts, and excellent credit. The defendant the charged up to the credit limit on fine jewelry selected by Mr. Davis. The defendant consulted no attorney concerning bankruptcy until well after the charges at issue here were made and Mr. Davis left. III. Section 523(a)(2)(A) of the Bankruptcy Code excepts from the Chapter 7 discharge debts represented by money or property obtained by the debtor by use of "false pretenses, a false representation, or actual fraud." In First National Bank of Mobile v. Roddenberry, 701 F.2d 927 (11th Cir.1983), our court of appeals dealt with the issue of what constitutes false pretenses and a false representation in the context of a credit card non-dischargeability adversary proceeding. There the court held that a debtor's use of a credit card after the debtor has been informed of its revocation constitutes false pretenses and a false representation sufficient to result in an exception of the debt from the discharge. The court reasoned that a debtor who uses a credit card with knowledge that it has been revoked makes an "affirmative misrepresentation that one is entitled to possess and use the card." Id. at 932. The court, however, went on to hold that, absent extraordinary circumstances not present there, a debtor's use of a credit card before revocation will not constitute false pretences or a false representation because the credit card issuer assumes the risk of such use and factors such losses into its finance charges. Id. at 932-33. The facts in Roddenberry were that the debtor used her credit card before it was revoked notwithstanding the fact that she knew she could not repay the charges at the time she made them. In those circumstances, the court held, there were no false pretences or a false representation within the meaning of this exception to discharge. In so holding, the court emphasized that the false pretenses and representations exception to discharge is to be construed narrowly in furtherance of the "principle that bankruptcy is designed to provide a fresh start for honest debtors who unexpectedly fall into financial difficulties." Id. at 930 (citations omitted). The court also noted that this exception to discharge was not meant to provide improvident creditors with "special protections in bankruptcy for the assumption of common business risks." Id. at 932. Here, no plaintiff revoked the defendant's credit card privileges before or after the charges were made. Under Roddenberry, therefore, the court cannot find false pretenses or a false representation merely based on the defendant's plain and admitted inability to pay the charges from her income. Although Roddenberry was decided under the old Bankruptcy Act, it nevertheless remains good law under Section 523(a)(2)(A) of the Bankruptcy Code. See Birmingham Trust National Bank v. Case, 755 F.2d 1474, 1476 (11th Cir.1985). The plaintiffs also contend that the defendant committed actual fraud while using her cards. To prevail on a claim of actual fraud, each plaintiff must establish that: 1. The defendant made materially false representations; 2. At the time defendant made them, the defendant knew the representations were false; 3. Defendant made them with the intention of deceiving the other party; 4. The other party relied upon those representations; and 5. The other party sustained damages as the proximate result of those misrepresentations. AT&T Universal Card Services v. Stansel (In re Stansel), 203 B.R. 339, 343 (Bankr. 1013 M.D.Fla.1996). The plaintiff has the burden of proving that the debt is non-dischargeable by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 291, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991). Because each and every element must be established to support a finding of actual fraud, the plaintiff's failure to establish any one factor is determinative of the outcome. In the context of a non-dischargeability claim in bankruptcy, the third and fourth factors have garnered the most discussion and analysis in the case law. In determining whether the defendant made false representations with the intention of deceiving the plaintiff, the court must consider "all the evidence and assess the debtor's intent on a case by case basis." Manufacturers Hanover Trust Co. v. Abercrombie (In re Abercrombie), 148 B.R. 964, 966 (Bankr.M.D.Fla.1992). This assessment may include an objective determination of the debtor's intent using the litany of factors described in cases such as Household Credit Services v. Rivera (In re Rivera), 151 B.R. 602, 605 (Bankr.M.D.Fla.1993), and Manufacturers Hanover Trust Co., at 965-66. Ultimately, however, the court must determine the debtor's subjective intent to repay. See AT&T Universal Card Services v. Alvi (In re Alvi), 191 B.R. 724, 733 (Bankr.N.D.Ill.1996). In this case, the court has specifically found as a matter of fact that the defendant believed at the time she made the charges that she could pay them from the expected inheritance. In this sense, this case is not at all like Sears, Roebuck & Co. v. Davis (In re Davis), 134 B.R. 990, 992 (Bankr.M.D.Fla. 1991), where the defendant's expectations of "hit[ting] the big one" in the lottery or "[breaking] the bank" in Las Vegas were clearly unreasonable and therefore were not helpful to the defendant in resisting a claim that the debtor intended to deceive the credit issuer. Id. The defendant here did not intend to deceive the plaintiffs, with Sears, Montgomery Ward, and FDS, when she used her accounts with them. The court concludes, therefore, that these plaintiffs have failed to show actual fraud in connection with the use of the cards because their proof has failed on the necessary third element. For these reasons, the court finds that the indebtedness of the defendant to each of the plaintiffs, Sears, Montgomery Ward, and FDS, is not excepted from her discharge pursuant to the provisions of Section 523(a)(2)(A) of the Bankruptcy Code. IV. With regard to the Macy's account, the court concludes that GECC has shown by a preponderance of the evidence that the defendant obtained money or property by use of actual fraud within the meaning of Section 523(a)(2)(A). GECC has shown each of the five elements of fraud as described in the Stansel case, 203 B.R. at 339. The defendant opened the Macy's account misrepresenting her income. At the time she had been laid off from Tampa General Hospital, and she had no income other than her part-time Target income and her unemployment assistance. She did not have an income of $3,833 a month from the hospital as she told Macy's. She made this false representation to obtain the credit, and she knew that she would not be given the credit if she told the truth about her income. Thus, the defendant intended to deceive Macy's notwithstanding the fact that she believed she could repay Macy's from the inheritance. Macy's actually and justifiably relied on her representations of income. Macy's obtained a credit report, and the credit report and the defendant's income statements were consistent. Macy's therefore justifiably granted the credit on the spot. Field v. Mans, ___ U.S. ___, ___, 116 S.Ct. 437, 446, 133 L.Ed.2d 351 (1995). The defendant has not paid the charges. As a consequence of the defendant's misrepresentations, therefore, GECC has been damaged. At trial, the defendant did not deny this deceit. She testified in her defense that she 1014 was pressured by Mr. Davis to open the account. She nevertheless knew that she was engaging in deceit in order to comply with his wishes. Her statements to Macy's were voluntary. In these circumstances, she made these false statements of her income knowingly and intentionally. For these reasons, the court concludes that the indebtedness of the defendant to GECC on the Macy's account, $3,136.60, is excepted from her discharge pursuant to the provisions of Section 523(a)(2)(A) of the Bankruptcy Code.[4] V. Section 523(a)(6) of the Bankruptcy Code excepts from discharge debts "for willful and malicious injury by the debtor to another entity or the property of another entity." In these proceedings, each plaintiff asserts that the defendant's disposition of its collateral subject to its alleged purchase money security interest constitutes such "willful and malicious injury." The plaintiffs therefore seek to except the debts from discharge. Courts have generally held that a debtor who intentionally disposes of property in which a creditor has a security interest commits such willful and malicious injury within the meaning of Section 523(a)(6). See, for example, Rentrak Corp. v. Forbes (In re Forbes), 186 B.R. 764, 768-69 (Bankr. S.D.Fla.1995). In addition, courts have held that, for an act to be willful, it need only be intentional and done voluntarily. Chrysler Credit Corp. v. Rebhan, 842 F.2d 1257, 1262 (11th Cir.1988). The maliciousness element of Section 523(a)(6) may be satisfied by a showing of implied or constructive malice. Id. at 1263-64. Moreover, courts have held that a creditor is not required to prove that a debtor's motive was to harm the creditor or the creditor's interest in property. Communications Family Credit Union v. Wilson (In re Wilson), 126 B.R. 122, 124 (Bankr. M.D.Fla.1991): [A]n intentional act which produces harm and is without just cause or excuse may be characterized as "willful and malicious," notwithstanding the fact that there may be no proof that the debtor had a specific intent to injure the creditor. Id. (citation omitted). In this case, each plaintiff had a valid security interest in the items purchased on the accounts because the sales receipts, signed by the defendant, sufficiently permit identification of the collateral and the receipts clearly state that the purchaser is granting security interests in the purchased property putting defendant on constructive, if not actual, notice of the security interest. See § 679.203, Fla.Stat. In addition, the account agreements between each plaintiff and the defendant all called for the granting of those security interests in this fashion. The plaintiffs were not required to file financing statements to perfect their security interests because each of the items of collateral was a consumer good and the security interest was a purchase money security interest. § 679.302(1)(d), Fla.Stat. Regarding what is excepted from the discharge because of willful and malicious injuries, a claim under Section 523(a)(6), by definition, is limited to the lesser of the amount of the debt or the value of the property in which the plaintiff has a security interest that the defendant has wrongfully destroyed. Shaver Motors, Inc. v. Mills (In re Mills), 111 B.R. 186, 207 (Bankr.N.D.Ind. 1988). This value is as of the time of the conversion. Avco Financial Services of Alabama, Inc. v. Alexander (In re Alexander), 201 B.R. 294, 298 (Bankr.N.D.Ala.1996). These principles necessarily apply because the gist of Section 523(a)(6) is to 1015 make non-dischargeable willful injuries. When the injury is the destruction of a security interest in collateral by wrongful disposition of the collateral and when the debt exceeds the value of that collateral, the wrong can only be measured by the value of the collateral and not by the amount of the debt itself. When a debtor wrongfully disposes of a creditor's collateral that is worth less than the amount of the debt, it is not the amount of the debt that the creditor loses; it is only the value of the collateral subject to the security interest that the creditor loses. It is this amount that is therefore non-dischargeable. Thus, evidence of value of the collateral at the time of conversion is crucial to a plaintiff's case to determine the extent of the plaintiff's injury.[5] In these proceedings, the items of merchandise purchased were ordinary consumer goods. The evidence received at trial includes the sales slips for each of the purchases made by the defendant on the accounts with the plaintiffs. The original, retail sales price for each item of merchandise purchased is therefore in the trial record. Although they were luxury items, they were all items that depreciate in value after purchase at retail. Because the items depreciate in value, the retail sales price of the items is clearly insufficient evidence of the value of the items at the time they were converted, even if that is shortly after the time the items were purchased. The defendant pawned some of the purchased items. The amount received by pawning might be evidence upon which the court could rely in finding the fair market value at the time of conversion. In this case, however, the pawn tickets that were received in evidence at trial fail to establish the value of the items because the descriptions on the pawn tickets are insufficient to link any pawn ticket to any particular item purchased. The descriptions on the pawn tickets are entirely too general and vague to allow one to match the items. For this reason the court rejects the pawn tickets as evidence of fair market value. Two expert valuation witnesses testified on behalf of the plaintiffs at trial. The court disregarded the testimony of Beverly Hearne as based upon insufficient factual predicates. The court also struck the testimony of Ronald Fred Ingram as it related to GECC and FDS because the plaintiffs failed to link his testimony of value to the actual items purchased by the defendant. The court accepted Mr. Ingram's testimony relating to items purchased at Sears and Montgomery Ward because the plaintiffs developed a link between the actual items purchased and the valuation testimony.[6] On this record, therefore, the only items of collateral as to which there is evidence of fair market value at the time of conversion is as follows: Sears Collateral a. .50 carat round diamond engagement ring with yellow gold band $ 600.00 b. Second ring identical to a. above 600.00 _________ $1,200.00 GECC Collateral None $ 0 Montgomery Ward Collateral a. 2 14 kt yellow gold 3mm × 24" diamond cut rope neck chains $ 250.00 b. 14 kt yellow gold ring with channel settings containing 1.43 carat total weight full-cut diamonds 1,100.00 c. 18" 14 carat yellow gold 2mm × 18" diamond cut rope neck chain 40.00 _________ $1,390.00 FDS Collateral Rich's Account None $ 0 Burdine's Account None $ 0 1016 Notably, each plaintiff bears the burden of persuasion by a preponderance of the evidence as to the value of the collateral subject to its security interest as of the time of its wrongful disposal. Grogan, at 291, 111 S.Ct. at 661. Although the record contains evidence identifying most of the merchandise purchased, the record does not contain evidence of fair market value beyond that of the few items listed above. In these proceedings, therefore, the plaintiffs have met their burdens only to the limited extent identified here. First State Bank of Alsip v. Iaquinta (In re Iaquinta), 98 B.R. 919, 925-26 (Bankr. N.D.Ill.1989). The defendant's conduct in this case did not prevent or preclude the plaintiffs from meeting their burdens on this point. If a creditor is unable to offer evidence of value because the creditor needs to examine the item to offer such evidence and the defendant's disposition of that item makes the examination impossible, the creditor's lack of precise proof could be excused. See Dominion National Bank of Richmond v. Gantt (In re Gantt), 56 B.R. 852, 858-59 (Bankr. E.D.Va.1985). That is not the case here, however, where the items are clearly identified and, by their nature, could easily be valued without physical examination or observation. In this case the court has found that the debtor intentionally disposed of the collateral subject to the security interests of the plaintiffs. The applicable law makes that disposition willful and malicious notwithstanding the fact that the debtor had no specific intent to harm the plaintiffs when disposing of the collateral.[7] Accordingly, the fair market value of the collateral must be excepted from the discharge of the defendant pursuant to the provisions of Section 523(a)(6) of the Bankruptcy Code. The amounts as to each plaintiff are as follows: Sears $1,200.00 GECC $ 0 Montgomery Ward $1,390.00 FDS $ 0 Otherwise, the debts owed to the plaintiffs are not excepted by Section 523(a)(6) from the discharge. VI. Pursuant to the provisions of F.R.B.P. 9021, the court is contemporaneously entering a separate judgment in each adversary proceeding consistent with this decision. Pursuant to the provisions of F.R.B.P. 7054(b), the court will not allow costs to the plaintiff's finding that the equities of the proceeding do not justify such an allowance. NOTES [1] For convenience, the numbered docket document references used in these findings and conclusions are to the docket document numbers of the lead adversary proceeding, Adversary Proceeding No. 96-823. Generally, the same documents appear in the other adversary proceeding files, although sometimes with different docket numbers. [2] The defendant offered no evidence at trial that the plaintiffs failed to comply with federal and state disclosure requirements as to interest and the application of payments. The defendant similarly offered no evidence that the plaintiffs charged interest in excess of that permitted by law. The court is therefore not required to decide if these constitute legal defenses to the plaintiffs' claims. [3] The Macy's account was opened the day the purchases in question were made. The debtor made application at the register. [4] In Birmingham Trust National Bank, 755 F.2d at 1477, the court of appeals concluded that, in a false pretenses and representation non-dischargeability proceeding, the damages meaning the amounts to be excepted from the discharge are the entire debt rather than the value of the collateral. Although the court relied in part on statutory wording eliminated by the 1984 amendments to the Bankruptcy Code, the case is nevertheless still persuasive. [5] "The fair market value of the collateral at the time of conversion" was in fact identified in the pretrial stipulation as an issue for trial in these proceedings. (Document No. 31 at ¶ G at 9). [6] In post-trial submissions requested by the court, the plaintiffs and defendant agreed on the personal property values as linked to the expert testimony. (Documents Nos. 46 and 47). Accordingly, the court adopts those values, except as based upon testimony stricken or disregarded at trial. [7] Contrary to the position of the defendant, there are no facts in this case that would work an estoppel against the plaintiffs because they advertised goods for sale on credit or as gifts or because the goods were purchased for Mr. Davis.	{ "pile_set_name": "FreeLaw" }
942 F.Supp. 762 (1996) Barry TOPF, Plaintiff, v. WARNACO, INC., Defendant. Civil No. 3:95CV2257 (PCD). United States District Court, D. Connecticut. August 22, 1996. 763 764 Stephen P. Horner, Stephen P. Horner & Associates, Westport, CT, for Plaintiff. Toby M. Schaffer, Shapiro & Siegel, P.C., Stamford, CT, Stanley S. Arkin, Hyman L. Schaffer, Katherine E. Hargrove, Arkin, Schaffer & Kaplan, New York City, for Defendant. RULING ON MOTION TO STAY THE ACTION AND COMPEL ARBITRATION AND MOTION FOR JURY TRIAL DORSEY, Chief Judge. Defendant moves to stay the action and compel arbitration pursuant to 9 U.S.C. §§ 3 and 4 of the Federal Arbitration Act (FAA). Plaintiff cross-moves for a jury trial on the issue of whether an arbitration agreement exists between the parties. For the reasons stated below, plaintiff's motion is denied and defendant's motion is granted. I. FACTS Warnaco is a manufacturer of men's and women's apparel. In August 1991, defendant offered employment to plaintiff as Vice President of Operations in Warnaco's Warner's division. On August 16, 1991, under the phrase "Accepted to and agreed to," plaintiff signed the offer letter, which provided in part: "This letter will confirm the key terms of our offer of employment to you. General terms of employment are stated in the Warnaco Job Application and Current Employee Handbook." (Silverstein Aff.Ex. A.) On his first day of work, September 23, 1991, plaintiff received the referenced employee handbook ("handbook"). Under the heading "Arbitration of employment disputes," the handbook provides that "[a]ny controversy arising out of the employment relationship shall, on the request of either party, at any time following the termination of employment, be submitted to final and binding arbitration...." (Handbook at 23.) Plaintiff signed the "Acknowledgement of Receipt of the Warnaco Employee Handbook," which provides in relevant part: 765 I [] understand that this Handbook is not and was not intended to serve as a contract between Warnaco and myself regarding the nature or duration of my employment with Warnaco, except that this Handbook is our entire agreement concerning each party's right to arbitrate employment disputes and to terminate the employment relationship with or without cause at any time, and that no one at Warnaco is authorized to make an exception to this understanding, except an officer of Warnaco who does so in writing. (Handbook at 24.) Plaintiff was terminated on May 25, 1994. Plaintiff filed this suit, alleging violations of the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq., the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101 et seq., and the Connecticut Fair Employment Practices Act (FEPA), CONN.GEN.STAT. § 46a-60 et seq., as well as several state law claims. II. DISCUSSION A. Standards of Review The FAA, 9 U.S.C. §§ 1-14, reflects a "liberal federal policy favoring arbitration agreements" as a means of settling disputes. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983). See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 25, 111 S.Ct. 1647, 1651, 114 L.Ed.2d 26 (1991); In re Salomon, Inc. Shareholders Derivative Litig., 68 F.3d 554, 557 (2d Cir.1995). This policy is reflected in the provision that any agreement to arbitrate in contracts affecting commerce are "valid, irrevocable, and enforceable, save upon such grounds as exist at law ... for the revocation of any contract." 9 U.S.C. § 2.[1] Parties may petition the federal courts to enforce agreements to arbitrate: "A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement ... may [seek] an order directing that such arbitration proceed ..." 9 U.S.C. § 4. If the court finds the issue arbitrable, it must "stay the trial of the action until ... arbitration has been [made] in accordance with the terms of the agreement." 9 U.S.C. § 3. However, if "the making of the arbitration agreement be in issue, the court shall proceed ... to the trial thereof." 9 U.S.C. § 4. Four issues must be considered when determining whether to stay proceedings and compel arbitration. First, whether the parties have made an agreement to arbitrate; second, the scope of the agreement; third, if federal statutory claims are involved, whether they are non-arbitrable; and fourth, whether to separate any arbitrable claims from those which are non-arbitrable. Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 844 (2d Cir.1987). See Progressive Casualty Ins. Co. v. C.A. Reaseguradora Nacional de Venezuela, 991 F.2d 42, 45 (2d Cir.1993). If an arbitration agreement is found to exist, the action must be stayed and arbitration compelled on all issues which the agreement covers. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 766 1238, 1241, 84 L.Ed.2d 158 (1985). See also McMahan Sec. Co., L.P. v. Forum Capital Mkt, L.P., 35 F.3d 82, 86 (2d Cir.1994); Genesco, 815 F.2d at 844. B. Validity of Arbitration Agreement In determining the existence of an arbitration agreement, "ordinary principles of contract law" are to be used. Russolillo v. Thomson McKinnon Sec., Inc., 694 F.Supp. 1042, 1044 (D.Conn.1988). The law of the state which governs the contract, in this case, Connecticut, is applied. See First Options of Chicago, Inc. v. Kaplan, ___ U.S. ___, ___, 115 S.Ct. 1920, 1924, 131 L.Ed.2d 985 (1995). A party moving for a jury trial under § 4 must show the existence of a genuine issue involving the making of the arbitration agreement. Almacenes Fernandez, S.A. v. Golodetz, 148 F.2d 625, 628 (2d Cir.1945). See also Manning v. Energy Conversion Devices, Inc., 833 F.2d 1096, 1103 (2d Cir.1987); In re Matter of Arbitration between Interbras Cayman Co. v. Orient Victory Shipping Co., 663 F.2d 4, 7 (2d Cir.1981). There are two requirements necessary to show the existence of such a genuine issue: first, the party must make an unequivocal denial that an arbitration agreement exists; and second, the party must show sufficient facts in support of their contention. Almacenes Fernandez, 148 F.2d at 628. See also Manning, 833 F.2d at 1103 ("party ... must submit sufficient evidentiary facts in support of ... claim ... to precipitate trial contemplated by 9 U.S.C. § 4."); Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1196 (7th Cir.1987) (party can only obtain a jury trial if "there is a triable issue concerning the existence ... of the agreement."). What constitutes "sufficient facts" has not been clearly defined in the Second Circuit. Some cases have suggested that the mere showing of any factual issue between the parties is enough to warrant a jury trial. See, e.g. Manning, 833 F.2d at 1103; See also, e.g., Interbras Cayman Co., 663 F.2d at 7; Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402, 411 (2d Cir.1959), cert. granted, 362 U.S. 909, 80 S.Ct. 682, 4 L.Ed.2d 618, cert. dismissed, 364 U.S. 801, 81 S.Ct. 27, 5 L.Ed.2d 37 (1960). However, recent cases suggest that the factual issue shown must sustain a burden like that imposed in summary judgment. See, e.g. Doctor's Assoc., Inc. v. Stuart, 85 F.3d 975, 980 (2d Cir.1996) (noting party's failure to show facts sufficient as a matter of law). See also, e.g., Oppenheimer & Co., Inc. v. Neidhardt, 56 F.3d 352, 358 (2d Cir.1995) (comparing FED.R.CIV.P. 56(c), (e) to level of sufficient evidentiary facts needed for jury trial by 9 U.S.C. § 4). By this standard, the movant under § 4 would have to provide sufficient evidence in support of their claims such that a reasonable jury could return a verdict for them under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Decisions in other circuits involving jury trial motions under 9 U.S.C. § 4 support the "summary judgment" standard. The Fifth Circuit, noting that its caselaw "[had] not established the precise showing a party must make" in motioning for a jury trial under § 4, stated that the movant must make some showing "that under prevailing law, he would be relieved of his contractual obligation to arbitrate if his allegations proved true." Dillard v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 961 F.2d 1148, 1154 (5th Cir. 1992), cert. denied, 506 U.S. 1079, 113 S.Ct. 1046, 122 L.Ed.2d 355 (1993). See also ParKnit Mills, Inc. v. Stockbridge Fabrics Co. Ltd., 636 F.2d 51, 54, n. 9 (3d Cir.1980) (stating that when considering an argument about the existence of an agreement to arbitrate, the standard used is the same as in summary judgment); Saturday Evening Post Co., 816 F.2d at 1196 (examining request for a jury trial by § 4, the court stated that if the dispute "involves ... only legal questions, a jury trial would be pointless because [it] ... could not affect the judge's decision on whether to order arbitration."). In addition, the policy behind the FAA suggests that the "summary judgment" standard should be applied. If parties could request and receive jury trials merely by showing evidence of any factual dispute about the existence of arbitration agreements, then this "would frustrate the very policies ... [that the FAA is] meant to promote" the alternative resolution of disputes 767 outside of the judicial forum. Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282, 288 (9th Cir.1988). See Moses H. Cone Memorial Hosp., 460 U.S. at 24, 103 S.Ct. at 941. Accordingly, the "summary judgment" standard will be applied to the motion for jury trial. Thus, plaintiff must show genuine factual issues regarding his allegations concerning the making of the arbitration agreement, such that a jury could find no agreement. Plaintiff satisfies the first prong of the test. He unequivocally denies the existence of an arbitration agreement. As to the second prong, plaintiff claims that there was no agreement about the meaning or existence of the arbitration term.[2] This argument is based upon two grounds: one, that the language of the arbitration clause is ambiguous; and two, that he was fraudulently induced into making the agreement. However, plaintiff fails to provide sufficient evidence as to these allegations. 1. Ambiguity Plaintiff claims that the provisions concerning arbitration in the acknowledgment form are ambiguous. A contract is interpreted by the intent of the parties expressed in the language of the agreement. Barnard v. Barnard, 214 Conn. 99, 110, 570 A.2d 690, 696 (1990). In the fact of ambiguity, the court must defer to a jury to determine the intent of the parties. However, when the language of a contract is clear and unambiguous, interpretation is a matter of law for the court to decide. Rapaport & Benedict, P.C. v. Stamford, 39 Conn.App. 492, 497-98, 664 A.2d 1193, 1197 (1995); See Harris Trust & Sav. Bank v. John Hancock Mut. Life Ins. Co., 970 F.2d 1138, 1147-48 (2d Cir.1992), cert. granted, 507 U.S. 983, 113 S.Ct. 1576, 123 L.Ed.2d 145, and cert. denied, 507 U.S. 986, 113 S.Ct. 1585, 123 L.Ed.2d 151 (1993). When the terms of an agreement are clear, "there is no room for construction" of the language. Levine v. Massey, 232 Conn. 272, 277-78, 654 A.2d 737, 740 (1995). In this case, the language of the offer letter incorporates the handbook. The acknowledgement clearly states that the handbook is not a contract except with regards to "each party's right to arbitrate employment disputes ..." (Handbook at 24.) These provisions are not in contradiction, as claimed. Instead, "read[ing] the contract as a whole," the acknowledgment explicitly limits the scope of the handbook as part of the overall contract to two provisions regarding arbitration and employment-at-will status. Doctor's Assoc., Inc. v. Distajo, 66 F.3d at 452.[3] Ambiguity must arise from the language itself, not subjective interpretations of the parties. Levine, 232 Conn. at 278, 654 A.2d at 740. Considering all relevant surrounding circumstances, including plaintiff's allegations of fraudulent conduct, these facts cannot "prove an intent contrary to the plain meaning of the language used." Connecticut Co. v. Div. 425, 147 Conn. 608, 617, 164 A.2d 413, 417 (1960). See Levine, 232 Conn. at 278, 654 A.2d 737. 768 There is nothing in the record or the law which warrants a finding of ambiguity in the terms of the agreement to arbitrate. Plaintiff has not shown sufficient facts creating a triable issue on his allegation of ambiguity. 2. Fraudulent Inducement Plaintiff also alleges that his agreement to arbitrate was fraudulently induced by defendant. Plaintiff asserts both an affirmative misrepresentation of a material fact and the omission of a material fact along with a duty of disclosure. a. Misrepresentation Plaintiff claims that statements made by defendant led plaintiff to sign the agreement to arbitrate without his knowledge as to its true contents. To show a claim for fraudulent inducement based upon misrepresentations, one must demonstrate 1) that a false representation was made as a statement of fact; 2) that it was known to be false; 3) that it was made to induce action by the other party; and 4) that the party acted on the statement to their detriment. Miller v. Appleby, 183 Conn. 51, 54-55, 438 A.2d 811, 813 (1981); See also Billington v. Billington, 220 Conn. 212, 217, 595 A.2d 1377, 1379 (1991). A party's reliance upon another's misrepresentation must be justifiable or reasonable. Amatulli v. People's Bank, 917 F.Supp. 895, 906 (D.Conn.1996). See also Maturo v. Gerard, 196 Conn. 584, 589, 494 A.2d 1199 (1985). Plaintiff asserts that in signing the offer letter, he relied on the statement that all "key" terms were contained therein, and that "general" terms were contained in the handbook. Plaintiff received the handbook when he began work. Allegedly, he was told he had to sign the acknowledgment form in order to receive the handbook. He claims that this statement, in conjunction with the representation in the offer letter, fraudulently induced him to overlook the mention of the arbitration agreement contained in the acknowledgment. Accepting all of plaintiff's allegations as true, and drawing all reasonable inferences in plaintiff's favor, he fails to make a sufficient showing of a triable issue of misrepresentation. Plaintiff fails to show that his reliance upon the alleged misrepresentation was reasonable. Cohen v. Wedbush, Noble, Cooke, Inc., 841 F.2d 282 (9th Cir.1988) is persuasive on this issue. In Cohen, plaintiffs signed a margin agreement with defendant for a loan for the purchase of securities. The agreement contained an arbitration clause. Similar to the instant case, plaintiffs claimed that defendant fraudulently induced them into the arbitration agreement based upon alleged misrepresentations and non-disclosure of the term. Plaintiffs claimed reliance on a statement by the defendant's agent that the agreement they were signing "did not compromise their rights." Cohen, 841 F.2d at 286. The Cohen court noted that "a misrepresentation renders a contract voidable only if ... the plaintiff reasonably relied on that misrepresentation in entering the contract." Id. at 287. "Whether the [plaintiffs] read the agreement but did not notice the arbitration clause, or chose not to read the agreement at all, their reliance on [defendant's] alleged misrepresentation was unreasonable in light of the clear and explicit language of the contract." Id. at 288. Likewise, in the present case, plaintiff fails to show that his reliance on a purported misrepresentation was reasonable. Plaintiff is an experienced business man. It is not reasonable to assume that the reference to "general" terms of employment does not refer to an arbitration agreement. The "key" provisions in the offer letter clearly referred to terms specific to plaintiff. The arbitration provision, applicable to all employees, could only reasonably be regarded as a "general" term. Even if defendant's representative told plaintiff that he had to sign the acknowledgment prior to his receipt of the handbook, this statement does not in any way misrepresent that the plaintiff was signing an agreement to arbitrate. The arbitration provision was clearly stated in the handbook and the acknowledgment. Contrary to plaintiff's contentions, 769 this clause is not buried in misleading language in the acknowledgment, but rather is explicitly stated in clear language in one of three paragraphs on the page that the handbook represents "the entire agreement concerning each party's right to arbitrate employment disputes." (Handbook at 24.) The acknowledgment also states, just above plaintiff's signature, that if the employee has any questions about policies contained in the handbook, he or she is to ask about them. (Handbook at 24.) Plaintiff does not claim that he asked to have these provisions explained, and it was not reasonable for a man of any business experience not to do so, if as he now claims that the language was misleading. Under all the circumstances, it was unreasonable, as a matter of law, for plaintiff to have relied on defendant's alleged misrepresentations. See Doctor's Assoc., Inc. v. Stuart, 85 F.3d at 980. b. Non-disclosure Plaintiff also claims that he was never informed that the handbook contained an arbitration agreement, and that he was never told that his legal remedies were limited by the arbitration clause. He contends that this non-disclosure fraudulently induced him into the arbitration agreement. A claim for fraudulent non-disclosure requires 1) failure to disclose a fact; 2) the duty to disclose that fact; 3) intent to induce reliance; 4) the reliance upon the non-disclosure was reasonable. Duksa v. City of Middletown, 173 Conn. 124, 127, 376 A.2d 1099, 1101 (1977). See Petrone v. Melnick, No. CV89 0042882S, 1994 WL 228252, at 1 (Conn.Super. May 19, 1994). Accepting all plaintiff's allegations as true, and drawing all reasonable inferences in his favor, plaintiff has not produced sufficient evidence to support a claim for non-disclosure. Plaintiff has not demonstrated that defendant was under a duty to disclose anything about the contract. Again, Cohen, supra, is persuasive on this issue. The court noted that "[it] knew of no case holding that parties dealing at arms-length have a duty to explain to each other the terms of a written contract." 841 F.2d at 287. In the absence of showing of any duty, non-disclosure is not actionable by law. The parties dealt at arms-length in the making of this agreement. Plaintiff has produced nothing to support his contention that he was not dealing at arms-length with defendant when making his agreement. Although plaintiff claims that he was in a weaker economic position when he signed the contract, plaintiff has not shown defendant had any duty to disclose the arbitration clause, above and beyond the explicit written disclosure of the arbitration agreement in the handbook and the acknowledgment. In addition, plaintiff does not show that his reliance on defendant's allegedly insufficient disclosure of the arbitration clause was reasonable. The offer letter specifically stated that general terms of employment were included in the handbook. The handbook clearly spelled out the arbitration provision and the acknowledgment references plaintiff to the arbitration provision as part of his contract. Accordingly, plaintiff's claim of fraudulent inducement based upon alleged misrepresentations and non-disclosure fail. Under Connecticut law, a contract exists as a matter of law, and plaintiff's motion for a jury trial is denied. C. Scope of the Arbitration Agreement Next, the scope of the arbitration agreement, and whether it covers plaintiff's claims must be considered. Federal policy favors arbitration of disputes. Gilmer, 500 U.S. at 26, 111 S.Ct. at 1652; Moses H. Cone Memorial Hosp., 460 U.S. at 24-25, 103 S.Ct. at 941-942. See also Genesco, 815 F.2d at 847. As a result, courts read arbitration clauses broadly, with "any doubts concerning the scope of arbitrable issues [being] resolved in favor of arbitration." Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. at 941. See also Mastrobuono v. Shearson Lehman Hutton, Inc., ___ U.S. ___, ___, 115 S.Ct. 1212, 1218, 131 L.Ed.2d 76 (1995). The clause at issue states that "[a]ny controversy arising out of the employment relationship shall ... at any time following 770 the termination of employment, be submitted to ... arbitration" (Handbook at 23.) Reading the language in light of the policy favoring arbitration, this agreement clearly covers all possible disputes alleged by plaintiff regarding his termination. The Second Circuit has reached the same conclusion for a clause of this nature. See Collins & Aikman Prod. Co. v. Bldg. Sys., Inc., 58 F.3d 16, 20 (2d Cir.1995) ("the clause in this case ... `any claim or controversy arising out of or relating to the agreement,' is the paradigm of a broad clause."). D. Arbitrability of Federal Statutory Claims Whether plaintiff's federal statutory claims are arbitrable must next be considered. Plaintiff asserts several federal claims in his complaint, including violations of the Rehabilitation Act of 1973, the ADA, and the ADEA. There is no "per se presumption against arbitration of statutory claims." Genesco, 815 F.2d at 848. The "duty to enforce [arbitration] is not diminished when a party ... raises a claim founded on statutory rights." Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226, 107 S.Ct. 2332, 2337, 96 L.Ed.2d 185 (1987). Therefore, unless Congress has "evinced an intention to preclude waiver of judicial remedies for the statutory rights at issue," those claims will be submitted to arbitration by the court. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 3354-55, 87 L.Ed.2d 444 (1985). In order to overcome the strong federal policy in favor of arbitration, the burden rests on "the party opposing arbitration [to] show that Congress reserved a federal forum" for claims under a particular statute. Genesco, 815 F.2d at 849. Plaintiff fails to produce any evidence as to the non-arbitrability of any of his federal claims. Plaintiff asserts that a party cannot waive statutory remedies for employment discrimination claims unless it is done knowingly and voluntarily. He claims that he did not knowingly agree to arbitrate his discrimination claims, because the agreement did not put him on notice that he was waiving his rights to judicial remedies under the statutes. Plaintiff relies on Hoffman v. Aaron Kamhi, Inc., 927 F.Supp. 640 (S.D.N.Y.1996), and Prudential Ins. Co. of Am. v. Lai, 42 F.3d 1299, 1304 (9th Cir.1994), cert. denied, ___ U.S. ___, 116 S.Ct. 61, 133 L.Ed.2d 24 (1995). These cases, however, are unpersuasive. In Hoffman, the court considered the arbitrability of the plaintiff's ADA discrimination claims. The court found that the claims were not arbitrable because plaintiff had not been on notice that he was waiving his right to bring employment discrimination claims in federal court. Hoffman, 927 F.Supp. at 643-45. The court based its decision on the fact that the arbitration agreement at issue was ambiguously worded because it did not refer to employment or termination disputes. Hoffman, 927 F.Supp. at 645. In addition, the court pointed out that the ADA had not been in existence at the time the agreement was reached, thereby precluding any ability of the parties to agree to arbitrate such disputes. Id. Hoffman is distinguishable on both legal and factual grounds. As noted in Hoffman, claims based on a statutory right are arbitrable, if indeed, there is a valid agreement to arbitrate. Hoffman, 927 F.Supp. at 642. Thus, Hoffman must be limited to its facts in light of case law holding that statutory claims for employment discrimination are arbitrable. See Gilmer, 500 U.S. at 35, 111 S.Ct. at 1656-57 (ADEA); Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1487 (10th Cir.1994) (pregnancy discrimination); Alford v. Dean Witter Reynolds, Inc., 939 F.2d 229 (5th Cir.1991) (Title VII claims); Bender v. A.G. Edwards, 971 F.2d 698, 700 (11th Cir.1992) (sexual harassment); Mago v. Shearson Lehman Hutton, Inc., 956 F.2d 932, 934 (9th Cir.1992) (gender discrimination); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 307-10 (6th Cir.1991) (gender discrimination). The district courts of this circuit have reached the same conclusion. See Maye v. Smith Barney, Inc., 897 F.Supp. at 109 (race discrimination); Gateson v. ASLK-Bank, N.V., No. 94 Civ. 5849, 1995 WL 387720, at 2 (S.D.N.Y. June 29, 1995) (gender discrimination); Pitter v. Prudential 771 Life Ins. Co. of Am., 906 F.Supp. 130, 139 (E.D.N.Y.1995) (race discrimination). In addition, the facts in the Hoffman decision are distinguishable from the present case. In the instant case, unlike in Hoffman, the arbitration agreement explicitly refers to "any controversy arising out of the employment relationship" as being arbitrable. In addition, each of the statutes upon which plaintiff bases his claim were in effect in 1991 when he signed the agreement. Therefore, comparison to Hoffman is unavailing. Plaintiff's reliance on Lai is also misplaced. In Lai, the court determined that plaintiff's employment discrimination claims were not arbitrable. However, the issue in that case was not whether a plaintiff can agree to arbitrate statutory claims, as the court noted that parties can do so in light of Gilmer. Lai, 42 F.3d at 1303. Rather, the plaintiffs claimed that they did not knowingly agree to submit their claims to arbitration because the arbitration clause did not describe the types of disputes subject to arbitration. Id. at 1305. The present case is distinguishable because it refers specifically to the arbitrability of any controversy arising out of an employment relationship. Other courts have distinguished Lai similarly, in addition to noting that Lai is flawed in light of Gilmer and federal policies favoring arbitration. See Golenia v. Bob Baker Toyota, 915 F.Supp. 201, 205 (S.D.Cal.1996); Maye, 897 F.Supp. at 107. Thus, plaintiff's arguments are unavailing. Plaintiff's statutory claims under the ADEA, ADA, and the Rehabilitation Act are arbitrable. ADEA claims arbitrable. See, e.g., Gilmer, supra. Several courts have also found ADA claims arbitrable. See, e.g., Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 881 (4th Cir.1996); Golenia v. Bob Baker Toyota, 915 F.Supp. 201, 204-05 (S.D.Cal.1996); Collins v. Blue Cross Blue Shield of Michigan, 916 F.Supp. 638, 642 (E.D.Mich.1995). Both the text and the legislative history of the ADA encourage the use of alternative means of settling disputes. "Where appropriate and to the extent authorized by law, the use of alternative dispute resolution, including ... arbitration, is encouraged to resolve disputes." 42 U.S.C. § 12212; see Golenia, 915 F.Supp. at 205. Given the federal policy favoring arbitration, and the text of the statute a clear expression of congressional intent, plaintiff's ADA claim is arbitrable. As to plaintiff's Rehabilitation Act claims, plaintiff has produced no evidence that Congress intended to reserve a federal forum for Rehabilitation Act claims.[4] Examining the Rehabilitation Act itself suggests that such claims are arbitrable. In 29 U.S.C. § 794a, the remedies, procedures, and rights under the Rehabilitation Act are provided to be the same as those in Title VII actions, particularly 42 U.S.C. §§ 2000d and 2000e-5. In light of the similarities between the Rehabilitation Act and the ADEA, ADA, and Title VII, all of which have been found to be arbitrable, the liberal federal policy toward arbitration under the FAA, and the rejection in Gilmer of any broad public policy arguments against submitting such claims to arbitration, plaintiff's Rehabilitation Act claims are arbitrable. E. State Law Claims Plaintiff also alleges several state law claims, including a claim under CONN. 772 GEN.STAT. § 46a-60, et seq. These state law claims arose from plaintiff's employment and thus are covered by the broad scope of the arbitration clause. CONN.GEN.STAT. § 46a-85 provides that "[t]he submission of a claim to the arbitration process shall not bar a person from filing a complaint under this chapter." To the extent that this may be interpreted to preclude arbitration, the Supreme Court has held that Congressional intent behind the FAA pre-empts state laws which contradict or limit the provisions of the FAA favoring arbitration agreements. Southland Corp. v. Keating, 465 U.S. 1, 7, 104 S.Ct. 852, 856-57, 79 L.Ed.2d 1 (1984). Consequently, plaintiff's state law claims are arbitrable. III. CONCLUSION Accordingly, the court finds a valid arbitration agreement covering each of plaintiff's claims. Therefore, plaintiff's motion for jury trial (doc. 11) is denied. Defendant's motions to stay the proceedings (doc. 14-1) and compel arbitration (doc. 14-2) are granted. SO ORDERED. NOTES [1] In plaintiff's memorandum in opposition to defendant's motion to stay action and compel arbitration, plaintiff asserts that his employment contract with defendant is not covered by the FAA. Plaintiff claims that FAA does not apply to the agreement because the FAA does not apply to the "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." 9 U.S.C. § 1 (emphasis added). Although the Supreme Court expressed differing opinions about the scope of this exclusion clause in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), the issue was not actually decided. 500 U.S. at 25 n. 2, 111 S.Ct. at 1651 n. 2. The Second Circuit has consistently viewed the exclusion clause in § 1 narrowly, holding it applies "only to those actually in the transportation industry." Erving v. Virginia Squires Basketball Club, 468 F.2d 1064, 1069 (2d Cir.1972). See also Signal-Stat Corp. v. Local 475, 235 F.2d 298 (2d Cir.1956), cert. denied, 354 U.S. 911, 77 S.Ct. 1293, 1 L.Ed.2d 1428 (1957); Maye v. Smith Barney Inc., 897 F.Supp. 100, 105 (S.D.N.Y.), leave to appeal denied, 903 F.Supp. 570 (S.D.N.Y. 1995). Following the law of the Second Circuit in the absence of contrary Supreme Court authority, plaintiff's contract is governed by the FAA. [2] Although not reiterated in support of his motion for jury trial, plaintiff also claims in his opposition to the motion to compel arbitration that the arbitration provision in the handbook lacked consideration and is invalid. Plaintiff maintains that the consideration for the original agreement could not apply to the handbook which was signed after the original agreement. However, this argument is without merit. The original contract signed by plaintiff on August 16, 1991, incorporated the handbook, and the consideration for that document, namely plaintiff's employment, is also valid for the handbook and the arbitration clause contained within. See Doctor's Assoc., Inc. v. Distajo, 66 F.3d 438, 451-52 (2d Cir.1995), cert. denied, ___ U.S. ___, 116 S.Ct. 1352, 134 L.Ed.2d 520 (1996). However, even if the arbitration clause were considered separately, the arbitration provision is supported by valid consideration. Mutual promises to arbitrate are sufficient to support an arbitration agreement. See Robert Lawrence Co., 271 F.2d at 411. [3] Plaintiff asserts in his opposition to the motion to stay and compel arbitration that the acknowledgment was an invalid disclaimer. He contends that since the disclaimer is invalid, the arbitration agreement must be invalid as well because there is no severability clause. Plaintiff provides no support for this conclusion. If the disclaimer was invalid, then all the terms of the handbook would be incorporated in the employment contract, including the arbitration provision. [4] Plaintiff asserts that Bates v. Long Island R. Co., 997 F.2d 1028 (2d Cir.1993), cert. denied, 510 U.S. 992, 114 S.Ct. 550, 126 L.Ed.2d 452 (1993), supports his assertion that arbitration should not be the sole forum for the resolution of plaintiff's civil rights claims. In Bates, the Second Circuit held that prior arbitration compelled by a collective-bargaining agreement did not bar plaintiff's claims under the Rehabilitation Act in federal district court. Id. at 1035. In so holding, the court relied on Alexander v. Gardner-Denver, 415 U.S. 36, 53-54, 94 S.Ct. 1011, 1022-1023, 39 L.Ed.2d 147 (1974), and McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984). In Gilmer, the Supreme Court distinguished this line of cases for three reasons. Firstly, the cases did not involve enforceability of an agreement to arbitrate statutory claims, but rather whether arbitration of contract-based claims precluded a judicial trial on statutory claims. Id. 500 U.S. at 35, 111 S.Ct. at 1656-57. Secondly, the cases addressed the tensions between collective-bargaining representation and individual statutory rights. Id. Thirdly, the cases did not involve the liberal federal policy toward arbitration under the FAA. Id. Therefore, Bates is not persuasive on the issue of individual agreements to arbitrate discrimination claims.	{ "pile_set_name": "FreeLaw" }
NO. 4-03-1018 Filed: 3/10/06 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County JOSHUA KRUGER, ) No. 99CF357 Defendant-Appellant. ) ) Honorable ) Thomas J. Fahey, ) Judge Presiding. _________________________________________________________________ JUSTICE COOK delivered the opinion of the court: In June 2003, a jury convicted defendant, Joshua Kruger, of (1) first degree murder (720 ILCS 5/9-1(a) (West 1998)), (2) home invasion (720 ILCS 5/12- 11(a) (West 1998)), (3) residential burglary (720 ILCS 5/19-3(a) (West 1998)), and (4) attempt (robbery) (720 ILCS 5/8-4(a), 18-1(a) (West 1998)). In August 2003, the trial court sentenced him to the following concurrent prison terms: natural life for first degree murder, 30 years for home invasion, 15 years for residential burglary, and 5 years for attempt (robbery). Defendant's motion to reconsider sentence was denied and he appealed. We affirm as modified and remand with directions. I. BACKGROUND On July 15, 1999, the police were called to 81-year-old Peter Godels's home in Westville after Godels did not answer his door when a woman came to deliver his meal. The police found Godels dead in his bedroom. An autopsy performed on July 16, 1999, showed Godels had 16 external injuries and died 6 to 24 hours before the autopsy was performed from cranial cerebral injuries due to multiple blunt-force trauma. Defendant was eventually indicted in connection with Godels's homicide for multiple counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(3) (West 1998)), home invasion, residential burglary, and attempt (robbery). Defendant proceeded with a jury trial. Before the trial, defense counsel filed motions to suppress evidence, objecting to a search of defendant's car. The trial court granted the motion in part. The State appealed. This court found that the trial court erred in excluding the evidence. People v. Kruger, 327 Ill. App. 3d 839, 845, 764 N.E.2d 138, 142 (2002). While the appeal was pending, the State filed a new indictment that restated the charges from the original indictment but added the following counts: count XIII (victim 60 years or older), count XIV (brutal or heinous behavior), count XV (section 9-1(b)(6) aggravating factor (murder committed during forcible felony) (720 ILCS 5/9-1(b)(6) (West 1998))), and count XVI (section 9-1(b)(16) aggravating factor (the victim was over 60 and the acts were brutal or heinous) (720 ILCS 5/9- 1(b)(16) (West 1998))). At trial, the State presented Barbara Johnson, who testified that she knew defendant since she was a child. According to Johnson, defendant came to her house in July 1999. At that time, Mendi Toth, Johnson's roommate; Jeff Holmes, Johnson's boyfriend; and Earl Harris, Holmes's friend, were at Johnson's house. Johnson stated that defendant, Holmes, and Harris went to get marijuana, then came back. When the three got back, Johnson told defendant she heard that he wanted to do something illegal to make some money. Over objection by defense counsel, Johnson testified - 2 - defendant asked her if she knew where he could get a gun and she responded that she did and that she knew where they could possibly get some money. Johnson told defendant that a man named "Pete" supposedly had a lot of money. Defendant, Johnson, Holmes, and Harris drove to "Pete's" house, and Godels was standing outside. Johnson and defendant agreed that if they got any money, they would split it. Over objection from defense counsel, Johnson testified that from Godels's house, the group went to Billee Weston's house to see about getting a gun. Weston did not give Johnson a gun. The group then went back to Johnson's and agreed to meet later when it was dark to rob Godels. Everyone returned to Johnson's when it was dark. Defendant asked if he was wearing dark enough clothes. The group smoked marijuana and then Holmes, Johnson, and defendant left for Westville in defendant's car. In the backseat of defendant's car, Johnson noticed a crowbar, masking tape, and a black ski mask. When they arrived at Godels's residence, Johnson was to go to the door because Godels knew her and would let her inside. After getting out of the car, Johnson turned around because she got scared. Defendant got mad and began hitting the dashboard of the car. Defendant eventually drove them back to Johnson's house. At Johnson's house, defendant told Johnson he would "do it with or without [her]." Holmes testified to a similar version of events. He added that after he heard about Godels's murder, he asked defendant if he went back to Westville and defendant responded "your girlfriend's a[] * liar" and "I killed a man for nothing." Harris also testified, and his version of the initial trip to Westville was substantially the same as Holmes's and Johnson's versions. Edgar Newton testified that he was Godels's friend and former tenant but - 3 - had moved out before Godels was murdered. Newton knew Johnson, as well as Henry Graham, a codefendant. Gary Beauchamp testified he was Godels's friend and had built the house in which Godels was living. Michelle Carlton, defendant's former girlfriend and mother of his children, testified that she lived with defendant in 1999. One evening in July, defendant, wearing only his boxers and undershirt, came to bed unusually quiet. Carlton asked him why he was home so early and he stated he was trying to make some quick cash by selling drugs, but he got scared and gave the drugs away. Later, Carlton noticed defendant's dark tennis shoes were missing. Carlton further testified that after that night, they were at defendant's mother's house and defendant was in a big hurry to get home to watch the news, which was unusual. The news ran a story about a man murdered in Westville, and defendant laughed at the television and said "they don't have any leads, they don't know what they are talking about." Carlton asked defendant how he would know that, and defendant responded "they never know what they're doing." Later that evening, a man Carlton had never seen came to talk to defendant. After the man spoke with defendant, he returned panicked, saying he was going to his dad's in Maryland. When Carlton asked defendant what was wrong, he responded "I killed that man" and pointed toward the television. Carlton also relayed a conversation she had with defendant before he was arrested in which he described how he had pounded on the dashboard in his car because he was mad that the robbery had not yielded any money. Carlton had testified in front of the grand jury that defendant was either with her or Chad Cooper all night but admitted at trial that she had lied to the grand jury. - 4 - After Carlton testified for the grand jury, she talked to defendant at the jail, and he told her that Holmes and Johnson had told him about Godels. According to Carlton, defendant stated the plan had been that he and Holmes would rob Godels but that defendant ended up robbing Godels by himself. Defendant later told Carlton that Henry Graham had been with him and Graham hit Godels while they both demanded money. Defendant stated Graham continued to hit Godels while defendant searched the house. Defendant told Carlton he had a ski mask, crowbar, and duct tape and Graham had a gun. According to Carlton, defendant stated he burned the clothes he wore when he went to Godels's residence. Carlton testified that defendant had a gang tattoo on his back that says "GD gang." Carlton believed defendant and Graham were in the same gang. The State also presented defendant's grand jury testimony to the jury. Defendant's grand jury testimony indicated he had a girlfriend, Michelle Carlton, but he did not know Barbara Johnson, Jeff Holmes, Mendi Toth, or Earl Harris. Defendant claimed he never went to Westville the week Godels was killed. Further, defendant stated that the entire day and night of the murder he was either at Carlton's apartment, with Carlton, or with his best friend Chad Cooper. The State called numerous police officers and crime scene investigators. One official testified he seized a blue knit cap, a blue hooded sweatshirt, a black and green nylon bag, a blue bandana, and blue gloves from the front passenger seat of defendant's car. The official also collected a swab of a reddish stain from defendant's car. The only fingerprints found at the victim's home belonged to Beauchamp and Newton. One forensic scientist matched a swab retrieved from defendant's car to - 5 - Godels's DNA (deoxyribonucleic acid). Defendant called Chad Cooper, who testified that defendant was with him from around 6 p.m. to around 9 p.m. the night of the murder. Cooper also stated that defendant had asked him to arrange a visit between defendant and his children. Cooper asked Carlton, but she stated she wanted nothing to do with defendant or to "mess up" her new relationship. The chief investigator in this case testified that he had received information from Henry Graham that defendant went to a particular area to burn his clothing from the night of the murder and that a crowbar was thrown in that area. When police searched the area, they found nothing of significance to the case. Godels was murdered in July, and the police searched the area in the winter when four to six inches of snow covered the ground. The parties stipulated that Shawn Williams, a former tenant of Godels, moved out of Godels's residence three to five weeks before the murder. Williams knew Henry Graham and his brother but does not remember whether Henry had ever been to Godels's home. Finally, defendant testified in his own defense. Defendant admitted that on July 13, 1999, he saw Johnson, Holmes, and Harris. Defendant claimed he was driving to see if he could buy a gun for protection and saw Holmes and Harris at Johnson's house. Holmes stated he could get a gun, so defendant, Holmes, and Harris drove to some apartments. Holmes went inside to get the gun but came back empty- handed. The group headed back to Johnson's house where they found Johnson. Johnson said she could get defendant a gun if he bought her some marijuana. - 6 - Defendant bought the marijuana. Johnson directed defendant to a trailer in Westville. Defendant drove and Johnson, Holmes, and Harris went along. When they arrived at the trailer park, Johnson stated that the guy's car was not there, so they could not get the gun. Defendant drove the group back to Johnson's house. During the drive, Johnson pointed to Godels's house and stated Shawn Williams had robbed the house and they could easily rob it. Defendant responded he did not want to have anything to do with a robbery. Defendant claims on July 14, 1999, he went to his mother's house in the morning, Carlton later came to his mother's house, and they eventually went back to Carlton's apartment. At 6 p.m., Cooper picked him up and they went for a run, and then went to Fazoli's. Cooper dropped him back at home at 9 p.m. Defendant only left that evening to get milkshakes. Defendant remembers the day because Carlton started a new job the next day. The day Carlton started her new job, July 15, defendant awoke and found a note from Carlton stating she would meet him at his mother's house after she got off of work. Defendant's pager went off while he was taking a shower. The page was from Holmes, who stated he had a gun for defendant at Holmes's mother's house. At the house, defendant saw Holmes and Henry Graham talking. Holmes gave defendant a gun. Graham and defendant started talking, and Graham asked defendant for a ride to the mall. Defendant took Graham to the mall and they discussed a party that was to be held that night. Defendant agreed to go with Henry Graham to the party. After the mall, defendant went to his mother's house and met Carlton. That night, he drove Graham and Tyson Jones to a bar and nightclub. After going to the nightclub, defendant went - 7 - home. The next day, July 16, defendant noticed an article in the newspaper about a suspicious death in Westville. Defendant recognized the man as the person standing in front of the house that Johnson had said would be easy to rob. Defendant thought it was a big coincidence, so when Carlton came to his mother's after work, he told her he wanted to get home to watch the news. While watching the story about Godels, defendant told Carlton he thought he knew who killed that man. Defendant told Carlton what happened with Johnson. The two considered going to the police but decided not to because defendant was on parole. On July 17, Holmes approached defendant and told him Johnson was blaming him for the murder in Westville. Defendant told Holmes that Johnson was a liar. Holmes asked defendant if he was going to the police, and defendant said he was not. Holmes threatened to tell the police about defendant's gun if he told the police. A week and a half later, defendant was arrested for possession of a firearm by a felon after the police saw a gun in defendant's car when they were investigating him for Godels's murder. The police towed defendant's car. Defendant remained in jail until, according to him, he was told that he had a phone call. Instead of receiving a call, he was taken to the grand jury room and told he had to testify. At the time, he was represented for the firearms charge, but his attorney was not present at the grand jury. After the grand jury, defendant was charged with Godels's murder. At the close of all the evidence, the State submitted two theories of first degree murder. "Type A" theorized defendant personally or by accountability performed the acts that caused the death and intended to kill or do great bodily harm, knew his - 8 - acts would cause death, or knew his acts created that strong probability. "Type B" theorized felony murder during the commission or attempted commission of home invasion, residential burglary, or robbery. Defendant was convicted of (1) first degree murder (720 ILCS 5/9-1(a) (West Supp. 1999)), "Type B," (aggravating factors age, brutal, or heinous behavior, and felony murder); (2) home invasion, (3) residential burglary, and (4) attempt (robbery). At sentencing, the trial court orally sentenced defendant to concurrent prison terms of natural life for "Type B" first degree murder, 30 years for home invasion, 15 years for residential burglary, and 5 years for attempt (robbery). In November 2003, the court denied defendant's motion to reconsider sentence. This appeal followed. II. ANALYSIS On appeal, defendant raises eight points of error. First, defendant argues that the trial court had no jurisdiction to proceed on the indictment filed when the State's appeal was still pending. In the alternative, defendant argues his natural life sentence was based on a charge for which he had been acquitted and we should remand. Next, defendant argues the court improperly allowed testimony concerning defendant's search for and possession of a gun. Also, defendant claims the court erred in denying his motion to suppress his statements to the grand jury. Further, the court acted improperly in allowing Carlton's testimony that defendant had a gang tattoo and was in a gang with Henry Graham. Defendant next claims the court committed plain error when it allowed the State to impeach him with his prior convictions for unlawful possession of a weapon by a felon and armed robbery. Defendant also argues he was denied effective assistance of counsel at his jury trial. Finally, defendant contends his natural life - 9 - sentence is grossly disproportionate to codefendant Henry Graham's sentence of 20 years. D. Grand Jury Testimony Defendant argues his statements to the grand jury should have been suppressed because during the grand jury proceedings the State questioned him without his lawyer despite his previous invocations of his right to counsel and despite his previous invocations of his right to remain silent. The State responds that the admission of the testimony was harmless. The record shows that at the hearing on the motion to suppress defendant's grand-jury statements, defendant's former attorney, Craig DeArmond, testified that he represented defendant in 1999 on the firearms charge. The firearms charge arose because officers were sent to defendant's apartment as defendant was a suspect in the Godels murder investigation. When the officers arrived at the apartment, defendant drove up in his car. Officers recognized defendant from photographs they had seen of him, and they had information that a car matching the description of the one defendant was driving was used to travel to Godels's residence. The two officers approached the car and identified themselves as police officers. One officer saw a live round on the driver's seat, and knowing defendant to be a convicted felon, asked defendant if he was supposed to have a bullet. That officer then saw on the front driver's seat the handgrip and clip of a gun. Defendant was eventually charged with unlawful possession of weapon by a felon (720 ILCS 5/24- - 10 - 1.1(a) (West 1998)). Shortly after DeArmond was retained to represent defendant on the gun charge, he became aware that defendant was facing the possibility of an indictment for Godels's murder. DeArmond had a number of informal conversations with the State's Attorney regarding whether defendant would implicate a co-actor in the Godels murder and whether defendant would testify before the grand jury regarding the murder. DeArmond remembered the State's Attorney calling to tell him he was thinking about calling defendant at the grand jury, but DeArmond never told the State's Attorney it was all right for him to call defendant without DeArmond being present. At no time did DeArmond state defendant agreed to waive his right to have an attorney present at the grand jury. DeArmond did not receive a notice saying that defendant was going to be called before the grand jury. DeArmond knew the State had wanted to call defendant, but he did not know until after the grand jury that defendant had testified. Section 112-4(b) of the Code of Criminal Procedure of 1963 states as follows: "Any person * against whom the State's Attorney is seeking a Bill of Indictment shall have the right to be accompanied by counsel who shall advise him of his rights during the proceedings but may not parti- cipate in any other way. Before any testimony is given by such a person, he shall be in- formed that he has the right to refuse to - 11 - answer any question that will tend to in- criminate him, that anything he says may be used against him in a court of law, that he has the right to be accompanied and advised of his rights by counsel, and that he will have counsel appointed for him if he cannot afford one." 725 ILCS 5/112-4(b) (West 2000). Before questioning defendant before the grand jury, the State's Attorney stated as follows: "Sir, I would advise you that you have the right to refuse to answer any questions that will tend to incriminate you, that anything you say may be used against you in a court of law. You have the right to be accompanied by and advised of your rights by counsel. And if you cannot afford counsel you can have the right to have one appointed for you." After this admonishment, defendant answered the State's questions. The trial court determined that defendant had been given Miranda warnings (see Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) and advised of his rights on previous occasions and that the State's Attorney admonished him consistent with the statutory requirements. The court determined, therefore, that defendant was aware of his rights and "there is some onus on the - 12 - [d]efendant to exercise those rights and seek an attorney or request an attorney if he so chooses." The court denied the motion to suppress the grand-jury statements. Defendant was undisputedly represented by counsel on the firearms charge. The firearms charge was initiated because defendant, a convicted felon, was found in possession of a firearm and ammunition while police were investigating defendant concerning Godels's murder. Defendant's attorney for the firearms charge knew defendant was a suspect in Godels's murder and knew the State was thinking about calling defendant before a grand jury regarding Godels's murder. The State, knowing defendant was represented, brought defendant from the jail where he was being held on the firearms charge, gave him a subpoena, told him he had the right to be advised by a lawyer, and questioned him under oath. The State never informed defendant's attorney that defendant was being questioned before the grand jury even though the State had been negotiating with his attorney regarding whether defendant would testify. These unique circumstances establish a violation of defendant's sixth- amendment right to counsel and a basis for excluding his grand-jury statements at trial. The trial court's error in admitting the statements, though, was harmless. The sixth amendment of the United States Constitution guarantees that in a criminal prosecution the accused shall "have the [a]ssistance of [c]ounsel for his defense." U.S. Const., amend. VI. In Kirby v. Illinois, 406 U.S. 682, 688, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877, 1881 (1972), the United States Supreme Court determined that the sixth-amendment right to counsel attached "only at or after the time that adversary judicial proceedings [had] been initiated." Once the sixth-amendment right to counsel has attached and defendant has asserted his right to counsel, the prosecution - 13 - may not initiate an interrogation. Michigan v. Jackson, 475 U.S. 625, 635, 89 L. Ed. 2d 631, 641-42, 106 S. Ct. 1404, 1410-11 (1986). Without defendant's counsel being present, any purported waiver of counsel in that situation is invalid. Michigan v. Jackson, 475 U.S. at 635, 89 L. Ed. 2d at 641-42, 106 S. Ct. at 1410-11. The sixth amendment's guarantee of the right to counsel is "offense specific" and "cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is at or after the initiation of adversary judicial criminal proceedings." McNeil v. Wisconsin, 501 U.S. 171, 175, 115 L. Ed. 2d 158, 166, 111 S. Ct. 2204, 2207 (1991). In determining whether an uncoerced confession of a crime should be admissible when the confessor's sixth-amendment right to an attorney had attached for another offense, the United States Supreme Court determined that the meaning of the term "offense" in the sixth-amendment right-to-counsel context is the same as in the fifth-amendment double-jeopardy context. Texas v. Cobb, 532 U.S. 162, 173, 149 L. Ed. 2d 321, 331-32, 121 S. Ct. 1335, 1343 (2001). In Cobb, the Supreme Court noted that the ability to obtain uncoerced confessions after valid Miranda waivers is "'essential to society's compelling interest in finding, convicting, and punishing those who violate the law.'" Cobb, 532 U.S. at 172, 149 L. Ed. 2d at 331, 121 S. Ct. at 1343, quoting McNeil, 501 U.S. at 181, 115 L. Ed. 2d at 170, 111 S. Ct. at 2210. According to the United States Supreme Court, "the core purpose of the counsel guarantee was to assure 'Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." United States v. Ash, 413 U.S. 300, 309, 37 L. Ed. 2d 619, 626, 93 S. Ct. 2568, 2573 (1973). The Court recognized that today's adversary system "'involves critical confrontations of - 14 - the accused by the prosecution at pretrial proceedings where the results might well settle the accused's fate and reduce the trial itself to a mere formality.'" Ash, 413 U.S. at 310, 37 L. Ed. 2d at 627, 93 S. Ct. at 2574, quoting United States v. Wade, 388 U.S. 218, 224, 18 L. Ed. 2d 1149, 1156, 87 S. Ct. 1926, 1931 (1967). The Supreme Court of Illinois has held that "the level of prosecutorial involvement may be considered in determining whether a defendant's sixth[-]amendment right to counsel has attached" and a "defendant has a sixth[-]amendment right to counsel only if there has been significant prosecutorial involvement at the time of the questioned action or if the government has committed itself at that time to prosecute defendant." People v. Garrett, 179 Ill. 2d 239, 248, 250, 688 N.E.2d 614, 618-19 (1997). While defendant's grand-jury testimony came before he was formally charged with Godels's murder and the firearms charge and the home invasion, residential-burglary, attempt (robbery), and felony murder charges are not the same offenses under double- jeopardy principles, defendant should not have been questioned without his attorney under these unique circumstances. In this case, defendant's retained attorney was representing him on a firearms charge that arose in the course of the investigation of Godels's murder. While defendant claimed the gun was for his own protection, substantial trial testimony established that defendant acquired the firearm in preparation for robbing Godels. Defendant's attorney on the gun charge knew defendant was a suspect in the Godels murder and was negotiating with the State regarding defendant's cooperation at the grand jury. The State knew defendant was represented yet purposefully circumvented counsel to obtain a sworn statement of defendant's involvement in the Godels case. - 15 - This is not the case of an uncoerced confession as in Cobb, 532 U.S. 162, 149 L. Ed. 2d 321, 121 S. Ct. 1335. Defendant did not voluntarily confess at a police station where he was being held on another charge after receiving Miranda warnings. Defendant was ordered to testify under oath in front of a grand jury after the brief admonishment that he had the right to be "accompanied by and advised of his rights by counsel." Defendant was ordered to testify under oath without the benefit of his attorney's advice. Defendant did not give an uncoerced confession; rather, he was confronted with the intricacies of our legal system and advocacy of the public prosecutor and ordered to give sworn testimony without the advice of his attorney. All of this was done after defendant retained counsel to advise him after he was charged and taken into custody. While defendant's grand-jury testimony should not have been admitted, any error was harmless beyond a reasonable doubt in light of the overwhelming evidence of defendant's guilt. People v. Mitchell, 152 Ill. 2d 274, 326, 604 N.E.2d 877, 903 (1992). Only defendant's own testimony and that of his best friend exculpated defendant. Three of defendant's companions, however, testified consistently that defendant was looking to rob someone and he went to Godels's residence intending to rob him. Two witnesses, one of which was defendant's former girlfriend, testified that defendant admitted to killing Godels. Finally, Godels's DNA was found in defendant's car. III. CONCLUSION For the reasons stated, we affirm the trial court's judgment and remand - 16 - with directions that the written judgment of sentence be corrected to show defendant was convicted of and sentenced for count VI, first degree murder, in that he without lawful justification performed the acts that caused the death of Godels while attempting to commit a forcible felony, residential burglary, in violation of section 9-1(a)(3) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(3) (West 1998)). Affirmed as modified and remanded with directions. TURNER, P.J., and McCULLOUGH, J., concur. - 17 -	{ "pile_set_name": "FreeLaw" }
