text
stringlengths 1
1.21M
| meta
dict |
|---|---|
878 F.2d 772
Lawrence D. WILSON a/k/a Amin A. Rashid,v.Stephen J. RACKMILL, individually and in his officialcapacity, Victor P. Zaccheo, individually and in hisofficial capacity, Shelley Witenstein, individually and inher official capacity, Michael Santella, individually and inhis official capacity, Elaine Terenzi, individually and inher official capacity, Daniel R. Lopez, individually and inhis official capacity, James F. Haran, individually and inhis official capacity, Donald S. Miller, individually and inhis official capacity, Mr. Gold, individually and in hisofficial capacity, Ruth G. Taylor, individually and in herofficial capacity.Appeal of Lawrence D. WILSON.
No. 89-1062.
United States Court of Appeals,Third Circuit.
Submitted Under Third Circuit Rule 12(6)May 3, 1989.Decided July 6, 1989.
Lawrence D. Wilson c/o Amin A. Rashid & Associates, Philadelphia, Pa., appellant pro se.
Michael M. Baylson, U.S. Atty., James G. Sheehan, Asst. U.S. Atty., Chief Civil Div., David F. McComb, Asst. U.S. Atty., Philadelphia, Pa., for appellees.
SEITZ,* COWEN and GARTH, Circuit Judges.
OPINION OF THE COURT
SEITZ, Circuit Judge.
1
Appellant, Lawrence D. Wilson, appeals from the final order of the district court granting defendants Shelley Witenstein and Michael Santella's motion to dismiss and denying appellant's motion for reconsideration of the district court's order which dismissed as frivolous appellant's claims against the remaining defendants. We have jurisdiction under 28 U.S.C. Sec. 1291.
I. FACTS
2
Appellant filed this civil rights action in the district court against various federal probation officers, two federal parole examiners and a regional commissioner of the United States Parole Commission. In his complaint appellant alleged, inter alia, that the defendants "all worked in concert with each other to cause the arrest of plaintiff, to improperly investigate and make probable cause findings, and conduct an unfair parole revocation hearing to ensure that the plaintiff is returned to prison and that his business, employment and personal life is destroyed." Appellant alleged that the defendants violated his "rights under the U.S. Constitution," and he requested declaratory and injunctive relief and damages.
3
After granting appellant leave to proceed in forma pauperis, the district court dismissed the claims against all defendants except Witenstein and Santella as frivolous under 28 U.S.C. Sec. 1915(d), without requiring an answer, on the grounds that "[t]he plaintiff's complaint fails to allege a violation of his constitutional rights by these defendants that is required for a direct cause of action under the Constitution against federal officials. Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 [91 S.Ct. 1999, 29 L.Ed.2d 619] (1971)." The district court then directed that the complaint be filed against the two parole examiners, defendants Witenstein and Santella, "in regard to plaintiff's claims regarding his parole revocation hearing."
4
Appellant timely served a motion for reconsideration of the district court's order, arguing that he had alleged in his complaint that the defendants conspired to deprive him of his fifth amendment right to procedural due process with respect to his parole revocation. He contended that he clearly stated a cause of action under Bivens and under 42 U.S.C. Sec. 1985(3). The district court subsequently denied the motion for reconsideration.
5
The two remaining defendants, parole examiners Witenstein and Santella, filed an answer and a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). They argued that they were absolutely immune for conduct taken in connection with the parole revocation hearing, relying on Harper v. Jeffries, 808 F.2d 281 (3d Cir.1986). The district court granted the motion to dismiss, finding that the defendants were absolutely immune and that the allegations of conspiracy were conclusory and unsupported by specific factual averments. This appeal followed.
II. DISCUSSION
6
On appeal, appellant contends that (A) the district court erred in partially dismissing the complaint as frivolous because appellant had stated a cause of action against most of the defendants, and (B) the district court erred in concluding that the parole examiners were absolutely immune from liability.
A.
7
The district court has discretion under 28 U.S.C. Sec. 1915(d) to dismiss frivolous or malicious in forma pauperis complaints. However, that discretion is "limited 'in every case by the language of the statute itself which restricts its application to complaints found to be frivolous or malicious.' " Williams v. Faulkner, 837 F.2d 304, 306 (7th Cir.1988), aff'd, Neitzke v. Williams, --- U.S. ----, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The question whether a complaint is frivolous or malicious under Sec. 1915(d) involves the district court's application and interpretation of legal precepts. We must decide whether the district court applied the correct legal standard in dismissing some of appellant's claims under Sec. 1915(d). Our review, therefore, is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir.1981).
8
The standard under which a district court may dismiss a complaint under Sec. 1915(d) was recently clarified by the Supreme Court in Neitzke v. Williams, --- U.S. ----, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). The Court held that the legal standard to be applied under Sec. 1915(d) is a different standard from that applied under Fed.R.Civ.P. 12(b)(6).1 A Rule 12(b)(6) dismissal is appropriate if, as a matter of law, it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one. Id., --- U.S. at ----, 109 S.Ct. at 1832. Dismissal under Sec. 1915(d) is appropriate when the claims are based on an indisputably meritless legal theory or on clearly baseless factual contentions. Id. A complaint is not automatically frivolous under Sec. 1915(d) merely because it fails to state a claim under Rule 12(b)(6). "When a complaint raises an arguable question of law which the district court ultimately finds is correctly resolved against the plaintiff, dismissal on Rule 12(b)(6) grounds is appropriate, but dismissal on the basis of frivolousness is not." Id.
9
To be dismissed as frivolous, the complaint must lack an arguable factual or legal basis. If the complaint arguably states a claim, then it should go forward so that the defendants can answer and plaintiff can receive notice of the possibility of Rule 12(b)(6) dismissal and the need to amend his complaint in order to properly state a legal claim.
10
In this case, the district court dismissed the complaint as frivolous merely on the ground that it failed to state a claim under Bivens. In effect, the district court equated the standard for Sec. 1915(d) dismissal with the standard for Rule 12(b)(6) dismissal. Neitzke clearly states that this is incorrect. The district court instead should have decided whether the complaint lacked any arguable factual or legal basis.
11
In our view, the factual contentions of the complaint are not clearly frivolous. Neitzke seems to contemplate that frivolous factual claims are those that describe "fantastic or delusional scenarios." Such is not the case here, where appellant alleges that the defendants conspired to deprive him of his fifth amendment rights. If anything, the facts are not stated with the requisite specificity, a problem more properly addressed under Rule 12(b)(6).
12
Furthermore, we cannot say that appellant's claims are based on an indisputably meritless legal theory. Appellant alleged that the defendants conspired to have him arrested, made improper investigations and probable cause findings and conducted an unfair parole revocation hearing in order to have appellant returned to prison. Although he contended in his motion for reconsideration that the substance of his allegations were conspiracy, his complaint also seems to allege underlying violations of the fifth amendment right to due process.
13
It is arguable whether appellant has stated a cause of action under Bivens. Bivens provides an action for damages to vindicate a constitutional right when a federal official has violated such a right. The action is available if no equally effective remedy is available, no explicit congressional declaration precludes recovery, and when no special factors counsel hesitation. See Rauschenberg v. Williamson, 785 F.2d 985 (11th Cir.1986). There may be special factors counselling hesitation in finding a Bivens claim here if appellant has an effective remedy available through habeas corpus. Id. See also Kimberlin v. United States Department of Justice, 788 F.2d 434 (7th Cir.1986).2 If there is no underlying substantive Bivens claim, then his conspiracy claims may also lack merit. Nevertheless, the claims alleged are not clearly legally meritless under Sec. 1915(d) even if they later suffer dismissal under Rule 12(b)(6).
14
In addition, appellant argued in his motion for reconsideration that he stated a cause of action under 42 U.S.C. Sec. 1985, which makes actionable conspiracy to violate federal rights, even by federal officials acting under color of federal law. Although Sec. 1985(3) requires conspiracy to violate equal protection, appellant alleged in his complaint that the defendants were white and of different religious orientation from appellant and that they acted against appellant out of racial and religious animus. Therefore, appellant may have stated a claim for conspiracy under Sec. 1985, if not under Bivens. Accordingly, since we cannot say that appellant's claims clearly lack any arguable factual or legal basis, we conclude that the district court erred in dismissing the complaint against some of the defendants under Sec. 1915(d).
B.
15
We must also decide whether the district court correctly granted the Rule 12(b)(6) motion of the two parole examiners to dismiss on absolute immunity grounds. Our scope of review is plenary. Our standard of review is "whether taking the allegations of the complaint as true, ... and viewing them liberally giving plaintiffs the benefit of all inferences which fairly may be drawn therefrom, ... 'it appears beyond doubt that the plaintiff[s] can prove no set of facts in support of [their] claims which would entitle [them] to relief.' " Wisniewski v. Johns-Manville Corp., 759 F.2d 271 (3d Cir.1985).
16
Appellant contends that the alleged activities of the two parole examiners were not adjudicatory and were investigative or administrative, entitling the defendants at most to qualified immunity under Harper. The defendants contend that the allegations of the complaint reveal that the defendants were involved in adjudicatory duties, the performance of which entitle them to absolute immunity.
17
Under Harper, probation and parole officers are entitled to absolute immunity when they are engaged in adjudicatory duties. In their executive or administrative capacity, probation and parole officers are entitled only to a qualified, good faith immunity. Id. at 284. We must examine the allegations of appellant's complaint to discern whether appellant alleged that the two defendants performed adjudicatory duties, entitling them to absolute immunity, or executive and administrative duties, entitling them to qualified or good faith immunity. In order for the defendants to succeed on a Rule 12(b)(6) dismissal based on absolute immunity, the allegations of appellant's complaint must indicate the existence of absolute immunity as an affirmative defense; the defense must clearly appear on the face of the complaint. C. Wright and A. Miller, 5 Federal Practice and Procedure Sec. 1357 at 605-606 (1984).
18
In the complaint, appellant clearly alleged that Santella and Witenstein served as the hearing examiners performing adjudicatory duties. However, he also alleged that Witenstein "investigated allegations of parole violations presented to him by Stephen J. Rackmill, typed up a warrant application for the arrest of the plaintiff and then signed the warrant in a signature space provided for Ruth Taylor ..." He also alleged that Michael Santella "assisted Victor P. Zaccheo to initiate criminal [sic] a criminal investigation against the plaintiff in order to destroy his legal and lawful business, employment and personal affairs." Broadly construed, the complaint alleges that the two defendants performed executive and investigative functions, in addition to their adjudicatory duties. The allegations of the complaint, taken as true and viewed in the light most favorable to appellant, do not clearly indicate that the defendants are completely entitled to absolute immunity. Accordingly, we conclude that the district court erred in granting the defendants' motion to dismiss.
III. CONCLUSION
19
In light of the foregoing, we will reverse the orders of the district court and remand the case for further proceedings consistent with this opinion.
*
Since the date of submission of this case, Judge Seitz has taken senior status
1
To the extent we have previously held that a dismissal on Sec. 1915(d) grounds is reviewed under the same standard as a dismissal under Federal Rule of Civil Procedure 12(b)(6), that holding is no longer valid in light of Neitzke. See e.g., Harris v. Cuyler, 664 F.2d 388, 389 n. 3 (3d Cir.1981)
2
It appears from the record that appellant filed a habeas corpus petition in the United States District Court for the Northern District of Texas in which he alleged a violation of his right to a neutral and detached parole hearing. The district court in that case found that appellant's right to a fair hearing was violated and granted the writ unless appellant were granted a new parole revocation hearing
| {
"pile_set_name": "FreeLaw"
} |
NOTICE
The text of this opinion can be corrected before the opinion is published in the
Pacific Reporter. Readers are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections @ akcourts.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
CHRISTIAN LYNN BEIER,
Court of Appeals No. A-12943
Appellant, Trial Court No. 3AN-15-9578 CR
v.
OPINION
STATE OF ALASKA,
Appellee. No. 2587 — January 26, 2018
Appeal from the Superior Court, Third Judicial District,
Anchorage, Kevin Saxby and Jack W. Smith, Judges.
Appearances: Gary Soberay, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
Donald Soderstrom, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for the Appellee. Doug Wooliver, Deputy
Administrative Director, Anchorage, for amicus curiae Alaska
Court System.
Before: Mannheimer, Chief Judge, and Allard and Wollenberg,
Judges.
Judge ALLARD.
Alaska Statute 22.20.022 provides for peremptory challenges to judges.
Alaska Criminal Rule 25(d) implements this right in criminal cases.1 Under Rule 25(d),
the prosecution and the defense are each entitled to one peremptory challenge if they file
their notice of change of judge within five days after receiving notice that the judge has
been assigned to try the case (provided that they have not participated in proceedings
before that judge in the interim).2
In the present case, Christian Lynn Beier was notified at a Tuesday trial call
that Anchorage Superior Court Judge Kevin Saxby was assigned to preside over his trial.
Beier’s attorney filed a peremptory challenge of Judge Saxby the following Monday,
which was within the five days permitted by the rule. (Under the provisions of Alaska
Criminal Rule 40(a), the intervening weekend days are not included in the five-day
calculation.3) But the superior court ruled that the defense attorney’s peremptory
challenge was untimely because, under a standing order of the Anchorage superior court,
litigants who were notified of a judicial assignment at a Tuesday trial call were required
to file any peremptory challenge by Thursday at noon (that is, within a day and a half).
1
See Main v. State, 668 P.2d 868, 872 (Alaska App. 1983).
2
See Alaska R. Crim. P. 25(d)(2), (5). Alaska Criminal Rule 25(d)(5) provides:
A party loses the right under this rule to change a judge when the party,
after reasonable opportunity to consult with counsel, agrees to the
assignment of the case to a judge or knowing that the judge has been
permanently assigned to the case, participates before the judge in an
omnibus hearing, any subsequent pretrial hearing, a hearing under Rule
11, or the commencement of trial.
3
Under Criminal Rule 40(a), weekends and holidays are excluded from calculation
when a prescribed time period is less than seven days.
–2– 2587
Beier now appeals the denial of his peremptory challenge under Alaska
Appellate Rule 216(a)(2).4
The State of Alaska has filed a brief in opposition to Beier’s appeal. At our
request, the Alaska Court System has also filed a brief — but the court system concedes
that the Anchorage superior court’s standing order is unenforceable to the extent that it
conflicts with the provisions of Criminal Rule 25(d).
For the reasons explained here, we accept the court system’s position that
the shorter time limit specified in the Anchorage standing order is unenforceable.
The State’s argument on appeal
The State contends that the Anchorage standing order constitutes a lawful
exercise of the superior court’s authority under Alaska Criminal Rule 53 to relax the
five-day time period specified in Rule 25(d)(2). Rule 53 gives courts the authority to
relax or dispense with criminal rules “in any case where it shall be manifest to the court
that a strict adherence to them will work injustice.” The State argues that the Anchorage
superior court’s standing order falls within the purview of that rule because it is designed
to effectuate the timely and efficient administration of justice in felony cases and to
prevent the kind of undue delay and witness availability problems that peremptory
challenges filed on the eve of trial can create.
But Rule 53 is inapplicable to this situation. As noted above, Rule 53
authorizes a judge to dispense with a provision of the criminal rules when, in the context
of an individual case, the judge concludes that a strict adherence to the rule as written
will manifestly lead to injustice. In contrast, the Anchorage superior court’s standing
4
Appellate Rule 216(a)(2) allows a criminal defendant to seek immediate appellate
review when their peremptory challenge of a judicial officer is denied.
–3– 2587
order is not an adjudicative ruling by an individual judge in an individual case. Instead,
it is a rule of local practice — a rule that applies to all felony cases scheduled for trial in
the Anchorage superior court. In the words of Alaska Administrative Rule 46(c)(2), this
standing order is a “non-adjudicating directive” that “effectuat[es] administrative
concerns.”
Administrative Rule 46(a) grants authority to the presiding judge of a
judicial district to promulgate such administrative orders, but Administrative Rule 46(b)
declares that:
No order shall be promulgated that is inconsistent with the
Alaska Statutes or the Alaska Rules of Court. The vesting of
all rulemaking authority in the Alaska Supreme Court shall
be recognized.
Our case law likewise recognizes that a local practice rule cannot directly conflict with
the statutes or the rules.5
We therefore reject the State’s argument that the Anchorage superior
court’s standing order is justified under Criminal Rule 53. Instead, we conclude that the
procedural and substantive requirements of Administrative Rule 46 govern the
enforceability of the standing order at issue here.
The Alaska Court System’s position in this appeal
Administrative Rule 46(e) specifies the procedures that must be followed
when a presiding judge issues an administrative order. Among other requirements, the
administrative order must be filed with the administrative director of the court system,
5
See Romero v. Alaska Financial Services, Inc., 873 P.2d 1278, 1280 (Alaska 1994);
Harris v. State, 195 P.3d 161, 173 (Alaska App. 2008).
–4– 2587
and the administrative director must review the order within thirty days to ensure that it
does not conflict with the policy of uniform statewide rules and practices.6
Presiding judge orders that appear to be inconsistent with the Alaska Court
Rules must be referred to the Alaska Supreme Court, who may disapprove or modify the
order.7 In addition, the clerks of court and the court system’s law libraries are required
to maintain a judicial Administrative Order Book that includes the orders that have been
reviewed by the Supreme Court.8
We reviewed the Administrative Order Book maintained by the court
system’s law library in Anchorage, and we found that it did not contain the Anchorage
standing order that is at issue in this case. Because we were unable to otherwise
determine whether the superior court’s standing order was submitted to the
administrative director, and whether it went through the review process described in
Administrative Rule 46, we asked the Alaska Court System to respond to Beier’s appeal.
In its pleading, the court system concedes that the Anchorage standing
order has not gone through the review procedures specified by Administrative Rule 46,
and that the time limit specified in the standing order is not enforceable.
According to the court system’s pleading, the standing order at issue in this
case was “intended to facilitate the movement of cases by encouraging parties to agree
to a newly assigned judge in time to start trial the following Monday” — but that the
superior court did not intend to preclude parties from exercising peremptory challenges
“in any case where a party exercises his or her right to challenge a judge after two days
but within five days.”
6
Alaska R. Admin. P. 46(e)(1)-(2).
7
Alaska R. Admin. P. 46(e)(2)-(3).
8
Alaska R. Admin. P. 46(e)(4).
–5– 2587
The court system further declares that it intends to “adopt practices to
ensure that any peremptory challenge properly exercised within five days will not be
deemed untimely in future cases.”
Based on the provisions of Administrative Rule 46 and on the court
system’s response, we conclude that the shorter time limit specified in the Anchorage
superior court’s standing order is not enforceable. And because Beier’s attorney filed
his peremptory challenge within the time period specified in Criminal Rule 25(d), that
challenge should have been granted.
Conclusion
The superior court’s denial of Beier’s peremptory challenge of Judge Saxby
is REVERSED.
–6– 2587
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 00-7808
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOYCE TORIAN THOMPSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Fayetteville. W. Earl Britt, Senior
District Judge. (CR-87-53)
Submitted: February 28, 2001 Decided: March 19, 2001
Before WIDENER and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joyce Torian Thompson, Appellant Pro Se. Janice McKenzie Cole,
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Joyce Torian Thompson appeals the district court’s denial of
her motion to correct an illegal sentence, and motion to amend that
motion. Our review of the record and the district court’s ruling
discloses that this appeal from the district court’s order denying
her motions is without merit. United States v. Thompson, No. CR-
87-53 (E.D.N.C. filed Oct. 24, 2000; entered Oct. 30, 2000).
Therefore, we affirm the district court’s ruling. We dispense with
oral argument because the facts and legal contentions are adequate-
ly presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
2
| {
"pile_set_name": "FreeLaw"
} |
782 N.W.2d 170 (2010)
STATE
v.
CALIGIURI.
No. 09-0735.
Court of Appeals of Iowa.
March 24, 2010.
Decision Without Published Opinion Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
[Cite as Potter v. Potter, 2014-Ohio-5490.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
CYNTHIA E. POTTER, :
CASE NOS. CA2013-12-222
Plaintiff-Appellee/Cross-Appellant, : CA2013-12-232
: OPINION
- vs - 12/15/2014
:
STEVEN L. POTTER, :
Defendant-Appellant/Cross-Appellee. :
APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
DOMESTIC RELATIONS DIVISION
Case No. DR12-11-1276
The Lampe Law Office, LLC, Vicki L. Richmond, 1248 Nilles Road, Suite 7, Fairfield, Ohio
45014, for appellee/cross-appellant
John D. Smith Co., LPA, John D. Smith, Andrew P. Meier, 140 North Main Street, Suite B,
Springboro, Ohio 45066, for appellant/cross-appellee
RINGLAND, P.J.
{¶ 1} Defendant-appellant, Steven L. Potter (Husband), and plaintiff-appellee,
Cynthia E. Potter (Wife), each appeal a decision of the Butler County Domestic Relations
Court establishing spousal support in their divorce action.
{¶ 2} Husband and Wife were married on April 19, 1980. There were three children
born as issue of the marriage, all of whom are now emancipated.
Butler CA2013-12-222
CA2013-12-232
{¶ 3} Husband owns an accounting business known as Steven Potter & Company
CPAs, Inc. (SPC). In 2011, Husband purchased a tax business from Roger Grein for
$200,000, to be paid over a period of five years. The parties stipulated that the value of
SPC, after taking into account the debt still owed in purchasing the tax business from Grein,
was $264,000. The expert employed to value SPC arrived at this number by utilizing the
multiple of revenue method of valuation. Under that method, the expert considered the total
revenue of SPC, applied a multiple of one, deducted the debt owed to Grein, and applied a
20 percent marketability discount. The trial court awarded Wife 50 percent of the value of
SPC.
{¶ 4} Based upon Husband's 2012 tax return, the trial court determined Husband's
income for spousal support purposes to be $100,177. The court also imputed $21,000 in
income to Wife. The trial court took into consideration the education level of both parties, the
length of the parties marriage, their standard of living, Wife's time out of the workplace while
raising the parties' children, their ages, earning abilities and health concerns. Based upon
those findings, the trial court ordered that Husband pay Wife spousal support in the amount
of $3,167 per month for an indefinite period.