608 S.E.2d 917 (2005) 269 Va. 281 Katina GREEN, Administrator of the Estate of Christie D. Green v. George INGRAM, et al. Record No. 040480. Supreme Court of Virginia. March 3, 2005. 918 Charles H. Cuthbert, Jr., Petersburg (Margaret Cuthbert Broaddus; Cuthbert Law Offices, on brief), for appellant. Beverly A. Burton, Senior Asst. City Atty. (Vicki W. Harris, Asst. City Atty., on brief), for appellee George Ingram. No brief or argument for appellee Defense Technology Corp. of America. Present: All the Justices. LEMONS, Justice. Christie D. Green ("Green") was shot and killed by fragments from a frangible round shot at and through a door when police officers sought to gain entrance to a home to 919 execute a search warrant. Katina Green, the administrator of the estate ("administrator" or "plaintiff"), sued various defendants in a wrongful death action. In this appeal, we consider whether the trial court erred in granting a motion to strike the administrator's evidence and dismissing her motion for judgment. I. Facts and Proceedings Below A. Background According to well-settled principles of appellate review, when the trial court grants a motion to strike the plaintiff's evidence, we review the evidence on appeal in the light most favorable to the plaintiff. Perdieu v. Blackstone Family Practice Ctr., Inc., 264 Va. 408, 411, 568 S.E.2d 703, 704 (2002); Bryan v. Burt, 254 Va. 28, 30-31, 486 S.E.2d 536, 537 (1997). On December 29, 1998, Captain John B. Buckovich ("Buckovich") led the Richmond Special Weapons and Tactics ("SWAT") team on a mission at 1112-C Dove Street in the City of Richmond. The purpose of this mission was to serve a search warrant at a home where illegal drugs and firearms were located. Sergeant George J. Ingram ("Ingram"), a member of the SWAT team, was assigned the task of breaching the kitchen door using frangible breaching rounds. As part of initiating the entry, police employed a technique known as "rake and break." The technique involves the breaking of a front window and announcing, "Richmond Police, search warrant," while entry through a door at a different location is accomplished. While the "rake and break" was being employed at the front of the house, Ingram attempted to enter the residence through the kitchen door. The door was an exterior, heavy, windowless, composite wood door, with a lockless doorknob set below a single cylinder deadbolt lock mortised into the door. Prior to using the frangible rounds, Ingram attempted to open the door by turning the doorknob. While the doorknob turned freely, the door did not open and Ingram concluded that the deadbolt was engaged. Ingram then used a shotgun to fire frangible rounds at the door's locking system. According to SWAT team training and Ingram's own testimony, the optimal angle from which to shoot a frangible round is a downward 45-degree angle. The purpose of this angle is to push any possible debris downward to prevent injuries. The exact angle used by Ingram is not known, but evidence at trial indicated that Ingram did fire at a downward angle. The frangible rounds fired by Ingram are designed to disintegrate into powder upon impact with metal. In attempting to breach the kitchen door, Ingram fired five frangible rounds. Ingram stated that his first shot "[p]enetrated the door right where the throw was, about the location of the throw, or where the throw is. You can't see the throw obviously when the door is locked, but approximately where the throw is." In discussing the second shot, Ingram stated that he pointed the barrel of his shotgun below the hole created by the first shot. When asked why he aimed below his first shot, Ingram stated that the door had not swung open on the first shot and "how you work this is you shoot, you look, you shoot, you look, working in a pattern to clear it where the throw would be." Ingram was next asked about the angle of each of the shots and he replied that the angle would become steeper as he went down from the first shot to the last shot, such that the first shot was the least steep angle and the last shot was the most steep angle. After each shot, Ingram testified that he made a "visual and toe check," consisting of a visual inspection of the results of the shot and an attempt to push the door open with his foot. He stated that "sometimes it takes two and sometimes it takes five shots" and that the purpose of the toe check is to determine between shots whether the door will open. Ingram testified that he performed this check after each of his five shots. Ingram testified that his first shot was between the deadbolt lock and the frame of the door, and that his four subsequent shots were each an inch successively lower in a vertical line. At no point during the firing of the frangible rounds did Ingram re-attempt to open the door by turning the doorknob below the deadbolt. 920 After firing five frangible rounds, Ingram still could not open the door by pushing it with his foot. A battering ram was used to open the door and enter the residence. Upon entry, the SWAT team found Green lying dead on the kitchen floor, her body draped over her three-year-old daughter, who was unharmed. As a visitor to the home, she had arrived approximately twenty minutes before the SWAT team began the breaching operation. An autopsy revealed that frangible round fragments caused Green's death. After entering the residence, police found heroin, an assault rifle and high-volume ammunition magazines, two semi-automatic pistols, a silencer for one of the pistols, and ammunition for the rifle and pistols. B. Proceedings Below This appeal arises from a lawsuit originally styled "Leslie L. Green, Administrator of the Estate of Christie D. Green versus Armor Holdings, Inc. of America (a Delaware corporation), Defense Technology Corporation of America (a Delaware corporation), Defense Technology Corporation of America, John B. Buckovich, and George Ingram."[1] Katina Green was subsequently substituted as administrator. The trial court granted a motion to sever the trial of the three corporate defendants from that of Buckovich and Ingram. The administrator then non-suited Armor Holdings and DTCA on January 28, 2002. In a jury trial involving only Delaware Defense Technology, the jury returned a defense verdict. The trial court entered judgment in favor of Delaware Defense Technology. The administrator filed a timely petition for appeal, Record Number 021017, which we refused. The case then proceeded to trial against defendants Buckovich and Ingram. The administrator, in her claims against Buckovich, alleged gross negligence in his training and supervision of Ingram and in his planning of the operation. In her claims against Ingram, the administrator alleged gross negligence in his use of the frangible rounds and breaching of the door during the operation. The plaintiff also sought punitive damages. At trial, plaintiff presented evidence of the manufacturer's specifications for the use of the frangible rounds, the training for SWAT team members in the firing of the frangible rounds, Ingram's conduct in firing the frangible rounds during the evening in question, and the trajectory of the five frangible rounds fired by Ingram. With respect to the manufacturer's specifications for the use of the frangible rounds, the manufacturer's advertisements stated that the "No. 22 T.K.O. (Tactical Knock-Out) 12 Gauge Frangible Slug" was "made of compressed powdered zinc, which disintegrates into a fine powder upon impact with the target. The only possible fragmentation would be from the target area rather than the slug itself." The manufacturer also stated, "When properly applied, [the frangible] round is capable of defeating door lock mechanisms, door knobs, hinges, dead bolts, safety chains, and padlocks on both hollow and solid wooden doors, as well as standard hollow industrial doors." A reasonable inference from the manufacturer's specifications is that the "target" is a metal object associated with a door. Such an inference was advanced by the city attorney herself when, in argument before the trial court, the following colloquy took place: CITY ATTORNEY: Furthermore, the evidence is that Ms. Green was killed by fragments of a round, which indicate the 921 rounds hit something. The inference is that the rounds hit something in the door. THE COURT: Something other than wood? CITY ATTORNEY: Something other than wood, something that broke them apart. All of the evidence indicates [Ingram] applied the rounds to the target area. In fact, the testimony was that his first round was fired directly in the area of the dead bolt. The evidence is that the dead bolt is on the floor and that part of the doorknob is on the floor. The only permissible inference from that is that he fired the rounds in accordance with his training. It struck a metal object in the door and struck something hard enough to breach it. Obviously, the rounds hit something and broke into parts. The evidence is that Ms. Green was killed by fragments. That a metal mechanism attached to the door is the "target" is further bolstered by the testimony of Ingram himself: Q. And in connection with the first [round] that you fired at the door, at what point of the door did you point the barrel of the shotgun? A. The sights were placed on the lock, the area between the dead bolt lock and where the frame is there's a small area that's exposed and that's the area that we shot at. Q. And why is it that you shot at that area between the dead bolt lock and the frame? A. That's where the throw goes into the frame from the lock. Q. So you were shooting at the throw, the dead bolt throw for that first shot, correct? A. Correct. Buckovich supports this conclusion as well: Q. At any time as far as you are aware, has anyone on behalf of the Richmond Police Department fired rounds purposefully below a lock on a wooden door in order to determine the extent to which the round would penetrate the door if the round did not come in contact with the metal lock? A. Once again, I haven't. I don't know what Captain Beadles and Lieutenant Bennett, if they have. So I haven't done that personally. Q. Why not? A. Because that wasn't the way the round was intended to be used. It was intended to be used to be fired at the locking mechanism. .... Q. When you were firing frangible rounds, did you ever purposefully aim at a part of the door that you thought did not have hardware in it? A. Only time I've ever fired it was at hinges or the locks. Q. And why have you never purposefully aimed at a part of the door that you did not think had hardware in it? A. As I stated earlier, that's not the way the round is intended to be used, so I never did it. This definition of "target" is further supported by training materials for the SWAT team that direct, "AIM SHOTGUN WITH A 45-DEGREE DOWN ANGLE AT THE LATCHBOLT BETWEEN THE LOCK AND THE FRAME." As part of SWAT team training, members received training on breaching techniques. Ingram received this training, and also served as an instructor. The plaintiff introduced into evidence the lesson plan for the course on breaching techniques. The lesson plan stated that the frangible round is to be used to "[a]ttack the throw area of the dead bolt usually." When focusing on shotgun breaching, the lesson plan listed seven "intelligence requirements": the composition of the door, the composition of the frame, the swing on the door, the locking options, the attaching methods, any additional hardware, and the shotgun aiming points. The plaintiff also introduced deposition testimony regarding Ingram's conduct in firing the frangible rounds during the breaching operation on December 29, 1998.[2] While 922 Ingram was unsure of the exact angle, he testified that he fired all five frangible rounds at a downward angle. Ingram stated that each shot was approximately an inch below the one before it, and that he fired them in a vertical line below where he concluded the latchbolt to be located. When asked whether he considered "that there might be people in the room on the other side of the door," Ingram responded, "You're always aware of that, the room that you're going into might be occupied. You're always aware of that." It was undisputed that fragments from the frangible rounds fired by Ingram caused Green's death. At the conclusion of the plaintiff's case-in-chief, Buckovich and Ingram moved to strike the evidence. The trial court granted Buckovich's motion and denied Ingram's motion. Ingram then declined to present any evidence and renewed his motion to strike. The trial court took Ingram's motion under advisement and submitted the case to the jury, with Ingram as the only defendant. The jury was unable to reach a verdict, and Ingram renewed his motion to strike. The trial court granted Ingram's motion and entered judgment in favor of Ingram. The administrator filed a timely petition for appeal. At the outset, it must be noted that while the style of this case includes Delaware Defense Technology, this appeal involves only the administrator as appellant and Ingram as appellee. II. Analysis A. Motion to Strike In her first assignment of error, Green contends, "As a matter of law, the trial court in this wrongful death action erred in concluding that the facts did not present a jury issue as to whether the actions of a police officer were willful and wanton or grossly negligent, under the circumstances of this case." 1. Standards of Review The standard under which a trial court should review the evidence at trial before granting a motion to strike "requires the trial court to accept as true all the evidence favorable to the plaintiff as well as any reasonable inference a jury might draw therefrom which would sustain the plaintiff's cause of action." Upper Occoquan Sewage Authority v. Blake Construction Co., 266 Va. 582, 590 n. 6, 587 S.E.2d 721, 725 n. 6 (2003) (citing Austin v. Shoney's, Inc., 254 Va. 134, 138, 486 S.E.2d 285, 287 (1997)). A trial court "is not to judge the weight and credibility of the evidence, and may not reject any inference from the evidence favorable to the plaintiff unless it would defy logic and common sense." Id. A trial court should resolve any reasonable doubt as to the sufficiency of the evidence in the plaintiff's favor and should grant the motion only when "`it is conclusively apparent that [the] plaintiff has proven no cause of action against defendant.'" Williams v. Vaughan, 214 Va. 307, 309, 199 S.E.2d 515, 517 (1973) (quoting Leath v. Richmond, F. & P. R.R., 162 Va. 705, 710, 174 S.E. 678, 680 (1934)). On appeal, we review a trial court's judgment striking the evidence, considering the facts in the light most favorable to the plaintiff and drawing all fair inferences from those facts. Perdieu, 264 Va. at 411, 568 S.E.2d at 704. 2. Gross Negligence Both parties agree that under Virginia law, a government agent such as Ingram is immune from suit for simple negligence but not for gross negligence. Colby v. Boyden, 241 Va. 125, 128, 400 S.E.2d 184, 186 (1991). Additionally, both parties agree the trial court correctly instructed the jury below that gross negligence is "that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety of [another]. It must be such a degree of negligence as would shock fair minded [people] although something less than willful recklessness." Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971); see also Meagher v. Johnson, 239 Va. 380, 383, 389 S.E.2d 310, 311 (1990). The evidence from the manufacturer concerning the frangible rounds indicates 923 that the rounds are designed to disintegrate "into a fine powder upon impact with the target." The SWAT team training information instructed that when using frangible rounds to breach a door like the one encountered by Ingram, the shotgun should be aimed "with a 45-degree down angle at the latchbolt between the lock and the frame." A reasonable jury could conclude from the evidence that the "target" is a metal mechanism attached to a door. Ingram testified that he fired five frangible rounds. He testified that his first shot was between the deadbolt lock and the frame of the door, and that his four subsequent shots were each an inch successively lower in a vertical line. This method was employed despite the fact that the latchbolt was in a horizontal line from the deadbolt to the frame. From the photographs introduced by the plaintiff, a jury could reasonably conclude that the shots were in a vertical pattern and below the location of the deadbolt lock. A reasonable jury could conclude that Ingram fired the frangible rounds into an area where there was only wood and no metal. A reasonable jury could conclude that Ingram departed from instruction and training, and fired in a location below the lock rather than between the lock and the frame. Given Ingram's own testimony about assumptions made concerning the presence of people on the other side of the door, a reasonable jury could have concluded that Ingram acted "with that degree of negligence which shows indifference to others as constitutes an utter disregard of prudence amounting to a complete neglect of the safety" of others. The trial court's ruling to grant the motion to strike plaintiff's evidence was based upon the issue of gross negligence, not proximate causation. Viewed in the light most favorable to the plaintiff and drawing all fair inferences from these facts, the administrator presented sufficient evidence to constitute a jury question on the issue of gross negligence. 3. Willful and Wanton Negligence Punitive Damages As we recently explained, A claim for punitive damages at common law in a personal injury action must be supported by factual allegations sufficient to establish that the defendant's conduct was willful or wanton. Huffman v. Love, 245 Va. 311, 314, 427 S.E.2d 357, 359-60 (1993); Booth v. Robertson, 236 Va. 269, 273, 374 S.E.2d 1, 3 (1988); see Alfonso v. Robinson, 257 Va. 540, 546-47, 514 S.E.2d 615, 619 (1999). Willful and wanton negligence is action undertaken in conscious disregard of another's rights, or with reckless indifference to consequences with the defendant aware, from his knowledge of existing circumstances and conditions, that his conduct probably would cause injury to another. Id. at 545, 514 S.E.2d at 618; Harris v. Harman, 253 Va. 336, 340-41, 486 S.E.2d 99, 101 (1997). Each case raising an issue concerning the sufficiency of a claim of willful and wanton negligence must be evaluated on its own facts. Alfonso, 257 Va. at 545, 514 S.E.2d at 618; Harris, 253 Va. at 341, 486 S.E.2d at 102; Huffman, 245 Va. at 315, 427 S.E.2d at 360. Woods v. Mendez, 265 Va. 68, 76-77, 574 S.E.2d 263, 268 (2003). The difference between ordinary negligence and gross negligence is one of degree; however, the difference between any form of negligence and causes of action for willful and wanton conduct, reckless conduct, or intentional misconduct is a matter of kind. Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 582, 391 S.E.2d 322, 327 (1990). "Negligence conveys the idea of heedlessness, inattention, inadvertence; willfulness and wantonness convey the idea of purpose or design, actual or constructive." Boward v. Leftwich, 197 Va. 227, 231, 89 S.E.2d 32, 35 (1955). Additionally, in Infant C. we explained the difference between willful and wanton conduct and intentional misconduct where we stated: "An actor guilty of intentional misconduct must intend to cause harm to another ... An actor guilty of willful and wanton conduct intends his act, but not the resulting harm." 239 Va. at 582, 391 S.E.2d at 328 (citation omitted). Ill will is not a necessary element of willful and wanton negligence. Id. at 581, 391 S.E.2d at 327. In this case, plaintiff has alleged willful and wanton conduct in support of a 924 claim for punitive damages. Plaintiff's proof requires evidence of "actual or constructive consciousness that injury will result from the act done or omitted." Alfonso v. Robinson, 257 Va. 540, 545, 514 S.E.2d 615, 618 (1999). Upon review of the record in this case in the light most favorable to the plaintiff, the trial court did not err in striking the evidence with regard to the claim of willful and wanton conduct. The same evidence that supports a jury question on gross negligence does not necessarily support a jury question on willful and wanton conduct. Harris v. Harman, 253 Va. 336, 340-41, 486 S.E.2d 99, 101-02 (1997). On the facts presented, we agree that no reasonable juror could find that Ingram had actual or constructive knowledge that Green was on the other side of the door. His training required him to act as if there were people in the room, but there is no evidence of actual or constructive knowledge on Ingram's part that there were people in the room. The plaintiff's evidence does not rise to the level where a reasonable jury could find that Ingram had conscious awareness of the danger, and probable consequences of his actions, and recklessly decided to proceed notwithstanding that awareness. B. Admissibility of Evidence In her second assignment of error, the administrator argues, "As a matter of law, the trial court was wrong to conclude that evidence of heroin and guns was somehow relevant and hence admissible, where such evidence was not discovered until after the defendant police officer killed the plaintiff's decedent." Because this evidence was offered in support of the claims against Buckovich and he is no longer a defendant in the case, we need not address this assignment of error. III. Conclusion For the reasons stated, we hold that the trial court erred in granting the motion to strike the plaintiff's evidence as it applied to the claim of gross negligence. However, the trial court did not err in granting the motion to strike the plaintiff's evidence as it applied to willful and wanton conduct and the request for punitive damages. We will remand the case for a new trial on the issue of gross negligence. Affirmed in part, reversed in part, and remanded. Justice KINSER, with whom Justice LACY and Justice AGEE join, concurring in part and dissenting in part. I respectfully disagree with the majority's holding that the circuit court erred in granting the motion to strike the plaintiff's evidence with regard to the claim of gross negligence. In my view, reasonable persons could not differ upon the conclusion that Sergeant George J. Ingram did not act with "utter disregard of prudence amounting to a complete neglect of the safety of [another person.]" Ferguson v. Ferguson, 212 Va. 86, 92, 181 S.E.2d 648, 653 (1971); accord Colby v. Boyden, 241 Va. 125, 133, 400 S.E.2d 184, 189 (1991). Thus, the issue was a question of law for the circuit court. Graddy v. Hatchett, 233 Va. 65, 69, 353 S.E.2d 741, 743 (1987). Gross negligence is the "absence of slight diligence, or the want of even scant care." Town of Big Stone Gap v. Johnson, 184 Va. 375, 378, 35 S.E.2d 71, 73 (1945); accord Frazier v. City of Norfolk, 234 Va. 388, 393, 362 S.E.2d 688, 691 (1987). The thrust of the plaintiff's argument as well as the holding of the majority is that Sergeant Ingram was grossly negligent because he fired four frangible rounds into a location below the deadbolt lock, an area of the door containing only wood, instead of firing only in the area between the lock and the frame of the door, where the latchbolt was situated. According to the plaintiff, this method of firing the last four frangible rounds violated the aiming rules requiring that shots be fired in a 45-degree downward angle at the latchbolt between the lock and the doorframe. Sergeant Ingram, however, explained why, after he fired the first shot and the door would not open, he then fired the four subsequent rounds in a vertical pattern below the first round: "The door hadn't come open[ ], hadn't swung open on the first shot and how you work this is you shoot, you look, you shoot, you look, working in a pattern to clear it where the throw would be." The angle of each shot was successively steeper, with the 925 fifth shot having the steepest angle. His purpose was to "dislodge the dead bolt and anything that might have jammed up getting that door open." The forensic pathologist who performed an autopsy on the decedent's body did not find any whole or intact frangible rounds in her body. Instead, only fragments of a frangible round were recovered on and in the decedent's body, as well as a gray powdery substance attributable to the frangible rounds. Furthermore, the forensic pathologist testified that the fragments that entered the decedent's body followed a course through the body from "front to back, right to left, and downward." Based on these facts and the other evidence in the case, viewed in the light most favorable to the plaintiff, I conclude, as a matter of law, that Sergeant Ingram did indeed exercise diligence and care for the safety of another person. Stated differently, there was not the "absence of slight diligence, or the want of even scant care." Johnson, 184 Va. at 378, 35 S.E.2d at 73. Sergeant Ingram fired the five frangible rounds working downward in a vertical pattern in order to clear the area where the latchbolt was located and to dislodge the deadbolt and anything else that might be preventing the door from opening. Firing in this manner was consistent with Sergeant Ingram's training. Even on the plaintiff's theory that frangible rounds are designed to disintegrate into a powder solely upon impact with a metal object, and that the metal latching mechanism of a door must be the target of such rounds, the presence of only fragments on and in the decedent's body suggests that the rounds that struck her also partially hit metal. Sergeant Ingram acknowledged that he was trained to assume that someone might be on the other side of the door, and in my view, he did not act with "utter disregard of prudence amounting to complete neglect of the safety" of such a person. Frazier, 234 Va. at 393, 362 S.E.2d at 691. The word "utter" means "[c]omplete; absolute; total," Black's Law Dictionary 1582 (8th ed.2004), and the word "disregard" means "[t]he action of ignoring or treating without proper respect or consideration." Id. at 506. So, the phrase "utter disregard" means to ignore completely or totally. In this case, fair-minded people could not conclude from the evidence that Sergeant Ingram completely ignored the safety of another as he fired the frangible rounds. For these reasons, I respectfully concur, in part, and dissent, in part, and would affirm the judgment of the circuit court. NOTES [1] In her motion for judgment, the administrator referred to the two Defense Technology corporations as "[t]he defendant Defense Technology Corporation of America (a Delaware corporation), and/or the defendant Defense Technology Corporation of America (together, `Defense Technology')." Thus, it would appear the two corporations are in fact the same. However, this confusion is compounded by the administrator's subsequent non-suit of Defense Technology Corporation of America, but not Defense Technology Corporation of America (a Delaware corporation). Because the record does not indicate whether the two Defense Technology corporations are in fact the same, the three corporate defendants are hereinafter referred to in the following manner: Armor Holdings, Inc. of America (a Delaware corporation) as "Armor Holdings"; Defense Technology Corporation of America (a Delaware corporation) as "Delaware Defense Technology"; and Defense Technology Corporation of America, with no state of corporation designated, as "DTCA." [2] During the trial below, the administrator's presentation of evidence began with the videotaped deposition testimony of Ingram. The administrator subsequently called Ingram to testify in person as an adverse witness. The testimony cited is from Ingram's videotaped deposition.	{ "pile_set_name": "FreeLaw" }
151 So.2d 675 (1963) Henry Wayne LAMBERT, Appellant, v. STATE of Florida, Appellee. No. E-32. District Court of Appeal of Florida. First District. April 9, 1963. 676 Philip D. Beall of Jones, Beall & Sims, Pensacola, and Curtis A. Golden of Golden & Fitzgerald, Milton, for appellant. Henry R. Barksdale, Pensacola, for appellee. RAWLS, Judge. Henry Wayne Lambert was convicted on November 9, 1962, in the Court of Record of Escambia County of the offense of breaking and entering with intent to commit a felony. Lambert filed his notice of appeal on November 13, 1962, and on the same day the trial court set supersedeas bond at $10,000. Bond was posted the following day and Lambert was released from jail. On January 28, 1963, Lambert was arrested on another charge and the trial judge set aside his former order and increased the supersedeas bond to $20,000. Lambert, being unable to post the additional bond, moved the District Court to reduce bond. This motion recites that the order increasing the supersedeas bond was entered without further hearing in the matter, although the trial judge's order recited "This cause coming on to be heard upon the Court's own motion * ." The appellant's motion as presented to us is an application for bail and an application for reduction of bail apparently based upon the theory that the trial judge abused his discretion either in the reasonableness of the increased bail required or in the manner in which bail was increased. 677 We have not found any decisions directly in point and very little authority on the subject. The statutes provide that pending appeal a convicted defendant may be released from custody in bailable cases, by order of the trial court or of a justice of the appellate court.[1] After trial and conviction the matter of granting bail, as does a supersedeas, rests in the discretion of the trial court or justice of the appellate court to be determined by the evidence and the facts in the case.[2] The right to fix bail implies the right to modify the order fixing same, but once the amount of bail is fixed, it should not be altered either by increasing or decreasing the amount except for good cause.[3] The power to admit to bail or to modify a bail order upon a showing of good cause is a judicial power which may be exercised only under the circumstances and conditions authorized by the constitution and laws of the state.[4] Such conditions are those set forth in F.S. §§ 903.04, 903.13, and 903.19, F.S.A. which clearly indicate that notice and hearing is a prerequisite for admission to bail or for increase or reduction of bail, and in the case law of this state which holds that even after conviction, the test of reasonableness must be applied in fixing the amount of a supersedeas bond[5] although what might be unreasonable prior to conviction may be considered reasonable after conviction. By statute, the trial court and any justice of the appellate court has concurrent jurisdiction to set bail pending appeal, but when the trial court has acted in the matter, this court will not entertain another original application to fix or modify bail, although upon appropriate proceedings the reasonableness of bail and the alleged abuses of discretion may be reviewed in this court. In that event adequate evidence must be presented to overcome the presumption of the correctness of the recitals in the decree. The portion of the record submitted to this court fails to show that the trial judge abused his discretion in increasing bail, acted without a showing of good cause or failed to follow the procedure required by statute, so this court is bound by the presumption of correctness of the order increasing bail. Motion denied. STURGIS, Acting C.J., and WIGGINTON, J., concur. NOTES [1] F.S. § 924.16, F.S.A. [2] Stalnaker v. State, 126 Fla. 407, 171 So. 226 (1936). [3] 8 C.J.S. Bail § 51. [4] Ex parte Hyde, 140 Fla. 494, 192 So. 159, 161 (1939). [5] Barber v. State, 124 Fla. 694, 169 So. 368 (1936).	{ "pile_set_name": "FreeLaw" }
30 F.2d 807 (1929) BALABAN & KATZ CORPORATION v. COMMISSIONER OF INTERNAL REVENUE. TIVOLI THEATRE CO. v. SAME. Nos. 4038, 4039. Circuit Court of Appeals, Seventh Circuit. February 21, 1929. David Levinson, of Chicago, Ill., for petitioners. H. R. Gamble, of Washington, D. C., for respondent. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. PAGE, Circuit Judge. Petitioner's complaint is that the Board of Tax Appeals should have allowed it 4 per cent., instead of 3 per cent., for depreciation and obsolescence on its motion picture theater, the "Chicago," located in the city of Chicago. The "obsolescence" under consideration in rate making and for other purposes usually has to do with machinery, or other units used in the construction and operation of properties, because there is a gradual wearing out of such units, so that they finally cannot be used economically or at all. The "obsolescence" claimed by petitioner is not in machinery or other units used in theater construction and operation, but the claim is that, because of improvements in moving picture theater construction, which have been or will be incorporated in new theaters, and which cannot be put into the "Chicago," that theater, as a unit, is progressing in obsolescence to a point where, after 15 or 20 years, it cannot be profitably operated. The "obsolescence" that petitioner has undertaken to establish by both fact and opinion evidence arises, if at all, from the fact that there have been improvements in ventilating methods, in the positioning of the booths from which the pictures are thrown upon the screen, and various other things that cannot be used in the "Chicago" theater. Many of those things, testified to by Mr. Balaban, an officer of petitioner, as producing obsolescence, have not been put into use anywhere, and in fact have not been so perfected that it is known what the consequences of their perfection and use, if they are ever brought into use, will be upon any theater. The only reason given by Mr. Balaban why the "Chicago" theater was not playing to capacity houses was that the added seating capacity in Chicago during the then past year had affected the "Chicago." There is no testimony in the record that the box-office receipts of the theater in question have been affected by the absence of the improvements from that theater, or otherwise. One witness, an architect, asked to estimate the useful economic life of the theater, said: "It is very difficult to estimate exactly or to even come close. * * * I have not made any study of the operation of moving pictures from the business or attendance point of view." A structural engineer based his opinion that the useful economic life of the theater was between 15 and 20 years on the fact that two small theaters in outlying districts had, after about 7 years, been converted into garages, and on the further fact that he had often been called in to look over theaters built 10 years ago to determine whether they could be improved. The witness Schultz, without stating any facts, and apparently without having anything more than a general knowledge of the "Chicago" theater, said that the economic life of the theater was considerably shorter than that 808 of a modern loop office building in Chicago, being about 16 years, with a maximum of 20. The only other witness was a member of a Chicago investment house, and testified that: "The type of theater to which the Chicago, Tivoli and Uptown belong is the latest development, so far as we know. * * We have no means of judging what future conditions will bring about in the result of diminished returns in that type of property." This testimony indicates clearly that he had no facts upon which to estimate the economic life of any theater, to say nothing about the theater in question. It thus appears that petitioner's factual evidence did not establish before the Board any loss in the earning power of the theater. In the Eckstein Case (2 B. T. A. 19), relied upon by petitioner, there was a showing of a loss of rentals of from 25 per cent. to 50 per cent. Opinion evidence, to be of any value, should be based either upon admitted facts or upon facts, within the knowledge of the witness, disclosed in the record. Opinion evidence that does not appear to be based upon disclosed facts is of little or no value. The opinion witnesses here were almost wholly without facts to support their conclusions, and it was within the province of the Board to disregard the opinion evidence and base its opinion upon the facts in the record before it. The Conqueror, 166 U. S. 110, 17 S. Ct. 510, 41 L. Ed. 937; Idaho Power Co. v. Thompson (D. C.) 19 F.(2d) 547. We find nothing in Chicago Ry. Co. v. Blair (C. C. A.) 20 F.(2d) 10 (14), conflicting with this conclusion. The order is affirmed. No. 4039. Tivoli Theatre Company, Petitioner, v. Commissioner of Internal Revenue, Respondent. This case was, under stipulation, heard upon the same record as No. 4038, supra, and the order therein is affirmed.	{ "pile_set_name": "FreeLaw" }
543 U.S. 829 REEDv.WOODFORD, DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS. No. 03-10285. Supreme Court of United States. October 4, 2004. 1 C. A. 9th Cir. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
77 So.3d 187 (2012) MOHEB, INC. v. CITY OF MIAMI. No. 3D11-2196. District Court of Appeal of Florida, Third District. January 5, 2012. DECISION WITHOUT PUBLISHED OPINION Certiorari dismissed.	{ "pile_set_name": "FreeLaw" }
940 N.E.2d 828 (2010) GIBRALTAR FINANCIAL CORP. v. PRESTIGE EQUIPMENT CORP. Supreme Court of Indiana. October 29, 2010. Transfer granted.	{ "pile_set_name": "FreeLaw" }
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-31244 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ARTHUR WILLIAMS, also known as Pop, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 93-CR-10012-6 -------------------- June 18, 2002 Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Arthur Williams, federal prisoner # 08395-035, appeals the dismissal of his postconviction motion to dismiss the indictment filed pursuant to FED. R. CRIM. P. 12(b)(2). Motions to dismiss an indictment filed pursuant to FED. R. CRIM. P. 12(b)(2) must be made before trial or they are waived. United States v. Cathey, 591 F.2d 268, 271 n.1 (5th Cir. 1979). Because the criminal proceedings were no longer pending, Williams’ motion to dismiss the indictment was unauthorized and without a jurisdictional * 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. 01-31244 -2- basis. See United States v. Early, 27 F.3d 140, 142 (5th Cir. 1994). The judgment of the district court is AFFIRMED.	{ "pile_set_name": "FreeLaw" }
J. A34003/14 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: M.B., : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : No. 1170 MDA 2014 : Appeal from the Order, June 17, 2014, in the Court of Common Pleas of Dauphin County Juvenile Division at No. CP-22-DP-2100087-1999 BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STABILE, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 09, 2015 Appellant, M.B., appeals the order of the Court of Common Pleas of Dauphin County that determined M.B. was no longer dependent, ordered her dependency case terminated, and released her from the jurisdiction of the juvenile court. We dismiss the appeal as now moot. M.B. was born in December of 1993; she was adjudicated dependent on February 19, 1999. M.B. remained in the care and custody of Dauphin County Social Services for Children and Youth (“the Agency”) for more than 13 years. On August 21, 2012, a permanency review hearing was held, and M.B. was discharged from foster care. During this time, M.B. was incarcerated in York County, and was subsequently released on probation. On October 11, 2013, a motion was filed and temporarily granted requesting the resumption of dependency. A hearing took place on October 29, 2013. On November 1, 2013, the juvenile court approved the J. A34003/14 master’s recommendation for resumption of jurisdiction and placement in foster care. On November 8, 2013, the court approved modification of M.B.’s placement to a foster home in Reading. M.B. remained in the foster home until she was involved in an incident on March 26, 2014, resulting in charges filed against her for institutional vandalism, terroristic threats, disorderly conduct, and harassment. A permanency review hearing occurred on May 13, 2014, and the master recommended M.B. remain dependent and under the jurisdiction of the court. On May 28, 2014, the Agency filed a motion for rehearing, challenging the recommendation of the master. A hearing was scheduled for June 17, 2014, at which time M.B. was incarcerated on the pending charges. M.B. testified that she was 20 years old and requested the court retain jurisdiction. At the conclusion of the hearing, the juvenile court found that M.B. was no longer dependent, released her from the jurisdiction of the court, and terminated the case. A timely notice of appeal followed. M.B. argues the juvenile court erred as a matter of law and/or abused its discretion in finding she was no longer dependent, terminating the case, and releasing her from the jurisdiction of the court. According to M.B., she meets the definition of a dependent child consistent with 42 Pa.C.S.A. § 6302. We disagree. At the time of the June 17, 2014 hearing, M.B. was 20 years old and would be turning 21 years of age in December of 2014. The juvenile court -2- J. A34003/14 pointed out, “Since M.B. will likely be incarcerated well past December 15, 2014, when she reaches the age of twenty-one, she will no longer fit the definition of a dependent child.” (Trial court opinion, 8/13/14 at 7.) The Juvenile Act provides in pertinent part: f. Matters to be determined at permanency hearing.--At each permanency hearing, a court shall determine all of the following: .... (8.1) Whether the child continues to meet the definition of “child” and has requested that the court continue jurisdiction pursuant to section 6302 if the child is between 18 and 21 years of age. 42 Pa.C.S.A. § 6351. See In the Interest of S.J., 906 A.2d 547, 550 (“the Act establishes that upon turning eighteen years of age a dependent child may, under certain circumstances, remain under the care afforded by the Act until turning 21 years of age”). This court has stated the following about the mootness doctrine: Generally, an actual claim or controversy must be present at all stages of the judicial process for the case to be actionable or reviewable. . . . If events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot. An issue can become moot during the pendency of an appeal due to an intervening change in the facts of the case or due to an intervening change in the applicable law. An issue before a court is moot if in ruling upon the issue the court cannot enter an order that has any legal force or effect. -3- J. A34003/14 Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa. Super. 2005) (citations and quotation marks omitted). “Exceptions to this principle are made where the conduct complained of is capable of repetition yet likely to evade review, where the case involves issues important to the public interest or where a party will suffer some detriment without the court’s decision.” Public Defender’s Office of Venango County v. Venango County Court of Common Pleas, 893 A.2d 1275, 1279-1280 (Pa. 2006). Because this appeal was rendered moot by M.B.’s turning 21 years of age, we have no reason to consider any other issues she raised. 1 Rivera v. Pennsylvania Dept. of Corrections, 837 A.2d 525, 527-528 (Pa.Super. 2003), appeal denied, 857 A.2d 680 (Pa. 2004) (“It is impermissible for courts to render purely advisory opinions. In other words, judgments or decrees to which no effect can be given will not, in most cases, be entered by this Court.” (citations and quotations marks omitted)). Accordingly, the appeal is dismissed. 1 Even if this court decided this matter on the day of argument in M.B.’s favor, M.B. could no longer benefit after turning 21 years of age a week later. -4- J. A34003/14 Based on our decision herein, the stay of the juvenile court’s June 17, 2014 order that was granted on October 15, 2014, is hereby lifted. Appeal dismissed as moot. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 3/9/2015 -5-	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 18-7425 JOE LEE FULGHAM, Petitioner - Appellant, v. UNKNOWN, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Arenda L. Wright Allen, District Judge. (2:18-cv-00395-AWA-DEM) Submitted: March 29, 2019 Decided: April 3, 2019 Before DIAZ and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Dismissed by unpublished per curiam opinion. Joe Lee Fulgham, Appellant Pro Se. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Joe Lee Fulgham seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the 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 Fulgham has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We also deny Fulgham’s motions for a transcript and bail. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2	{ "pile_set_name": "FreeLaw" }
Reverse and Remand in part, Affirm in part; Opinion Filed March 26, 2020 In The Court of Appeals Fifth District of Texas at Dallas No. 05-17-00719-CV JOSE HERNANDEZ, Appellant V. SUN CRANE AND HOIST, INC.; JLB PARTNERS, L.P.; JLB BUILDERS, L.L.C.; AUGER DRILLING, INC.; AND D’AMBRA CONSTRUCTION CORPORATION, Appellees On Appeal from the County Court at Law No. 4 Dallas County, Texas Trial Court Cause No. CC-15-00715-D EN BANC OPINION Before the En Banc Court Opinion by Justice Carlyle Jose Hernandez appeals the trial court’s order granting summary judgment in favor of appellee JLB Builders, L.L.C. (“JLB”) and ordering that Hernandez take nothing on his personal injury claims against JLB.1 On November 1, 2018, a panel of this court affirmed the trial court’s judgment. Hernandez filed a timely motion for 1 Although the trial court’s order also granted summary judgment in favor of defendant JLB Partners, L.P., Hernandez asserts in his appellate brief that he appeals “only the summary judgment rendered in favor of JLB Builders, L.L.C.” The trial court’s rulings regarding Hernandez’s claims against the other defendants in this case are not at issue in this appeal. rehearing, which this court denied. Then, Hernandez filed a motion for en banc reconsideration. Sitting en banc, we withdraw this court’s November 1, 2018 opinion and vacate the judgment of that date.2 This en banc opinion is now the opinion of the court. We reverse the trial court’s order, in part; otherwise affirm the trial court’s order; and remand this case to the trial court for further proceedings. I. Background In October 2013, JLB entered into a “Subcontract Agreement” with Capform, Inc. regarding a Dallas construction project. In the Subcontract, JLB was described as “Contractor” and Capform was described as “Subcontractor.” The Subcontract stated “[Capform], at its expense, shall furnish all of the supervision, labor, material, tools, equipment, insurance, services, shop drawings, samples, protection, hoisting, scaffolding, supplies, warrantees and all permits . . . necessary to perform, construct, and complete, in the manner set out in the Contract Documents (defined below), the work described in . . . this Agreement (the ‘Work’)” and is “solely responsible for the acts and omissions of its employees, agents and suppliers and for the acts and omissions of its sub-subcontractors and their employees, agents and suppliers.” 2 At this court’s request, the parties addressed the issue of this court’s jurisdiction regarding en banc reconsideration during oral argument on Hernandez’s en banc reconsideration motion. We conclude this court has jurisdiction to reconsider this case en banc. See Cruz v. Ghani, No. 05-17-00566-CV, 2019 WL 3282963, at 6 (Tex. App.—Dallas July 22, 2019, order). –2– The Subcontract provided (1) “[JLB] has no authority to direct, supervise or control the means, manner or method of construction of the Work”; (2) “[Capform] is responsible for the manner and means of accomplishing the Work”; (3) “[i]n the event of a conflict between the terms of this Agreement and other Contract Documents, [Capform] shall be governed by the provisions imposing the greatest duty on [Capform]”; (4) Capform “shall keep a representative on the job site at all times when [Capform’s] work is in progress”; and (5) JLB “shall not issue or give any instructions, order or directions directly to employees or workers of [Capform] other than to the persons designated as the authorized representatives of [Capform].” Under the heading “Schedules,” the Subcontract stated “[JLB] may, from time to time, provide work schedules or directions to [Capform], which work schedules or directions may from time to time be changed or modified in whole or in part by [JLB], and [Capform] agrees to comply with and perform according to the requirements of any then current work schedules or directions.” The parties attached the initial work schedule as Exhibit D to the Subcontract.3 That detailed schedule provided piecemeal, day-by-day timelines for completing the work. The next subsection under “Schedules” obligated Capform to check the work schedules and directions posted “on the punch-list board at the Project [site] . . . on 3 We note that JLB did not attach Exhibit D to its summary judgment evidence when it purported to attach the “[r]elevant excerpts from the contract.” Hernandez attached the Subcontract and all exhibits thereto to his response. –3– a daily basis and conform the Work according to the current work schedules or directions.” And the Subcontract required that Capform “shall make [a] crane available at specific times designated by [JLB] for other trades which shall be placed on a schedule in the construction trailer by [JLB]. [JLB] shall not schedule crane at such times as to hamper [Capform’s] scope and flow; however, no reasonable request for crane usage may be denied [JLB] from [Capform]. If there ever should be a question as to the validity of a ‘reasonable request,’ [JLB] shall dictate.” Also, the Subcontract required Capform to submit and comply with an accident prevention and safety program addressing specified safety issues, including fall hazards.4 Exhibit K to the Subcontract, a three-page document titled “Safety 4 Under the heading “Safety,” the Subcontract stated, (1) Compliance. [Capform] shall fully comply with all laws, orders, citations, rules, regulations, standards and statutes with respect to occupational health and safety, accident prevention, and safety equipment and practices, including without limitation, OSHA standards and any accident prevention and safety program sponsored by Owner or [JLB]. Without limiting the foregoing, simultaneous with the execution hereof, Subcontractor shall complete, execute and deliver to [JLB] an Accident Prevention Plan in the form set forth on EXHIBIT J attached hereto, and shall at all times comply with the requirements of EXHIBIT J and EXHIBIT K attached hereto. (2) Precautions and Programs. (a) [Capform] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in its Work and shall conduct inspections to determine that safe working conditions and equipment exist. (b) [Capform] accepts sole responsibility for providing a safe place to work for its employees and for the employees of its sub-subcontractors and suppliers, and for the adequacy and required use of all safety equipment. (c) Prior to the commencement of the Work, [Capform] shall submit its site specific safety program to [JLB]. [Capform’s] safety program must specifically address, among other safety issues, scaffolding, fall hazards, trenching and shoring, as may be applicable. –4– Requirements,” contained general safety requirements and obligated Capform to follow established law, but it also contained certain job-specific requirements, such as, “Subcontractor shall specifically abide by and strictly comply with the following: . . . Use safety harnesses when working in areas not protected by handrails.” 5 On December 5, 2013, Hernandez was a member of a Capform work crew supervised by Capform foreman Alejandro Molina. Hernandez was injured on the project site when he fell from a “rebar cage” while attempting to place on the cage a concrete form suspended from a crane. He filed negligence and gross negligence claims against JLB. JLB filed a traditional and no-evidence motion for summary judgment on both claims. JLB’s motion stated it was based on two grounds: (1) JLB owed no duty to Hernandez because he was an employee of an independent contractor and JLB did not exercise actual control over his work or have a contractual right to control the means, methods, or details of his work, and (2) JLB did not proximately cause Hernandez’s alleged injuries.6 The evidence attached to JLB’s motion included excerpts from the Subcontract and depositions of Hernandez and Capform superintendent Juan Gutierrez, Molina’s supervisor. 5 JLB failed to attach Exhibit K to its summary judgment motion but Hernandez submitted it with his response. 6 Additionally, in the argument section of its summary judgment motion, JLB asserted, “Plaintiff cannot provide any evidence to support the negligence elements of duty, breach, and causation.” On appeal, JLB does not address the element of breach. –5– In those deposition excerpts, Gutierrez testified (1) he is “the one who’s in charge of what work that Capform employees are doing on a daily basis”; (2) no one from JLB told him “how to install the braces” on the rebar cage that fell; and (3) “no one from JLB has to tell us how to do the job.” Hernandez testified (1) on the day of the accident, Molina told Hernandez he would be setting the form on the cage; (2) it was not “windy” that day; (3) JLB did not give Hernandez any instructions regarding how to set the form or tell Hernandez to get up on the cage that fell; and (4) he did not see anyone from JLB “on this job on the day of the accident before it occurred.” Also, Hernandez replied “I don’t know” in response to questions regarding whether anyone from JLB knew bracing for the rebar cage had been attached to the ground with nails instead of rebar, whether Hernandez had any reason to believe JLB caused the accident, and whether Capform installed the braces on the cage. Hernandez filed a response to JLB’s summary judgment motion in which he asserted (1) the day of the accident “was a windy day”; (2) “[t]he windy conditions were not ideal for either working on the double stack tower, or for lowering the concrete form by crane”; (3) “[JLB’s] supervisors were onsite and knew of the hazards which workers were facing”; (4) “the subcontractor had been instructed by the General Contractor, JLB Builders, to go ahead with efforts to get the rebar tower and concrete form in place in order to be able to pour concrete later that day”; (5) “[a]s the crane lowered the concrete form onto the tower, the tower either swayed, or was contacted by the concrete form” and “it was evident that none of the –6– bracing . . . could keep the double size rebar tower in place”; and (6) as the cage began to fall, Hernandez “scrambled desperately to jump free of the tower as it fell, but it landed on his legs, causing multiple fractures.” Hernandez contended JLB “exercised full control of the schedule, including its decision to schedule the crane for different phases of the project,” “had contractual authority to control the details of Capform’s work, including accident prevention and safety,” and “breached its duty to assure safe working conditions for Mr. Hernandez,” which “lead directly” to his injuries.7 The evidence attached to Hernandez’s summary judgment response included (1) affidavits of Hernandez and Molina; (2) the Subcontract; (3) JLB 7 Specifically, Hernandez contended in his summary judgment response, [JLB] was the general contractor and controlling employer for work on the site, and was in charge not only of scheduling, and work progress at the site, but contractually required Capform and Mr. Hernandez to follow the safety rules and procedures in the JLB Health and Safety Manual. JLB Builders also required Capform to submit a separate safety program for JLB Builders’ approval, which JLB mandated include a “fall hazard” component. JLB Builders followed up on its contractual authority by instructing Capform at times concerning its work methods, conducting daily site inspections, conducting regular safety meetings that Capform was required to attend, and also attending Capform’s meetings. JLB Builders also contracted with an outside provider to perform regular safety audits of the site, covering the smallest details of the project, and following up to instruct subcontractors such as Capform to make changes based on the audits. .... Mr. Hernandez presented ample evidence that the JLB Defendants breached their standard of care by: failing to assure that the rebar tower was properly braced; failure to assure that proper braces were not [sic] used; insisting that work continue despite the presence of high winds, or failing to stop the work despite the presence of high winds; failing to warn Mr. Hernandez of the hazards associated with the inadequate bracing and high winds. There is also ample record evidence that the failure to adequately brace the tower was a contributing cause of the accident, and that requiring the work to continue in the high winds was a cause of the accident. –7– Partners, L.P.’s 170-page “Health & Safety Manual”; and (4) excerpts from depositions of Gutierrez and JLB corporate representative Paul Johnston. Johnston testified in his deposition (1) on the day of the injury, JLB supervisory employees were on the site; (2) JLB’s supervisory employees “were aware that these towers could be knocked over or fall over if not properly braced or if a big, strong wind came along or if the crane hit them”; (3) JLB “inspects for safety every day”; and (4) JLB had “the authority to correct any unsafe condition,” “the responsibility to enforce subcontractors’ compliance with safety and health requirements,” and “an obligation to exercise reasonable care to prevent and detect violations at its construction sites” and “implement an effective system for promptly correcting hazards.” Gutierrez testified in his deposition (1) he made the decision that “the form should be lifted and lowered to the cage and closed by [crew members]” rather than being placed on the cage by some other method; (2) he believes a “brace” on the rebar cage “came loose” from the ground because “a correct bracing was not used” by the foreman, Molina; and (3) he “explained to the foreman to use rebar,” rather than nails, to brace the cage, but “they didn’t do what I told them.” Also, Gutierrez stated, Q. Would it have been possible for the form to have been stood up, lifted just a short distance off the ground, then closed, then lifted and placed around the cage? –8– A. Yes. It’s possible. And we tried to do that. But on windy days, it’s difficult to place the cage over the rebar. There’s a greater risk of knocking the rebar over. .... Q. Did anyone you spoke to tell you it was too windy to place the form around the rebar while it was closed? A. No. .... Q. And isn’t it true that if the form is open there is more surface that the wind can catch and—and blow on? A. Correct. .... Q. And it’s—it’s fair to say that no one from JLB told you how to install the braces? A. No. As I said awhile ago, JLB has no reason to tell us how, unless they see something that’s unsafe. They can tell me. .... Q. And I think we’ve established that you weren’t aware that nails were used to install the braces, right? A. Correct. Q. So if you didn’t know, there would be no reason for JLB to know that? A. Correct. .... Q. Do you recall that it was windy that day? A. I—I don’t remember very well, but it’s possible that there was some wind. Q. If wind was making it difficult to set the column, is that something that either you or Mr. Molina had the right to stop until it was safer? A. We could have, but—but I don’t know if it was a wind that was over 45 miles an hour. And even the [crane] operator has the right to say no. –9– Q. In your experience, how does wind affect a crew’s ability to set a column? A. Well it affects it, as I said, if it’s above 20, 25 miles an hour. If it’s less, it affects something, but it’s—but we can—have to continue work. Hernandez stated in his affidavit (1) “JLB observed how we did our work in the days before I was injured” and (2) “[i]n the days before my injuries, I saw JLB supervisors looking at . . . the wooden supports (or legs)” on the rebar cage in question. Molina stated in his affidavit, The bottoms of the bracing for the rebar cage that fell over were secured by driving long nails through the bottom into the ground. That is a normal and acceptable method of securing the bottom of the bracing, and one that we and other Capform personnel had used in other situations and on other jobsites. .... On the day Mr. Hernandez was injured, it was windy. The wind speed, in my estimation was about 15–25 miles per hour. I personally saw the whole operation and what happened when the rebar cage fell. After the carpenters, including Mr. Hernandez, opened the form, the crane operator moved the form toward the rebar cage. The momentum of the concrete form caused by the crane operator made the form strike the rebar cage and cause it to start falling over. . . . I yelled to the carpenters to jump off, but it was too late. They were tied onto the rebar cage with their safety harnesses. II. Summary judgment In two issues, Hernandez asserts the trial court erred by granting no-evidence and traditional summary judgment on his negligence claim against JLB.8 We agree. 8 Although the trial court’s summary judgment addressed “all” of Hernandez’s claims against JLB, Hernandez asserts no error on appeal regarding his gross negligence claim. Therefore, the issue of whether –10– A. Standard of review We review a trial court’s decision to grant summary judgment de novo. Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018). To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Id.; TEX. R. CIV. P. 166a(c). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all the summary judgment evidence. Lam v. Phuong Nguyen, 335 S.W.3d 786, 789 (Tex. App.—Dallas 2011, pet. denied); Top Cat Ready Mix, LLC v. Alliance Trucking, L.P., No. 05-18-00175-CV, 2019 WL 275880, at 2 (Tex. App.—Dallas Jan. 22, 2019, no pet.) (mem. op.). A defendant is entitled to summary judgment on a plaintiff’s claim if it conclusively negates at least one element of the cause of action. See Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see also Lam, 335 S.W.3d at 789 (explaining matter is conclusively established if reasonable people could not differ as to conclusion to be drawn from evidence). A party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more essential elements of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The burden then shifts to the nonmovant to raise a fact issue on the challenged summary judgment was proper as to that claim presents nothing for this court’s review. See TEX. R. APP. P. 38.1(f), (i). –11– elements. Id. We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. See id.; Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). A no-evidence motion for summary judgment is improperly granted if the nonmovant presented more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists if the evidence “rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions.” Id. at 601. “[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Id. In reviewing a summary judgment of either type, we consider the evidence “in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005)). If a no-evidence motion for summary judgment and a traditional motion for summary judgment are filed that respectively assert the plaintiff has no evidence of an element of its claim and alternatively assert the movant has conclusively negated that same element of the claim, we address the no-evidence motion for summary judgment first. Ford Motor Co., 135 S.W.3d at 600. Where, as here, the trial court’s order granting summary judgment does not specify the grounds –12– relied on, we must affirm if any of the summary judgment grounds are meritorious. Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.—Dallas 2012, pet. denied). B. Applicable law To prevail on a negligence claim, a plaintiff must establish a legal duty, a breach of that duty, and damages proximately caused by the breach. See Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017). Ordinarily, a general contractor does not owe a duty to ensure that an independent contractor performs its work in a safe manner. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). However, when the general contractor exercises some control over the manner in which the subcontractor’s work is performed, he may be liable unless he exercises reasonable care in supervising the subcontractor’s activity. Id.; see also Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985). The general contractor’s duty of care is commensurate with the control it retains over the independent contractor’s work. Lee Lewis Constr., 70 S.W.3d at 783. A general contractor can retain the right to control an aspect of an independent contractor’s work or project so as to give rise to a duty of care to that independent contractor’s employees in two ways: by contract or by actual exercise of control. Id. General supervisory control that does not relate to the activity causing the injury is not sufficient to create a duty. Gonzalez v. VATR Constr. LLC, 418 S.W.3d 777, 785 (Tex. App.—Dallas 2013, no pet.). Thus, merely exercising or retaining a general right to recommend a safe manner for the independent contractor’s –13– employees to perform their work is not enough to impose a duty. Id.; see also Dow Chem. Co. v. Bright, 89 S.W.3d 602, 611 (Tex. 2002) (“[M]ere promulgation of safety policies does not establish actual control.”); Koch Refining Co. v. Chapa, 11 S.W.3d 153, 156 (Tex. 1999) (per curiam) (explaining that requiring independent contractor to “observe and promote compliance with federal laws, general safety guidelines, and other standard safety precautions [does] not impose an unqualified duty of care on [an employer] to ensure that [an independent contractor’s employees do] nothing unsafe”). In addition, there must be a nexus between a general contractor’s retained supervisory control and the condition or activity that caused the injury. Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357–58 (Tex. 1998) (per curiam). The right to control must be more than a general right to order work to stop and start, or to inspect progress. Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999) (per curiam). The supervisory control must relate to the activity that actually caused the injury and grant the general contractor at least the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner. Id. In order to have actual control, a general contractor “must have the right to control the means, methods, or details of the independent contractor’s work to the extent that the independent contractor is not entirely free to do the work his own way,” and the “right to control the work must extend to the ‘operative detail’ of the contractor’s work.” Union Carbide Corp. v. Smith, 313 S.W.3d 370, 375 (Tex. –14– App.—Houston [1st Dist.] 2009, pet. denied) (quoting Ellwood Tex. Forge Corp. v. Jones, 214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied)). “A possibility of control is not evidence of a ‘right to control’ actually retained or exercised.” Hernandez v. Hammond Homes, Ltd., 345 S.W.3d 150, 155 (Tex. App.—Dallas 2011, pet. denied) (quoting Coastal Marine, 988 S.W.2d at 226 (explaining that evidence plaintiff would have followed safety measures and avoided injury if defendant had required them was no evidence of actual control)). A general contractor has actually exercised control of a premises when the general contractor knew of a dangerous condition before an injury occurred and approved acts that were dangerous and unsafe. Dow Chem., 89 S.W.3d at 609 (citing Lee Lewis Constr., 70 S.W.3d at 784). The two elements of proximate cause are cause in fact and foreseeability. Bustamante, 529 S.W.3d at 456. Cause in fact is established when the act or omission was a substantial factor in bringing about the injuries and, without it, the harm would not have occurred. Id. Harm is foreseeable if a person of ordinary intelligence should have anticipated the danger created by an act or omission. Bos v. Smith, 556 S.W.3d 293, 303 (Tex. 2018). The exact sequence of events need not be foreseeable, but the conduct must be sufficiently similar to give the defendant notice of the general nature of the danger. Id. –15– C. Analysis Hernandez contends the trial court erred by granting no-evidence and traditional summary judgment on his negligence claim because the evidence shows JLB owed a duty to keep him safe, breached that duty by “permitting and instructing Capform to work under dangerous conditions,” and thereby proximately caused his injuries. Hernandez argues JLB’s duty was based on both contractual control and the exercise of actual control. Additionally, as he had in his motion for panel rehearing, Hernandez notes in his motion for reconsideration en banc that this court’s November 1, 2018 opinion failed to address two cases pertaining to subcontractor control and predating that opinion: Arredondo v. Techserv Consulting & Training, Ltd., 567 S.W.3d 383 (Tex. App.—San Antonio 2018, pet. pending), and Morales v. Alcoa World Alumina L.L.C., No. 13-17-00101-CV, 2018 WL 2252901 (Tex. App.—Corpus Christi–Edinburg May 17, 2018, pet. denied) (mem. op.).9 9 Although Arredondo and Morales involved the same legal principles applicable in this case and support our conclusions below, neither this opinion nor our decision to reconsider this case en banc is dependent on those cases. In determining whether en banc reconsideration is warranted, we are not limited to considering only the bases urged by appellant’s en banc reconsideration motion. See TEX. R. APP. P. 49.7 (“While the court has plenary power, a majority of the en banc court may, with or without a motion, order en banc reconsideration of a panel’s decision.”). The original panel’s analysis omits any mention of (1) the Subcontract provisions described above regarding schedule control and mandatory safety harness use; (2) Johnston’s testimony that JLB supervisory employees were on-site on the day of the accident and knew the cage could fall over in the event of strong wind or improper bracing; (3) Hernandez’s testimony that he saw JLB supervisors looking at the cage’s bracing prior to the accident; and (4) Molina’s statements that the wind speed was 15–25 miles per hour on the day of the accident and Hernandez was told to jump, but was tethered to the cage by his safety harness. Those omissions demonstrate that the original panel’s opinion represents a serious departure from precedent in the review of no-evidence summary judgment cases and therefore warrants en banc review under Texas Rule of Appellate Procedure 41.2 to “secure or maintain uniformity of the court’s decisions.” TEX. R. APP. P. 41.2; see In re V.V., 349 S.W.3d 548, 606 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); see also Kennamer v. Estate of Noblitt, 332 S.W.3d 559, 571 (Tex. App.—Houston [1st Dist.] –16– 1. Duty based on actual exercise of control Hernandez contends JLB owed him a safety duty based on actual control because JLB exercised “precisely the type of detailed, hands-on control contemplated” in Lee Lewis Construction and Morales. JLB responds, [T]o establish actual control, the evidence must be such that the general contractor or property owner was so involved in the work being performed that it can be said to have approved the dangerous act leading to injury. . . . There is no such evidence here. In fact, Capform’s supervisor specifically testified that JLB did not tell him how to brace the tower the day of Appellant’s injury and did not approve the way in which it was done. Appellant Hernandez himself testified that JLB did not give him any instructions on how he was to set the form or platform on the day of the accident, and could not even identify any way in which JLB, who did not even have anyone present the day of the accident, was negligent in connection with the accident. (citations omitted). In Lee Lewis Construction, the supreme court upheld a jury’s finding that a general contractor was liable for the death of an independent contractor’s employee who fell from a ten-story building when his safety support system failed. Lee Lewis Constr., 70 S.W.3d at 782. The supreme court focused on the evidence showing the general contractor assigned a superintendent “the responsibility to routinely inspect 2009, pet. denied) (Keyes, J., dissenting) (stating en banc review was warranted because the panel “reads City of Keller as requiring it to weigh the evidence for itself and to determine whether reasonable people could differ with its own judgment,” “misapplies the summary judgment rule in a way that . . . distorts summary judgment practice within the jurisdiction of this Court,” and “wrongfully encourages parties to file summary judgment motions on fact issues as to which there is conflicting evidence in the hope that this Court, following its own precedent, will determine that no reasonable person could disagree with its own determination of disputed facts, transforming summary judgment practice from a means of disposing of cases that present only legal issues to a means of trying material fact issues by selected proofs submitted to the court”). –17– the ninth and tenth floor addition to the south tower to see to it that the subcontractors and their employees properly utilized fall protection equipment.” Id. at 784. Further, the supreme court noted the evidence demonstrating the superintendent personally witnessed and approved of the specific fall-protection systems used by the independent contractor. Id. In that case, the supreme court concluded the evidence was “more than scintilla of evidence that [the general contractor] retained the right to control fall-protection systems on the job site.” Id. Morales involved a plaintiff injured in an industrial accident while employed by a contractor, Turner. See Morales, 2018 WL 2252901, at 1. Turner was under contract with Alcoa to provide maintenance and repair services at an Alcoa alumina refining facility. Morales contended Alcoa negligently failed to ensure that all of the “process liquor,” a chemical solution, was cleared out of a pipe, called a “riser,” before giving the Turner crew orders to begin their work. Also, Morales alleged Alcoa had actual knowledge that the riser “was not isolated” from the liquor flow. Id. When Turner employees began their work, hot liquor sprayed out of the riser, burning Morales. Id. The trial court granted summary judgment in favor of Alcoa on Morales’s negligence claims and Morales appealed. The court of appeals reversed, concluding the evidence raised a fact issue concerning whether Alcoa exercised control over the manner in which the work was performed. The court stated (1) the work Turner was hired to do “necessarily entails the unbolting of flanges”; (2) the evidence showed Alcoa required Turner to perform that task according to –18– instructions contained in the “Standard Work Instruction form,” a twelve-page Alcoa document containing detailed guidelines on “how Alcoa’s contractors must perform flange breaks,”; (3) “[m]oreover, it is undisputed that [Alcoa] exercised actual and exclusive control over the verification process, including the proper flushing and draining of the risers, and that the Turner crew relied on [Alcoa’s] performance of this activity”; and (4) “[a]ccordingly [Alcoa] exercised ‘some control’ over the ‘operative details’ of ‘the work.’” Id. at 10; see also Enserch Corp. v. Parker, 794 S.W.2d 2, 6 (Tex. 1990) (concluding fact question regarding control was raised where contract gave general contractor “the right to order work changes in the nature of additions, deletions, or modifications” and general contractor provided specific procedure manual, frequently visited site, and supervised subcontractor’s employees). Here, we are presented a different cluster of factors but one that reveals a fact issue nonetheless. In this case, JLB’s Johnston testified (1) JLB “inspects for safety every day”; (2) on the day Hernandez was injured, JLB supervisory employees were on the site; and (3) JLB’s supervisory employees “were aware that these towers could be knocked over or fall over if not properly braced or if a big, strong wind came along or if the crane hit them.” The mere presence of a JLB safety employee (or employees) would not create sufficient control for JLB to have owed a duty. See Koch, 11 S.W.3d at 157 (“We conclude that a premises owner, merely by placing a safety employee on the work site, does not incur a duty to an independent –19– contractor’s employees to intervene and ensure that they safely perform their work.”). But there is evidence JLB retained control over the daily schedule, the order in which the work was to be done, the mandatory use of safety harnesses, and when the crane would be on-site. And some evidence suggests there was sufficient wind that day to have made the work more dangerous and JLB knew of the wind and the increased danger.10 Thus, we conclude there is more than a scintilla of evidence that JLB owed Hernandez a duty arising from actual exercise of control. See Lee Lewis Constr., 70 S.W.3d at 784 (concluding evidence supported actual control where on- site superintendent overseeing mandatory use of fall-protection equipment witnessed and approved of contractor’s fall-protection systems); Morales, 2018 WL 2252901, at 10 (concluding evidence raised fact issue regarding duty where owner provided performance guidelines and controlled draining process necessary to contractor’s work); see also Hoechst-Celanese, 967 S.W.3d at 357–58. Additionally, we conclude reasonable and fair-minded jurors could differ in their conclusions regarding JLB’s actual exercise of control. See Lee Lewis Constr., 70 S.W.3d at 782– 84; Morales, 2018 WL 2252901, at 10; Hoechst-Celanese, 967 S.W.3d at 357–58; see also Lam, 335 S.W.3d at 789. Therefore, the trial court erred to the extent it granted summary judgment in JLB’s favor based on lack of duty arising from actual 10 We reject Justice Bridges’s suggestions that this opinion will encourage general contractors to “completely distance themselves from any efforts to assure safety on their work sites.” We do no more than address “all” admitted evidence and conclude the trial court—on these specific, unique facts—incorrectly granted summary judgment. See City of Keller, 168 S.W.3d at 810–11 (beginning with the propositions that the relevant inquiry is “fact specific” and is based on the evidence jurors heard). –20– exercise of control. In light of that conclusion, we need not address contractual control. 2. Breach and proximate cause Hernandez contends JLB breached its duty of care to him because it “did not exercise reasonable care in supervising the subcontractor’s activity” and “[i]n fact, . . . insisted on Capform employees continuing to conduct a dangerous activity in dangerous conditions.” Also, he asserts there was “ample evidence in the record demonstrating that [JLB’s] decisions were an actual and foreseeable cause of the incident.” He argues (1) “[b]ut for JLB’s insistence that work continue under dangerously windy conditions, [he] would not have fallen”; (2) “[a]s a result of [JLB’s] negligence, [he] fell from the tower and sustained serious injuries”; and (3) he “attempted to jump free of the tower as it fell, but it landed on his legs.” Based on the same evidence described in the duty analysis above, we conclude there is more than a scintilla of evidence that (1) JLB breached its duty of care by not exercising reasonable care in supervising Capform’s activity, see Lee Lewis Constr., 70 S.W.3d at 783 (stating that when general contractor exercises some control over manner in which subcontractor’s work is performed, he may be liable unless he exercises reasonable care in supervising subcontractor’s activity), and (2) JLB’s act or omission proximately caused Hernandez’s injury; see Guevara v. Ferrer, 247 S.W.3d 662, 666–67 (Tex. 2007) (explaining that evidence establishing sequence of events that provides strong, logically traceable connection between –21– event and condition suffices to support causation finding). Additionally, under the traditional summary judgment standard of review described above, we conclude reasonable and fair-minded jurors could differ in their conclusions regarding breach and proximate cause. See Lee Lewis Constr., 70 S.W.3d at 783; Guevara, 247 S.W.3d at 667. Therefore, the trial court erred to the extent it granted summary judgment in JLB’s favor based on lack of breach or proximate cause. See Lam, 335 S.W.3d at 789; Ford Motor Co., 135 S.W.3d at 601. III. Conclusion We decide Hernandez’s two issues in his favor.11 We reverse the portion of the trial court’s order granting summary judgment in favor of JLB on Hernandez’s negligence claim, otherwise affirm the trial court’s order, and remand this case to the trial court for further proceedings consistent with this opinion. /Cory L. Carlyle/ CORY L. CARLYLE JUSTICE Bridges, J., dissenting joined by Myers, Whitehill, Schenck, and Evans, JJ. Whitehill, J., dissenting from en banc reconsideration joined by Bridges, Myers, Schenck, and Evans, JJ. 170719F.P05 11 Although the dissent addresses the evidence omitted from the original panel’s opinion, the dissent’s analysis in reaching its “no-evidence” conclusions disregards our obligation under the applicable standard of review to consider the evidence “in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the [summary judgment] motion.” Sudan, 199 S.W.3d at 292 (quoting City of Keller, 168 S.W.3d at 823). The inferences indulged in this opinion’s analysis are proper and cannot be rejected merely because they conflict with the dissent’s own determination of disputed facts. See id. –22– Court of Appeals Fifth District of Texas at Dallas JUDGMENT JOSE HERNANDEZ, Appellant On Appeal from the County Court at Law No. 4, Dallas County, Texas No. 05-17-00719-CV V. Trial Court Cause No. CC-15-00715-D. SUN CRANE AND HOIST, INC.; Opinion delivered by Justice Carlyle, JLB PARTNERS, L.P.; JLB before the Court sitting en banc. BUILDERS, L.L.C.; AUGER DRILLING, INC.; AND D’AMBRA CONSTRUCTION CORPORATION, Appellees We WITHDRAW our opinion and VACATE our judgment of November 1, 2018. This is now the judgment of the Court. In accordance with this Court’s opinion of this date, we REVERSE the portion of the trial court’s order granting summary judgment in favor of appellee JLB Builders, L.L.C. on appellant Jose Hernandez’s negligence claim; otherwise AFFIRM the trial court’s order; and REMAND this case to the trial court for further proceedings consistent with this opinion. It is ORDERED that appellant Jose Hernandez recover his costs of this appeal from appellee JLB Builders, L.L.C. Judgment entered this 26th day of March, 2020. –23–	{ "pile_set_name": "FreeLaw" }
Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.1.0 United States Court of Appeals For the First Circuit No. 05-2329 UNITED STATES OF AMERICA, Appellee, v. JOSEPH NICOLELLA, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Ernest C. Torres, U.S. District Judge] Before Lipez, Circuit Judge, Campbell, Senior Circuit Judge, and Howard, Circuit Judge. Robert Little on brief for appellant. Donald C. Lockhart and Gerard B. Sullivan, Assistant U.S. Attorneys, and Robert Clark Corrente, United States Attorney, on brief for appellee. January 12, 2007 Per Curiam. Joseph Nicolella ("Nicolella") appeals from his 108-month, bottom-of-guidelines sentence on the grounds that the district court erred in applying the kidnapping guideline and that the resulting sentence was unreasonably high.1 After careful consideration of the parties' briefs and the underlying record, we affirm the sentence for the reasons discussed below. In return for Nicolella's pleading guilty to two counts of interstate domestic violence and two counts of interstate violation of a protection order, the government dismissed a fifth count of kidnapping arising from the same incident of domestic violence as the other counts. As Nicolella concedes, despite the dismissal of the kidnapping count, it was permissible for the district court to consider the conduct underlying that count in sentencing. See USSG § 1B1.3 comment. (backg'd); United States v. Marks, 365 F.3d 101, 107 n.4 (1st Cir. 2004). Nevertheless, Nicolella argues that the district court erred in applying the kidnapping guideline in calculating his advisory guideline range for three reasons. First, he argues that his conduct did not rise to the level of kidnapping. The government makes a strong argument that Nicolella waived that 1 He also argues that United States v. Booker, 543 U.S. 220 (2005), was wrongly decided but recognizes that this court has no power to address that claim. -2- argument by first raising it and then abandoning it at sentencing.2 See United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) (finding it difficult to conceive of a more conspicuous example of a [waiver]" than when "[a] party . . . identifies an issue, and then explicitly withdraws it"). Moreover, as the district court recognized, the absence of aggravating factors, such as a ransom demand, sexual assault, or use of a dangerous weapon, does not mean that the conduct did not constitute a kidnapping but only that no enhancement based on such factors was warranted. See USSG § 2A4.1(b)(1)-(5). Nicolella's second argument is that the district court erred in applying the kidnapping guideline, USSG § 2A4.1, rather than the stalking or domestic violence guideline, USSG § 2A6.2. While Nicolella is correct in starting with the stalking or domestic violence guideline, which applies to his offenses of conviction under USSG App. A, his argument ignores or misreads the cross-reference contained in that very guideline. That cross-reference, which the district court applied, provides that "[i]f the offense involved the commission of another criminal offense, [the court should] apply the offense guideline . . . most applicable to that other criminal offense, if the resulting offense level is greater than that determined [by 2 By the end of the sentencing hearing, defense counsel had conceded that "the elements of kidnapping are there" and no longer disputed "[t]he fact that the kidnapping was present." -3- application of the base offense level and specific offense characteristics for stalking or domestic violence]." USSG § 2A6.2(c)(1) (emphasis added). Here, as discussed above, there is no question that the offenses of conviction involved the commission of kidnapping, that the guideline most applicable to the offense of kidnapping is section 2A4.1, and that the resulting offense level under the kidnapping guideline is greater than that determined under the stalking or domestic violence guideline.3 Accordingly, the district court correctly applied the kidnapping guideline in determining Nicolella's offense level. Nicollela's third argument, raised for the first time on appeal, is that, because use of the kidnapping cross-reference dramatically increased his sentence, the district court was required to find the underlying facts by clear and convincing evidence. The short answer to that argument is that even if a higher standard of proof were constitutionally required in these circumstances--a question that we need not decide here4-- 3 Under the kidnapping guideline, Nicolella's offense level was 32, USSG § 2A4.1(a), while under the domestic violence guideline, even with a four-level increase for aggravating factors, his offense level would have been only 22, USSG § 2A6.2(a),(b). 4 Before Booker, we rejected that argument, United States v. Lombard, 102 F.3d 1, 4-5 (1st Cir. 1996), and have not had occasion to revisit it since then. Other circuits that have considered this argument post-Booker have reached varying conclusions. See United States v. Reuter, 463 F.3d 792, 792-93 (7th Cir. 2006) (collecting cases). Under those circumstances, any error in applying the preponderance of the evidence standard would not be sufficiently "plain" to warrant relief based on this unpreserved claim. See -4- Nicolella's admission of the underlying facts and his concession that the elements of kidnapping were met renders the standard of proof irrelevant. As a fallback argument, Nicolella argues that his resulting 108-month sentence was unreasonably high under the standards we articulated in United States v. Jiménez-Beltre, 440 F.3d 514, 517 (1st Cir. 2006) (en banc). Specifically, he argues only that, in declining to impose a lesser sentence, the district court "outweighed the severity of his crime." That argument is meritless. The district court's characterization of the crime as "very, very serious" is amply supported by the record--including gruesome photographs and graphic grand-jury testimony of the victim--indicating that Nicolella repeatedly struck her in the face and threatened to kill her if she attempted to escape. On appeal, Nicolella points to no countervailing factors. And, in any event, the amount of weight given to the relevant factors is for the district court, not an appellate court, to determine. United States v. Dixon, 449 F.3d 194, 205 (1st Cir. 2006). Affirmed. See 1st Cir. Loc. R. 27.0(c). United States v. Diaz, 285 F.3d 92, 97 (1st Cir. 2002). -5-	{ "pile_set_name": "FreeLaw" }
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 97-6044 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ROOSEVELT MONTIE RAINES, Defendant - Appellant. Appeal from the United States District Court for the Middle Dis- trict of North Carolina, at Greensboro. Frank W. Bullock, Jr., Chief District Judge. (CR-92-96, CA-95-243-2) Submitted: August 28, 1997 Decided: September 16, 1997 Before WILKINS, WILLIAMS, and MICHAEL, Circuit Judges. Affirmed by unpublished per curiam opinion. Roosevelt Montie Raines, Appellant Pro Se. Benjamin H. White, Jr., Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM: Appellant appeals the district court's order dismissing his 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997) motion. Appellant's case was referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) (1994). The magistrate judge recommended that relief be denied and advised Appellant that failure to file timely objec- tions to this recommendation could waive appellate review of a district court order based upon the recommendation. Despite this warning, Appellant failed to object to the magistrate judge's recommendation. The timely filing of objections to a magistrate judge's recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned that failure to object will waive appellate review. See Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir. 1985). See generally Thomas v. Arn, 474 U.S. 140 (1985). Appellant has waived appellate review by failing to file objections after receiving proper notice. Accordingly, we affirm the judgment of the district court. We deny Appellant's motion for summary judgment and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 2	{ "pile_set_name": "FreeLaw" }
NUMBER 13-14-00291-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JENNIFER PENA, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 156th District Court of Live Oak County, Texas. ORDER Before Justices Garza, Benavides, and Perkes Order Per Curiam Appellant, Jennifer Pena, has filed a notice of appeal with this Court from her conviction in trial court cause number L-12-0036-CR-B. The trial court's certification of the defendant's right to appeal shows that the defendant does not have the right to appeal. See Tex. R. App. P. 25.2(a)(2). The Texas Rules of Appellate Procedure provide that an appeal must be dismissed if a certification showing that a defendant has a right of appeal is not made a part of the record. Tex. R. App. P. 25.2(d); see Tex. R. APP. P. 37.1,44.3, 44.4. Within thirty days of receipt of this notice, appellant's lead appellate counsel, Michelle Ochoa, is hereby ORDERED to: 1) review the record; 2) determine whether appellant has a right to appeal; and 3) forward to this Court, by letter, counsel's findings as to whether appellant has a right to appeal and/or advise this Court as to the existence of any amended certification. If appellant's counsel determines that appellant has a right to appeal, counsel is further ORDERED to file a motion with this Court within thirty days of receipt of this notice, identifying and explaining substantive reasons why appellant has a right to appeal. See Tex. R. App. P. 44.3, 44.4; see also, e.g., Carroll v. State, No. 04-03- 00473-CR, 2003 Tex. App. LEXIS 7317 (San Antonio 2003, no pet.) (designated for publication) (certification form provided in appendix to appellate rules may be modified to reflect that defendant has right of appeal under circumstances not addressed by the form). The motion must include an analysis of the applicable case law, and any factual allegations therein must be true and supported by the record. Cf. Woods v. State, 108 S.W.3d 314, 316 (Tex. Crim. App. 2003) (construing former appellate rule 25.2(b)(3) and holding that recitations in the notice of appeal must be true and supported by the record). Copies of record documents necessary to evaluate the alleged error in the certification affecting appellant's right to appeal shall be attached to the motion. See Tex. R. App. P. 10.1,10.2. PER CURIAM Do not publish. Tex. R. App. P. 47.2(b). Delivered and filed the 21st day of May 2014.	{ "pile_set_name": "FreeLaw" }
517 P.2d 684 (1974) STATE of Oregon, Respondent, v. Mark SWAIN, Petitioner. State of Oregon, Respondent, v. Jeff C. Goldsmith, Petitioner. Supreme Court of Oregon, In Banc. Argued and Submitted November 5, 1973. Decided January 4, 1974. Howard R. Lonergan, Portland, argued the cause and filed briefs for petitioners. Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem. HOLMAN, Justice. The defendants were indicted and convicted for illegal possession of drugs. ORS 167.207(3). The conviction was upheld by an opinion of the Court of Appeals, Or. App., 97 Adv.Sh. 406, 510 P.2d 1341 (1973). This court granted review. The drugs were seized as the result of a search conducted pursuant to a warrant. The error charged is permitting the State to introduce the drugs in evidence. Subsequent to the seizure, a motion for a preliminary hearing, and a motion to controvert 685 the affidavit in accordance with ORS 141.150 and 141.160[1] were filed before the issuing magistrate, a district judge. When the two matters came before Judge Mulvey, the magistrate who issued the warrant, he transferred them to Judge Sams, another district judge in the same county. No one objected. The preliminary hearing and the motion to controvert were heard at the same time. There is some confusion as to what Judge Sams actually did. He orally indicated that he was dismissing the information upon which the charge was based and was refusing to bind the defendants over for consideration by the grand jury. Such actions would be in accordance with a finding that the State had failed to produce sufficient evidence of defendants' guilt at the preliminary hearing to justify holding the defendants further. However, when the judge subsequently signed the order, it read as follows: " * * and the State electing not to proceed further, the Court ordered the return of all property taken on the execution thereof to defendants except contraband which the Sheriff was directed to destroy and all such evidence was suppressed in any criminal proceeding and the action against defendants dismissed, the defendants discharged and their bonds exonerated, and on said day the State having moved for reconsideration, and the Court having reconsidered, "IT IS ORDERED that the State is granted 15 days to elect whether to continue these proceedings, and if it so elects the order returning, destroying and suppressing said evidence and dismissing the action and discharging defendants be vacated and said hearing continue at a date to be fixed at the conclusion of which the Court will enter its decisions thereon, and if the State elects not to continue, the aforesaid order returning, destroying and suppressing said evidence and dismissing the action, discharging defendants and exonerating their bond be and remain in full force and effect." The State made no election to continue with the proceedings as provided in the order. The State subsequently indicted the defendants and a successful prosecution followed with the use of the evidence which had been the subject of the motion to controvert. The prosecution was upheld by the Court of Appeals, and this court accepted review to decide whether it was proper for the State to use the evidence which was the subject of the district court's order to suppress. We must first determine what the district court decided. This is governed by the order which the district judge signed and not by any statement which he made at the conclusion of the hearing. A judge may change his mind concerning the proper disposition between the time of a hearing and his final action which takes place when he signs the order disposing of the matter. It is apparent from the order that the mgistrate did two things: (1) he dismissed the criminal proceedings pursuant to the preliminary hearing; and (2) he suppressed the evidence in accordance with the motion to controvert. The Court of Appeals, to the contrary, held that the district court only dismissed the criminal information pursuant to the preliminary hearing and that it did not act on the motion to controvert. There are two previous decisions of the Court of Appeals which hold that the quashing of the evidence by the magistrate issuing the warrant pursuant to a motion to controvert is not final and that the same question may be heard again by the circuit judge at the trial of the case. State v. Kangiser, 8 Or. App. 368, 494 P.2d 450 (1972); State v. Stahley, 7 Or. App. 464, *686 492 P.2d 295 (1971). The Stahley case said as follows: "Because we do not believe that the law was intended to prevent prosecutions by the state by making a non-appealable suppression order final, we hold, absent a supporting record, that the ruling of the district court suppressing the evidence at or prior to the preliminary hearing is not binding upon the trial court." 7 Or. App. at 468, 492 P.2d at 297. Oregon Laws 1971, ch. 644, § 2, enacted subsequent to the hearings in the circuit court in the Kangiser and Stahley cases, amended ORS 157.020 by adding subsection (2) (d), which provides for an appeal from an order of a justice or a district court suppressing evidence which is made prior to trial.[2] The State did not appeal the district judge's order suppressing the evidence though the law provided for an appeal. Therefore, the district court's suppression of the evidence had to be a final determination and res judicata. Without having the determination reversed, the State could not thereafter use the evidence in prosecuting the defendants, and the circuit court erred in permitting its use. ORS 141.150 provides that the hearing on the motion to controvert is before the magistrate who issued the warrant. In the present circumstance the hearing was not heard by Judge Mulvey who issued the warrant but by another judge on the same court, Judge Sams. The departure from the requirements of the statute is not jurisdictional and was waived by both parties when they failed to object. The conviction of the defendants and the decision of the Court of Appeals are reversed. NOTES [1] Both statutes subsequently repealed effective January 1, 1974, by Senate Bill 80, 1973 Legislative Session. [2] "ORS 157.020. Who may appeal; appealable judgments and orders. "(1) Except as provided in subsection (2) of this section, an appeal may be taken only by the defendant and whether or not the judgment is that he pay a fine or be imprisoned. The right of appeal granted herein shall apply to all municipal courts notwithstanding ORS 221.350. "(2) The plaintiff may take an appeal from: "(a) An order made prior to trial dismissing a complaint or information; "(b) An order sustaining a plea of former conviction or acquittal; "(c) An order arresting the judgment; or "(d) An order made prior to trial suppressing evidence."	{ "pile_set_name": "FreeLaw" }
lN THE SUPREME COURT OF PENNSYLVANlA M\|DDLE D\|STR\|CT COl\/\|\|\/\|ONWEALTH OF PENNSYLVAN\|A, 1 No. 305 \|\/\|AL 2014 Respondent : : Petition for A\|\|owahce of Appea\| from the : Order of the Superior Court SA\|\/\|UEL L. FOSTER, \|\|, Petitioner ORDER PER CUR\|AM AND NOW, this 2hd day of October, 2014, the Petition for A\|\|owance of Appea\| is DEN\|ED.	{ "pile_set_name": "FreeLaw" }
740 F.2d 954 Farrell, In re 84-5005 United States Court of Appeals,Second Circuit. 6/1/84 1 E.D.N.Y. AFFIRMED	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-09-380-CR RUDOLPH ANTHONY GARZA APPELLANT V. THE STATE OF TEXAS STATE ---------- FROM THE 371 ST DISTRICT COURT OF TARRANT COUNTY ---------- MEMORANDUM OPINION 1 AND JUDGMENT ---------- We have considered the “Appellant's Motion To Waive And Dismiss Appeal And To Withdraw Notice Of Appeal.” The motion complies with rule 42.2(a) of the rules of appellate procedure. Tex. R. App. P. 42.2(a). No decision of this court having been delivered before we received this motion, we grant the motion and dismiss the appeal. See id.; Tex. R. App. P. 43.2(f). PER CURIAM PANEL: MCCOY, MEIER, and LIVINGSTON, JJ. DO NOT PUBLISH Tex. R. App. P. 47.2(b) 1  See Tex. R. App. P. 47.4. DELIVERED: February 4, 2010	{ "pile_set_name": "FreeLaw" }
892 F.2d 77 Colvinv.Travelers Insurance Co.* NO. 89-4410 United States Court of Appeals,Fifth Circuit. DEC 15, 1989 1 Appeal From: N.D.Miss. 2 REVERSED. * Fed.R.App.P. 34(a); 5th Cir.R. 34.2	{ "pile_set_name": "FreeLaw" }
291 B.R. 550 (2003) FLEET BUSINESS CREDIT, L.L.C., a Delaware Limited Liability Company, Plaintiff, v. WINGS RESTAURANTS, INC., a Texas corporation and Huge American Real Estate Inc., a Texas corporation, and Sunil Dharod, an Individual, Defendants, and KFC Corporation, Defendant-Intervenor. No. 02-CV-884-P(J). United States District Court, N.D. Oklahoma. April 10, 2003. 551 Charles Greenough, John Alfred Burkhardt, Jr, Boone, Smith, Davis, Hurst & Dickman, Tulsa, OK, for plaintiff. Douglas J Buncher, Neligan, Tarpley, Andrews & Foley LLP, James Robert Krause, Friedman & Feiger LLP, Dallas, TX, David Alan Cheek, McKinney, Stringer PC, Tulsa, OK, for defendants. Sarah Jane McKinney, Hall, Estill, Hardwick, Gable & Nelson, Tulsa, OK, Jeffrey H. Dasteel, Amy S. Park, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA, for KFC Corp. ORDER JOYNER, United States Magistrate Judge. Now before the Court is the Motion by Plaintiff Fleet Business Credit, L.L.C. ("Fleet") for Appointment of a Receiver over the Real Property of Defendant Huge American Real Estate, Inc. ("Huge"). [Doc. No. 38]. Huge is the owner of nine (9) tracts of real property which have been leased to Defendant Wings Restaurants, Inc. ("Wings"). Wings filed for Chapter 7 bankruptcy on February 20, 2003 in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, Case No. 03-31-921. On February 26, 2003, Wings successfully converted to a Chapter 11 bankruptcy. The Court has reviewed the parties' briefs and exhibits, relevant case law, and held an expedited hearing on the Motion for Appointment of a Receiver on March 26, 2003. Accordingly, the Court GRANTS Fleet's Motion to Appoint a Receiver over the Real Property of Huge American Real Estate, Inc. The Court further appoints Ben C. Kemendo as receiver over the real property in order to collect and hold any rents paid by Wings to Huge under the lease during the pendency of this action. [Doc. No. 38]. BACKGROUND Fleet, Wings, and Huge executed a Loan and Security Agreement ("Agreement"), dated October 10, 2000, under which Fleet agreed to make several loans to Wings and Huge, as joint debtors, the maximum principal of the loans totaling $15,750,000.00. The Agreement was executed contemporaneous with the purchase by Wings and Huge of seventeen (17) KFC restaurants from KFC Corporation ("KFCC"), who intervened in the lawsuit on January 30, 2003. [Doc. No. 33]. At the close of the transactions, Fleet advanced $13,250,000.00 to Wings and Huge. Of this amount, $4,500,000.00 was used to acquire land and buildings for the seventeen (17) restaurants and $8,750,000.00 was utilized for the purchase of furniture, fixtures, equipment, and franchise rights for the seventeen (17) restaurants. The total purchase price for the seventeen (17) restaurants was $15,195,000.00. Sunil Dharod, an individual, was to contribute the difference of approximately $2,000,000.00. Presently, Huge owns the real property underlying nine (9) of the seventeen (17) KFC franchise restaurants. Wings leases these properties from Huge pursuant to a lease agreement dated September 28, 2000. Wings operates the seventeen (17) restaurants and owns the personal property. 552 Dharod subsequently entered into a subordination agreement with Fleet. Fleet filed this lawsuit on November 19, 2002. On December 19, 2002, Fleet filed a motion for appointment of a receiver over all assets belonging to Wings and Huge. KFCC filed a motion to intervene as a defendant on December 31, 2002, pursuant to its franchise agreements with Wings, which this Court granted. On February 20, 2003, Wings filed for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Northern District of Texas, Dallas Division. The Court held its scheduled hearing on Fleet's Motion for Appointment of a Receiver on February 21, 2003. On February 26, 2003, Wings converted its Chapter 7 bankruptcy to a Chapter 11 bankruptcy, under which Wings became debtor in possession entitled to operate its property, i.e., the seventeen (17) KFC franchise restaurants. KFCC and Fleet jointly filed a motion to appoint a trustee over Wings. Currently before this Court is Fleet's Motion for Appointment of a Receiver over the Real Property of Huge in order to collect and retain rents paid by Wings to Huge during the pendency of this case, including any funds currently held by Huge representing rents paid by Wings. According to the September 28, 2000 lease agreement between Wings and Huge, the minimum monthly rent payable to Huge is $48,331.00. The nine (9) tracts of land have been pledged by Huge to Fleet as security for repayment of the loans extended. At the March 26, 2003 expedited hearing on the motion for receivership, Fleet's counsel noted that some of the restaurants have been reopened. DISCUSSION Fleet asserts that the appointment of a receiver over the real property of Huge for the purpose of collecting rents paid by Wings to Huge during the pendency of this case is necessary to preserve the funds. Additionally, Fleet maintains that such an action does not violate the automatic stay in Wings' bankruptcy proceeding because Fleet is not pursuing claims against Wings or acting to assert control over any property of Wings. Huge contends that the automatic stay in Wings' bankruptcy proceeding should be extended to Huge, and that the appointment of a receiver over the real property will impact property of Wings and the bankruptcy estate. For the reasons discussed below, the Court finds that appointing a receiver over the real property of Huge is permissible in this action, and that the automatic stay should not be extended to protect Huge, a solvent co-debtor and co-defendant of Wings. Accordingly, the Court GRANTS Fleet's Motion to Appoint a Receiver over the Real Property of Huge in order to collect and hold rents paid by Wings to Huge during the pendency of this case. Ben C. Kemendo shall act as receiver over the nine (9) parcels of real property pledged as security for repayment. A. THE AUTOMATIC STAY Fleet's claims against Wings were stayed pursuant to 11 U.S.C. § 362(a)(1) following Wings' filing Chapter 7 bankruptcy and subsequent successful conversion to a Chapter 11 bankruptcy. Huge argues that the protection of the automatic stay should extend to Huge and preclude the appointment of a receiver over Huge's real property. Under § 362(a)(1), a bankruptcy petition operates as a stay of the commencement or continuation . . . of a judicial . . . proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a 553 claim against the debtor that arose before the commencement of the case under this title. 11 U.S.C. § 362(a)(1). The general rule in the Tenth Circuit is that "[w]hile § 362 extends the stay provisions of the Bankruptcy Code to the `debtor,' . . . the stay provision does not extend to solvent codefendants of the debtor." See Oklahoma Federated Gold & Numismatics, Inc. v. Blodgett, 24 F.3d 136, 141 (10th Cir.1994); see also Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1330 (10th Cir.1984); In re Metal Ctr., Inc., 31 B.R. 458, 462 (Bankr.D.Conn.1983) (automatic stay does not apply where codefendant is independently liable from debtor). This general rule is overwhelmingly supported in the case law and bolstered by the plain language of the statute, which clearly focuses on the insolvent party, or the "debtor." See 11 U.S.C. § 362(a)(1). By way of comparison, Chapter 13 specifically authorizes the stay of actions against co-debtors. See 11 U.S.C. § 1301(a). Conversely, "[n]o such shield is provided Chapter 11 co-debtors by § 362(a)." See Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 544 (5th Cir.1983). Thus, in situations where a co-defendant is independently liable as, for example, where the debtor and another are joint tortfeasors or where the nondebtor's liability rests on his own breach of a duty, then the protection afforded a debtor under the automatic stay would clearly not extend to such nondebtor. In re Metal Ctr., Inc., 31 B.R. at 462. In "unusual situations," a narrow exception provides for the imposition of a stay under § 362(a)(1) against a nonbankrupt party "when there is such identity between the debtor and the third-party defendant that the debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment or finding against the debtor." Blodgett, 24 F.3d at 142 (citing A.H. Robins Co. v. Piccinin, 788 F.2d 994, 999 (4th Cir.1986)). An example would be the situation where a debtor and a nondebtor are so bound by statute or contract that the liability of the nondebtor is imputed to the debtor by operation of law, then the Congressional intent to provide relief to debtors would be frustrated by permitting indirectly what is expressly prohibited in the Code. In re Metal Ctr., Inc., 31 B.R. at 462. Courts have generally extended the automatic stay in the "unusual situation" where an action against one party is essentially an action against the bankruptcy debtor, as in the case where a third-party is entitled to indemnification by the debtor for any judgment taken against it. See In re North Star Contracting Corp., 125 B.R. 368, 371 (S.D.N.Y.1991) ("Robins and other courts have recognized that an identity of interest exists between a debtor and a third party non-debtor when a right to indemnification exists. These courts reason that a special circumstance exists because a judgment against the non-debtor will affect directly the debtor's assets."). Defendant Huge asserts that Wings' bankruptcy filing should extend the stay against Huge because Huge and Wings are co-debtors with joint and several liability under the Loan and Security Agreement, and because actions against Huge will severely impact property of the bankruptcy estate. It is important to note at the outset that Fleet is proceeding solely against the property of Huge in its motion to appoint a receiver over the real property. Fleet seeks the receivership to collect and hold rents over the nine (9) tracts of real property owned by Huge and leased to Wings for operation of its KFC 554 franchise restaurants. No action has been taken against the personal property or equipment of Wings, the bankruptcy debtor. Under the terms of the Loan and Security Agreement, Huge and Wings are co-borrowers, jointly and severally liable for the obligations to Fleet. However, each of the borrowers is primarily and directly liable to Fleet under the Agreement. Section 9.11(a), entitled Joint and Several Liability, provides that The Obligation shall be joint and several obligations and liabilities of Borrower. Hence, each of the Real Estate Borrower and Equipment Borrower shall be primarily and directly liable for repayment of the Loan and all other Obligations, whether or not such Borrower signed a Note evidencing such obligation. Therefore, although Wings and Huge are jointly and severally liable under the Agreement, Huge also remains directly and independently liable for all Obligations to Fleet. Fleet further notes that the right of indemnification between Huge and Wings is expressly waived under Section 9.11(e) of the Agreement, which provides: No payment made by or for the account of a Borrower including, without limitation, (i) a payment made by such Borrower on behalf of the liabilities of the other Borrower or (ii) a payment made by any other person under any guaranty, shall entitle such Borrower, by subrogation or otherwise, to any payment from such other Borrower or from or out of such other Borrower's property and such Borrower shall not exercise any right or remedy against such other Borrower or any property of such other Borrower by reason of any performance of such Borrower of its joint and several obligations hereunder. The Court is persuaded that this express waiver of indemnification between the two co-defendants, in conjunction with Huge's direct and independent liability under Section 9.11(a), is sufficient to separate Wings and Huge and allow the appointment of a receiver over the real property of Huge without frustrating the purposes of the automatic stay in the Wings bankruptcy proceeding. See, e.g., Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1205 (3d Cir.1991) ("[T]he automatic stay is not available to non-bankrupt co-defendants of a debtor even if they are in a similar legal or factual nexus with the debtor."). Section 362 of the Bankruptcy Code "does not protect related but independent codefendants." In re Metal Ctr., Inc., 31 B.R. at 462. Huge's attempt to bolster its assertion that Wings and Huge maintain such an "identity of interest" that acting against Huge would, in effect, constitute an action against Wings by citing Section 9.4 of the Agreement is unpersuasive. Under Section 9.4, "Indemnity," Wings must indemnify Fleet and hold Fleet harmless from and against any losses related to the loan, including "costs and expenses" such as attorney's fees. Thus, Huge contends that, by virtue of this action proceeding against Huge, Fleet is currently cumulating fees and expenses that can later be asserted against Wings. However, it is again significant to note that in this action Fleet is merely seeking the appointment of a receiver over the real property of Huge to collect and hold any rents paid by Wings to Huge under their lease agreement. No money judgment has been taken against Huge or Wings at this juncture. In fact, Fleet solely desires to collect and hold the rents obtained by Huge from Wings during the pendency of this case to ensure their preservation. As debtor-in-possession, Wings has allegedly reopened some 555 of the KFC franchise restaurants and indicated an intent to reopen others. Fleet seeks to collect and hold rents paid until a determination of entitlement to the funds is made. Huge's argument that appointing a receiver will undermine Wings' reorganization effort in the Chapter 11 bankruptcy also fails. In contrast to the Court in In re Brentano's, Inc., 27 B.R. 90 (Bankr.S.D.N.Y.1983), this Court fails to see how either the pursuit of claims against Huge or the appointment a receiver to collect rents, in light of a potential indemnification claim by Fleet against Wings under Section 9.4 of the Agreement, will "ultimately determine the fate of [Wings'] reorganization effort." Id. at 91. As previously discussed, this action merely seeks the appointment of a receiver over Huge's real property to collect and hold rents of approximately $48,331.00 per month that will likely be paid to Huge by Wings in any case because Wings has reopened some of the restaurants. Collecting and holding these rents certainly will not impact the entire "fate" of the Wings reorganization effort. Fleet additionally contends that Huge has failed to follow the proper procedural path to avail itself of the protection of Wings' automatic stay in its failure to request injunctive relief. See, e.g., In re Continental Airlines, 177 B.R. 475, 477 (D.Del.1993); In re Litchfield Co. of South Carolina Ltd., Partnership, 135 B.R. 797, 799 (W.D.N.C.1992); In re Sudbury, Inc., 140 B.R. 461, 462 (Bankr.N.D.Ohio 1992); In re Kmart Corp., 285 B.R. 679, 682 (Bankr.N.D.Ill.2002); In re North Star Contracting Corp., 125 B.R. 368, 369 (S.D.N.Y.1991); In re Lomas Fin. Corp., 117 B.R. 64, 65 (S.D.N.Y.1990); In re Zenith Laboratories, Inc., 104 B.R. 659, 661 (D.N.J.1989); and In re Circle K Corp., 121 B.R. 257, 258 (Bankr.D.Ariz.1990). However, while Fleet's observation that several cases cited by Huge involved either a request for injunctive relief or an application by the bankruptcy debtor in the bankruptcy court to extend the protection of the automatic stay to a co-defendant is well-taken, the Court finds that this case does not turn on Huge's failure to request injunctive relief. It is not mandatory that a non-bankrupt party request injunctive relief in order to avail itself of the protection of the automatic stay if it is entitled the stay's protection, i.e., if the non-bankrupt party and the debtor have such an "identity of interest" that a judgment against the non-bankrupt party would essentially be a judgment against the bankruptcy debtor. In fact, under § 362, the automatic stay "is self-executing, effective upon the filing of the bankruptcy petition." See In re Pettit, 217 F.3d 1072, 1077 (9th Cir.2000). Accordingly, the Court concludes that the fact that neither Huge nor Wings have requested injunctive relief does not determine the outcome of this case. B. APPOINTMENT OF A RECEIVER OVER THE REAL PROPERTY The Court finds that the appointment of a receiver over the real property of Huge in order to collect and hold any rents paid to Huge by Wings during the pendency of this case is proper and does not violate the automatic stay against Wings. Under 12 Okla. Stat. § 1551(2)(c), a receiver may be appointed in a foreclosure action when "a condition of the mortgage has not been performed and the mortgage instrument provides for the appointment of a receiver." Each of the nine (9) properties at issue have been pledged by Huge to Fleet to secure repayment of the loans extended by Fleet pursuant to substantively identical forms of a Mortgage, Security Agreement, Financing 556 Statement, and Assignment of Rents and Leases. Each of the mortgages contain an identical clause in Section 11(a) of the Oklahoma leases and Section 11(b) of the Kansas leases under which Huge consented to the appointment of a receiver in the event of a foreclosure action. Each of the mortgages similarly contain language in the granting clause by which the interest pledged by Huge to Fleet includes "all the rents, issues and profits of the Real Property. . . ." [Doc. No. 38, Exhibit C, Mortgage document dated October 10, 2000 between Fleet and Huge]. Fed.R.Civ.P. 66 provides for the appointment of a receiver "in accordance with the practice heretofore followed in the courts of the United States. . . ." Additionally, "[c]reditors with a security interest in real property have a well-established interest in the property sufficient to support the appointment of a receiver." See Brill & Harrington Investments v. Vernon Savings & Loan Ass'n, 787 F.Supp. 250, 253 (D.D.C.1992); see also 12 C. Wright & A. Miller, Federal Practice & Procedure § 2983 (1973). The Court in Brill & Harrington Investments noted that federal courts typically consider eight (8) factors in determining the propriety of appointing a receiver pursuant to Fed.R.Civ.P. 66. These factors include: (1) inadequacy of the security to satisfy the debt; (2) financial position of the debtor; (3) fraudulent conduct on defendant's part; (4) inadequacy of legal remedies; (5) imminent danger of the property being lost, concealed, injured, diminished in value, or squandered; (6) probability that harm to moving party by denial of appointment would outweigh injury to parties opposing appointment; (7) probability of moving party's success in the action and the possibility of irreparable injury to its interest in the property; and (8) whether moving party's interests sought to be protected will in fact be well-served by receivership. Brill & Harrington Investments, 787 F.Supp. at 253-54. Fleet's counsel discussed these factors at the expedited hearing on the motion to appoint a receiver and noted that the financial position of the debtor Huge is tenuous in that it owns nine (9) parcels of real property leased to one (1) tenant, Wings, who is now in bankruptcy. No evidence of fraudulent misconduct on the part of Huge exists. In terms of the inadequacy of legal remedies, Fleet notes the possibility that rent money could be spent by Huge and forever lost without a receiver to collect and hold rents during the pendency of this case. Fleet further contends that Huge will not suffer any harm if the money is merely collected and held by the receiver. Therefore, based on the fact that several of the factors weigh in favor of the propriety of appointing a receiver over the real property of Huge, the Court finds that appointing a receiver to collect and hold rents is a necessary remedy to protect the interests of Fleet as creditor and outweighs any speculative harm to Huge. Fleet proposes the appointment of Ben C. Kemendo as receiver over the real property of Huge. Mr. Kemendo's duties as receiver will entail collecting and holding any rents paid by Wings to Huge pursuant to its lease of the property pending resolution of this case and a determination of entitlement to the funds. Under the lease agreement, Wings is obligated to provide insurance as well as maintenance and pay all utilities and taxes, including property taxes. Fleet notes that Huge's expenses of operation or administration *557 will be minimal or non-existent. Additionally, Mr. Kemendo will not need the approval of Defendant Intervenor KFCC since Kemendo, as a Huge receiver, will not be operating the KFC franchise restaurants or using its trademarks, trade names, or recipes. CONCLUSION The Court holds that appointing a receiver over the real property of Huge, a solvent co-defendant of Wings, does not violate the automatic stay in the Wings bankruptcy proceeding based on the fact that Huge is separately and independently liable for obligations to Fleet under the Loan and Security Agreement and has expressly waived any right of indemnification against Wings. Therefore, Huge does not qualify for the narrow exception to the general rule that the automatic stay is not extended to solvent co-defendants of the bankruptcy debtor because it has failed to demonstrate that such an "identity of interest" exists between Wings and Huge that a judgment against Huge would essentially be a judgment against Wings. The sole purpose of the receiver in this action will be to collect and hold any rents paid to Huge during the pendency of this case until a determination of entitlement to the funds is made. Accordingly, the Court GRANTS Fleet's Motion to Appoint a Receiver over the Real Property of Huge and to appoint Ben C. Kemendo as receiver in order to collect and hold any rents paid by Wings to Huge. [Doc. No. 38]. IT IS SO ORDERED.	{ "pile_set_name": "FreeLaw" }
430 F.Supp. 1013 (1977) WASHINGTON-SUMMERS, INC., a West Virginia Corporation, Plaintiff, v. The CITY OF CHARLESTON, a Municipal Corporation, Defendant. Civ. A. No. 77-2045 CH. United States District Court, S. D. West Virginia, Charleston Division. March 31, 1977. 1014 Charles W. Yeager, Steptoe & Johnson, Anthony G. Halkias, Charleston, W. Va., for plaintiff. W. Warren Upton, Roger A. Wolfe, Jackson, Kelly, Holt & O'Farrell, Charleston, W. Va., for defendant. MEMORANDUM ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANT COPENHAVER, District Judge. This is an action brought pursuant to 28 U.S.C. §§ 2201, 2202 (1970) for a declaratory judgment wherein plaintiff, Washington-Summers, Inc., seeks an adjudication that W.Va.Code, § 8-16-4a (1976), and Charleston, W.Va., Ordinance No. 1993, as amended (February 8, 1977) of the defendant, City of Charleston, are unconstitutional under the Fourteenth Amendment of the Constitution of the United States. At the time this suit was filed the ordinance was not yet effective. Shortly thereafter, however, the defendant completed the final step necessary to its effective adoption and promptly instituted condemnation proceedings against plaintiff's property in state court. The state proceedings are now pending. Section 8-16-4a authorizes municipalities, such as the defendant, to lease space in municipally-owned motor vehicle parking facilities to private interests. Plaintiff alleges that § 8-16-4a is unconstitutional in that it sanctions the condemnation of private property for private use without restriction or limitation. Plaintiff further alleges that the ordinance, which authorizes the defendant to acquire plaintiff's property in order to construct a municipal parking building, is similarly unconstitutional in that it provides for the unrestricted leasing of space to private interests. Plaintiff further complains that the proposed taking of its property is unnecessary to any public purpose and that the decision to locate the parking structure on its property is arbitrary, capricious, in bad faith and done primarily to assist certain unnamed private interests. This case is now before the court upon the respective motions of plaintiff and defendant for summary judgment. The court finds that the statute and ordinance in question are constitutional. All other issues, including the constitutionality of the specific application of the statute and ordinance in this instance, are left to the pending state court proceedings. I. It is clear that the construction and operation of a public parking structure is a valid public purpose sufficient to sustain the taking of private property under the federal constitution. State ex rel. City of Charleston v. Coghill, 207 S.E.2d 113 (W.Va.1973); Wilmington Parking Authority v. Ranken, 34 Del.Ch. 439, 105 A.2d 614 1015 (1954). It is also clear that a finding of public purpose will not be defeated simply because it confers an ancillary or incidental private benefit. Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 161-62, 17 S.Ct. 56, 41 L.Ed. 369 (1896); Coghill, 207 S.E.2d at 117. On the other hand, it is equally clear that property cannot be taken by eminent domain for a predominantly private purpose. Missouri Pac. Ry. Co. v. State of Nebraska, 164 U.S. 403, 17 S.Ct. 130, 41 L.Ed. 489 (1896); Phillips v. Foster, 215 Va. 543, 211 S.E.2d 93 (1975). The question in this case is whether § 8-16-4a provides an adequate guarantee that a municipality will not be allowed to condemn private property for a predominantly private use. The very same issue was addressed by the West Virginia Supreme Court in Coghill. Although that case involved a mandamus action, it was essentially a means of testing the constitutionality of § 8-16-4a prior to preparation of plans and financing for a municipal parking structure. The court found that the statute should be read so as to restrict leasing to private interests to merely ancillary or incidental space within the parking structure. As thus interpreted, the statute was held constitutional. It is argued, however, that the court in Coghill was without basis in finding the "incidental" limitation in the statute and, further, that such a limitation is too vague and indefinite. It is an axiom of statutory construction that a statute is presumed constitutional and that a reviewing court should endeavor to adopt a construction upholding its validity. Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). In this connection, the primary versus incidental benefit test is one of long standing, Kaukauna Water Power Co. v. Green Bay and Mississippi Canal Co., 142 U.S. 254, 12 S.Ct. 173, 35 L.Ed. 1004 (1891); Chapman v. Housing Authority, 121 W.Va. 319, 3 S.E.2d 502 (1939), and it is reasonable to assume that the legislature intended for it to apply here. In any case, the West Virginia Supreme Court has resolved the question by concluding that the statute authorizes the sale or lease to private interests of ancillary or incidental space within a public parking facility which has as its primary and dominant purpose the conferring of benefits on the public generally. In so doing, the State, as it may, has construed its statute so as to avoid friction with the Fourteenth Amendment. Carey v. Sugar et al., 425 U.S. 73, 96 S.Ct. 1208, 47 L.Ed.2d 587 (1976). Although the ancillary or incidental space test articulated in Coghill cannot be applied with the precision of a computer, there is ample authority suggesting that such a standard is constitutional. In Kaukauna Water Power Co., where a dam was constructed for the public purpose of controlling navigation, it was held that any water power incidentally created could be sold to private persons in order to help defray the costs. Regarding the standard for measuring whether a use was incidental, the Court stated: So long as the dam was erected for the bona fide purpose of furnishing an adequate supply of water for the canal and was not a colorable device for creating a water power, the agents of the State are entitled to great latitude of discretion in regard to the height of the dam and the head of water to be created; and while the surplus in this case may be unnecessarily large, there does not seem to have been any bad faith or abuse of discretion on the part of those charged with the construction of the improvement. Courts should not scan too jealously their conduct in this connection if there be no reason to doubt that they were animated solely by a desire to promote the public interests, nor can they undertake to measure with nicety the exact amount of water required for the purposes of the public improvement. 142 U.S. at 276, 12 S.Ct. at 179. Somewhat similarly, in Hendersonville Light & Power Co. v. Blue Ridge Interurban R. Co., 243 U.S. 563, 37 S.Ct. 440, 61 L.Ed. 900 (1917), the condemnation of water rights for the public purpose of supplying power to a state chartered railroad was attacked on the grounds that the plan was a 1016 "covert device for selling the greater part of the power to mills, that this last is a private use, and that the objects being so intermingled the taking must fall." 243 U.S. at 569, 37 S.Ct. at 441. Justice Holmes, in writing for the court, dismissed this argument stating: We are asked to go behind the finding that the taking was for a public use, on the ground that the charter authorizes the sale of surplus power, that the contemplated works will produce fifty-thousand horse-power and that this, according to the evidence, is much more than will be needed for the railway. But the surplus is a matter of estimate and no reason is shown for our not accepting the findings below. We are in no way warranted in assuming that the sale of surplus power, if there is any, is the real object of the enterprise, or anything more than a possible incident, necessary to prevent waste, of the primary public use. 243 U.S. at 569-570, 37 S.Ct. at 442. Just as a dam constructed for the purpose of navigation may produce a valuable by-product of water power, so may a public parking garage create commercially desirable space. To insist that the city refrain from leasing this incidental by-product would at the least waste a valuable asset and at the worst require abandonment, as being financially unfeasible, of a necessary public parking project to be located on prime land in the city's central business district. In this context, a number of jurisdictions, in addition to West Virginia, have found it constitutionally permissible for a municipality to lease space in its parking structures or lots to private interests for commercial use. Wilmington Parking Authority v. Ranken; Gate City Garage v. City of Jacksonville, 66 So.2d 653 (Fla. 1953); see also Seligsohn v. Philadelphia Parking Authority, 412 Pa. 372, 194 A.2d 606 (1963). Contra, Shizas v. City of Detroit, 333 Mich. 44, 52 N.W.2d 589 (1952). Although § 8-16-4a, as construed by the West Virginia Supreme Court, is constitutional on its face, it lends itself to unconstitutional application should private purpose utilization be allowed to advance beyond the threshold of incidental use. There is, however, adequate means under West Virginia law to assure that this does not occur. W.Va.Code. § 54-2-2 (1966), requires that any petition for the commencement of condemnation proceedings include a statement of "the use to which the estate sought to be taken is intended to be appropriated." Failure to state all the uses may be grounds for denying the petition. United States v. West Virginia Power Co., 33 F.Supp. 756 (S.D.W.Va.1940). W.Va.Code, § 54-2-5 (1966), requires the court to determine that the condemnor has a right to take the property for the purposes stated in the petition prior to considering the question of compensation. This finding is immediately appealable. W. Va. Bd. of Regents v. Fairmont M. & P. R. R. Co., 155 W.Va. 863, 189 S.E.2d 40 (1972). Finally, no entry may be made by the State or any political subdivision until such a finding is made. W.Va.Code, § 54-2-14 (Supp.1976). Thus, the city prior to acquiring the property by condemnation may be required to submit a plan showing the approximate ratio of public parking to commercial space, together with such further data as should appear requisite. The condemnation court would thereby be enabled to determine whether the ratio is consistent with a finding of public purpose. Inasmuch as § 8-16-4a has been construed by the state's highest court to restrict private leasing to incidental space, and in view of the availability of adequate means by which the property owner can insist that this test be met prior to condemnation, the statute is found to be constitutional. It follows that the ordinance, which closely parallels the statute, including adoption of the phrase "related incidental space for lease for private . . . uses," is also constitutional. II. Having found the statute and ordinance to be constitutional, the question remains as to whether application of those laws to the 1017 plaintiff's property is constitutional in this instance. Other related questions before this court involve plaintiff's allegations that the proposed taking is unnecessary to any public purpose and is arbitrary, capricious, in bad faith and primarily designed to further unnamed private interests. A federal court, however, is not compelled to exercise its jurisdiction under the Declaratory Judgment Act, 28 U.S.C. §§ 2201, 2202, where an adequate remedy exists in the state court system. Crawford v. Courtney, 451 F.2d 489 (4th Cir. 1971). Although Fed.R.Civ.P. 57 specifically provides that the existence of another adequate remedy does not preclude the exercise of jurisdiction, it is clear that a court should carefully consider whether any purpose would be served by assuming jurisdiction. Fay v. Fitzgerald, 478 F.2d 181 (2nd Cir. 1973). It is observed that the state court is also charged with upholding the federal constitution and there is no reason to suggest it will not do so. Martin v. Creasy, 360 U.S. 219, 225, 79 S.Ct. 1034, 3 L.Ed.2d 1186 (1959). The plaintiff possesses a complete and adequate remedy to resolve all remaining issues in the pending state court action and, under the circumstances of this case, the plaintiff should be directed to proceed in that tribunal.[1] Moreover, there is considerable authority which holds that a federal court should not ordinarily intervene in a state eminent domain proceeding. Louisiana Power & Light Company v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959); Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir. 1975); Crawford v. Courtney; Creel v. City of Atlanta, 399 F.2d 777 (5th Cir. 1968). Although these cases involved the abstention doctrine, similar considerations are applicable here. See also, Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973). It is accordingly ORDERED that plaintiff's motion for summary judgment is denied; and it is further ORDERED that defendant's motion for summary judgment is granted and that this action be dismissed. NOTES [1] It should further be noted that it appears that this action was prematurely filed in an effort to anticipate the state court proceeding, a factor which may be considered in declining jurisdiction. Amerada Petroleum Corporation v. Marshall, 381 F.2d 661, 663 (5th Cir. 1967); Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937). Although the ordinance was adopted on January 3, 1977, it did not become effective until February 8, 1977, at which time a public hearing was held upon due notice, and after which City Council voted to put the ordinance into effect. W.Va.Code, § 8-16-7 (1976). This action was filed on February 1, 1977. On February 28, 1977, state condemnation proceedings commenced.	{ "pile_set_name": "FreeLaw" }
265 Wis.2d 879 (2003) 2003 WI App 161 667 N.W.2d 810 TOWN OF UNION, Plaintiff-Respondent, v. CITY OF EAU CLAIRE, Defendant-Appellant. No. 02-3393-FT. Court of Appeals of Wisconsin. Submitted on briefs April 7, 2003. Decided June 10, 2003. 880 On behalf of the defendant-appellant, the cause was submitted on the briefs of Stephen C. Nick of Eau Claire. On behalf of the plaintiff-respondent, the cause was submitted on the brief of John D. Hibbard of Eau Claire. Before Cane, C.J., Hoover, P.J., and Peterson, J. ¶ 1. CANE, C.J. The City of Eau Claire appeals an order granting a permanent injunction preventing it from constructing a storm sewer in the Town of Union.[1] The City contends the trial court erred when it determined the sewer's construction required the Town's approval. We conclude the trial court did not err and therefore affirm the order. Background ¶ 2. The Town of Union is located to the west of the City of Eau Claire. In August 2001, the City asked 881 the Town for permission to place a storm sewer in the Town along town roads and under two private lots.[2] The proposed sewer would connect two "pond facilities," both located in the City. In two letters to the Town, John Genskow, the City's deputy director of public works, said that the project was intended to mitigate drainage problems on the west side of the City and would drain land in both the City and the Town. The Town granted the City a permit to place the sewer under the roads, but denied the request regarding the private land, explaining the various reasons the Town considered the sewer plan shortsighted. ¶ 3. Despite the lack of approval, the City went ahead with its construction plans. The Town obtained an ex parte temporary injunction, which the City then moved to vacate. The City argued it did not need the Town's approval under WIS. STAT. § 60.52(1)[3] because the portion of the sewer under the private lots was an "interceptor" that did not serve the lots.[4] After a hearing, the court denied the motion to vacate and indicated it would likely make the injunction permanent. 882 ¶ 4. The City then requested to make an offer of proof to augment the record. Genskow was the only person to testify.[5] He said the proposed sewer had two "catch basin" inlets on the section that ran under the road, but none on the private property. According to Genskow, the only way water from the Town would drain into the sewer, besides the two inlets on the road, would be if it flowed into the City and its inlets. ¶ 5. The court made the injunction permanent.[6] Pointing to Genskow's letters, it found that the proposed sewer would have inlets within the Town and, therefore, required Town approval under WIS. STAT. § 60.52(1) and Danielson v. City of Sun Prairie, 2000 WI App 227, 239 Wis. 2d 178, 619 N.W.2d 108. The City appeals. Discussion [1] ¶ 6. Central to this appeal's resolution is Wis. STAT. § 60.52(1) and our interpretation of it in Danielson. The interpretation of a statute is a question of law we review de novo. See Agnes T. v. Milwaukee County, 189 Wis. 2d 520, 525, 525 N.W.2d 268 (1995). In Danielson, a landowner and the township he lived in both sued the City of Sun Prairie after the city condemned part of the landowner's property for a sewer easement. Id., ¶ 2. They argued the city was required to obtain the town's permission before condemnation under § 60.52(1). Id. After analyzing the statute, we 883 concluded the city did not need the town's permission because the sewer in that case did not impact the town's sewer service. Id., ¶ 13. We determined the phrase "extensions of [its] sewer or water system in the town," was ambiguous and, looking at the statutory history, concluded that it referred to sewers that provided services to town residents and not to sewers, such as the one in that case, that merely passed through the town without providing service to its residents. Id. [2] ¶ 7. The rule established in Danielson is that a city extending its sewers through a town need not obtain the town's permission if the sewer does not provide services or have a financial impact on the town's residents. See id. In light of Danielson, the court's determination here that the sewers would drain land in the Town is critical to our resolution of the appeal. ¶ 8. In its decision, the court made these findings of fact: 2. The Defendant sought permission from the Plaintiff to construct the City's storm sewer on private land in the Town by letter signed by John R. Genskow, Deputy Director of the Department of Public Works, dated August 16, 2001, which letter stated in part that the project" . . . will drain land both in the City of Eau Claire and the Town of Union." 3. Another letter on the subject dated August 31, 2001, signed by Mr. Genskow also stated that the project " . . . will drain land both in the City of Eau Claire and the Town of Union" and a letter from City Attorney Nick dated October 31, 2001, stated that the improvements to the City's storm sewer system would be" . . . to the benefit of town and city residents." ¶ 9. The City does not dispute that there are inlets on the proposed sewer. Instead, the City argues 884 that the project must be examined in its component parts. All that is at issue in this appeal, the City claims, is the portion of the sewer on the private lots; the Town already approved the portion located under the road. The City argues because the inlets are on the road portion, and there are none on the private lots, the Town cannot object to the portion on the private lots. We disagree. ¶ 10. We noted in Danielson: Finally, it makes sense that the legislature intended to recognize a town's interest in an extension of a city's sewer or water system in the town if the extension would have an impact on town residents, such as providing and charging for water or sewer service or reviewing the quality of service provided. Giving a town a right to prior approval for that type of an extension is a logical way for the legislature to have provided for a town's interest in ensuring that the needs of its residents are met. However, a town would have no similar interest if there were no financial or provision of services impact on town residents. Danielson, 239 Wis. 2d 178, ¶ 12. ¶ 11. The rationale of Danielson is that WIS. STAT. § 60.52 only requires town permission if the sewer project will impact the sewer service of the town and its residents. Here, the proposed project affects the drainage within the Town, and therefore has an impact on its residents. That the sewer does not drain directly from the private lots does not diminish the interest the Town has in ensuring that the drainage needs of its residents are met. The City needs the Town's permission to move forward with that part of the project on the private lots. ¶ 12. Finally, the City argues it should not be bound by the letters Genskow sent to the Town describing the project because they are merely the opinions of 885 an employee and cannot be used to demonstrate that the City actually believed the contents or to bind the City to an agreement. Instead, the City contends that the project's plans and Genskow's testimony are determinative. We agree. The plans and the testimony show that the proposed sewer would provide service to the Town, and the letters support this determination. As a result, the City needed the Town's approval for all aspects of the project and the court properly issued the permanent injunction. By the Court.Order affirmed. NOTES [1] This is an expedited appeal under WIS. STAT. RULE 809.17. All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted. [2] The City had already obtained a utility easement from the property owners. [3] WISCONSIN STAT. § 60.52(1) provides: Sewer and water systems of adjoining municipality. (1) With the approval of the town board, any city or village adjoining a town may construct and maintain extensions of its sewer or water system in the town. An extension of a sewer or water system under this subsection is subject to s. 62.175 (1) and the rights of abutting property owners. [4] "A sewer interceptor is a large-diameter sewer pipe which is constructed deep in the ground and receives sewage from main-line sewers, but does not receive sewage from laterals or collectors." Danielson v. City of Sun Prairie, 2000 WI App 227, ¶ 2 n.2, 239 Wis. 2d 178, 619 N.W.2d 108. [5] The Honorable Lisa Stark presided over the offer of proof. [6] The findings of fact in the order making the injunction permanent do not refer to any evidence introduced at the offer of proof. It appears the order was drafted prior to the offer of proof.	{ "pile_set_name": "FreeLaw" }
82 Ga. App. 171 (1950) 60 S.E.2d 569 LOKEY et al. v. LOKEY, administrator, et al. 32896. Court of Appeals of Georgia. Decided July 13, 1950. Rehearing Denied July 26, 1950. Stevens & Stevens, Randall Evans Jr., for plaintiffs. Cumming, Nixon & Eve, Robert E. Knox, for defendants. WORRILL, J. Harriet Lokey and Julia Lokey, minor children of a deceased son of G. W. Lokey, who died on February 29, 1948, brought an action in the Court of Ordinary of McDuffie County on July 14, 1949, through their mother and natural guardian, Mrs. Elizabeth Lokey, to remove James T. Lokey as administrator of the estate of G. W. Lokey. One of the adult children of G. W. Lokey, Leonard N. Lokey, intervened and adopted the pleadings and prayers of the plaintiffs and the 172 other five adult children intervened and adopted the pleadings and prayers of the administrator. By consent the case was appealed to the Superior Court of McDuffie County. The plaintiffs introduced James T. Lokey as an opposite party and cross-examined him and also introduced some documentary evidence. There was no further evidence. The jury returned a verdict in favor of the administrator. The plaintiffs filed a motion for new trial, and by amendment added several special grounds. The court overruled the motion, and the exception is to that judgment. 1. The first special ground, numbered 4, complains of the following charge of the court: "I call your attention and give you in charge now, gentlemen, a principle of law I wish you to bear in mind in your deliberations in this case. It is § 113-1229 of the Code of 1933. `Whenever the ordinary knows, or is informed by any person having any interest in the estate that the administrator wastes or in any manner mismanages the estate, or that he or his sureties are likely to become insolvent, or that he refuses or fails to make returns as required by law, or that for any reason he is unfit for the trust imposed in him, he shall cite such administrator to answer to such charge at some regular term of the court, and upon the hearing of his return the ordinary may, in his discretion, revoke the letters of administration, or require additional security, or pass such other order as in his judgment is expedient under the circumstances.' This proceeding was taken under that particular section of the Code and I wish you to bear that in mind in your deliberation in this case, because you are now in the position of the ordinary of this county to pass upon this case. And I call your attention to the fact that as stated in this particular Code section which I have read that it will be in the discretion of the jury, after hearing all of the evidence in the case, to remove or not to remove the administrator. That discretion remains in you. After hearing all of the evidence in the case, you may or may not remove the administrator. That discretion remains in you, that being entirely a matter for you to decide." It is contended that the language immediately after that quoting the Code, § 113-1229, misled the jury and left them with the impression that they had an unbounded discretion as to removing or not removing the 173 administrator, regardless of what the evidence disclosed. The jury here acting in the place of the ordinary and vested with his discretion (Stanley v. Spell, 46 Ga. App. 91, 166 S. E. 669), had before it evidence upon which they might act as authorized by the Code, § 113-1229. While the only evidence was the testimony of the administrator, it is not contended that the movants were denied the right to introduce further evidence. It can not reasonably be said that the jury understood that they were to render any verdict except one based on evidence. The court elsewhere charged that "if you believe under the evidence that the contentions of the plaintiffs are correct, and under the rules of law I have given you in charge, then it would be your duty to return a verdict in favor of the plaintiffs, which would mean that James T. Lokey would be removed as administrator." No error is shown. 2. Special ground 5 assigns error on the following charge of the court: "I charge you if you find from the evidence in this case that James T. Lokey has been shown to have operated the farm in the second current year after G. W. Lokey Senior's death, that his act would be unauthorized by law and you would be authorized to remove him if you find such facts to be proven. It is for you to determine what has or has not been proven. And in that connection I will say you will bear that section of the Code in mind when I give you certain requests in charge. That matter is entirely within your discretion to remove or not to remove the administrator." It is contended that the evidence conclusively showed that the administrator had farmed the lands of the estate in the second year in violation of law, and that the court charged the jury in such a way as to cause them to think that there was an issue in that respect. It is disclosed by the record that the administrator admitted the charge of conducting farming operations in the second year without an order of court, though he sought to justify himself because the adult heirs had consented thereto, yet under the charge of the court the jury was left to determine whether or not this charge was true. If they erroneously found to the contrary, they would not have thought any action necessary on that score. But if they had been properly informed of such admission, as the court in its discretion had the right to inform them, they would have had 174 the right, in their discretion, to remove the administrator or to take other action authorized by the Code, § 113-1229. Georgia Fla. & Ala. Ry. Co. v. Jernigan, 128 Ga. 501, 503 (57 S. E. 791); Daniel v. Charping, 151 Ga. 34 (3) (105 S. E. 465); Georgia Railway & Electric Co. v. Cole, 1 Ga. App. 33 (1) (57 S. E. 1026); Pate v. Carrollton Clinic, 52 Ga. App. 774 (184 S. E. 780); Snellings v. Rickey, 57 Ga. App. 836 (2) (197 S. E. 44); Carroll v. State, 70 Ga. App. 78 (27 S. E. 2d, 423). Manifestly the charge took from the jury their right to exercise this discretion upon an admitted fact and constituted reversible error. We are cited by counsel for the defendant in error to Daniel v. Bank of West Point, 147 Ga. 695, 698 (95 S. E. 255), where it is said: "If a testator can give legal direction as to the management of his estate after his death, there seems to be no reason why the legal and equitable owners of an estate after an intestate's death, who are sui juris, can not do the same thing by directing the operation of the business after all the debts of the estate are paid, to the extent of their own interest." The administrator in the present case did not have the consent of the representative of the two minor children on whose behalf the citation here issued, and the consent of the other heirs, though sui juris, was not sufficient authority for the conduct of the farming operations of the estate after the first year. This charge was, therefore, error. 3. The charge of the court, "Now, gentlemen, you have noticed in this charge I have given you the statement that you would be authorized to remove the administrator. I wish to emphasize that statement. It does not mean that you are directed to remove him. It is in your discretion, gentlemen, whether you will or will not remove the administrator, even if any or all of those acts charged have been proven, that being entirely a matter for you," was not error for the assigned reason that the effect of it was to cause the jury to believe that, even if all of the acts charged against the administrator were proved to be true and were undenied, the jury could allow him to remain in office. That charge accords with the law. The Code, § 113-1229, does not require, and we know of no law which requires, an ordinary, or a jury in his stead, to remove the administrator under the circumstances of the present case where, though admittedly 175 there were certain violations of the law, no loss is claimed to have resulted to the estate, and where no accounting is sought. Movants contend that this charge gave the jury no rule for the exercise of their discretion. While this particular except did not do so, the court had already charged the provisions of the Code, § 113-1229, as to citing an administrator to answer charges of misconduct in office and that upon the hearing of his return the "ordinary may, in his discretion, revoke the letters of administration, or require additional security, or pass such other order as in his judgment is expedient under the circumstances." This Code section furnishes the necessary guidance for the exercise of the ordinary's or jury's discretion as to remedial measures to be adopted against a negligent or derelict administrator upon consideration of the evidence upon the hearing. It is thus seen that an ordinary or a jury in his stead has a broad discretion in the premises, and that the law does not require his removal, even if guilty of mismanagement or misconduct, as the only remedial measure. The jury may in its discretion do something else. It may "pass such other order as in their judgment is expedient under the circumstances." The record here shows a violation of the law in certain respects, though without financial loss to the estate, and it is a striking circumstance that no accounting is sought from him. Certainly it can not be said that the jury may not, in their discretion, do aught but remove him. The charge is not subject to the criticism made. 4. Error is assigned on the following charge of the court: "Now, gentlemen, I charge you this: It is the duty of an administrator to administer the estate in good faith and to the best interest of the estate, and if he has done so and the estate has not suffered as the result of his administration in any way, and he has not mismanaged the estate or substantially failed to comply with the requirements of the law, then there are no sufficient grounds on which to which to have him removed as administrator. Therefore, if you should find that even though James T. Lokey may have in the administration of G. W. Lokey Sr., failed in some minor matters to comply with the requirements of the law in reference to the administration of the estate, nevertheless, if the estate has not suffered any loss by reason thereof, and you do not find that he has in any way or manner wasted 176 or mismanaged the estate in such a way that will cause the heirs at law to receive less from the estate than they otherwise would, then you shall find in his favor and that he shall not be removed as administrator." It is contended (1) that the court expressed an opinion in using the language "failed in some minor matters" and (2) that the court withdrew from the jury the exercise of any discretion in erroneously instructing them that if the administrator was guilty of violating the law but has not caused any financial loss to the estate they shall not remove him. Undoubtedly, for reasons urged in (2) above, the court committed reversible error in this charge. The court may not lawfully tell a jury that they have no right to remove an administrator under the circumstances named. In doing so the court invades the province of the jury by withdrawing its discretion. In Crump v. Williams, 56 Ga. 591, it was said: "There is no conflict in the evidence that the administrator did not damage the estate as directed by the will of the testator, or in accordance with the requirements of the law, but it is insisted in his behalf, that although that may be so, still the estate was not injured, but on the contrary was benefited by the illegal acts of the administrator. This defense by the administrator is not sufficient to prevent his removal under the provisions of the 2511th section of the Code [now § 113-1229]. An administrator cannot be allowed to violate the public law of the State in the management of the estate entrusted to him, and then be heard to say that such violation of the law was for the benefit of that estate, when called on to show cause why his letters of administration should not be revoked." It will be observed that the Supreme Court said that his defense was not sufficient to prevent removal, which we take to mean in the discretion of the jury as conferred by the Code, § 113-1229, but not to require it. See, in this connection, Perdue v. McKenzie, 194 Ga. 356 (3) (21 S. E. 2d, 705). The expression "failed in some minor matters" should not have been used. Under the Code, § 113-1229, the discretion of the ordinary, or a jury acting in his stead on appeal to the superior court, is very broad and may be exercised whether the violation of law under consideration is a minor or major "matter," and the court may not in either event withdraw that discretion. The use of the language objected to was calculated to cause the jury 177 to believe that the court was of the opinion that some of the illegal acts of the administrator were of minor consequence, and if the jury so found they could not remove him. Such is not the law. Even if the jury found some derelictions of the administrator to be "minor matters" they might regard them as presaging more serious infractions, and having found such violations of the law might, in their discretion, remove the administrator. We are cited by counsel for the defendants in error to Johns v. Johns, 23 Ga. 31 (8), wherein it was held that "The court ought to look with much scrutiny into a bill for the removal of executors. They ought not to be removed for slight causes, nor solely on the ground of poverty." That ruling is not to be construed to mean that a judge would be authorized to instruct a jury that if an administrator has been guilty of a violation of the law in the management of an estate, but his act has not resulted in any loss to the estate, the jury could not remove him. As pointed out by the Supreme Court in Perdue v. McKenzie, supra, in that case the property of an estate had been withdrawn from an executor by an interlocutory order and placed in the hands of a receiver. Placing property in the hands of a receiver is always a harsh measure. It is particularly so when assets are taken from an executor, a person appointed by a testator. The Supreme Court very properly held that in such circumstances courts ought to look with much scrutiny into a bill for the removal of an executor, who ought not to be removed for slight cause or solely on the ground of poverty. The ruling there must be restricted to the facts and not be construed to authorize a court to say to a jury that they can not remove an administrator who has "failed in minor matters" though he has not caused any loss to the estate he represents. That action is something that a jury may take or not take in its discretion, and this discretion will not be controlled unless abused. 5. The charge of the court, "I charge you if you find that the heirs at law of G. W. Lokey Sr., who are of age, have consented to the operation of the business of the deceased by the administrator beyond the calendar year, they can not object to any of his acts in connection with his operation of the business," was error for the assigned reasons that (1) consent to the operation of the business as stated would not deprive the heirs at law 178 from the right to object to any act in connection therewith which might be unlawful or subversive of their interests and (2) it was confusing to the jury, in that it was not shown by the evidence that the two children of a deceased son of the intestate, acting through a proper representative, had also consented. 6. No error is shown by ground 9 of the motion for new trial. 7. The charge of the court, "I charge you that if you find from the type of property in this estate and the use to which it could most profitably be employed it was to the best interest of the estate that the farm should be operated after the end of the calendar year of 1948, and if you should further find that such operation of the farm had not resulted in any loss to the estate, then I charge you that such operation of the farm after the end of the calendar year would not constitute mismanagement of the administrator so as to authorize you to find against the administrator for that reason," was error for the assigned reason that it withheld from the jury the exercise of discretion in determining whether or not the administrator should be removed because of conducting farming operations of the estate beyond the calendar year of 1948, though without loss to the estate. See Perdue v. McKenzie, supra. 8. Special ground 11 not being argued or insisted upon is treated as abandoned. 9. The charge of the court, "I charge you that the administrator may, in his discretion, continue the business of the deceased throughout the calendar year, and even though he should not continue to operate such business profitably such loss will be chargeable to the estate. And if you find that the business of the deceased was farming and the selling of livestock, then his administrator, James T. Lokey, was authorized to continue through 1948 the operation of the same type of business without the order of any court. After 1949 if you find that he continued the operation of the farming business as before, then I charge you that the administrator did so at his own risk, and if he lost money in doing so he would be personally liable for such losses," was error for the assigned reason that, while it instructed the jury that if the operation of the business after the first calendar year resulted in loss to the estate the administrator would be liable therefore, it implied that he would not be subject to removal, 179 thus withdrawing from the jury the exercise of discretion. Ground 13 of the motion for new trial complains of charges of the court which have been dealt with in divisions 4 and 7 of the opinion hereinabove, and no further discussion is necessary. 10. Because the judgment must be reversed on account of the errors above mentioned, it is unnecessary to rule upon the general grounds of the motion for new trial. Judgment reversed. Sutton, C. J., and Felton, J., concur.	{ "pile_set_name": "FreeLaw" }
IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on Briefs July 11, 2012 IN THE MATTER OF: JUSTIN K. C. ET AL. Appeal from the Juvenile Court for Davidson County No. PT142606 Betty Adams Green, Judge No. M2012-00679-COA-R3-PT - Filed July 31, 2012 The parental rights of the parents of three children were terminated on two statutory grounds, persistence of conditions pursuant to Tennessee Code Annotated § 36-1-113(g)(3), and substantial noncompliance with the permanency plan pursuant to Tennessee Code Annotated § 36-1-113(g)(2), and the finding that termination of their parental rights was in the children’s best interests. Both parents appeal contending the trial court erred in finding any ground existed for termination and that termination of their parental rights was in the children’s best interests. Finding no error, we affirm. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Juvenile Court Affirmed F RANK G. C LEMENT, J R., J., delivered the opinion of the Court, in which A NDY D. B ENNETT and R ICHARD H. D INKINS, JJ., joined. David R. Grimmett, Nashville, Tennessee, for the appellant, Michelle P. Dennis L. Nordhoff, Franklin, Tennessee, for the appellant, Orlando P. Robert E. Cooper, Jr., Attorney General and Reporter, and Joshua Davis Baker, Assistant Attorney General, for the appellee, Tennessee Department of Children’s Services. Kelli Barr Summers, Brentwood, Tennessee, Guardian ad Litem. OPINION The Department of Children’s Services (DCS) filed a petition on May 13, 2011, in the Davidson County Juvenile Court to terminate the respective parental rights of Michelle P., Orlando P., and Joseph F. to three minor children. Michelle P. is the mother of all three children. Orlando P. is Michelle’s husband and the father of the two younger children. Joseph F. is the biological father of the oldest child. The children are Justin C., Amelia P., and Yavonne P. Justin C. was born to Michelle C. (now Michelle P.) on June 11, 2002. No father is listed on Justin’s birth certificate but Joseph F. was subsequently determined to be the biological father of Justin. Michelle C. later married Orlando P. and the couple had two children: Amelia (born July 31, 2005) and Yavonne (born May 3, 2009). The trial on the petition to terminate the three parents’ respective rights was held on October 13 and December 7, 2011. On March 20, 2012, the Juvenile Court Judge entered an order terminating Joseph F.’s and Michelle P.’s parental rights to Justin, and terminating Orlando P.’s and Michelle P.’s parental rights to Amelia and Yavonne, vesting complete guardianship of Justin, Amelia, and Yavonne in DCS. Michelle and Orlando P. appealed; Joseph F. did not appeal. The relevant history leading up to the termination of the parental rights of Michelle and Orlando P. is stated below. On July 31, 2009, DCS responded to a referral alleging physical abuse of the three children by Orlando P., at which time Amelia was observed to have open abrasions with deep purple bruising on her back. On August 4, 2009, DCS filed a petition in the Davidson County Juvenile Court for emergency removal of Justin, Amelia, and Yavonne from the custody of Michelle P. (“Mother”) and Orlando P. (“Father”)1 based upon the children having been abused by Father and Mother’s failure to protect them. The petition alleged that Orlando had beaten Amelia with his fists when the child took her hair down after it had been arranged by Mother. The children were removed from the parents’ home that day but prior to removing the children from mother’s custody, the DCS caseworker asked Mother if she would leave Father and move into a domestic violence shelter with her three children. Mother refused because she felt that moving into a shelter would not improve their situation. Orlando admitted hitting Amelia, and Mother admitted witnessing the assault but she stated she failed to intervene because she feared Father. Amelia had open abrasions and deep purple bruises on her back as a result of Father’s assault. Amelia affirmed Father’s abuse during an interview; she also stated that Father had hit Justin and Yavonne as well. Justin and Yavonne were in the home when Father abused Amelia. Justin also affirmed that Father had beaten Amelia and that Father had also hit him and Mother on occasion. Father and Mother were arrested on May 15, 2010 on charges related to the abuse of Amelia. Father subsequently pled guilty to one count of Child Abuse and one count of Child Neglect, both class A misdemeanors, and was placed on probation for eleven months and 1 We refer to Orlando P. as Father for simplicity although he is not the biological father of Justin C. -2- twenty-nine days. Mother pled guilty to Child Neglect and was placed on probation for nine months.2 On August 4, 2009, the Juvenile Court entered an emergency protective order placing the children in DCS custody; the court also set the case for a preliminary hearing, appointed a guardian ad litem for the children, and appointed counsel for both parents. On August 6, 2009, both parents waived the preliminary hearing agreeing that probable cause existed to remove Justin, Amelia, and Yavonne from their care. DCS developed initial permanency plans for Mother and Father as it pertained to Justin, Amelia, and Yavonne on August 17, 2009. The plans each had a goal of reunification and required Mother and Father to participate in supervised visitation and communicate with DCS to schedule the visits, arrive on time, bring healthy snacks, and plan appropriate activities; undergo a parenting assessment and follow all recommendations; continue individual and couples counseling; and provide documentation demonstrating compliance with the counseling requirements. The plans also required Father to continue anger management counseling. The plans and copies of the criteria and procedures for termination of parental rights were signed by Mother and Father on August 17, 2009. The initial plans were ratified by the Juvenile Court on September 14, 2009. On October 15, 2010, the parties appeared before the Juvenile Court at which time Mother and Father entered into an Agreed Order of Adjudication and Disposition as it pertained to the Petition for Dependency and Neglect, agreeing that Justin, Amelia, and Yavonne were dependent and neglected based upon Father’s physical abuse of the children and Mother’s failure to protect them. The Juvenile Court entered an order finding the children dependent and neglected on February 10, 2011. DCS developed revised permanency plans for the children on July 19, 2010. The revised plans was similar but more extensive than the initial plan. The revised plan required Mother and Father to (1) participate in supervised visitation and communicate with DCS to schedule the visits, arrive on time, bring healthy snacks, and plan appropriate activities; (2) protect the children from mental and physical harm; (3) complete all assessments and follow all recommendations of assessors; (4) maintain financial assistance including employment, AFDC, food stamps, etc.; (5) maintain stable housing and nutritious meals; (6) complete individual and couples counseling; and (7) provide documentation of all services from providers. In addition, the revised permanency plans also required Father to complete anger management counseling. Mother and Father each signed copies of the revised plans on July 19, 2010, and the revised plans were ratified by the Juvenile Court on July 26, 2010. 2 The guilty pleas were entered into on August 25, 2010. -3- DCS filed this action to terminate the parental rights of Mother to all three children and the parental rights of Father to Amelia and Yavonne on May 13, 2011. The petition also requested that the court terminate the parental rights of Justin’s biological father, Joseph F. The case went to trial on October 13, 2011. Vickie Green, a DCS Family Services Worker, testified regarding the Department’s efforts to assist both parents and the few successes and many failures that followed. Her testimony is generally summarized as follows. Ms. Green arranged the parenting assessments, domestic violence counseling, and parenting mentor services, all of which was paid for by DCS. She advised Mother about domestic violence shelters and encouraged her to go to one. She also regularly provided bus passes to the parents for transportation to and from work and she provided parenting classes to both parents through Progressive Families, which was under contract with DCS. Ms. Green explained that Father completed anger management counseling on February 27, 2010, that he had undergone a parenting assessment with a mental health component, and received additional counseling. Mother underwent a parenting assessment with a mental health component and Mother also received individual counseling. She testified that both parents participated in couples counseling. Mother and Father were required to visit the children separately because of an order of protection issued against Father at Mother’s request.3 Both parents visited the children regularly and she characterized the visits as positive. She also explained that visitations were supervised at first. Later on DCS permitted unsupervised visits; however, the visits were terminated when DCS learned that Justin and Amelia were not being fed during the visits. Mother told Ms. Green that she and Father had a history of domestic violence and that he had abused her for seven years. Ms. Green stated that she had previously given Mother the option of taking the children and moving into a domestic violence shelter; however, Mother refused to enter a shelter, stayed in the home with Father, and Mother consented to the children going into DCS custody. Mother and Father each called her on several occasions to report incidents of domestic violence. In the summer of 2010, Mother called her claiming that Father was hitting her. On August 1, 2010, both Mother and Father called Ms. Green to report an incident where Father accused Mother of infidelity and grabbed Mother’s wrist while trying to retrieve her cellular phone to view a text message. In December of 2010, Mother allegedly beat Father and threatened to kill herself. 3 The order of protection was issued against Father on April 19, 2011. -4- As for her efforts to assist both parents with separate housing, Ms. Green testified that Mother and Father had stable housing when they resided together before the children came into DCS custody, but when the couple separated in 2010, they lost their housing. As a result, she applied for separate housing for Mother and Father through MDHA. She also provided Father a list of places where he could seek employment and a list of places where he could seek residence. At the time of trial, neither parent had stable housing suitable for the children. Mother was living with a friend; Father was living in a motel room where he worked, the Deluxe Inn. Ms. Green stated that she had previously explained to Father that stable housing was an important requirement of the permanency plan and that he would need to seek alternate housing, somewhere other than a motel, to complete the housing requirement, but he refused to seek alternate housing because he said he lived at the hotel for free while he worked there. Ms. Green also testified that Mother had failed to complete the housing documentation and documentation of domestic violence counseling requirements of the permanency plan and that Father had failed to complete the housing requirement and documentation of employment requirements. Ms. Green explained that the lack of suitable housing and continuing incidents of domestic violence were the main barriers to reunification. Ms. Green also stated that even if DCS believed it appropriate to reunify Mother with the children, which it did not, she did not have a stable residence to share with them. Latara Ballard of Progressive Families testified that she provided therapeutic visitation services and parenting classes for the parents. Ms. Ballard observed the parents’ interaction with the children on several occasions and gave a positive description of those brief interactions. The parents told Ms. Ballard about a domestic violence incident that occurred between the two of them. Mother told Ms. Ballard that Father had pushed or hit her and he had been arrested. Father told Ms. Ballard that he had hit Mother because of her infidelity. Ms. Ballard stated that domestic violence was the biggest concern she had about the parents and that she provided recommendations of domestic violence counselors to the parents. Ms. Ballard also counseled the parents on housing. She stated that the parents had a home when she first started working with them but later lost it and that neither parent had found suitable housing thereafter. As for the housing requirement for both parents, Ms. Ballard stated: “It seemed like we had went backwards.” DCS referred Mother and Father to Cheryl McAdams, a therapist at Continuity of Care, for individual and domestic violence counseling. Ms. McAdams stated that the couple attended regularly and she provided counseling services to them on a weekly and biweekly basis from 2009 through part of 2010. Both parents admitted their history of domestic violence to Ms. McAdams. Soon after Ms. McAdams completed her counseling of the parents, Father told Ms. McAdams that he had been arrested for domestic violence. When -5- asked whether additional counseling would benefit the parents, Ms. McAdams said “I think the parents have the tools they need; it’s whether they choose to use them or not.” Mother testified that she was “staying” with a friend named Michael L. at the time of trial and had been staying with him in his one-bedroom apartment for approximately four months. Mother was not on the lease but paid Michael $40.00 per month in rent. Mother had stayed with David O., another friend, during the four months before she moved in with Michael L. Prior to living with David O., Mother had temporarily resided with Father at the King Hotel on Dickerson Road in Nashville. The last time the parents had a permanent home was when the couple lived on Jefferson Street in March 2010, which was their residence when the children were removed by DCS in August of 2009. Mother stated that she knew DCS had not returned the children to her custody because of her continuing difficulties with domestic violence and housing. She admitted seeing Father hitting the children. She further admitted that she and Father had gotten into multiple fights in front of the children, which frightened the children. Despite the altercations, Mother stated that she had been too scared to leave Father. Father testified to additional information about the couple’s history of domestic violence. In 2005, Father was arrested when he bit Mother on the face after she grabbed him around the neck. Father admitted striking Mother in April 2011, after he had completed domestic violence counseling with Ms. McAdams. Father also admitted hitting Amelia but essentially claimed that the severity of the beating stemmed from his exhaustion and frustration over Mother’s infidelity. Prior to trial, Father had been referred to a sixteen-week “Batterers Intervention” course by the criminal court. At the time of the trial, the children were living in a pre-adoptive home, they were doing well, and their foster mother was willing to adopt all three children. At the conclusion of the trial on December 7, 2011, the Juvenile Court Judge took the case under advisement. On March 20, 2012, the Court entered its final order terminating both parents’ parental rights on the grounds of persistence of conditions, Tennessee Code Annotated § 36-1-113(g)(3), and substantial noncompliance with the permanency plan, Tennessee Code Annotated § 36-1-113(g)(2). The persistent conditions cited by the court were the parents’ ongoing issues with domestic violence and lack of suitable housing. Acknowledging that the parents had completed some requirements of the permanency plan, the court found it was the parents’ failure to apply what they learned while working the plan, particularly the failure to address their domestic violence issues, that constituted substantial noncompliance. The court also found that termination of the parental rights of Mother and Father was in the best interests of the children, again referencing the repeated incidents of domestic violence. -6- The parents present substantially the same issues on appeal. Whether grounds exist to terminate their parental rights, whether DCS exerted reasonable efforts, and whether termination of their parental rights is in the children’s best interests. S TANDARD OF R EVIEW Parents have a fundamental right to the care, custody and control of their children. Stanley v. Illinois, 405 U.S. 645, 651 (1972); Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993). This right is superior to the claims of other persons and the government, yet it is not absolute. In re S.L.A., 223 S.W.3d 295, 299 (Tenn. Ct. App. 2006). Parental rights may be terminated only where a statutorily defined ground exists. Tenn. Code Ann. § 36-1-113(c)(1); Jones v. Garrett, 92 S.W.3d 835, 838 (Tenn. 2002); In re M.W.A., 980 S.W.2d 620, 622 (Tenn. Ct. App. 1998). The petitioner has the burden of proving that there exists a statutory ground for termination, such as abandonment or failing to remedy persistent conditions that led to the removal of the child. See Tenn. Code Ann. § 36-1-113(c)(1); Jones, 92 S.W.3d at 838. Only one ground need be proved, so long as that ground is proved by clear and convincing evidence. See In re D.L.B., 118 S.W.3d 360, 367 (Tenn. 2003). In addition to proving one of the grounds for termination, the petitioner must prove that termination of parental rights is in the child’s best interest. Tenn. Code Ann. § 36-1-113(c)(2); In re F.R.R., 193 S.W.3d 528, 530 (Tenn. 2006); In re A.W., 114 S.W.3d 541, 544 (Tenn. Ct. App. 2003); In re C.W.W., 37 S.W.3d 467, 475-76 (Tenn. Ct. App. 2000) (holding a court may terminate a parent’s parental rights if it finds by clear and convincing evidence that one of the statutory grounds for termination of parental rights has been established and that the termination of such rights is in the best interests of the child). Therefore, a court may terminate a person’s parental rights if (1) the existence of at least one statutory ground is proved by clear and convincing evidence and (2) it is clearly and convincingly established that termination of the parent’s rights is in the best interest of the child. Tenn. Code Ann. § 36-1-113(c); In re Adoption of A.M.H., 215 S.W.3d 793, 810 (Tenn. 2007); In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002). Whether a statutory ground has been proved by the requisite standard of evidence is a question of law to be reviewed de novo with no presumption of correctness. In re B.T., No. M2007-01607-COA-R3-PT, 2008 WL 276012, at 2 (Tenn. Ct. App. Jan. 31, 2008) (no Tenn. R. App. P. 11 application filed) (citing In re Adoption of A.M.H., 215 S.W.3d at 810). The issue of substantial noncompliance with the requirements of a permanency plan is a question of law; therefore, it is reviewed de novo with no presumption of correctness. In re Valentine, 79 S.W.3d at 548. -7- A NALYSIS I. S UBSTANTIAL N ON-C OMPLIANCE WITH P ERMANENCY P LAN The first ground found by the Juvenile Court is failure to substantially comply with the obligations of the permanency plan as set forth in Tennessee Code Annotated § 36-1- 113(g)(2). In order to terminate upon this ground, the trial court must determine that the requirements were reasonable and related to remedying the conditions which necessitated the child’s placement in foster care. In re Valentine, 79 S.W.3d at 547. The trial court must also determine that the parent’s noncompliance with the requirements of the permanency plan was substantial. In re M.J.B., 140 S.W. 3d 643, 656 (Tenn. Ct. App. 2004). A key component of our analysis of this issue requires that we also determine whether DCS provided services reasonably necessary to assist Mother and Father in fulfilling their respective obligations under the permanency plans. In re C.M.M., No. M2003–01122–COA–R3–PT, 2004 WL 438326, at 7-8 (Tenn. Ct. App. Mar. 9, 2004). In that regard, DCS’s employees had an affirmative duty to utilize their education and training to assist the parent in a reasonable way to address the conditions that led to the children’s removal and to complete the tasks stated in the plan.4 In re Giorgianna H., 205 S.W.3d. at 518-19; In re J.L.E., No. M2004-02133-COA-R3-PT, 2005 WL 1541862, at 14 (Tenn. Ct. App. Jun. 30, 2005). Although DCS bears the responsibility to make reasonable efforts toward reunification, the road to reunification is a “two-way street.” State Dep’t of Children’s Servs. v. S.M.D., 200 S.W.3d 184, 198 (Tenn. Ct. App. 2006)). A parent desiring to be reunited with his or her children has a corresponding duty to “make reasonable and appropriate efforts to rehabilitate themselves and to remedy the conditions that required the Department to remove” their children from custody. In re A.R., No. W2008-00558-COA-R3-PT, 2008 WL 4613576, at 16 (Tenn. Ct. App. Dec. 13, 2007) (quoting In re Giorgianna H., 205 S.W.3d at 519). Accordingly, although DCS bears a 4 Reasonable efforts are statutorily defined as the “exercise of reasonable care and diligence by the department to provide services related to meeting the needs of the child and the family.” Tenn. Code Ann. § 37-1-166(g)(1). The factors the courts are to use to determine reasonableness include: (1) the reasons for separating the parents from their children, (2) the parents’ physical and mental abilities, (3) the resources available to the parents, (4) the parents’ efforts to remedy the conditions that required the removal of the children, (5) the resources available to the Department, (6) the duration and extent of the parents’ efforts to address the problems that caused the children’s removal, and (7) the closeness of the fit between the conditions that led to the initial removal of the children, the requirements of the permanency plan, and the Department’s efforts. In re Tiffany B., 228 S.W.3d 148, 158-59 (Tenn. Ct. App. 2007) (citing In re Giorgianna H., 205 S.W.3d at 519) (footnote omitted). -8- responsibility to facilitate reunification, it does not bear the entire responsibility. Id. (citing State Dep’t. of Children’s Servs v. S.M.D., 200 S.W.3d at 198). As our discussion of the facts and procedural history reveal, the children were removed due to domestic violence in the home. As a consequence, DCS provided services and counseling to both parents to remedy this condition; yet, Father and Mother continued their long-standing pattern of domestic violence despite having participated in counseling and anger management classes provided and paid for by DCS. Father failed to change his behavior after attending classes and he either refused to or could not benefit from the services provided. Both parents called Ms. Green reporting the other had initiated an assault. In the summer of 2010, Mother called to report that Father was hitting her; later that summer, Father grabbed Mother’s wrists while trying to retrieve her cell phone to view a text from a man. For her part, Mother continued to provoke Father (allegedly based upon her infidelity). Moreover, after Mother and Father had separated and after receiving the appropriate counseling, Mother physically attacked a male companion with whom she lived with a fork; this occurred after taking anger management classes. Additionally, in December of 2010, Mother allegedly beat Father and threatened to kill herself. DCS also made several efforts to assist both parents to obtain separate housing due to the fact they could not live together without more domestic violence, and yet neither parent had suitable housing when the case went to trial. Although DCS’s efforts were not herculean, and need not be, they were reasonable to assist Mother and Father in fulfilling their respective obligations under the permanency plans. Despite the reasonable efforts of DCS, neither Mother or Father benefitted from the anger management classes and neither parent obtained suitable housing, both of which were reasonable and very important goals of the permanency plan. Accordingly, we have concluded that the record contains substantial and material evidence which clearly and convincingly proves the ground of substantial non-compliance by each parent with the permanency plan. II. P ERSISTENCE OF C ONDITIONS Tennessee Code Annotated § 36-1-113(g)(3) specifies the essential elements for the “persistent conditions” ground for termination of parental rights. It provides that grounds for termination exist when: -9- (3) The child has been removed from the home of the parent or guardian by order of a court for a period of six (6) months and: (A) The conditions that led to the child’s removal or other conditions that in all reasonable probability would cause the child to be subjected to further abuse or neglect and that, therefore, prevent the child’s safe return to the care of the parent(s) . . . , still persist; (B) There is little likelihood that these conditions will be remedied at an early date so that the child can be safely returned to the parent(s) . . . in the near future; and (C) The continuation of the parent . . . and child relationship greatly diminishes the child’s chances of early integration into a safe, stable and permanent home; . . . Id. Justin, Amelia, and Yavonne were removed from the home of Mother and Father and placed in DCS custody on August 4, 2009. The childrens’ removal from the parents’ custody was based upon a referral that the children had been abused by Father. On October 15, 2010, the parents appeared before the Juvenile Court, at which time Mother and Father agreed that Justin, Amelia, and Yavonne were dependent and neglected based upon Father’s physical abuse of the children and Mother’s failure to protect them. The Juvenile Court entered an order finding the children dependent and neglected on February 10, 2011. DCS filed the petition to terminate Mother and Father’s parental rights on May 13, 2011, more than six months after the children were removed from the parents’ home and declared dependent and neglected. Thus, DCS complied with the time requirement for the persistent conditions ground of termination. See id.; see also In re Audrey S., 182 S.W.3d at 874 (holding that the court order removing the child from the parent’s home must be based on a judicial finding of dependency, neglect, or abuse). Because this threshold requirement was met, we must now determine whether there is clear and convincing evidence supporting the requirements in Tennessee Code Annotated § 36-1-113(g)(3)(A) through (C). The record clearly and convincingly supports the finding that both parents have failed to remedy the most serious condition existing at the time of removal and which necessitated their emergency removal, domestic violence. Thus, the conditions that led to the children’s removal, and which in all reasonable probability would cause the children to be subjected to -10- further abuse, has prevented the children’s safe return to the care of Mother or Father and still persists. Tenn. Code Ann. § 36-1-113(g)(3)(A). Further, there is little likelihood that the parents’ long-standing and continuous history of domestic abuse will be remedied at an early date so that the children may be safely returned to either parent in the near future. Tenn. Code Ann. § 36-1-113(g)(3)(B). Thus, the continuation of the parent and child relationship greatly diminishes the children’s chances of early integration into a safe, stable, and permanent home. Tenn. Code Ann. § 36-1-113(g)(3)(C). For these reasons, we affirm the trial court’s finding that DCS proved by clear and convincing evidence the “persistent conditions” ground under Tennessee Code Annotated § 36-1-113(g)(3) as to each parent. III. B EST INTERESTS OF THE C HILDREN We have affirmed the trial court’s findings on two grounds for termination of Mother and Father’s respective parental rights. If at least one statutory ground for termination is proven by clear and convincing evidence, a parent’s rights may be terminated if it is also determined that termination of the parent’s rights is in the best interests of the child. See In re D.L.B., 118 S.W.3d at 367. Therefore, we shall determine whether termination of Mother’s parental rights is in the best interests of the children. The Tennessee General Assembly has provided a list of factors for the court to consider when conducting a best interest of the child analysis. See Tenn. Code Ann. § 36-1- 113(i)(1)-(9). The nine statutory factors, which are well known and need not be repeated here, are not exclusive or exhaustive, and other factors may be considered by the court. See In re M.A.R., 183 S.W.3d 652, 667 (Tenn. Ct. App. 2005). Moreover, not every statutory factor need apply; a finding of but a few significant factors may be sufficient to justify a finding that termination of the parent-child relationship is in the child’s best interest. See id. The child’s best interest is to be determined from the perspective of the child rather than the parent. See State Dep’t of Children’s Servs. v. L.H., No. M2007-00170-COA-R3-PT, 2007 WL 2471500, at *7 (Tenn. Ct. App. Dec. 3, 2007) (citing White v. Moody, 171 S.W.3d 187, 194 (Tenn. Ct. App. 2004)). In this case, the evidence clearly and convincingly established that each parent failed to make adjustments in circumstance to make their home safe for the children, see Tenn. Code Ann. § 36-1-113(i)(1) & (7), in that they continued a pattern of domestic violence which violated the permanency plan and neither of them has a home suitable for the children, despite repeated efforts of DCS to help them find proper housing. -11- The children have spent almost three years in a loving home with a foster parent who wishes to adopt them. To allow the children to return to either Mother or Father, which could not even be considered until Mother and Father renounce their long-standing pattern of domestic violence and become responsible parents who can provide a safe home, which both have repeatedly been unable to do, would subject the children to more uncertainty and instability, and possibly remove them from a safe, happy, healthy, and loving home. Tenn. Code Ann. § 36-1-113(i)(5). Considering these relevant factors from the children’s perspective, we find clear and convincing evidence that it is in the children’s best interest that Mother and Father’s respective parental rights be terminated. I N C ONCLUSION The judgment of the trial court is affirmed in all respects and this matter is remanded with costs of appeal assessed against the Department of Children’s Services due to the parents’ indigency. ______________________________ FRANK G. CLEMENT, JR., JUDGE -12-	{ "pile_set_name": "FreeLaw" }
12 N.J. 51 (1953) 95 A.2d 740 STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. UNITED STATES STEEL COMPANY, FORMERLY CARNEGIE-ILLINOIS STEEL CORPORATION, A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT. The Supreme Court of New Jersey. Argued September 22, 1952. Decided March 16, 1953. 52 Mr. R. Paul Mitchell argued the cause for appellant (Messrs. Stryker, Tams & Horner, attorneys). Mr. George M. Eichler argued the cause for the State (Mr. Theodore D. Parsons, Attorney-General of the State of New Jersey). The opinion of the court was delivered by WACHENFELD, J. This appeal comes up directly from the Chancery Division of the Superior Court by the granting of the appellant's petition for certification. The State, by proper proceedings, sought to escheat certain personal property in the possession of the company consisting of (1) claims for wages, (2) claims on unredeemed cafeteria coupons, (3) claims for amounts withheld from wages of former employees for the purchase of Liberty Bonds. The time for filing an answer was extended from time to time pending the determination by this court of the case of State v. Standard Oil Co., 5 N.J. 281 (1950), which involved questions common to the instant litigation. On appeal to the United States Supreme Court, 341 U.S. 428, 71 S.Ct. 822, 95 L.Ed. 1078 (1951), the judgment entered here was affirmed. It was subsequently stipulated judgment for the company be entered as to the unclaimed wages and unredeemed cafeteria 53 coupons, leaving to be determined only the question whether the sums deducted from the wages of employees for the purchase of Liberty Bonds were subject to escheat. The pretrial order, limiting the issues, included the following: whether or not the claims for amounts withheld from wages for the purchase of Liberty Bonds were enforceable by the former employees against the company as of March 18, 1949, when the proceedings were commenced, and what the relationship was between the company and its employees with regard to the withholding. Was it trustee-cestui que trust, debtor and creditor, or depositor and depositary? No testimony or evidence was offered, the parties relying upon the pleadings and the facts as stipulated. Briefly, these indicated that prior to 1921 employees of the company subscribed for Liberty Bonds and the company purchased, with its own funds and in its own name, bonds sufficient to cover the subscriptions. Thereafter, it deducted an agreed sum from the weekly wages or salaries of the subscribing employees, upon the understanding that when the aggregate of such deductions equalled the face amount of a bond, the money so deducted would be considered as payment by the employee for the bond, which would then be delivered to him. The amounts so deducted were not kept in a separate bank account but remained in the general funds of the company, which also kept records showing the respective amounts withheld from the wages or salaries of each employee who subscribed to the plan and by means of a separate bookkeeping account showed the aggregate of the amounts deducted. The balance of this bookkeeping account at any one time always reflected the total sums deducted less the value of bonds delivered and the sums paid to employees under the practice agreed upon. The general funds of the company always greatly exceeded the amount of this bookkeeping account. In the instance where the company did not deliver any Liberty Bonds to an employee by reason of the fact that the total deductions from the wages or salary of said employee 54 did not equal the amount of the subscription, he was entitled to a return of the money paid in, without interest. It was a necessary prerequisite to the right of any person to take advantage of the plan that he be and continue to be an employee of the company. When any subscriber to the plan was entitled to the return of the deductions but could not be located by the company, the latter credited a bookkeeping account entitled "Unclaimed Liberty Loan Subscriptions" with the amounts thereof, but the funds remained unsegregated. The trial judge concluded there was no substantial difference between the stipulated facts in this case and those in the Standard Oil case, supra, and therefore felt "obliged to follow the ruling in the Standard Oil case." Judgment was accordingly entered for the State and the cause certified here for disposition on appeal. The appellant now contends all the claims for amounts withheld from wages of former employees for the purchase of Liberty Bonds were barred by the statute of limitations, N.J.S. 2A:14-1, long before the Escheat Act, N.J.S. 2A:37-1 et seq., became effective. It insists the relationship between the defendant company and its former employees was always one of debtor and creditor and that any cause of action which an employee had for the return of the deductions accrued at the time he left the employ of the company. In no case did this occur later than the year 1921; hence, it is asserted the statutory period has long since run. The State's theory is the amounts deducted constituted a trust fund held by the company for the use and benefit of the subscribers because they were to be devoted only to the specific purpose of purchasing Liberty Bonds for the employees, and the trust, it is claimed, continued until such time as that purpose had been accomplished or the moneys returned to the subscriber. We are not impressed by the cases cited by the appellant to sustain its argument. In Tucker v. Linn, 57 A. 1017, 1018 (Ch. 1904) (not officially reported), the complainant attempted to prove she had given Linn about $1,000 and had 55 allowed him to deduct from her wages an additional $840 with the understanding Linn would pay her a better rate of interest on the money than she could receive by depositing it in bank. The court held, even assuming she had succeeded in proving these facts, they would establish Linn merely as a debtor and not as a trustee of the money received, saying: "He could expend it, do with it as he pleased. He was not to hold that money in specie as a deposit for the benefit of the complainant, who trusted him with it, in which case one kind of a trust would exist; and he was not to pay it out for her use; and he was not to invest it in securities, and then hold the securities for her, the legal title to which would be in him and the equitable title to which would be in her. He was to appropriate that money, and pay her back, either on demand or at some future time, other money, equivalent to what he had borrowed, presumably, plus interest thereon. Now, whenever you have that kind of a transaction, you have a case of legal indebtedness, and you cannot have any trust. * * * There can be no trust unless you have property held by one person for the benefit of somebody else." The case sub judice is readily distinguishable on the facts. Here the company sought no loan from its employees nor promised them interest for the use of their money. It retained the funds for a particular use and for the benefit of the subscribing employees. In National Gypsum Co. v. J.E. Stevenson Co., 132 N.J. Eq. 58 (Ch. 1942), the court, in deciding whether a transaction resulted in a trust or in a debtor-creditor relationship, declared: "The test to be applied is whether the person or corporation receiving the money acquired both the legal and beneficial ownership of it. * * " A stock acquisition plan offered by a corporation to its employees came under the scrutiny of the court in Leo v. Pearce Stores Co., 54 F.2d 92, 95 (D.C.E.D. Mich. 1931). The plan provided that $50,000 worth of stock be set aside by the corporation for purchase by certain employees, and the amount of stock to which each subscribing employee 56 would be entitled depended upon the amount of the contribution earned by him and in the company's hands on a certain day. It further provided, if a member of the plan died before the date fixed for its termination, his legal representative should have the right, on demand, to the money paid in up to the time of death, with six per cent interest. The court found this subscription plan created only a debt and not a trust, saying: "There is no reference to any trust. There is no language indicating any intention that the money shall be kept as a separate fund or that its use by the defendant shall be restricted in any way. Indeed, such restriction is negatived by the provisions relative to interest." In the instant case there were no provisions for the payment of interest and there was a definite restriction on the use of the fund by the appellant. It was to be used only for the purchase of Liberty Bonds for the benefit of the subscribing employees. McKey v. Paradise, 299 U.S. 119, 57 S.Ct. 124, 81 L.Ed. 75 (1936), and Continental Casualty Co. v. Powell, 83 F.2d 652 (C.C.A. 4 1936), involved somewhat similar proceedings. In the McKey case a bankrupt company had maintained an unincorporated welfare association to provide insurance for its employees and deducted from the latter's wages an initial membership fee and weekly dues. It fell behind in its payments to the welfare association and, in the bankruptcy action, a trustee representing the association attempted to obtain a preference on his claim for the defaulted payments, asserting they constituted a trust fund maintained by the company for the benefit of the employees. In the Continental Casualty case, a railway receivership, the claimant wrote insurance policies for employees of the railway company, premiums for which policies were paid by the railway out of periodical deductions from its employees' pay, pursuant to their authorization. Just before the receivership the railway mailed a check to the insurance company 57 for several thousand dollars which had been deducted from wages for the payment of insurance premiums. On appointment of the receivers, the bank refused payment on the check. One of the questions to be determined was whether the amount due to the claimant was a trust to be imposed on the funds in the hands of the receiver of the railway company and thus a preferred claim. In both cases the courts held there was merely a debtor-creditor relationship between the corporation and the insurance carrier. The funds deducted from wages in each case were not to be paid back to the employee nor was he to receive a bond or other property in equivalent amount. The company acted merely as an agent to collect the insurance premiums and pay them over to the carrier, and the claimant, as the insurer, was not the beneficiary of a trust agreement but was a creditor of the company to the extent of the premiums thus collected. In the McKey case the court held [299 U.S. 119, 57 S.Ct. 125]: "The agreement of the employer to pay the association instead of the employee did not give to the employee or the association equitable title to or lien upon any part of the employer's property. The assets of the employer remained as they were before, general assets. It would be impossible to state all the circumstances in which equity will fasten a constructive trust upon property in order to frustrate a violation of fiduciary duty. * * But the mere failure to pay a debt does not belong in that category." And in the Continental Casualty Company case it was said [83 F.2d 654]: "We can find nothing connected with the transaction that in any way partakes of the nature of a trust relationship. The railway company simply owed the claimant a sum of money which it failed to pay as it failed to pay others of its creditors." The bond subscription agreement in the case at bar was of a nature quite different from the insurance agreements entered into in the last two cited cases. Here the employee was, by the terms of his agreement, entitled either to a return of the money paid on or to a Liberty Bond of equal value, 58 whereas in the cited cases he was not entitled to the return of anything. Those claims were asserted by insurance carriers for money owed to them by the companies involved. Much of the company's argument relates to and stresses the fact it did not set up any special segregated account for the purchase of Liberty Bonds but instead co-mingled the deductions in its general funds. Segregation of the moneys, it urges, is a prerequisite condition to the establishment of trust relationship and suggests this was the holding in State v. Standard Oil Company, supra. We cannot agree. The stipulated facts there, like the stipulated facts here, show no segregation of the withholdings. But segregation of funds is only one of many factors to be weighed and considered in ascertaining the true intent of the parties. Failure to segregate the funds is not determinative of the conclusion that the relationship was debtor and creditor. The intermingling of funds in itself does not destroy a trust otherwise evidenced by the intent of the parties. "The mere mingling of funds which are to be devoted to a specific purpose with other funds of the depositary does not destroy the right of the true owners to claim such specific funds." Brown v. Spohr, 180 N.Y. 201, 73 N.E. 14, 17 (Ct. App. 1904). The true test of the relationship arises from the nature of the transaction itself and the intent of the parties involved. "The issue of trust or no trust turns almost invariably on proof of intention since the trust arises upon mere expression of the requisite intention." Eagle B. & L. Ass'n. v. Fiducia, 135 N.J. Eq. 7, 37 A.2d 116, 118 (Ch. 1944). To express the requisite intention it is not necessary that the word "trust" be used. Collins v. Lewis, 60 N.J. Eq. 488 (E. & A. 1900). Here the wages had been earned by the employees and were due to them at the time the withholding occurred. In effect, they were, on each payday, giving back to the company the 59 stipulated amount of the deduction as trustee to conserve the funds and, when sufficient had accumulated, to use them for the declared purpose of the agreement, to wit, the purchase of bonds for the use and benefit of the employees. Legal title to the funds was in the company but not the equitable title. Whatever bookkeeping or other convenience may have been served by the mingling of the employee's funds with its general funds, such unilateral action will not, standing alone, defeat the true intent of the parties. To so hold would do violence to the essence of the fiduciary relationship. The company, under the arrangement agreed upon, was to pay no interest or other consideration to the employee on the funds retained and it was therefore not privileged to use the money for its general purposes. The employee who did not pay into the fund sufficient to purchase a bond was entitled to get back only the amount of his contributions, without interest. The general fund in which the deductions were mingled "always greatly exceeded the amount of said bookkeeping account," permitting an inference the company did not regard the funds collected as moneys available for use for ordinary business purposes. In the Standard Oil case, supra, unpaid wages were held to create a debtor and creditor relationship subject to the statute of limitations, but here the deductions made were for the purchase of Liberty Bonds. The moment the deductions were made they became part of a fund dedicated to a specific purpose and were held subject to the accord between the company and the subscribing employee. "If before a declaration of trust a party be a mere debtor, a subsequent agreement recognizing the fund as already in his hands, and stipulating for its investment on the creditor's account, will have the effect to create a trust." Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256, 258, 12 L.R.A. 463 (Ct. App. 1891). Under the facts presented, and in accordance with the authorities cited, a trust relationship between the company and its subscribing employees was created and the statute 60 of limitations did not apply to the moneys withheld for the purchase of Liberty Bonds. The funds were therefore subject to escheat by the State under the terms of the Escheat Act. The appellant urges the allowance of a counsel fee, denied by the court below, out of the "fund in court" the subject of the escheat. The rule determinative of this question is set forth at length in State v. Otis Elevator Co., 12 N.J. 1. This was in part an adversary proceeding in which the company was endeavoring to establish its right to the fund by reason of the defense of the statute of limitations and so to defeat the State's claim. In addition, however, the company was under an obligation imposed by the court's order pursuant to the escheat statute to "disclose in its answer the specific items of personalty in its custody and control which have escheated or may be subject to escheat by the State of New Jersey under the statute set forth in the complaint and such information as it may have relating to the names and last-known addresses of persons that have or may have an interest in each of the said items of personalty." We assume this requirement entailed an exhaustive search and study of old records reaching back over a period of many years, although there is nothing in the record detailing the effort or time expended. The order was issued upon the filing of the complaint and imposed the obligation without regard to whether or not the company's answer, to be filed subsequently, acceded to or contested the State's claim of escheat. This phase of the defendant's effort was directed toward assisting in the preparation of the State's claim as required by the statute and the order issued pursuant to it. In these circumstances, the defendant is entitled to a counsel fee for that part of its work in the preparation of the case which was done in compliance with the court's order. We are not able on the record before us to assess the amount of the fee to be allowed as it is negative as to what was done. The apportionment, in accordance with the rule laid down, can best be determined by the court in which the services were rendered. 61 The judgment appealed from is reversed in so far as it denied the defendant's request for the allowance of reasonable counsel fees and disbursements within the limits herein specified, and the cause is remanded for that purpose in accordance with the views expressed in this opinion and more particularly detailed in State v. Otis Elevator Co., supra; and in all other respects the judgment is affirmed, without costs as to either party against the other. JACOBS, J. (dissenting in part). I concur in the court's determination that the property escheated to the State under the act but believe that the defendant is not entitled to the payment of counsel fee therefrom. My reasons supporting the denial of counsel fees to custodians in escheat cases generally are fully set forth in my dissenting opinion in the companion case of State v. Otis Elevator Co., 12 N.J. 1 (1953); the facts in the instant matter are more compelling than in the Otis case. Unlike the Otis case, the defendant here persisted in its claim to the property throughout the entire trial below and, indeed, in this court. Its claim has now been rejected and the State's right to the property as successor to the unknown employees has been sustained. It seems to me that whether the issue be determined under the Escheat Act or solely under Rule 3:54-7, the defendant has no just basis for seeking payment of counsel fee from the State's property. Cf. State v. Otis Elevator Co., supra. The majority suggest that the defendant ought be compensated on the assumption that the proceeding "entailed an exhaustive search and study of old records." Under our court rules every defendant in every litigation may be called upon for records and testimony bearing on the plaintiff's claims. See Rule 3:16-1 et seq.; Bead Chain Manufacturing Co. v. Smith, 1 N.J. 118 (1948). Nevertheless, it is now well recognized that, in the interests of sound judicial administration, he must generally bear his own counsel fees. See Janovsky v. American Motorists Insurance Co., 11 N.J. 1 (1952); In re Janssen Dairy Products Corp., 2 N.J. Super. 580, 589 (Law Div. 1949). Furthermore, under the 62 majority's determination the defendant was a trustee and as such was always obligated to maintain adequate records pending transfer of the trust property to the cestuis or to the State as their successor under the Escheat Act. The notion that a trustee who has denied the trust, has mingled the trust property with its own and used it without charge, and has apparently neglected to maintain records for ready examination by the cestuis or the State as their successor, should be compensated from the trust property for counsel fees incurred by it in the course of the proceeding by the State and its contest thereof, seems to lack support in authority or considerations of justice. See Knagenhjelm v. Rhode Island Hospital Trust Co., 43 R.I. 559, 114 A. 5, 9 (Sup. Ct. 1921). I would affirm the judgment entered in the Chancery Division in its entirety. WILLIAM J. BRENNAN, JR., J. (dissenting in part). I agree that the funds are subject to escheat, but would go further and affirm the judgment in its entirety because I do not think that in the circumstances of this case the defendant is entitled to an allowance of counsel fees and costs. I see no reason for insisting that the question of such allowances under this statute should be determined exclusively by reference to Rule 3:54-7. I think, with Mr. Justice HEHER and Mr. Justice JACOBS, that in this instance we should look to the statute to determine whether the Legislature has authorized the allowance of counsel fees and costs to the custodian of the escheated property. I incline to the reasoning of Mr. Justice JACOBS in Point II of his dissent in State v. Otis that if allowances to a custodian of the escheated property can in any case be governed by rule of court, as a matter of judicial restraint the Winberry [Winberry v. Salisbury, 5 N.J. 240] doctrine should not be invoked to bar legislative action on the subject. I part from Justices HEHER and JACOBS, however, in their interpretation of the Escheat Act as omitting any provision for the payment of fees and costs to the custodian. I think such payments are expressly provided for by the provision directing 63 the State Treasurer to pay, in addition to the allowances specifically mentioned, "such other fees and costs as the judgment shall direct." N.J.S. 2A:37-21. But certainly the trial court could not properly make an allowance to this custodian whose aid to the State was merely responsive to the coercive force of a court order and whose primary effort was to sustain a claim that the property was its own, to which end it resisted at every step of the litigation the State's effort to secure it. The statute plainly contemplates the payment of compensation only to a custodian whose participation in the case is purposed to further and not to frustrate the objective of the State's suit. HEHER, J. (dissenting in part). I would affirm the judgment in its entirety. I would not allow counsel fees, for the reasons stated in my dissenting opinion in State v. Otis Elevator Co., 12 N.J. 1, and the dissenting opinion delivered by Mr. Justice JACOBS in this case. For modification Chief Justice VANDERBILT, and Justices OLIPHANT, WACHENFELD and BURLING 4. For affirmance Justices HEHER, JACOBS and BRENNAN 3.	{ "pile_set_name": "FreeLaw" }
674 P.2d 454 (1983) 106 Idaho 25 STATE of Idaho, Plaintiff-Respondent, v. Manuel James SENA, Defendant-Appellant. No. 14170. Court of Appeals of Idaho. December 30, 1983. 455 Gary D. DeMeyer, Middleton, for defendant-appellant. David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Leslie L. Goddard, Deputy Atty. Gen., Boise, for plaintiff-respondent. McFADDEN, Judge Pro Tem. After separate jury trials appellant was convicted of first degree burglary and of being a persistent violator under I.C. § 19-2514. He was sentenced to a ten-year determinate term in prison. He appeals both his conviction and his sentence. We affirm. On May 11, 1980, shortly after 3:00 a.m., a silent alarm notified police that a possible burglary was in progress at a downtown Nampa bar. Appellant was in the vicinity of this bar when police arrived minutes after the alarm and was arrested. At trial, testimony connecting appellant to the burglary included that of an officer who saw a man exiting the bar into an alley and, because of previous contacts with appellant, was able to positively identify the man as appellant. Another officer in the alley saw the alley door to the bar closing, and appellant running down the alley. Appellant asserts numerous errors on appeal. The principal issues are: (a) failure of the prosecution to preserve evidence; (b) admission of evidence of appellant's prior felony convictions; (c) allegedly prejudicial comments by the prosecutor; and (d) alleged denial of appellant's confrontation rights. We will consider these errors in the order noted above. A. Preservation of Evidence. Appellant asserts that a motion to dismiss should have been granted. The basis for the motion was appellant's accusation that the prosecution had negligently destroyed evidence, thereby depriving appellant of a fair trial. The evidence consisted of blood samples taken from the scene of the burglary. Entry to the bar had been gained through a broken window, and traces of blood were found in the bar. One policeman observed that appellant had a small cut on his hand at the time of his arrest. The motion to dismiss was submitted several months after the prosecutor, responding to appellant's request for discovery, notified appellant of the existence of the blood sample. The sample, taken from the doorknob of the exit, had been held by police until appellant's counsel requested that tests be run on it. When the tests were run, some months after the sample was taken, the lab technician was able to determine that the sample was blood, but was unable to determine the type. Testimony at trial indicated that the blood type could not be determined because the sample was too old or because the quantity of blood was too small for a typing test. Although the appellant's motion to dismiss urged that evidence had been destroyed, the facts in this case are more akin to those cases where the prosecutor has failed to gather evidence rather than where the evidence has been destroyed after it was gathered. Here, the state preserved the evidence, but failed to conduct a test on the evidence that arguably could have indicated 456 the accused's noninvolvement. In State v. Reyna, 92 Idaho 669, 448 P.2d 762 (1968), the defendant argued that the state's failure to conduct a blood test, when the defendant was charged with driving while intoxicated, deprived him of due process. The state presented testimonial evidence of intoxication. The Supreme Court held that the state had no obligation to gather evidence for the accused by conducting tests not necessary to prove the prosecution's case. See also State v. Wells, 103 Idaho 137, 645 P.2d 371 (Ct.App. 1982) (no fundamental error in state's failure to gather possibly exculpatory evidence). We see nothing in the nature of the evidence, its treatment by the prosecution or the conduct of the prosecution in the development of this case that deprived appellant of a fair trial. B. Prior Convictions. Appellant argues that the trial court erred in allowing the prosecutor to inquire about two of appellant's previous convictions for felonies. Both convictions involved the crime of burglary, and both were committed within seven years of the present offense. In Idaho, it has long been the rule that, where a defendant chooses to testify at his criminal trial, a prosecutor will be permitted to inquire as to the existence of previous felony convictions, for purposes of impeaching the defendant's credibility. State v. Dunn, 91 Idaho 870, 434 P.2d 88 (1967); State v. Kleier, 69 Idaho 491, 210 P.2d 388 (1949). The nature of those felonies was particularly relevant to the issue of credibility. In Idaho, the practice of using prior felony convictions for purposes of impeachment of credibility has never been treated as inherently unfair. State v. Knee, 101 Idaho 484, 616 P.2d 263 (1980). Idaho Rules of Civil Procedure 43(b)(6), as amended in 1978, allows for inquiry into prior felony convictions and the nature of those convictions, when the trial court is able to make a finding, after a hearing outside the presence of the jury, that the prior convictions are relevant to the defendant's credibility as a witness. In the present case, after a hearing outside the presence of the jury, the trial court correctly analyzed the admission of this evidence in terms of its relevance on the issue of credibility, its remoteness and possible prejudice to appellant; and the court ruled it admissible. Our Supreme Court has held that the crime of burglary involves dishonesty and disregard for the rights of others, thus indicating a possible blemish on the credibility of such a person. State v. Ybarra, 102 Idaho 573, 634 P.2d 435 (1981). Accordingly, we see no error in the trial judge's admission of this evidence. C. Prosecutor's Comments. Appellant next argues that prejudicial error was committed when the prosecutor made certain remarks to the jury in his closing argument. The prosecutor, referring to a "Mrs. Scott," stated: "I am sure Mrs. Scott can tell you how frustrated her husband gets when after someone is caught red-handed they are turned loose, and " At that point, appellant's counsel objected to the remark, and the objection was immediately sustained. In the appellant's motion for a new trial it appeared that the name of "Mrs. Scott" had reference to a member of the jury named "Mrs. Stout", the wife of a deputy sheriff. The prosecutor is required to avoid inflammatory tactics which might deprive a defendant of a fair trial. State v. Griffiths, 101 Idaho 163, 610 P.2d 522 (1980). However, counsel for both sides are afforded considerable latitude in their arguments to the jury. State v. Sistrunk, 98 Idaho 629, 570 P.2d 866 (1977). It is difficult to see how the statement made by the prosecutor could have prejudiced the defendant and denied him a fair trial. The prosecutor was merely arguing that our system of justice should not be frustrated by allowing someone who was caught red-handed to go free. The reference to "Mrs. Scott" was merely incidental to the point the prosecutor was attempting to make. Viewing this comment in light of the whole record, we are 457 not persuaded that the comment constituted reversible error. D. Confrontation. Appellant next argues that allowing the state to introduce fingerprint records of the Idaho State Penitentiary without producing the maker of those records for cross-examination violated his sixth amendment right to confront witnesses against him. Appellant concedes that the records were properly admissible under an exception to the hearsay rule, but argues their admissibility is not determinative of the confrontation question. We agree that the fact that the evidence is admissible does not determine whether appellant's confrontation rights have been violated, but do not agree that those rights were violated in this case. The right to confrontation does not require the prosecution to produce any particular witnesses. An accused does not have the right, because of the sixth amendment, to insist that the state call any particular witness. This case is not unlike that of State v. Drapeau, 97 Idaho 685, 551 P.2d 972 (1976). In Drapeau, the Idaho Supreme Court considered a situation where the defendant assisted in the preparation of his own written statement, together with two cellmates. The written statement was later admitted into evidence at Drapeau's trial for purposes of impeaching his testimony. The defendant argued on appeal that the state's failure to call the cellmates who had assisted in the preparation of the statement violated his right of cross-examination. The Court, citing the rule that the right to confrontation does not require the prosecution to call any particular witness to the stand, ruled that no rights of the defendant were violated. The Court noted that if Drapeau had desired the presence of the cellmates it was incumbent upon him to make a timely request that witnesses be summoned. We are faced with the same situation in this case. It is apparent from appellant's brief that he knew who made the fingerprint document and that this person was available to testify. It was thus incumbent upon appellant to request that this person be available for trial so as to exercise his own right to examine the witness. There was no error. E. Other Alleged Errors. Numerous other errors are asserted by appellant. However, these alleged errors do not merit the detailed attention given to the previously enumerated issues. First, appellant alleges prejudice in the denial of a continuance requested on the first day of trial. The continuance was requested to obtain the presence of a witness living in California, who would presumably testify concerning appellant's prior knowledge of the bar's silent alarm system. The court refused the continuance, noting that several prior continuances had been granted, and that the witness' testimony would, at best, impeach another possible witness' testimony concerning appellant's knowledge of the silent alarm. The grant or denial of a continuance is a matter within the discretion of the trial court. State v. Ward, 98 Idaho 571, 569 P.2d 916 (1977); State v. Laws, 94 Idaho 200, 485 P.2d 144 (1971); State v. Polson, 92 Idaho 615, 448 P.2d 229 (1969), cert. denied 395 U.S. 977, 89 S.Ct. 2129, 23 L.Ed.2d 765 (1969). We find no abuse of discretion under the circumstances in this case. Appellant alleges certain evidence, consisting of coins and fingerprint cards, was improperly admitted because of a lack of sufficient chain of custody. The standard of admissibility of evidence where "chain of custody" is in issue is whether the trial court can determine that, in all reasonable probability, the proffered exhibit has not been changed in any material respect. State v. Campbell, 104 Idaho 705, 662 P.2d 1149 (Ct.App. 1983). Applying this standard to this evidence, we see no error in its admission. Appellant argues that a judgment of acquittal should have been granted. There is no question that a jury verdict will be upheld, and denial of a judgment of acquittal from that jury verdict will stand, when 458 the verdict is supported by substantial, competent evidence. State v. Huggins, 103 Idaho 422, 648 P.2d 1135 (Ct.App. 1982), aff'd as modified, 105 Idaho 43, 665 P.2d 1053 (1983). In this case, there is substantial evidence to sustain the verdict of the jury. Appellant also argues that his motion for a new trial should have been granted. However that motion did not raise any substantial issues different from those discussed in this opinion. It need not be treated separately here, and we find no error. Finally, appellant argues that the trial court abused its discretion in sentencing appellant to a determinate ten-year term in prison. Our standards to be used when considering a claim of excessiveness of sentence are stated in State v. Toohill, 103 Idaho 565, 650 P.2d 707 (Ct.App. 1982). If a sentence is within the statutory maximum, it will not be disturbed on appeal unless appellant affirmatively shows a clear abuse of discretion. State v. Cotton, 100 Idaho 573, 602 P.2d 71 (1979); State v. Toohill, supra. The crime of first degree burglary is punishable by imprisonment for not more than fifteen years in the custody of the Board of Correction. The status of being a persistent violator allows an enhancement of the penalty imposed for the crime charged through a sentence of not less than five years, extending to a maximum of life. Appellant was found to be a persistent violator. His sentence of a determinate term of ten years in prison is well within the confines of the sentencing options available to the trial court. We hold there was no abuse of discretion on the part of the trial judge in sentencing appellant to a ten-year fixed term. Having examined all issues presented by appellant, and having concluded that the trial court committed no reversible error, appellant's conviction and sentence are affirmed. WALTERS, C.J., and BURNETT, J., concur.	{ "pile_set_name": "FreeLaw" }
544 U.S. 1040 ALLENv.CROSBY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, ET AL. No. 04-9360. Supreme Court of United States. May 16, 2005. 1 C. A. 11th Cir. Certiorari denied.	{ "pile_set_name": "FreeLaw" }
352 F.Supp.2d 618 (2005) Maralyn F. WHEDBEE, Plaintiff, v. UNITED STATES of America, Defendant. No. 1:02 CV 01028. United States District Court, M.D. North Carolina. January 7, 2005. 619 620 Rosbon D. B. Whedbee, Law Offices of Rosbon D. B. Whedbee, Winston-Salem, NC, for Plaintiff. Gill P. Beck, Joan Brodish Binkley, Office of U. S. Attorney, for Defendant. MEMORANDUM OPINION BEATY, District Judge. I. INTRODUCTION Plaintiff Maralyn F. Whedbee ("Whedbee") is before this Court with three state law claims relating to her treatment by her supervisor and co-workers at the Federal Aviation Administration, United States Department of Transportation ("FAA"). While Whedbee initially sued her supervisor and co-workers, Rodney L. Carlson ("Carlson"), Jonia A. Widener ("Widener"), and Michael O. Hanson ("Hanson"), respectively, the United States of America ("United States") was substituted as Defendant in place of the three individuals. This Court ordered the substitution [Document # 7] of the United States on January 9, 2003, after the United States Attorney for the Middle District of North Carolina certified that the defendant employees were acting within the scope of their employment at the time of the incidents out of which the claims arose, as per the provisions of 28 U.S.C. § 2679(d)(1).[1] Section 2679(d)(2) further provides that any such 621 action pending in State court shall be removed to a United States district court after the substitution. 28 U.S.C. § 2679(d)(2). The case, therefore, was also properly removed from State court on November 26, 2002, when notice of the impending substitution was filed. Plaintiff now brings a Motion for Reconsideration of Order and for Relief from Orders Pursuant to Rule 60(b) [Document # 17], filed on June 2, 2003, nearly five months after this Court's Order of substitution, asking this Court to reconsider the substitution of the United States as Defendant for the individual defendants, Ms. Widener, Mr. Carlson, and Mr. Hanson. As part of this same motion, Plaintiff also requests a remand of this matter back to state court. The United States Response to Plaintiff's Motion for Reconsideration was filed on June 20, 2003 [Document # 20]. In addition, Defendant United States brings its own Amended Motion to Dismiss [Document # 12], filed on March 11, 2003, for lack of subject matter jurisdiction, pursuant to Rule 12(b)(1); for lack of proper service, pursuant to Rule 12(b)(5); and for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6). Alternatively, Defendant United States has moved for summary judgment, pursuant to Rule 56. Plaintiff filed a Response in Opposition to Defendant's Motion for Summary Judgment, as amended, on June 16, 2003 [Document # 19]. Defendant Replied on June 20, 2003 [Document # 21]. Thus, these motions are ripe for review. II. FACTUAL BACKGROUND As is proper when considering a Motion to Dismiss, this Court will consider the facts in a light most favorable to the non-moving party, which in this case is the Plaintiff. This action arises out of the alleged poor treatment Plaintiff received at the hands of her co-workers and supervisor. Plaintiff worked as Administrative Secretary to the Manager of the North Carolina Flight Standards District Office ("FSDO"), FAA Southern Region, from July 14, 1991, until her early retirement in September 2001. (Pl.'s Compl., at 1.) Plaintiff's position was paid at the GS-6, step 5 pay rate. (Id. at 4.) Plaintiff alleges that the hostile work environment she experienced during that decade of employment had roots in her hiring, because her co-worker, Ms. Widener, an Administrative Officer of the FSDO, was biased against Plaintiff because she had no input in Plaintiff's selection to her position. (Id.) Plaintiff alleges that Ms. Widener had worked for the FAA for about seventeen years at the time of Plaintiff's hiring, and so considered the office to be her "fiefdom." (Id.) Thus, because Ms. Widener disliked Plaintiff, particularly her "friendly, garrulous and out-going personality," Ms. Widener would derogate the character of Plaintiff to her supervisor, Manager Carlson. (Id. at 5.) Plaintiff alleges that beginning in 1992, Ms. Widener would report false accusations about Plaintiff, and get other clerical employees to register complaints about Plaintiff as well, and to generally "trot tales" to Manager Carlson about Plaintiff's personal actions and job performance. (Id. at 6.) Plaintiff contends that this conduct by Ms. Widener had an effect on Plaintiff's relationship with Manager Carlson. As a result, Mr. Carlson would frequently take negative personnel actions against Plaintiff, as well as other subordinates who had incurred his disfavor. (Id. at 7.) Plaintiff alleges that Mr. Carlson would frequently "walk up to Plaintiff and ask for an explanation 622 of some matter... and would then walk away without comment prior to the Plaintiff completing her explanation or response, while she was still talking." (Id.) He also would tell Plaintiff, if she became upset and did not like something, that she could leave, since her husband was a lawyer. (Id.) On other occasions he would become agitated at Plaintiff and throw objects in her general direction, without hitting her. (Id. at 8.) Plaintiff also complains that Manager Carlson would take the side of other employees against Plaintiff and would blame Plaintiff for something that he did not like without doing any independent investigation. (Id.) Furthermore, Plaintiff alleges that Manager Carlson would chastise her in front of other employees, and would not apologize to Plaintiff even when other employees corrected his mis-impression of Plaintiff. (Id.) Plaintiff also alleges that when a fellow clerical employee began a series of unwarranted "personal verbal attacks" against Plaintiff, Manager Carlson "both tacitly and openly supported the wrongful actions." (Id. at 9.) Plaintiff alleges that a conspiracy developed between Manager Carlson and Ms. Widener to create a hostile work environment against Plaintiff. Plaintiff believes that this was evidenced by Ms. Widener, Mr. Carlson, and Unit Manager Hanson (later Acting Manager) often being observed talking intently in whispers, holding meetings behind closed doors, "sometimes locked." (Id. at 5.) Plaintiff alleges that these meetings continued even after Manager Carlson retired in February 2001, because Acting Manager Hanson, Mr. Carlson, and Ms. Widener would periodically go out to lunch together. (Id. at 10.) Plaintiff further asserts that after these lunches, Mr. Hanson would often take some negative action against Plaintiff and other FSDO employees. (Id.) Plaintiff alleges that Acting Manager Hanson began a series of antagonistic verbal assaults against Plaintiff in order to create such a hostile work environment that would force Plaintiff to resign her position. (Id.) Plaintiff alleges that Mr. Hanson would use "inappropriate and hurtful" language where the Plaintiff could overhear him. (Id. at 11.) Plaintiff complains that Mr. Hanson would back other clerical employees who complained about Plaintiff's allegedly "hostile" attitude. (Id.) Mr. Hanson also failed to take corrective action against the same clerical employee whom Plaintiff had earlier reported as making personal attacks against her. (Id.) Mr. Hanson's response to Plaintiff's complaints was to advise Plaintiff that she should apply for a medical retirement because of illness suffered by Plaintiff.[2] (Id.) Plaintiff further contends that the work environment was hostile to the extent that Mr. Hanson admonished Plaintiff without knowledge of the facts involved in specific instances. (Id.) Furthermore, he often berated Plaintiff in a loud, antagonistic, and hostile manner while standing very close to Plaintiff. (Id.) Finally, Plaintiff contends that Mr. Hanson, without her knowledge or consent, altered a job performance evaluation of Plaintiff after she filed for retirement.[3] (Id. at 12.) 623 From these assertions of fact, Plaintiff brings three claims: one count of intentional infliction of emotional distress, one count of tortious interference with contract, and one count of civil conspiracy. Plaintiff contends that all of the claims were properly filed in state court. Plaintiff did not file an administrative action for these claims with the FAA prior to bringing this lawsuit in state court, which was subsequently removed to this Court. (Def.'s Am. Mem. Supp. Mot. Dismiss or in the Alternative for Summ. J., Ex. D. (Decl. of James S. Dillman)(stating that no administrative action was filed)). For this reason, among others, Defendant contends that Plaintiff's claims should be dismissed because the Court does not have subject matter jurisdiction. The Court will consider the various motions of the parties in turn. III. RULE 60(b) MOTION First, as previously noted, Plaintiff brings a motion under Rule 60(b) of the Federal Rules of Civil Procedure, to ask this Court to reconsider the substitution of the United States as Defendant in this action. Rule 60(b) of the Federal Rules of Civil Procedure provides in pertinent part: (b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; ... (6) any other reason justifying relief from the operation of the judgment. Plaintiff requests that this Court reconsider its Order substituting the United States for the three previous Defendants because "the Court erred in concluding that it had authority to accept jurisdiction of the subject causes of action alleged in the complaint in the instant action, and the Court is therefore without subject matter jurisdiction." (Pl.'s Motion to Reconsider, at 1.) Plaintiff contends that the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b); 2671 et seq. ("FTCA"), as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679, which provides for a limited waiver of the United States' sovereign immunity to claims against the government, should not be applied to this case. Plaintiff then refers this Court to its Response to Defendant's Motion for Summary Judgment, which states that the reason the Court has no jurisdiction in this matter is because the FTCA does not by its terms waive the United States' sovereign immunity to claims of intentional conduct, including tortious interference with contract, conspiracy, and intentional infliction of emotional distress. Therefore, Plaintiff argues, she must be allowed to bring her tort claims against the individual defendants in state court, otherwise Plaintiff's "right to sue for redress of civil wrongs including intentional, wrongful, spiteful, malicious and hurtful conduct" would be violated since no claims against the United States would survive dismissal based on sovereign immunity. (Pl.'s Resp. Opp'n Def.'s Mot. Summ. J., at ¶ 5.) Furthermore, Plaintiff argues that 624 this Court is without jurisdiction to hear this case because there were no other grounds for removal of the action from state court, other than the FTCA. Additionally, Plaintiff alleges that conduct that is intentional in nature must automatically be outside of the scope of employment, thus the Attorney General's certification must be erroneous. Plaintiff argues that Ms. Widener, Mr. Carlson, and Mr. Hanson were not, in fact, acting within the scope of their employment when they treated Plaintiff in the specific manner described previously. Specifically, Plaintiff states that "the Complaint is replete with allegations that the intentionally tortuous [sic] conduct of the three individual defendants directed toward this Plaintiff ... was `above and beyond', or clearly `outside of', the `purview and scope of managerial actions.'" (Id. at ¶ 3.) Plaintiff cites no case law for the scope of employment determination, and merely states that she is adopting Defendant's citations for authority, but is at the same time contending that all of Defendant's citations, without further discussion of any of them, "do not support the Government's contentions, but quite the opposite." (Id. at ¶ 5.) This Court finds that Plaintiff's Motion to Reconsider is subject to dismissal on several grounds. First, the Court notes that as Plaintiff filed this Motion nearly five months after the Court's Order substituting Defendant United States for the three individual defendants, Plaintiff's motion is clearly not timely. All motions made under Rule 60(b) must be made within a reasonable time. Park Corp. v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir.1987). In this case, Plaintiff has made no showing to explain why the Motion was filed so long after this Court's Order. See McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir.1991)(stating that the court has found on several occasions that a Rule 60(b) motion is not timely when filed three to four months after the original judgment when no valid reason is given for the delay). Second, the Court notes that under Rule 60(b), reconsideration of a legal issue is not permitted. CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 400 (4th Cir.1995)(holding that where a motion for reconsideration is for legal issues already addressed in an earlier ruling, motion for relief from judgment is not authorized by Rule 60(b)). To the extent that Plaintiff is asking this Court to use Rule 60(b) to overturn its legal conclusion accepting Defendant's Motion for Substitution, this Motion must be denied. However, in addition to failing because of delay in filing and not having a legal foundation in Rule 60(b) in support of it, Plaintiff has made no viable legal argument in either her Motion for Reconsideration or her Response to Plaintiff's Motion to Dismiss that would require this Court to overturn its previous finding that the three FAA employees, Ms. Widener, Mr. Carlson, and Mr. Hanson, acted within the scope of their employment, and thus are absolutely immune from Plaintiff's state tort claims. See Freeze v. United States, 343 F.Supp.2d 477, 480 (M.D.N.C.2004). Under this Court's own precedent, Lee v. United States, 171 F.Supp.2d 566 (M.D.N.C.2001), the fact that the United States Attorney offers to certify that some federal employee acted within his or her scope of employment is conclusive evidence that a lawsuit may be removed from state court. Id. at 572. Once the lawsuit is properly removed from state court, the FTCA applies to the suit, whether or not the conduct alleged is an intentional tort. Id. at 578. However, if that certification is challenged, the appropriateness of the substitution is subject to judicial review, upon which the certification serves as prima 625 facie evidence that the certification was proper. Id. at 573. The evidence of a certification also shifts the burden to the plaintiff to prove, by a preponderance of the evidence, that the defendant federal employee was acting outside the scope of his employment. Id. To meet this burden, the plaintiff must come forward with "specific evidence or the forecast of specific evidence that contradicts the Attorney General's certification decision, not mere conclusory allegations and speculation." Webb v. United States, 24 F.Supp.2d 608, 612 (W.D.Va.1998). The Court therefore must review the certification decision under a de novo standard. Id. at 613. To determine whether an alleged tort occurred within the scope of employment, the district court may resolve disputed issues of fact. Lee, 171 F.Supp.2d at 574. The court may hold a hearing or allow limited discovery, but need not do so if such a hearing is unnecessary and the certification, pleadings, affidavits, and any supporting documents fail to reveal an issue of material fact. Id. Once all factual issues are resolved, the court must then weigh the evidence on each side to determine whether the certification should stand. Id. "To make such a determination, the district court must apply the respondeat superior law of the state in which the alleged tortious conduct occurred." Id. In this case, that means that this Court must apply North Carolina law to see whether Ms. Widener, Mr. Carlson, and Mr. Hanson were acting within the scope of their employment. Under North Carolina law, the liability of a principal for the torts of his agent arises in three situations: "(1) when the agent's act is expressly authorized by the principal; (2) when the agent's act is committed within the scope of his employment and in furtherance of the principal's business; or (3) when the agent's act is ratified by the principal." Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 491, 340 S.E.2d 116, 121-22 (1986) (citations omitted). It is the second part of this test that concerns this case. The scope of employment inquiry has been phrased as whether the employee was "about his master's business or whether he stepped aside from his employment to commit a wrong prompted by a spirit of vindictiveness or to gratify his personal animosity or to carry out an independent purpose of his own." Medlin v. Bass, 327 N.C. 587, 593, 398 S.E.2d 460, 463 (1990)(quotations and internal citations omitted). It has also been articulated as whether an employee's act "was a means or method of doing that which he was employed to do" or whether he "departed, however briefly, from his duties in order to accomplish a purpose of his own, which purpose was not incidental to the work he was employed to do." Wegner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 66, 153 S.E.2d 804, 808 (1967) (citations omitted). While North Carolina courts have rarely found intentional torts to be within the scope of employment, rarely does not mean that such has never occurred. See White v. Consol. Planning, Inc., 603 S.E.2d 147, 157 (N.C.Ct.App.2004)(holding that employee's embezzlement, where it occurred during the precise tasks he was hired to do and was held out to the public as authorized to perform, was within that employee's scope of employment). "In determining liability, the critical question is whether the tort was committed in the course of activities that the employee was authorized to perform." Id. at 158. Defendant argues that all actions alleged by Plaintiff concern personnel actions, plaintiff's work duties, and incidents which occurred during work hours. (Def.'s Resp. Pl.'s Mot. Relief Under 60(b), at 8.) Evidence that disputes were work related, occurred on the employer's premises, and during work hours supports the conclusion 626 that an employee was acting within the scope of his employment at the time of the alleged incidents. See Wallen v. Domm, 700 F.2d 124, 125-26 (4th Cir.1983). Furthermore, Plaintiff goes so far as to admit the complained of behavior occurred within the "course and scope of [Widener, Carlson, and Hanson's] employment with the FAA FSDO." (Pl.'s Compl., at 3.) While Plaintiff argues that any evidence of a personal motivation means these intentional torts cannot have been committed within the scope of employment, the case of Maron v. United States, 126 F.3d 317 (4th Cir.1997), while applying Maryland law, is instructive. In Maron, the court found various considerations play a role in determining scope of employment, and it cannot be that any one factor, including whether personal motivations played a role, is dispositive. Id. at 324. The court found that under Maryland law, conduct "actuated at least in part by a purpose to serve the master" could be within the scope of employment. Id. (citation omitted). Therefore, in that case, the court concluded that evidence that a few physicians had personal motivation to allegedly harass another physician, by telling his patients he no longer worked for the company and removing his name as co-author from several publications, was still conduct within the scope of the physicians' employment for purposes of substituting the United States as the defendant. Id. at 327. This is because it was among the physicians' duties to communicate with patients, answer phones, and author publications. Thus, "Maron's unsubstantiated speculation about the ill will of his colleagues ... is not enough, in and of itself, to transform acts which are facially within the scope of employment into acts that fall outside of that scope." Id. (citing RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1143 (6th Cir.1996)). After weighing all of the evidence, because Plaintiff in this case has made no evidentiary showing, other than conclusory statements expressing Plaintiff's opinion that Ms. Widener, Mr. Carlson, and Mr. Hanson's allegedly tortious conduct was described as "above and beyond" the scope of employment, this Court finds that Plaintiff has not met her burden under the standard identified by the Court in order to disprove the United States Attorney's certification and to show that the actions Plaintiff complained of by the individual defendants were outside the scope of employment in relation to the Plaintiff. While much of the complained of conduct may be questionable in terms of employee-employer or co-worker relations, none of the conduct Plaintiff complains of falls clearly outside of Ms. Widener, Mr. Carlson, or Mr. Hanson's job duties of employee management or employee relations. Therefore, Plaintiff's Motion to Reconsider under Rule 60(b) is denied. IV. MOTION TO DISMISS, OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT Defendant United States separately has filed a motion under Rule 12(b)(1), 12(b)(5) and 12(b)(6) for dismissal, or in the alternative, has moved pursuant to Rule 56 for summary judgment. With respect to a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted, dismissals are allowed "only in very limited circumstances." Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324, 325 (4th Cir.1989). Generally, "[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (internal quotations omitted); accord Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993). In making this determination, a court must view 627 the complaint in the light most favorable to the plaintiff, accepting as true all well-pleaded factual allegations. Randall v. United States, 30 F.3d 518, 522 (4th Cir.1994). Thus, the purpose of a motion to dismiss is to test the legal sufficiency of the complaint and not the facts that support it. Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.1989)(internal quotations omitted). In this case, Defendant has raised a number of theories as to why Plaintiff's case should be dismissed. Defendant first argues the case should be dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because Plaintiff did not pursue remedies available to her under the FAA's Personnel Management System. Defendant also argues the case should be dismissed for a lack of subject matter jurisdiction under Rule 12(b)(1) because Plaintiff did not comply with provisions of the FTCA by failing to pursue administrative remedies prior to filing suit. In particular, Defendant also argues that Plaintiff's claim of tortious interference with contract should be dismissed because it is specifically excluded by the FTCA as a claim for which the United States has waived sovereign immunity. Furthermore, Defendant argues that as for the claim of intentional infliction of emotional distress, that claim must be dismissed under Rule 12(b)(1) for lack of subject matter jurisdiction because of pre-emption under the Federal Employees' Compensation Act, 5 U.S.C. § 8101 et. seq. Additionally, Defendant argues that Title VII provides the exclusive remedy for employment-related tort claims. Defendant further argues that the case should be dismissed under Rule 12(b)(6) for failure to state a claim. Defendant also argues that the case should be dismissed under Rule 12(b)(5) because Plaintiff did not properly serve Defendant United States. Finally, to the extent that any claim remains after the previous motions, Defendant argues the case should be dismissed because Defendants are entitled to summary judgment pursuant to Rule 56. Because the resolution of the issue of whether this Court has jurisdiction of this matter under the FTCA will resolve the matter, the Court will now consider that question solely. The FTCA provides that: An action shall not be instituted upon a claim against the United States for money damages for injury or loss ... caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section. 28 U.S.C. § 2675. Defendant's argument is as follows: the U.S. Attorney has properly certified that the previous individual defendants, Ms. Widener, Mr. Carlson, and Mr. Hanson, acted, at all times complained of by the complaint, within the scope of their employment. This Court's preceding ruling has upheld that certification by the Defendant. As such, Plaintiff may only bring her common law tort claims under the FTCA, which provides a limited, conditional waiver of sovereign immunity by the United States for the torts of Federal government employees committed within the scope of their employment. Freeze, 343 F.Supp.2d at 480. In that view, the FTCA 628 requires that such an administrative claim be filed with the responsible federal agency prior to filing a lawsuit. 28 U.S.C. § 2675(a); McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984, 124 L.Ed.2d 21 (1993). Plaintiff's failure to file a proper administrative claim will divest this Court of subject matter jurisdiction, because such a failure cannot be waived. See Plyler v. United States, 900 F.2d 41, 42 (4th Cir.1990). The record here reveals that Plaintiff did not file claims with the FAA for the actions Plaintiff asserts here prior to bringing this lawsuit in state court, which was subsequently removed to this Court. (Def.'s Am. Mem. Supp. Mot. Dismiss or in the Alternative Summ. J., Ex. D. (Decl. of James S. Dillman)). Plaintiff has not contested Defendant's assertion that she did not bring an administrative action with the FAA. Plaintiff also has not stated in her Complaint or in any other pleading before the Court that she had filed such an administrative action. Accordingly, the Court finds that Plaintiff failed to exhaust her administrative remedies regarding the tort claims asserted in this matter, to wit, tortious interference with contract, intentional infliction of emotional distress, and conspiracy. For this reason, the Court lacks subject matter jurisdiction of Plaintiff's claims based upon the FTCA and Plaintiff's claims must therefore be dismissed. Alternatively, as to the tortious interference with contract claim, even if Plaintiff had exhausted her administrative remedies, this Court would still have no subject matter jurisdiction as to that specific claim. While Plaintiff argues that the FTCA does not apply to any intentional torts, this statement is incorrect. Some intentional torts are covered by the FTCA, while for other intentional torts the United States has refused to waive sovereign immunity under that act. A claim for tortious interference with contract is one of those claims that is specifically excluded by the FTCA as a claim that can be brought against the United States. 28 U.S.C. § 2680(h). The FTCA was enacted as a limited waiver of the federal government's sovereign immunity for torts committed by employees. It is a limited waiver, because at the same time that Congress established this avenue for suit, Congress also established exceptions to that waiver. Under § 2680(h), a number of specifically enumerated intentional torts are excluded from the FTCA. "Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights" are all specifically excluded from the ambit of the FTCA. "This immunity applies even where federal law does not otherwise provide a remedy against the United States." Bieregu v. Ashcroft, 259 F.Supp.2d 342, 351 (D.N.J.2003)(citing United States v. Smith, 499 U.S. 160, 166, 111 S.Ct. 1180, 1185, 113 L.Ed.2d 134 (1991)). This means that although Plaintiff may not have a remedy in this Court, Plaintiff still cannot sue on her intentional tort claims in state court, as she argues. Instead, because the United States has been substituted as the only proper Defendant which means the FTCA applies to this case and because tortious interference with contract is a claim for which the Government has not waived sovereign immunity, this Court lacks subject matter jurisdiction over that claim and would continue to lack subject matter jurisdiction over it even if Plaintiff had timely filed it with the FAA prior to filing this suit. Lee, 171 F.Supp.2d at 578. Therefore, had the Court not dismissed the case for the failure to file an administrative action first, this Court would also have had to dismiss the tortious interference claim, at a minimum, *629 because of the exception to FTCA at § 2680(h). V. CONCLUSION For the reasons stated herein, the Court holds that Plaintiff's Motion for Reconsideration under Rule 60(b) is DENIED. Furthermore, Defendant's Motion to Dismiss under 12(b)(1) is GRANTED with respect to all of Plaintiff's claims. Accordingly, Defendant's alternative motion for summary judgment is DISMISSED as moot. An Order and Judgment consistent with this Memorandum Opinion shall be filed contemporaneously herewith. NOTES [1] Section 2679(d)(1) provides that: "[u]pon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such a claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant." [2] The Court notes that to the extent that Plaintiff's claims appear to allege discrimination based on sex, disability, age, or religion, this suit is also improperly brought, in that such claims must be brought under Title VII of the Civil Rights Amendment of 1991 ("Title VII") and may not be disguised or artfully pled as state law tort claims. See Pueschel v. United States, 369 F.3d 345, 348 (4th Cir.2004)(finding that Title VII establishes the "exclusive and preemptive" scheme under which federal employees can seek redress for employment discrimination). [3] Plaintiff also contends that in September 2000, some unknown person placed a large nail against Plaintiff's vehicle's wheel while the car was parked in the FSDO parking area. For the purpose of making the scope of employment determination, this Court will not consider such an action as part of the determination, because Plaintiff has not specifically linked the action to Ms. Widener, Mr. Carlson, or Mr. Hanson.	{ "pile_set_name": "FreeLaw" }
362 F.2d 543 John Taylor QUEEN, Appellant,v.Ray H. PAGE, Warden, Oklahoma State Penitentiary, Appellee. No. 8716. United States Court of Appeals Tenth Circuit. June 17, 1966. Paul L. Gray, Wichita, Kan., for appellant. Charles L. Owens, Asst. Atty. Gen. (Charles Nesbitt, Atty. Gen., on the brief), for appellee. Before BREITENSTEIN, HILL and SETH, Circuit Judges. PER CURIAM. 1 This is an appeal from the denial of habeas corpus relief to appellant, a prisoner in the Oklahoma penitentiary. On April 6, 1964, the prisoner was sentenced to a five-year term on his plea of guilty to second degree rape. His application to the Oklahoma Court of Criminal Appeals for habeas corpus was denied. Queen v. State (Okl.Cr.) 395 P.2d 343. He then sought the same relief from the United States District Court for the Eastern District of Oklahoma. That court appointed an attorney for him and conducted an evidentiary hearing at which full opportunity was afforded to the defendant for the presentation of evidence. The court made appropriate findings of fact and denied the petition. No appeal was taken. About eight months later he filed another habeas corpus petition in the same court and it was denied without a hearing. This appeal followed. 2 With one hereinafter noted exception the grounds asserted in the second application were a repetition of those previously advanced. We have examined the record of the hearing held on the first petition and find that the same grounds were determined adversely to the prisoner, that the prior determination was on the merits, and that the ends of justice would not be served by reaching the merits of the second application. See Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 and 28 U.S.C. 2244. 3 The exception is that the prisoner now claims that his rights were infringed by a change in the date of judgment and start of term without his presence. Sentence was imposed April 6, 1964. The Judgment was erroneously dated April 6, 1965. A correction was made at some time which does not appear in the record. Oklahoma has held that a trial court may at any time correct its records to recite the truth. Flowers v. State (Okl.Cr.) 398 P.2d 161. We have held that such correction is within the province of the state courts and does not create constitutional questions justifying federal habeas relief. Flowers v. State of Oklahoma, 10 Cir., 356 F.2d 916, 917. The prisoner does not claim that the corrected judgment fails to speak the truth. 4 Affirmed.	{ "pile_set_name": "FreeLaw" }
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED August 20, 2020 Plaintiff-Appellee, v No. 346668 Macomb Circuit Court JULIE ANN FLYNN, LC No. 2017-002784-FC Defendant-Appellant. Before: RONAYNE KRAUSE, P.J., and SAWYER and BOONSTRA, JJ. PER CURIAM. Defendant appeals as of right her jury trial conviction of guilty but mentally ill on one count of first-degree murder, MCL 750.316. Defendant was sentenced to life imprisonment without the possibility of parole. We affirm. This case arises out of the death of defendant’s mother (“the victim” herein). Defendant stabbed the victim while in the condominium the two lived in together in Shelby Township, Michigan. Defendant has a history of severe mental illness. She had been diagnosed as schizophrenic, and had been taking antipsychotic medication for approximately 20 years. Defendant and the victim had been living alone together in their condominium since November 27, 2016, when defendant’s father, Bill Flynn, unexpectedly died. Bill had been the caretaker for the victim and defendant. Bill had moved defendant into his and the victim’s condominium in 2015, primarily to ensure that defendant took her medications and attended her doctor’s appointments. On January 30, 2017, defendant called her brother, Steven Flynn, and reported that their mother was dead. The victim’s body was found sitting on the couch, covered with a blanket. Kelly Flynn, defendant’s sister-in-law, testified that the scene appeared staged because it seemed that the carpet had been cleaned, and the victim’s body appeared to be in an unnatural position. When the paramedic, Curtis Allen Pallister, arrived at the condominium, he pronounced the victim deceased. Pallister testified that nothing he observed in the condominium seemed abnormal, and it appeared as if the victim could have died from natural causes. Dr. Daniel Spitz performed an autopsy on the victim on January 31, 2017. The victim had multiple stab wounds to the right side of her neck. The victim’s cause of death was homicide by -1- at least 22 stab wounds to her neck that caused damage to the carotid artery and the jugular vein. Dr. Spitz believed that, at the time she was found, the victim “had been dead sometime in the range of two to three days, maybe a little more[.]” The victim had no defensive wounds on her body, which can occur when a person tries to defend himself or herself during a struggle. If there was any movement by the victim when being stabbed, it was very minimal. The prosecution charged defendant with first-degree murder. At trial, the defense set forth the affirmative defense that defendant was legally insane at the time she killed the victim, and therefore, the jury should find defendant not guilty by reason of insanity. The jury returned a verdict of guilty but mentally ill. Defendant now appeals. Defendant first argues that her conviction and sentence for first-degree murder should be vacated because she presented sufficient evidence to establish that she was legally insane at the time the crime was committed. We disagree. This Court reviews a sufficiency of the evidence challenge de novo. People v Lueth, 253 Mich App 670, 680; 660 NW2d 322 (2002). “When a defendant challenges the sufficiency of the evidence in a criminal case, this Court considers whether the evidence, viewed in a light most favorable to the prosecution, would warrant a reasonable juror in finding that the essential elements of the crime were proved beyond a reasonable doubt.” People v Jackson, 292 Mich App 583, 587; 808 NW2d 541 (2011). “The defendant has the burden of proving the defense of insanity by a preponderance of the evidence.” MCL 768.21a(3). It is a question for the jury whether the defendant has sufficiently supported an affirmative defense by a preponderance of the evidence. People v Kolanek, 491 Mich 382, 411-412; 817 NW2d 528 (2012), superseded by statute on other grounds as stated in People v Hartwick, 498 Mich 192, 231 (2015). “It is the province of the jury to determine questions of fact and assess the credibility of witnesses.” People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998). Insanity is an affirmative defense. MCL 768.21a(1). A defendant may be found not guilty by reason of insanity if the defendant establishes that, as a result of a mental illness, “the defendant ‘lacked substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or conform his or her conduct to the requirements of the law.’ ” People v Carpenter, 464 Mich 223, 230-231; 627 NW2d 276 (2001), quoting MCL 768.21a(1). However, a defendant may be found guilty but mentally ill if the defendant establishes that “he or she was mentally ill at the time of the commission of that offense,” but has not established “by a preponderance of the evidence that he or she lacked the substantial capacity either to appreciate the nature and quality or the wrongfulness of his or her conduct or to conform his or her conduct to the requirements of the law.” MCL 768.36(b) and (c). Defendant does not dispute that the prosecution presented sufficient evidence of first- degree murder. Rather, defendant contends that she presented sufficient evidence that she was legally insane at the time of the crime. The parties do not dispute that defendant was mentally ill at the time she killed the victim. Therefore, the pertinent question is whether she proved, by a preponderance of the evidence, that she lacked substantial capacity to either appreciate the nature and quality or wrongfulness of her conduct or to conform her conduct to the requirements of the law. -2- The evidence established that defendant had a long history of mental illness. Dr. Judith Block, who evaluated defendant for criminal responsibility, testified that defendant had been taking psychiatric medications since she was 28 years old when she had her first breakdown. Her medications were almost always antipsychotic medications, which are used with people who are out of touch with reality, psychotic, have disorganized thinking, and sometimes have delusions of false things or hear voices. In 2012, defendant was diagnosed as having schizophrenia because she had oddities of thought perception, sleep disturbances, illogical thinking, loosening of associations, delusions or hallucinations, hostility and irritability, difficulty thinking, and indications of psychosis and disorganization. Between 2009 and 2012, defendant was admitted for inpatient hospitalization seven times. In 2015, defendant had an episode and “rammed into a bunch of vehicles,” causing a multi-car accident. Defendant gave up driving and moved in with Bill and the victim. In January 2016, defendant was admitted to the hospital after Bill and the victim called the police because defendant was delusional, paranoid, and threatening to kill herself with a knife. According to Bill and the victim, defendant had refused to take her medication for a few days before the incident. Dr. Block noted that this showed how fast defendant could decompensate when not having her medication for only a few days. Defendant was admitted to the hospital again in February 2016 after she cut her wrists. Kelly testified that in 2009 she noticed a serious decline in defendant’s health. Defendant had become verbally aggressive and “completely delusional.” Defendant would accuse Kelly of things that had no basis in reality, and at times, defendant would look at Kelly, but it appeared she was talking to someone else. Kelly stopped communicating with defendant over the phone because she felt that it was not defendant anymore, “it was somebody else.” When Kelly personally witnessed defendant’s episodes, it appeared that defendant was someone else. Kelly only personally saw one disagreement between defendant and the victim. At trial, multiple witnesses testified to defendant’s bizarre behavior around the time of the victim’s death. Dr. Block testified that, on January 13, 2017, defendant spoke to the person who rented defendant’s other home. Between January 13, 2017, and January 27, 2017, the renter could not get ahold of defendant despite numerous phone calls and emails. When the renter finally got ahold of defendant, she told him to come by the next morning and she would sign paperwork for him. When the renter arrived in the morning of January 28, 2017, defendant was disheveled, shaking, and wearing what appeared to be a stained robe. Defendant was unaware of the month. On January 29, 2017, defendant called her friend, Deborah Adams-Budden, and asked what a person does when both of their parents are dead. Adams-Budden told defendant to call the police, and defendant agreed. Defendant was emotionless and evasive when speaking to Adams-Budden. Adams-Budden also said she would come by the following day, and defendant appeared happy that someone would come over to help her. On January 29, 2017, defendant placed a call to 911, expressing that “there was a lot going on,” but when the police arrived to do a welfare check, defendant did not answer the door. Rather, defendant closed the blinds when the police asked if she was okay and if she would let them in the condominium. When defendant spoke to Adams- Budden on the morning of January 30, 2017, she was not certain whether she had called the police. On January 30, 2017, defendant spoke to Steven in the morning, and said, “dad’s dead, mom’s dead, we need to put mom in an urn just like dad.” When Steven arrived at the house, defendant was “zombie like.” When Kelly spoke to defendant at the house, defendant appeared to have no emotion, she was “completely detached,” and “[j]ust kind of rocking and staring.” Over time Kelly -3- had learned that when defendant was emotionless, had a fixed stare, and had a slight rock, she was experiencing an episode. When Officer Michelle Adamic attempted to speak to defendant while at the scene, defendant was emotionless and did not make eye contact. When Officer Justin Goebel tried to speak to defendant twice while at the scene, she was emotionless and made little eye contact. Officer Goebel thought defendant appeared disheveled, but she seemed coherent. During Dr. Block’s evaluation of defendant, defendant stated that she killed the victim because the victim was in pain. When Dr. Block asked defendant about killing the victim, defendant said, “my mom said, if I didn’t have a stent in my heart, I wouldn’t be alive and I’m in a lot of pain[.]” Defendant then stated, “I didn’t act appropriately, I should have called 911.” Defendant also stated that she felt she was in the middle of a dream at the time of the victim’s death. Defendant told Dr. Block that she “believed someone was controlling her thoughts or controlling her,” saying, “I remember dreaming about a man, a crazy dream, I believe it was at the time of my mother’s death, just a crazy dream.” When Dr. Block asked defendant whether she would have killed the victim if she was not in the dream, defendant responded, “no, if I was in a delusional state, I would have just gone to bed and I would wake up and care for her and me, for both of us.” When asked if she knew what she did was wrong, defendant responded, “I know it is wrong, I have love and remorse, looking back I don’t recall stabbing 20 times, I had a loving relationship with her, she was my friend[.]” Dr. Block believed that defendant’s statement that she killed the victim because the victim was in pain was actually defendant trying to rationalize her behavior because she did not actually remember what occurred during that period of time because she was experiencing a psychotic episode, and defendant had a history of not being able to remember events during a psychotic episode. Dr. Block asserted that, when people are authentically mentally ill, and don’t want to acknowledge the “crazy” stuff they do when they are mentally ill, they try “to come up with a logical thing that they did because they don’t want to acknowledge the insanity and lack of control.” In regard to a diagnosis, Dr. Block stated that it was a “slam dunk” that defendant was mentally ill at the time of the crime on the basis of defendant’s history of mental illness, defendant’s account of what happened, and defendant’s failure to attend to her hygiene during that time period as illustrated by her wearing a bloody robe for days. Dr. Block also opined that defendant could not appreciate the nature and quality or the wrongfulness of what she did on the basis of defendant’s statements that she was in a dream, and on the basis of her bizarre behavior around the time of the victim’s death. Dr. Block considered not only defendant’s extensive history of mental illness, but also the account of others who saw her around that time. Dr. Block stated that defendant likely committed the crime sometime before Saturday morning, “based on the brown stains on her robe,” but even after Saturday she continued to have bizarre behavior as illustrated by her conversation with Adams-Budden, as well as the way in which she ignored the police after she called them. Dr. Block stated that there was no real way of knowing whether defendant knew that killing the victim was wrong because she was “very out of touch with reality at the time.” Dr. Block also opined that defendant could not conform her conduct to the requirements of the law because defendant did not appear to have goal oriented or organized behavior stating, “[i]t seems pretty random to kill, and then sit around and do cleaning and in a not great fashion where there is still blood on your robe. You don’t change your clothes, you don’t wash your clothes, you got blood everywhere. You got the toilet stuffed up, it sounds like a chaotic disorganized way of trying to clean up[.]” -4- On cross-examination, the prosecutor tried to discredit Dr. Block’s testimony expressing that, despite Dr. Block’s repeated statements that defendant continued to wear a robe with blood on it, the robe had been tested and it did not have blood on it. The prosecutor stated to Dr. Block the following: I’m kind of curious because it’s supposed to be a really bloody crime scene and when she’s arrested days later she’s not wearing any clothes that have blood on them. You want to say disheveled, yet she’s clean. Does that tell you that she was functioning at a point where she would have washed her bloody clothes, or gotten out of her bloody clothes, or thrown out her bloody clothes, or disposed of her bloody clothes? Dr. Block was unaware that the stains had been determined not to be blood. The prosecutor questioned Dr. Block as to whether defendant was truly incapable of recounting what occurred when she killed the victim or whether she was just unwilling to recount the events and being manipulative. Dr. Block stated that, although defendant had the ability to manipulate, she did not believe defendant was being manipulative during the evaluation because her inability to recount details was consistent with her history of being a poor historian when it came to her mental health. The prosecutor also questioned Dr. Block as to how a person could be in a schizophrenic state and have no recollection of events but could have cleaned the scene to such an extent that minimal blood was seen by the paramedics and could have placed the victim’s body so that her injuries did not show. Dr. Block believed that it was possible in some cases, and specifically in defendant’s case, that she likely did not have a recollection of what occurred. Dr. Block expounded on the issue by stating that defendant did not solely say that she could not remember, but rather, she was in a dream and being controlled by a man. When prompted by the prosecutor, Dr. Block stated that, although she had read nine other reports for defendant, the first time defendant ever mentioned being in a dream and controlled by a man was during her evaluation with Dr. Block, which the prosecutor found “convenient.” In regard to the manner in which defendant cleaned the condominium, Dr. Block considered it to be “inept cleaning” in which she “apparently clogged toilets[.]” When the prosecutor asked Dr. Block whether it was rational that defendant kept the upstairs toilet clean for her use, Dr. Block stated that she was unaware that there was a running toilet in the condominium. The prosecutor also questioned Dr. Block as to how she chose which statements of defendant’s to believe. Specifically, the prosecutor questioned how Dr. Block could believe defendant’s statements that she did not recall the details of what occurred, but Dr. Block did not believe defendant’s statement that she killed the victim because the victim was in pain. Dr. Block stated that it was her belief that, if defendant truly wanted to put the victim out of pain, she would have chosen some other way than to stab the victim multiple times. Defendant argues that she presented sufficient evidence to establish that she was legally insane at the time she killed the victim, particularly because Dr. Block was the only expert to testify at trial, and she opined that defendant was legally insane at the time she killed the victim. Despite presenting evidence from an expert witness, “[i]t is the province of the jury to determine questions of fact and assess the credibility of witnesses.” Lemmon, 456 Mich at 637. The prosecutor impeached Dr. Block and highlighted the inconsistencies in defendant’s memory and focused on the way in which defendant’s actions in cleaning the condominium and positioning the victim’s body appeared rational and contrived. The evidence indicated that defendant cleaned the -5- condominium after the victim was killed, which included cleaning the blood off the victim. The evidence also indicated that defendant arranged the victim’s body in a manner in which the wounds were not easily noticeable. In addition, defendant admitted that she killed the victim because she was in pain. Defendant also admitted that her actions were inappropriate and she should have just called 911. Further, defendant acknowledged that what she did was wrong and she felt remorse. Thus, the prosecution presented sufficient evidence to support the jury’s verdict. Therefore, the verdict must not be vacated. Defendant also argues the Michigan Supreme Court’s holding in Carpenter, 464 Mich at 230-231, quoting MCL 768.21a(1), infringed upon her right to present a defense and her due process rights. We disagree. “A defendant must raise an issue in the trial court to preserve it for our review.” People v Heft, 299 Mich App 69, 78; 829 NW2d 266 (2012). In the lower court, defendant did not argue that Carpenter infringed on her right to present a defense or her due process rights. Thus, this issue is not preserved for appellate review. However, even though defendant failed to raise the issue below, “this Court may review the issue to the extent that it involves a significant constitutional question.” People v Walker, 234 Mich App 299, 302; 593 NW2d 673 (1999). “This Court reviews de novo whether defendant suffered a deprivation of his constitutional right to present a defense.” People v Steele, 283 Mich App 472, 480; 769 NW2d 256 (2009). This Court reviews de novo a defendant’s constitutional due process claim. People v Schumacher, 276 Mich App 165, 176; 740 NW2d 534 (2007). However, this Court reviews unpreserved claims for plain error. People v Gibbs, 299 Mich App 473, 492; 830 NW2d 821 (2013). “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings.” Id. In Carpenter, the Michigan Supreme Court concluded that the diminished capacity defense could not be invoked by criminal defendants because it was not intended as part of the Legislature’s statutory scheme for mental illness defenses. Carpenter, 464 Mich at 236-241. The Supreme Court held the following: The Legislature has enacted a comprehensive statutory scheme setting forth the requirements for and the effects of asserting a defense based on either mental illness or mental retardation. We conclude that, in so doing, the Legislature has signified its intent not to allow evidence of a defendant’s lack of mental capacity short of legal insanity to avoid or reduce criminal responsibility by negating specific intent. Rather, the insanity defense as established by the Legislature is the sole standard for determining criminal responsibility as it relates to mental illness or retardation. [Id. at 241.] Defendant’s argument is without merit. Carpenter is binding precedent on this Court. This Court does not have the authority to overrule or reject our Supreme Court’s decision in Carpenter. People v Crockran, 292 Mich App 253, 256; 808 NW2d 499 (2011) (this Court held that only our Supreme Court has the authority to overrule its own decisions). Therefore, defendant’s due -6- process rights were not violated, and defendant was not denied her right to present a defense when she was unable to put forth the defense of diminished capacity. Affirmed. /s/ David H. Sawyer /s/ Mark T. Boonstra -7-	{ "pile_set_name": "FreeLaw" }
305 F.Supp. 650 (1969) FANNING & DOORLEY CONSTRUCTION CO., Inc., Plaintiff, v. GEIGY CHEMICAL CORPORATION d/b/a Alrose Chemical Company, Defendant and Counterclaimant. Harrison P. EDDY, Jr., and Frank A. Marston, d/b/a Metcalf & Eddy, Engineers, Defendants, v. The AMERICAN INSURANCE COMPANY, Defendant to Counterclaim. Civ. A. No. 3152. United States District Court D. Rhode Island. October 28, 1969. 651 Aram A. Arabian, Providence, R. I., for plaintiff. 652 Richard M. Borod, Edwards & Angell, for Geigy Chemical Corp., Providence, R. I. John T. Keenan, Providence, R. I., for Metcalf and Eddy. Bernard F. McSally, Providence, R. I., for American Insurance Co. OPINION PETTINE, District Judge. This is a claim for payment of a balance due under a contract for the construction of a system of underground piping with a counterclaim by the defendant owner seeking liquidated and other damages. The American Insurance Company, defendant to the counterclaim, is the surety on the plaintiff's performance bond. Findings of Fact Fanning & Doorley Construction Co., Inc. (hereinafter referred to as "Fanning & Doorley"), the plaintiff in this action, is a Rhode Island corporation engaged in the construction business. Defendant, Geigy Chemical Corporation (hereinafter referred to as "Geigy"), is a Delaware corporation with its main offices in Ardsley, New York. Geigy has a plant in Cranston, Rhode Island, called the Alrose Division, which is engaged in the manufacture of chemicals. During the year 1958, Geigy decided to have constructed a new system of underground piping at its Alrose Plant and engaged Metcalf & Eddy, a Boston, Massachusetts firm of consulting engineers as advisors. They were retained to draw plans, specifications and prepare a contract. In addition, they were to let the contract for the construction of the system and supervise its execution. As a result, they prepared the "Book", so-called, which contained, among other things, information for bidders, form of bid, contractor's bond and specifications for the work to be done. The work under this proposed contract consisted of the construction of cast-iron water piping, concrete storm drains, a vitrified clay sanitary sewer system, an industrial waste sewer system, and a booster pumping station and appurtenant work. Metcalf & Eddy, after investigation by one of its engineers, John Podger, recommended (and it was specified in the Book) that the industrial waste system be constructed of chemical stone ware bell and spigot pipe and that said pipe be joined by using a material called Causplit; a mortar produced by blending a resin and powder which is resistant to the corrosive effects of acids, alkalis and alcohols of the type that are discharged from the Alrose Plant. In July, 1959, the Book was circulated to several contractors, including Fanning & Doorley, and bids were invited using the form of proposal contained therein. In the portion of the Book entitled "Information For Bidders," prospective bidders were warned to satisfy themselves by examination as to the actual conditions and requirements of the work and that the information furnished was not guaranteed to be accurate. In addition, bidders were advised to satisfy themselves regarding the character, quantities and conditions of the various materials which would be used.[1]653 654 655 656 657 658 659 660 661 662 Fanning & Doorley, on or about July 31, 1959, submitted its bid on a unit price basis using the form set forth in the Book. In this form of bid, units and quantities of work of different kinds were estimated and a price submitted for each. Fanning & Doorley's bid on the units estimated in the Book totaled $204,147.50. The prescribed contract was executed on August 28, 1959, by the appropriate officers of Fanning & Doorley and Geigy. At the same time a "Supplemental Agreement" was also signed and made part of the Book, which provided, among other things, that Fanning & Doorley would be paid on the basis of its cost plus 15%, but that the total amount payable would not exceed the total amount computed by using the prices stipulated in the proposal. In other words, this was a cost plus contract with a top or upset limit. Also, on August 28, 1959, a performance bond was executed by Fanning & Doorley, as principal, and The American Insurance Company, as surety, the latter being a defendant to Geigy's counterclaim in this action. Following the signing of the contract, the work was scheduled to commence on September 21, 1959 and be completed by 663 February 24, 1960, the end of the 180-day specified contract period. The specifications for the chemical stoneware pipe provided in pertinent part as follows: "Except as hereinafter specified, the pipe shall be jointed with asbestos-rope calking and Causplit Mortar made by Pennsalt Chemicals Corp., Philadelphia, Pa. The Contractor's attention is directed to the fact that Causplit is a phenol-formaldehyde type resin and that some persons are allergic to such materials. Causplit shall at all times be handled and joints shall be made in accordance with the recommendations of the manufacturer and extreme care shall be taken in its use to avoid any possible damage. "Expansion joints shall be made, as indicated on the drawings, with asbestos-rope calking and a plasticized epoxy similar to Coroline E manufactured by the Ceilcote Co., Cleveland, Ohio. "After the pipe has been laid and jointed but before the concrete cradle is placed, all areas of the pipe that would otherwise be in contact with the concrete shall be covered with a bituminous impregnated felt to ensure that no bond will exist between the pipe and the cradle." (See fn. 1Sec. 16.4) In addition, there was a provision that the sewers and manholes had to meet certain leakage test requirements and that: "Portions of sewers which fail to meet tests shall be repaired and retested as necessary without additional compensation until test requirements are met." (See fn. 1Sec. 15.8) The supervision of the execution of the contract was vested in the Engineer (Metcalf & Eddy), and it provided in Article III that the Engineer would in all cases determine the amount, quality, acceptability, and fitness of the work, and further that in the event that a determination or decision of the Engineer was questioned by the Contractor, the decision of the Engineer would be a condition precedent to the Contractor's right to receive any money for the work to which the question or difference in opinion related. Article II provided that the Contractor would do all the work and everything necessary for performance and completion as required by the contract in the manner and within the time specified, and that the entire work be completed to the satisfaction of the Engineer. In Article XXIV it was further provided: "If the work or any part thereof shall be found defective at any time before the final acceptance of the whole work, the Contractor shall forthwith make good such defect in a manner satisfactory to the Engineer * " Fanning & Doorley started work under the contract in the latter part of September, 1959. During the time that followed, Metcalf & Eddy, on the authority of Geigy, issued twelve (12) written supplemental agreements, so-called, which provided in some cases for extra work or a redesign of work, and in other cases for a deletion of work. The defendant contends that the major item not completed by July 1960 was the chemical stoneware system and argued this item was crucial and it was apparent that Fanning & Doorley did not complete and was not going to complete this requirement. (On post trial arguments, counsel for defendant did not deem it significant to consider manhole leakage. As a consequence, this court will not concern itself with the leakage failures of the same). Fanning & Doorley commenced laying the chemical stoneware pipe and making Causplit joints on or about December 1, 1959. Although it had no prior experience in this particular kind of work and did not make contact with the manufacturer, nor make at the outset a test joint to determine the performance of the material, it did seek guidance from the defendant and was informed by it that the work would be under the direction of the resident engineer of Metcalf & Eddy. When the first joint was made, it was done under the supervision and direction of John Elwood, said resident engineer who mixed the material and either assisted or troweled it into the joint. Mr. Elwood testified that thereafter the recommendations 664 and orders or suggested changes of the manufacturer were carried out at all times by the plaintiff; that the joints were made under his supervision with weekly reports being sent to Mr. Podger. It is significant to note he also stated that the backfilling of the trenches in which the pipe was laid was at either his direction or that of his superiors, Mr. Podger or Mr. Aubin, the plant manager, or a combination of them. All joints made up to March 23, 1960, a significant date as will hereinafter be noted, failed to pass leakage tests. The daily history of the use of Causplit mortar as testified to by Mr. John Elwood and as reflected in the exhibits logging each day's activities, develops a series of trial and error methods showing a lack of the required specific knowledge as to its proper use procedures and application on the part of the defendant's engineers and the manufacturer of Causplit. It would be inappropriate for this court to detail over three thousand pages of testimony in support of each of its findings. However, certain significant points should be noted. Starting in December of 1959, Fanning & Doorley followed the directions and recommendations made to them as to the application of Causplit mortar. All that they did was supervised and documented by the defendant's own resident engineer who, as leakages occurred in the various joints and difficulties were encountered, directed new and different procedures. Part of this recorded history shows the following various changing procedures directed to the plaintiff and carried out by it: on December 1, 1959 simple troweling was employed; December 18, 1959 because of the water condition, the drying of pipes and application of heat was directed by the defendant; December 21, 1959the cradling of pipe with concrete, coating it with asphalt and piping of heat was directed by the defendantthis was further modified to some degree on December 22; December 31, 1959the manufacturer replaced the Causplit mortar with one having a faster setting ingredient and recommended the use of space heaters; January 13, 1960a representative of the manufacturer suggested more powder be added to the mix to increase the setting time and that sulphur cement be poured around the Causplitit was understood that this would eliminate the need of pumping out the wet trenches and the application of heat to the pipes to cure the mortar; January 25, 1960the plaintiff received the reprocessed mortar and started applying it; February 1, 1960to overcome difficulty keeping the mortar in the joints, the manufacturer suggested placing dry ice under the mortar pan; February 2, 1960a representative of Pennsalt, the manufacturer, again called at the job site and directed the making of a sample jointin doing so, he found that the mortar wasn't workable, it slumped out of the joint whereupon the defendant again changed the procedures. This time it was as to the calking, following which the mortar seemed to work; February 26, 1960a representative of Pennsalt again came to the job site and tested the joint made under their direction and supervision and found the leakage exceeded their specification requirements. In March, 1960, the very joint made by the manufacturer had an even greater percentage of leakage. On the 10th of this same month, Metcalf & Eddy, through John Podger, the project engineer, instructed Fanning & Doorley to stop laying the chemical stoneware sewer and had Mr. Douglas Woolley, a factory representative of Pennsalt, come to the job site. Employing new techniques, he finally devised a procedure for making leak-free joints. Part of this new technique was the use of different calking material. It was at this point that a successful method of making leakproof joints was first devised and demonstrated to Fanning & Doorley. It must be noted, however, that even this joint made under Mr. Woolley's supervision had void spaces in the top part and as Mr. Elwood testified, this indicated the leakage was being prevented by the asbestos rope which had to be purchased from specified 665 manufacturers other than Pennsaltthat is, a new material for calking not heretofore specified for Fanning & Doorley. In connection with this testimony, the court must look to the contract for the original specifications set forth therein and the contract obligation of the plaintiff. Section 16.4 (quoted in fn. 1) is written in positive terms with absolute requirement that asbestos rope calking and Causplit mortar made by Pennsalt be used in making chemical stoneware pipe joints. This is different from the specification requirements for every other type of joint where a degree of discretion is permitted. It must be noted that this section also has the mandatory provision that the joints " * * shall be made in accordance with the recommendations of the manufacturer * " (italics added). It can hardly be said that the plaintiff should be held responsible for leaking joints caused by the use of Causplit mortar as recommended by the manufacturer. The defendant argues that the plaintiff's work was defective in that, among other things, certain pipes were cracked, void spaces were found in the mortar of many joints, improper calking and fitting of the pipes. This is not acceptable as proof of poor workmanship or as a contributing cause of the leakage. The testimony shows that the cracks may well have been caused by a backhoe which was equipment used by the defendant in excavating the ground to expose the pipes for inspection or improper grades as set by the defendant's engineer and as to the void spaces, the manufacturer itself could not prevent this as evidenced by the very joint it made. The defendant introduced oral testimony of a calking iron being found in a joint of a 12-inch line. It seems strange that this evidence, documented by photographs to show poor workmanship, did not reveal to the satisfaction of this court any such tool. In short, evidence of poor workmanship in the laying of pipes up to March is not convincing. I find it difficult to attribute the quality of the work as to void spaces and lack of calking to Fanning & Doorleythese very faults were proven to be attributable to the inherent failure of the materials and procedures imposed on the plaintiff. Nor can this court attach any significance to the defendant's assertion that the plaintiff prematurely backfilled the trenches after the pipes had been jointed and permitted their use for disposal of chemical waste. The short answer to this is that the order to do so was solely in the defendant's engineer and the owner to the exclusion of the contractor. This court finds that: A) all joints made up to March, when Mr. Woolley finally devised the procedure for making a leakproof joint, were made by the contractor following the specifications and in strict accordance with the directions and orders and recommendations of the engineer and the manufacturer; B) that up to March, 1960 it was not possible to make a tight joint following the procedures and directions theretofore specified; C) that the specifications required the contractor to do work in a manner and to a degree which could not produce the desired result as originally written insofar as the chemical stoneware system for the disposal of industrial wastes was concerned. The specification requirements and all specific directions, recommendations and orders prior to March 23, 1960 were defective, inadequate and faulty. It must now be determined whether or not all pipes laid after this date in March were satisfactory and passed the tests. From March 23, 1960 on, Fanning & Doorley laid a total of 318 feet being 163 feet of 15-inch pipe from the point designated 15 to 16; 61 feet of 6-inch and 8-inch pipe from 16 in location of building 16 and to building 2; 44 feet of 10-inch pipe from 15 to 19; and 50 feet of all other pipe in and about the 19 area of buildings 5 and 8. On June 22, 1960, Metcalf & Eddy forwarded a so-called "Punch List" to Fanning & Doorley. This was a letter 666 setting forth by number, eleven items to be completed by the plaintiff, one of which (No. 11) asked that the plaintiff, "repair and re-test" unacceptable sewers. The other ten items are not significant as they were either completed or in the process. The plaintiff did not comply. The Fanning & Doorley contract was terminated by Geigy as will be discussed hereinafter. Following this termination, Geigy contracted with Capaldi Bros. Corporation on July 29, 1960 to complete the work. The testimony as developed by the defendant during the trial showed that Capaldi determined that the repair process would be very time consuming and uneconomical. A comparison of costs to repair the chemical stoneware or to remove and replace the same was made and it was concluded that it would be less costly to replace the entire defective lines. Pursuant to this determination after testing, pipes were replaced with minor exceptions, as follows: All of the 24-inch pipe from the outfall to manhole 11 with the exception of one length of pipe; all of the 24-inch from 11 to 12 with the exception of one length of pipe; all of the 12-inch from 12 to 13 except for the pipe chimney east of building 11; all of the 12-inch from 13 to the still; all of the 8-inch from 13 to 14 and that portion of the 6-inch from a point north of 13 to the tank form. The court has detailed the exact pipe replaced to determine if any was of the lines laid after March 23. The answer as found in the record is that all pipes laid after this March date were not touched and so it must be concluded they were satisfactory and accepted as such by the defendant. This the court finds as a fact. Termination of Fanning & Doorley by Geigy The last work by Fanning & Doorley on the chemical stoneware sewers was on June 8, 1960. On July 5, 1960, Metcalf & Eddy wrote to the plaintiff asking for assurance of satisfactory progress by July 8, 1960. No answer was received and on the following Monday, July 11, 1960, Mr. Podger phoned the plaintiff and was informed it was not going to do any further work on the industrial waste lines. By letter of July 12, 1960, pursuant to Article XXXIII of the contract, Geigy notified the plaintiff to discontinue work and thereby terminated the contract. In spite of the contract provisions requiring that portions of the sewers which fail to meet test requirements shall be repaired and re-tested as necessary without additional compensation until test requirements were met (Sec. 15.8 see fn. 1) the plaintiff disclaimed all responsibility for the industrial waste sewers because Causplit mortar was not a proper material and because of the impossibility of making tight joints with the same. At the time of termination of the contract, there remained to be completed the following items: Item 16Fence$29.06 Item 17Mud Valve Stems$200.00 Item 19B.P.S. 5%$775.00[2] Damages It is the opinion of this court and it so finds, that the 180-day period specified in the contract was waived by the parties and the delays, if any, cannot be attributed to the plaintiff. The very factual aspects of the case pointing up the legion of problems encountered with the resultant conduct of the parties speaks for itself. Premised on the findings of fact made by this court, it must be and it is concluded that the plaintiff substantially performed its contract. The conclusions of law hereinafter detailed entitles Fanning 667 & Doorley Construction Co., Inc. to recover thereunder. A computation of damages first requires a determination of an opening figure, that is, the contract upset price. The defendant contends and the court so finds that the upset limit of the contract was in the amount of $204,147.50. The court will now make a legal determination and factual analysis of items claimed by Fanning & Doorley as proven charges for excess lumber amounting to $10,845.00 and excess gravel in the sum of $3,450.00; excess cost breakdown of $65,707.15 and research and development costs of $4,405.95. Excess LumberExcess Gravel The plaintiff rests squarely on Exhibits 86 and F in support of its position that the amounts reflected in its invoices show an overrun and are, therefore, proper additional charges to support its claim for additional lumber and gravel. The evidence sets forth a purchase of 61,728 feet as against 7,500 feet included in the contract upset limit of $204,147.50. The plaintiff's position as to excess gravel is similarly founded in purchases of 790 cubic yards as against the contract terms providing for 100 cubic yards. The defendant disputes this not by challenging the plaintiff's exhibit but rather by relying on specific provisions of the contract. Attention must be focused on Section 27.24 of the contract which reads in part as follows: "Item 24Lumber Left in Place. If lumber is left in pace (sic, should read "place") by written order of the Engineer as specified under EARTH EXCAVATION AND BACKFILL, AND GRADING or indicated on the drawings the Contractor shall be paid therefor under Item 23 (sic, should read "24"). "The lumber to be measured for payment under Item 23 (sic, should read "24") shall be ONLY that left in place as above specified. "No measurement shall be made for lumber used for sheeting, bracing, and cofferdamming which shall be removed from the excavations, or lumber which shall be left in place at the option of the Contractor; it being understood and agreed that compensation for all such lumber, and for the cost of furnishing, placing, cutting, and removal thereof, is included in the prices to be paid for the items of earth and rock excavation." (Pl.Ex. 1, p. B38-SD-112) Section 27.6 of the contract reads: "Item 5Screened-Gravel Backfill. The quantity of screened-gravel backfill to be measured for payment under Item 5 shall be the same as the number of cubic yards of authorized excavation below normal grade which said gravel replaces, or the actual quantity of gravel, measured in place, furnished and placed for miscellaneous purposes as directed by the Engineer * * "Screened gravel used in connection with underdrains, for bedding pipe, or to backfill unauthorized excavations shall not be measured for payment." (Pl.Ex.1, p. B38-SD-104) Specificationssections 27.10 and 27.12 also provide that the unit prices for the items therein referred to shall be full compensation for furnishing and placing screened gravel cradle, among other things. (Pl.Ex. 1, pp. B38-SD-106, 107) Thus the screened gravel which is properly to be measured for payment under Item 5, is only that gravel used in specified cases. Screened gravel was obviously used in other instances where it would not be measured for payment under Item No. 5. In those instances, it would be paid for under the other items involved. Item No. 5 provided for payment for screened gravel used for miscellaneous purposes as directed by the Engineer. In addition, the screened gravel purchased by Fanning & Doorley as allegedly reflected on the invoices of plaintiff's Exhibit 86 could have been used for other purposes at the option 668 of the contractor, which uses would not be covered by Item No. 5. Item numbers of Exhibit F correspond with item numbers on the proposal. It is evident the quantity of lumber specified in Item 24 of Exhibit F would not be identical to the total amount of lumber purchased by Fanning & Doorley and the plaintiff's claim for an additional overrun of lumber is not founded in the evidence. It is also apparent the amount of screened gravel purchased by the defendant would not be identical to the amount indicated in Item No. 5 of Exhibit F. Proof as to this claim is also lacking in the evidence. The calculations on Exhibit F as to the amount Fanning & Doorley was entitled to under the contract must be accepted as accurate in the absence of proof to the contrary. The claim of the plaintiff as to these items in the amount of $14,295.00 is rejected. Excess Cost Breakdown and Research and Development The plaintiff seeks the additional sum of $65,707.15 as excess costs breakdown and $4,405.95 for research and development. These sums are for 25 items listed in plaintiff's answer to interrogatories. All, excepting $1,669.27, were included in the monthly invoices submitted for this job. The defendant contends this addition is improper as a matter of law, fact and also for lack of proper proof. As to the $65,707.15 claim, there is little merit to such fact and proof contention. In the trial of this issue before the court, the evidence was permitted as an offer of proof which was accepted as to the interrogatories and attached exhibits. All matter presented in said offer of proof was accepted as full evidence "without any conditions attached thereto."[3] This was so ruled after a lengthy and detailed discussion by the court. It pointed out the law which ruled admissibility and it further recalled the substantial testimony of various witnesses and opportunity for full examination already in the record as it pertained to these 25 items in the interrogatories. The proof is substantial and if any basis does exist for the rejection of this claim, it must be as a matter of law. True, the evidence clearly shows the express terms of the contract were not complied with.[4] Mr. Keane knew of its provisions requiring an order in writing. However, discussions were had between him and Mr. Elwood as to each extra item of work as it arose. Now, it is also true that though invoices were submitted by the plaintiff, they were not done as costs for extra work. However, it is unmistakable that Mr. Elwood was well aware of the extra workhe directed that it be done. Furthermore, it cannot be disregarded that a meeting was held on May 3, 1960 between the plaintiff and representatives of the defendant. A wide range of discussion took place there including the extra work and its costs. It was then decided the plaintiff would prepare a statement showing the samethis was done though there is no evidence it was in fact submitted. There is an acknowledgment of such May 3 agreement in correspondence from Mr. Podger, the defendant's project engineer, dated June 9, 1960 and introduced as part of the plaintiff's evidence (Exhibit 70). The pertinent contract provisions were waived (as will be discussed hereinafter under Conclusions of Law) and as a 669 matter of law, the plaintiff is entitled to recovery of this amount. As to the item claimed by the plaintiff in the amount of $4,405.95 for research and development there is no record in the evidence to substantiate this other than a blanket statement by Mr. Keane. This is rejected for lack of sufficient proof. The end result of the evidence shows: Contract Upset Price ............................$204,147.50 Deletions[5] ............................... 12,015.00 _____________ Upset limit ...........$192,132.50 Charges for Supplemental Work (not denied) ............................... 20,826.03 _____________ $212,958.53 Inventory Items[6] ........................... 4,054.16 _____________ $217,012.69 Excess Costs .................................... 65,707.15 _____________ $282,719.84 Payments Made ................................... 178,301.47 _____________ $104,418.37 Unfinished Work (undisputed) .................... 1,004.06 ============= Balance due .........$103,414.31 In addition, the plaintiff seeks nine years interest at 6% per annum to July 31, 1969. To award such an amount would be an unjust levy against the defendant. This court must take cognizance of the fact that the delay in the disposition of the instant matter was due to an overcrowded calendar at a time when there was a single judge assigned to this court faced with an impossible work load. Nor can this court ignore the fact that the delay in rendering 670 this opinion was due to the mutual desire of counsel to have a transcript of the proceedings which ended on February 9, 1967. The plaintiff was equally as anxious as the defendant for such record. A chain of circumstances then followed, namely, continued court presence for trials, which made it virtually impossible to complete this voluminous transcript before December 12, 1968. From and after this date, there was a further delay for briefs from respective counsel. Interest as an element of damages is not a matter of right to be applied through an arbitrary rule at the expense of justice. This must be determined in the light of the facts surrounding the case. Where the judgment is long delayed because of facts beyond the control of the defendant or through mutual agreement of the parties, it can only be determined by the court in the exercise of its sound discretion.[7] In view of all the facts and circumstances, it is the opinion of this court that an award of interest against the defendant should cover only that period of time from the commencement of this action on July 22, 1963 to February 9, 1967, the date of termination of the trial. Anything more would be an injustice. The rate of interest is to be computed at 6% per annum. Conclusions of Law Waiver by the Defendant of the Contract Provisions Relative to Fanning & Doorley Claims for Extra Work and for Delays and Unforeseen Difficulties In Clark v. West, 193 N.Y. 349, 86 N.E. 1 at p. 5, the court said: "The cases which present the most familiar phases of the doctrine of waiver are those which have arisen out of litigation over insurance policies * , but it is a doctrine of general application which is confined to no particular class of cases. A waiver has been defined to be an intentional relinquishment of a known right. * * and this definition is supported by many cases in this and other states. In the recent case of Draper v. Oswego Co. Fire R. Ass'n, 190 N.Y. 12, 16, 82 N.E. 755, Chief Judge Cullen, in speaking for the court upon this subject, said: `While that doctrine and the doctrine of equitable estoppel are often confused in insurance litigation, there is a clear distinction between the two. A `waiver' is the voluntary abandonment or relinquishment by a party of some right or advantage. * * * The doctrine of equitable estoppel, or estoppel in pais, is that a party may be precluded by his acts and conduct from asserting a right to the detriment of another party who, entitled to rely on such conduct, has acted upon it.'" (italics added) In considering this question in United States of America for the use of David L. Brewer v. Acme Missiles & Construction Corporation and Continental Casualty Company (C.A. No. 3335), this court said: "Waiver is a tortuous area of the law used in direct relation to the facts at issue. It can be said, `the most frequent, common and generally accepted definition is that waiver is the intentional relinquishment of a known right, or the voluntary relinquishment of a known right or conduct such as warrants an inference of the relinquishment of a known right; it involves the voluntary relinquishment of some known right which is at the time available.' "It requires a waiving and receiving party of a right intended to so operate by each of them."[8] 671 In this case, both the terms of the contract and the conduct of the parties in relation thereto must be considered in coming to an ultimate determination of this question. The defendant rests primarily on Article XXIX providing that extra work, to be paid for, must be specifically ordered in writing by the engineer and Article III providing for a written protest by the contractor to preclude a waiver of the claim. However specific the terms of these provisions may be, case law has established they can be dispensed with in various ways.[9] There was continued performance of the work with the full knowledge and at the direction of the defendant through its resident engineer. As stated in the findings of fact, discussions were had between Mr. Keane and Mr. Elwood as to this very point. The plaintiff was ordered to continue and each month it was invoiced and billed. Mr. Elwood, the defendant's engineer, directed this work and at a meeting between the plaintiff and the defendant's representatives where, among other things, extra work and costs were discussed, the defendant did not rest on the contract provisions but rather acknowledged the fact of its accomplishment. This is evidenced in its request that a statement be prepared showing the same. In other words, it was a question of proof as to what was done to establish a basis for payment and not a denial of liability. Conduct of a contractee clearly evidencing an acceptance of extra work by a contractor coupled with an inference of payment is a clear waiver of express contract provisions to the contrary. It can even be said that the plaintiff may well invoke the doctrine of equitable estoppel for the evidence sustains this position. The plaintiff has shown that the defendant conducted itself in a particular mannerdirecting that the extra work be doneand now attempts to assume a position inconsistent with such conduct, thus prejudicing the plaintiff who acted in reliance on the defendant's original position. The magnitude of the amount involved emphasizes the strength of the plaintiff's position. Performance of the Contract by Fanning & Doorley As has been stated by the court, the detailed specifications of the contract required in specific and mandatory language that Causplit mortar be used in order to join sections of the sewerage piping. Furthermore, recommendations of the manufacturer both oral and written as to the correctness of the method of application of Causplit were required to be followed. And, day-to-day technique for the application of Causplit was supervised in large part by the defendant's engineers, as also outlined in the contract. The court has found that all the contract requirements for application of Causplit, as well as all the manufacturer's recommendations for the application of Causplit were sought to be followed and were in fact followed by the plaintiff. Moreover, there has been no showing of defective workmanship on the part of the plaintiff and no warranty of the plans and specifications has been made by the plaintiff. The primary source of the law in the area of consensual relationships is the agreement of the parties. If that agreement unambiguously applies to the particular problem to be decided, then the court need look no further. The defendant in the instant case argues that the contract language required plaintiff to complete the sewerage system work to meet the leakage requirements of the contract regardless of the defects of the plans and specifications. However, that general rule of contract interpretation by which specific language 672 controls its general counterpart operates against the defendant. As the Supreme Court has made clear, the specific language of a construction contract, which sets out methods and materials to be used by a contractor is not controlled by "* * * the usual clauses requiring builders to visit the site, to check the plans, and to inform themselves of the requirements of the work." Nor is specific language "* * * overcome by the general clauses requiring the contractor to * * * assume responsibility for the work until completion and acceptance.