{¶ 5} In equalizing the distribution of marital property, the trial court ordered that
1
Husband would retain all interest in SPC, Wife would retain the marital residence, Husband
would assume all marital debt,2 and Husband would pay Wife $53,104.49.3
{¶ 6} On November 12, 2013, the trial court filed its judgment entry and decree of
divorce, granting the parties' divorce. Husband timely appeals the trial court's decision,
1. The marital residence was valued at $106,382.10.
2. The marital debt was $51,408.92.
3. With interest attaching if payment was not made in full by December 31, 2013. The full payment is to be
completed no later than December 31, 2017.
-2-
Butler CA2013-12-222
CA2013-12-232
raising a single assignment of error. Wife cross-appeals and raises three assignments of
error.
{¶ 7} Assignment of Error No. 1:
{¶ 8} THE TRIAL COURT ERRED IN CALCULATING SPOUSAL SUPPORT WITH
THE SAME STREAM OF INCOME THAT WAS USED IN THE VALUATION OF HUSBAND'S
ACCOUNTING BUSINESS, CAUSING HUSBAND TO PAY WIFE TWICE.
{¶ 9} Pursuant to R.C. 3105.18(B), after providing for an equitable division of marital
property, a trial court may then determine whether to award spousal support and the amount
and duration of such an award. A trial court has broad discretion to determine the proper
amount and duration of spousal support based on the facts and circumstances of each case,
and a trial court's award of spousal support will not be disturbed absent an abuse of
discretion. Kedanis v. Kedanis, 12th Dist. Butler No. CA2012-01-015, 2012-Ohio-3533, ¶ 10.
An abuse of discretion constitutes more than an error of law or judgment; it requires a finding
that the trial court acted unreasonably, arbitrarily, or unconscionably. Miller v. Miller, 12th
Dist. Butler No. CA2001-06-138, 2002-Ohio-3870, ¶ 8. A trial court has a statutory duty to
base a spousal support order on a careful and full balancing of the factors in R.C.
3105.18(C)(1). Kedanis, 2012-Ohio-3533.
{¶ 10} According to R.C. 3105.18(C)(1),
[i]n determining whether spousal support is appropriate and
reasonable, and in determining the nature, amount, and terms of
payment, and duration of spousal support, which is payable
either in gross or in installments, the court shall consider all of
the following factors:
(a) The income of the parties, from all sources, including, but not
limited to, income derived from property divided, disbursed, or
distributed under section 3105.171 of the Revised Code;
(b) The relative earning abilities of the parties;
-3-
Butler CA2013-12-222
CA2013-12-232
(c) The ages and the physical, mental, and emotional conditions
of the parties;
(d) The retirement benefits of the parties;
(e) The duration of the marriage;
(f) The extent to which it would be inappropriate for a party,
because that party will be custodian of a minor child of the
marriage, to seek employment outside the home;
(g) The standard of living of the parties established during the
marriage;
(h) The relative extent of education of the parties;
(i) The relative assets and liabilities of the parties, including but
not limited to any court-ordered payments by the parties;
(j) The contribution of each party to the education, training, or
earning ability of the other party, including, but not limited to, any
party's contribution to the acquisition of a professional degree of
the other party;
(k) The time and expense necessary for the spouse who is
seeking spousal support to acquire education, training, or job
experience so that the spouse will be qualified to obtain
appropriate employment, provided the education, training, or job
experience, and employment is, in fact, sought;
(l) The tax consequences, for each party, of an award of spousal
support;
(m) The lost income production capacity of either party that
resulted from that party's marital responsibilities;
(n) Any other factor that the court expressly finds to be relevant
and equitable.
{¶ 11} Husband argues that the trial court abused its discretion in awarding Wife 50%
of the value of SPC as marital property while also awarding her spousal support based upon
the same income stream used to determine the value of SPC. He argues that such a
combination amounts to impermissible "double-dipping."
{¶ 12} Husband directs this court to our analysis of the double-dipping argument in
-4-
Butler CA2013-12-222
CA2013-12-232
Corwin v. Corwin, 12th Dist. Warren Nos. CA2013-01-005 and CA2013-02-012, 2013-Ohio-
3996. In that case, this court held that, "[w]hen the trial court treated Husband's share of
BCN's expected future profits as both a marital asset subject to division and as income for
spousal support purposes, the trial court abused its discretion." Id. at ¶ 55. However, in the
Corwin case, the issue of double-dipping was properly raised and argued before the trial
court. Moreover, the Corwin case had yet to be decided by this court at the time the trial
court issued its decision and order in the present case.
{¶ 13} Here, Husband failed to present the issue of double-dipping until the current
appeal. Instead, the trial court accepted the parties' stipulation as to the value of SPC for
marital division purposes, as well as Husband's gross income as stated on his 2012 tax
returns or spousal support purposes. At no time did Husband raise or focus the issue of
double-dipping to the trial court such that Wife could address the argument and the trial court
could make a finding on the matter. Were the issue properly raised, Wife may have elected
to seek an alternative view on the valuation of SPC as well as a forensic financial
investigation into Husband's reported income.
{¶ 14} There is also some question as to whether double-dipping would apply under
the present set of facts. The multiple of revenue valuation method used in the present case
differs from the capitalization of earnings valuation method utilized in the Corwin case. We
are unable to find any other Ohio case that analyzes the issue of double-dipping in relation to
a multiple of revenue valuation. Moreover, the trial court issued its decision and order prior to
the release of this court's decision in Corwin. The Corwin decision was released between the
time of the trial court's decision and order and its judgment entry and decree of divorce. Yet
at no time during that intervening period did Husband present the issue to the trial court.
{¶ 15} "It has long been recognized that the failure of a party to draw the trial court's
attention to a possible error, by objection or otherwise, when the error could have been
-5-
Butler CA2013-12-222
CA2013-12-232
corrected, results in a waiver of the issue for purposes of appeal. 'Litigants must not be
permitted to hold their arguments in reserve for appeal, thus evading the trial court process.'
Thus, a reviewing court will not consider issues a party failed to raise in the trial court and will
consider those issues waived." (Internal citations omitted.) Moser v. Moser, 12th Dist.
Warren No. CA2005-09-109, 2006-Ohio-5381, ¶ 33.
{¶ 16} It is an unsettled proposition as to when, and under what circumstances,
double-dipping is an issue properly considered by a trial court. We do not find that the trial
court abused its discretion by failing to unilaterally raise, analyze and apply a concept that
had not previously been discussed in this district or by the Ohio Supreme Court without the
parties making an argument that such an analysis was warranted or necessary.
{¶ 17} In light of the foregoing, having found that Husband failed to raise the issue of
double-dipping and its applicability to the present case, Husband's sole assignment of error is
overruled.
{¶ 18} Cross-Assignment of Error No. 1:
{¶ 19} THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING APPELLEE IS
VOLUNTARILY UNEMPLOYED AND IMPUTING INCOME TO HER FOR SPOUSAL
SUPPORT PURPOSES.
{¶ 20} The decision to impute income for purposes of spousal support is within the
discretion of the trial court and shall not be overruled absent an abuse of discretion. Corwin
at ¶ 63, citing Havanec v. Havanec, 10th Dist. Franklin No. 08AP-465, 2008-Ohio-6966, ¶ 23.
"Whether a parent is 'voluntarily underemployed' within the meaning of R.C. 3119.01 is a
matter to be determined by the trial court based upon the facts and circumstances of each
case." Corwin at ¶ 73, citing Rock v. Cabral, 67 Ohio St.3d 108 (1993), syllabus. The trial
court's determination on this issue will not be disturbed on appeal absent an abuse of
discretion. Corwin at ¶ 73.
-6-
Butler CA2013-12-222
CA2013-12-232
{¶ 21} The trial court imputed income of $21,000 to Wife. In making its decision to
impute that income to Wife, the trial court considered that Wife (1) earned a Bachelor of
Science in Chemical Engineering and Bachelor of Science in Packaging in 1979 from
Michigan State University, (2) earned a Master of Business Administration in 1983 from the
University of Cincinnati, (3) worked at Procter and Gamble and Drackett Company from 1979
4
to 1988, (4) has experience as a Girl Scout leader, youth group leader and church volunteer,
(5) did not work for over 20 years from 1989 to 2010, (6) is 57 years old, (7) was offered part-
time, minimum wage employment with TJ Maxx within the past five years, (8) worked
seasonally at SPC from 2010 through 2012, earning $15 per hour for an average annual
wage of $3,040, (9) has developed proficiencies in numerous computer programs, (10) is in
good health, (11) has refused to attend vocational rehabilitation courses or participate in
career transition assistance and career counseling, and (12) has struggled to find full-time
employment since leaving SPC.
{¶ 22} Having reviewed the record, we do not find that the trial court abused its
discretion in finding that Wife is capable of finding full-time employment at $10 per hour when
she is healthy, highly educated and intelligent.
{¶ 23} Accordingly, Wife's first cross-assignment of error is overruled.
{¶ 24} Cross-Assignment of Error No. 2:
{¶ 25} THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO INCLUDE
APPELLANT'S INCOME FROM ALL SOURCES FOR SPOUSAL SUPPORT PURPOSES.
{¶ 26} As discussed above, "a trial court's award of spousal support will not be
disturbed absent an abuse of discretion." Huynh v. Le, 12th Dist. Butler No. CA2012-09-190,
2013-Ohio-2859, ¶ 11.
4. Now known as Bristol-Meyers Squibb.
-7-
Butler CA2013-12-222
CA2013-12-232
{¶ 27} Wife argues that the trial court erred in calculating Husband's income for
spousal support purposes. Wife asserts that Husband's income should be calculated as the
combination of Husband's salary and SPC's discretionary earnings, as set forth in the
stipulated valuation of SPC.
{¶ 28} The trial court found that although there are some concerns regarding
deductions made by SPC, "neither party contracted the services of an expert for the
purposes of performing a forensic accounting of Husband's income." The trial court therefore
found that "there is not sufficient evidence to demonstrate Husband is actively concealing
income." Without sufficient evidence that Husband was actively concealing income, the trial
court accepted Husbands 2012 tax return for purposes of determining his income for spousal
support.
{¶ 29} In the absence of evidence or expert testimony to the contrary, we do not find
that the trial court abused its discretion in calculating Husband's income based upon his 2012
tax return.
{¶ 30} Accordingly, Wife's second cross-assignment of error is overruled.
{¶ 31} Cross-Assignment of Error No. 3:
{¶ 32} THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING APPELLEE
SHOULD BE RESPONSIBLE FOR THE PAYMENT OF ALL OF HER ATTORNEY FEES
ASSOCIATED WITH THE DIVORCE.
{¶ 33} Pursuant to R.C. 3105.73(A), in an action for divorce:
a court may award all or part of reasonable attorney's fees and
litigation expenses to either party if the court finds the award
equitable. In determining whether an award is equitable, the
court may consider the parties' marital assets and income, any
award of temporary spousal support, the conduct of the parties,
and any other relevant factors the court deems appropriate.
{¶ 34} It is well-established that an award of attorney fees is within the sound
-8-
Butler CA2013-12-222
CA2013-12-232
discretion of the trial court. Casper v. Casper, 12th Dist. Warren Nos. CA2012-12-128 and
CA2012-12-129, 2013-Ohio-4329, ¶ 62. In turn, a trial court's decision to award attorney
fees will be reversed only if it amounts to an abuse of discretion. Reynolds–Cornett v.
Reynolds, 12th Dist. Butler No. CA2013-09-175, 2014-Ohio-2893, ¶ 28, citing Foppe v.
Foppe, 12th Dist. Warren No. CA2010-06-056, 2011-Ohio-49, ¶ 34.
{¶ 35} Wife argues that the trial court erred in ordering that she pay her own attorney
fees when Husband paid for his attorney fees through a business account that impacts the
value of SPC, a marital asset. Husband asserts that there is no evidence that his attorney
fees were paid prior to the valuation of SPC, and that Wife has substantial income and
assets out of which to pay her attorney fees.
{¶ 36} Wife is being awarded over $3,000 per month in spousal support, and more
than $53,000 to reconcile property division pursuant to the divorce decree. In addition, Wife
does not direct this court to any evidence on the record indicating that the use of the
business account by Husband to pay his attorney fees impacted the valuation of SPC. Thus,
we do not find that the trial court abused its discretion in ordering that Husband and Wife pay
their own attorney fees.
{¶ 37} Accordingly, Wife's third cross-assignment of error is overruled.
{¶ 38} Judgment affirmed.
HENDRICKSON and PIPER, JJ., concur.
-9-
| {
"pile_set_name": "FreeLaw"
} |
550 S.W.2d 699 (1977)
Harold D. CARAWAY, Appellant,
v.
The STATE of Texas, Appellee.
No. 54393.
Court of Criminal Appeals of Texas.
May 18, 1977.
*700 Patrick A. Lanius, Huntsville, for appellant.
Jim D. Vollers, State's Atty., David S. McAngus, Asst. State's Atty., Austin, for the State.
OPINION
PHILLIPS, Judge.
This is an appeal from a conviction for the offense of murder with malice under our former penal code upon a plea of not guilty. The jury assessed punishment at life imprisonment.
Co-defendant Douglas Arthur Bates testified on rebuttal to the events surrounding *701 the killing as follows: In November 1970 appellant asked Bates to help him with the murder of Horace Knox for $500.00. Appellant then telephoned a woman named Mildred and Bates spoke to her about the murder. A week prior to the murder appellant and Bates made a trip in the vicinity of Lovelady, but did not go to Mr. Knox's house. At that time appellant had a handdrawn map.
On December 23, 1970, appellant picked Bates up shortly before 12:00 and they proceeded to Bates' trailer where they found Tommy Bell, Sandra Franklin and Bruce Pershall. The five left Houston in Bates' Cadillac and drove toward Dallas on the interstate highway. They left the highway at Crockett where they stole a white Mustang and a .30-.30 rifle.
From Crockett they drove to Lovelady and to Mr. Knox's house. Bates testified that he drove in the Mustang with appellant while the others drove in the Cadillac. Pershall, Bates and appellant went up to the house. When Mr. Knox came to the door with a .22 single shot in his hand, the three men tackled him. Appellant asked the man if he was Horace Knox and when the man responded affirmatively the appellant began beating him with the .22 rifle.
Bates found a shotgun and Pershall found some shells in Knox's home. Bates admitted that he shot the man once with the shotgun in the waistline. He testified that the three of them wiped any fingerprints and left with the shotgun. Later they picked Bell up on the side of the road. It was Bates' testimony that the murder occurred at approximately 3:30 in the morning.
On cross examination Bates was confronted with prior inconsistent statements in regard to this case. He admitted that he had earlier attempted to blame Tommy Bell for the murder because Bell had previously informed on Bates for the burglary of a doctor's office.
This testimony was corroborated earlier by Tommy Bell, who testified that on the night of the murder he was at Bates' mobile home "fixing up speed" and at approximately 11:00 o'clock he, Bates, appellant, Sandra Franklin and Bruce Pershall drove in Bates' automobile to Crockett. In Crockett appellant stole a .30-.30 rifle from a truck and later Bates and appellant stole a white Mustang. Bell testified that Bates drove the Mustang with appellant and that Pershall and Franklin rode in the Cadillac with him.
They stopped at a farm house and Bates and appellant went to the front door of the house and entered. Approximately 10 or 15 minutes later Bell heard a shot, at which time he got scared, made a U-turn and drove off. He testified that he later had a flat tire and pulled off on the shoulder of the road somewhere past Huntsville. After hitchhiking for 30 minutes or an hour Bates picked him up in the Mustang. Bell testified that at this time it was approximately 3:30 or 3:45. He further testified that he did not see a shotgun or any kind of weapon in the car, nor did any of his companions mention what had happened in the farm house that night. Bell admitted taking "speed" before going on the trip that night and testified that he took drugs, mostly amphetamines.
In addition to the testimony of co-defendant Bates, Bell, the medical examiner and the investigating officer, the appellant presented several alibi witnesses. Appellant's grandmother-in-law, mother-in-law, Winnie Davis, and his wife all testified to appellant's presence at a Christmas party until 11:45 or 12:00 p. m. the evening of December 23, 1970. Appellant's mother-in-law testified that he was living with her at the time and that they all went to bed at approximately 11:15. She further testified that she saw appellant the following morning at 6:15.
Appellant's wife testified that she and appellant went to bed at approximately 12:30, but got up at approximately 1:00 o'clock to call appellant's mother. They went back to bed at about 1:15 and talked to one another until about 1:30. At approximately *702 3:00 appellant's wife was awakened by her baby and she testified that at the time she noticed that appellant was still in bed.
In his second ground of error appellant assigns error to the trial court's failure to instruct a verdict of acquittal in that there was insufficient evidence to corroborate testimony of the accomplice witness as required by Art. 38.14, V.A.C.C.P.[1] The application of Art. 38.14 requires that the testimony of the accomplice witness be eliminated from consideration while the testimony of the other witnesses is examined for evidence of an incriminating nature tending to connect the accused with the commission of the offense. Moore v. State, Tex.Cr.App., 521 S.W.2d 263.
Appellant contends that the only testimony other than that offered by Bates which connected him to the offense was that given by Bell, also an accomplice witness. If that contention is correct, this conviction must be reversed, because the testimony of one accomplice witness cannot be used to corroborate that of another. See Chapman v. State, Tex.Cr.App., 470 S.W.2d 656.
Douglas Bates was an accomplice witness as a matter of law. The jury was instructed that Bates was an accomplice witness; however, they were given no instruction concerning Bell's status. A careful examination of appellant's brief and the record before us does not reflect that appellant ever requested that the jury be so charged. Ordinarily when there is doubt whether a witness is an accomplice witness, it is sufficient if that fact issue is submitted to the jury even though the evidence seems to preponderate in favor of the fact that such a witness is an accomplice witness as a matter of law. Colunga v. State, Tex.Cr. App., 527 S.W.2d 285. However, since the issue was not submitted to the jury in the instant case, it is necessary for us to determine if Bell is an accomplice witness as a matter of law.
As we noted in Singletary v. State, Tex. Cr.App., 509 S.W.2d 572:
"An accomplice witness has been described as a person, who, either as a principal, accomplice, or accessory, was connected with the crime by unlawful act or omission on his part, transpiring either before, at the time of, or after the commission of the offense, and whether or not he was present and participated in the crime."
Appellant argues that because Bell admitted he was a party to the theft of the automobile and rifle shortly before the murder he should be considered an accomplice witness to the instant offense. Appellant notes that Bell was driving Bates' car when he saw Bates and appellant enter the farm house. He argues that from the two thefts just committed it would have been reasonable for Bell to assume Bates and appellant were about to commit a third crime when they went into the farm house. From these facts appellant concludes that some complicity still existed on Bell's part which necessitates corroboration of his testimony as an accomplice. Although appellant's argument is compelling, we do not agree.
The mere fact that a witness has complicity with an accused in the commission of other offenses does not make his testimony that of an accomplice witness for the offense for which the accused is on trial if there is no showing of his complicity in that offense. Easter v. State, Tex.Cr.App., 536 S.W.2d 223. The record in the instant case does not reflect any affirmative act on Bell's part to assist in Knox's murder. See Chappell v. State, Tex.Cr.App., 519 S.W.2d 453. Appellant made no showing that Bell participated in planning or promoting the offense. See and compare Cross v. State, *703 Tex.Cr.App., 550 S.W.2d 61 (decided April 20, 1977). Even if Bell had been told of the killing later that evening when he was given a ride by appellant and Bates, a witness is not deemed an accomplice witness merely because he knew of the crime but failed to disclose it or even concealed it. Easter, supra. The fact that Bell was present outside the farm house at the time of the shooting is also not controlling; the fact that the witness was present when the crime was committed does not compel the conclusion that he was an accomplice witness. See Quintanilla v. State, Tex.Cr.App., 501 S.W.2d 329; Easter, supra; Colunga, supra.
Having found Bell was not an accomplice witness as a matter of law, his testimony is a proper corroboration of the accomplice witness Bates. Appellant's second ground of error is overruled.
Next appellant contends he was denied due process of law under the Fifth and Fourteenth Amendments when gruesome photographs were "unnecessarily introduced merely to prejudice the defendant and inflame the minds of the jury." Appellant recognizes the rule of Martin v. State, Tex.Cr.App., 475 S.W.2d 265, and its progeny which permit the admission of photographs of the deceased if a verbal description of the scene would be admissible. However, appellant stresses that in those cases evidence of guilt was overwhelming and argues that in the instant case the evidence is very weak, thus causing the photographs to have a prejudicial effect on the jury.
Sheriff Monk testified the first thing he saw upon entering the house was "Mr. Knox's body lying in the front room face up near a couch and he had been badly beaten and shot." At that point the State introduced a photograph which Monk said accurately represented the scene except that the deceased's pockets had been turned out in order to remove his personal property. Appellant's objection to the photograph as prejudicial was overruled. Monk identified the second complained-of photograph as the other side of the room in which Knox was found. Appellant objected to its admission as the third photograph of the deceased and of no value except to inflame the jury.
From the record before us it appears that nine photographs were admitted into evidence showing the physical layout of the living room and the exterior of the house, different parts of a firearm found throughout the room, the deceased's glasses and his body as it was left at the scene. Appellant objects to those photographs which show decedent's body. From the description of these photographs given at the trial, they were properly admissible as pertinent to decedent's injuries and a description of the place where the offense was committed. Vasquez v. State, Tex.Cr.App., 532 S.W.2d 338. Furthermore, without the photographs before us for review, we cannot conclude that the photographs lacked probative value and served only to prejudice and inflame the jury.
Appellant complains in his fourth ground of error that he was denied due process of law in violation of the First and Fourteenth Amendments because the courtroom had the appearance of an armed camp. In his brief appellant asserts that during the trial several individuals present were armed with pistols: the trial judge, the district attorney, the assistant district attorney, the sheriff, the deputy sheriff, the former deputy sheriff and a Texas Ranger. Before the voir dire of the jury panel, the trial judge informed counsel in chambers and with a court reporter present that he had received information that the joint defendants intended to make a break at the courthouse and possibly take the district attorney with them as a hostage. As a result of these threats, the trial judge stated that he requested the presence of a Texas Ranger, the former deputy sheriff, and either the sheriff or deputy sheriff. The trial judge stated for purposes of the record that both the Texas Ranger and the former deputy sheriff were wearing "street clothes" and no weapons would be displayed by them.
*704 The trial judge additionally informed counsel that he intended to keep a loaded gun in the drawer of his bench and that the State's attorneys were also armed. At this point the trial judge stated his intention to search all male spectators entering the courtroom and the purses of all female spectators. He further stated that these searches would be "outside the vision and without the knowledge of the jury at any time."
The record does not reflect that the jury was aware of these security procedures and appellant admits that there was no showing that the jurors were in fact influenced by the security measures outlined before trial. However, appellant urges that the error was so egregious that no showing of actual prejudice is required. We do not agree.
In Moore v. State, Tex.Cr.App., 535 S.W.2d 357, we stressed that it is the trial court's responsibility, subject to close appellate scrutiny, to cause the record to reflect why a defendant must appear before a jury in handcuffs, since such actions infringe his constitutional presumption of innocence. The decision in Moore stressed that the error involved concerns the effect of such actions on the jury and observed:
"No justification at all was necessary for handcuffing the appellant during trips between the jail and the courthouse, for the record does not reflect that any jurors would have had occasion to see him during such trips."
The case at bar is more closely analogous to the second situation where there is no showing that the jury was even aware such additional precautions were being taken and consequently there is no showing of harm.
Similarly in Kimble v. State, Tex.Cr.App., 537 S.W.2d 254, there was no showing of harm or prejudice when a co-defendant was exposed to the jury in jail clothes. In light of the threats conveyed in this case and the fact that, except for the sheriff or his deputy, all the law enforcement officers present were in plain clothes, and because all searching of spectators was done outside the presence of the jury, we find the security measures taken in this case to be justified and reasonable. See Chappell v. State, supra.
In his first ground of error appellant complains he was denied equal protection and due process of the law in violation of the Fourteenth Amendment because he "could not post bond prior to trial" and received the maximum sentence but was not given credit for his pretrial jail time. It is appellant's position that denial of pretrial jail time credit unfairly extended his parole eligibility date and thus should be controlled by the rationale of Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), and Hart v. Henderson, 449 F.2d 183 (5th Cir. 1971). We agree.
In Williams, supra, the defendant was assessed the maximum sentence of imprisonment in addition to a fine. Defendant's indigency prevented him from paying the fine and the Supreme Court held his imprisonment for non-payment was invalid. Hart, supra, a habeas corpus writ, similarly held that the inability of an indigent criminal defendant to make bond should not extend his imprisonment beyond the statutory maximum, and the cause was remanded for an evidentiary hearing on indigency.
Art. 42.03, V.A.C.C.P., in effect at the time appellant was sentenced, allowed the trial judge the discretion of crediting a defendant with the time he spent in jail prior to trial.[2] In the case at bar appellant was assessed the maximum punishment of life imprisonment. Appellant argues that although a "life" sentence appears open ended and appears to be controlled solely by the length of appellant's life, a prisoner serving such a sentence is eligible for parole consideration when he has accumulated credit for 20 years of his sentence. Art. 42.12, Sec. 15(a), V.A.C.C.P.
This Court has previously considered the collateral legal consequences of a felony *705 conviction upon a life sentence. See Ex parte Langston, 510 S.W.2d 603 and 511 S.W.2d 936. The rationale of those opinions gives appellant standing to challenge the pretrial jail time credit on direct appeal.
Although there are no Texas cases referring to the exact issue appellant raises by this ground of error, several federal decisions have addressed the general issue involved. Generally there is no federal constitutional right to credit for time served prior to sentence. Jackson v. State of Alabama, 530 F.2d 1231 (5th Cir. 1976). However, a criminal defendant who is confined before sentencing because his indigency prevents him from making bond is excepted from the general rule if he is sentenced to the statutory maximum for his particular offense. Martin v. State of Florida, 533 F.2d 270 (5th Cir. 1976).
Here appellant received a sentence of life imprisonment which was the maximum sentence for murder with malice. The record before us reflects appellant's indigency.[3] Thus it appears that appellant has satisfied the two criteria necessary to compel the trial court to award him pretrial jail time credit even though at the time appellant was sentenced the trial judge had complete discretion to grant or deny credit.
Accordingly, upon receiving the mandate in this cause, the trial judge is instructed to credit appellant for time served prior to sentence.
The judgment is affirmed.
NOTES
[1] Art. 38.14, V.A.C.C.P., provides:
"A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense."
[2] As amended August 27, 1973, Art. 42.03, V.A. C.C.P., now makes it mandatory to give a defendant credit for his pretrial custody. See Harrelson v. State, Tex.Cr.App., 511 S.W.2d 957.
[3] Appellant filed a pauper's oath before trial stating he was in custody because of his inability to make bond and was wholly destitute of means to hire counsel. The trial court then appointed counsel for appellant. The record also reflects appellant's sworn pauper's affidavit claiming his inability to pay court costs.
| {
"pile_set_name": "FreeLaw"
} |
310 N.W.2d 766 (1981)
SUNBEHM GAS, INC., A. G. Golden, and Deka Minerals, a partnership, Plaintiffs and Appellants,
v.
Kent CONRAD, Tax Commissioner, Defendant and Appellee.
Civ. No. 10013.
Supreme Court of North Dakota.
October 7, 1981.
*767 Nilles, Hansen, Selbo, Magill & Davies, Fargo, for plaintiffs and appellants; argued by Frank J. Magill, Fargo.
Kenneth M. Jakes & Robert W. Wirtz, Asst. Attys. Gen., State Tax Dept., Bismarck, for defendant and appellee; argued by Jakes, Bismarck.
ERICKSTAD, Chief Justice.
This is an appeal by the plaintiffs, Sun-Behm Gas, Inc., A. G. Golden, and Deka Minerals, a partnership (hereinafter the Taxpayers), from an order of the District Court of Stark County, dated May 12, 1981, denying the Taxpayers' request for a writ of prohibition against the defendant, Kent Conrad, State Tax Commissioner, to restrain him from collecting oil extraction taxes under Initiated Measure No. 6 [approved by the voters on November 4, 1980 (S.L.1981, Chapter 649), and amended by the Forty-Seventh Session of the North Dakota Legislature].[1]
On appeal the Taxpayers, asserting that Initiated Measure No. 6 violates certain provisions of the North Dakota Constitution, have raised the following issues:
*768 (1) Whether or not Initiated Measure No. 6 appropriates public moneys and thereby interferes with the legislature's appropriation authority in violation of Article X, Section 12(1) of the North Dakota Constitution;
(2) Whether or not Initiated Measure No. 6 "hampers, restricts, or impairs" the legislature's power of appropriation in violation of Article III, Section 1 of the North Dakota Constitution; and
(3) Whether or not Initiated Measure No. 6 "embraces more than one subject" in violation of Article IV, Section 33 of the North Dakota Constitution.
*769 The Taxpayers assert that the measure appropriates oil extraction tax moneys and thereby interferes with the legislature's authority to appropriate public funds in violation of Article X, Section 12(1) of the North Dakota Constitution, which provides in relevant part:
"All public moneys, from whatever source derived, shall be paid over monthly by the public official, employee, agent, director, manager, board, bureau, or institution of the state receiving the same, to the state treasurer, and deposited by him to the credit of the state, and shall be paid out and disbursed only pursuant to appropriation first made by the legislature..." [Emphasis added.]
We disagree with the Taxpayers' assertion that the measure appropriates public funds. Our Court has defined the term "appropriation" as used within Article X, Section 12(1) [numbered Section 186 prior to the legislative council's renumbering of the State Constitution pursuant to Section 46-03-11.1, N.D.C.C.] as:
"the setting apart of a definite sum for a specific purpose in such a way that public officials may use the amount appropriated, and no more than the amount appropriated."
City of Fargo, Cass County v. State, 260 N.W.2d 333 (N.D.1977); Menz v. Coyle, 117 N.W.2d 290 (N.D.1962); Campbell v. Towner County, 71 N.D. 616, 3 N.W.2d 822 (1942).
Although Initiated Measure No. 6 provides a percentage allocation or division of oil extraction tax moneys among the state school aid program, a special trust fund, and the state's general fund it does not make any appropriation of such moneys for expenditure by public officials. The measure leaves for the legislature the appropriation of definite sums to accomplish the purposes of the measure:
"... The moneys accumulated in such fund [the oil extraction tax development fund] shall be allocated as provided in this Act and the legislative assembly shall make any appropriation of money that may be necessary to accomplish the purposes of this Act.
* * * * * *
"It is the mandate of the electors that this Act will be appropriately funded by the legislative assembly." Initiated Measure No. 6, §§ 6 & 11.
Although the initiated measure uses the term "mandate" to urge the legislature to provide appropriate funding, the actual process of appropriating funds to accomplish the measure's objectives is left to the legislature.
The distinction between the allocation and the appropriation of funds is illustrated by State v. Jones, 74 N.D. 465, 23 N.W.2d 54 (1946), which involved an initiated measure authorizing the State Highway Department to finance a highway construction program by the issuance of revenue anticipation certificates. The initiated measure provided that moneys received from the certificates were to be credited to a "state highway construction fund" and that "the same are hereby appropriated and shall be used and expended only for the construction and reconstruction of such highways and bridges...." The constitutionality of the measure was challenged, among other things, on the ground that it appropriated funds in violation of Section 186 of the North Dakota Constitution (currently Article X, Section 12(1), N.D.Const.) that, "all public moneys ... shall be paid out and disbursed only pursuant to appropriation first made by the legislature...".
Section 186, North Dakota Constitution, provided a standing appropriation for various departments and activities of the state including the State Highway Department:
"provided, however, that there is hereby appropriated ... the funds allocated under the law to the state highway department and the various counties for the construction, reconstruction, and maintenance of public roads." Section 186, N.D. Const.
In view of the foregoing provision of Section 186, this Court made the following determination:
"This section of the constitution did not specify the amount of the fund, nor its *770 source; but it did determine that whatever money was allocated to the Highway Department could be expended without legislative appropriation. The Legislature, and the people in the exercise of the power of initiative, could determine the extent of these funds.
"This court holds that the provisions of sections 15 and 16 of the initiative measure `appropriating' the funds so raised are not in violation of section 186 of the constitution. It is true this section 186 provides that all public moneys from any source whatever must be paid to the state treasurer and cannot be paid out of the treasury except by legislative appropriation; but there is the express exception in case of money allocated to the state highway department and this money is `appropriated' by the constitutional provision. No further `appropriation' is necessary, nor may the legislature prevent it." 23 N.W.2d at 63. [Emphasis added.]
Jones, supra, is readily distinguishable from the instant case because there is no standing appropriation for the expenditure of oil extraction tax moneys allocated under the initiated measure to the state school aid program, the special trust fund, and the state general fund. The significance of Jones, supra, to the instant case is its illustration of the distinction between an allocation and an appropriation. Although the initiated measure in Jones, supra, allocated funds for use by the highway department it was the standing appropriation of Section 186 of the State Constitution which authorized the expenditure of such funds. Although Initiated Measure No. 6 allocates or divides oil extraction tax funds among the various objectives of the measure, it leaves the appropriation of such funds for legislative action.
We conclude that Initiated Measure No. 6 does not appropriate public moneys and does not violate Article X, Section 12(1), of the North Dakota Constitution. In reaching this conclusion we make no determination as to whether or not Article X, Section 12(1), North Dakota Constitution, places the exclusive power of appropriation in the legislature thereby prohibiting the people from appropriating public moneys.
The Taxpayers also assert that the measure "hampers, restricts, or impairs" the legislature's power of appropriation in violation of Article III, Section 1 of the North Dakota Constitution, which provides:
"Section 1. While the legislative power of this state shall be vested in a legislative assembly consisting of a senate and a house of representatives, the people reserve the power to propose and enact laws by the initiative, including the call for a constitutional convention; to approve or reject legislative Acts, or parts thereof, by the referendum; to propose and adopt constitutional amendments by the initiative; and to recall certain elected officials. This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers." [Emphasis added.]
The Taxpayers urge us to construe the last sentence of the foregoing provision as prohibiting the people from hampering, restricting, or impairing the legislature's power. They assert that the legislature's appropriation power is hampered, restricted, and impaired by the initiated measure's allocation of oil extraction tax funds for specified purposes and by its mandate for the legislature to make necessary appropriations to accomplish the stated objectives of the measure. They further assert that the measure interferes with the legislature's power because its provisions cannot be amended or repealed by the legislature for seven years except by a two-thirds vote of each house pursuant to Article III, Section 8 of the North Dakota Constitution.
On November 7, 1978, the people repealed Section 25 of the constitution which consisted of 14 paragraphs dealing with the creation and implementation of the initiative and referendum powers reserved in the people. On this date, the people also approved the creation of a new article to the constitution (Article III, N.D.Const.) to reserve in the people the powers of initiative, referendum, and recall.
*771 Section 25, prior to its repeal, included the following sentence:
"Laws may be enacted to facilitate its operation, but no laws shall be enacted to hamper, restrict or impair the exercise of the rights herein reserved to the people."
That provision was construed by this Court to prohibit the legislature from passing a law which would in any way hamper, restrict, or impair the initiative and referendum powers reserved by the people. Hernett v. Meier, 173 N.W.2d 907 (N.D.1970). The foregoing sentence was revised and included within Section 1 of the newly created Article III:
"Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers."
The Taxpayers assert that the revision of the language of this sentence deleting the phrase "the exercise of the rights herein reserved to the people" and substituting the phrase "these powers" was to prohibit the people from hampering, restricting, or impairing "the legislative power." They assert that this interpretation is justified by construing the phrase "these powers" under Article III, Section 1, North Dakota Constitution, as encompassing "the legislative power" in addition to encompassing the powers reserved in the people under that provision. We disagree.
The entire focus of Article III, as its title declares, is on the "powers reserved to the people." Section 1 of Article III reserves in the people "the power to propose and enact laws by the initiative," "the power ... to approve or reject legislative Acts, or parts thereof, by the referendum;" "the power... to propose and adopt constitutional amendments by the initiative;" and "the power ... to recall certain elected officials." The reservation of such powers by the people precludes the legislature from possessing an autonomous or exclusive power to legislate. In that sense the legislature's power is hampered, restricted, and impaired by the peoplesuch result is inherent in the concept of the people reserving unto themselves legislative powers.[2] To adopt the Taxpayers interpretation of Section 1 of Article III, as prohibiting the people from hampering, restricting, or impairing the legislature's power would be contrary to the concept of reserving legislative powers in the people. That interpretation would be an unreasonable and absurd construction of the provision in violation of the rule that a statute or constitutional provision must be construed to avoid ludicrous and absurd results. Skoog v. City of Grand Forks, 301 N.W.2d 404 (N.D.1981).
We have been unable to find, and neither has brought to our attention, any matters surrounding the creation of Article III and the concurrent repeal of Section 25 of our constitution which would indicate that the substantive change urged by the Taxpayers was intended. We conclude that the Article III revision of the last sentence of paragraph 14 of Section 25 constituted an attempt to provide an improved and abbreviated phrasing of that sentence without substantive change. Accordingly, we construe the term "these powers" located in the last sentence of Article III, Section 1, North Dakota Constitution, as referring only to the powers reserved in the people under that section so as to prohibit any law which would hamper, restrict, or impair the powers reserved in the people. We conclude, therefore, that Initiated Measure No. 6 does not violate Article III, Section 1 of the North Dakota Constitution.
The Taxpayers also assert that Initiated Measure No. 6 "embraces more than one subject" in violation of Article IV, Section 33 of the North Dakota Constitution which provides:
"Section 33. No bill shall embrace more than one subject, which shall be expressed in its title, but a bill which violates this provision shall be invalidated *772 thereby only as to so much thereof as shall not be so expressed."
The Taxpayers concede that Sections 2 through 5 of the measure, which pertain to the imposition and administration of the oil extraction tax, do not violate the one-subject requirement under Article IV, Section 33, North Dakota Constitution. They contend, however, that those provisions which pertain to the establishment of the oil extraction tax development fund, the allocation of oil extraction tax moneys received, and the provision of tax credits encompass multiple subjects in violation of Article IV, Section 33, North Dakota Constitution. We disagree.
This Court has interpreted the one-subject requirement under Article IV, Section 33 [numbered Article II, Section 61, prior to the legislative council's renumbering of the constitution pursuant to Section 46-03-11.1, N.D.C.C.] as requiring that all matters treated by one piece of legislation be reasonably germane to one general subject or purpose. City of Mandan v. Nichols, 62 N.D. 322, 243 N.W. 740 (1932); Great Northern Ry. Co. v. Duncan, 42 N.D. 346, 176 N.W. 992 (1919).
In Nichols, supra, this Court held that an act involving various matters related to the general subject of "revenue and taxation" met the one-subject requirement under our constitution.
In Duncan, supra, a legislative bill dealing with tax levies, debt limits, and salaries of county officials was attacked as violating the one-subject requirement of our constitution. In upholding the legislation, this Court stated:
"It is a rule of construction applicable to such constitutional provisions that they should be liberally construed to uphold proper legislation where all parts are reasonably germane to a central object or purpose.
* * * * * *
"It is only by legislation of the character of the act in question that the legislative desire could be accomplished, unless each subject thus related to the general purpose were made the subject of a separate bill. But the constitutional provision in question does not require legislation by piecemeal." 176 N.W. at 996-997.
The cases of City of Beaumont v. Gulf States Utilities Co., 163 S.W.2d 426 (Tex. Civ.App.1942), and North Slope Borough v. Sohio Petroleum Corp., 585 P.2d 534 (Alaska 1978) are persuasive authority that measures dealing with various matters relating to taxation do not offend a state constitution's one-subject requirement.
The Texas Court of Civil Appeals in Beaumont, supra, upheld a general revenue measure against a claim that it violated the one-subject requirement of the Texas Constitution, a provision similar to our Article IV, Section 33, North Dakota Constitution, providing that "no bill ... shall contain more than one subject." In upholding the revenue measure, the Texas Court stated in relevant part:
"While it [the Omnibus Tax Law] embraces many subjects, it is clearly a general revenue measure. The purpose of the law is to raise revenue for the payment of old age assistance, aid to destitute children, aid to needy blind, obligations of the State under the Teachers' Retirement Act, Vernon's Ann.Civ.St. art. 2922-1 et seq., and to pay other expenses and obligations of the State. It reaches out and lays its hand upon various sources of revenue. The machinery is set up for the enforcement of the Act in detail. It is divided into twenty-one articles. Nineteen of these articles levy a different character of tax on different designated persons, businesses, corporations, industries and transactions within the State of Texas. It is the contention of appellant that each of these various tax matters referred to in the general scope of the Act is a separate and distinct subject matter within the language of Article III, Sec. 35 of the Constitution.
* * * * * *
"On the authorities cited, a general revenue measure may cover the entire field of assessing revenue; it may set up the machinery for collecting it; it may *773 allocate the revenue thus provided for to different state purposes; and it may make all necessary provisions incidental to, related to, or having any bearing upon the general subject of revenue collection. So, we overrule appellant's point that the Omnibus Tax Law violates Section 35 of Article III of our Constitution." 163 S.W.2d at 430-432.
In upholding a taxing statute against a challenge that it violated the one-subject requirement of the Alaska Constitution, the Alaska Supreme Court in Sohio, supra, stated:
"State taxation is not an unduly broad category under the one subject rule. Just as taxation has been held to be the single subject of a statute imposing different kinds of taxes upon different things, it is also the subject of a statute granting various tax credits and exemptions and clarifying the circumstances under which taxes may be levied." 585 P.2d at 545. [Footnotes omitted.]
We believe that Initiated Measure No. 6, like the measures upheld in Beaumont, supra, and Sohio, supra, encompasses only one general subject in compliance with the one-subject requirement under our constitution. Each section under the measure deals with matters which are related to or are in consequence of the imposition of the oil extraction tax. Sections 2 through 5 involve the imposition and administration of the oil extraction tax; Sections 6 and 7 involve the collection and allocation of the tax; Sections 8 through 10 involve the providing of tax credits as a consequence of the imposition of the tax; and Section 11 involves a mandate for the appropriation of moneys by the legislature to accomplish the purposes of the measure. Each provision deals with a matter which is germane to the imposition of the oil extraction tax and the consequences thereof. Accordingly, we conclude that Initiated Measure No. 6 does not violate the one-subject requirement under Article IV, Section 33 of the North Dakota Constitution.
In accordance with this opinion the order of the district court denying the Taxpayer's request for a writ of prohibition is hereby affirmed.
SAND, PAULSON and PEDERSON, JJ., and KERIAN, District Judge, concur.
KERIAN, D. J., sitting in place of VANDE WALLE, J., disqualified.
NOTES
[1] The relevant portions of Initiated Measure No. 6 as approved by the people on November 4, 1980, provide:
"SECTION 2. IMPOSITION OF OIL EXTRACTION TAX. There is hereby imposed an excise tax, to be known as the `oil extraction tax', upon the activity in this state of extracting oil from the earth, and every owner, including any royalty owner, of any part of the oil extracted shall be deemed for the purposes of this Act to be engaged in the activity of extracting that oil. The rate of tax shall be six and one-half percent of the gross value at the well of the oil extracted.
* * * * * *
"SECTION 6. OIL EXTRACTION TAX DEVELOPMENT FUND ESTABLISHED.
The tax imposed by section 2 of this Act shall be paid to the state treasurer when collected by the state tax commissioner and shall be credited to a special fund in the state treasury, to be known as the oil extraction tax development fund. The moneys accumulated in such fund shall be allocated as provided in this Act and the legislative assembly shall make any appropriation of money that may be necessary to accomplish the purposes of this Act.