[10] Given the imprecision of the language of the contract, the issue is one of law. To borrow from a more eloquent source: "If we view the law of contract as directed to strengthening the security of transactions by enabling men to rely more fully on promises, we see only one phase of its actual workings. The other phase is the determination of the rights of the contracting parties as to contingencies that they have not foreseen, and for which they have not provided. In this latter respect the law of contract is a way of enforcing some kind of distributive justice within the legal system * * * the essential problem of the law of contract is the problem of distribution of risks."[11] The issue, then, is one of distribution of the financial risks created by the failure of Causplit mortar to effectuate its purpose when applied substantially in accordance with the contract plans and specifications, the manufacturer's recommendations, and the engineer's suggestions. For several reasons, this court places that risk, in this controversy between contractor and owner, on the owner. First, the plans and specifications were mandatory as to Causplit and did not permit any substitution of equivalents as they did in the case of other materials used. Hence, to have deviated from the Causplit requirements would have opened the plaintiff up to a breach of the specifications. Second, the contract was drawn by the owner who controlled its language and who impliedly warranted Causplit's fitness for this purpose by requiring it to be used. Third, it would appear to be the majority rule that "* * * a construction contractor who has followed plans or specifications furnished by the contractee, his architect or engineer, and which have proved to be defective or insufficient, will not be responsible to the contractee for loss or damage which results, at least after the work is completed, solely from the defective or insufficient plans or specifications, in the absence of any negligence on the contractor's part, or any express warranty by him as to their being sufficient or free from defects."[12] Fourth, in the absence of controlling authority in this jurisdiction, the court is strongly persuaded by a decision of the United States Supreme Court in extremely analogous circumstances. In United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918), the Court held that the requirement, in a contract for the building of a drydock, that the contractor should relocate a sewer which ran through the construction area, in accordance with plans and specifications furnished by the government, which prescribed the shape, material, and location of the sewer section to be substituted, carried with it a warranty that the sewer would be adequate. The Court concluded that a contractor who is obliged to build according to plans and specifications prepared 673 by the owner is not responsible for the consequences of defects in those plans and specifications.[13] Fifth and finally, this distribution of the risk comports with the general usage of the construction industry.[14] The effect of such a rule of law on the claims in the instant case is clear; it operates as an excuse for the plaintiff's failure to repair the leaking joints and therefore mandates the conclusion that the plaintiff did, indeed, substantially perform its obligations under the contract and is therefore entitled to payment; further, it provides a full and complete defense to defendant's counterclaim of abandonment and delay. Apart from certain trivia, the only work not done by plaintiff as of the date it left the job was the leakage repair work from which it was legally excused. Additionally, virtually all the delay on the job is attributable to the trial and error adjustment that was necessitated by the Causplit problem. In sum, the rule of law previously articulated constitutes the basis for both the plaintiff's claim for payment and its defense to the counterclaims of delay and abandonment. The counterclaim of the defendant, Geigy Chemical Corporation, for the reasons stated in this opinion is hereby denied and The American Insurance Company is hereby relieved from all liability as defendant to said counterclaim. It is hereby ordered that judgment be entered for the plaintiff in the sum of $103,414.31 plus interest for that period of time and at the interest rate hereinbefore specified.[15] NOTES [1] Pertinent Provisions of the Contract Plaintiff's Exhibit 1, known as "the Book" contains Information for Bidders, Form for Proposal and Bid Bond, Contract Agreement and Bond, and Specifications, both General and Detail. The Contract was executed on August 28, 1959. Article VI of the Contract provides that "The Information for Bidders, all Addenda, the Proposal submitted by the Contractor, the Specifications, and the the contract drawings are made parts of this contract." [Pl.Ex. 1, p. B38-C-6] The referred-to contract drawings consist of ten sheets of detailed plans and drawings. [Pl.Ex. 2] Information for Bidders contains the following pertinent provisions: "The Contractor agrees to use the products and methods designated or described in the specifications as amended by the Addenda. "Other Contracts "The attention of bidders is directed to the fact that at the time the work to be done under this contract is being performed there may be other construction work in progress on the property of the owner. "It is essential that all parties interested in the work being done for the Owner cooperate to the end that all of the work will be brought to a successful conclusion as rapidly as possible, but the Owner cannot guarantee that no interference or delay will be caused thereby. Interference and delay resulting from such cooperation shall not be the basis of claims against the Owner. "Bidders to Investigate "Bidders are required to submit their Proposals upon the following express conditions which shall apply to and become part of every bid received, viz.: "Bidders must satisfy themselves by personal examination of the location of the proposed work and by such other means as they may wish, as to the actual conditions and requirements of the work and the accuracy of the estimated quantities stated in the Proposal." [Pl.Ex. 1, pp. B38-I-2, 3] "Information Not Guaranteed "All information given on the drawings or in the contract documents relating to borings, materials encountered, groundwater, subsurface conditions, and existing pipes and other structures is from the best sources at present available to the Owner. All such information and the drawings of existing construction are furnished only for the information and convenience of bidders. "It is agreed and understood that the Owner does not warrant or guarantee that the materials, conditions, and pipes or other structures encountered during construction will be the same as those indicated by the boring samples or by the information given on the drawings or in the contract documents. The bidder must satisfy himself regarding the character, quantities, and conditions of the various materials and the work to be done. "It further is agreed and understood that the bidder or the Contractor will not use any of the information made available to him or obtained in any examination made by him in any manner as a basis or ground of claim or demand of any nature, against the Owner or the Engineer, arising from or by reason of any variance which may exist between the information offered and the actual materials or structures encountered during the construction work, except as may otherwise be provided for in the contract documents." [Pl.Ex. 1, p. B38-I-4] "Time for Completion "The Contractor will be required to complete the work within 180 consecutive calendar days after the date of the formal execution of the Contract Agreement. "Liquidated Damages "Liquidated damages, as set forth in the Contract Agreement attached hereto, will be assessed for each calendar day, Sundays and legal holidays excluded, of delay in the completion of the work not excusable as provided in the contract documents." [Pl.Ex. 1, p. B38-I-5] "Attention Directed "The attention of bidders is directed to the provisions of the Contract Agreement, General Specifications, and other parts of the documents relative to: "Compliance with laws Special precautions in the use of certain materials Special requirements and conditions Labor conditions Sequence of operations Handling industrial wastes, as described in EARTH EXCAVATION BACKFILL, AND GRADING under Drainage. Equipment furnished by Owner Work to be done by others" [Pl.Ex. 1, p. B38-I-8] The Proposal contains the following provisions: "The undersigned, as bidder, herein referred to as singular and masculine, declares as follows: * * * * "(4) he has examined carefully the location of the proposed work, the annexed proposed Contract Agreement, and the drawings and specifications therein referred to; "(5) he understands that information relative to existing structures, apparent and latent conditions, and natural phenomena, as furnished to him on the drawings, in the contract documents, or by the Owner or the Engineer, carries no guarantee expressed or implied, as to its completeness or accuracy, and he has made due allowance therefor; "(6) and he understands that the quantities of work tabulated in this Proposal or indicated on the drawings or in the specifications are only approximate and are subject to increase or decrease as deemed necessary by the Engineer; "and he proposes and agrees that, if this Proposal is accepted, he will contract with the Owner, in accordance with the copy of the contract documents deposited in the office of the Engineer, this Proposal form being part of and included in a copy of said documents, to provide all necessary machinery, tools, apparatus, and other means of construction and to do all the work and furnish all the materials specified in this contract in the manner and time therein prescribed and according to the requirements of the Engineer as therein set forth and that he will take in full payment for each item of work thereof the unit or lump-sum price aplicable to that item as stated in the schedule below." [Pl.Ex. 1, p. B38-P-1] "The undersigned agrees that for extra work, if any, performed in accordance with the annexed form of Contract Agreement, he will accept compensation as stipulated therein. "If this Proposal is accepted by the Owner, the undersigned agrees to complete the entire work proposed under the contract within 180 consecutive calendar days after the date of the formal execution of the Contract Agreement, except as otherwise provided therein. "For informal comparison only and not to be considered as part of this Proposal, the total price for Items 1 to 25 inclusive, derived as described in the Information for Bidders under the heading `Comparison of Bids,' is Two Hundred Four Thousand, One Hundred Forty-seven dollars and Fifty cents $204,147.50)". [Pl.Ex. 1, p. B38-P-14] The Contract Agreement contains the following provisions: "Art. II. The Contractor shall do all the work and furnish all the materials, tools, and appliances, except as otherwise specified herein, and everything necessary or proper for performing and completing the work required by this contract, in the manner and within the time hereinafter specified. The Contractor shall complete the entire work to the satisfaction of the Engineer, in accordance with the specifications and drawings herein mentioned, and at the prices herein agreed upon and therefor fixed. All the work, labor, and materials to be done and furnished under this contract shall be done and furnished strictly pursuant to and in conformity with the attached specifications and the directions of the Engineer as given from time to time during the progress of the work under the terms of this contract and also in accordance with the contract drawings. "The Contractor shall coordinate his operations with those of any other contractors who may be employed on other work of the Owner, shall avoid interference therewith, and shall cooperate in the arrangements for storage of materials. "The Contractor shall conduct his work so as to interfere as little as possible with private business and public travel. Wherever necessary or required, and at his own expense, he shall maintain fences, furnish watchmen, maintain lights, and take such other precautions as may be necessary to protect life and property. "The Contractor shall take all responsibility for the work done under this contract, for the protection of the work, and for preventing injuries to persons and damage to property and utilities on or about the work. He shall in no way be relieved of his responsibility by any right of the Engineer to give permission or issue orders relating to any part of the work, by any such permission given or orders issued, or by failure of the Engineer to give such permission or issue such order. The Contractor shall bear all losses resulting to him or to the Owner on account of the quantity or character of the work, because of the nature of the land in or on which the work is done is different from what was estimated or expected, or on account of the weather, elements, or other causes. The Contractor shall assume the defense of all claims of whatsoever character against the Contractor or the Owner and indemnify and save harmless the Owner, its officers, or agents against all claims for injury or damage to persons, corporations, or property arising out of the work done under this contract whether said claims arise out of negligence or not, or whether said claims are groundless, false, or fraudulent or not, and from all claims relating to labor and materials furnished for the work. The Contractor shall not be required to indemnify the Owner against damage or claims occasioned solely by acts or omissions of the Owner other than supervisory acts or omissions of the Owner in connection with the work performed by the Contractor for the Owner, except as otherwise provided in the article relative to patents. "The Contractor shall conduct his operations so as not to damage existing structures or work installed either by him or by other contractors. In case of any such damage resulting from his own operations, he shall repair and make good as new the damaged portions at his own expense with the consent of the damaged party. In the event that consent is not given, the Contractor shall not be relieved thereby of liability for the damage caused." [Pl.Ex. 1, pp. B38-C-3, 4] "Art. III. The supervision of the execution of this contract is vested in the Engineer, and his instructions shall be carried into effect promptly and efficiently. "The Engineer shall in all cases determine the amount, quality, acceptability, and fitness of the several kinds of work and materials which are to be paid for under this contract, shall determine all questions in relation to said work and the construction thereof, and in all cases shall decide every question of fact which may arise relative to the fulfillment of this contract. In the event that a determination or decision of the Engineer is questioned by the Contractor, the decision of the Engineer shall be a condition precedent to the Contractor's right to receive any money for the work or materials to which the question or difference in opinion relates. "If the Contractor considers any work demanded of him to be outside the requirements of the Contract or if he considers any decision or determination of the Engineer to be unfair, he shall immediately, upon such work being demanded or such decision or determination being made, ask for written instructions, decision, or determination. Such instructions, decision, or determination shall be given by the Engineer, in writing, within two days after the request therefor. Upon receipt of such written instruction, decision, or determination, the Contractor shall proceed without delay to perform the work or conform to the instructions, decision, or determination. Within 10 days after receipt of the written instructions, decision, or determination, the Contractor may file a written protest with the Owner stating clearly and in detail his objections, the reasons therefor, and the nature and amount of damages which the Engineer's decision will cause him. A copy of such protest shall be filed with the Engineer at the same time as it is filed with the Owner. Unless the Contractor shall file such written protest with the Owner within such 10-day period, he shall be deemed to have waived all grounds for such protest and such damages and to have accepted the instruction, decision, or determination of the Engineer as just and reasonable and as being within the scope of the Contractor's obligations under the contract." [Pl.Ex. 1, p. B38-C-5] "Art. IV. The Engineer shall make all necessary explanations as to the meaning and intention of the drawings and specifications and shall give all necessary orders and directions. "The order or sequence of execution of the work and the general conduct of the work shall be subject to the approval of the Engineer who shall have authority to direct the order or sequence where public necessity or welfare shall require, which approval or direction shall, however, in no way affect the responsibility of the Contractor in the conduct of the work." [Pl.Ex. 1, B38-C-5, 6] "Art. V. The Contractor shall give the work the constant attention necessary to facilitate the progress thereof and shall cooperate with the Engineer in every possible way. "At all times, the Contractor shall have as his agent on the work a competent superintendent capable of reading and thoroughly understanding the drawings and specifications. The superintendent on the work shall have full authority to execute the orders or the directions of the Engineer without delay and to supply promptly such materials, equipment, tools, labor, and incidentals as may be required. "Whenever the Contractor is not present on any part of the work where it may be desired to give directions, orders may be given by the Engineer and shall be received and obeyed by the superintendent or foreman who may have charge of the particular work in reference to which orders are given." [Pl.Ex. 1, p. B38-C-6] "Art. VII. The drawings and specifications are intended to be explanatory of each other, but, should any discrepancy appear or any misunderstanding arise as to the import of anything contained in either, the interpretation and decision of the Engineer shall be final and binding on both parties to this contract. "Any correction of errors or omissions in drawings and specifications may be made by the Engineer when such correction is necessary for the proper fulfillment of their intention as construed by him. Where said correction of errors or omissions, except as provided in the next two paragraphs below, adds to the amount of work to be done by the Contractor, compensation for said additional work shall be made under the item for Extra Work except where the additional work may be classed under some item of work for which a unit price is included in the Proposal. "The fact that specific mention of a fixture or of any part of the work is omitted in the specifications, whether intentionally or otherwise, when the same is clearly indicated on the drawings, or is usually and customarily required to complete fully such work as is specified herein, will not entitle the Contractor to consideration in the matter of any claim for extra compensation, but the said fixtures or work or both shall be installed or done the same as if called for both by the drawings and by the specifications. "All work indicated on the drawings and not mentioned in the specifications, or vice versa, and all work and material usual and necessary to make the work complete in all its parts, whether or not they are indicated on the drawings or mentioned in the specifications, shall be furnished and executed the same as if they were called for both by the drawings and by the specifications." [Pl.Ex. 1, pp. B38-C-6, 7] "Art. XV. The Owner may delay the beginning of the work or any part thereof if it is deemed in the Owner's interest so to do. The Contractor shall have no claim for damages on account of such delay, but shall be entitled to so much additional time wherein to perform and complete this contract on his part as the Engineer shall certify in writing to be just." [Pl.Ex. 1, p. B38-C-11] "Art. XVI. The rate of progress shall be such that the whole work shall be performed in accordance with the terms of this contract before the expiration of the time limit stipulated in the Proposal, unless and except as any part may be delayed under the provisions of this contract. "It is agreed that the rate of progress herein required has been purposely made low enough to allow for the ordinary delays incident to construction work of this character. No extention [sic] of time will be made for ordinary delays, inclement weather, and accidents, and the occurrence of such will not relieve the Contractor from the necessity of maintaining this rate of progress. "If delays are caused by acts of God, acts of Government or State, strikes, extra work, or other contingencies clearly beyond the control or responsibility of the Contractor, the Contractor shall be entitled to so much additional time wherein to perform and complete this contract on his part as the Engineer shall vertify [sic] in writing to be just.* "* This paragraph will be interpreted to include delays in receipt of equipment provided that the Contractor placed his order and submitted shop drawings for such equipment promptly after execution of the contract, that he has shown due diligence in following the progress of the order, and that the time required for delivery is in accordance with conditions generally prevailing in the industry." "The time in which this contract is to be performed and completed is of the essence of this agreement." [Pl.Ex. 1, pp. B38-C-11, 12] "Art. XVII. In case the Contractor fails to complete satisfactorily the entire work contemplated and provided for under this contract on or before the date of completion determined as described above, the Owner shall deduct from the payments due the Contractor each month the sum of Seventy-Five Dollars ($75) for each calendar day (Sundays and legal holidays excluded) of delay, which sum is agreed upon not as a penalty, but as fixed and liquidated damages for each day of such delay, to be paid in full and subject to no deduction. If the payments due the Contractor are less than the amount of such liquidated damages, said damages shall be deducted from any other moneys due or to become due the Contractor, and, in case such damages shall exceed the amount of all moneys due or to become due the Contractor, the Contractor or his Surety shall pay the balance to the Owner." [Pl.Ex. 1, p. B38-C-12] "Art. XXIII. The Engineer shall be furnished with every reasonable facility for ascertaining that the work is in accordance with the requirements and intention of this contract, even to the extent of uncovering or taking down portions of finished work. "Should the work thus exposed or examined prove satisfactory, the uncovering or taking down and the replacement of material and rebuilding of the work shall be considered as extra work unless the original work was done in the absence of the Engineer or his inspector without his written authorization, in which case that section of the General Specifications titled `Work to Conform' shall govern. Should the work exposed or examined prove unsatisfactory, the uncovering, taking down, replacing, and making good shall be at the expense of the Contractor." [Pl.Ex. 1, p. B38-C-14] "Art. XXIV. The inspection of the work shall not relieve the Contractor of any of his obligations to fulfill his contract as herein prescribed, and defective work shall be made good and unsuitable materials shall be rejected, notwithstanding that such work and materials have been previously overlooked by the Engineer and accepted or estimated for payment. If the work or any part thereof shall be found defective at any time before the final acceptance of the whole work, the Contractor shall forthwith make good such defect in a manner satisfactory to the Engineer; if any material brought upon the ground for use in the work, or selected for the same, is condemned by the Engineer as unsuitable or not in conformity with the specifications, the Contractor shall forthwith remove such materials from the vicinity of the work, and any material furnished by the Owner which shall be damaged or rendered defective by the handling or improper installation by the Contractor, his agents, or employees shall be made good and replaced at the Contractor's own expense." [Pl.Ex. 1, p. B38-C-14] "Art. XXV. The Contractor shall take all precautions to prevent damage to the work by storms or by water entering the site of the work directly or through the ground. In case of damage by storm or water, the Contractor shall make such repairs or replacements or rebuild such parts of the work as the Engineer may require in order that the finished work may be completed as required by the drawings and specifications. "The Engineer may prohibit the carrying out of any work at any time when, in his judgment, the conditions are not suitable or the proper precautions are not being taken, whatever the weather may be, in any season." [Pl.Ex. 1, p. B38-C-15] "Art. XXVI. The Contractor shall make good any defects, omissions, or mistakes for which he or his employees are responsible, or he shall pay to the Owner all expenses, losses, and damages incurred therefrom as determined by the Engineer." [Pl.Ex. 1, p. B38-C-15] "Art. XXVIII. The Engineer may make alterations in the line, grade, plan, form, dimensions, or materials of the work or any part thereof, either before or after the commencement of construction. If such alterations increase or diminish the quantity of work to be done, adjustment for such increase or decrease shall be made at the unit prices stipulated for such work under this contract, except that, if unit prices are not stipulated for such work, compensation for increased work shall be made under the item for extra work, and for decreased work the Contractor shall allow the Owner a reasonable credit as determined by the Engineer. If such alterations diminish the quantity of work to be done, they shall not warrant any claim for damages or for anticipated profits on the work that is eliminated." [Pl.Ex. 1, B38-C-15] "Art. XXIX. The Contractor shall do any work incidental to the proper completion of the contract and not otherwise provided for herein, when and as ordered in writing by the Engineer, either (a) at the price agreed upon before the work is commenced and named in the order for the work or (b), if the Engineer so elects, for the reasonable cost of said work, as determined by the Contractor and approved by the Engineer, plus a percentage of such cost, as set forth below. No extra work shall be paid for unless specifically ordered as such in writing by the Engineer. * * * * * "To the cost of extra work done by the Contractor's own forces under (b) above (determined as stated above), the Contractor shall add 15 percent to cover his overhead, allowance for use of capital the premium on the Bond as assessed upon the amount of this extra work, and profit." (Pl.Ex. 1, p. B38-C-16, 17] "Art. XXX. When extra work is ordered near the completion of the contract or when extra work is ordered at any time during the progress of the work which requires in the opinion of the Engineer an unavoidable increase of time for the completion of the contract, a suitable extension of the time for completion shall be made." [Pl.Ex. 1, p. B38-C-17] "Art. XXXI. It is distinctly agreed and understood that any changes made in the drawings and specifications for this work (whether such changes increase or decrease the amount thereof) or any change in the manner or time of payments made by the Owner to the Contractor shall in no way annul, release or affect the liability and surety on the Bond given by the Contractor." [Pl.Ex. 1, p. B38-C-17] "Art. XXXII. If the Contractor claims compensation for any damages sustained by breach of contract or otherwise he shall, within 10 days after sustaining such damages, file with the Engineer a written, itemized statement, in triplicate, of the details and amount of such damage. Unless such statement is made as required, his claim for compensation shall be forfeited and invalidated, and he shall not be entitled to payment on account of any such damage. Within 10 days after receiving such statement, the Engineer shall file with the Owner one copy of the statement, together with his recommendations for action by the Owner. "If the Contractor claims compensation for damages resulting from instructions, determinations, or decisions of the Engineer, such claims shall not be considered unless the Contractor has filed a written protest in the manner set forth in the article titled `Authority of the Engineer'." [Pl.Ex. 1, p. B38-C-18] "Art. XXXIII. If the work to be done under this contract shall be abandoned, if this contract or any part thereof shall be sublet without the previous written consent of the Owner, if the contract or any claim thereunder shall be assigned by the Contractor otherwise than as herein specified, or if at any time the Engineer shall be of the opinion, and shall so certify in writing, that the conditions herein specified as to the rate of progress are not fulfilled, that the work or any part thereof is unnecessarily or unreasonably delayed, or that the Contractor has violated any of the provisions of this contract, the Owner may notify the Contractor by a written order, with a copy mailed to the home office of the Surety, to discontinue all work, or any part thereof; thereupon the Contractor shall discontinue such work or such part thereof as the Owner may designate; and the Owner may thereupon, by contract or otherwise as it may determine, complete the work, or such part thereof, and charge the entire expense of so completing the work or part thereof to the Contractor. For such completion the Owner, for itself or its contractors, may take possession of and use or cause to be used in the completion of the work or part thereof any of such materials, equipment, machinery, implements, and tools of every description as may be found at the location of said work. "All expenses charged under this article shall be deducted and paid by the Owner out of any moneys then due or to become due the Contractor under this contract or any part thereof; in such accounting, the Owner shall not be held to obtain the lowest figures for the work of completing the contract or any part thereof, or for ensuring its proper completion, but all sums actually paid therefor shall be charged to the Contractor. In case the expenses so charged are less than the sum which would have been payable under this contract if the same had been completed by the Contractor, the Contractor shall be entitled to receive the difference, and, in case such expenses shall exceed the said sum, the Contractor shall pay the amount of the excess to the Owner." [Pl.Ex. 1, pp. B38-C-18, 19] "Art. XXXIV. The Owner shall pay, and the Contractor shall receive, the prices stipulated in the Proposal attached hereto as full compensation for everything furnished and done by the Contractor under this contract, including all work required but not specifically mentioned, and also for all loss or damage arising out of the nature of the work aforesaid, from the action of the elements, or from any unforeseen obstruction or difficulty encountered in the prosecution of the work, for all risks of every description connected with the work, for all expenses incurred by or in consequence of the suspension or discontinuance of the work as herein specified, and for well and faithfully completing the work and the whole thereof, as herein provided." [Pl. Ex. 1, p. B38-C-19] "Art. XXXVI. It is agreed that this is an entire contract for one whole and complete work and that no partial payments on account by the Owner nor the use of parts of the proposed work shall constitute an acceptance of any part of the work before its entire completion and final acceptance." [Pl.Ex. 1, p. B38-C-19] "Art. XL. Neither the inspection by the Owner or any of its agents; nor any order, measurement, or certificate by the Engineer; nor any order by the Owner for the payment of money; nor any payment for or acceptance of the whole or any part of the work by the Owner; nor any extension of time; nor any possession taken by the Owner or its employees shall operate as a waiver of any provision of this contract, of any power herein reserved to the Owner, or any right to damages herein provided; nor shall any waiver of any breach of this contract be held to be a waiver of any other or subsequent breach. Any remedy provided in this contract shall be taken and construed as cumulative, that is, in addition to each and every other remedy herein provided and in addition to all other suits, actions, or legal proceedings, the Owner shall also be entitled as of right to a writ of injunction against any breach of any of the provisions of this contract." [Pl.Ex. 1, p. B38-C-21] "Art. XLII. The Contractor guarantees that the work to be done under this contract, and the workmanship performed and the materials and equipment used in the construction of the same, shall be free from defects or flaws, that each item of equipment shall be in accordance with the specifications, that the strength of all parts of all manufactured equipment shall be adequate and that the performance test requirements of the specifications shall be fulfilled. This guarantee shall be for a period of one year from and after the date of completion of the work as stated in the final estimate. The Contractor shall repair or replace as required, promptly and without charge, all work, equipment, and material, or parts thereof, which fail to meet the above guarantee during the one year herein quoted. "It is thereby, however, especially agreed and understood that this guarantee shall not include any repairs or replacements made necessary by any cause or causes other than improper, inadequate, or defective work, workmanship, materials, or design by the Contractor or those employed directly or indirectly by him." [Pl.Ex. 1, p. B38-C-22] The Contract contains a Bond executed by Fanning & Doorley as Principal and The American Insurance Company, as Surety, in the sum of $204,147.50, conditioned on the full performance by Fanning & Doorley of all of the agreements, terms and conditions of the Contract of August 28, 1959. [Pl.Ex. 1, p. B38-C-26] The Specifications General contain the following provisions: "The work to be done and paid for under any item shall not be limited to the exact extent mentioned or described, but shall include all incidental work necessary or customarily done for the completion of that item." [Pl.Ex. 1, p. B38-SG-2] "The Contractor shall make all measurements and check all dimensions necessary for the proper construction of the work called for by the drawings and specifications. During the prosecution of the work, he shall make all necessary measurements to prevent misfitting in said work, and he shall be responsible therefor, and for the accurate construction of the entire work." [Pl.Ex. 1, p. B38-SG-8] "Section XIV. Work to Conform. During its progress and on its completion, all work shall conform truly to the lines, levels, and grades indicated on the drawings or given by the Engineer and shall be built in a thoroughly substantial and workmanlike manner, in accordance with the drawings and specifications and the directions given from time to time by the Engineer. In no case shall any work in excess of the requirements of the drawings and specifications be paid for unless ordered in writing by the Engineer." [Pl.Ex. 1, p. B38-SG-8] "Section XIX. Interference with Existing Works. The Contractor shall at all times conduct his operations so as to interfere as little as possible with the existing facilities. The Contractor shall develop a program, in cooperation with the Engineer and Owner which shall provide for the construction and putting into service of the new works in the most orderly manner possible. This program shall be adhered to except as deviations therefrom are expressly permitted. All work of connecting with, cutting into, and reconstructing existing pipes or structures shall be planned to interfere with operation of the existing facilities for the shortest possible time when the demands on the facilities best permit such interference, even though it may be necessary to work outside the normal working hours to meet these requirements. Before starting work which will interfere with the operation of the existing facilities, the Contractor shall do all possible preparatory work and shall see that all tools, materials, and equipment are made ready and at hand. "The Contractor shall make such minor modifications in work relating to existing structures as may be necessary where existing pipes, etc., are not found exactly as indicated on the drawings, without additional compensation." [Pl.Ex. 1, pp. B38-SG-10, 11] "Section XX. Sequence of Operations. In view of the fact that the work to be done is in an area housing a manufacturing industry, the sequence of operations will depend in part upon the schedule of manufacturing processes. To minimize delays and interferences, the Contractor shall, in cooperation with the Chief Engineer, develop a sequence of operations intended to avoid interferences with manufacturing operations. The Contractor shall, from time to time, modify the sequence of operations as deemed necessary by the Chief Engineer so as to minimize any interference * * " [Pl.Ex. 1, p. B38-SG-11] "Section XXII. Precautions against Adverse Weather. During adverse weather and against the possibility thereof, the Contractor shall take all necessary precautions so that the work may be properly done and satisfactory in all respects. When required, protection shall be provided by use of tarpaulins, wood and building-paper shelters, or other approved means. "During cold weather, materials shall be preheated, if required, and the materials and adjacent structure into which they are to be incorporated shall be made and kept sufficiently warm so that a proper bond will take place and a proper curing, aging, or drying will result. Protected spaces shall be artificially heated by approved means which will result in a moist or a dry atmosphere according to the particular requirements of the work being protected. Ingredients for concrete and mortar shall be sufficiently heated so that the mixture will be warm throughout when used. "The Engineer may suspend construction operations at any time when, in his judgment, the conditions are unsuitable or the proper precautions are not being taken, whatever the weather may be, in any season." [Pl.Ex. 1, pp. B38-SG-11, 12] "Wherever `abandon,' `remove,' or words of like import are used on the drawings in reference to existing pipes or structures, the Contractor shall remove and dispose of all existing work which interferes with the new work to be done, all as determined by the Engineer. Open ends of abandoned pipes or other structures shall be bulkheaded with brick masonry with mortar joints, Class A concrete or other approved method." [Pl. Ex. 1, p. B38-SG-14] "Section XXVIII. Equipment Furnished by Owner. The Owner will furnish and deliver to the site, pumping equipment, metering and appurtenances to be installed under this contract. "In the event that the Owner is unable to furnish equipment in time for its installation, the Contractor agrees to suspend work as necessary and shall make no claim for damages thereby; however, he shall be granted an extension of time in which to complete this contract. Such extension shall be equal to the number of calendar days between that on which no usable equipment can be furnished to him and the day he is notified that such equipment has become available." [Pl.Ex. 1, p. B38-SG-15] The Specifications Detail contain the following provisions: "Section 1.7 Drainage. At all times during construction the Contractor shall provide and maintain ample means and devices (including spare units for use in case of breakdowns) with which to remove promptly and dispose properly of all water entering trenches and other exvacations and keep said excavations dry until the structures, pipes, and appurtenances to be built therein have been completed to such extent that they will not be floated or otherwise damaged. "All water pumped or drained from the work shall be disposed of in a suitable manner without undue interference with other work or damage to pavements, other surfaces, or property. Suitable temporary channels shall be provided for water that may flow along or across the site of the work. "The Contractor shall also handle sewage and industrial wastes in an approved manner whenever, due to his operations, these services are interrupted. Sewage shall be handled in such a manner that it will eventually be discharged into the City sewerage system. Industrial wastes are highly corrosive and shall be discharged to the Pawtuxet River in such a manner that there is no danger to existing structures, new work or personnel." [Pl.Ex. 1, p. B38-SD-3] "Section 1.14 Excavation near Existing Structures. Attention is directed to the fact that there are water pipes, gas pipes, drains, and other utilities in certain locations. Some of these have been indicated on the drawings, but no attempt has been made to show all of the services, and the completeness or accuracy of the information given is not guaranteed. In certain critical locations, test pits, to be paid for will be dug ahead of the work to aid in the selection of a route for the pipe involving a minimum of interference with existing utilities. "As the excavation approaches pipes, conduits, or other underground structures, digging by machinery shall be discontinued and the excavation shall be done manually, as directed. Such manual excavation when incidental to normal excavation shall be included in the work to be done as normal excavation." [Pl. Ex. 1, p. B38-SD-5] "Section 1.15 Protection of Existing Structures. All existing structures, including buildings, pipes, poles, wires, fences, curbings, property-line markers, and other structures which, in the opinion of the Engineer, must be preserved in place without being temporarily or permanently relocated, shall be carefully supported and protected from injury by the Contractor. The Contractor's attention is directed to the fact that there are excavations near, under and within certain buildings. In case of injury to any structure they shall be restored by him, without compensation therefor, to at least as good condition as that in which they were found immediately prior to the start of the work." [Pl.Ex. 1, p. B38-SD-5] "Section 1.16 Relocation of Existing Structures. Whenever the Contractor encounters underground pipes, wires, or other structures not otherwise provided for in these specifications, which are located so near and parallel to or actually in the excavation, that, in the opinion of the Engineer, satisfactory construction cannot proceed until they have been removed, the Contractor shall, as directed, remove and change, relocate, or later restore such portions thereof as the Engineer shall order in writing, and such work shall be paid for as Extra Work." [Pl.Ex. 1, p. B38-SD-5] "Section 1.24 Backfilling around Structures. As soon as practicable after the pipes and masonry have been placed, the joints and concrete have acquired a suitable degree of hardness, and other necessary work has been done, special leakage and pressure tests, if required, shall be made, after which backfilling shall begin and thereafter shall be prosecuted expeditiously. The best of the excavated materials shall be used in backfilling within 2 ft. of the structure, and unequal soil pressures shall be avoided by carrying the fill up evenly. The materials shall be sufficiently compacted to prevent settlement and, if compacted by rolling or ramming, shall be deposited in suitable layers, wet if required." [Pl.Ex. 1, p. B38-SD-8] "Section 1.25 Backfilling in Open Trench. As soon as practicable after the pipe has been placed and the pipe joints have acquired a suitable degree of hardness and other necessary work done, the backfilling shall begin and thereafter shall be prosecuted expeditiously ." [Pl.Ex. 1, p. B38-SD-8] "Section 15.8 Leakage. The sewers and manholes shall be made as nearly watertight as practicable and leakage measurements shall be made unless determined by the Engineer not to be possible. "Leakage into the sewer, including manholes, shall not exceed 500 gallons per inch diameter in 24 hours per mile of sewer. Leakage between any two adjacent manholes shall not exceed 1,000 gallons per 24 hours per inch diameter per mile of sewer. There shall be no gushing or spurting streams entering the sewer or manholes. "Where practicable the leakage tests shall be made at a time when the groundwater is at least 1 ft. above the top of the pipe of the highest section of work being tested. "Where the groundwater level is less than 1 ft. above the top of the pipe and the slope of the pipe between adjacent manholes will permit, the sewers shall be subjected to an internal pressure by plugging the pipe at the lower end and then filling the sewers and manholes with clean water to a height of 2 ft. above the top of the pipes. "Measurements shall then be made of the rate of leakage from the sewers by determining the amount of water required to maintain a level of 2 ft. above the top of the pipe. "Leakage from the sewers under test shall not exceed the requirements for leakage into sewers as specified heretofore. "The Contractor shall construct such weirs or other means of measurement as may be required, shall furnish water and shall do all necessary pumping to enable the tests to be made properly. "Portions of sewers which fail to meet tests shall be repaired and retested as necessary without additional compensation until test requirements are met." [Pl.Ex. 1, pp. B38-SD-48, 49] "CHEMICAL STONEWARE PIPE AND FITTINGS "Section 16.1 General. The Contractor shall furnish all materials, labor, and equipment required to construct and test sewers as indicated on the drawings and as herein specified. "The Contractor shall make careful inspections of all pipe and fittings before they are incorporated into the finished work and shall immediately remove from the work all pipe which is found to be damaged or does not conform to the specifications. The Engineer shall make such additional inspections as he may deem necessary. "Chemical stoneware sewers shall be laid on a Class B corrosion-resistant concrete cradle. "Section 16.2 Chemical Stoneware Sewer Pipe and Fittings. Chemical Stoneware sewer pipe and fittings shall be equal to U. S. Standard Chemical Stoneware, manufactured by U. S. Stoneware Co., or Knightware Chemical Stoneware manufactured by Maurice A. Knight, both of Akron, Ohio. "Section 16.3 Handling and Cutting. The Contractor's attention is directed to the fact that chemical stoneware pipe and fittings are comparatively brittle. Care shall be taken in handling and laying the pipe and fittings to avoid damaging them. "Cutting of pipe shall be done by a power-driven carborundum wheel or other approved means. No cutting shall be done with hammer and chisel, except to prepare a groove prior to mechanical cutting as specified above. "Section 16.4 Laying and Jointing. No defective pipe or fitting shall be installed in the work and any piece found to be defective after having been laid shall be removed and replaced by a sound piece at the Contractor's expense. "Pipe shall be laid to conform to the lines and grades indicated on the drawings and shall be cleaned of all foreign matter before being laid and maintained clean until accepted in the completed work. "Care shall be taken to preclude any movement of the pipe from the established line and grade when placing the concrete cradle. Particular care shall be given to prevent `floating' of the pipe. "Except as hereinafter specified, the pipe shall be jointed with asbestos-rope calking and Causplit Mortar made by Pennsalt Chemicals Corp., Philadelphia, Pa. The Contractor's attention is directed to the fact that Causplit is a phenol-formaldehyde type resin and that some persons are allergic to such materials. Causplit shall at all times be handled and joints shall be made in accordance with the recommendations of the manufacturer and extreme care shall be taken in its use to avoid any possible damage. "Expansion joints shall be made, as indicated on the drawings, with asbestos-rope calking and a plasticized epoxy similar to Coroline E manufactured by the Ceilcote Co., Cleveland Ohio. "After the pipe has been laid and jointed but before the concrete cradle is placed, all areas of the pipe that would otherwise be in contact with the concrete shall be covered with a bituminous impregnated felt to ensure that no bond will exist between the pipe and the cradle. "Section 16.5 Temporary Plugs. Temporary plugs shall be used as specified under VITRIFIED CLAY SEWER PIPE AND FITTINGS. "Section 16.6 Leakage. Leakage allowances shall be as specified under VITRIFIED CLAY SEWER PIPE AND FITTINGS." [Pl.Ex. 1, pp. B38-SD-50, 51] "Earth Excavation and Backfill * "The unit prices for Items 1a and 1b shall constitute full compensation for earth excavation, backfill, and disposal of surplus material. They shall also include compensation for the following: "1. All labor, materials, and labor for handling trench drainage; relocating existing piping as required; removal and replacement of minor structures and equipment such as isolated concrete pads, retaining walls, stairs, fences; and removal and disposal of abandoned piping and structures, as required, and plugging all open ends with brick or concrete masonry to a depth of 9 in.; all as indicated on the drawings. "2. Handling of plant sanitary and industrial wastes flows in a satisfactory manner and as coordinated with the Owner; and handling surface water drainage from Lyndon Road if required during construction work. "3. Removal of pavement and pavement bases encountered." [Pl.Ex. 1, p. B38-SD-102] On the same date that the "Contract" was executed, August 28, 1959, the parties executed a "Supplemental Agreement to Contract Agreement" which provided, "2. The work to be done under the contract for Construction of Drainage and Water Systems and Appurtenant Work, Contract 1952-2, shall be done for the reasonable cost of said work plus a percentage of such cost all as defined in Article XXIX, Extra Work of the Contract Agreement as herein modified, provided, however, that should the amount so computed exceed the total amount computed by using the prices stipulated in the Proposal submitted by the Contractor, then the latter shall govern." (Pl.Ex. 1) [2] See Exhibit F for the defendant. "Note on July 11, 1960 the following work had not been completed by Fanning & Doorley Item 16Fence ...........$ 29.06 Item 17Mud Valve Stems.. 200.00 Item 19B.P.S. 5% ....... 775.00 _________ $1,004.06 [3] Transcript Vol. 6, p. 104 [4] Article XXIX of the contract provides in pertinent part that: (See fn. 1 supra) "The Contractor shall do any work incidental to the proper completion of the contract and not otherwise provided for herein, when and as ordered in writing by the Engineer, either (a) at the price agreed upon before the work is commenced and named in the order for the work or (b), if the Engineer so elects, for the reasonable cost of said work, as determined by the Contractor and approved by the Engineer, plus a percentage of such cost, as set forth below. No extra work shall be paid for unless specifically ordered as such in writing by the Engineer." (emphasis added) (Pl.Ex. 1, p. B38-C-16) [5] Deletions undisputed and conceded Supplemental agreement number 7 eliminates items 14b ..................... $ 4,340.00 14c ..................... 1,500.00 2b ..................... 600.00 2c ..................... 900.00 6b ..................... 500.00 6d ..................... 1,000.00 6e ..................... 325.00 6g ..................... 1,000.00 8a ..................... 950.00 13b ..................... 900.00 __________ $12,015.00 [6] The defendant does not dispute this item but rather urges it be denied by virtue of Article XXXIII of the contract providing that upon termination of the contractor, the owner may complete the work and take possession of and use any of the materials found at the work site. This is not applicable to the case at bar which termination was without fault of the contractor. The contract further provides in Article III that: "If the Contractor considers any work demanded of him to be outside the requirements of the Contract * * * he shall immediately, upon such work being demanded * * * ask for instructions. * * * Within 10 days after receipt of the written instructions * * * the Contractor may file a written protest with the Owner stating clearly and in detail his objections, the reasons therefor, and the nature and amount of damages which the Engineer's decision will cost him * * * Unless the Contractor shall file such written protest with the Owner within 10 days, he shall be determined to have waived all grounds for such protest and for such damages and to have accepted the instructions * * * of the Engineer as just and reasonable and as being within the scope of the Contractor's obligations under the Contract." (Pl.Ex. 1, p. B38-C-5) [7] 25 C.J.S. Damages § 51 p. 790 [8] 92 C.J.S. Waiver p. 1041; Clark v. West, 193 N.Y. 349, 86 N.E. 1, 5; Harris & Harris Construction Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E.2d 590, 596, 597; United States for Use and Benefit of Lichter v. Henke Const. Co., 8 Cir., 157 F.2d 13; Clark v. West, 193 N.Y. 349, 86 N.E. 1. [9] Corbin on Contracts 3A Sec. 756, p. 505 [10] United States v. Spearin, 248 U.S. 132, 39 S.Ct. 59, 63 L.Ed. 166 (1918) [11] Cohen, "The Basis of Contract" from Law and the Social Order (1935) [12] Annotation: Construction Contractor's Liability to Contractee for Defects on Insufficiency of Work Attributable to the Latter's Plans and Specifications, 6 ALR 3rd 1394 at 1397 (1966) and cases cited therein. [13] Ridley Investment Co. v. Croll, 192 A.2d 925, 6 A.L.R.3d 1389 (Del.1963); Fuchs v. Parsons Const. Co., 172 Neb. 719, 111 N.W.2d 727 (1964); Blue Bell, Inc. v. Cassidy, 200 F.Supp. 443 (N.D.Miss. 1961). See generally 6 Corbin Contracts sec. 1338 at p. 394 (1962) [14] AIA, The General Conditions of the Contract for the Construction of Buildings, Article 14, American Institute of Architects (1963) [15] Claim against defendants Harrison P. Eddy, Jr., and Frank A. Marston, d/b/a Metcalf & Eddy, Engineers dismissed pursuant to Fed.R.Civ.P. 41(b)	{ "pile_set_name": "FreeLaw" }
United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 03-3319 ___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * District of Nebraska Robert E. Watkins, * * [UNPUBLISHED] Appellant. * ___________ Submitted: June 21, 2005 Filed: July 13, 2005 ___________ Before MELLOY, LAY, and COLLOTON, Circuit Judges. ___________ PER CURIAM. This case is before the court on remand from the Supreme Court for further consideration in light of United States v. Booker, 125 S. Ct. 738 (2005). In an opinion filed on October 28, 2004, we rejected numerous arguments raised by Watkins regarding his conviction and sentence for unlawful possession of a firearm as a previously convicted felon. With respect to all matters other than further consideration of Watkins’s sentence in light of Booker, we adhere to our prior opinion. See United States v. Watkins, 2004 WL 2402604 (8th Cir. 2004) (unpublished). Watkins’s sentence did not involve a violation of the Sixth Amendment as interpreted in Booker, because the district court determined the applicable sentencing guideline range based on facts proved to a jury beyond a reasonable doubt and on the facts of Watkins’s prior convictions. See Booker, 125 S. Ct. at 756; United States v. Marcussen, 403 F.3d 982, 984 (8th Cir. 2005). The district court’s imposition of sentence pursuant to the mandatory sentencing guidelines, however, does constitute error under the remedial holding of Booker that the guidelines are effectively advisory in all cases. Because Watkins raised no objection in the district court based on the Sixth Amendment or the mandatory nature of the guidelines, we review his sentence under the plain-error standard. United States v. Pirani, 406 F.3d 543, 549-50 (8th Cir. 2005). Under that standard, resentencing is warranted only if the record establishes a reasonable probability that the district court would have imposed a more favorable sentence under the advisory guideline system announced in Booker. Id. at 552. After careful review of the record, we conclude that it does not meet the requisite standard for relief on plain-error review. The district court sentenced Watkins at the low end of the applicable guideline sentencing range of 210 to 262 months’ imprisonment, but a sentence at the bottom of the range is insufficient, without more, to establish a reasonable probability of a more favorable sentence under the advisory system. Id. at 553. Watkins was sentenced as an armed career criminal, and his record includes a serious criminal history ranging from 1979 to 1997, including, among others, convictions for manslaughter, burglary (twice), assault and battery (thrice), attempted first degree assault, and possession of a weapon by a felon. In imposing sentence, the district court explained: I have sentenced you within the guideline range. The range does exceed 24 months. I’ve nevertheless selected a sentence at the low end of the guideline range. Although you didn’t accept responsibility for the crime -2- of which you are convicted, you didn’t impede or obstruct justice, but the sentence at the low end of the guideline, in my belief anyway, does sufficiently punish you and at the same time obtain the goals expressed by the Sentencing Commission. So those are the reasons for my sentence. We see nothing in the district court’s comments or the record as a whole that provides any basis other than speculation to conclude that a more favorable sentence would have been imposed under the advisory guideline system. Where the effect of the erroneous application of mandatory guidelines on the result in the district court is “uncertain or indeterminate – where we would have to speculate,” the record does not establish that the error affected the defendant’s substantial rights. Id. Accordingly, the judgment of the district court is affirmed. Appellant’s pro se motion to remand the case to the district court is denied. ______________________________ -3-	{ "pile_set_name": "FreeLaw" }
388 So.2d 1084 (1980) PUBLIC HEALTH TRUST, Richard Auclair, M.D., and Glenn Salkind, M.D., Appellants, v. Susan BROWN, Appellee. No. 79-2069. District Court of Appeal of Florida, Third District. October 7, 1980. Rehearing Denied October 24, 1980. Fowler, White, Burnett, Hurley, Banick & Strickroot and Henry Burnett, Miami, for appellants. Mandina & Lipsky and Michael A. Lipsky, Miami, for appellee. Before SCHWARTZ, NESBITT and DANIEL S. PEARSON, JJ. SCHWARTZ, Judge. This case of first impression in the Florida appellate courts[1] presents the fascinating question of whether the cost of raising a previously unwanted but healthy and normal child is a recoverable element of damages in a so-called "wrongful birth" case. We conclude that it is not. The issue comes to us in a pristine legal form, uncluttered by any procedural or factual complexity. A jury found that physician-employees of Jackson Memorial Hospital 1085 had negligently performed a tubal ligation on Susan Brown, with the result that she became pregnant and delivered her sixth child, Lamont.[2] She was awarded $10,837 for the medical expenses, lost wages and pain and suffering caused by the undesired pregnancy and the process of childbirth. The appellants challenge neither the liability finding nor the award of these items of damages. Their sole appellate point concerns the inclusion in the final judgment of $19,500 which, in a special verdict, was assessed for the past and discounted future "reasonable costs of raising Lamont Brown to age 18, offset by the value of his love and affection, companionship and the other mother-child relationships." In holding that such a claim should not be recognized, we align ourselves with a clear majority of courts in other jurisdictions which have decided the identical question. Coleman v. Garrison, 349 A.2d 8 (Del. 1975); Wilczynski v. Goodman, 73 Ill. App.3d 51, 29 Ill.Dec. 216, 391 N.E.2d 479 (1979); Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979); Sala v. Tomlinson, 73 A.D.2d 724, 422 N.Y.S.2d 506 (1979); Terrell v. Garcia, 496 S.W.2d 124 (Tex.Civ.App. 1973), cert. denied, 415 U.S. 927, 94 S.Ct. 1434, 39 L.Ed.2d 484 (1974); Rieck v. Medical Protective Co. of Fort Wayne, Ind., 64 Wis.2d 514, 219 N.W.2d 242 (1974); see, Shaheen v. Knight, 6 Lycoming Rptr. 19, 11 Pa. D. & C.2d 41 (1957); Ball v. Mudge, 64 Wash.2d 247, 391 P.2d 201 (1964); contra, Stills v. Gratton, 55 Cal. App.3d 698, 127 Cal. Rptr. 652 (1976); Custodio v. Bauer, 251 Cal. App.2d 303, 59 Cal. Rptr. 463 (1967); Anonymous v. Hospital, 33 Conn.Sup. 126, 366 A.2d 204 (1976) (relying on Delaware lower court decision reversed in Coleman v. Garrison, supra); Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 511 (1971); Sherlock v. Stillwater Clinic, 260 N.W.2d 169 (Minn. 1977); but see, Bishop v. Byrne, 265 F. Supp. 460 (S.D.W. Va. 1967); Bowman v. Davis, 48 Ohio St.2d 41, 356 N.E.2d 496 (1976). See generally, Annot., Tort Liability for Wrongfully Causing One to Be Born, 83 A.L.R.3d 15 (1978); Comment, Wrongful Conception: Who Pays for Bringing up Baby?, 47 Fordham L.Rev. 418 (1978); Kashi, The Case of the Unwanted Blessing: Wrongful Life, 31 U.Miami L.Rev. 1409 (1977). There is no purpose to restating here the panoply of reasons which have been assigned by the courts which follow the majority rule. See especially the comprehensive discussions in Wilczynski v. Goodman, supra and Berman v. Allan, supra. In our view, however, its basic soundness lies in the simple proposition that a parent cannot be said to have been damaged by the birth and rearing of a normal, healthy child.[3] Even the courts in the minority recognize, as the jury was instructed in this case, that the costs of providing for a child must be offset by the benefits supplied by his very existence. Stills v. Gratton, supra; Anonymous v. Hospital, supra; Troppi v. Scarf, supra; Sherlock v. Stillwater Clinic, supra. See, Restatement (Second) of Torts § 920 (1979). But it is a matter of universally-shared emotion and sentiment that the intangible but all-important, incalculable but invaluable "benefits" of parenthood far outweigh any of the mere monetary burdens 1086 involved.[4] See, Shaheen v. Knight, supra; Terrell v. Garcia, supra. Speaking legally, this may be deemed conclusively presumed by the fact that a prospective parent does not abort or subsequently place the "unwanted" child for adoption. See, e.g., Shaheen v. Knight, supra; Rieck v. Medical Protective Co., supra. On a more practical level, the validity of the principle may be tested simply by asking any parent the purchase price for that particular youngster. Since this is the rule of experience, it should be, and we therefore hold that it is, the appropriate rule of law. It is a rare but happy instance in which a specific judicial decision can be based solely upon a reflection of one of the humane ideals which form the foundation of our entire legal system. This, we believe, is just such a case. The judgment under review is reduced by $19,500 and, as so modified, is affirmed. Affirmed in part, reversed in part. DANIEL S. PEARSON, Judge, dissenting. I respectfully dissent. I am confident that the majority recognizes that any decision based upon a notion of public policy is one about which reasonable persons may disagree. Any doubt I might have is dispelled by the fact, as evidenced in the majority opinion, that there exists substantial disagreement among the courts of other states which have heretofore been called upon to decide whether public policy prevents a parent from recovering damages attendant upon the rearing of a child. Because I am of the view that judges are more to be trusted as interpreters of the law than as expounders of what is called public policy, Re Mirams, 1 Q.B. 594, 595 (1891), I cannot join in the majority's declaration that, as a matter of public policy, and therefore as a matter of law, the benefits derived from parenthood exceed any damages which will be incurred in raising an unplanned child whose birth comes about through the negligence of another. I am persuaded that a jury properly instructed, as was the jury in the present case, that it could award damages for the "cost of raising the child ... in the future, offset by the value of his love and affection, companionship and the other mother-child relationships... ."[1] will better express the view and conscience of the community, can measure on a case-by-case basis the enormously varied claims which may arise, and can assess the extent to which the benefits of parenthood should reduce the costs of raising a child. A judicial declaration of pre-emptive public policy should express the manifest will of the people. Troppi v. Scarf, 31 Mich. App. 240, 187 N.W.2d 211 (1971). The majority's conclusion that the benefits of parenthood in every case outweigh the costs of raising a child is totally inconsistent with the manifest will of, at least, the six jurors who decided the present case. I regard the jury's decision as a far more accurate declaration of the will of the people than the majority's decision. The majority arrives at its assessment of the will of the people by positing that "it is a matter of universally shared emotion and sentiment that the intangible but all-important, incalculable but invaluable `benefits' of parenthood far outweigh any of the *1087 mere monetary burdens involved."[2] It is this very same emotion and sentiment that leads a parent to say that he or she would not part with the child for any price and would not consider placing the unplanned child for adoption.[3] But this response, psychologically and socially compelled, and concededly based on emotion and sentiment, cannot be given an arbitrary value which will always exceed the cost of raising a child, and thereby be used to fashion a rule which precludes recovery of proximately caused and foreseeable damages.[4] There is a bitter irony in the rule of law announced by the majority. A person who has decided that the economic or other realities of life far outweigh the benefits of parenthood is told by the majority that the opposite is true.[5] Yet if we cannot interfere with an individual's choice to forego the benefits of parenthood, see, e.g., Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), by what reasoning can the majority arrive at a rule, based on public policy, which effectively nullifies the individual's choice? I have previously admitted that I have no special capacity to intuit, and am possessed of no extensive empirical evidence from which I can infer, the manifest will of the people. The majority, I submit, has failed to observe the caveat that public policy "... is a very unruly horse, and when once you get astride it, you never know where it will carry you. It may lead you from the sound law." Richardson v. Mellish, 2 Bing. 229, 252 (1824), quoted with approval in Story v. First National Bank and Trust Company in Orlando, 115 Fla. 436, 156 So. 101 (1934). Having, in my view, been led from the sound law, the majority couches its result as humane. I dissent from that as well.[6] I firmly believe that the result reached by the majority in the name of humaneness is, unwittingly, inhumane. I see nothing humane in denying a parent the wherewithal which might save a child from deprivation or, in many cases, abject poverty. I see nothing humane in a rule of law that could enhance the already dire need of parents and existing siblings. I see nothing humane in a decision which effectively immunizes physicians from their negligence and victimizes a mother who sought to relieve herself and her family from the additional burden of another child. I would affirm the decision below. NOTES [1] The damage issue was specifically reserved in Jackson v. Anderson, 230 So.2d 503 (Fla.2d DCA 1970), which was the first Florida decision to recognize the right to recover for a negligent sterilization which does not achieve the desired result. Cf., Aronoff v. Snider, 292 So.2d 418 (Fla.2d DCA 1974) (no cause of action in siblings of "wrongfully born" child). In Bradian v. Baliton, 48 Fla. Supp. 201 (Fla. 19th Cir. Ct. 1979), a Florida trial court struck the damage element involved in this case. [2] Mrs. Brown stated that Lamont, who was almost two at the time of trial, was a fine and healthy little boy whom she loved very much-just as she did her other children. While she had considered an abortion, she was glad that she had decided against it. [3] Because the issue is not before us, we do not decide nor intimate a view as to the recoverability of the costs involved in treating and raising an abnormal or unhealthy child. Compare, Sala v. Tomlinson, supra (no recovery for healthy child); Shaheen v. Knight, supra (same); Terrell v. Garcia, supra (same); and Rieck v. Medical Protective Co., supra (same); with Becker v. Schwartz, 46 N.Y.2d 401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978) (recovery permitted for costs required for abnormal child); Speck v. Finegold, ___ Pa.Super. ___, 408 A.2d 496 (1979) (same); Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975) (same); Dumer v. St. Michael's Hospital, 69 Wis.2d 766, 233 N.W.2d 372 (1975) (same); and Berman v. Allan, supra (no recovery for raising either healthy or abnormal child); with Bowman v. Davis, supra (recovery permitted for raising both healthy and abnormal child). [4] We note that, under the contrary view, an unhandsome, colicky or otherwise "undesirable" child would provide fewer offsetting benefits, and would therefore presumably be worth more monetarily in a "wrongful birth" case. The adoption of that rule would thus engender the unseemly spectacle of parents disparaging the "value" of their children or the degree of their affection for them in open court. It is obvious, whether the conclusion is phrased in terms of "public policy," see, Raisen v. Raisen, 379 So.2d 352 (Fla. 1979), or otherwise, that such a result cannot be countenanced. [1] This instruction follows the view expressed in Section 920, Restatement (Second) of Torts (1979), which provides: "Where the defendant's tortious conduct has caused harm to the plaintiff or to his property and in so doing has conferred upon the plaintiff a special benefit to the interest which was harmed, the value of the benefit conferred is considered in mitigation of damages, where this is equitable." (emphasis supplied). [2] The same might be said to deny government sponsored financial aid to parents who are unable to provide for their children. It would seem that the public policy expressed in the welfare programs is to place no financial value on these "benefits." [3] "Many parents feel a moral sense of obligation to bring up as best they can a child unwanted at the time of conception." Stills v. Gratton, 55 Cal. App.3d 698, 707, 127 Cal. Rptr. 652, 658 (1976) (emphasis supplied). [4] The argument has been made that since, under Restatement (Second) of Torts, see n. 1, supra, the benefit to be considered in mitigation must be "to the interest which is harmed," emotional rewards cannot mitigate injured financial interests. The services which a parent can expect a child to render, upon which a financial value can be placed, are largely illusory. [5] "It is no answer to say that a result which [the plaintiff] specifically sought to avoid might be regarded as a blessing by someone else." Rivera v. State, 94 Misc.2d 157, 162, 404 N.Y.S.2d 950, 954 (Ct.Cl. 1978). [6] I am content to keep my response within the parameters of the majority opinion. The various arguments in favor of and against the rule adopted by the majority are found in the cases cited in the majority opinion.	{ "pile_set_name": "FreeLaw" }