"SECTION 7. ALLOCATION OF MONEYS IN OIL EXTRACTION TAX DEVELOPMENT FUND. Moneys deposited in the oil extraction tax development fund shall be apportioned quarterly by the state treasurer as follows:
1. Forty-five percent shall be allocated to the state school aid program for use in accordance with the provisions of chapter 15-40.1 of the North Dakota Century Code. It is the intent of the electors that other appropriations made by the legislative assembly for state aid to schools in accordance with chapter 15-40.1 of the North Dakota Century Code when added to the amount allocated under this subsection shall provide at least seventy percent of the funds required to meet the educational cost per pupil in elementary and secondary education as determined under the provisions of that chapter.
2. Ten percent shall be allocated and credited to a special trust fund to be established in the state treasury and shall be deposited and invested as are other state funds to earn the maximum amount permitted by law; provided that the first fifteen million dollars allocated and credited to this special trust fund shall be appropriated by the legislative assembly for Grafton state school for the remodeling or reconstruction and equipping of existing buildings and other facilities, for the construction and equipping of new buildings and other facilities, and for providing additional staffing for that institution, as shall be provided by the legislative assembly. The principal of this special trust fund shall not be used for any other purpose, but the income therefrom shall be administered by the state industrial commission pursuant to appropriations made by the legislative assembly for the following: the funding of programs for development of energy conservation and renewable energy sources; for studies for development of cogeneration systems that increase the capacity of a system to produce more than one kind of energy from the same fuel; for studies for development of waste products utilization; and for the making of grants and loans in connection therewith. Any income earned by the special trust fund that is not appropriated by the legislative assembly, or if appropriated but not expended or loaned by the state industrial commission by the end of a fiscal biennium, shall be transferred to the state's general fund.
3. Forty-five percent shall be allocated and credited to the state's general fund for general state purposes and as an offset for the reduction in income tax revenue and for the replacement of the county twenty-one mill property tax credit for schools as provided in section 10 of this Act.
* * * * * *
"SECTION 11. APPROPRIATIONS. It is the mandate of the electors that this Act will be appropriately funded by the legislative assembly."
Neither Section 2 (codified as 57-51.1-02, N.D.C.C.) or Section 6 (codified as 57-51.1-06, N.D.C.C.) of the initiated measure were substantively amended by the legislature. Section 11 of the initiated measure, although not amended or repealed by the legislature, was not codified as part of the North Dakota Century Code. Section 7 of the initiated measure (codified as Section 57-51.1-07, N.D.C.C.) was amended by the legislature to provide as follows:
"57-51.1-07. Allocation of moneys in oil extraction tax development fund. Moneys deposited in the oil extraction tax development fund shall be apportioned quarterly by the state treasurer as follows:
1. Sixty percent shall be allocated to the state school aid program for use in accordance with the provisions of chapter 15-40.1. It is the intent of the electors and the legislative assembly that the allocation made by this subsection shall not exceed seventy percent of the educational cost per pupil in public elementary and secondary education as determined under the provisions of chapter 15-40.1. Should the allocation exceed seventy percent, the balance of the allocation above seventy percent shall be deposited in the general fund. Should the allocation not exceed seventy percent, it is the intent of the electors and the legislative assembly that other appropriations made by the legislative assembly for state aid to schools in accordance with chapter 15-40.1, when added to the amount allocated under this subsection, shall provide at least seventy percent of the funds required to meet the educational cost per pupil in public elementary and secondary education as determined under the provisions of chapter 15-40.1.
2. Ten percent shall be allocated and credited to a special trust fund, to be known as the resources trust fund, to be established in the state treasury and shall be deposited and invested as are other state funds to earn the maximum amount permitted by law which income shall be deposited in the resources trust fund. Provided, the first fifteen million dollars allocated and credited to the resources trust fund shall be appropriated by the legislative assembly for Grafton state school for the remodeling or reconstruction and equipping of existing buildings and other facilities, for the construction and equipping of new buildings and other facilities, and for providing additional staffing for that institution, as shall be provided by the legislative assembly. The principal and income of the resources trust fund may be expended only pursuant to legislative appropriation and shall be available to:
a. The state water conservation commission for planning for and construction of water supply facilities; and
b. The industrial commission for the funding of programs for development of energy conservation and renewable energy sources; for studies for development of cogeneration systems that increase the capacity of a system to produce more than one kind of energy from the same fuel; for studies for development of waste products utilization; and for the making of grants and loans in connection therewith.
3. Thirty percent shall be allocated and credited to the state's general fund for general state purposes."
[2] Consistent with the people reserving these powers unto themselves is Art. I, § 2, N.D. Const., which reads:
"Section 2. All political power is inherent in the people. Government is instituted for the protection, security and benefit of the people, and they have a right to alter or reform the same whenever the public good may require."
| {
"pile_set_name": "FreeLaw"
} |
417 So.2d 1168 (1982)
STATE of Florida, Appellant,
v.
Wilbur SPEIGHTS, Appellee.
No. AI-200.
District Court of Appeal of Florida, First District.
August 16, 1982.
Jim Smith, Atty. Gen., Carolyn M. Snurkowski, Asst. Atty. Gen., Tallahassee, for appellant.
*1169 Michael Allen, Public Defender, Carl S. McGinnes, Asst. Public Defender, Tallahassee, for appellee.
McCORD, Judge.
The appellee was charged by information with burglary in that on July 29, 1981, he did "unlawfully enter or remain in a structure, to wit: the mobile home, the property of (the victim) with intent to commit therein an offense, in that the entry of the structure was gained stealthily and without consent of said (victim), contrary to Florida Statute 810.02." The trial court granted appellee's motion to dismiss the information on the ground that it failed to charge a specific offense as a part of the charge of burglary and, as such, was fatally defective. Thus, the question presented by this appeal is whether the allegations of the information were sufficient to allege a violation of the burglary statute, section 810.02(3), Florida Statutes.
Another panel of this Court has recently concluded that the State must reduce to a specific offense the nature of the offense charged as a part of a burglary information. State v. Clark, 416 So.2d 13 (Fla. 1st DCA 1982). We adopt this view. Accord Rozier v. State, 402 So.2d 539 (Fla. 5th DCA 1981). Nevertheless, we recognize that the Fourth District Court of Appeal has indicated a contrary result in dicta. State v. Fields, 390 So.2d 128 (Fla. 4th DCA 1980). In view of this implicit conflict as to the necessity in a burglary prosecution for the State to allege and prove an intent to commit a specific offense, we hereby certify to the Florida Supreme Court the following question of great public importance:[1]
In a prosecution for burglary under section 810.02, Florida Statutes (1981), is it necessary for the State to allege an intent to commit a specific offense?
The trial court's order dismissing this information is AFFIRMED.
ERVIN, J., concurs.
JOANOS, J., dissents in part and concurs in part.
JOANOS, Judge, dissenting in part and concurring in part.
The trial court should be reversed because the information was not defective. The correct interpretation of the requirements for the charging of the crime of burglary in an information is set out in State v. Fields, 390 So.2d 128, at page 131 (Fla. 4th DCA 1980).
I concur in the determination that the question set out in the majority opinion should be certified to the Florida Supreme Court as a question of great public importance.
NOTES
[1] The status of "dicta conflict" under Article V, Section 3(b)4, of the Florida Constitution and Florida Rule of Appellate Procedure 9.030(a)(2)(A)vi, has yet to be definitely resolved. England, Hunter & Williams, Constitutional Jurisdiction of the Supreme Court of Florida: 1980 Reform, 32 U.Fla.L.Rev. 147, 189 (1980); England & Williams, Florida Appellate Reform One Year Later, 9 F.S.U.L.Rev. 221, 244 (1981). Accordingly, we decline to certify that our decision expressly conflicts with State v. Fields, supra.
| {
"pile_set_name": "FreeLaw"
} |
Opinions of the Colorado Supreme Court are available to the
public and can be accessed through the Judicial Branch’s homepage at
http://www.courts.state.co.us. Opinions are also posted on the
Colorado Bar Association’s homepage at http://www.cobar.org.
ADVANCE SHEET HEADNOTE
June 15, 2020
2020 CO 56
No. 19SA170, People v. Meagher—Water Law—Administrative Orders—
Injunctions—Motions to Dismiss—Summary Judgment.
Plaintiff brought claims against defendant for injunctive relief, civil
penalties, and costs, arising from defendant’s failure to submit a form required by
Rule 6.1 of Water Division No. 3’s Measurement Rules. The water court denied
defendant’s motion to dismiss plaintiff’s claims and subsequently granted plaintiff
summary judgment on those claims, and defendant now appeals.
The supreme court concludes, contrary to defendant’s contentions, that
(1) the water court properly denied defendant’s motion to dismiss because
plaintiff’s claims were not mooted by defendant’s belated compliance with
Rule 6.1; (2) the water court correctly determined that neither Rule 6.1 nor the
pertinent provisions of section 37-92-503, C.R.S. (2019), required plaintiff to prove
that defendant had a culpable mental state and therefore defendant’s allegation
that he was not at fault for violating Rule 6.1 did not establish a genuine issue of
material fact so as to preclude the entry of summary judgment for plaintiff; (3) the
injunction entered by the water court was statutorily authorized and conformed
to Colorado standards for enjoining further violations of the Measurement Rules;
and (4) the water court properly awarded plaintiff costs and fees under subsection
37-92-503(6)(e).
Accordingly, the court affirms the judgment of the water court, concludes
that plaintiff is entitled to an award of reasonable appellate attorney fees, and
remands this case to allow the water court to determine the amount of appellate
fees to be awarded.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 56
Supreme Court Case No. 19SA170
Appeal from the District Court
Alamosa County District Court, Water Division 3, Case No. 18CW3003
Honorable Pattie P. Swift, Water Judge
Plaintiffs-Appellees:
The People of the State of Colorado, ex rel. Kevin G. Rein, State Engineer, and
Craig W. Cotten, Division Engineer for Water Division 3,
v.
Defendant-Appellant:
Nick Meagher, an individual.
Judgment Affirmed
en banc
June 15, 2020
Attorneys for Plaintiffs-Appellees:
Philip J. Weiser, Attorney General
Andrew Nicewicz, Assistant Attorney General
Philip E. Lopez, Senior Assistant Attorney General
Denver, Colorado
Attorneys for Defendant-Appellant:
S.W. Atencio and Associates, P.C.
Stephane W. Atencio
Colorado Springs, Colorado
Attorneys for Amicus Curiae The Rio Grande Water Conservation District:
Hill & Robbins, P.C.
David W. Robbins
Peter J. Ampe
Matthew A. Montgomery
Denver, Colorado
JUSTICE GABRIEL delivered the Opinion of the Court.
2
¶1 Kevin G. Rein, the State Engineer, and Craig W. Cotten, the Division
Engineer for Water Division 3 (the “Engineers”), brought claims against Nick
Meagher for injunctive relief, civil penalties, and costs, arising from Meagher’s
failure to submit Form 6.1—Water Use Data Submittal Form, as required by
Rule 6.1 of the Rules Governing the Measurement of Ground Water Diversions
Located in Water Division No. 3, The Rio Grande Basin (the “Measurement
Rules”). Meagher now appeals the water court’s orders denying his motion to
dismiss the Engineers’ claims and granting the Engineers summary judgment on
those claims. He contends that the court erred in (1) denying his motion to dismiss
because the Engineers’ claims were mooted by his ultimate submission of
Form 6.1; (2) granting summary judgment for the Engineers based on an
erroneous interpretation of Rule 6.1 and section 37-92-503, C.R.S. (2019), and
notwithstanding the existence of genuine issues of material fact as to his culpable
mental state and the amount of the civil penalties to be imposed; (3) enjoining
future violations of Rule 6.1; and (4) awarding costs and fees to the Engineers.
¶2 We reject each of these contentions in turn. First, we conclude that the water
court did not err in denying Meagher’s motion to dismiss because the Engineers’
claims were not mooted by Meagher’s belated submission of Form 6.1. Second,
we conclude that the water court correctly determined that neither Rule 6.1 nor
3
the pertinent provisions of section 37-92-503 required the Engineers to prove that
Meagher had a culpable mental state. Accordingly, Meagher’s allegation that he
was not at fault for violating Rule 6.1 did not establish a genuine issue of material
fact so as to preclude the entry of summary judgment for the Engineers. Third, we
conclude that the injunction entered by the water court was appropriate because
(1) the court was not required to comply with the requirements of C.R.C.P. 65,
given that section 37-92-503 provides special statutory procedures for issuing
injunctions, and (2) the injunction conformed to Colorado standards for enjoining
further violations of the Measurement Rules. Finally, we conclude that the water
court properly awarded the Engineers costs and fees under subsection
37-92-503(6)(e), and therefore we need not address whether costs and fees could
also have been awarded under subsection 37-92-503(1)(b).
¶3 Accordingly, we affirm the judgment of the water court, conclude that the
Engineers are entitled to the reasonable attorney fees that they incurred on appeal,
and remand this case to allow the water court to determine the amount of fees to
be awarded.
I. Facts and Procedural History
¶4 The State Engineer adopted the Measurement Rules in 2005, and the
Division 3 Water Court approved them in 2006. Rule 6.1 of these Rules requires
4
certain well owners to report in writing, on an annual basis, the amounts of water
pumped from their wells in a given irrigation year.
¶5 Meagher owns and pumps water from three tributary groundwater wells
located in Conejos County, and he does not dispute that the wells are subject to
the Measurement Rules. Before the events leading to this case, the Engineers had
issued multiple orders to Meagher to compel compliance with the Measurement
Rules and with conditions of his well permits and decrees, including orders to
comply with Rule 6.1.
¶6 As pertinent here, in October 2017, the Engineers sent Meagher Form 6.1, so
that he could submit his report of water pumped from his wells, as required by
Rule 6.1. The form gave Meagher a deadline of December 1, 2017 to submit the
required reports. When Meagher did not comply, the Division Engineer issued,
pursuant to section 37-92-502, C.R.S. (2019), a “Notice of Violation and Order to
Comply with Rules Governing Measurement of Ground Water Diversions”
(“Order”). This Order required Meagher to complete and submit Form 6.1 within
ten days. Again, Meagher did not comply. Accordingly, on March 16, 2018, the
Engineers filed a complaint in the water court. In this complaint, the Engineers
sought an injunction to prevent Meagher from further violating the Measurement
Rules and the Order, civil penalties of up to five hundred dollars for each violation,
5
and costs, including reasonable attorney fees. Meagher ultimately completed and
submitted Form 6.1 on April 4, 2018, which was ninety-nine days after the
deadline set by the Order.
¶7 Thereafter, Meagher filed a motion to dismiss the Engineers’ complaint. In
this motion, he argued that his belated compliance with the Order rendered the
Engineers’ claims moot. The water court denied this motion, concluding that
Meagher’s eventual compliance with the Order did not render moot either the
Engineers’ claim for an injunction against further violations or their demand for
civil penalties.
¶8 Meagher then filed an answer and cross-claim in which he alleged that he
had reasonably relied on the Engineers’ designation of certified well testers.
Specifically, he asserted that although he had hired several certified well testers to
submit the required reports, through no fault of his own, the well testers had failed
to do so.
¶9 The Engineers subsequently filed a motion for summary judgment,
contending that there were no genuine issues of material fact and that they were
entitled to judgment as a matter of law permanently enjoining Meagher from
further violating Rule 6.1 and ordering him to pay civil penalties, fees, and costs.
The court granted this motion, concluding that there were no genuine issues of
6
material fact because, among other things, Meagher did not dispute that he had
failed to comply on a timely basis with the applicable provisions of section
37-92-503, the Measurement Rules, and the Order. The court thus entered an
injunction that provided, “Pursuant to C.R.S. § 37-92-503(6)(e) Mr. Meagher is
permanently enjoined from further violations of Rule 6.1 of the Measurement
Rules, and he is ordered to complete and submit Form 6.1—Water Use Data Form,
for the Wells, each year, no later than December 1st.” The court also ordered
Meagher to pay a total of $1,500 in civil penalties ($500 for each of his wells), as
well as the Engineers’ costs of bringing this proceeding, including their reasonable
attorney fees.
¶10 Meagher now appeals the water court’s denial of his motion to dismiss and
its grant of summary judgment in the Engineers’ favor.
II. Analysis
¶11 We begin by considering whether the water court erred in rejecting
Meagher’s assertion that his belated compliance with the Measurement Rules
mooted the Engineers’ claims. Perceiving no error, we proceed to consider
whether either Rule 6.1 or section 37-92-503 required the Engineers to prove that
Meagher had a culpable mental state and, if so, whether genuine issues of material
fact precluded the entry of summary judgment here. We conclude that neither the
7
statute nor the rule requires any showing of a culpable mental state and that the
water court properly entered summary judgment for the Engineers. Next, we
address and reject Meagher’s challenges to the injunction issued against him. Last,
we consider whether the Engineers are entitled to an award of the costs and
reasonable attorney fees that they incurred both in the water court and on appeal,
and we conclude that they are.
A. Meagher’s Motion to Dismiss
¶12 Meagher first contends that the water court erred in denying his motion to
dismiss the Engineers’ claims against him because (1) his belated submission of
the requisite form mooted the Engineers’ claim for injunctive relief and (2) all of
the Engineers’ remaining claims were dependent on the viability of the claim for
injunctive relief. Because we view Meagher’s argument as part and parcel of his
appeal of the grant of injunctive relief (even though he frames his argument as an
appeal of the denial of his motion to dismiss), we will presume that this issue is
properly before us. Nonetheless, we are unpersuaded by Meagher’s contention.
¶13 We review de novo a district court’s decision on a C.R.C.P. 12(b)(5) motion
to dismiss. N.M. v. Trujillo, 2017 CO 79, ¶ 18, 397 P.3d 370, 373. We have adopted
a “plausibility” standard for assessing such motions. Id. at ¶ 20, 397 P.3d at 373.
8
Under this standard, in order to survive a motion to dismiss, a plaintiff must allege
a plausible claim for relief. Id.
¶14 We also review de novo the question of whether a case is moot. See People
in Interest of C.G., 2015 COA 106, ¶ 11, 410 P.3d 596, 599. “A case is moot when the
relief sought, if granted, would have no practical legal effect.” State Bd. of
Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 970 (Colo. 1997). If a case is moot,
a court will decline to render an opinion on its merits. Id.
¶15 Here, pursuant to, among other provisions, subsection 37-92-503(6)(e), the
Engineers sought injunctive relief. Subsection 37-92-503(6)(e) provides, in
pertinent part:
The state engineer and the particular division engineer in the name of
the people of the state of Colorado, through the attorney general, shall
apply to the water judge of the particular division to recover the civil
penalties specified in paragraphs (a), (b), and (c) of this subsection (6)
or for a temporary restraining order, preliminary injunction, or
permanent injunction, as appropriate, enjoining further violations of
this subsection (6). If the state engineer and the division engineer
prevail, the court shall also award the costs of the proceeding
including the allowance of reasonable attorney fees.
(Emphasis added.)
¶16 This subsection expressly allows for an order enjoining “further violations”
of subsection 37-92-503(6). “Further” means “going or extending beyond what
exists.” Further, Webster’s Third New International Dictionary (2002).
Accordingly, subsection 37-92-503(6)(e)’s plain language indicates that an
9
injunction may be issued for violations that occur in the future, in addition to what
has already taken place. Meagher’s belated submission of the required form
therefore did not moot the Engineers’ claim for an order enjoining “further
violations” of the statute and Rule 6.1, and the water court thus correctly rejected
Meagher’s assertion that the Engineers’ claim for injunctive relief was somehow
moot. And because Meagher’s assertion that the Engineers’ remaining claims
were moot depended on a finding that the claim for injunctive relief was moot, the
court likewise properly rejected Meagher’s assertion as to those claims.
¶17 Accordingly, we conclude that the water court did not err in denying
Meagher’s motion to dismiss the Engineers’ claims.
B. Summary Judgment Order
¶18 Meagher next contends that (1) the water court erred in concluding that
neither Rule 6.1 nor subsections 37-92-503(1)(a) and (6)(b) required the Engineers
to prove that Meagher had a culpable mental state and (2) genuine issues of
material fact as to his culpable mental state and the determination of the civil
penalties imposed on him precluded the entry of summary judgment. We
disagree.
¶19 We review an order granting summary judgment de novo. Dep’t of
Revenue v. Agilent Techs., Inc., 2019 CO 41, ¶ 15, 441 P.3d 1012, 1016. Summary
10
judgment is only proper when “the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” C.R.C.P. 56(c); accord Agilent Techs., Inc.,
¶ 15, 441 P.3d at 1016.
¶20 In considering whether summary judgment is appropriate, a court grants
the nonmoving party the benefit of all favorable inferences that may reasonably
be drawn from the undisputed facts and resolves all doubts against the moving
party. Agilent Techs., Inc., ¶ 15, 441 P.3d at 1016. In responding to a properly
supported summary judgment motion, however, the nonmoving party may not
rest on mere allegations or demands in its pleadings but rather must provide
specific facts demonstrating a genuine issue for trial. Id.
¶21 Summary judgment is a drastic remedy, and it should only be granted when
it is clear that the applicable legal standards have been met. Westin Operator, LLC v.
Groh, 2015 CO 25, ¶ 21, 347 P.3d 606, 611.
¶22 We also review questions of statutory interpretation de novo. Agilent Techs.,
Inc., ¶ 16, 441 P.3d at 1016. In construing a statute, we aim to effectuate the
legislature’s intent. Id. “In doing so, we look to the entire statutory scheme in
order to give consistent, harmonious, and sensible effect to all of its parts, and we
11
apply words and phrases in accordance with their plain and ordinary meanings.”
UMB Bank, N.A. v. Landmark Towers Ass’n, 2017 CO 107, ¶ 22, 408 P.3d 836, 840.
Additionally, “[w]e must avoid constructions that would render any words or
phrases superfluous or that would lead to illogical or absurd results.” Agilent
Techs., Inc., ¶ 16, 441 P.3d at 1016. Furthermore, we respect the legislature’s choice
of language, and we do not add words to or subtract words from a statute. Id. If
the statutory language is clear, we will apply it as written, and we need not resort
to other tools of statutory construction. Id.
¶23 We likewise review court rules de novo. Mercantile Adjustment Bureau,
L.L.C. v. Flood, 2012 CO 38, ¶ 30, 278 P.3d 348, 358. In construing such rules, we
employ the same interpretive rules that we use in interpreting a statute. Id.
Accordingly, we look first to the language of the rule itself, and if the rule is
unambiguous, then we will apply it as written. Id.
¶24 Rule 6.1 of the Measurement Rules provides:
All owners of Wells within the scope of these rules shall report in
writing the annual amounts of water pumped from Wells for the
period of November 1, to October 31 and, for irrigation Wells, the
method of irrigation (flood, center-pivot, etc.), to the Division 3
Engineer no later than December 1, 2008 and every irrigation year
thereafter.
¶25 Subsection 37-92-503(1)(a), in turn, states:
12
In the event an order of a division engineer or the state engineer
issued pursuant to section 37-92-502 is not complied with, the state
engineer and the particular division engineer in the name of the
people of the state of Colorado, through the attorney general, shall
apply to the water judge of the particular division for an injunction
enjoining the person to whom such order was directed from
continuing to violate same.
¶26 And subsection 37-92-503(6)(b) provides:
Any person who, when required to do so by rules and regulations
adopted by the state engineer, fails to submit data as to amounts of
water pumped from a well, makes a false or fictitious report of the
amounts of water pumped from a well, falsifies any data as to
amounts pumped from a well, makes a false or fictitious report of a
power coefficient for a well, or falsifies any power coefficient test shall
forfeit and pay a sum not to exceed five hundred dollars for each
violation.
¶27 Contrary to Meagher’s assertion, nothing on the face of either Rule 6.1 or the
above-quoted statutes includes a culpable mental state requirement as to the
failure to file Form 6.1, and we are not at liberty to add such a requirement to the
statutes or rule. See Agilent Techs., Inc., ¶ 16, 441 P.3d at 1016. Moreover, Meagher
cites no applicable authority suggesting that we must infer a culpable mental state
in a civil case like this one, and we have seen no such authority. To the contrary,
the case law that we have seen suggests that courts do not presume such an
element. See, e.g., Black Diamond Fund, LLLP v. Joseph, 211 P.3d 727, 736 (Colo. App.
2009) (concluding that a statute that allowed the Colorado Securities
Commissioner to seek an injunction to enforce the Colorado Securities Act did not
13
require proof of scienter, notwithstanding the fact that a damages action for
violations of the Act did require such proof, as did a criminal prosecution for
violations of the Act); Colo. State Bd. of Accountancy v. Paroske, 39 P.3d 1283, 1287
(Colo. App. 2001) (rejecting an accountant’s contention that a statute providing for
discipline of certified public accountants contained a scienter element).
¶28 Accordingly, we conclude that neither Rule 6.1 nor subsections
37-92-503(1)(a) or (6)(b) required the Engineers to establish Meagher’s culpable
mental state to prevail on their claims for injunctive relief and civil penalties. As
a result, we reject Meagher’s contention that his purported reliance on certified
well testers to file Form 6.1 established a genuine issue of material fact that
precluded the entry of summary judgment for the Engineers. Suffice it to say that
Rule 6.1 required Meagher to file his form by December 1, 2017, and he failed to
do so.
¶29 In reaching this conclusion, we are unpersuaded by Meagher’s numerous
assertions as to why summary judgment was improper here. We address and
reject each of these arguments in turn.
¶30 First, we disagree with Meagher’s reliance on strict liability in tort cases to
suggest that the water court erred in effectively creating a strict liability offense
here. Most of the cases on which Meagher relies are based in the common law.
14
See, e.g., N.M., ¶¶ 1–2, 397 P.3d at 371 (concerning a common law negligence action
brought against a dog owner); Boles v. Sun Ergoline, Inc., 223 P.3d 724, 725–27
(Colo. 2010) (concerning a strict products liability claim against a tanning booth
manufacturer). This case, however, involves a statute, and the penalty created is
“entirely a creature of statute,” so the common law does not govern. Vaughn v.
People ex rel. Simpson, 135 P.3d 721, 723 (Colo. 2006). And in the one case that
Meagher cites involving a statute, the division relied on the plain meaning of the
statutory phrase “sets fire to,” which suggested some level of intent, to conclude
that the statute did not apply to someone who unintentionally ignited a fire.
Minto v. Sprague, 124 P.3d 881, 886 (Colo. App. 2005). Neither the rule nor statutes
at issue before us contain similar language suggesting that a culpable mental state
is required in connection with a failure to file Form 6.1.
¶31 Second, we are unconvinced by Meagher’s contention that the use of the
word “willfully” in subsection 37-92-503(6)(c) establishes a culpable mental state
that must be imputed to all other subsections of the statute. To the contrary,
“[w]hen the General Assembly includes a provision in one section of a statute, but
excludes the same provision from another section, we presume that the General
Assembly did so purposefully.” Well Augmentation Subdistrict of Cent. Colo. Water
Conservancy Dist. v. City of Aurora, 221 P.3d 399, 419 (Colo. 2009). Here, the
15
legislature knew how to include a culpable mental state when it intended to do so,
and it did not include such an element in subsections 37-92-503(1)(a) or (6)(b),
which are the subsections at issue.
¶32 Third, we reject Meagher’s assertions that declining to read a culpable
mental state requirement into Rule 6.1 or subsections 37-92-503(1)(a) and (6)(b)
(1) implicates due process concerns, (2) allows for circumstances in which
compliance will be impossible, and (3) precludes Meagher from putting on a
defense.
¶33 As to Meagher’s due process concerns, he contends that the water court’s
conclusion that Rule 6.1 and the above-quoted statutes do not include a culpable
mental state requirement raises such concerns because it makes the statute
unconstitutionally vague. “The essential inquiry in addressing a void for
vagueness challenge is whether the statute ‘forbids or requires the doing of an act
in terms so vague that persons of ordinary intelligence must necessarily guess as
to its meaning and differ as to its application.’” People v. Gross, 830 P.2d 933, 937
(Colo. 1992) (quoting People v. Becker, 759 P.2d 26, 31 (Colo. 1988)).
¶34 Here, Meagher does not suggest that he could not understand that Rule 6.1
and section 37-92-503 required him to submit Form 6.1 by December 1, 2017. And
Meagher does not explain why the absence of a culpable mental state element
16
somehow renders the statute unconstitutionally vague. Indeed, we long ago
observed that the absence of such an element does not render an ordinance
unconstitutionally vague. See People ex rel. City of Arvada v. Nissen, 650 P.2d 547,
551 (Colo. 1982) (“We do not see how the failure of the ordinance to require an
intent to injure raises a problem of unconstitutional vagueness. It goes without
saying that the decision to include or exclude a particular element in defining
unlawful conduct is, in the first instance, a matter of legislative prerogative.”).
¶35 As to Meagher’s assertion that the absence of a culpable mental state
element would render it impossible for him to comply with Rule 6.1 or section
37-92-503, he never explains why this is so. Although he suggests that well pumps
may sometimes stop working, we fail to perceive—and Meagher does not say
—why such an issue would make it impossible for him to file the requisite form.
¶36 And with respect to Meagher’s assertion that our conclusion today would
preclude him from putting on any defense and is contrary to our decision in
Vaughn, we again disagree. By way of example, in an appropriate case, a
defendant might have an argument that the form at issue was not required.
Meagher has made no such argument here. Moreover, Vaughn actually supports
our determination that subsections 37-92-503(1)(a) and (6)(b) do not include a
culpable mental state element. In Vaughn, we concluded that statutory language
17
imposing liability on any person who diverted ground water contrary to a valid
order of the State Engineer or a Division Engineer rendered such person
responsible for the physical acts of others, at least when the unlawful diversion
occurred with the person’s authorization. Vaughn, 135 P.3d at 724. For the same
reason, Meagher is responsible for his failure to comply with the Division
Engineer’s Order, notwithstanding his assertion that others were at fault for his
noncompliance.
¶37 Finally, we are not persuaded by Meagher’s argument that the provision in
subsection 37-92-503(6)(b) allowing for the imposition of civil penalties “not to
exceed five hundred dollars” for each offense reflects a legislative mandate that a
judge must consider mitigating circumstances (including consideration of the well
owner’s culpability), thereby precluding the entry of summary judgment as to the
amount of such penalties. Meagher cites no applicable authority supporting this
position, and to the extent that his argument is premised on his assumption that
the Engineers were required to establish his culpable mental state, we have already
rejected that contention.
¶38 Moreover, trial courts typically enjoy considerable discretion in assessing
civil penalties under a statute. See, e.g., Colo. Dep’t of Pub. Health & Env’t v. Bethell,
60 P.3d 779, 787 (Colo. App. 2002). Here, Meagher cites no applicable authority,
18
and we have seen none, precluding a court from assessing and imposing civil
penalties on summary judgment when, as here, the facts supporting the penalties
were undisputed and the amount imposed was statutorily authorized. Indeed,
Bethell suggests that the entry of such an order on summary judgment is proper.
See id. (concluding that the trial court properly entered summary judgment
assessing civil penalties when it was undisputed that the defendant had failed to
provide financial assurance in response to a compliance order demanding such
assurance and the penalty assessed was within the statutorily prescribed range of
allowable penalties).
¶39 For all of these reasons, we conclude that the water court properly entered
summary judgment in the Engineers’ favor on their claims for injunctive relief and
civil penalties.
C. Injunction at Issue
¶40 Meagher next contends that the water court erred in issuing its order
permanently enjoining him from “further violations of Rule 6.1” and requiring
him to complete and submit Form 6.1 “each year, no later than December 1st.”
Meagher contends that, in issuing this injunction, the water court erroneously
failed to make the findings required by C.R.C.P. 65 and that the injunction was
19
what Meagher characterizes as an improper “obey-the-law” injunction. We again
are not persuaded.
¶41 With respect to Meagher’s assertion that to enter the Engineers’ requested
injunction, the water court had to make the findings required by C.R.C.P. 65 and
Rathke v. MacFarlane, 648 P.2d 648, 653–54 (Colo. 1982) (setting forth six findings
that a district court must make before entering a preliminary injunction), we view
our decision in Kourlis v. District Court, 930 P.2d 1329 (Colo. 1997), as dispositive.
In that case, we observed that special statutory procedures may supersede or
control the more general application of civil procedure rules. Id. at 1335. There,
the statutory procedures at issue included a provision authorizing the
Commissioner of Agriculture to issue a cease and desist order upon determining
that the Pet Animal Care and Facilities Act had been violated. Id. at 1334. If the
recipient of the order did not cease and desist as ordered and the violations
continued for a period exceeding twenty-four hours, then the Commissioner could
seek injunctive relief. Id. We characterized these procedures as “a comprehensive
enactment which includes a restraining order and injunction provision as an
essential feature of the enforcement design of a licensing statute.” Id. at 1335. We
observed that the legislature made clear that when the Commissioner had
sufficient evidence to show that a person had violated the Act there at issue, “the
20
legislature presumed that a court would act to enjoin the illegal act or practice.”
Id. at 1336. Thus, we opined that the application of the civil procedure rules and
the Rathke factors would have frustrated the licensure requirements set forth in the
Act. Id.
¶42 In our view, subsections 37-92-503(1) and (6) evince similar special statutory
procedures. Just like the statute at issue in Kourlis, these subsections establish a
comprehensive enforcement process under which the Engineers may issue an
order and then apply to the water court for an injunction and civil penalties if the
recipient does not comply with that order. See § 37-92-503(1)(a), (6)(e). And as in
Kourlis, these provisions disclose a legislative intent that a court will issue an
injunction to enforce a valid order issued by the Engineers. Accordingly, for the
reasons set forth in Kourlis, 930 P.2d at 1335–36, we perceive no error in the water
court’s determination that neither C.R.C.P. 65 nor the Rathke factors apply here.
Indeed, to conclude otherwise would frustrate the comprehensive enforcement
mechanism set forth in section 37-92-503. See Kourlis, 930 P.2d at 1336.
¶43 With respect to Meagher’s assertion that the injunction entered in this case
was an improper “obey-the-law” injunction, we note first that Colorado has not
adopted such a standard. Our courts have, however, consistently stated that “[t]he
general rule is that injunctive relief will not be granted to restrain the commission
21
of a crime.” Bd. of Cty. Comm’rs v. Vandemoer, 205 P.3d 423, 430 (Colo. App. 2008);
see also State v. Tolbert, 56 P.2d 45, 47 (Colo. 1936) (“The general rule undoubtedly
is that injunction does not lie to restrain the commission of a crime . . . .”). And we
have also stated that “an injunction prohibiting conduct must be sufficiently
precise to enable the party subject to the equitable decree to conform its conduct
to the requirements thereof.” Colo. Springs Bd. of Realtors, Inc. v. State, 780 P.2d 494,
499 (Colo. 1989). Thus, we have concluded that a decree that simply prohibited a
party from violating Colorado’s antitrust laws did not sufficiently inform the party
to whom the order was issued of the steps that it had to take to avoid violations
thereof. Id.
¶44 Here, the injunction was civil in nature and did not restrain the commission
of a crime. Moreover, notwithstanding Meagher’s assertion to the contrary, the
injunction was precise and prescribed with specificity the actions that he was
required to take to comply with the injunction, namely, to cease violating Rule 6.1
and to complete and submit Form 6.1 each year on a timely basis. And the
injunction was closely tailored to ensure Meagher’s compliance with the exact rule
that he violated in this case.
¶45 In these circumstances, we conclude that the entry of the injunction at issue
and the scope of that injunction were proper.
22
D. Costs and Attorney Fees
¶46 Finally, Meagher contends that the water court improperly imposed
sanctions in the form of costs and fees pursuant to subsection 37-92-503(1)(b).
Specifically, he asserts that the Order was issued by the Division Engineer, but
subsection 37-92-503(1)(b) refers only to a court ruling upholding the order of the
State Engineer. Thus, he argues that the award of costs and fees against him was
improper. In addition, Meagher contends that an award of appellate attorney fees
would be improper because subsection 37-92-503(6)(e) refers to an award of fees
for “the proceeding,” and, in Meagher’s view, “the proceeding” refers solely to the
litigation in the water court. We do not agree with any of these arguments.
¶47 Subsections 37-92-503(1)(b) and (6)(e) both address awards of fees and costs
in cases like that at issue here. Subsection 37-92-503(1)(b) provides, in pertinent
part, “[I]f the court upholds the order of the state engineer, the person against whom
such order was issued shall pay the costs of the proceeding, including the
allowance of reasonable attorney fees.” (Emphasis added.) Subsection
37-92-503(6)(e), however, provides “If the state engineer and the division engineer
prevail [on a claim for civil penalties or injunctive relief enjoining further
violations of this subsection (6)], the court shall also award the costs of the
23
proceeding including the allowance of reasonable attorney fees.” (Emphasis
added.)
¶48 Here, contrary to Meagher’s apparent misperception, the water court
awarded attorney fees under both subsections 37-92-503(1)(b) and (6)(e). The
Engineers have unquestionably prevailed in their effort to recover civil penalties
and to obtain injunctive relief to preclude further violations of subsection
37-92-503(6). Accordingly, under the plain language of subsection 37-92-503(6)(e),
the water court correctly determined that the Engineers were entitled to recover
the costs of the proceeding, including reasonable attorney fees.
¶49 The question thus becomes whether the award of costs and fees “of the
proceeding,” as set forth in subsection 37-92-503(6)(e), includes the recovery of fees
and costs that the Engineers incurred on appeal. We conclude that it does.
¶50 Colorado courts have consistently construed fee-shifting statutes like those
at issue to include fees incurred in appellate proceedings. See, e.g., Hartman v.
Freedman, 591 P.2d 1318, 1322 (Colo. 1979) (concluding that a then-existing statute
that provided that a judgment shall include a reasonable attorney fee in favor of
the prevailing party also warranted an award of reasonable appellate fees because,
among other things, the statute did not limit the fee award to fees resulting from
the trial); Akin v. Four Corners Encampment, 179 P.3d 139, 147 (Colo. App. 2007)
24
(concluding that the award of appellate attorney fees was appropriate in a
condemnation proceeding when the authorizing statute provided for the award of
attorney fees to the property owner who participated in the proceedings);
Kennedy v. King Soopers Inc., 148 P.3d 385, 390 (Colo. App. 2006) (“When a party is
awarded attorney fees for a prior stage of the proceedings, it may recover
reasonable attorney fees and costs for successfully defending the appeal.”).
¶51 These cases allow an award of appellate fees because “[t]he fundamental
purpose of awarding attorney fees for the trial stage, where authorized by statute,
is to make the [prevailing party] whole. This purpose would be frustrated by a
requirement that [the prevailing party] pay attorney fees to defend the [opposing
party’s] appeal.” Levy-Wegrzyn v. Ediger, 899 P.2d 230, 233 (Colo. App. 1994).
¶52 Accordingly, and because we perceive nothing on the face of subsection
37-92-503(6)(e) that limits a fee award to fees incurred in the water court, we
conclude that subsection 37-92-503(6)(e) entitles the Engineers to recover the
reasonable costs, including attorney fees, that they incurred in this appeal.
¶53 Because we conclude that the water court properly awarded the Engineers
costs and fees under subsection 37-92-503(6)(e), we need not address Meagher’s
argument that subsection 37-92-503(1)(b) limits an award of fees and costs to cases
in which the water court upholds an order of the State Engineer.
25
¶54 Pursuant to C.A.R. 39.1, we exercise our discretion to remand this case to
the water court for a determination of the amount of reasonable appellate fees to
be awarded.
III. Conclusion
¶55 Because Meagher’s belated filing of Form 6.1 did not moot the Engineers’
claims, we conclude that the water court correctly denied Meagher’s motion to
dismiss. In addition, because the summary judgment record established that
Meagher violated section 37-92-503 and Rule 6.1 and that there were no genuine
issues of material fact, we further conclude that the water court properly granted
summary judgment in the Engineers’ favor. And because the water court’s rulings
entering an injunction and awarding civil penalties, costs, and attorney fees to the
Engineers comported with the law governing such remedies, we conclude that the
water court properly ordered such injunctive relief, penalties, costs, and fees.
¶56 Accordingly, we affirm the judgment of the water court, conclude that the
Engineers are entitled to an award of the reasonable attorney fees that they
incurred in this appeal, and remand this case to allow the water court to determine
the amount of fees to be awarded.
26
| {
"pile_set_name": "FreeLaw"
} |
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-3054
INTERNATIONAL INSURANCE COMPANY,
Plaintiff-Appellee,
v.
CAJA NACIONAL DE AHORRO Y SEGURO,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 C 6703—John W. Darrah, Judge.
____________
ARGUED JANUARY 25, 2002—DECIDED JUNE 7, 2002
____________
Before MANION, KANNE, and WILLIAMS, Circuit Judges.
MANION, Circuit Judge. After a default award was en-
tered against defendant Caja Nacional de Ahorro y Seguro
(“Caja”) in arbitration proceedings, International Insurance
Company (“IIC”) filed a petition in federal district court
seeking to confirm the award. After Caja filed an answer
and affirmative defenses, IIC moved for an order requiring
Caja to post pre-judgment security. Caja responded that
it was immune from posting such security under the For-
eign Sovereign Immunities Act (“FSIA”). The district court
held that the FSIA did not preclude it from requiring Caja
2 No. 01-3054
to post pre-judgment security, ordered it to do so, and
struck Caja’s answer and affirmative defenses. When Caja
did not post security or file a new answer, the district court
entered a default judgment against it. Caja appeals, and
we affirm.
I.
In 1979, plaintiff International Insurance Company, an
American insurance company, purchased reinsurance from
the defendant, Caja Nacional de Ahorro y Seguro, an in-
surance and reinsurance company headquartered in Argen-
tina, pursuant to two reinsurance contracts. Caja subse-
quently failed to pay IIC over $2 million in indemnity
obligations, and on April 10, 2000, IIC initiated an arbitra-
tion proceeding as required by each contract’s arbitration
clause. Caja failed to respond to IIC’s arbitration demand or
to appear at the arbitration proceeding. As a result, on Oc-
tober 17, 2000, the arbitration panel entered a final default
award against Caja for approximately $4.7 million.1 Each
contract contained an identical provision, Article XXI, which
provided that “judgment may be entered upon the award of
the Arbitrators in any court having jurisdiction.” Accord-
ingly, on October 27, 2000, IIC filed a petition for confirma-
tion of the arbitration award in federal district court. Caja
filed an answer and affirmative defenses in response to IIC’s
petition.2 IIC then moved for an order requiring Caja to post
pre-judgment security based on the Illinois Insurance Code,
which requires unauthorized foreign companies, before
1
This amount included the indemnity obligations, accumulated
interest, arbitration costs and attorneys’ fees.
2
In doing so, Caja did not challenge the district court’s subject
matter jurisdiction, nor the court’s personal jurisdiction over it.
No. 01-3054 3
filing any pleadings, to “deposit . . . cash or securities or . .
. a bond with good and sufficient sureties . . . sufficient to
secure the payment of any final judgment which may be
rendered . . . .” 215 ILCS 5/123(5). IIC argued that if Caja
failed to do so prior to filing its answer, the court should
strike its answer.3 Caja responded that, as an instrumental-
ity of a foreign government, it is not required to post pre-
judgment security pursuant to the Foreign Sovereign
Immunities Act, 28 U.S.C. § 1600 et seq.
The district court held that the FSIA did not preclude
it from requiring Caja to post pre-judgment security. The
court reasoned that under the FSIA a foreign state’s im-
munity is “subject to existing international agreements to
which the United States is a party at the time of enactment
of this Act.” 28 U.S.C. § 1609. The court concluded that
Argentina is a party to such an “existing” agreement—the
Convention on the Recognition and Enforcement of Foreign
Arbitral Awards (known as the “New York Convention”
and codified by 9 U.S.C. § 201 et seq.). As a result, the court
found the FSIA’s immunity provisions inapplicable. Spe-
cifically, the New York Convention authorizes the courts
of each participating country to require other signatory
countries to provide “suitable security” upon seeking to
set aside or suspend an award rendered within its juris-
diction. See 9 U.S.C. § 201, art. VI.4 The district court fur--
ther concluded that Caja’s affirmative defenses constituted
3
Additionally, IIC asked the court to strike Caja’s affirmative
defenses because they did not constitute grounds to vacate the
arbitration award. See infra note 5.