394 F.3d 1016 UNITED STATES of America, Plaintiff-Appellee,v.Allan C. MUGAN, Defendant-Appellant. No. 03-4074. United States Court of Appeals, Eighth Circuit. Submitted: October 19, 2004. Filed: January 12, 2005. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Anne M. Laverty, argued, Cedar Rapids, IA, for appellant. Sean R. Berry, argued, Assistant U.S. Attorney, Cedar Rapids, IA, for appellee. Before MURPHY, HEANEY and BEAM, Circuit Judges. MURPHY, Circuit Judge. 1 Allan Mugan pled guilty to using a minor in sexually explicit conduct to produce child pornography, and he was sentenced by the district court1 to 240 months. He appeals, contending that the intrastate production and possession of child pornography is beyond the reach of the Commerce Clause and cannot therefore be prosecuted by federal authorities even if the pornography was made with materials transported in interstate commerce. He argues in addition that the district court erred by refusing to allow him to withdraw his guilty plea, by enhancing his sentence two levels for obstruction of justice, and by departing upward two levels from his sentencing guideline range. We affirm. I. 2 Mugan used a digital camera to take sexually explicit photographs of himself having intercourse with his 13 year old daughter. The photographs were stored on a digital memory card that had previously been shipped in interstate and foreign commerce. Because the photographs were stored in this way, they were capable of immediate and widespread distribution over the internet. Law enforcement officials discovered the memory card while executing a warrant at Mugan's residence. At that time they also found a videotape of Mugan's daughter dancing while the camera zoomed in on her pubic area. 3 Mugan was indicted for using a minor to engage in sexually explicit conduct for the purpose of producing a visual image, with the use of materials which had been shipped in interstate commerce, in violation of 18 U.S.C. § 2251(a).2 The indictment also charged Mugan with knowing possession of child pornography produced with interstate materials, in violation of 18 U.S.C. § 2252A(a)(5)(B).3 Mugan moved to dismiss the indictment, contending that the federal government was without authority to prosecute him since he had not transported the stored images in interstate commerce, nor had he intended to do so. 4 Before the district court ruled on the motion to dismiss, Mugan entered a conditional plea of guilty to the charge under § 2251(a) of using a minor in order to produce child pornography. His plea agreement preserved his right to raise his constitutional issue on appeal, and the district court later denied his motion to dismiss. Mugan attempted to appeal prematurely from that ruling, but his appeal was dismissed for lack of jurisdiction. 5 Mugan's relationship with his attorney became strained over the course of the proceedings. His lawyer moved to withdraw from representation, complaining that Mugan failed to take legal advice or pay attorney fees. Mugan opposed the motion, and it was withdrawn before he pled guilty. The motion was later renewed and granted by the court; new counsel was then appointed for Mugan. One week prior to his sentencing hearing, Mugan filed a motion to withdraw his guilty plea. He contended that his first lawyer had not adequately explained the plea bargaining process and that he had been misled about the sentencing departures that would be sought by the government. The motion was denied, and the case came on for sentencing on Mugan's § 2251(a) conviction. 6 The district court assigned Mugan a base offense level of 27, see U.S.S.G. § 2G2.1(a), and increased it by four levels due to the age of the victim and her relationship to Mugan. See U.S.S.G. §§ 2G2.1(b)(1)(B), 2G2.1(b)(2). The district court also imposed a two level enhancement for obstruction of justice based on letters in which Mugan had solicited false, exculpatory testimony from family members. His adjusted offense level of 33, together with his criminal history category III, resulted in a sentencing range of 168 to 210 months. 7 The district court departed upward two levels on the grounds that Mugan's administration of sleeping medication to his daughter to facilitate the production of the sexually explicit photographs was a factor not accounted for in the sentencing guidelines, see 18 U.S.C. 3553(b), and that Mugan's criminal history failed to reflect the seriousness of his past conduct. See U.S.S.G. § 4A1.3(a)(1). The resulting total offense level of 35 placed Mugan in a range of 210 to 262 months imprisonment, and the district court sentenced him to the statutory maximum of 240 months in prison. His sentence also included three years supervised release, $4,500 restitution to his wife for wages lost when she was fired as a result of his conduct, and a $100 special assessment. Mugan appeals from the judgment. II. 8 Mugan argues that the statutes under which he was charged are beyond the constitutional authority of Congress to regulate interstate and foreign commerce because they target the purely intrastate production and possession of child pornography. U.S. Const. Art. I, § 8, Cl. 3. Mugan contends that the intrastate production and possession of child pornography without a proven intent to distribute it beyond the state is noneconomic conduct outside the reach of the commerce power, citing United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). Although the statutes contain a jurisdictional element which requires that the child pornography have been produced with interstate materials, he says they fail to ensure a connection between the images and interstate commerce. He also claims that Congress has not made findings addressing the effects of intrastate pornography on interstate commerce and that the connection between purely local child pornography and interstate commerce is attenuated. 9 The government responds that this court has already upheld the constitutionality of § 2251(a) and other child pornography provisions, based on their express jurisdictional elements requiring that interstate materials have been used in the production of the pornography. Since Mugan was shown to have used a digital memory stick obtained through interstate commerce in producing the images, the government maintains that his prosecution is constitutional. The government further argues that the prosecutor need not prove commercial distribution or an intent to distribute commercially because the child pornography industry as a whole substantially affects interstate commerce. 10 While we review a challenge to the constitutionality of a statute de novo, United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir.1997), cert. denied, 522 U.S. 934, 118 S.Ct. 341, 139 L.Ed.2d 264 (1997), "[d]ue respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds," United States v. Morrison, 529 U.S. at 607, 120 S.Ct. 1740. 11 Congress has the power under the Commerce Clause to regulate "activities that substantially affect interstate commerce," as well as the channels and instrumentalities of interstate commerce. United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Whether an activity is one that substantially affects interstate commerce is determined by focusing on four factors in particular: (1) whether the regulated activity is economic in nature; (2) whether the statute contains an express jurisdictional element which limits its application to activities with "an explicit connection with or effect on interstate commerce"; (3) whether there are congressional findings about the regulated activity's effects on interstate commerce; and (4) whether the connection between the activity and a substantial effect on interstate commerce is attenuated. Morrison, 529 U.S. at 610-13, 120 S.Ct. 1740. 12 We have already upheld the constitutionality of federal child pornography prosecutions under the statute of which Mugan was convicted and under similar statutes. The first of our cases preceded the Supreme Court's Morrison decision, but the other two came after it. In United States v. Bausch, 140 F.3d 739 (8th Cir.1998), we affirmed a conviction for possession of child pornography under 18 U.S.C. § 2252(a)(4)(B). We rejected the defendant's claim that his prosecution was unconstitutional, for the statute's "express jurisdictional element," which limits prosecution to cases in which the depictions or the underlying materials had been transported in interstate commerce, ensured that "each defendant's pornography possession affected interstate commerce." Id. at 741. Then in United States v. Hoggard, 254 F.3d 744, 746 (8th Cir.2001), we upheld a conviction under § 2251(b) for pornographic photographs of children engaged in sex acts with the defendant's wife which were produced with interstate materials. In the opinion authored by Judge Richard S. Arnold, the court held that it was "bound by the reasoning of Bausch" and it distinguished Morrison and Lopez because in neither of those cases "did the statute involved contain an express jurisdictional element, requiring the government to prove, in each case, a concrete connection with interstate commerce." Id. 13 Our third precedent was one involving the same statute under which Mugan was convicted. The defendant in United States v. Hampton, 260 F.3d 832, 833-34 (8th Cir.2001), cert. denied, 535 U.S. 1058, 122 S.Ct. 1919, 152 L.Ed.2d 828 (2002), was prosecuted under §§ 2251(a) and 2252(a)(4)(B) for the intrastate production and possession of child pornography on videotapes transported in interstate commerce. The defendant argued that Bausch was "no longer good law" in light of Morrison, Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and Lopez. Id. at 834. The opinion, authored by then Chief Judge Roger Wollman, pointed out that subsequent to those Supreme Court decisions, our court held in Hoggard "that Bausch continues to control the constitutionality of federal criminalization of child pornography produced with materials that have traveled in interstate commerce." Id. at 834-35. The defendant's constitutional attack thus failed. 14 These circuit precedents are controlling here. See United States v. Wright, 22 F.3d 787, 788 (8th Cir.1994). The statutes under which Mugan was charged, §§ 2251(a) and 2252A(a)(5)(B), both require proof that the subject child pornography was produced with materials transported in interstate commerce, and the evidence in this case includes proof that the offending images were stored on a digital memory card previously transported in interstate commerce. Mugan's convictions are therefore tied to interstate commerce, and they are not constitutionally infirm. 15 Although our Eighth Circuit cases have focused on the express jurisdictional element part of the Morrison test in analyzing the constitutionality of federal prosecution of intrastate child pornography, some other circuits have used a broader approach. In a case brought like Mugan's under § 2251(a), for the production of child pornography with equipment transported in interstate commerce, the First Circuit looked at the congressional findings underlying the statute. See United States v. Morales-de Jesus, 372 F.3d 6 (1st Cir.2004). It cited the findings Congress made about the large scale of the interstate child pornography market, the reliance of that market on materials produced intrastate, and the ability of intrastate production to "inflame[ ] the desires" of consumers and thereby increase interstate demand. Id. at 10-11 (quoting Child Pornography Protection Act of 1996, Pub.L. No. 104-208, § 1(4), 110 Stat. 3009 (1996)). Based on the existence of a nationwide "highly organized, multimillion dollar" child pornography industry that relies on locally produced images, id. at 10 (quoting S.Rep. No. 95-438, at 6 (1977)), the First Circuit concluded that the intrastate production of child pornography is an economic activity which has a direct connection with a substantial effect on interstate commerce and that Congress could "curb the nationwide supply for these materials" by stopping such intrastate production. Id. at 16. 16 In yet another § 2251(a) prosecution, the Second Circuit used a similar analysis in rejecting a challenge to federal jurisdiction in a case where child pornography was produced with videocassettes which had traveled interstate. United States v. Holston, 343 F.3d 83 (2d Cir.2003). The court found that intrastate child pornography production is an economic activity due to its role in supplying the extensive interstate market which Congress documented and that there is more than an attenuated connection between intrastate child pornography production and a substantial effect on interstate commerce. Id. at 88-89. Since "much of the child pornography that concerned Congress is homegrown, untraceable, and enters the national market surreptitiously," Congress had the authority to prohibit the "local production that feeds the national market and stimulates demand," for it has a substantial effect on interstate commerce. Id. at 90. 17 The Fifth Circuit also focused on the national market in United States v. Kallestad, 236 F.3d 225 (5th Cir.2000), where it upheld a § 2252(a)(4)(B) conviction for possession of pornographic materials. It observed that interstate child pornography traffic often "`involves photographs taken by child abusers themselves,'" which are then published in commercial magazines distributed through the mails. Id. at 228-29 (quoting Attorney General's Commission on Pornography: Final Report 406 (U.S. Dep't of Justice, 1986)). The relationship between intrastate possession and interstate commerce was held to be substantial. Since law enforcement officials are often unable to determine whether a particular piece of child pornography has traveled in interstate commerce, the Fifth Circuit concluded that Congress could constitutionally regulate purely intrastate production and possession in order to curb interstate trade. Id. at 231. 18 In these three child pornography cases our sister circuits considered all of the Morrison factors, including the realities of the marketplace,4 and it makes sense for us also to look beyond the jurisdictional nexus element in analyzing the effects on interstate commerce. The extent of the interstate market for child pornography described by Congress and its dependence upon locally produced materials demonstrate that the intrastate production and possession of child pornography is an economic activity connected to interstate commerce. The congressional findings underlying the child pornography statute at issue in the case before the court distinguish it from Lopez, 514 U.S. at 562-63, 115 S.Ct. 1624, where there were no findings tying the statute to interstate commerce, and from Morrison, 529 U.S. at 614-15, 120 S.Ct. 1740, where there were only general findings showing no more than an attenuated effect on interstate commerce. Moreover, unlike the possession of guns in school zones in Lopez, 514 U.S. at 561, 115 S.Ct. 1624, and the gender related violence in Morrison, 529 U.S. at 617, 120 S.Ct. 1740, the intrastate production of child pornography is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated," Lopez, 514 U.S. at 561, 115 S.Ct. 1624. 19 The connection between intrastate child pornography and interstate commerce is even stronger in this case than those decided by the First, Second, and Fifth Circuits. Not only had the materials Mugan used in the production of his pornography traveled in interstate commerce, but the sexually explicit images of him with his daughter were digitally stored on a memory card. By storing the images on this digital card, Mugan placed them on a medium which would permit their immediate and widespread dissemination over the internet. Although locally produced and possessed, Mugan's images were thus ready to be offered on the national market in child pornography. In contrast, the images at issue in Morales-de Jesus, Holston, and Kallestad were not as easily distributable since they would have required physical reproduction and dissemination on film or videocassettes. The convictions in those cases were nonetheless upheld without proof that the images had been transmitted in interstate commerce or that such transmission was intended. That type of detailed proof need not be made in each individual case when there is a "general regulatory statute bear[ing] a substantial relation to commerce," such as there is here. See Lopez, 514 U.S. at 558, 115 S.Ct. 1624 (internal citations omitted). This is because "the de minimis character of individual instances arising under [such a] statute is of no consequence." Id. 20 Not only must Mugan's constitutional challenge be rejected under our circuit precedents, but a more detailed application of the Morrison factors supports that result. Given the congressional findings about the nationwide child pornography market and its dependence upon locally produced materials for both supply and demand, Mugan is not entitled to prevail on his constitutional arguments. III. 21 Mugan next argues that the district court erred in denying his motion to withdraw his guilty plea. He contends that he should have been allowed to withdraw the plea because his counsel was ineffective and the prosecutor was misleading about the extent of sentencing departures that would be sought. We review a district court's denial of a motion to withdraw a plea for abuse of discretion. United States v. Payton, 168 F.3d 1103, 1105 (8th Cir.1999). A guilty plea may be withdrawn before sentencing if the defendant demonstrates a "fair and just reason" for the withdrawal. Fed.R.Crim.P. 11(d)(2)(B). The district court may also consider any assertions of legal innocence, the amount of time between the plea and the motion to withdraw, and the prejudice to the government in granting the motion. Payton, 168 F.3d at 1105. The defendant bears the burden of showing fair and just grounds for withdrawal. United States v. Gray, 152 F.3d 816, 819 (8th Cir.1998). 22 Mugan did not show a fair and just reason for the withdrawal of his plea. No factual record was developed to support his assertions of ineffective assistance, and such claims ordinarily are best reviewed in collateral proceedings. See Payton, 168 F.3d at 1105 n. 2. Mugan's contention that he was misled about the government's sentencing posture is also not supported by the record. The government stated at Mugan's plea hearing that the parties could seek departures under the plea agreement, and the court notified Mugan that he faced up to twenty years in prison. At the same hearing Mugan acknowledged that no promises beyond those in the plea agreement had been made to him. Mugan did not move for withdrawal until five months after the entry of his plea (and three and a half months after the appointment of new counsel), and his only assertion of innocence was made at the prompting of his lawyer during the motion hearing. Guilty pleas should not be "set aside lightly." United States v. Prior, 107 F.3d 654, 657 (8th Cir.1997), cert. denied, 522 U.S. 824, 118 S.Ct. 84, 139 L.Ed.2d 41 (1997). We conclude that the district court did not abuse its discretion in denying Mugan's motion to withdraw. IV. 23 Mugan finally challenges the sentence imposed by the district court under the sentencing guidelines. He argues that the district court erred by granting an obstruction of justice enhancement based upon letters he wrote to family members and by departing upward. The review of findings of fact at sentencing is for clear error, and application of the guidelines to the facts is reviewed de novo. United States v. Dillard, 370 F.3d 800, 804 (8th Cir.2004). The reasonableness of the district court's sentencing departures are reviewed for abuse of discretion, and whether the district court based its departure on a permissible factor is reviewed de novo. United States v. Long Turkey, 342 F.3d 856, 859-60 (8th Cir.2003). 24 The district court found that Mugan attempted to obstruct justice by sending letters to his wife and other family members in which he solicited false and exculpatory testimony. He wrote his wife in violation of a state no contact order and repeatedly asked and demanded that she withdraw her earlier identification of him in the photographs that were the subject of the prosecution, going so far as to suggest she indicate "only 50%" certainty that he was the one pictured. A letter from Mugan to his brother also emphasized his wife needed to claim uncertainty and requested ideas about how to minimize a prior instance of his sexual contact with a minor. 25 Under USSG § 3C1.1, a two level enhancement should be applied if the court finds a defendant "willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the course of the investigation, prosecution, or sentencing of the instant offense of conviction." U.S.S.G. § 3C1.1. Obstruction includes both "threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so," and "committing, suborning, or attempting to suborn perjury." Id. cmt. n.4(a)-(b). 26 Mugan argues that the district court misconstrued his letters. At the sentencing hearing Mugan testified that he was only seeking truthful testimony from all involved. The district court disbelieved this testimony, and its credibility determination is entitled to deference. United States v. Peck, 161 F.3d 1171, 1174 (8th Cir.1998). Moreover, his letters do not read like his goal was the pursuit of the truth. To the contrary, the letters solicited testimony to diminish evidence of his guilt and to improve his sentencing posture. The district court did not err in enhancing Mugan's sentence. 27 The district court's upward departure was based in part on Mugan's use of sleeping medication in committing his crime. The court relied on a letter Mugan wrote to his wife about his offense in which he said that he had used "sleep medicine" before taking pictures of his sexual intercourse with the daughter because he did not want her to know what he had done. The district court found Mugan had drugged his victim in order to facilitate his offense. The guidelines provide no specific enhancement for the drugging of a victim, and the court found that Mugan's drugging of his daughter was an aggravating circumstance of a kind not accounted for in the guidelines. 28 At the sentencing hearing Mugan denied using the medication and claimed he lied to his wife in order to dispel rumors that his daughter was a willing participant. According to Mugan, the government failed to rebut this testimony so the district court's finding that medication was used was clearly erroneous. The district court was in the best position to determine the credibility of Mugan's testimony, however. See United States v. Holt, 149 F.3d 760, 762 (8th Cir.1998). It was not clear error for it to believe Mugan's earlier written statement, rather than the oral comments made at the sentencing hearing. Mugan also contends that the Sentencing Commission must have specifically considered and rejected an enhancement for defendants who use chemicals to accomplish their way with a victim since the guidelines specifically provide for an enhancement when a victim is physically restrained. See U.S.S.G. §§ 3A1.3, 1B1.1 cmt. n.1(K). There is no indication in the guidelines that the enhancement for physical restraint was intended to include the use of drugs to facilitate sex abuse, and we conclude that Mugan's administration of sleep medication to his daughter to accomplish his purpose was a permissible factor on which to depart and that the district court's departure was reasonable. 18 U.S.C. § 3553(b)(2)(A)(i). 29 Mugan's last argument relates to the other basis for the upward departure, the finding by the district court that his criminal history category of III failed to represent the seriousness of his past conduct and future risk. This finding was based on the testimony of three of Mugan's nieces. The first niece testified that Mugan molested her at the age of fourteen, but no charges were filed. The second testified that Mugan viewed a pornographic film with her and another minor girl; Mugan pled guilty to contributing to the delinquency of a minor as a result. The third testified that Mugan sexually assaulted her on three occasions; he pled guilty to simple assault. The district court also found from Mugan's letters that he had taken "inappropriate pictures" of another daughter from a former marriage. The court concluded that the seriousness of these actions and the likelihood of future criminal conduct suggested by them was not reflected in the minor convictions that resulted from the conduct, thus justifying an upward departure under § 4A1.3. 30 Section 4A1.3 permits upward departures when there is "reliable information" that the seriousness of the defendant's past crimes or the likelihood that he would commit others was not fully reflected in his criminal history category. Mugan contests the departure both factually and legally. First he contends that his nieces were motivated to lie and that they gave conflicting testimony. The district court believed their testimony, however, and we see no reason not to credit its determination. See Holt, 149 F.3d at 762 (8th Cir.1998). Mugan also argues that his prior conduct does not demonstrate the level of incorrigibility or dangerousness required under § 4A1.3. While Mugan's prior criminal history is not as extensive as some, his consistent pattern of sexual misconduct indicates a likelihood of future sexual abuse not reflected in his criminal history category. See U.S.S.G. § 4A1.3 cmt. n.2(B) ("[T]he nature of the prior offenses rather than simply their number is often more indicative of the seriousness of the defendant's criminal record."). The district court did not err in departing upward on this basis. V. 31 Because Congress did not exceed its authority under the Commerce Clause in enacting the statutes under which Mugan was charged in this case, because Mugan did not offer a fair and just reason for the withdrawal of his guilty plea, and because Mugan has not shown that the district court erred in sentencing, we affirm the judgment of the district court. Notes: 1 The Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa 2 18 U.S.C. § 2251(a) prohibits the use of a minor "to engage in ... any sexually explicit conduct for the purpose of producing any visual depiction of such conduct" if the depiction is produced with materials previously "mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer." 3 18 U.S.C. § 2252A(a)(5)(B) prohibits the knowing possession of "any book, magazine, periodical, film, videotape, computer disk, or any other material that contains an image of child pornography" if it was produced with materials that have been "mailed, or shipped or transported in interstate or foreign commerce by any means, including by computer." 4 Not long afterMorrison, two circuits took a narrower approach in deciding that § 2252(a)(4)(B) had been unconstitutionally applied in the prosecutions before them. The Sixth Circuit held that a substantial connection to interstate commerce was not evident in the facts presented in United States v. Corp, 236 F.3d 325, 332-33 (6th Cir.2001), and the Ninth Circuit found no economic activity in the specific facts of United States v. McCoy, 323 F.3d 1114, 1115 (9th Cir.2003). Neither case considered the extent of the child pornography market described by Congress and its dependency on intrastate materials.	{ "pile_set_name": "FreeLaw" }
581 S.W.2d 339 (1979) Roger MEARS, County Judge, Pulaski County, Arkansas, Appellant, v. ARKANSAS STATE HOSPITAL, Appellee. No. 79-5. Supreme Court of Arkansas, Division 2. May 29, 1979. 340 Wilbur C. "Dub" Bentley, Pros. Atty., Little Rock, for appellant; John Wesley Hall, Jr., Deputy Pros. Atty., Little Rock, of counsel. Hall, Tucker, Lovell & Alsobrook, Benton, for appellee. HOLT, Justice. The issue on this appeal is the interpretation of Ark.Crim.Code § 41-605(9) (1976). Before its amendment in 1977, it read in pertinent part: "The compensation of persons making or assisting in the examination. . shall be paid by the state." This statute was in effect between January, 1976, and June, 1977. During this time the appellee hospital billed Pulaski County for the "necessary maintenance costs of room and board" for 54 criminal defendants committed to it for mental examinations. The county refused to remit payment. The trial court held that the claims should be paid by the county, and we agree. For reversal appellant argues that this statute should be interpreted to require the state and not the county to pay these costs for these criminal commitments. He argues that § 41-605(9) is ambiguous and, therefore, should be construed as requiring the state to pay all costs of the commitments rather than merely the compensation of the persons who made or assisted in the examinations. A statute must be given its usual and ordinary meaning. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977). We have no authority to construe a statute to mean other than what it says, if it is unambiguous. Weston v. State, 258 Ark. 707, 528 S.W.2d 412 (1975). The commentary to a statute does not control its plain meaning. Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977). Here the statute requires only that the state pay for the "persons making or assisting in the examination." It says nothing about the maintenance costs of room and board. In our view the statute is plain and unambiguous as to the extent of the state's responsibility. Neither do we think that the enactment of § 41-605(9) impliedly repealed 341 the provisions of Ark.Stat.Ann. § 43-1301 (Repl.1977) and Ark.Stat.Ann. § 59-104 (Repl.1971), which provide that the county is to bear the costs of mental examinations of criminal defendants. Implied repeals are not favored. Selig v. Powell, 253 Ark. 555, 489 S.W.2d 484 (1972). To ascertain the intent of the legislature, we examine the statute historically, as well as the contemporaneous conditions at the time of its enactment, consequences of interpretation, and other matters of common knowledge within the limits of our jurisdiction. Prewitt v. Warfield, 203 Ark. 137, 156 S.W.2d 238 (1941). Counties historically have borne the costs of mental examinations when criminal defendants are committed for observation. §§ 43-1301 and 59-04. Also Campbell, County Judge v. Arkansas State Hospital, 228 Ark. 205, 306 S.W.2d 313 (1957). Counties are obligated to pay for costs of the administration of justice where required to do so by the legislature. Mears v. Hall, 263 Ark. 827, 569 S.W.2d 91 (1978). The legislature, by enacting § 41-605(9), as evidenced by the commentary, sought to "minimize" those costs to the county as a factor influencing the decision by a trial judge to commit a criminal defendant for a mental examination. It did not eliminate payments by the county of all cost factors. Here, as indicated, we interpret § 41-605(9), as originally enacted, as mandating the state to pay only the costs of personnel making or assisting in the mental examination. That leaves the unassigned costs to the county for payment. Consequently, if the legislature intended for § 41-605(9) to be a complete substitute for §§ 43-1301 and 59 404, then there would be no provision for the assignment of responsibility for the remainder of the costs of examination; i. e., the "necessary maintenance costs of room and board" as sought here. This would be an impractical result which we think the legislature did not intend. The court was correct in its interpretation of the statutes involved. Affirmed. We agree: HARRIS, C. J., and FOGLMAN and PURTLE, JJ.	{ "pile_set_name": "FreeLaw" }
PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 18-1010 _____________ IN RE: AVANDIA MARKETING, SALES AND PRODUCTS LIABILITY LITIGATION UFCW Local 1776 and Participating Employers Health and Welfare Fund; J.B. Hunt Transport Services, Inc., Appellants ______________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court Nos. 2-07-md-01871, 2-10-cv-02475, 2-11-cv- 04013) District Judge: Hon. Cynthia M. Rufe ______________ Argued: March 6, 2019 ______________ Before: SMITH, Chief Judge, AMBRO and RESTREPO, Circuit Judges. (Filed: December 17, 2019) Thomas M. Sobol [ARGUED] Hannah W. Brennan Edward Notargiacomo Kiersten A. Taylor Hagens Berman Sobol Shapiro 55 Cambridge Parkway Suite 301 Cambridge, MA 02142 James R. Dugan, II Douglas R. Plymale The Dugan Law Firm 365 Canal Street Suite 1000 New Orleans, LA 70130 Eric L. Young McEldrew Young 123 South Broad Street Suite 2250 Philadelphia, PA 19109 Eric H. Gibbs Anne-Marie J. de Bartolomeo Gibbs Law Group 505 14th Street Suite 1110 Oakland, CA 94612 Counsel for Appellants Jay P. Lefkowitz [ARGUED] Thomas S. Burnett Kirkland & Ellis LLP 2 601 Lexington Avenue New York, NY 10022 Nina M. Gussack Anthony C. Vale Sean P. Fahey Kyle A. Dolinsky Hedya Aryani Jeremy D. Heep Yvonne M. McKenzie Pepper Hamilton LLP 3000 Two Logan Square 18th and Arch Streets Philadelphia, PA 19103 Counsel for Appellee 3 ______________ OPINION OF THE COURT ______________ RESTREPO, Circuit Judge. Plaintiffs, two health benefit plans (“Plans”), appeal the District Court’s grant of summary judgment in favor of Defendant, GlaxoSmithKline LLC (“GSK”), the manufacturer of the prescription drug Avandia. The Plans brought suit against GSK under various state consumer-protection laws and the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. ch. 96 (“RICO”), based on, among other things, GSK’s marketing of Avandia. The District Court granted summary judgment in favor of GSK on the Plans’ claims, finding, in relevant part, that (i) the Plans’ state-law consumer-protection claims were preempted by the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. ch. 9 (“FDCA”); (ii) the Plans had failed to identify a sufficient “enterprise” for purposes of RICO; and (iii) the Plans’ arguments related to GSK’s alleged attempts to market Avandia as providing cardiovascular “benefits” were “belated.” The Plans assert that the District Court erred in granting summary judgment, and we agree. Applying the guidance recently provided by the Supreme Court in Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668 (2019), we hold that the Plans’ state-law consumer-protection claims are not preempted by the FDCA. With respect to their RICO claims, the Plans should have been given the opportunity to seek discovery prior to the District Court’s granting summary judgment on such claims. Further, from the inception of this litigation, the Plans’ claims have centered on GSK’s marketing of Avandia as providing superior 4 cardiovascular outcomes—in other words, cardiovascular benefits—as compared to other forms of treatment, and therefore, the District Court’s refusal to consider the Plans’ “benefits” arguments was in error because those arguments were timely raised. Therefore, for the reasons that follow, we will reverse in part and vacate in part the order of the District Court granting summary judgment in favor of GSK, and we will remand to the District Court for further proceedings consistent with this opinion. I. In May 1999, the Food and Drug Administration (“FDA”) approved Avandia (Rosiglitazone), a drug developed by GSK, for the treatment of type-2 diabetes. Prior to the development of Avandia and similar drugs, physicians primarily treated type-2 diabetes by prescribing metformin and/or sulfonylureas. GSK, however, marketed Avandia at a much higher price point than metformin and sulfonylureas: a one-month supply of Avandia cost approximately $220, approximately $140 of which typically was covered by patients’ health benefit plans, whereas a one-month supply of metformin or sulfonylureas cost approximately $50, about $45 of which typically was covered by patients’ health benefit plans. Despite this cost differential, health benefit plans— including the Plans—placed Avandia on their formularies as a “covered” drug. The Plans, for example, determined that it was advantageous to cover the cost of Avandia because GSK allegedly marketed Avandia as being capable of both controlling a patient’s blood sugar levels and reducing 5 cardiovascular risk, the latter of which is particularly pertinent to type-2 diabetes patients, 65% of whom suffer fatal cardiovascular-related illnesses or complications. Metformin and sulfonylureas—the drugs that constituted the “standard of care” for type-2 diabetes prior to Avandia’s development—did not decrease cardiovascular risk, and therefore, according to the Plans, GSK presented Avandia as a cost-effective alternative to those drugs. As a result, health benefit plans covered a large portion of the expenses related to patients’ prescriptions for Avandia, resulting in approximately $2.2 billion in U.S. sales in 2006 alone. In 2006, however, concerns arose that Avandia may in fact increase certain cardiac risks. In August of that year, GSK submitted a Prior Approval Supplement to the FDA, in which GSK sought approval to add information to Avandia’s label regarding the results of a recent meta-analysis of various clinical trials. The meta-analysis, “ICT-42,” demonstrated that use of Avandia was associated with a statistically significant increase in myocardial ischemic events—events during which the heart does not receive adequate oxygen because blood flow to it is reduced. In May 2007, GSK submitted an update to its Prior Approval Supplement, offering a new formulation of its proposed warning with respect to myocardial ischemic events that would, among other things, make the warning more prominent and clear. Three days after GSK submitted the update to its Prior Approval Supplement, the New England Journal of Medicine published a study authored by Dr. Steve Nissen regarding Avandia (“Nissen Study”), in which Dr. Nissen concluded that Avandia “was associated with a significant increase in the risk of myocardial infarction and with an increase in the risk of death from cardiovascular causes that had borderline 6 significance.” J. App. 1064. Following the release of the Nissen Study, a representative of GSK held a telephone conversation with an official at the FDA regarding progress on the FDA’s review of the Prior Approval Supplement. According to GSK’s representative, who wrote a memo memorializing the details of the conversation, the FDA official advised that another official within the FDA was “calling for withdrawal of [the] approval” of Avandia, and thus, it was difficult for FDA officials to agree on labeling language for Avandia. Sealed App. 655–56. GSK’s representative then proposed implementing the labelling changes with respect to myocardial ischemic events through the Changes Being Effected (“CBE”) process, which permits a drug manufacturer to implement a change to its label prior to approval of such label by the FDA. The FDA official “strongly advised against proceeding” through the CBE process, stating that doing so “may give legitimacy to Dr. Nissen’s data” and “will make people think that GSK must have other information.” Id. at 656. The FDA official concluded the conversation by reminding the GSK representative that he “knew the regulations,” which state that the drug manufacturer is ultimately responsible for making the decision to pursue a labelling change through the CBE process. Id. On June 8, 2007, the FDA sent a letter (“Letter”) to GSK regarding the Prior Approval Supplement. In the Letter, the FDA stated that it had “reviewed the data provided [by GSK in its Prior Approval Supplement] and f[ou]nd [that] the information presented [was] inadequate” and that, therefore, the Prior Approval Supplement was “not approvable.” Id. at 660. The FDA stated that it had “concluded that the pooled data require[d] further analysis to adequately convey the potential risk for increased cardiac ischemia associated” with 7 use of Avandia. In particular, the FDA stated that it had “identified certain subgroups of patients . . . that may be particularly vulnerable to experiencing an ischemic event” while using Avandia. Id. The FDA then directed GSK to provide additional information “to address the deficiency” in the Prior Approval Supplement, including “[d]ata from studies included in a meta-analysis performed by Dr. Steven Nissen published in the New England Journal of Medicine that were not included in [GSK’s] pooled analysis,” as well as data from various other clinical trials. Id. at 661. The FDA expressed its view that the “potential risk of increased cardiac ischemia [was] a significant finding that may impact a large proportion of patients with type[-]2 diabetes,” and as a result, the FDA scheduled a joint meeting of two FDA advisory committees (“Joint Meeting”) “to discuss the findings from th[e Prior Approval Supplement] submission, additional data recently requested, and accruing information from ongoing clinical trials” of Avandia. Id. The FDA stated that the “outcome of th[e Joint M]eeting w[ould] be particularly germane to any labeling or other regulatory action needed for [Avandia] and should be factored into any resubmission to address the above deficiencies.” Id. Later in 2007, the FDA required GSK to implement various changes to Avandia’s label. Subsequent to issuing the Letter, the FDA directed GSK to add a black-box warning to Avandia’s label with respect to the risk of congestive heart failure that (i) advised physicians and patients that Avandia “cause[s] or exacerbate[s] congestive heart failure in some patients,” (ii) instructed physicians to “observe patients [taking Avandia] carefully for signs and symptoms of heart failure,” and (iii) warned patients with certain heart conditions not to take Avandia. J. App. 708. Following the Joint Meeting, the 8 FDA additionally directed GSK to add a black-box warning to Avandia’s label with respect to the risk of myocardial ischemic events, advising physicians and patients that a “meta-analysis of 42 clinical studies . . . , most of which compared Avandia to placebo, showed Avandia to be associated with an increased risk of myocardial ischemic events such as angina or myocardial infarction” and that “[t]hree other studies . . . , comparing Avandia to some other approved oral antidiabetic agents or placebo, have not confirmed or excluded this risk.” Id. at 743. The FDA also required GSK to include a longer explanation of the data with respect to the risk of myocardial ischemic events elsewhere on Avandia’s label. Approximately three years later, in 2011, the FDA again directed GSK to revise the warning on Avandia’s label, including the black-box warning, with respect to the risk of myocardial ischemic events. By that time, GSK had completed fifty-two (52) clinical trials. The FDA’s required warning advised physicians and patients that “[a] meta-analysis of 52 clinical trials . . . , most of which compared Avandia to placebo, showed Avandia to be associated with a statistically significant increased risk of myocardial infraction” and that “[b]ecause of the potential increased risk of myocardial infarction, Avandia [was] available only through a restricted distribution program.” Id. at 786. In a memorandum accompanying its direction to implement the labelling changes, the FDA noted that the “evidence pointing to a cardiovascular ischemic risk with [Avandia] is not robust or consistent,” but that “[n]evertheless, there are multiple signals of concern, from varied sources of data, without reliable evidence that refutes them.” Id. at 1397. In November 2013, however, following the readjudication of a particular clinical trial (“RECORD Trial”), the FDA concluded that while “[o]ne cannot entirely discount 9 the results of the meta-analysis” that associated Avandia with a statistically significant increased risk of myocardial ischemic events, “the totality of the available evidence does not support a marked signal of cardiovascular harm.” Id. at 1656. The FDA determined that, following the readjudication of the RECORD Trial, Avandia “does not appear to be associated with an increased risk of major adverse cardiovascular events or death, although a small amount of residual uncertainty remains.” Id. at 1657. The FDA directed GSK to revise Avandia’s label “to reflect the current level of knowledge regarding [its] cardiovascular risk.” Id. In 2014, GSK revised Avandia’s label pursuant to the FDA’s direction. GSK removed information regarding the restricted-distribution program from the label and information regarding the risk of myocardial ischemic events from the black-box warning only. The revised label, however, continued to warn physicians and patients elsewhere on the label that “[i]n a meta-analysis of 52 double-blind, randomized, controlled clinical trials . . . , a statistically significant increased risk of myocardial infarction with Avandia versus pooled comparators was observed”—this information simply was no longer included in the black-box warning, but this warning nonetheless appeared elsewhere on the label. Id. at 829. Avandia’s label continued to include a black-box warning that (i) advised physicians and patients that Avandia “cause[s] or exacerbate[s] congestive heart failure in some patients,” (ii) instructed physicians to “observe patients [taking Avandia] carefully for signs and symptoms of heart failure,” and (iii) warned patients with certain heart conditions not to take Avandia. Id. at 825. These warnings remain on Avandia’s label to this day. 10 II. The Plans brought suit alleging that GSK falsely marketed Avandia and concealed data with respect to its potential cardiovascular risks and side effects, thereby violating RICO and various state consumer-protection laws. The Plans assert that they would not have placed Avandia on their formularies if GSK had disclosed the cardiovascular risks that are in fact associated with Avandia. In other words, the Plans would not have covered the cost of Avandia, which was considerably more expensive than alternatives, if they had known that Avandia not only did not reduce cardiovascular risk in type-2 diabetes patients but also increased cardiovascular risk as compared to those alternatives. The Plans first filed suit in May 2010, and their cases subsequently were consolidated in a multi-district litigation case, which also included consumer and personal-injury suits filed by other plaintiffs. In November 2010, GSK filed a motion to dismiss the Plans’ complaints, arguing that the Plans lacked standing to bring claims under RICO. In October 2013, the District Court denied GSK’s motion, and, in October 2015, we affirmed the decision of the District Court on an interlocutory appeal. See In re Avandia Mktg., Sales Practices & Prod. Liab. Litig. (Avandia I), 804 F.3d 633, 646 (3d Cir. 2015). In May 2016, GSK filed a motion for summary judgment. It argued that it was entitled to summary judgment because, among other things, the Plans’ state-law consumer- protection claims were preempted by the FDCA and the Plans had failed to identify a distinct “enterprise” for purposes of RICO. The Plans opposed the motion. 11 In December 2017, the District Court granted summary judgment in favor of GSK. First, the District Court refused to consider the Plans’ arguments that GSK falsely marketed Avandia as providing cardiovascular benefits in comparison to alternatives because such arguments were “belated.” Unsealed App. 4. The District Court noted that the Plans “seemed to [have] shift[ed] their allegations to focus on Avandia’s benefits, rather than the risks,” and stated that it only would “address GSK’s motion for summary judgment as to [the Plans’] state law claims on cardiovascular risk.” Id. at 3–4. It stated that it would not “entertain” any of the Plans’ “benefits” arguments “at th[at] juncture” due to their “belated” nature. Id. at 4. Second, the District Court found that the Plans’ state- law consumer-protection claims were preempted by the FDCA under the doctrine of “impossibility” preemption. It found that three separate facts established “clear evidence” that the FDA would not have approved a change to Avandia’s label with respect to cardiovascular risks: (a) “the FDA rejected GSK’s [Prior Approval Supplement],” (b) “the FDA advised against using the CBE process to unilaterally change the label,” and (c) “the FDA ultimately concluded that there was no increased cardiovascular risk with Avandia use in relation to comparators.” Id. at 24. With respect to the Prior Approval Supplement, the District Court found that the “rejection of GSK’s proposed label on the basis of inconclusive data, considered with other evidence, constitutes clear evidence that the FDA would not have approved the label change . . . , particularly where . . . the FDA wanted to conduct further review of the data.” Id. at 24–25. Regarding the FDA’s advising against using the CBE process, the District Court found that an FDA representative’s statements—that she 12 “strongly advised” against using the CBE process and that initializing that process would be “looked on with suspicion” and would “pull the rug out” from the FDA’s then-current plans for reviewing Avandia’s label—“shows that the FDA advised against using [the] CBE [process] to make the proposed label change prior to November 2007.” Id. at 25. Finally, the District Court placed an emphasis on the FDA’s “remov[al of] the black[-]box warning and restricted[-]access information from Avandia’s label,” as well as the FDA’s “current conclusion that a link between Avandia use and increased cardiovascular risk does not exist.” Id. at 26. In summary, the District Court found that the “FDA would not have approved of a warning for increased cardiovascular risk in Avandia versus competitors earlier than 2007 . . . and would not approve one now.” Id. Third, the District Court concluded that the Plans failed to identify an “enterprise” that satisfies the “distinctiveness” requirement of RICO. Specifically, it determined that “GSK was conducting its own business in selling Avandia, and thus . . . GSK is both the person and the enterprise.” Id. at 16. Because “RICO liability ‘depends on showing that the defendants conducted or participated in the conduct of the enterprise’s affairs, not just their own affairs,’” the District Court found that the Plans had not adequately alleged that an “enterprise” existed because they merely alleged that the “enterprise” in this case consisted of “GSK and its agents.” Id. (emphasis in original) (quoting Reeves v. Ernst & Young, 507 U.S. 170, 185 (1993)). The Plans timely appealed. They also appealed two orders of the District Court that maintained the vast majority of the summary-judgement record under seal. We considered that appeal in In re Avandia Mktg., Sales Practices and Prods. 13 Liab. Litig. (Avandia II), 924 F.3d 662, 680 (3d Cir. 2019), in which we vacated the District Court’s sealing orders. III. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332(d), and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a district court’s grant of summary judgment. Reedy v. Evanson, 615 F.3d 197, 210 (3d Cir. 2010). When a district court grants summary judgment without considering a declaration filed by the nonmoving party under Federal Rule of Civil Procedure 56(d), however, we review for abuse of discretion the district court’s decision to disregard the Rule 56(d) declaration. Shelton v. Bledsoe, 775 F.3d 554, 568 (3d Cir. 2015). A. With the benefit of the Supreme Court’s recent guidance in Merck, which was decided following oral argument in this case and well after the District Court’s issuance of its memorandum opinion, 1 we hold that the Plans’ state-law consumer-protection claims are not preempted by the FCDA, and we therefore will reverse the District Court’s order granting summary judgment in favor of GSK on such claims. In Wyeth v. Levine, 555 U.S. 555, 570–71 (2009), the Supreme Court recognized that “it has remained a central premise of federal drug regulation that the manufacturer [of a pharmaceutical] bears responsibility for the content of its label 1 We subsequently ordered the parties to submit supplemental letter briefs discussing Merck’s effect, if any, on the disposition of this case. 14 at all times” and that the manufacturer “is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market.” Thus, when it “bec[o]me[s] apparent” that a drug poses a certain risk to the health and safety of persons taking it, the manufacturer of the drug “ha[s] a duty to provide a warning that adequately describe[s] that risk.” Id. at 571. The manufacturer may warn persons of that risk by altering the drug’s label through the CBE process, which “permit[s] it to provide such a warning before receiving the FDA’s approval.” Id. Under the FDCA, however, the FDA “retains authority to reject labeling changes made pursuant to the CBE regulation in its review of the manufacturer’s supplemental application, just as it retains such authority in reviewing all supplemental applications.” Id. Therein lies the conflict that may give rise to impossibility preemption: even though a drug manufacturer has the responsibility under state consumer-protection laws to accurately label a drug and may change the label pursuant to the CBE process prior to receiving approval from the FDA, it may reject a label change at any time if it considers the drug to be “mislabeled” under the FDCA. Thus, a situation may occur in which a drug company seeks to change its label to add a warning that it believes is required by state consumer- protection laws, but the FDA considers the drug “mislabeled” under the FDCA in light of the new warning that was added to the label. In that situation, it would be impossible to comply with both state and federal law. In resolving this conflict, the Supreme Court struck a balance in Wyeth, holding that the FDCA does not preempt state-law consumer-protection claims regarding the labeling of a drug “absent clear evidence that the FDA would not have approved a change to [the drug]’s label.” Id. 15 After we indicated in In re Fosamax (Alendronate Sodium) Prods. Liab. Litig., 852 F.3d 268, 284 (3d Cir. 2017), vacated, Merck, 139 S. Ct. 1668, that it would be helpful for the Supreme Court to “clarif[y] or buil[d] out the doctrine” espoused in Wyeth, the Supreme Court provided such interpretive guidance in Merck. “[C]lear evidence,” as used in Wyeth’s core holding, means “evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning.” 139 S. Ct. at 1672. Thus, to “show[] that federal law prohibited [a] drug manufacturer from adding a warning that would satisfy state law,” the drug manufacturer must demonstrate that (1) “it fully informed the FDA of the justifications for the warning required by state law” and (2) “the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning.” Id. at 1678. GSK has failed to satisfy either prong of Merck’s two- prong test, and it therefore is not “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). First, GSK has not shown that “it fully informed the FDA of the justifications for the warning required by state law.” Merck, 139 S. Ct. at 1678. In the Letter, the FDA itself stated that it had “reviewed the data provided [by GSK] and f[ou]nd [that] the information presented is inadequate.” Sealed App. 660 (emphasis added). Further, the FDA indicated that GSK needed to submit various data and information “in order to address the deficiency of this application.” Id. at 661. Thus, GSK cannot demonstrate that the FDA was “fully informed . . . of the justifications for the warning,” Merck, 139 S. Ct. at 1678, because the FDA itself 16 stated that it was “inadequate[ly]” informed of the justifications for the warning, Sealed App. 660. GSK argues that it “fully informed” the FDA because GSK (1) provided all “material” information to the FDA and (2) did not have access to the information that the FDA requested until after the latter issued the Letter, but these arguments are unavailing. GSK concedes that the FDA requested additional data and information in the Letter, yet GSK argues that none of the data and information that the FDA actually requested in the Letter was “material” to its proposed warning on cardiac risk, and that therefore, the FDA was “fully informed” for purposes of Merck. This argument turns the regulatory regime on its head. The FDA, not GSK, is the entity with power to approve or refuse a change to a drug’s label, and in making such a decision, it has the statutory authority to conclude that the data and tests submitted by a manufacturer were not “adequate” or that there is “insufficient information about the drug to determine whether the product is safe for use under the conditions prescribed, recommended, or suggested in its proposed labeling.” 21 C.F.R. §§ 314.125(b)(2), (4). GSK is not the arbiter of which data and information is or is not “material” to the FDA’s decision to approve or reject a change to a drug’s label—the FDA, and only the FDA, can determine what information is “material” to its own decision to approve or reject a labelling change. Additionally, by arguing that it did not have access to the FDA’s requested data and information until after the FDA’s issuance of the Letter, GSK undermines its own argument that the FDA was “fully informed.” Merck noted that “a drug manufacturer will not ordinarily be able to show that there is an actual conflict between state and federal law such that it was impossible to comply with both.” 139 S. Ct. at 1679. Thus we 17 read Merck as holding that, in order to prove impossibility preemption, the drug manufacturer must show that the “FDA would not approve changing the drug’s label” and that the FDA was “fully informed . . . of the justifications for the [proposed] warning” at the time that the FDA rejected the proposed warning. Id. at 1678. In other words, the upshot of Merck is that a drug manufacturer must show that the FDA made a fully informed decision to reject a change to a drug’s label in order to establish the “demanding defense” of impossibility preemption. Id. at 1678. If the question of whether the FDA was “fully informed” was not tethered in time to the question of whether the FDA indeed rejected the proposed warning, the “fully informed” prong of the test espoused in Merck would be rendered superfluous. Thus, if GSK wishes to rely on the Letter as proof that the FDA rejected its proposed label change, it must also demonstrate that the FDA possessed all the information it deemed necessary to decide whether to approve or reject the proposed warning at the time it issued the Letter. By arguing that it did not have the FDA’s requested data and information until after the FDA issued its letter, however, GSK is, in effect, conceding that the FDA was not “fully informed” at the time of the Letter’s issuance. For that reason, among the others outlined above, GSK cannot satisfy the first prong of the test espoused in Merck. Second, GSK cannot show that the “FDA . . . informed [it] that the FDA would not approve changing the drug’s label to include [the relevant] warning.” Id. at 1678. GSK directs the Court’s attention to the Letter as proof that the FDA rejected the proposed warning. The Letter indeed stated that GSK’s Prior Approval Supplement for a label change was “not approvable,” but the FDA indicated that this was so because 18 the “information presented [by GSK wa]s inadequate.” Sealed App. 660. The FDA then required GSK to “amend the supplemental application,” stating that “[a]ny amendment should respond to all the deficiencies listed” in the Letter. Id. at 661 (emphasis added). Thus, it is clear from the very text of the Letter that the FDA did not consider GSK’s Prior Approval Supplement “not approvable” because it was unconvinced of the need for a strong warning on myocardial ischemic events; rather, the FDA considered the Prior Approval Supplement “not approvable” because it contained various “deficiencies” that the FDA required GSK to ameliorate prior to the FDA’s making a final determination. At most, the Letter indicates that it is possible that the FDA could have rejected the label change after receiving the various data and information it requested from GSK, but as the Supreme Court has reiterated, the “possibility of impossibility [is] not enough.” Merck, 139 S. Ct. at 1678 (alteration in original) (quoting PLIVA, Inc. v. Mensing, 564 U.S. 604, 625 n.8 (2011)). We nevertheless need not speculate regarding the possibility that the FDA would have rejected the proposed warning upon the receipt of the requested data and information because it indeed ordered GSK to include various warnings regarding cardiac risks on Avandia’s label shorty after issuing the Letter, which alone undermines GSK’s position that the Letter represents a rejection of its proposed warning. Finally, we are not persuaded by any of GSK’s arguments that the Plans’ claims are preempted because GSK allegedly was unable to avail itself of the CBE process for various reasons. GSK primarily argues that it could not use the CBE process to introduce a warning on ischemic risks prior to mid-2006, when it submitted its Prior Approval Supplement. GSK reasons that ICT-42 served as the basis for its belief that 19 an ischemic-risk warning should be included on the label, and because that study was completed in mid-2006, it did not have the “newly acquired information” necessary to make a labeling change prior to that time. This argument, however, is undermined by GSK’s own admissions. For example, GSK itself described the results of “ICT-37,” a meta-analysis completed a year earlier in August 2005, as “generally similar” to ICT-42, and GSK stated that “[a]ny numerical differences [between the meta-analyses] were not clinically significant.” Sealed App. 861. Thus, at the very least, it appears that GSK could have used the CBE process to add an ischemic-risk warning as early as August 2005 because, by GSK’s own admission, ICT-37 and ICT-42 indicated similar results and had clinically insignificant numerical differences. 2 Further, GSK cannot rely on its informal phone conversations with an FDA official to claim that it could not pursue a label change through the CBE process, nor can GSK rely on the stock language at the end of the Letter, which advised GSK that Avandia “may be considered to be misbranded under the [FDCA] if it is marketed with the[ proposed] changes before approval of this supplemental application.” Id. at 661. An informal phone conversation with an FDA official is not an “agency action taken pursuant to the FDA’s congressionally delegated authority,” Merck, 139 S. Ct. at 1679, and the stock language at the end of the Letter is a simple statement of the law: if a manufacturer makes a label change pursuant to the CBE process (i.e., without seeking the prior approval of the FDA), the manufacturer always runs the risk that the FDA will 2 We take no position with respect to whether GSK could have used the CBE process, or otherwise sought to change Avandia’s label, to add an ischemic-risk warning prior to August 2005. 20 later reject the label change and consider the drug as “mislabeled,” see 21 C.F.R. § 314.70(c)(7). Finally, GSK’s argument that it could not implement a black-box warning through the CBE process is a red herring—the Plans are not arguing that GSK should have added the black box itself through the CBE process, but rather that GSK should have added the content of the black-box warning anywhere on the label. GSK thus has failed to demonstrate that the Plans’ state- law consumer-protection claims are preempted by the FDCA, and GSK therefore is not entitled to summary judgment on those grounds. Therefore, we will reverse the order of the District Court granting summary judgment in favor of GSK on the Plans’ state-law consumer-protection claims. B. The District Court erred in granting summary judgment on the Plans’ RICO claims without giving the Plans the benefit of discovery on those claims. “[A] Court ‘is obligated to give a party opposing summary judgment an adequate opportunity to obtain discovery.’” Doe v. Abington Friends Sch., 480 F.3d 252, 257 (3d Cir. 2007) (quoting Dowling v. City of Philadelphia, 855 F.2d 136, 139 (3d Cir. 1988)). “If discovery is incomplete, a district court is rarely justified in granting summary judgment, unless the discovery request pertains to facts that are not material to the moving party’s entitlement to judgment as a matter of law.” Shelton, 775 F.3d at 568. Rule 56(d) provides that “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot 21 present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). “[D]istrict courts usually grant properly filed requests for discovery under Rule 56(d) ‘as a matter of course’ . . . .” Shelton, 775 F.3d at 568 (quoting Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 309–10 (3d Cir. 2011)). “This is particularly true when there are discovery requests outstanding or where relevant facts are under control of the party moving for summary judgment.” Id. A district court abuses its discretion when it grants summary judgment in favor of the moving party “without even considering” a Rule 56(d) declaration filed by the nonmoving party. See id. The Plans never received discovery related to their RICO claims, including with respect to whether an “enterprise” existed for purposes of RICO, and thus when GSK moved for summary judgment on the Plans’ RICO claims, the Plans submitted a detailed Rule 56(d) declaration regarding the lack of discovery on the issues related to RICO. See J. App. 2195– 2198. They subsequently filed a supplemental Rule 56(d) declaration, further elaborating on their need for discovery on RICO-related issues. See id. at 2272–76. The District Court granted summary judgment in favor of GSK on the Plans’ RICO claims without considering their Rule 56(d) declaration and their supplemental Rule 56(d) declaration. This was an abuse of discretion, especially as the District Court granted summary judgment on the ground that the Plans could not prove the existence of an “enterprise,” information related to which is “under control of the party 22 moving for summary judgment”—in this case, GSK. 3 Shelton, 775 F.3d at 568. We therefore vacate the District Court’s order granting summary judgment in favor of GSK on the Plans’ RICO claims, and we remand to the District Court to give proper consideration to the Plans’ Rule 56(d) declarations. IV. Finally, we note that, on remand, the District Court must consider the Plans’ arguments that GSK marketed Avandia as providing cardiovascular benefits. These arguments and claims are not “belated”; the Plans have pursued this line of argument since the outset of this litigation. In the Plans’ complaint itself, the Plans alleged that they “rel[ied] upon [GSK]’s promises of superior treatment and better cardiovascular outcomes compared with the older diabetes drugs” in determining that it was worth the increased cost to cover Avandia. J. App. 1273. They alleged that “better cardiovascular outcomes” were a crucial part of GSK’s alleged fraudulent marketing: “[t]he notion that Avandia would actually lower diabetics’ cardiovascular risk was critical to Avandia’s marketing” because GSK “needed justification for the steep price difference between Avandia and the older established diabetes drugs.” Id. at 1291. While a portion of the Plans’ claims center on the assertion that GSK should have disclosed on its label the true nature of the increased cardiovascular risk that was presented by Avandia as compared to cheaper alternatives, the increased risk is only relevant to the 3 We refuse to construe the District Court’s grant of summary judgment in favor of GSK on the Plans’ RICO claims as a dismissal on the pleadings pursuant to Rule 12(c), particularly because the Plans’ RICO claims previously survived a Rule 12(b)(6) motion to dismiss. See Avandia I, 804 F.3d at 646. 23 Plans’ claims insofar as the Plans make the following argument: GSK failed to warn of Avandia’s true cardiovascular risk, and thus, GSK was continuing—by omission—to promote Avandia as capable of lowering patients’ cardiovascular risk, and GSK thereby continued to induce the Plans to cover the cost of Avandia based on this perceived “benefit” of lowering cardiovascular risk. Id. at 1316. In short, the Plans have never argued that GSK promoted Avandia as capable of actually improving patients’ cardiovascular health, but rather as capable of lowering cardiovascular risk when compared to cheaper alternatives, which indeed is a “benefit.” Because the Plans have raised, throughout these proceedings, arguments that GSK marketed Avandia as providing cardiovascular benefits, it was error for the District Court to refuse to consider those arguments. See, e.g., Hillman v. Resolution Tr. Corp., 66 F.3d 141, 144 (7th Cir. 1995). Therefore, on remand, the District Court needs to give proper consideration to these arguments. V. For the reasons stated above, we will reverse the order of the District Court granting summary judgment in favor of GSK on the Plans’ state-law consumer-protection claims, vacate the order of the District Court granting summary judgment in favor of GSK on the Plans’ RICO claims, and remand to it for proceedings consistent with this opinion. On remand, the District Court shall give proper consideration to the Plans’ Rule 56(d) declarations, as well as their arguments that GSK marketed Avandia as providing cardiovascular benefits. 24	{ "pile_set_name": "FreeLaw" }
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2-01-340-CV IN THE INTEREST OF J.B.W. AND K.G., CHILDREN ------------ FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY ------------ OPINION ------------ Introduction Frances W. appeals from the trial court's termination of her parental rights in her children, J.B.W. and K.G. David G. appeals from the trial court's termination of his parental rights in K.G. J.B.W.'s alleged biological father was a party below, but he does not appeal the trial court's termination order. We will affirm. Background Facts and Procedural History On March 6, 1999, David injured J.B.W. while Frances was at a Laundromat. When Frances returned from the Laundromat and discovered the injuries, she became hysterical. Frances and David argued until David left; then Frances went to the hospital with J.B.W. After J.B.W. was discharged from the hospital, Frances, J.B.W., and K.G. went to a women's shelter to stay. Texas Department of Protective and Regulatory Services (TDPRS) removed the children from Frances on March 8, 1999, when TDPRS feared Frances was going to reunite herself and the children with David. David was arrested on June 28, 1999 and was, at the time of trial, serving a six-year sentence for injuring J.B.W. TDPRS was appointed temporary managing conservator of the children on March 8, 1999. Also on March 8, 1999, TDPRS petitioned to terminate appellants' parental rights in K.G. On May 26, 1999, TDPRS petitioned to terminate Frances's parental rights in J.B.W. The cases were consolidated, and trial began on February 15, 2000. Trial was continued to March 29, 2000, but never resumed. On December 11, 2000, while the children were still in TDPRS's custody, TDPRS filed another lawsuit seeking to terminate appellants' parental rights in J.B.W. and K.G. On May 18, 2001, the trial court dismissed TDPRS's 1999 lawsuit for want of prosecution. The December 2000 lawsuit was tried to the court in August 2001, and the trial court rendered judgment terminating appellants' parental rights in J.B.W. and K.G on October 18, 2001. Trial Court's Subject Matter Jurisdiction In their third issue, appellants complain for the first time on appeal that the trial court had no subject matter jurisdiction to render the October 2001 termination decree. They contend that the trial court's jurisdiction expired sometime in September 2000 under former section 263.401 of the family code (1) and that all of the trial court's rulings made after that date are, therefore, null and void. Before reaching the merits of this argument, we must first address the State's contention that appellants have waived their jurisdictional complaint because they did not raise it in their "statements of points," as required by section 263.405(b) of the family code. (2) A complaint that the trial court lacked subject matter jurisdiction raises fundamental error and therefore may be made at any time on appeal. (3) Thus, the failure to include a subject matter jurisdiction complaint in the statements of points on appeal does not deprive us of our jurisdiction to review the merits of the complaint. (4) We, therefore, hold that appellants did not waive their right to complain about the trial court's lack of subject matter jurisdiction by failing to include the complaint in their statements of points on appeal. (5) We will now address the merits, if any, of appellants' jurisdictional complaint. Section 263.401 of the family code provides that, unless the trial court has rendered a final order on the first Monday after the first anniversary of the date the court appointed TDPRS as temporary managing conservator in a suit affecting the parent-child relationship, the court "shall dismiss" a suit filed by TDPRS that seeks the termination of the parent-child relationship. (6) The trial court may extend this deadline for up to 180 days if, by the Monday after the first anniversary date, the court finds that continuing TDPRS's conservatorship of the child is in the child's best interest and renders an order that complies with section 263.401(b). (7) If the trial court grants an extension, but does not render a final order within the 180-day period, it must dismiss the suit. (8) A party may, however, waive the right to object to the trial court's failure to comply with these statutory deadlines. Under current section 263.402(b), a party "who fails to make a timely motion to dismiss the suit or to make a motion requesting the court to render a final order before the deadline for dismissal . . . waives the right to object to the court's failure to dismiss the suit." (9) To be timely, a motion to dismiss must be made before TDPRS has introduced all of its evidence, other than rebuttal evidence, at the trial on the merits. (10) This provision became effective on September 1, 2001--shortly after the August 2001 trial on termination ended in this case, but before the trial court rendered its termination decree in October 2001--and expressly applies to all termination suits pending on that date "regardless of whether the suit was filed before, on, or after the effective date of this Act." (11) Applying the current version of section 263.402(b) to this case, appellants were required to move to dismiss the suit before TDPRS introduced all of its evidence at the August 2001 trial on termination. Appellants made no such motion or similar objection in the trial court, however, and the case remained on the trial court's docket until it rendered the October 2001 decree of termination. Appellants have, therefore, waived their right to object to the trial court's failure to dismiss the suit because they did not raise the objection in the trial court. (12) Notwithstanding the legislature's clear and unambiguous expression of intent that the September 1, 2001 amendments to section 263.402(b) apply to all termination suits pending on the effective date of the amended statute, appellants assert that the amended version of the statute should not apply to this case. Instead, they contend that this case should be controlled by the former statute, in which the deadlines for rendering or dismissing in a termination suit were jurisdictional and could not be waived. Additionally, appellants argue that applying the waiver provision to this case would lead to a prejudicial, absurd result in that it would require them to have made an objection to the trial court's failure to dismiss during trial that they were not statutorily required to make until after the trial had ended. Appellants contend that this result would be contrary to the legislature's intent and impair their vested right to challenge the trial court's failure to dismiss for the first time on appeal, as they would have been permitted to do under the former statute. In the alternative, appellants contend that, if the trial court retained any jurisdiction over the case after September 2000, it was only for the limited purpose of rendering an order of dismissal. Appellants' arguments are premised on the wording of former section 263.401(b), which read, in pertinent part: On or before the time described by Subsection (a) for the dismissal of the suit, the court may extend the court's jurisdiction of the suit for a period . . . not longer than 180 days . . . . (13) At least one court of appeals has interpreted the phrase "extend the court's jurisdiction" to mean that the trial court lost its jurisdiction over a termination suit under former section 263.401(b) if it failed to render a final order or grant a 180-day extension within a year of the date of the order placing the child in TDPRS's custody. (14) Thus, appellants contend that application of the former statute to this case would render the October 2001 termination decree void and allow them to challenge the trial court's failure to dismiss for the first time in this appeal. It is well settled that "laws may not operate retroactively to deprive or impair vested substantive rights acquired under existing laws, or create new obligations, impose new duties, or adopt new disabilities in respect to transactions or considerations past." (15) On the other hand, no litigant has a vested right in a statute or rule that is remedial or procedural in nature and that affects no vested substantive right. (16) "Changes in such statutes or rules are considered remedial in nature and have been held not to violate the provisions of Article 1, sec. 16 of the Constitution." (17) A statute conferring jurisdiction on a court in which litigation is pending is remedial and does not take away substantive rights because it speaks to the court's power to hear the case rather than to the parties' rights or obligations. (18) Moreover, a right cannot be considered a vested substantive right unless it is something more than a mere expectation based upon an anticipated continuance of the present general laws. (19) "[N]o one has a vested right in the continuance of present laws in relation to a particular subject . . . ." (20) If a statute is remedial or procedural, it controls all affected proceedings from the date it becomes law. (21) It is clear that in amending section 263.401(b) the legislature intended to eliminate the limitations placed on the trial court's jurisdiction in the former statute. Prior to the 2001 amendments, a trial court lost jurisdiction over a termination suit if it failed to render a final order or order an extension of its jurisdiction within a year of the date of an order placing a child in TDPRS's custody. (22) The legislature subsequently amended section 263.402(b) to add the provision that a party waives the right to complain of the trial court's failure to dismiss the suit unless he moves the trial court to render a final order before the deadline for dismissal or makes a timely motion to dismiss the case. At the same time, the legislature amended section 263.401 to omit the language "extend the court's jurisdiction" from section 263.401(b). (23) The current version of section 263.401(b) merely provides that the trial court "may retain the suit on the court's docket for a period not to exceed 180 days"; (24) it no longer contains the "extend the court's jurisdiction" phrase in the former statute that has been construed as meaning that the trial court loses jurisdiction on the first anniversary of the case if it does not order an extension not to exceed the 180-day time period. (25) We believe this change in the wording of section 263.401(b), coupled with the waiver language in section 263.402, clearly indicates that as of September 1, 2001, the legislature intended to eliminate the previous limitation on the trial court's jurisdiction. (26) Because the changes to sections 263.401 and 263.402 confer extended jurisdiction on trial courts in termination suits, the changes are remedial in nature and do not impair appellants' substantive rights since the changes relate only to the trial court's power to hear such cases rather than to the rights or obligations of any party. (27) In addition, we do not believe appellants' right under the former statute to challenge the trial court's failure to dismiss this case for the first time on appeal is a vested substantive right that would preclude retroactive application of the waiver provision in current section 263.402(b). There is no right to complain of unpreserved trial court error for the first time on appeal, except when the error is fundamental. (28) Moreover, the right to complain of trial court error on appeal is a procedural right; (29) it is not a vested substantive right protected by article I, section 16 of the Texas Constitution. At most, appellants had a mere expectation that the right to challenge the trial court's failure to dismiss on jurisdictional grounds for the first time on appeal would continue in effect after the statute was amended. Such an expectation is not a vested right. (30) Therefore, applying the waiver provision to this case does not affect appellants' substantive rights. Likewise, applying the waiver provision here will not create an unjust or absurd result. (31) Despite ample opportunity to do so, appellants never objected at any stage of the trial court proceedings to the trial court's failure to dismiss the termination suit, nor did they give any indication that they wanted the trial court to dismiss the suit. Thus, our conclusion that appellants waived their right to complain for the first time on appeal of the trial court's failure to dismiss does not "work an injustice" under the circumstances of this case. (32) In sum, we hold that the amendments to section 263.401 were intended to eliminate the limitations placed on the trial courts' jurisdiction over termination suits under the former statute; that the changes to section 263.401 are remedial and procedural in nature and do not take any vested substantive rights from appellants; that applying the waiver provision to this case does not create an unjust or absurd result; that the trial court had jurisdiction over the case when it rendered the October 2001 termination decree; and that its act of rendering the decree outside the statutory time period was, at most, voidable, not void. (33) We further hold that because the October 2001 termination decree is not void, appellants waived their right to complain about the trial court's failure to dismiss the case or to challenge the validity of the decree since they did not raise their objections in the trial court. (34) We overrule appellants' third issue. (35) Evidence Supporting Termination The trial court terminated appellants' parental rights on several grounds, including that they had engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's emotional or physical well-being. (36) In their fifth issue, appellants challenge the factual sufficiency of the evidence to support this ground for termination. In her seventh issue, Frances also challenges the factual sufficiency of the evidence to support the trial court's finding that termination of the parent-child relationship was in the children's best interest. We must affirm the termination decree if clear and convincing evidence supports one of the grounds for terminating Frances's and David's parental rights and shows that termination would be in the children's best interest. (37) "Clear and convincing evidence" is defined as the "measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." (38) This intermediate standard falls between the preponderance standard of ordinary civil proceedings and the reasonable doubt standard of criminal proceedings. (39) While the proof must be more than merely the greater weight of the credible evidence, there is no requirement that the evidence be unequivocal or undisputed. (40) Section 161.001(1)(E) requires us to look at the parent's conduct alone, including actions or omissions or failures to act. (41) "Endanger" under section 161.001(1)(E) means to expose to loss or injury, to jeopardize. (42) The term means more than a threat of "metaphysical injury," but it is not necessary that the conduct be directed at the child or that the child actually suffer injury. (43) Nevertheless, there must be evidence of endangerment to the child's physical or emotional well-being as the direct result of the parent's conduct. (44) Additionally, termination under section 161.001(1)(E) must be based on more than a single act or omission; a voluntary, deliberate, and conscious "course of conduct" by the parent is required. (45) Factors we consider in deciding whether termination is in a child's best interest include: the desires of the child; the present and future physical and emotional needs of the child; the present and future emotional and physical danger to the child; the parental abilities of the person seeking custody; programs available to assist those persons in promoting the best interest of the child; plans for the child by those individuals or by the agency seeking custody; the acts or omissions of the parent that may indicate that the existing parent-child relationship is not appropriate; and any excuse for the acts or omissions of the parent. (46) Proof of acts or omissions under section 161.001(1) may also be probative of whether termination is in the child's best interest. (47) The evidence in the record shows: At the time the events giving rise to the termination proceeding occurred, J.B.W. was four years old, and K.G. was sixteen months old. Frances and David were living with the children in a motel room with five dogs, including a "fairly vicious" Rottweiler. Frances left J.B.W. and K.G. in David's care despite being very afraid of him and being well aware of his violent temper, anger control problems, and criminal history, which included prior convictions for assault and aggravated assault. After David was left alone with the children on March 6, 1999, he went next door to the neighbor's to verify from Charlie Smith and her husband Carlton that Frances and her parents had gone to wash clothes. Later, David asked the Smiths to check on the children periodically while he went to find Frances and her parents. About two minutes after David left, Carlton Smith went next door to check on the boys, where he found J.B.W. crying, shaking, and bleeding from one eye. K.G. was in the room with J.B.W. J.B.W. told the Smiths that David had hit him with a dog collar. David had made no mention of J.B.W.'s injury when he asked the Smiths to check on the boys. Carlton Smith called 9-1-1 and asked for an ambulance. While the Smiths were waiting for the ambulance to arrive and tending to J.B.W.'s injury, Frances returned to the motel with David close behind. Frances became hysterical upon seeing J.B.W.'s eye and insisted that the police be called. David threw the Smiths' telephone into the motel parking lot and argued with Frances; however, he left the scene before the police or ambulance arrived. Approximately two weeks before the March 6 incident, Charlie Smith had noticed a bruise on the upper front portion of K.G.'s right thigh, which resembled a hand print. Frances told Charlie that David had caused the bruise by hitting K.G. too hard as a form of punishment. Frances later denied these allegations, however, and testified that Charlie was not truthful. David claimed that the bruising had occurred when K.G.'s leg was pinched by a car seat-belt buckle. Sergeant Chris Hebert, an investigator with the Forest Hill Police Department, also noticed the bruise when he saw the children on March 7 or 8. Frances reported to Hebert that K.G. had been slapped. Child Protective Services (CPS) supervisor George Cannata also noticed the bruise, along with bruises on K.G.'s right eye and forehead, when he first met with the children after March 6. Hebert also photographed several "strap marks" on J.B.W.'s thigh, back, and face, extensive bruising on his left thigh, and marks on his neck that were consistent with strangulation. J.B.W. told Hebert that David had inflicted the injuries with a belt. David admitted at trial that J.B.W. used the term "belt" to refer to the collars and leashes the family used for their dogs. He testified that he had not struck J.B.W. intentionally, but that he had tossed a dog collar back into the motel room while attempting to restrain his dogs, and that the collar must have hit J.B.W. He also claimed to have accidentally knocked J.B.W. into an air conditioner while attempting to restrain a dog. After J.B.W.'s injuries were photographed and treated at the hospital on March 6, Frances went with the boys to a women's shelter, where she signed an agreement not to leave the shelter and to have no contact with David. While Frances was in the shelter, another resident there overheard her having a romantic conversation with someone, in which she said "how much she missed him and she wanted to hold him and be with him, sending him kisses over the phone, telling him they will be together soon." Frances also asked the fellow resident whether it would be possible for her to take her children and just walk away from the shelter and mentioned her plan to leave the following morning. Frances told the other resident that the police would not find David because he was hiding at his mother's house, and Frances would not reveal his whereabouts to police. Frances denied having ever spoken with David while in the shelter and claimed that the other resident had not told the truth. But CPS workers also found a letter dated March 7, 1999, which Frances admitted having written. Although the letter was never sent, it too described how much Frances loved and missed David and wanted to be with him. The letter also said, "You are still J.B.'s daddy, and you always will be . . . ." As a result of Frances's actions, CPS feared that Frances would reunite herself and the children with David. Consequently, CPS intervened and removed the children from Frances's custody. On June 28, 1999, David was found lying in the bed of his truck and was arrested by police. He was charged with and convicted of injury to a child (J.B.W.) and received a six-year prison sentence. David denied having hidden from police, but admitted that he had been aware of the warrant for his arrest and that he had not purposefully turned himself in to the police. At trial, David admitted that he had been incarcerated since his June 1999 arrest and still had to serve three years and nine months of his sentence if he was not granted parole. Frances downplayed the March 7 letter at trial and testified that she was afraid of David and would do whatever she could to keep the children away from him. But a Child Advocates (CASA) witness testified that Frances had said in January 2000 that she not only still considered David a family member, but also intended to marry him once he got out of jail. Frances claimed that the CASA witness was not telling the truth. Meanwhile, by the time of trial, J.B.W. and K.G. had shown remarkable progress while in the care of the foster family who wanted to adopt them. According to foster mother Monica Brown, J.B.W. had gone from needing speech therapy and not knowing how to dress himself to needing no more speech therapy and being able to dress himself. J.B.W. had also learned how to brush his teeth, run his own bath or shower, and return things to their proper places. Likewise, K.G. had adapted quickly to "potty-training." Brown testified that neither Frances nor David had ever tried to call to set up a meeting with either of the children. Frances also admitted that she had not visited her children from June 2000 through July 2001. At trial, a CASA volunteer and a TDPRS caseworker both recommended that appellants' parental rights be terminated due to the severity of the injuries that David had inflicted on J.B.W.; Frances's failure to stay in contact with the children, CASA, or TDPRS, despite attempts to contact her; the children's progress while in foster care; David's incarceration for abusing J.B.W.; and the totality of the facts reflected in the case file, including the doctor's reports and the photographs depicting what the children had endured. Having reviewed the record, we hold that the evidence was sufficient to produce in the mind of the trial court, as fact finder, a firm belief or conviction that Frances and David had each engaged in a course of conduct that endangered the children's emotional or physical well-being. Frances left David alone to care for the children, despite her fear of him and her knowledge of his violent temper, his prior assault convictions, and his then-recent bruising of K.G. while attempting to discipline him. David severely injured J.B.W., left him alone with sixteen-month-old K.G. instead of seeking medical treatment, and then hid from police at his mother's house instead of owning up to the assault. Frances and David both later denied that David's injury of J.B.W. had been intentional or that David had injured K.G. In addition, Frances attempted to reunite with David within a few days after J.B.W. was injured, and there is evidence that she had plans to reunite with David once he was released from prison. This evidence, along with the evidence of David's prolonged incarceration, Frances's failure to complete her service plan or keep in contact with TDPRS or the children, and the children's good progress in the care of a foster family who wished to adopt them, was also sufficient to produce in the mind of the trier of fact a firm belief or conviction that termination was in the children's best interests. Accordingly, we overrule appellants' fifth issue and Frances's seventh issue. In light of our holding, we need not consider Frances's fourth and sixth issues and David's fourth issue, in which they challenge the sufficiency of the evidence to support other grounds for termination. Lost Reporter's Record Frances combined her statement of points on which she intended to appeal with a motion for new trial, as is permitted by section 263.405(b). (48) On November 16, 2001, the trial court held a hearing, as is required by section 263.405(d), to determine whether: (1) a new trial should be granted; (2) any claims of indigence should be sustained; and (3) the appeal was frivolous. (49) The trial court denied appellants a new trial, but found that they were indigent and that their appeal was not frivolous. (50) In Frances's eighth issue and David's sixth issue, they point out that the reporter's record from the November 16 hearing has been lost. (51) They contend that they could potentially have been severely prejudiced by this loss, "[d]epending upon what the other parties argue in their briefs and upon whether the parties disagree on what occurred at the hearing." They thus reserve the right to complain about the absence of the November 16, 2001 reporter's record "in the event it becomes relevant to any of [their] issues." TDPRS's briefs have been on file since March 22, 2002, and appellants have not asserted that any argument in the briefs has prejudiced them due to the lost record or that the parties disagree on what occurred at the November 16 hearing. Accordingly, we will presume that the lost portion of the reporter's record is not necessary to the disposition of this appeal. (52) In addition, our disposition of appellants' evidentiary issues demonstrates that they were not entitled to a new trial. We overrule Frances's and David's eighth and sixth issues, respectively, and affirm the trial court's judgment. JOHN CAYCE CHIEF JUSTICE PANEL A: CAYCE, C.J.; DAY and GARDNER, JJ. [Delivered January 9, 2003] 1. See Act of May 26, 1997, 75th Leg., R.S., ch. 603, § 12, 1997 Tex. Gen. Laws 2119, 2123 (amended 2001) (current version at Tex. Fam. Code Ann. § 263.401 (Vernon 2002)). 