4
Both the United States and Argentina are signatories to the
New York Convention. The United States signed the New York
Convention in 1958, later codifying it into law in 1970 at 9 U.S.C.
§ 201, and Argentina signed it on March 14, 1989, id. note 1b.
4 No. 01-3054
an application to set aside the arbitral award (a conclusion
that is not challenged on appeal) and therefore held that
the insurer was not immune from posting pre-judgment
security under Illinois law. The district court then ordered
Caja to post security in the amount of the default judg-
ment and struck its answer and affirmative defenses.5 See In-
ternational Ins. Co. v. Caja Nacional de Ahorro y Seguro,
No. 00C6703, 2001 WL 322005 (N.D.Ill. Apr. 2, 2001).
Caja did not post security or file a new answer, but
instead, on April 23, 2001, appealed the district court’s order
to this court. IIC moved to dismiss the appeal for lack of
appellate jurisdiction,6 and on July 3, 2001, in an unpub-
lished order, we granted IIC’s motion, citing Matter of
Carlson, 224 F.3d 716, 718 (7th Cir. 2000) (finding that order
requiring security, as opposed to denial of security, is
not ordinarily immediately appealable). On April 23, 2001,
while Caja’s appeal was still pending, IIC moved for a
default judgment on its petition to confirm the arbitration
award since Caja had not posted security and filed a new
5
The court also reviewed IIC’s motion to strike Caja’s affirma-
tive defenses, and concluded that all but nine of them must be
stricken even if Caja filed security and a proper answer because
the asserted defenses did not provide a basis to vacate the
arbitration award. That conclusion is not before us on appeal, and
we express no opinion as to its validity.
6
IIC moved to dismiss the appeal for lack of appellate jurisdic-
tion on the ground that the district court’s order requiring pre-
judgment security was an unappealable interlocutory order. Caja
claimed that we had jurisdiction over the appeal pursuant to the
collateral order doctrine because the district court had denied its
claim of sovereign immunity. See Rush-Presbyterian-St. Luke’s Med.
Ctr. v. Hellenic Republic, 877 F.2d 574, 576 n. 2 (7th Cir. 1989) (de-
nial of claim of sovereign immunity is an immediately appealable
interlocutory order under the collateral order doctrine).
No. 01-3054 5
answer. Caja objected, arguing that it did not wilfully dis-
obey the court’s order to post security, but rather had filed
a meritorious timely appeal (and that posting security
would render the appeal moot). The district court construed
this objection as a request to stay the litigation pending
appeal, but since Caja failed to file the proper motion or the
necessary supersedeas bond under Fed. R. Civ. P. 62(d),7 the
court denied its request. On July 6, 2001, the district court
granted IIC’s motion for default judgment and confirmed
the arbitration award in the amount of $4,702,428.12. Caja
appeals from that final judgment, and we affirm.
II.
A. Subject Matter Jurisdiction
Before addressing the merits of this appeal, we must
confirm that we have jurisdiction over this case. See Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1988). The
Federal Arbitration Act (“FAA”), which governs the “en-
forcement, validity, and interpretation of arbitration clauses
in commercial contracts in both state and federal courts,”
7
Rule 62(d) provides that “[w]hen an appeal is taken the
appellant by giving a supersedeas bond may obtain a stay . . . .
The bond may be given at or after the time of filing the notice of
appeal or of procuring the order allowing the appeal, as the case
may be. The stay is effective when the supersedeas bond is
approved by the court.” We note that we have recently held that
a “judgment creditor who pays the judgment pending appeal
instead of posting a supersedeas bond . . . is entitled to the return
of its money if the decision is reversed, and so the payment does
not moot the appeal unless the appellant has relinquished his
right to seek repayment if he wins.” Dale M. ex rel. Alice M. v.
Board of Educ. of Bradley-Bourbonnais High Sch. Dist. No. 307, 237
F.3d 813, 815 (7th Cir. 2001).
6 No. 01-3054
Jain v. De Mere, 51 F.3d 686, 688 (7th Cir. 1995), and which
permits suits to confirm arbitration awards, see 9 U.S.C. § 9,
does not provide an independent basis for federal question
jurisdiction. See Moses H. Cone Mem’l Hosp. v. Mercury Const.
Corp., 460 U.S. 1, 25 n. 32 (1983).
The parties maintain, however, that independent federal
question jurisdiction exists. In its initial petition for confir-
mation of the arbitral award, IIC claimed that the dis-
trict court had jurisdiction pursuant to the Inter-Amer-
ican Convention on International Commercial Arbitration
(known popularly as the “Panama Convention”), codified
at 9 U.S.C. § 301 et seq. The Panama Convention grants
United States district courts original jurisdiction over pro-
ceedings falling thereunder. See 9 U.S.C. § 302 (incorporat-
ing 9 U.S.C. § 203). On appeal, in its brief, Caja claims
that the district court had jurisdiction under the FSIA, 28
U.S.C. §§ 1602-1611, because it qualifies as a foreign state
under the statute. See 28 U.S.C. § 1603. IIC, curiously, found
Caja’s jurisdictional statement to be “complete and correct.”
In any event, this court is not bound by the parties’ repre-
sentations regarding the source of our jurisdiction, and
we have an independent duty to ensure that it exists. See
ITOFCA, Inc. v. MegaTrans Logistics, Inc., 235 F.3d 360, 363
(7th Cir. 2000).
We conclude that the Panama Convention provides us
with independent federal question jurisdiction under 28
U.S.C. § 1331, which grants district courts original jurisdic-
tion over civil actions “arising under the Constitution, laws,
or treaties of the United States.” As previously noted, the
Panama Convention was codified into federal law at 9
No. 01-3054 7
U.S.C. § 301 et seq.8 An action or proceeding “falling under
the [Panama] Convention shall be deemed to arise under the
laws and treaties of the United States [and] [t]he district
courts of the United States . . . shall have original jurisdic-
tion over such an action or proceeding, regardless of the
amount in controversy.” See 9 U.S.C. § 203 (incorporated
by reference into the Panama Convention by 9 U.S.C.
§ 302).9 The action brought by IIC against Caja falls with-
in the ambit of the Convention because the suit involves
a dispute arising from a commercial arbitration agreement
between two businesses domiciled in countries that are
signatories to the Convention. See 9 U.S.C. § 202 (incor-
porated by reference into the Panama Convention by 9
8
Both the United States and Argentina are signatories to the
Panama Convention. The United States signed the Panama Con-
vention in 1975, later codifying it into law in 1990, and Argentina
signed it in 1975. See 9 U.S.C. § 301.
9
As noted, the Panama Convention, under which IIC initially
claimed jurisdiction, incorporates the New York Convention’s
jurisdictional provision. 9 U.S.C. § 302. In cases where countries
have signed both the New York Convention and the Panama
Convention, the Panama Convention will apply if “a majority
of the parties to the arbitration agreement are citizens of a
State or States that have ratified or acceded to the Inter-Ameri-
can [or Panama] Convention and are member States of the
Organization of American States.” 9 U.S.C. § 305(1). Otherwise,
the New York Convention is controlling. 9 U.S.C. § 305(2). Since
all of the parties to this arbitration are signatories to the Pana-
ma Convention, our jurisdiction is under that Convention. For
purposes of this appeal, the distinction between the Panama
and New York Conventions is not important because, as dis-
cussed in more detail below, the relevant provisions (concerning
the propriety of pre-judgment security) are substantively iden-
tical.
8 No. 01-3054
U.S.C. § 302). Therefore, we have federal question jurisdic-
tion.10
While Caja does not challenge our subject matter jurisdic-
tion, it does assert that it is an instrumentality of Argen-
tina,11 thus making it immune from the jurisdiction of
American courts under the FSIA. See 28 U.S.C. § 1604
(granting foreign states immunity from the jurisdiction of
the courts of the United States). However, even if Caja is a
foreign instrumentality, we would still have subject matter
jurisdiction because the FSIA contains several exceptions
under which a foreign state or instrumentality may be
subject to such jurisdiction. See 27 U.S.C. §§ 1604-1607. See
also Argentine Republic v. Amerada Hess Shipping Corp., 488
U.S. 428, 434 (1989) (noting that the FSIA is the “sole ba-
sis for obtaining jurisdiction over a foreign state in our
courts.”). These exceptions “allow the court to obtain subject
matter jurisdiction over the case and provide the minimum
contacts with the United States required by due process
before a court can acquire personal jurisdiction.” Alberti v.
Empresa Nicaraguense de la Carne, 705 F.2d 250, 252 (7th Cir.
1983). See also 28 U.S.C. § 1330 (A) (conferring on federal
courts jurisdiction over suits against foreign states, as
10
Even if we did not have federal question jurisdiction under 28
U.S.C. § 1331, because it is undisputed that IIC is an American
corporation and that Caja is an Argentinean business entity, we
would have diversity jurisdiction over IIC’s suit to confirm its
arbitration award. See 28 U.S.C. § 1332(a)(2) (providing diversity
jurisdiction for suits between citizens of a State and citizens or
subjects of a foreign state); We Care Hair Dev., Inc. v. Engen, 180
F.3d 838, 840 n.1 (7th Cir. 1999).
11
Under the FSIA, a foreign state includes an agency or instru-
mentality of a foreign state. See 28 U.S.C. § 1603(a).
No. 01-3054 9
defined in the FSIA, as to any claim for relief with respect to
which the foreign state is not entitled to immunity).
Section 1605(a)(6)(A) of the FSIA provides that a foreign
state or instrumentality is not immune from the jurisdic-
tion of American courts in any proceeding to confirm an
arbitral award where that foreign state or instrumentality
agreed to submit to arbitration and the arbitration takes
place in the United States. Article XX of each of the parties’
reinsurance contracts provides that Caja would “submit
to the jurisdiction of any court of competent jurisdiction
within the United States and will comply with all require-
ments necessary to give such court jurisdiction . . . .” Article
XXI of each contract contained a provision that arbitration
would occur in Chicago, Illinois, unless some other loca-
tion was mutually agreed upon by the parties. By agreeing
to a contract designating Chicago, Illinois as the site of
arbitration, even if it is a foreign instrumentality, Caja
waived its immunity in a proceeding to confirm the arbitral
award. See § 1605(a)(6)(A): Employers Ins. of Wausau v. Banco
de Seguros del Estado, 199 F.3d 937, 941 (7th Cir. 1999).
Accordingly, we conclude that we have federal question
jurisdiction over this case under 28 U.S.C. § 1331, and that,
if Caja is considered an instrumentality of a foreign state, we
have jurisdiction under 28 U.S.C. § 1330(A).
B. Imposition of Pre-Judgment Security
1. Foreign instrumentality.
This bring us to the question of whether Caja is entitled to
immunity from a pre-judgment security posting require-
ment under Section 1609 of the FSIA, which provides, in its
entirety, that
Subject to existing international agreements to which
the United States is a party at the time of enactment of
10 No. 01-3054
this Act the property in the United States of a foreign
state shall be immune from attachment arrest and ex-
ecution except as provided in sections 1610 and 1611 of
this chapter.12
For purposes of this section, a “foreign state” includes a
foreign instrumentality. See 28 U.S.C. § 1603(a). A foreign
instrumentality is defined by the FSIA as an entity which
is a separate legal person, which is an organ of a foreign
state or a majority of whose shares or other ownership
interest is owned by a foreign state, and which is not a
citizen of the United States. See 28 U.S.C. § 1603(b). The
party claiming immunity under this section must establish
a prima facie case that it is a foreign instrumentality. See
Alberti, 705 F.2d at 255. If Caja established this prima facie
case, the burden going forward “would shift to the plaintiff
[i.e., IIC] to produce evidence establishing that the foreign
state is not entitled to immunity. The ultimate burden of
proving immunity would rest with the foreign state.” Id.
(citation omitted).
Caja attempted to establish that it is a foreign instrumen-
tality by claiming in its answer that it is wholly-owned by
Argentina, submitting three documents in support of its
assertion. First, it submitted the affidavit of Jorge Moreira,
Caja’s attorney in the United States, who averred, based
on his personal knowledge, that Caja was wholly-owned
by the government of Argentina. Next, it submitted the
affidavit of Dr. Horacio R. Crespo, an Argentinean at-
torney for Caja, who stated under oath that Caja was a
wholly-owned agency of the government of Argentina. Mr.
Crespo’s affidavit did not contain a notarization, although
12
While this Section refers to “attachment arrest and execution,”
it has been interpreted to include pre-judgment security. See infra
n.13.
No. 01-3054 11
the U.S. Vice Consul in Argentina acknowledged that the
affidavit had been executed by Mr. Crespo. Finally, Caja
submitted a Spanish document and its English translation,
dated July 31, 1998, which purportedly indicated that the
administration of Caja had been transferred to the govern-
ment of Argentina.
IIC responds that these affidavits are insufficient to
establish a prima facie case that Caja is a foreign instrumen-
tality because these affidavits were not properly authenti-
cated by the duly authorized officer or director of Caja. See,
e.g., Moore v. Nat’l Distillers and Chem. Corp., 143 F.R.D. 526,
532 n. 6 (S.D.N.Y. 1992) (plaintiff contested status of de-
fendant as a foreign state because no officer or director had
filed an affidavit in support of that claim; court agreed that
defendant had not submitted “sufficient evidence”).
In its analysis, the district court merely assumed arguendo
that Caja was a foreign instrumentality, and never actually
decided the issue. Caja states in its reply brief that one other
court has already found it to be a foreign instrumentality,
citing Skandia America Reinsurance Corp. v. Caja Nacional de
Ahorro y Seguro, 1997 WL 278054 (S.D.N.Y. May 23, 1997).
Caja misreads the Skandia decision, however, because that
court specifically stated that it (like the district court in the
present case) was only assuming arguendo, for purposes of
judicial economy, that Caja was a foreign instrumentality.
Id. at *3.
The affidavits offered by Caja are not adequate to consti-
tute a prima facie case that Caja is an instrumentality of
Argentina. Sufficient evidence of the validity for a foreign
instrumentality should be relatively simple to obtain. For
example, an authenticated corporate document demonstrat-
ing ownership at the time of suit, or an affidavit of a duly
authorized corporate or government officer, should be
readily available, especially when an entity’s sovereign
12 No. 01-3054
immunity is at stake. While we are not limiting what con-
stitutes proof under all circumstances, the naked assertions
of Caja’s attorneys are clearly insufficient to establish that
Caja is wholly-owned by Argentina. See, e.g., Sesostris, S.A.E.
v. Transportes Navales, S.A., 727 F.Supp. 737, 743 (D.Mass.
1989) (evidence of Spanish attorney was insufficient to show
that entity was a foreign central bank under 28 U.S.C.
§ 1611(b)(1) where defendant presented no authenticated
document showing its ownership interest). Compare, e.g.,
O’Connell Machinery Co., Inc. v. M. V. “Americana”, 734 F.2d
115, 116 (2d Cir. 1984) (where defendant presented affidavit
of Italian government officer averring that a majority of the
defendant’s shares were owned by a company, which was,
in turn, under the direct control of the Italian Government,
and where the plaintiff did not dispute such ownership,
entity deemed to be foreign instrumentality).
Additionally, we note that an affidavit executed outside
the United States must include a statement that the affiant
has made his declarations “under penalty of perjury under
the laws of the United States of America.” 28 U.S.C. § 1746.
Mr. Crespo’s affidavit contained no such declaration. How-
ever, even if it had been properly executed, the affidavit
only refers to a document that was apparently executed
in 1998, and nothing therein indicates that, as of a relevant
time, such as the time of this lawsuit in 2000, at least 50%
of Caja was owned by the Argentinean government. See, e.g.,
Ocasek v. Flintkote Co., 796 F.Supp. 362, 365 (N.D.Ill. 1992)
(affidavit that, ten years before present action, majority of
entity’s shares were owned by Quebec was insufficient to
demonstrate entity was foreign state at time action was
filed). Therefore, we conclude that Caja has not presented
sufficient prima facie evidence to establish that it is a
foreign instrumentality under the FSIA such that it would
be entitled to immunity from posting pre-judgment security.
No. 01-3054 13
2. Immunity.
Even if Caja were able to establish that it is a foreign
instrumentality and is therefore entitled to the protection of
the FSIA, we would still affirm the district court’s judgment
because we conclude that Argentina, and therefore Caja, has
waived its immunity under the FSIA. Section 1610(d) of the
FSIA provides that
[t]he property of a foreign state . . . used for a commer-
cial activity in the United States, shall not be immune
from attachment prior to the entry of judgment in any
action brought in a court of the United States . . . if—(1)
the foreign state has explicitly waived its immunity
from attachment prior to judgment . . ., and (2) the
purpose of the attachment is to secure satisfaction of
a judgment that has been or may ultimately be entered
against the foreign state, and not to obtain jurisdiction.13
IIC argues that Argentina waived immunity on behalf of
itself and all of its instrumentalities by adopting both the
New York and Panama Conventions. Caja responds that
any such waiver must be explicit. We agree with Caja that
13
As noted earlier, see infra n.12, the language of the FSIA, both
in Section 1609 and Section 1610(d), refers to attachment arrest,
not to pre-judgment security, although it has been interpreted to
extend to both. See, e.g., Stephens v. Nat’l Distillers and Chemical
Corp., 69 F.3d 1226, 1229-30 (2d Cir. 1996) (concluding that New
York’s pre-judgment security requirement constituted an “attach-
ment” for purposes of the FSIA). The parties do not raise the
issue, and we express no opinion on whether attachment arrest
and pre-judgment security are identical for purposes of the FSIA.
We merely find that, if Section 1610(d) gives foreign states
immunity from posting pre-judgment security, Caja has waived
it in this case.
14 No. 01-3054
Section 1610(d)(1) provides that waivers thereunder must be
explicit. Therefore, we turn to the provisions of both the
New York Convention and the Panama Convention to de-
termine whether Argentina and her instrumentalities have
explicitly waived their immunity under the FSIA.
The purpose of the New York Convention, and similarly
the Panama Convention, is to “encourage the recognition
and enforcement of commercial arbitration agreements
in international contracts and to unify the standards by
which agreements to arbitrate are observed and arbitral
awards are enforced in the signatory countries.” Scherk v.
Alberto-Culver Co., 417 U.S. 506, 520, n.15 (1974). Article VI
of the New York Convention states, “[i]f an application
for the setting aside or suspension of the award has been
made to a competent authority . . . the authority before
which the award is sought to be relied upon may, if it
considers it proper, . . . on the application of the party
claiming enforcement of the award, order the other party
to give suitable security.” 9 U.S.C. § 201, art. VI (emphasis
added). Similarly, Article 6 of the Panama Convention
states, “[i]f the competent authority . . . has been requested
to annul or suspend the arbitral decision, the authority . . .
at the request of the party requesting execution, may also
instruct the other party to provide appropriate guaranties.” 9
U.S.C. § 301, art. 6 (emphasis added). The emphasized
language of these Conventions allowing a court to impose
a security requirement is very explicit. Thus the court-
ordered pre-judgment deposit of security is clearly appro-
priate. Cf., Venus Lines Agency v. CVG Industria Venezolana
de Aluminio, C.A., 210 F.3d 1309, 1312 (11th Cir. 2000)
(simple reference in contract to “attachment” covers both
pre-judgment and post-judgment attachment, and therefore
No. 01-3054 15
constituted explicit waiver under Section 1610(d)).14 Because
Argentina signed the New York and Panama Conventions,
it has waived the immunity protections of the FSIA for their
instrumentalies.
In addition to the explicit waiver requirement of Section
1610(d)(1), Section 1610(d)(2) requires that the purpose
of attachment be to obtain security, not to obtain jurisdic-
tion. As we have noted, personal jurisdiction over Caja was
never an issue before the district court. Additionally, IIC’s
motion for an order requiring Caja to post pre-judgment
security expressly stated that it was seeking to “secure
payment of any final judgment that may be rendered.”
Finally, in light of the stated purpose of the Illinois statute
in question that requires security sufficient to secure the
payment of final judgment, see 215 ILCS 5/123(5), it is clear
that the district court’s order complied with the requirement
of Section 1610(d)(2).15
14
The parties point us to only one other decision directly on
point, and the court in that case did not reach this issue, but
rather concluded that the New York Convention was an “existing
international agreement” under the FSIA. See Skandia, 1997 WL
278054 at *5. Nevertheless, in a footnote, and without further
explanation, the Skandia court, after requiring foreign instrumen-
talities to post pre-judgment security, stated that it “is unlikely
that I would find that respondent’s invocation of the New York
Convention constitutes such an explicit waiver as required by
§ 1610.” Id. at *5, n. 10.
15
The parties spent almost their entire briefs on an issue that we
do not address, save to recount it here. As stated above, the FSIA
gives foreign states and their instrumentalities immunity from
attachment arrest of their property in the United States. See 28
U.S.C. § 1609. However, the FSIA specifically states that it is
“subject to existing international agreements to which the United
(continued...)
16 No. 01-3054
C. District Court’s Imposition of Security
Since we have concluded that Caja, even if it is an in-
strumentality of Argentina, is not immune from posting pre-
judgment security, we reach its last argument that the
district court had discretion in determining whether to
require pre-judgment security and that it failed to exercise
that discretion. Caja argues that the district court erred
by applying the mandatory Illinois law rather than the
discretionary Convention. Both the New York Convention
and the Panama Convention clearly indicate that district
courts have discretion to impose pre-judgment security
as they deem proper. See 9 U.S.C. § 201; 9 U.S.C. § 301.
However, under Illinois law it is less clear as to whether
courts have such discretion. The statute’s language pro-
vides that the court shall order the posting of security “in an
amount to be fixed by the court sufficient to secure the
15
(...continued)
States is a party at the time of enactment of this Act . . . .” Id. IIC
argued that the New York Convention, which was acceded to by
the United States in 1970, was just such an existing agreement.
This is the argument which persuaded the district court to rule in
IIC’s favor. See Skandia, 1997 WL 278054 at *4-5 (holding simi-
larly). Caja responded that the New York Convention was not
an “agreement” at the time of enactment as to Argentina or her
instrumentalities because Argentina did not become a signatory
to the agreement until 1989. IIC replied that the plain language
of the FSIA only requires that the United States be a party to the
agreement at the time of its enactment. In light of our conclusion
that, if Caja is a foreign instrumentality, it waived its immunity
under Section 1610(d), we need not resolve this question. In any
case, nothing in the FSIA indicates that a foreign state may not
renounce its immunity by treaty as Argentina clearly chose to do
by adopting the Panama Convention in 1975 and the New York
Convention in 1989.
No. 01-3054 17
payment of any final judgment . . . .” 215 ILCS 5/123(5).
While we have found no published Illinois cases interpret-
ing this statute, its plain language arguably gives courts
discretion in fashioning a suitable security. However, Caja
argues that the district court did not believe it had discre-
tion based on its statement, “Accordingly, pursuant to the
New York Convention, defendant is not immune from the
posting requirement of the Illinois Insurance Law.” We need
not decide whether the New York (or Panama) Convention
or Illinois law applies because we conclude that under
either law the order of pre-judgment security was appropri-
ate.
First, we find nothing in the district court’s opinion that
would indicate that the court was unaware of its discretion
under either Convention. The district court specifically
noted that the New York Convention “allows this Court to
order a party denying enforcement of an award to ‘give
suitable security’ . . . .” (emphasis added).16 Thus, the district
court recognized that it had discretion to award security
in this case, and, in determining the appropriate amount,
decided to rely upon the standard articulated in the Illinois
statute. Second, even if the district court improperly be-
lieved that it had no discretion to deny an order of pre-
judgment security, remand is not necessary because we
believe that under the limited circumstances of this case,
pre-judgment security was appropriate. Caja repeatedly
failed to appear for any part of the arbitration proceeding.
We do not deem it to be an abuse of discretion for a court to
require such a party to post security in the full amount of
the possible judgment against it given this poor track rec-
ord. Therefore, we conclude that the district court’s order of
pre-judgment security was appropriate.
16
As we have noted repeatedly, the Panama Convention contains
a similar provision.
18 No. 01-3054
III.
In conclusion, we note that, technically, Caja challenged
the district court’s July 5, 2001 order granting IIC a default
judgment, which we review for an abuse of discretion. See
Swaim v. Moltan Co., 73 F.3d 711, 716 (7th Cir. 1996). We
have focused on the propriety of the district court’s order
that Caja must file pre-judgment security. Of course, Caja’s
failure to do so formed the district court’s basis for granting
the default judgment. But Caja never squarely addressed
whether the default judgment itself was improper. For the
reasons summarized above, the district court did not err in
requiring Caja to post pre-judgment security. Because Caja
has presented no other basis for reversing the district court’s
order granting the plaintiff a default judgment, we therefore
affirm.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-97-C-006—6-7-02
| {
"pile_set_name": "FreeLaw"
} |
Filed 5/23/18
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
ADA ABED,
Plaintiff and Appellant,
A150933
v.
WESTERN DENTAL SERVICES, INC., (Napa County
Super. Ct. No. 26-67269)
Defendant and Respondent.
This case asks whether a potential employer can be held liable under the
California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.) for
thwarting a pregnant woman from applying for a job by falsely telling her that no
position is available. In the published portion of our decision, we conclude it can.
Plaintiff Ada Abed sued Western Dental Services, Inc. (Western Dental), alleging
two claims, including one for being denied a job on account of pregnancy in violation of
the FEHA. Western Dental moved for summary adjudication of the claim, and the trial
court ruled in the company’s favor on the basis that it was undisputed that Abed had not
submitted an application. After resolving the other claim in Western Dental’s favor, the
court entered a final judgment dismissing the case.
On appeal, Abed contends that the trial court wrongly dismissed her FEHA claim.
We agree. Even though Abed never applied for a job, she raised triable issues of material
fact as to whether Western Dental intentionally discriminated against her by falsely
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part II.A.
1
telling her that no position was available. Accordingly, we reverse in part and reinstate
the FEHA claim.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Western Dental’s Process for Hiring Dental Assistants.
Western Dental operates dental offices and clinics throughout California,
including one in Napa. The company accepts student externs from schools that have
dental assistant programs. Externs who want to be considered for full-time employment
as dental assistants are required to submit a written application, undergo a background
check, and be interviewed.
When Western Dental posted a job opening for a dental assistant on its website, it
did so for one of two reasons. One reason was to advertise actual open positions that
needed to be filled. Elvira Quintana was the manager of Western Dental’s Napa office,
and she testified that she was required to request and obtain the regional manager’s
approval to fill a need for a dental assistant. If the regional manager approved her
request, an open requisition would be created and a solicitation for applications would be
posted on Western Dental’s website.
The other reason Western Dental would post a job opening was to create a pool of
applicants for positions that, while not currently open, might open in the future.
According to a manager in Western Dental’s corporate recruiting office, who testified as
the person most knowledgeable about the company’s recruitment of dental assistants,
these types of postings were known as “evergreens,” and they generated a list of
candidates that could be tapped into quickly if a position opened.
In March 2015, an open requisition for a dental assistant in the Napa office was
approved, and a solicitation for applications was publicly posted. The recruiting manager
testified that she could not tell whether this solicitation, which was on Western Dental’s
website throughout the relevant time period, was originally posted as an evergreen.
Quintana, however, testified that she was not aware of the practice of posting evergreens
2
and did not know of any positions in the Napa office being posted unless they were in
fact open.
B. Abed’s Externship at Western Dental.
Abed began a dental assistant program at Carrington College in July 2014. To
obtain her certificate, she was required to complete 180 hours in an unpaid externship
with a dental office. The following spring, she successfully applied for an externship in
Western Dental’s office in Napa, the city where she wanted to live. She began the
externship on May 18, 2015. At the time, she was pregnant, which she did not disclose to
anyone at Western Dental.
On her first day, Abed met with Dr. Andrew Rivamonte, D.D.S., the managing
dentist of the Napa office. According to Abed, Dr. Rivamonte said she should “look at
[the externship] as a four- to six-week working interview” and try to learn as much as
possible. Dr. Rivamonte testified that he intended to convey to externs “that what they
were doing was very, very important, and like the history of all these other externs, that
they eventually applied [to] and [were] hired by Western Dental, so [he] wanted to put
out there that historically these externs have been hired.” Dr. Rivamonte testified that
“[a] majority of externs have been hired . . . after their externships,” and he could not
recall any extern other than Abed who did not obtain a permanent position there.
During her externship, Abed was supervised by Sabrina Strickling, a registered
dental assistant. As the floor supervisor, Strickling was responsible for scheduling,
ordering supplies, ensuring dentists had assistance and rooms were properly set up, and
managing the flow of cases. Strickling sometimes met with job candidates, but “[h]er
role in the interview process [was] limited to answering the candidates’ questions about
the position and explaining office operations.” According to Dr. Rivamonte, Strickling
“[did] not have the authority to hire, fire, or discipline, nor [did] she make any
recommendations related to hiring.”
Abed performed several duties as an extern, including taking x-rays, providing
chairside assistance, sterilizing instruments, and cleaning exam rooms. Strickling filled
out three evaluations of Abed during her externship. Abed consistently received high
3
marks, and on the final evaluation, Strickling graded her “above average” in all
categories. Dr. Rivamonte characterized Abed as “on par with all the other externs [he]
ever had at the office.”
C. The Discovery of Abed’s Pregnancy.
At some point during her externship, Abed hung her purse in the employee break
room. The purse was “about halfway” open, and it contained a bottle of prenatal
vitamins. While Strickling was with another employee in the break room, she saw “[t]he
vitamins . . . sticking out of the purse.” Strickling asked, “Oh, whose prenatal vitamins
are those?,” and the other employee indicated the purse was Abed’s. Strickling
responded, “Oh, she must be pregnant.”
Sometime later, Strickling and a different dental assistant, Mirella DeHaro, were
talking in the break room. DeHaro testified that Strickling said she thought Abed might
be pregnant because of the prenatal vitamins in her purse. Strickling then asked whether
DeHaro knew that Abed was pregnant, and DeHaro said no. DeHaro indicated that
Strickling then “said something to the effect that if [Abed] were pregnant, it would not be
convenient for the office.” Strickling could not recall the specifics of this conversation,
except she confirmed telling DeHaro that she thought Abed was pregnant.
Abed also overheard a conversation about her pregnancy between Strickling and
DeHaro.1 Abed was standing outside the break room when she “heard [her] name come
out of [Strickling’s] mouth, and [she] heard pregnant in the same sentence.” Abed heard
DeHaro say she did not know whether Abed was pregnant. According to Abed,
Strickling responded, “[W]ell, if she’s pregnant, I don’t want to hire her.” Abed and
DeHaro later exchanged text messages about what Abed had overheard, in which DeHaro
apparently confirmed that Strickling had said she did not want to hire Abed because of
her pregnancy. Based on a screenshot of one of these messages, it appears Abed
overheard the conversation on May 28, 2015.
1
The parties dispute whether this was the same conversation DeHaro described.
4
D. Abed Is Told There Is No Open Position for a Dental Assistant, but Another
Extern Is Hired Shortly After Abed’s Externship Ends.
Strickling testified that approximately two weeks after the discovery of Abed’s
pregnancy, Quintana asked Strickling to tell Abed there were no open positions for a
dental assistant in Napa, but that there was one in Vacaville. About a day later, Strickling
and Abed met in Quintana’s office, and Strickling told Abed what Quintana had said.
Quintana, however, could not recall ever telling Strickling to inform Abed that there was
no position available in Napa.
According to Abed, a few days before this meeting she had asked Strickling
whether there were any openings for dental assistants in the Napa office. Strickling said
she was not sure and would check. Strickling confirmed that sometime before she talked
to Quintana about Abed, Abed had said she wanted to work in the Napa office, although
Strickling could not remember the details of the discussion. Quintana could not recall
whether Strickling asked about an opening for Abed.
Abed testified that during the meeting in Quintana’s office, Strickling reported
there were no openings in Napa but said that “maybe [Abed] would want to check
Fairfield or Vacaville.” Strickling offered to call to see if those offices were hiring, but
Abed did not follow up because she wanted to live in Napa. Abed explained, “My doctor
is -- my OB was in Napa. I needed to be local to Napa, which [was] the whole reason
[for] doing my externship in Napa.”
Abed did not apply for a position in the Napa office because Strickling had told
her there were no openings for a dental assistant there. But before her externship was
over, Abed learned that an opening in the Napa office was posted on Western Dental’s
website. When asked why, if she was “told there were no positions available and [she]
saw a position posted on the website, . . . [she] didn’t . . . go talk to anyone about it,”
Abed responded, “Why didn’t I talk to somebody? Because I’m not the type of person to
confront anybody about anything. I [would] much rather just like just chill, just be
gone.”
5
Abed completed her externship on June 20, 2015. Abed testified, and Strickling
agreed, that on Abed’s last day Strickling indicated that Abed should contact the Napa
office to see if she could get a position there “after she had her baby.” As it turned out,
Abed never applied for a dental position anywhere. She explained, “I [came] to like the
front office more, which is what I do now. So every job I would apply for, it would be
the front office. [¶] Although I do have my back knowledge, so I always kind of tell them
I can be a floater, from the front to the back, but I want the front.”
Meanwhile, on June 4, 2015, a Western Dental recruiter had e-mailed Quintana
about two candidates who had applied for a dental assistant position in the Napa office.
After clarifying that both candidates should be considered, Quintana replied, “[Okay]
thanks girly, I’ll call them and get back to you.” There is no indication in the record that
either of these candidates was contacted, much less hired, by Western Dental. Less than
a week after Abed finished her externship, however, the recruiter e-mailed Quintana a
placement form for an extern candidate and stated, “I was able to get you an extern [who]
is scheduled to start 7/6. Please contact.” That candidate became an extern, and in late
July, Quintana requested and received approval to extend her an offer to become a dental
assistant in the Napa office. Shortly afterward, that candidate was hired for the position
created by the open requisition approved the previous March.
E. Procedural History.
Abed filed an administrative complaint against Western Dental with the California
Department of Fair Employment and Housing (DFEH), and she received a right-to-sue
letter. She filed this lawsuit in September 2015, bringing claims for pregnancy
discrimination under the FEHA and invasion of privacy. Western Dental moved for
summary judgment, and after granting the motion the trial court entered final judgment
for the company in January 2017.2
2
Abed does not challenge the dismissal of her claim for invasion of privacy.
6
II.
DISCUSSION
A. The Purported Procedural Defects Western Dental Identifies Do Not
Defeat Abed’s Claim.
Initially, Western Dental contends that Abed cannot challenge the dismissal of her
FEHA claim because she (1) waived her right to appeal and (2) failed to exhaust internal
remedies. We are not persuaded on either count.
1. Abed preserved her right to appeal despite not contesting the trial
court’s tentative ruling.
Western Dental contends that Abed waived her right to challenge the grant of
summary judgment because she did not contest the trial court’s tentative ruling. It relies
on Napa Superior Court Local Rule 2.9, which provides that if a tentative ruling has been
posted before a hearing and a party does not give notice of intent to appear at the hearing,
“no oral argument will be permitted and the tentative ruling will become the court’s
ruling.” But “[s]ubmission on a tentative ruling is neutral; it conveys neither agreement
nor disagreement with the analysis.” (Mundy v. Lenc (2012) 203 Cal.App.4th 1401,
1406.) Abed opposed the motion for summary judgment, and she was not required to
appear to reassert the same arguments she had already made in her memorandum of
points and authorities. (See id. at pp. 1406-1407.) Her submission to the tentative ruling
did not affect her ability to bring this appeal.
2. Abed was not required to pursue Western Dental’s internal remedies.
Western Dental also contends that Abed’s FEHA claim is barred because Abed
failed to report any discrimination to the company and therefore did not exhaust internal
remedies. Again, Western Dental is incorrect.
“Employees who believe they have suffered discrimination at the hands of their
employers and wish to file civil claims for damages under the FEHA must first exhaust
their administrative remedies by filing a complaint with the [DFEH] and obtaining a
right-to-sue notice. [Citations.] Employees also may, but are not required to, pursue
internal administrative remedies offered by their employer.” (Basurto v. Imperial
Irrigation Dist. (2012) 211 Cal.App.4th 866, 879, citing Schifando v. City of Los Angeles
7
(2003) 31 Cal.4th 1074.) The two decisions on which Western Dental relies to argue that
Abed was required to exhaust internal remedies are easily distinguishable because they
did not involve claims under the FEHA. (Westlake Community Hosp. v. Superior Court
(1976) 17 Cal.3d 465, 468-469; Pepp-Zotter v. Liberty Life Assur. Co. (N.D.Cal. Sept. 5,
2006, No. C 06-04200 WHA) 2006 U.S. Dist. LEXIS 66445, at *1.) Abed exhausted her
administrative remedies by filing a complaint with the DFEH, and nothing more was
required to enable her to bring her FEHA claim in the superior court.
B. The Governing Legal Standards.
1. The McDonnell Douglas framework.
Under the FEHA, it is unlawful for an employer to engage in adverse employment
practices against a person on the basis of “sex” (Gov. Code, § 12940, subds. (a)-(d), (j)),
a term defined to include “[p]regnancy or medical conditions related to pregnancy.” (Id.,
§ 12926, subd. (r)(1)(A).)3 Specifically, under section 12940, subdivision (a), the
provision on which Abed relies, an employer cannot, based on a person’s pregnancy,
(1) “refuse to hire or employ the person or . . . refuse to select the person for a training
program leading to employment”; (2) “bar or . . . discharge the person from employment
or from a training program leading to employment”; or (3) “discriminate against the
person in compensation or in terms, conditions, or privileges of employment.”4
Failure-to-hire claims under the FEHA are subject to the burden-shifting
framework of McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell
Douglas). (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 860 (Serri); see
also Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 354 (Guz).) The McDonnell
Douglas framework “reflects the principle that direct evidence of intentional
discrimination is rare, and that such claims must usually be proved circumstantially.
3
All further statutory references are to the Government Code unless otherwise
indicated.
4
Because Abed relies exclusively on section 12940, subdivision (a), we do not
address whether she might also have a claim under section 12940, subdivision (c), which
prohibits pregnancy discrimination “in the selection, termination, training, or other terms
or treatment of [a] person” in training programs and other unpaid, limited-term positions.
8
Thus, by successive steps of increasingly narrow focus, the test allows discrimination to
be inferred from facts that create a reasonable likelihood of bias and are not satisfactorily
explained.” (Guz, at p. 354.) A plaintiff has the initial burden of producing evidence that
establishes a prima facie case of discrimination. (Ibid.) Although “[t]he specific
elements of a prima facie case may vary depending on the particular facts,” the plaintiff
in a failure-to-hire case “[g]enerally . . . must provide evidence that (1) he [or she] was a
member of a protected class, (2) he [or she] was qualified for the position he [or she]
sought . . ., (3) he [or she] suffered an adverse employment action, such as . . . denial of
an available job, and (4) some other circumstance suggests discriminatory motive,” such
as that the position remained open and the employer continued to solicit applications for
it. (Guz, at p. 355; Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th
138, 149.)
If the plaintiff establishes a prima facie case, creating a “presumption of
discrimination,” the burden shifts to the employer to provide “ ‘a legitimate,
nondiscriminatory reason for the challenged action.’ ” (Serri, supra, 226 Cal.App.4th at
pp. 860-861.) Under the third step of the McDonnell Douglas framework, “the ‘plaintiff
must [then] . . . have the opportunity to attack the employer’s proffered reasons as
pretexts for discrimination, or to offer any other evidence of discriminatory motive.’ ”
(Serri, at p. 861.) The employer’s burden to provide a legitimate nondiscriminatory
reason is one of production, not persuasion, and the employer “ ‘ “need not persuade the
court that it was actually motivated by the proffered reasons . . . [but only] raise[] a
genuine issue of fact as to whether it discriminated against the [plaintiff].” ’ ” (Caldwell
v. Paramount Unified School Dist. (1995) 41 Cal.App.4th 189, 201 (Caldwell).) Once
the employer satisfies this burden, the presumption of discrimination created by a prima
facie case “ ‘ “drops from the case” and the factfinder must decide upon all of the
evidence before it whether [the] defendant intentionally discriminated against [the]
9
plaintiff. [Citation.] In short, the trier of fact decides whether it believes the employer’s
explanation of its actions or the [plaintiff’s].’ ”5 (Caldwell, at p. 201.)
The McDonnell Douglas framework was designed as “an analytical tool for use by
the trial judge in applying the law, not a concept to be understood and applied by the jury
in the factfinding process.” (Caldwell, supra, 41 Cal.App.4th at p. 202.) “[I]n the usual
case, the first two prongs of the [framework], that is, whether the plaintiff has stated a
prima facie case of discrimination and whether the employer has rebutted that prima facie
showing, will be tested prior to trial,” such as through a motion for summary judgment.
(Ibid.) Because the framework is an analytical tool for evaluating the legal merits of a
claim, it “does not affect the procedural rule . . . that imposes on a defendant the initial
burden when that party seeks summary [judgment].” (Cornell v. Berkeley Tennis Club
(2017) 18 Cal.App.5th 908, 926.)
2. The standards governing Western Dental’s motion for summary
judgment and our review of the trial court’s ruling.
The standard for granting summary judgment is familiar. Summary judgment is
appropriate if “there is no triable issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) For a
defendant to meet its initial burden when moving for summary judgment, it must
demonstrate “ ‘that a cause of action has no merit’ ” by showing either “ ‘that one or
more elements of the cause of action . . . cannot be established, or that there is a complete
defense to that cause of action.’ ” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th
826, 849, quoting Code Civ. Proc., § 437c, subd. (o)(2).) In the context of an employer’s
5
On appeal, Abed offers two theories for why her failure to apply for a position is
not fatal to her claim. The first is that applying for a position cannot be a required
element of her prima facie case because she cannot logically be expected to have applied
for a position she was falsely told did not exist. The second is that the McDonnell
Douglas framework is inapplicable because she provided direct evidence of
discriminatory intent. (See Trop v. Sony Pictures Entertainment, Inc. (2005)
129 Cal.App.4th 1133, 1144-1145.) We need not resolve whether she was excused from
establishing a prima facie case under McDonnell Douglas because, even if she was not,
she presented more than enough evidence to support an inference of discrimination.
10
motion for summary adjudication of a discrimination claim, this means the employer
“ ‘has the initial burden to present admissible evidence showing either that one or more
elements of [the] plaintiff’s prima facie case is lacking or that the adverse employment
action was based upon legitimate, nondiscriminatory factors.’ ” (Serri, supra, 226
Cal.App.4th at p. 861.)
Once a defendant satisfies its initial burden, “the burden shifts to the plaintiff . . .
to show that a triable issue of one or more material facts exists as to the cause of action or
a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) In the context of an
employer’s motion for summary adjudication of a discrimination claim, this means “the
burden shifts to the [plaintiff] to ‘demonstrate a triable issue by producing substantial
evidence that the employer’s stated reasons were untrue or pretextual, or that the
employer acted with a discriminatory animus, such that a reasonable trier of fact could
conclude that the employer engaged in intentional discrimination or other unlawful
action.’ ” (Serri, supra, 226 Cal.App.4th at p. 861, italics omitted; see also Caldwell,
supra, 41 Cal.App.4th at p. 203 [plaintiff must “produce[] admissible evidence which
raises a triable issue of fact material to the defendant’s showing” to avoid summary
judgment].) Thus, “by applying McDonnell Douglas’s shifting burdens of production in
the context of a motion for summary judgment, ‘the judge [will] determine whether the
litigants have created an issue of fact to be decided by the jury.’ ” (Caldwell, at pp. 202-
203, quoting Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 255,
fn. 8.)