2. See Tex. Fam. Code Ann. § 263.405(b) (Vernon 2002) (providing that party intending to appeal termination order must file with trial court a "statement of the point or points" on which party intends to appeal). 3. See Tullos v. Eaton Corp., 695 S.W.2d 568, 568 (Tex. 1985); Tarrant County v. Vandigriff, 71 S.W.3d 921, 925 (Tex. App.--Fort Worth 2002, pet. denied). 4. See In re D.R.L.M., 84 S.W.3d 281, 291 (Tex. App.--Fort Worth 2002, pets. denied) (holding that litigant's failure to file section 263.405(b) statement of points within fifteen days of date of final order does not deprive appellate court of jurisdiction over appeal). 5. Because we hold appellants may raise their jurisdictional complaint, we need not reach appellants' first and second issues complaining that their due process and equal protection rights will be violated if they are precluded from challenging the trial court's subject matter jurisdiction on appeal. 6. Tex. Fam. Code Ann. § 263.401(a). 7. Id. § 263.401(b). 8. Id. § 263.401(c). 9. Id. § 263.402(b). 10. Id. 11. Act of May 22, 2001, 77th Leg., R.S., ch. 1090, §§ 10-11, 2001 Tex. Gen. Laws 2395, 2398. A suit is pending from the time of its inception until the rendition of judgment. Sims v. Adoption Alliance, 922 S.W.2d 213, 215 (Tex. App.--San Antonio 1996, writ denied). 12. See Tex. Fam. Code Ann. § 263.402(b). 13. Act of May 26, 1997, 75th Leg., R.S., ch. 603, § 12, 1997 Tex. Gen. Laws 2119, 2123 (emphasis supplied). 14. See In re C.V.G., No. 01-01-00456-CV, slip op. at 9-10, 2002 WL 31429763, at 3 (Tex. App.--Houston [1st Dist.] Oct. 31, 2002, no pet. h.). 15. In re Tex. Dep't of Protective & Regulatory Servs., 71 S.W.3d 446, 450 (Tex. App.--Fort Worth 2002, orig. proceeding) (quoting Ex parte Abell, 613 S.W.2d 255, 260 (Tex. 1981) (orig. proceeding)). 16. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 219 (Tex. 2002); Abell, 613 S.W.2d at 260. 17. Abell, 613 S.W.2d at 260. 18. Landgraf v. USI Film Prods., 511 U.S. 244, 274, 114 S. Ct. 1483, 1501-02 (1994); Subaru, 84 S.W.3d at 220; Abell, 613 S.W.2d at 260; see also Lukes v. Employees Ret. Sys., 59 S.W.3d 838, 841-42 (Tex. App.--Austin 2001, no pet.) (holding that statutory change giving court jurisdiction over pending lawsuit, where none had existed before, was remedial and applied retrospectively). 19. DuPre v. DuPre, 271 S.W.2d 829, 831 (Tex. Civ. App.--Dallas 1954, no writ). 20. Subaru, 84 S.W.3d at 219 (quoting Middleton v. Tex. Power & Light Co., 108 Tex. 96, 185 S.W. 556, 560 (1916)). 21. Tex. Dep't of Protective & Regulatory Servs., 71 S.W.3d at 451 (citing Phil H. Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905, 907 (1924)). 22. See C.V.G., No. 01-01-00456-CV, slip op. at 9-10, 2002 WL 31429763, at 3. 23. Act of May 22, 2001, 77th Leg., R.S., ch. 1090, § 8, 2001 Tex. Gen. Laws 2395, 2396. 24. Tex. Fam. Code Ann. § 263.401(b). Like the waiver provision, amended section 263.401(b) became effective on September 1, 2001 and applied to all pending termination suits filed before, on, or after September 1. See supra note 11. 25. See C.V.G., No. 01-01-00456-CV, slip op. at 9-10, 2002 WL 31429763, at *3. 26. See Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001); D.R.L.M., 84 S.W.3d at 290 (both holding that courts should not assign a meaning to a statutory term or provision that would be inconsistent with other provisions of the statute). 27. Landgraf, 511 U.S. at 274, 114 S. Ct. at 1501-02; Subaru, 84 S.W.3d at 220. As a consequence of the amendments extending the trial court's jurisdiction, the deadlines in section 263.401 that were once held to be jurisdictional are now clearly procedural and thus waivable. Tex. Fam. Code Ann. § 263.402(b). 28. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982). 29. See Tex. R. App. P. 33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh'g). 30. Subaru, 84 S.W.3d at 219; DuPre, 271 S.W.2d at 831. 31. See C & H Nationwide, Inc. v. Thompson, 903 S.W.2d 315, 322 n.5 (Tex. 1994); Meno v. Kitchens, 873 S.W.2d 789, 792 (Tex. App.--Austin 1994, writ denied) (both holding that courts should not construe a statute in a way that would lead to an absurd or unjust result). 32. Meno, 873 S.W.2d at 792. 33. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig. proceeding) (clarifying that a court's action taken contrary to a statute, constitutional provision, or procedural rule is merely voidable or erroneous, not void). 34. See Tex. Fam. Code Ann. § 263.402(b); see also Tex. R. App. P. 33.1(a). 35. Appellants raise several other arguments for the first time on appeal concerning the effect of the trial court's May 2001 dismissal of TDRPS's 1999 lawsuit. Because these unpreserved arguments do not pertain to the trial court's jurisdiction or other fundamental error and, in some instances, are not even briefed, they are also waived. See Tex. R. App. P. 33.1(a); see also Tex. R. App. P. 38.1(h) (requiring a clear and concise argument with appropriate citations to legal authorities); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (noting long-standing rule that a point may be waived due to inadequate briefing); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993) (stating what constitutes fundamental error). Because these arguments are waived based on general waiver principles, we need not decide whether they are also waived due to appellants' failure to list them in their statements of points on appeal, as required by section 263.405(b). Tex. Fam. Code Ann. § 263.405(b). 36. See id. § 161.001(1)(E). 37. Id. §§ 161.001, 161.206(a); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). 38. Tex. Fam. Code Ann. § 101.007; see also Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 31 (Tex. 1994). 39. In re C.H., 89 S.W.3d 17, 25-26 (Tex. 2002); State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979); In re D.T., 34 S.W.3d 625, 630 (Tex. App.--Fort Worth 2001, pet. denied) (op. on reh'g). 40. Addington, 588 S.W.2d at 570. 41. D.T., 34 S.W.3d at 634; In re B.S.T., 977 S.W.2d 481, 484 (Tex. App.--Houston [14th Dist.] 1998, no pet.), disapproved on other grounds by C.H., 89 S.W.3d at 26. 42. Tex. Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). 43. Id. 44. In re R.D., 955 S.W.2d 364, 366 (Tex. App.--San Antonio 1997, pet. denied); Dupree v. Tex. Dep't of Protective & Regulatory Servs., 907 S.W.2d 81, 83-84 (Tex. App.--Dallas 1995, no writ). 45. D.T., 34 S.W.3d at 634. 46. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); D.T., 34 S.W.3d at 641. 47. C.H., 89 S.W.3d at 27. 48. Tex. Fam. Code Ann. § 263.405(b). 49. Id. § 263.405(d). 50. David filed a statement of points on appeal, but did not seek a new trial. We need not decide whether David was required to request a new trial in order to be entitled to a new trial hearing under section 263.405(d) because a decision on that issue is not necessary to our disposition of this appeal. See Tex. R. App. P. 47.1. 51. Appellants did not raise this complaint in their statements of issues on appeal. See Tex. Fam. Code Ann. § 263.405(b). The State concedes that this complaint should not be waived on that basis, however, because appellants could not have been expected to know that part of the reporter's record was lost until the court reporter so certified. 52. See Tex. R. App. P. 34.6(f)(3).	{ "pile_set_name": "FreeLaw" }
********************************************* The “officially released” date that appears near the be- ginning of each opinion is the date the opinion will be pub- lished in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the be- ginning of all time periods for filing postopinion motions and petitions for certification is the “officially released” date appearing in the opinion. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the latest version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publica- tions, Judicial Branch, State of Connecticut. ********************************************* DAVID CROUZET v. FIRST BAPTIST CHURCH OF STONINGTON ET AL. (AC 42069) Lavine, Prescott and Bright, Js.* Syllabus The plaintiff property owner sought to recover damages from the defendants, two churches, for alleged oil contamination of his property. Inspections by the Department of Energy and Environmental Protection revealed the presence of fuel oil in the soil and in the groundwater of the plaintiff’s property. The department’s report further indicated that the source of the fuel oil originated from an underground oil tank that had been removed from the defendants’ property, but the report could not rule out a secondary source of oil contamination originating from the plaintiff’s property. Although the defendants paid for some environmental remedia- tion of the plaintiff’s property pursuant to a contract, they declined to pay for additional remediation, despite recommendations by the department and the plaintiff’s consultant that such additional remediation was neces- sary. During a trial to the court, the plaintiff and the defendants offered competing expert testimony as to the cause of the oil contamination that existed on the plaintiff’s property, including potential sources of the contamination other than the defendants’ underground storage tank. The trial court expressly rejected the testimony of several expert wit- nesses as not credible. The trial court subsequently concluded that the defendants demonstrated that there was a secondary source of the oil contamination of the plaintiff’s property and, therefore, the plaintiff failed to prove his allegations that the defendants caused the pollution beneath the plaintiff’s residence. The trial court rendered judgment in favor of the defendants, and the plaintiff appealed to this court, claiming that the court’s determination that there was a secondary source of oil contamination in his basement was clearly erroneous and that the court’s decision was based on speculation and was legally unsound. Held that the trial court improperly rendered judgment in favor of the defendants, as there was no credible evidence to support the court’s finding that the defendants had established that there was a secondary source of the contamination on the plaintiff’s property that emanated from beneath his basement, there was no expert who testified, with a reasonable degree of probability, that a secondary source of oil contamination existed in or beneath the plaintiff’s basement, or that possible secondary sources identified by witnesses during the trial were likely the cause of the oil contamination on the plaintiff’s property, and, therefore, that finding was clearly erroneous, and, accordingly, a new trial was ordered; even if there was some evidentiary basis for the court’s secondary source finding, such finding did not legally and logically support the court’s ultimate conclusion that the plaintiff failed to prove that the defendants caused contamination beneath his house, as the existence of a secondary source of contamination in the plaintiff’s basement was wholly unrelated to the question of whether the plaintiff had proven that the defendants were an additional source or the primary source of the contamination, and there no support in the record for the determination that the defen- dants had no responsibility for any contamination in the present case, the court’s reliance on its secondary source finding as the basis for its conclusion that the plaintiff failed to meet his burden of proof was illogical and deprived the court’s judgment of a sufficient legal founda- tion, as the existence of a secondary source of contamination may have impacted the damages to which the plaintiff may be entitled, but it did not mean that the plaintiff had failed to prove that the defendants were also a source of the contamination, as the questions of damages and causation, while related, are different, involve separate burdens of proof, and require independent analysis. (One judge dissenting) Argued December 4, 2019—officially released August 18, 2020 Procedural History Action to recover damages for environmental con- tamination of certain of the plaintiff’s real property, and for other relief, brought to the Superior Court in the judicial district of New London, and tried to the court, Hon. Joseph Q. Koletsky, judge trial referee; judgment for the defendants, from which the plaintiff appealed to this court. Reversed; new trial. Eric J. Garofano, for the appellant (plaintiff). Benjamin H. Nissim, with whom were Proloy K. Das and, on the brief, Leonard M. Isaac and James J. Nugent, for the appellees (defendants). Opinion BRIGHT, J. The plaintiff, David Crouzet, appeals from the judgment of the trial court rendered in favor of the defendants, First Baptist Church of Stonington and Second Congregational Church of Stonington, following a trial to the court in a factually complex case involving environmental contamination. The question underlying all of the plaintiff’s claims on appeal is what was the cause of the oil contamination in and around the plain- tiff’s residence and, in particular, to what extent fuel oil that leaked from the underground storage tank on the defendants’ property migrated onto the plaintiff’s property and infiltrated the plaintiff’s basement. On appeal, the plaintiff claims that the court’s finding of a secondary source of contamination in his basement is clearly erroneous and that the court’s decision is based on speculation and is legally unsound. We agree and, accordingly, reverse the judgment of the trial court. The following facts were presented to the trial court. The plaintiff owns property located at 50 Trumbull Ave- nue in Stonington (plaintiff’s property), which he pur- chased in 2004. In preparation for his purchase, Coastal Home Inspection, LLC, performed a home inspection. In the report prepared following the inspection, the inspector noted, in relevant part, that there was minor oil seepage from the oil tank in the plaintiff’s basement, coming from the filter and on top of the tank, that there was a strong odor of fuel oil, and that the oil line was unprotected. The defendants, since 1951, have jointly owned the abutting property located at 48 Trumbull Avenue (defendants’ property), on which their parsonage is located. The plaintiff’s property is west and southwest of the defendants’ property. In January, 2006, the defen- dants had a 550 gallon underground oil tank, which had been located approximately four feet from the plaintiff’s property, removed, and they replaced it with a 275 gal- lon steel aboveground tank, which was placed in their basement. After heavy rains in the spring of 2009, a neighbor noticed oil coming from a pipe that carried excess water from the plaintiff’s basement sump pump to the walk- way in front of the plaintiff’s house, and he called the fire department, which then shut off the sump pump. Eventually, the Department of Energy and Environmen- tal Protection (department) became involved, and Wil- liam Warzecha, the supervising environmental analyst for the department’s remediation division, conducted an investigation of potential contamination at 48 and 50 Trumbull Street (properties). On May 23, 2011, Timothy Baird, an environmental analyst at the department, com- pleted a limited subsurface investigation report, which was reviewed and approved by his supervisor, Aaron Green. In the report, Baird concluded that the depart- ment had found the presence of fuel oil in the soil and in the groundwater of the properties. The report posited that the oil being released from the sump pump in the plaintiff’s basement originated from the underground oil tank that had been removed from the defendants’ property. The report also provided that it could not rule out a secondary source for the soil contamination in the plaintiff’s basement. Additionally, the report pro- vided that a representative of the defendants had stated that, in early December, 2010, the defendants removed contaminated sand and gravel from their sump pit and used that material to fill in a hole on the property. The department requested that the defendants retain an environmental consultant to assist in further investi- gation and remediation of contamination on the prop- erties. The defendants hired Kropp Environmental Contrac- tors (Kropp) to excavate the area where the under- ground storage tank had been located. In December, 2011, Kropp removed approximately ten tons of con- taminated soil and placed it under a polyethylene cover on the paved driveway of the plaintiff’s property. The defendants also hired Paul Burgess, LLC (Burgess), to investigate the properties and to develop a remediation plan. The plaintiff hired a senior licensed environmental professional, Martin Brogie, who worked for GEI Con- sultants, Inc. The defendants agreed to pay Brogie to analyze the site and the environmental remediation activities. After Burgess prepared its soil remediation plan, the plaintiff and the defendants entered into a contract, dated September 26, 2012, giving the defendants the authority to perform remediation work on the plaintiff’s property in accordance with the soil remediation plan. The contract stated that the soil remediation plan required ‘‘the disturbance of both the surface and sub- surface of the [properties] and include[d] the further investigation, excavation and replacement of an unde- termined amount of contaminated soil and other associ- ated remediation activities . . . [and that the defen- dants were] prepared to proceed with the [r]emediation [w]ork in accordance with the [s]oil [r]emediation [p]lan . . . .’’ In the contract, the parties acknowledged that their written agreement did not include remediation of the soil beneath the plaintiff’s home, but it provided that they agreed ‘‘to continue to pursue in good faith further environmental assessment of the [plaintiff’s property] as may be required by the [department] . . . .’’ The contract also addressed secondary sources, providing: ‘‘In the event that a secondary source of subsurface soil contamination is discovered during the course of the [r]emediation [w]ork, the [defendants] shall notify [the plaintiff] immediately in writing. If said secondary source is located on or beneath the [plaintiff’s property], the [defendants] shall allow [the plaintiff] or his contrac- tors or agents to inspect, confirm and remediate such findings, prior to completing its obligations hereunder. The [defendants] shall have no obligation whatsoever to remediate any soil impacted by a secondary source originating on or beneath the [plaintiff’s property] or on or beneath any land other than the [defendants’ property].’’ The defendants hired Service Station Equipment, the company that had removed their underground tank, to remediate the contaminated soil. Service Station Equip- ment excavated soil from October 8 through 12, 2012, to a depth of approximately eight feet, beginning at the location of the former oil tank, extending slightly east toward the parsonage, extending north to approxi- mately three feet from the plaintiff’s garage and west to approximately three feet from the plaintiff’s home, then extending south along the length of both the plain- tiff’s home and the parsonage toward the street side- walk, in the form of a large rectangle that ran between and along the two properties.1 The approximate dis- tance between the location of the former underground tank and the east wall of the plaintiff’s home is between sixteen and twenty feet. Due to concerns about the structural integrity of the foundations of the plaintiff’s home and garage, as well as the sidewalk, the excava- tion was not extended closer to those structures. Evi- dence of soil contamination, including odors and ele- vated organic vapor readings, was noted from approximately five and one-half feet to eight feet below the ground throughout the excavation area. No oil prod- uct was observed on the soils or in the groundwater at the time of excavation. Soil samples were collected, however, and testing of the samples confirmed the existence of contamination that exceeded the department remediation criteria. A hydrocarbon fingerprint analysis also was conducted on several samples, all of which indicated the presence of No. 2 fuel oil. Approximately 122 tons of excavated contaminated soil were taken from the properties to Phoenix Soil in Waterbury for thermal treatment. Por- tions of the properties, however, still contained contam- inated soil because excavation did not extend closer to the plaintiff’s home or the garage, or to the sidewalk, due to concerns about structural integrity. Brogie, the plaintiff’s licensed environmental profes- sional, produced a report for the plaintiff and the defen- dants on January 7, 2014, following the conclusion of the defendants’ remediation efforts. In his report, Brogie discussed the reports and findings of the department and Burgess, and he presented the results of his later inspection and testing of the plaintiff’s basement and the areas adjacent to the plaintiff’s home foundation and garage, which had not been remediated. Brogie concluded that there remained significant concentra- tions of petroleum in the soil near the home and the garage and that the fuel oil impacts below the home were consistent with the exterior release of petroleum. In the report, Brogie concluded that the source of the contamination under the home and in the soil adja- cent to the home and garage was the defendants’ former underground oil tank. The report also provided that ‘‘[s]ome contributory source from the previous fuel oil aboveground tank/line within the [plaintiff’s home] can- not be completely ruled out. However, significant releases from these aboveground systems are rare and, given the significant nature and extent of the known release, a potential subject site source/release would be relatively inconsequential . . . .’’ Brogie suggested that the recommendations from the department be com- pleted; these included connecting the plaintiff’s sump pump discharge to a filtration system or to the sanitary sewer system, provided the town was amenable, and enhancing the ventilation in the basement of the home to eliminate the odors. Brogie also opined that the petro- leum would degrade over time, but that it would take tens of years for the petroleum to be at a safe level. He further opined that the cost of excavation and dis- posal of the remaining contaminated soil could exceed the value of the plaintiff’s property. The defendants declined to pay for any additional remediation costs, including those recommended by the department. The plaintiff testified that during periods of heavy rains, when the water table rises, he continues to see signs of fuel oil contaminated groundwater coming up through the soil beneath the basement floor, into the sump pump area, causing significant odors. The plaintiff commenced the action against the defen- dants on March 8, 2016. In an amended complaint, filed on August 6, 2018, the plaintiff alleged ten causes of action, five against each defendant for the ongoing con- tamination of the soil, groundwater, and the basement on the plaintiff’s property: liability pursuant to General Statutes § 22a-16,2 trespass, private nuisance, liability under General Statutes § 22a-452,3 and breach of con- tract. The evidentiary portion of the trial before the court was held over four days, beginning on August 21, 2018, and concluding on August 24, 2018, with final arguments on August 28, 2018. During the trial, the plaintiff testified that when he was considering the purchase of 50 Trumbull Avenue, he became aware, from the inspection report, that there was a small fuel oil leak at the top of the oil tank in the basement and that the oil line was on the dirt floor, which was improper. The report also indicated a strong odor of fuel oil. The plaintiff stated that he did not recall seeing any oil or smelling it during his own walk through of the house and basement. He stated that, after he purchased 50 Trumbull Avenue in 2004, he renovated the house and changed the heating system, installing a new boiler in the basement on a raised concrete pad, and that he had temporarily used the old oil tank and fuel line, but later installed a new tank. He also stated that he removed the old boiler from that raised concrete pad, temporarily leaving it on the dirt floor in the basement. He testified that, in 2005, he also hired a contractor to lower the basement floor to allow for more headroom, and to build a new concrete base- ment floor. The plaintiff stated that, during the renova- tion in 2005, he noticed that, after a significant rainfall, there was a black oil film on top of water in the base- ment, which remained on the floor once the water had receded.4 The plaintiff stated that he called his contrac- tor, who informed him that he would take care of it, and the contractor pumped out the water from the basement into the backyard before installing the con- crete floor. The plaintiff also had a sump pit and pump installed in the basement. The plaintiff testified that much of the soil that had been removed from the base- ment during the 2005 renovation was put into dumps- ters, and the rest of it was spread behind the garage. He also stated that the basement frequently smelled like oil, especially after a substantial rain, and that he would see stains appearing on the new concrete floor. He would also see drops of water coming through the stone foundation in the basement, but he did not see oil in those drops. In 2009, after moving to California, the plaintiff rented out 50 Trumbull Avenue. The plain- tiff further stated that it was in 2009 that a neighbor saw oily water coming from the discharge from the plaintiff’s sump pump, and the neighbor called the fire department; the plaintiff, thereafter, hired someone to investigate the cause of the oily water. Brogie, the plaintiff’s licensed environmental profes- sional, also testified at the trial. He testified that he has been investigating contaminated sites in Connecticut for approximately twenty-eight years, and that he first was engaged to provide services to the plaintiff early in 2012 to develop a remediation plan. He explained that, in this case, there is a very close distance between the plaintiff’s house and the parsonage, and that the slow moving groundwater flows in a southwesterly direction on the parcels, traveling from the defendants’ former underground oil tank to the plaintiff’s house. He also stated that because the groundwater table on the properties has only a very shallow slope, the con- taminants move very slowly and tend to spread out broadly. Specifically, he stated that ‘‘the oil move[s] through [the] sandy, gravelly material in the direction of the groundwater flow and spread out pretty broadly and extended from the street all the way back to the [plaintiff’s] garage and then right directly to the their house and underneath it.’’ Brogie stated that he reviewed various reports, including the department’s, and that they ‘‘all seemed to be in agreement [with] what had happened, that there was a release from the former underground storage tank at the [defendants’ property] and that it had moved across the driveway and impacted the [plaintiff’s] property.’’ Brogie was asked whether he had observed any evidence of contamina- tion coming from the plaintiff’s garage or his home, to which he responded, ‘‘No.’’ Brogie further testified about a visit to the properties he made in the spring of 2017 and some associated photographs that had been taken and also about additional soil testing of the prop- erties that he had completed in May, 2017.5 When asked if he had reached a conclusion on the basis of this additional testing, Brogie responded in the affirmative and explained that his conclusion was ‘‘that there was a release of heating oil adjacent to the north- west corner of the 48 Trumbull residential property; that the contamination traveled in the direction of groundwater, generally southwest and west-southwest, toward the [plaintiff’s] residence at number 50 and down toward the street and beyond; and the contamina- tion went under the [plaintiff’s] residence, at least three quarters of it, the eastern side and the southern half, perhaps; and that, during periods of very heavy rain and certainly during the spring, groundwater comes up, makes contact with that slab, and produces oil inside the building, and it’s responsible for the significant odors inside the building as well.’’ Brogie also acknowl- edged that he had reported that ‘‘[s]ome contributing source from previous fuel oil aboveground tank, flash- line within . . . residence cannot be completely ruled out.’’ He then went on to explain the meaning of that statement: ‘‘Well, the fact that there was a fuel oil deliv- ery system in that basement means that there was oil in that basement at—and for a period of time. There hasn’t been any evidence that there was any kind of a significant release in there, and I felt it only fair and scientifically appropriate to indicate that we can’t com- pletely rule out that there might be, you know, some oil in that basement floor as a result of that system even though we haven’t really found any evidence of it yet, in my opinion.’’ Brogie then was asked if he could opine to a ‘‘reason- able degree of certainty’’ whether there had been a spill at the plaintiff’s home, and he responded: ‘‘Certainly. Since the time of this report and with the information that I’ve come into contact with over the last couple of weeks, absolutely I say with a reasonable degree of certainty there was no kind of any—any kind of significant release from that system whatsoever in the basement, if any at all, to the dirt.’’ Brogie also rendered an opinion on the parsonage, stating: ‘‘[B]ased on testing that I’ve recently come to understand from the defendants’ expert, some very, very high concentrations indicating pure product are present beneath that building and immediately outside of it. So I would hope that that contamination would get remediated in addition to [the plaintiff’s] property.’’ He then explained that if this additional remediate did not occur, the contamination would continue to migrate to the plaintiff’s property. Warzecha, a supervising environmental analyst for the department’s remediation division, testified that he has taken part in thousands of fuel oil release investiga- tions, and he discussed in detail the department’s inves- tigation and report. He explained that the department took soil borings from many locations on the properties, including below the plaintiff’s basement floor and from the plaintiff’s and the defendants’ sump pumps, and that its investigation concluded that ‘‘there was a significant source of fuel oil contamination on and emanating from 48 Trumbull Avenue in Stonington.’’ He stated that the department opined that this was the source of the con- tamination under 50 Trumbull Avenue, and he explained the several factors that led to that conclusion, including: the groundwater flow direction from northeast to south- west, with the highest point being at the defendants’ property flowing down to its lower point at the plain- tiff’s property; the significant concentration of fuel oil detected in the groundwater; the presence of free-float- ing fuel oil that was found on the water table near the former underground storage tank location; and the concentration of contamination in the soil at that site. Warzecha acknowledged that the department was aware of a previous report by the plaintiff of possible ‘‘purple’’ oil discharging into the east side of the plain- tiff’s basement in 2005. He also acknowledged that he was aware of the home inspection report prepared for the plaintiff before the plaintiff purchased 50 Trumbull Avenue, and he testified that the report did not change the department’s opinion about the source of the con- tamination. Warzecha further acknowledged that he was aware of a letter sent by the defendants to Service Station Equipment, with a copy to the department, in which the defendants conceded that ‘‘we know we were responsible for causing the leak.’’ Ross Aiello, whose great-grandfather built 48 Trum- bull Avenue and whose family lived there at the time he was born, testified that Harold Reynolds owned 50 Trumbull Avenue pre-World War II, and that Reynolds worked on automobiles as a hobby, specifically his 1936 Ford sedan. He further testified that, after World War II, Reynolds would change his oil in the dirt driveway and that ‘‘[it] seem[ed] to him that when [he] pulled the plug, [he] just drained it onto the ground. And, you, know, they didn’t use containers, I don’t recall, back in that time.’’ Keith Filban, the husband of the parson at 48 Trum- bull Avenue, testified that the Sollenbergers were the previous tenants of 50 Trumbull Avenue, and that, when Paul Sollenberger needed help getting his washing machine out of the basement, he assisted him. Filban stated that when he went into the basement, he noticed a puddle of oil on the dirt floor, which was approxi- mately two and one-half feet in diameter, and a stream of oil coming from a fitting on the boiler that appeared clear in color. When asked when this occurred, Filban stated that he thought it was October, 2015. John Babin, a former tenant of 50 Trumbull Avenue in the late 1980s or 1990, testified that, on a number of occasions, he saw the pipe to the oil tank ‘‘backflush’’ when it was being filled, causing fuel oil to spill all over the ground. He acknowledged, however, that he never told the homeowner about this, that he had a problem with alcohol during this period of his life, and that he was home only ‘‘once every two months.’’ Paul Burgess, the defendants’ expert, testified that he was contacted by the defendants to develop a reme- diation plan, as had been requested by the department, and that he oversaw the implementation of that plan. He stated that he also had reviewed the report by Brogie and that he disagreed with some of the conclusions in the report. Burgess testified that he had received information that suggested to him the existence of an alternative source of contamination at 50 Trumbull Ave- nue. He explained that Brogie had told him that the plaintiff’s contractor, who had been working on the basement, had observed a purple oil flowing into the basement that looked fresh. Burgess further explained that the dyeing of oil took place after 1993, so that information was interesting to him. He further explained, however, that ‘‘as the project developed, I— and we actually conducted the remediation on number 48 and 50 on the exterior part, I didn’t observe any oil or any—also—nor oil that had that dye in it during the excavation. . . . [Therefore] it indicated the potential for a secondary source that could have occurred on the [plaintiff’s] property based on that observation and others—other facts.’’ Burgess acknowledged that War- zecha, from the department, had concluded in an e-mail that ‘‘[he] ha[d] not seen any information to date sug- gesting there’s a secondary source of pollution originat- ing from [the plaintiff’s] own property.’’ Burgess then addressed his March 14, 2012 remedia- tion plan. He explained that when he first became involved with this project, Kropp already had dug a test pit in the area where the underground tank had been located, and that ‘‘they reported they had . . . indica- tion of contaminated soil and stopped, and then they asked for my involvement going forward.’’ Burgess fur- ther explained that ‘‘you have on the surface—or, you know, starting from ground level downward to a certain depth, you have clean soil that is not impacted, and that soil would be excavated, stockpiled separately, and not have to be disposed.’’ He also explained that indicators of contamination include, ‘‘[f]uel oil odors, organic vapor analyzer meter . . . [which detects] vol- atile organic vapors . . . [and] in this case, you [could] see stained soil,’’ which ‘‘was a grey, darkish color layer . . . approximately five and a half to eight feet below ground surface [and] had an odor to it.’’ Burgess was asked about his written preliminary draft review of Brogie’s January 7, 2014 report in which Brogie had stated, in part, that there was fuel oil contam- ination immediately below the basement floor, which could have come from several sources, including possi- ble releases interior to the building. The defendants’ attorney pointed out that, on the court exhibit of Bur- gess’ draft, there was a handwritten notation that said ‘‘location of the oil tank and oil supply line at 50.’’ Burgess was asked whether the location of the old oil tank and supply line would be a consideration as an alternative source of contamination in the plaintiff’s basement, to which Burgess responded, ‘‘Yes.’’ Burgess then testified that the department had performed oil and groundwater testing in the basement near where the old oil tank had been located, and that he believed that the report revealed that ‘‘the groundwater at the designation . . . BB (1) . . . had the—by far the high- est levels of total petroleum hydrocarbons anywhere else on the site, including the location of the former tank at the parsonage property at 48 Trumbull . . . [and that this] amongst other facts suggested to [him] that there was likely a secondary source near that location.’’ Burgess contradicted Brogie’s conclusion that signifi- cant releases of oil from aboveground systems are rare, by stating that they happen ‘‘a lot.’’ He also testified that the Extractable Total Petroleum Hydrocarbons (ETPH) concentration levels ‘‘were consistently less in the soil, the remaining soil, that had been excavated on the exte- rior portion of the foundation wall. They were less than what Martin Brogie . . . had found when he did his sampling below the basement floor of the [plaintiff’s] property, and that didn’t make sense to me from the perspective of the source originating only from the par- sonage property . . . [b]ecause I would not expect the soils below the basement floor to be that substantially higher than on the outside if they originated—if the oil originated from the outside.’’ When asked why that was significant, Burgess stated: ‘‘Because we did sampling near the former tank at the parsonage and that—and then the concentrations of ETPH decrease in the direc- tion of the [plaintiff’s] property to outside and near the basement wall and then increased substantially below the floor. And to me, that was one factor that suggested there was a secondary source in his basement as opposed to contributing from the [defendants’] property.’’ Burgess also explained that he ‘‘looked at the aro- matic volatile organic compounds [(AVOC)] as another indicator of what the ETPH data was showing, and they can be—they are minor constituents of fuel oil. And the AVOC data showed the trends consistent with the total petroleum hydrocarbon data. In other words, the levels were higher near the original parsonage tank; they reduced to levels outside the [plaintiff’s] basement wall, then some of the samples below the basement slab shot back up and were higher than outside. So I was trying—I was looking to see if there was a consis- tent trend, and there was.’’ When Burgess was asked by the defendants’ attorney whether he had come to a conclusion about the origin of the contamination underneath the plaintiff’s base- ment he responded: ‘‘I came to a conclusion about the— some—I came to some conclusions about the oil that was observed coming through his basement walls, yes. . . . For various facts, it did not make sense to me that that material, that oil, originated from the parsonage property.’’ He then was asked whether he had made a determination from where that contamination came, and he responded: ‘‘No.’’ During cross-examination, Burgess agreed that fuel oil is dyed red, not purple. He also agreed: the report of purple oil was from 2005; the defendants removed their underground storage tank in January, 2006; the first time he was on-site was in 2012, which was seven years after the report of purple oil and six years after the tank was removed from the church property; the groundwater flow in this area is generally southwest going from 48 toward 50; both properties are contami- nated; the contamination levels of both properties exceed the department’s criteria, the department found free oil product underneath the former storage tank grave at the church property; and that the department had determined that the source of the contamination at 50 Trumbull was the underground storage tank at 48 Trumbull. Burgess did state, however, that he thought that the department also had stated that it could not rule out a secondary source. Burgess acknowledged that the last time he was at the site was 2013, and that his last report about the site was February, 2014. Burgess also acknowledged that he concluded only that it was possible that there had been a fuel oil release at 50 Trumbull and that there potentially was a secondary source of contamination at 50 Trumbull. Burgess also acknowledged that he was unaware that Brogie later had done additional testing for contamination around the plaintiff’s garage. Plato Doundoulakis, a licensed environmental profes- sional and principal scientist from Atlas Environmental Company, also called as an expert witness by the defen- dants, testified that he believed that the contamination of the plaintiff’s basement came from the plaintiff’s basement and that he did not think that ‘‘it was possible for the contamination to have originated at the parson- age, the contamination in the basement.’’ He stated that he came to this conclusion because, ‘‘[i]n order for the contamination to get from the parsonage . . . to the [plaintiff’s] basement, you’d need a—some way, some migration pathway. The only migration pathway that’s been identified there is the surface of the groundwater table. The groundwater table would have to rise up and intersect with the [plaintiff’s] basement in order for that oil to be pushed into the basement, and that does not occur.’’ Doundoulakis also opined that the fuel oil contami- nants found in the plaintiff’s basement were different from the contaminants found on the defendants’ prop- erty. He explained that he examined the range of carbon from those samples, which showed that the sample from the plaintiff’s basement showed a No. 4 fuel oil, and the sample from the defendants’ property showed a No. 2 fuel oil. He also stated that another basis for his opinion that the contamination in the basement originated therein was that ‘‘[t]here was free product found underneath the parsonage’s underground storage tank, or near it, and there was free product found in [the plaintiff’s] basement, but none in between. There was a disconnection between those two release areas.’’6 During cross-examination, Doundoulakis admitted that he had stated in his deposition, taken only one week earlier, that he had taken only one measurement and did not know the seasonal high groundwater eleva- tion under the plaintiff’s property. He also admitted that, although he had tested the age of the oil under the defendants’ basement, he had not tested the age of the oil under the plaintiff’s basement. Additionally, Doundoulakis admitted that he had sent an e-mail to someone that stated that he did not test any of the samples under the plaintiff’s basement because he already had good data and did not want to give the other side anything it could use. Last, Doundoulakis acknowledged that during his deposition he had admit- ted that he did not know where the release of oil in the plaintiff’s basement actually occurred, and he did not know the cause of that release. Following Doundoulakis’ testimony, the plaintiff recalled Brogie to the witness stand. Brogie explained in detail the pathways for the contaminant migration on the properties: ‘‘In terms of pathways for contaminant migration at this particular site, the primary pathway is through the coarse sand and gravel material that’s found five feet below the surface; four and a half feet to five feet below the surface is where it starts. And being coarse material, it’s easy for groundwater to move through it rapidly and certainly easy for a product such as heating oil to move through that material rather rapidly and without any abatement until it reaches some kind of a structure. And in this particular case, ground- water is an important component to the pathway and the migration of those materials as well. . . . [O]n the perimeter of the Burgess excavation from 2012 there’s a very, very high concentration indicative of pure prod- uct on the north wall of his excavation, 17,200 at eight feet, just two feet, seven inches, from the garage. Not much further away, about eight feet from the northwest corner of the excavation, [is] boring GEI 100 that I installed myself back in 2017 and at a depth of seven to eight feet where in my profile I encountered the highest concentration—I had a concentration of fifty- nine hundred parts per million. There were odors of fuel oil there. My photoionizing detector indicated elevated volatile organic readings. And I felt very comfortable that I was in the fuel oil plume that originated from the parsonage given the material that it was in, the sand and gravel; the depth at which I encountered; and the odors which I noted. ‘‘Further, I did an additional boring further to the northwest. I didn’t find anything, so I felt very confident that I delineated the edge of the contamination. Given . . . Burgess’ very high concentration on the north side of the excavation and my findings north of the house, it was very apparent that that plume came down to the back of the residence of [the plaintiff], that there’s petroleum contamination behind the house that— resulting from the release of the heating oil UST over at the parsonage. And based on the observations, along that west wall, it appears that the heating oil contamina- tion from the parsonage extends from north of [the plaintiff’s] house, all along the east wall of [the plain- tiff’s] house, and continuing south.’’ On August 28, 2018, following closing arguments, the court issued a brief oral decision in which it rendered judgment in favor of the defendants. Specifically, the court’s entire ruling was as follows: ‘‘Both—. . . Doun- doulakis and . . . Brogie . . . were both such parti- san advocates—now, this court has had experience with many experts who, no matter how partisan they may be, at least manage to project at least a veneer of impartiality. So the court intends to disregard both the testimony of . . . Doundoulakis and the testimony of . . . Brogie . . . which the court expressly rejects. That leaves—the only credible witnesses are Warzecha and Burgess. While . . . Warzecha was credible, his data was outdated and outweighed by . . . Burgess’ testimony, but even that does not overcome the fact that the defense has shown a secondary source exists beneath the basement property owned by the plaintiff, and therefore [the court] finds the plaintiff has failed to prove the allegations that defendant has caused the pollution beneath his house. ‘‘It is therefore unnecessary to reach the defendant’s special defenses. Judgment will enter for defendants— defendant on all counts.’’ The plaintiff thereafter filed a motion for articulation, requesting specifically that the court explain what data from Warzecha was outdated and specifically arguing that Warzecha had testified that he had read all the reports produced up to the present time, including new evidence that had been revealed to him only one week before trial, and that Burgess had not testified to having seen this information. The court responded: ‘‘The court’s reference to . . . Warzecha’s testimony as ‘out- dated’ was solely a reference to his credibility. Since he was taken out of turn with an attorney general pres- ent who had filed an appearance moments before . . . Warzecha’s testimony. Immediately after his testimony, he and the [assistant attorney general] departed and they were not in the courtroom when evidence was presented, which the court credited in finding that the existing contamination beneath the plaintiff’s property was there long before the plaintiff purchased his prop- erty.’’7 This appeal followed. On appeal, the plaintiff claims that the court’s finding of a secondary source of contamination in his basement is clearly erroneous and that the court’s decision is based on speculation and is legally unsound. He argues, first, that there was no expert testimony to support the court’s finding that the defendants had proven the existence of a secondary source of the contamination, originating in the plaintiff’s basement. Second, he argues, even if an expert sufficiently opined that a sec- ondary source existed in the plaintiff’s basement, there was no testimony that identified that source. Third, he argues that the existence of a secondary source necessarily means that there exists a primary source, and the relevant experts were in agreement that the primary source of contamination on the properties orig- inated from the underground oil tank that had been removed from the defendants’ property. Fourth, the plaintiff argues, regardless of the other arguments, the court’s decision is legally unsound because proving the existence of a secondary source would not establish that the plaintiff ‘‘therefore’’ failed to prove that the defendants were the primary source of the contamina- tion that remained on his property, both under his home and in the soil outside of his home. We agree that the court’s finding of a secondary source being responsible for the subject contamination is clearly erroneous and that its conclusion is legally unsound, requiring a remand for a new trial. See O’Connor v. Larocque, 302 Conn. 562, 578 n.12, 31 A.3d 1 (2011) (judgment may be reversed if it is legally or logically inconsistent with facts found, or is so illogical or unsound, or so violative of the plain rules of reason, as to be unwarranted in law); Buckley v. Webb, 143 Conn 309, 315, 122 A.2d 220 (1956) (it is impossible for appellate court to sustain judgment that is illogical). ‘‘The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court. To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. When, however, the trial court draws conclusions of law, our review is plenary and we must decide whether its con- clusions are legally and logically correct and find sup- port in the facts that appear in the record. . . . There- fore, the trial court’s conclusions must stand unless they are legally or logically inconsistent with the facts found or unless they involve the application of some erroneous rule of law material to the case.’’ (Citations omitted; internal quotation marks omitted.) MSO, LLC v. DeSimone, 313 Conn. 54, 62, 94 A.3d 1189 (2014); see also Zaniewski v. Zaniewski, 190 Conn. App. 386, 395, 210 A.39 620 (2019) (‘‘[t]he trial court’s decision must be based on logic applied to facts correctly interpreted’’ (emphasis omitted)). First, we agree with the plaintiff that the court’s find- ing that the defendants have ‘‘shown a secondary source exists beneath the basement property owned by the plaintiff’’ is clearly erroneous because there was no expert who testified, with a reasonable degree of proba- bility, that a secondary source of fuel oil contamination existed in or beneath the plaintiff’s basement, or that the possible secondary sources identified by witnesses during the trial are likely the cause of the oil contamina- tion on the plaintiff’s property. As stated previously in this opinion, the question underlying all of the plaintiff’s claims is what was the cause of the oil contamination in and around the plain- tiff’s residence and, in particular, to what extent fuel oil that leaked from the underground storage tank on the defendants’ property migrated onto the plaintiff’s property and infiltrated the plaintiff’s basement. Because contamination cases such as the present case generally involve issues that go ‘‘beyond the field of ordinary knowledge and experience of the trier of fact,’’ expert testimony typically is required to establish the cause or causes of contamination claimed by a plaintiff. Fort Trumbull Conservancy, LLC v. New London, 135 Conn. App. 167, 183 n.11, 43 A.3d 679, cert. denied, 307 Conn. 905, 53 A.3d 220 (2012).8 Recognizing this requirement, the parties offered competing expert testi- mony as to the cause of the oil contamination that exists on the plaintiff’s property. In addition, the defendants offered evidence of potential sources of the contamina- tion other than the defendants’ underground storage tank, including the spilling of motor oil on the ground after World War II, occasional spilling of heating oil during tank fillings on the plaintiff’s property in the late 1980s or 1990, leaking of oil from the top of the plaintiff’s oil tank when he purchased the property, and the leak- ing of oil from a fitting on the boiler in the plaintiff’s basement in or around October, 2015. The question for us is whether the court’s factual finding that the defendants had shown that a secondary source of the contamination on the plaintiff’s property existed below the basement of his residence is clearly erroneous in light of the expert testimony and the factual bases for such testimony. In answering this question we bear in mind that ‘‘[e]xpert opinions must be based upon reasonable prob- abilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. . . . To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert’s testimony is expressed in terms of a reasonable probability . . . does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert’s testimony.’’ (Internal quotation marks omit- ted.) Weaver v. McKnight, 313 Conn. 393, 421–22, 97 A.3d 920 (2014); see Struckman v. Burns, 205 Conn. 542, 554–55, 534 A.2d 888 (1987). In the present case, the only expert fully credited by the trial court was Burgess.9 He testified in relevant part that Brogie had told him that the plaintiff’s contrac- tor, who previously had been working on the basement, had observed a purple oil flowing into the basement that looked fresh. Burgess stated that this information was interesting because the dyeing of oil took place after 1993. He further explained that he did not observe any oil that had that dye during the excavation. This, he stated, ‘‘indicated the potential for a secondary source that could have occurred on the [plaintiff’s] property . . . .’’ (Emphasis added.) Burgess was asked whether the location of the old oil tank and supply line in the plaintiff’s basement would be a consideration as an alternative source of contamination, and he responded, ‘‘Yes.’’ Burgess testified that the department had performed oil and groundwater testing in the base- ment near where the old oil tank had been located, and that he believed the report revealed that ‘‘the groundwa- ter at the designation . . . had the—by far the highest levels of total petroleum hydrocarbons anywhere else on the site, including the location of the former tank at the parsonage property at 48 Trumbull . . . [and that this] amongst other facts suggested to [him] that there was likely a secondary source near that location.’’ (Emphasis added.) He also stated that the higher level of contaminants in the basement ‘‘was one factor that suggested there was a secondary source in [the] base- ment as opposed to contributing from the parsonage property.’’ (Emphasis added.) When Burgess was asked by the defendants’ attorney whether he had come to a conclusion about the origin of the contamination under the plaintiff’s basement, he responded: ‘‘I came to some conclusions about the oil that was observed coming through his basement walls, yes. . . . For various facts, it did not make sense to me that that material, that oil, originated from the parsonage property.’’ He then was asked whether he had made a determination from where that contamination came, and he responded: ‘‘No.’’ Furthermore, Burgess did not opine that any spillage of motor oil after World War II, back- wash from filling the tank on the plaintiff’s property in the late 1980s, leakage from the top of the plaintiff’s boiler when he purchased the property or from a fitting on the plaintiff’s boiler in 2015 were likely the cause of the oil contamination on the plaintiff’s property. Much of Burgess’ testimony involving a secondary source of contamination in the plaintiff’s basement clearly is speculative and based on conjecture. A close review of that testimony, however, reveals that he did opine that the high level of contaminants found beneath the plaintiff’s basement ‘‘suggested’’ to him that there was ‘‘likely a secondary source near that location.’’ (Emphasis added.) Burgess admitted, however, that he could not identify that source or from where it origi- nated. At no time did Burgess testify to a reasonable degree of probability, or words to that effect, that the contamination in the plaintiff’s basement was caused by a source other than the defendants’ underground storage tank. Our law regarding expert opinion is clear: ‘‘An expert’s opinion may not be based on surmise or conjecture.’’ Weaver v. McKnight, supra, 313 Conn. 410. Testimony that certain facts suggested to the expert a likely secondary or additional cause of contamination that the expert could not identify does not clear this hurdle. We conclude that the only credited expert who opined with even a modicum of specificity that there may have been a secondary source of contamination in the plaintiff’s basement relied on speculation and conjecture, not rendering a properly supported conclu- sion or a specific finding about this potential secondary source. Consequently, there was no credible evidence to support the court’s finding that the defendants had established that there was a secondary source of the contamination on the plaintiff’s property that emanated from beneath his basement, and, therefore, that finding was clearly erroneous. Additionally, we agree with the plaintiff that, even if there was some evidentiary basis for the court’s second- ary source finding, such finding does not legally and logically support the court’s ultimate conclusion that the plaintiff failed to prove that the defendants caused the contamination beneath his house. First, there is no doubt that the court premised its conclusion that the plaintiff failed to prove causation on its secondary source finding. The court specifically held that ‘‘the defense has shown a secondary source exists beneath the basement property owned by the plaintiff, and [the court] therefore finds the plaintiff has failed to prove the allegations that [the] defendant has caused the pollution beneath his house.’’ (Emphasis added.) The problem with this finding and conclusion is that the existence of a secondary source of contamination in the plaintiff’s basement wholly is unrelated to the question of whether the plaintiff has proven that the defendants was an additional source or the primary source of such contam- ination.10 The existence of a secondary source necessar- ily means that there exists a primary source. There was not one expert, credited or otherwise, who opined that the defendants had no responsibility for any contamina- tion in this matter. In fact, it was Burgess who developed the remediation plan that was premised on oil migrating from the site of the defendants’ removed underground storage tank onto the plaintiff’s property. The court’s reliance on its secondary source finding as the basis for its conclusion that the plaintiff failed to meet his burden of proof is illogical and deprives the court’s judgment of a sufficient legal foundation. The existence of a secondary or additional source of contamination in the plaintiff’s basement may impact the damages to which the plaintiff may be entitled, but it does not mean that the plaintiff has failed to prove that the defendants were also a source of the contamination. The questions of damages and causation, although related, are differ- ent, involve separate burdens of proof, and require inde- pendent analysis. The court improperly conflated the analyses of these elements to reach a legally improper conclusion. Put another way, the court’s decision that ‘‘the defendant[s] ha[ve] shown a secondary source exists beneath the basement property owned by the plaintiff, and therefore finds the plaintiff has failed to prove the allegations that defendant[s] ha[ve] caused the pollution beneath his house’’ amounts to logical fallacy; it is a non sequitur.11 Finally, the court’s finding that the defendants proved a secondary source of the pollution in the plaintiff’s basement, has no bearing on the allegations of the plain- tiff’s complaint regarding the pollution that continues to exist outside of his basement, in the areas that the defendants declined to remediate because of concerns about the structural integrity of the plaintiff’s home foundation and his garage. For all of these reasons, we conclude that the court improperly rendered judgment in favor of the defendants. The judgment is reversed and the case is remanded for a new trial. In this opinion LAVINE, J., concurred. * The listing of judges reflects their seniority status on this court as of the date of oral argument. 1 2 General Statutes § 22a-16 provides: ‘‘The Attorney General, any political subdivision of the state, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, associa- tion, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business, except that where the state is the defendant, such action shall be brought in the judicial district of Hartford, for declaratory and equitable relief against the state, any political subdivision thereof, any instru- mentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction provided no such action shall be maintained against the state for pollution of real property acquired by the state under subsection (e) of section 22a-133m, where the spill or discharge which caused the pollution occurred prior to the acquisition of the property by the state.’’ 3 General Statutes § 22a-452 provides: ‘‘(a) Any person, firm, corporation or municipality which contains or removes or otherwise mitigates the effects of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes resulting from any discharge, spillage, uncontrolled loss, seepage or filtration of such substance or material or waste shall be entitled to reimbursement from any person, firm or corporation for the reasonable costs expended for such containment, removal, or mitigation, if such oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous wastes pollution or contamination or other emer- gency resulted from the negligence or other actions of such person, firm or corporation. When such pollution or contamination or emergency results from the joint negligence or other actions of two or more persons, firms or corporations, each shall be liable to the others for a pro rata share of the costs of containing, and removing or otherwise mitigating the effects of the same and for all damage caused thereby. ‘‘(b) No person, firm or corporation which renders assistance or advice in mitigating or attempting to mitigate the effects of an actual or threatened discharge of oil or petroleum or chemical liquids or solid, liquid or gaseous products or hazardous materials, other than a discharge of oil as defined in section 22a-457b, to the surface waters of the state, or which assists in preventing, cleaning-up or disposing of any such discharge shall be held liable, notwithstanding any other provision of law, for civil damages as a except acts or omissions amounting to gross negligence or wilful or wanton misconduct, unless he is compensated for such assistance or advice for more than actual expenses. For the purpose of this subsection, ‘discharge’ means spillage, uncontrolled loss, seepage or filtration and ‘hazardous mate- rials’ means any material or substance designated as such by any state or federal law or regulation. ‘‘(c) The immunity provided in this section shall not apply to (1) any person, firm or corporation responsible for such discharge, or under a duty to mitigate the effects of such discharge, (2) any agency or instrumentality of such person, firm or corporation or (3) negligence in the operation of a motor vehicle.’’ 4 The plaintiff conceded that, in 2009, he had stated that the oil color had been purple, but that the photograph that he viewed during his testimony had clearly showed that it was black. 5 Because the only expert the court found persuasive was Burgess, we have provided summaries of the testimony of the other experts for context, but have given a detailed exposition of Burgess’ testimony. 6 The plaintiff’s attorney objected to some of Doundoulakis’ testimony, arguing that it was new information that he had not seen or heard previously and that had not been disclosed. Doundoulakis admitted at this time that he had not prepared a report. The court then stated that it would limit his testimony to what he had discussed during his deposition. Ultimately, the court rejected Doundoulakis’ testimony in its entirety. 7 We find the court’s articulation puzzling. The order of the witnesses should have no bearing on their credibility, neither should the fact that they did not remain in the courtroom to hear other witnesses’ testimony. 8 In setting forth the parties’ respective burdens of proof for statutory environmental claims, our Supreme Court has suggested that expert testi- mony, at a minimum, is required to rebut a plaintiff’s prima facie showing of pollution attributable to the defendant. ‘‘Statutes such as the [Environmental Protection Act, General Statutes §§ 22a-14 through 22a-20] are remedial in nature and should be liberally construed to accomplish their purpose. . . . Although the ultimate burden of proof never shifts from the plaintiff, the [Environmental Protection Act] contemplates a shifting of the burden of production. . . . The plaintiff must first make a prima facie showing that the conduct of the defendant, acting alone, or in combination with others, has, or is reasonably likely unreasonably to pollute, impair, or destroy the public trust in the air, water or other natural resources of the state . . . .’’ (Citation omitted; footnote omitted; internal quotation marks omitted.) Man- chester Environment Coalition v. Stockton, 184 Conn. 51, 57–58, 441 A.2d 68 (1981), overruled in part on other grounds by Waterbury v. Washington, 260 Conn. 506, 556, 800 A.2d 1102 (2002). ‘‘Once a prima facie case is shown, the burden of production shifts to the defendant. Under § 22a-17, the defendant may rebut the prima facie showing by the submission of evidence to the contrary. . . . [T]he nature of the evidence necessary to rebut [the] plaintiff’s showing will vary with the type of environmental pollution, impairment or destruction alleged and with the nature and amount of the evidence proffered by the plaintiff. In some cases, no doubt, testimony by expert witnesses may be sufficient to rebut [the] plaintiff’s prima facie showing. While in other actions the defen- dant may find it necessary to bring forward field studies, actual tests, and analyses which support his contention that the environment has not or will not be polluted, impaired or destroyed by his conduct. Such proofs become necessary when the impact upon the environment resulting from the defen- dants’ conduct cannot be ascertained with any degree of reasonable certainty absent empirical studies or tests.’’ (Citation omitted; internal quotation marks omitted.) Id., 60. 9 As noted previously in this opinion, the court rejected fully the expert testimonies of Brogie and Doundoulakis. Although the court found Warzecha to be credible, it found his opinions ‘‘outdated,’’ apparently because he testified before Burgess. In any event, the court’s finding that there was a secondary source of pollution beneath the plaintiff’s basement could not have been based on Warzecha’s testimony because his opinion was that the pollution emanated from the defendants’ property. Furthermore, although Warzecha acknowledged that Burgess had raised the possibility of a second source, he had not identified any such source. 10 The dissent in the present case specifically states that the trial court ‘‘appears to have explicitly concluded that ‘the plaintiff has failed to prove the allegations that [the] defendant caused the pollution beneath his house.’ The court, however, muddied the waters by stating that a ‘secondary source exists beneath the basement property owned by the plaintiff.’ ’’ We disagree with the dissent’s conclusion that the court’s use of the phrase ‘‘secondary source’’ somehow ‘‘muddied the waters’’ because it was unclear or ambigu- ous. The trial court first set forth its secondary source finding and then it explicitly stated ‘‘therefore . . . the plaintiff has failed to prove the allega- tions that defendant has caused the pollution beneath his house.’’ (Emphasis added.) In light of the clear link the court explicitly set forth between its finding of a secondary source and its conclusion that the plaintiff ‘‘therefore’’ failed to prove his case, we simply cannot conclude, as the dissent does, that there is anything unclear or ambiguous in the court’s brief explanation of its analysis. The dissent goes on to suggest that the plaintiff should have requested that the trial court articulate what it meant by the term ‘‘secondary source’’ of contamination. We disagree that the plaintiff should have seen an ambigu- ity in the clear language of the court’s findings that required some articula- tion. The words ‘‘secondary source’’ have a plain meaning, both generally and in the specific context of this case. In this case, Burgess, the expert credited by the trial court, defined a secondary source as ‘‘an additional source other than what was identified on the parsonage property.’’ (Emphasis added.) This definition is consistent with the common definitions provided by various dictionaries. For example, Merriam-Webster’s Collegiate Dictionary defines secondary as ‘‘of second rank, importance, or value,’’ and ‘‘not first in order of occurrence or develop- ment.’’ Merriam-Webster’s Collegiate Dictionary (11th Ed. 2012) p. 1121. The American Heritage College Dictionary defines secondary as ‘‘[o]f the second rank; not primary,’’ ‘‘[i]nferior,’’ ‘‘[m]inor; lessor.’’ American Heritage College Dictionary (2d Ed. 1985) p. 1107. Black’s Law Dictionary defines secondary as, ‘‘[o]f a subsequent, subordinate, or inferior kind or class; generally opposed to ‘primary.’ ’’ Black’s Law Dictionary (5th Ed. 1979) p. 1212. We do not read any ambiguity in the court’s use of the phrase ‘‘secondary source,’’ and we conclude that it would be unfair and unreasonable to impose on the plaintiff an obligation to argue to the trial court that the meaning of this phrase was ambiguous and in need of clarification before taking an appeal. The words are clear and unambiguous, and we conclude that the plaintiff acted properly in relying on the court’s chosen words when he pursued his appeal. 11 ‘‘[A] [n]on [s]equitur [is] [s]ometimes called the ‘fallacy of the conse- quent,’ a non sequitur is an argument which is not really an argument but a series or propositions with a conclusion that has no logical connection to the premises. The term non sequitur means simply that the conclusion does not follow (logically) from the premises.’’ (Emphasis omitted.) D. Lind, Logic & Legal Reasoning (2d Ed. 2007) § 5.2, p. 292.	{ "pile_set_name": "FreeLaw" }

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