In most cases alleging a failure to hire for discriminatory reasons, the prima facie
case includes as an element a showing that the plaintiff applied for the job. This is
usually an element because it establishes that the employer knew the plaintiff was
actually seeking a job. (See Guz, supra, 24 Cal.4th at p. 355.) But, as we discuss further
below, the elements of a prima facie case under McDonnell Douglas can vary depending
on the plaintiff’s allegations, and the plaintiff need not establish any particular element so
long as he or she ultimately presents enough evidence to support an inference that an
employment decision was discriminatory. Thus, even when a defendant employer has
11
presented evidence undermining a usual prima facie element, a plaintiff can still defeat
summary judgment by presenting evidence that establishes a prima facie case in a
different way or otherwise creates triable issues as to whether the employer engaged in
actionable discrimination.
In evaluating a grant of summary judgment, we review the record de novo,
“liberally construing the evidence in support of the party opposing summary judgment
and resolving doubts concerning the evidence in favor of that party.” (Miller v.
Department of Corrections (2005) 36 Cal.4th 446, 460.) If summary judgment was
properly granted on any ground, we affirm “regardless of the trial court’s stated reasons.”
(Syngenta Crop Protection, Inc. v. Helliker (2006) 138 Cal.App.4th 1135, 1155.)
Although summary judgment is no longer a disfavored procedure, “many employment
cases present issues of intent, and motive, and hostile working environment, issues not
determinable on paper . . . [and] rarely appropriate for disposition on summary judgment,
however liberalized it be.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243,
286.)
C. There Are Triable Issues as to Whether Western Dental Intentionally
Discriminated Against Abed by Falsely Telling Her That No Job Was
Available.
Western Dental contends that it was entitled to summary adjudication of the
FEHA claim because, as both parties agree, Abed did not apply for a dental assistant
position. We are not persuaded. Although Western Dental negated an element of the
prima facie case that often applies in failure-to-hire claims, this was not a typical failure-
to-hire claim. Abed was not required to show that she submitted an application to prevail
because she raised triable issues as to whether Western Dental intentionally discriminated
against her because she was pregnant by falsely telling her no position was available and
thereby causing her not to apply for one.
1. Abed’s FEHA claim is not defeated by her failure to apply for a
dental assistant position.
We begin by rejecting Western Dental’s argument that Abed’s claim “fails as a
matter of law” because Abed never applied for a dental assistant position. “The prima
12
facie case under McDonnell Douglas . . . is an evidentiary standard, not a pleading
requirement.” (Swierkiewicz v. Sorema N.A. (2002) 534 U.S. 506, 510.) Its purpose is
“to eliminate at the outset the most patently meritless claims” (Guz, supra, 24 Cal.4th at
p. 354), and “[a] plaintiff’s burden in making a prima facie case of discrimination is not
intended to be ‘onerous.’ ” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297,
322.) Thus, “[t]he importance of McDonnell Douglas is not in its specification of the
discrete elements of proof but is instead in its recognition that the . . . plaintiff carries the
initial burden [at trial] of offering evidence which creates an inference that an
employment decision was based on an illegal discriminatory criterion.” (Heard v.
Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1750, some italics omitted,
citing Teamsters v. United States (1977) 431 U.S. 324, 358 (Teamsters).) “Moreover, the
precise requirements of a prima facie case can vary depending on the context and were
‘never intended to be rigid, mechanized, or ritualistic.’ ” (Swierkiewicz, at p. 512.)
Although we recognize that in most cases, a plaintiff who did not apply for a position will
be unable to prove a claim of discriminatory failure-to-hire, a job application is not an
element of the claim.
In its ruling, the trial court properly recognized that Abed’s failure to apply for a
dental assistant position did not automatically defeat her FEHA claim. But the court
nonetheless concluded that Abed failed to establish a prima facie case of pregnancy
discrimination because she could not establish that filing an application would have been
futile under the futile-gesture doctrine. This doctrine was announced by the United States
Supreme Court in Teamsters. In that case, class claims alleged that the employer “had
engaged in a pattern or practice of discriminating against minorities in hiring . . . line
drivers,” and the plaintiffs, who were incumbent employees, sought “an opportunity to
transfer to line-driver jobs with full company seniority for all purposes.” (Teamsters,
supra, 431 U.S. at pp. 329-330.) In addressing appropriate remedies, the Court rejected
the employer’s contention “that a person who has not actually applied for a job can never
be awarded seniority relief.” (Id. at p. 365.) It explained, “The effects of and the injuries
suffered from discriminatory employment practices are not always confined to those who
13
were expressly denied a requested employment opportunity. A consistently enforced
discriminatory policy can surely deter job applications from those who are aware of it and
are unwilling to subject themselves to the humiliation of explicit and certain rejection. [¶]
. . . When a person’s desire for a job is not translated into a formal application solely
because of his [or her] unwillingness to engage in a futile gesture he [or she] is as much a
victim of discrimination as is he [or she] who goes through the motions of submitting an
application.” (Id. at pp. 365-366.)
We disagree with the trial court that the survival of Abed’s FEHA claim depended
on the futile-gesture doctrine. The claim is not that it would have been futile for Abed to
apply (even if it might have been) so much as it is that Western Dental caused her not to
apply by falsely telling her for discriminatory reasons that no position was available.
This is a different, but also legitimate, reason for her not to have applied. And because
the futile-gesture doctrine has little applicability here, we disagree with the court’s
determination that it mattered that Abed presented no evidence of a “consistently
enforced discriminatory policy.” (Teamsters, supra, 431 U.S. at p. 365.) While
Teamsters involved claims of pattern-or-practice discrimination and focused on the
presence of a “consistently enforced discriminatory policy,” the decision did not hold that
such a policy is the only means by which a plaintiff can come to believe that an
application would be futile.
In any event, Teamsters suggests that relief is available more broadly for
discriminatory acts that “deter job applications.” (Teamsters, supra, 431 U.S. at p. 365.)
As the Supreme Court recognized, an employer can discourage a potential applicant not
just by making explicitly discriminatory statements but also “more subtly . . . by [its]
consistent discriminatory treatment of actual applicants, by the manner in which [it]
publicizes vacancies, [its] recruitment techniques, [and its] responses to casual or
tentative inquiries.” (Ibid.) Abed has presented evidence that because she was pregnant
she was falsely told that no position was available in the Napa office. In our view, this is
enough to support a claim under the FEHA. Employers who lie about the existence of
14
open positions are not immune from liability under the FEHA simply because they are
effective in keeping protected persons from applying.
Several federal decisions support our conclusion.6 As an outgrowth of the
directive that “courts must be sensitive to the myriad of ways . . . an inference [of
discrimination] can be created,” these cases have held that “the failure to formally apply
for a job opening will not bar a Title VII plaintiff from establishing a prima facie claim of
discriminatory hiring, as long as the plaintiff made every reasonable attempt to convey
his [or her] interest in the job to the employer.” (EEOC v. Metal Service Co. (3d Cir.
1990) 892 F.2d 341, 348 (collecting cases).) Courts have applied this principle where, as
a result of discriminatory acts, plaintiffs were unaware of job openings. The Eighth
Circuit Court of Appeals, for example, concluded that an African-American plaintiff had
established a prima facie case under McDonnell Douglas where he expressed interest in
being promoted, but the employer never posted a vacancy for a more senior position and
it was filled by a white woman before the plaintiff learned of it. (Paxton v. Union Nat.
Bank (8th Cir. 1982) 688 F.2d 552, 568.) Here, Abed not only expressed interest in a
dental assistant position but was also affirmatively told there were no openings, and a
subsequent extern filled such a position within weeks.
Two district court cases cited by Abed also support the conclusion that she could
not reasonably be expected to apply for a vacancy she was told did not exist. In Rodgers
v. Peninsular Steel Co. (N.D.Ohio 1982) 542 F.Supp. 1215 (Rodgers), the district court
considered whether an African-American plaintiff who did not apply for an opening that
his employer did not publicize but filled with a white applicant had established a prima
facie case of discrimination. (Id. at pp. 1216, 1218.) Rejecting the employer’s argument
that the plaintiff had failed to demonstrate his interest in the position as Teamsters
required, the district court concluded that where a “non-informed non-applicant has
6
A pregnancy discrimination claim under the FEHA “is analogous to a federal
claim under Title VII of the Civil Rights Act of 1964,” and “federal cases interpreting
title VII are instructive when analyzing a FEHA claim.” (Spaziano v. Lucky Stores, Inc.
(1999) 69 Cal.App.4th 106, 110, 112.)
15
shown that the failure to notify him [or her] was improper, and that he [or she] would
have been interested had he [or she] been notified,” he or she “thereby attains the
presumption of the applicant. To require any more of him [or her] would be to demand
the unreasonable.” (Rodgers, at pp. 1218-1220.)
Similarly, in Curran v. Portland Super. Sch. Committee., etc. (D.Me. 1977) 435
F.Supp. 1063 (Curran), an employer did not give notice of a job opening to the plaintiff
or its other qualified female employees but instead “privately offered the position to a
male whose qualifications were inferior to [the] plaintiff’s.” (Id. at p. 1070.) The district
court concluded that the plaintiff had established a prima facie case of discrimination
despite not applying for the position, because under Teamsters the “failure of an
incumbent employee to formally apply for a job does not constitute a per se barrier to
relief,” and the plaintiff alleged that her employer’s discriminatory practices “made it
impossible for her to apply.” (Curran, at p. 1072.)
In attempting to distinguish Rodgers and Curran, Western Dental focuses on the
failure by both of the employers in those cases to publicize the openings not only to the
plaintiffs but also to others in the plaintiffs’ protected classes. Western Dental argues
that it publicly posted the Napa dental assistant position, and Abed “offer[ed] no evidence
that pregnant women were prevented from applying in any manner.” But Abed was
already an extern and had a preexisting relationship with the company. There is no
logical reason to require her to show that Western Dental had a broader policy of
discouraging pregnant women from applying to prove the company discriminated against
her by telling her no position existed. And although Western Dental points out that it
employs many women in the Napa office, including women who have taken maternity
leave while at the company, it did not produce evidence of how it has treated other
pregnant women in the hiring process.
In short, we conclude that summary adjudication of the FEHA claim was not
justified on the basis that Abed’s failure to apply for a position meant she was unable to
establish a prima facie case of pregnancy discrimination under the McDonnell Douglas
framework. Although Western Dental claims that Abed’s failure to apply also
16
constituted a legitimate nondiscriminatory reason for not hiring her, we need not address
this argument. It does not matter whether we conceptualize the evidence as creating a
prima facie case of discrimination to which Western Dental failed to respond with a
legitimate nondiscriminatory reason or as demonstrating that the company’s proffered
reason was pretextual. As we now turn to explain, Abed satisfied her responsive burden
either way by raising triable issues as to whether Western Dental intentionally
discriminated against her.
2. Triable issues exist as to whether Western Dental engaged in
intentional discrimination.
Abed presented significant evidence that Western Dental acted with
“discriminatory animus” by telling her there was no opening for a dental assistant in the
Napa office. (Serri, supra, 226 Cal.App.4th at p. 862.) Strickling made several remarks
suggesting she did not want Abed to work in Napa because she was pregnant. DeHaro
testified that Strickling told her “something to the effect that if [Abed] were pregnant, it
would not be convenient for the office,” and, according to Abed, Strickling told DeHaro,
“[W]ell, if [Abed is] pregnant, I don’t want to hire her.” On Abed’s last day, Strickling
told Abed to contact the Napa office after she had her baby to see if she could get a job
there, permitting the inference that Abed would not be considered for a position while she
was pregnant. In addition, it is undisputed that Strickling told Abed there were no dental
assistant positions available in the Napa office, and Abed presented evidence that
Strickling’s representation was false. This evidence included that there was an open
requisition for such a position, the position was publicly posted, and the position was
filled shortly after Abed finished her externship. Indeed, there was evidence that
Quintana was accepting applications for the position while Abed was still working there.
As a whole, this evidence satisfied Abed’s burden of demonstrating triable issues as to
whether Western Dental intentionally discriminated against her by discouraging her from
applying to become a dental assistant.
Western Dental contends that even if Strickling’s comments were discriminatory,
Abed “has not presented any evidence whatsoever that anyone with hiring authority was
17
aware of her pregnancy at the time of her externship or that [the company] had any
discriminatory animus towards pregnant candidates.” To avoid summary judgment,
however, a plaintiff “need not demonstrate that every individual who participated in the
failure to hire him [or her] shared discriminatory animus.” (DeJung v. Superior Court
(2008) 169 Cal.App.4th 533, 551.) Rather, “showing that a significant participant in an
employment decision exhibited discriminatory animus is enough to raise an inference that
the employment decision itself was discriminatory, even absent evidence that others in
the process harbored such animus.” (Ibid.) Although Strickling was not responsible for
making the ultimate decision to hire an applicant, she was clearly involved in the general
process by which externs obtained permanent positions: she supervised externs and
evaluated their performance. She was also involved in the specific events that led Abed
not to apply: Abed asked Strickling whether a dental assistant position was open,
Strickling spoke to Quintana to find out, and Strickling relayed to Abed that there was no
opening. Were this a typical failure-to-hire case in which a plaintiff was not hired after
completing the application process, the evidence of Strickling’s limited involvement in
hiring decisions might defeat the imputation of her discriminatory animus to Western
Dental. Here, however, the allegedly discriminatory act that led to Abed’s not being
hired was the thwarting of her application by falsely representing there was no opening,
and there is evidence Strickling played a key role in effectuating that act.
Western Dental also argues that some evidence demonstrates Abed did not apply
for a dental assistant position because she was not interested in one, not because she was
discouraged from doing so. It points to her acknowledgment that before her externship
was over she learned a position in the Napa office was posted online, her failure to apply
for positions in other Western Dental offices, and her failure to ever apply to become a
dental assistant at any company. This evidence may create a dispute about Abed’s
reasons for not applying to the Napa office, but it does not conclusively establish that she
would have not applied for the position had she been truthfully told one was available.
She told Strickling she wanted a job in the Napa office, asked whether there was a dental
assistant position available, and specifically testified that she did not apply for a job with
18
Western Dental because she “was told there [were] no openings.” If Western Dental
falsely and for discriminatory reasons misrepresented that there was no dental assistant
position available in the Napa office, it is hardly surprising that Abed did not seek a job
there once she discovered she had been lied to. Nor can Western Dental escape liability
for past discriminatory acts merely because Abed did not demonstrate an ongoing interest
in becoming a dental assistant by applying for similar positions, including in offices that
were inconveniently located. We recognize that this case involves many disputed factual
issues, and a jury may eventually agree with Western Dental that it did not intentionally
discriminate against Abed. But Abed has presented enough evidence to entitle her to a
trial on her FEHA claim.
III.
DISPOSITION
The judgment is reversed in part as to Abed’s claim for pregnancy discrimination
under the FEHA and affirmed in part as to her claim for invasion of privacy. The case is
remanded for further proceedings consistent with this opinion. Abed is awarded her costs
on appeal.
19
_________________________
Humes, P.J.
We concur:
_________________________
Margulies, J.
_________________________
Banke, J.
Abed v. Western Dental Services, Inc. A150933
20
Trial Court:
Napa County Superior Court
Trial Judge:
Hon. Rodney G. Stone
Counsel for Plaintiff and Appellant:
Michael von Loewenfeldt, Kerr & Wagstaffe LLP
Gary E. Moss, Law Offices of Moss & Hough
Mary Patricia Hough, Law Offices of Moss & Hough
Counsel for Defendant and Respondent:
Gregory G. Iskander, Littler Mendelson, P.C.
Christina L. Piechocki, Littler Mendelson, P.C.
Abed v. Western Dental Services, Inc. A150933
21
| {
"pile_set_name": "FreeLaw"
} |
NOT FOR PUBLICATION
FILED
UNITED STATES COURT OF APPEALS
JAN 04 2012
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES OF AMERICA, No. 10-50317
Plaintiff - Appellee, D.C. No. CR-09-2792-BTM
v.
MEMORANDUM *
MELVIN LUTRELL McGEE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and submitted December 9, 2011
Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and JONES, District Judge.**
Melvin Lutrell McGee appeals his sentence imposed after his guilty plea to
voluntary manslaughter in violation of 18 U.S.C.A. § 1112. Although his 71-month
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
sentence falls within the applicable range of the Sentencing Guidelines, McGee argues
that it should be reversed for three reasons. First, McGee contends that the district
court erroneously treated his offense as murder, rather than voluntary manslaughter.
In a related argument, McGee claims that the court improperly rejected his
explanation of his state of mind in commission of the offense. Finally, McGee argues
that the sentence was procedurally erroneous because the court used the statutory
maximum as its analytical starting point, rather than the Guidelines range.
The substantive reasonableness of a sentence is reviewed for abuse of
discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). After
carefully reviewing the record, we conclude that the sentence imposed by the district
court was not unreasonable.
The district court did not contradict McGee=s voluntary manslaughter
conviction by discrediting his claim that the victim had reached for a gun. Under
federal law, A[i]f the defendant killed with the mental state required for murder . . . ,
but the killing occurred in the >heat of passion= caused by adequate provocation, then
the defendant is guilty of voluntary manslaughter.@ United States v. Paul, 37 F.3d 496,
499 (9th Cir. 1994). “Heat of passion” encompasses a state of >Arage, resentment,
anger, terror or fear=@ in which the defendant loses self-control as a result of
circumstances that would provoke such a passion in an ordinary person, but which do
not justify the use of deadly force. United States v. Frady, 456 U.S. 152, 170 n.18
(1982) (emphasis added) (quoting Austin v. United States, 382 F.2d 129, 137 (D.C.
Cir. 1967), overruled on other grounds by United States v. Foster, 783 F.2d 1082,
1085 (D.C. Cir. 1986)). Thus, a finding of imperfect self-defense was not necessary
for the offense to qualify as voluntary manslaughter.
For similar reasons, we do not accept McGee=s argument that the district court
improperly rejected the written explanation of his state of mind. As discussed, the
court did not automatically default to murder when it rejected McGee=s explanation.
Moreover, given the broad discretion of the district court at sentencing, see Nichols
v. United States, 511 U.S. 738, 747 (1994), it was not unreasonable for the court to
express skepticism as to the credibility of McGee=s explanation for his crime.
Furthermore, we reject McGee=s procedural error claim. It is established that
A[a]ll sentencing proceedings are to begin by determining the applicable Guidelines
range.@ Carty, 520 F.3d at 991. The record shows that the district court started its
analysis with the Guidelines range and repeatedly referred to it throughout the
sentencing process.1 The court also engaged in a lengthy analysis of each of the '
3553(a) factors, highlighting the seriousness of the offense and the fact that McGee
did not take responsibility for the crime until he was implicated by someone else 20
years later. The within-Guidelines sentence was not procedurally improper simply
1
Immediately after a victim impact statement, the court stated, AAre you
ready to make your recommendation and your guideline calculations? Why don=t
we start there.@
because the court made reference to the statutory maximum near the beginning of the
sentencing hearing.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
730 F.2d 767
Mahaney (Erika)v.Negev Airbase Constructors
NO. 83-3640
United States Court of Appeals,ninth Circuit.
FEB 13, 1984
Appeal From: D.Alaska
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
526 F.2d 191
UNITED STATES of America, Appellant,v.Jack Edward FLEMING and Lawrence Charles Hinton, Appellees.
No. 75--1655.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 3, 1975.Decided Nov. 17, 1975.Certiorari Dismissed Jan. 21, 1976.See 96 S.Ct. 872.
Donald J. Stohr, U.S. Atty., and Frederick R. Buckles, Asst. U.S. Atty., St. Louis, Mo., and J. Stanley Pottinger, Asst. Atty. Gen., and Brian L. Landsberg and Neal J. Tonken, Attys., Dept. of Justice, Washington, D.C., for the United States.
Norman S. London and Lawrence J. Fleming, St. Louis, Mo., for appellees.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
PER CURIAM.
1
The United States appeals from the dismissal of an indictment against two St. Louis, Missouri, policemen. We find the indictment to have been improvidently dismissed and order it reinstated.
2
On May 15, 1975, a federal Grand Jury returned an indictment against two St. Louis policemen, charging as follows:
3
On or about July 2, 1974, in St. Louis, Missouri, in the Eastern District of Missouri, Jack Edward Fleming and Lawrence Charles Hinton, who were then officers of the St. Louis, Missouri Police Department, while acting under color of the laws of the State of Missouri, did willfully strike, beat and assault Robert Steven Rueter, an inhabitant of the State of Missouri, and did, thereby, willfully deprive Robert Steven Rueter of the right secured and protected by the Constitution and laws of the United States not to be deprived of liberty without due process of law.
4
In violation of Section 242, of Title 18, United States Code.
5
The district court, in an unpublished memorandum opinion of July 22, 1975, dismissed the indictment for vagueness under Rule 7 of the Federal Rules of Criminal Procedure. The district court stated, in part, that
6
(w)hile the essential elements of the crime appear to be present in the indictment, the language of the indictment appears to the Court to be so conclusory that it would be difficult for the defendants to prepare an adequate defense.
7
Rule 7(c) of the Federal Rules of Criminal Procedure requires only a 'plain, concise and definite written statement of the essential facts constituting the offense charged.' In interpreting this rule, the Supreme Court has recently held that
8
an indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. (Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974).)
9
See United States v. Sperling, 506 F.2d 1323, 1344 (2d Cir. 1974), cert. denied, 420 U.S. 962, 95 S.Ct. 1351, 43 L.Ed.2d 439 (1975); United States v. Skelley, 501 F.2d 447, 452 (7th Cir.), cert. denied, 419 U.S. 1051, 95 S.Ct. 629, 42 L.Ed.2d 647 (1974); United States v. Denmon, 483 F.2d 1093, 1095 (8th Cir. 1973).
10
Under Rule 7(c) and Hamling, the indictment in the instant case is plainly sufficient. The indictment sets forth the four elements necessary for a violation of § 242 (color of law, willfulness, inhabitancy of the victims, and deprivation of a right secured or protected by the Constitution or laws of the United States); specifies the federal right allegedly violated ('not to be deprived of liberty without due process of law'); notes the statute the defendants are charged with violating; identifies the defendants by name and office; identifies the victim; describes the specific acts constituting the offense ('did willfully strike, beat and assault'); and alleges the date and place of those acts.
11
This indictment is materially identical to the indictments in United States v. Stokes, 506 F.2d 771 (5th Cir. 1975), and United States v. Georvassilis, 498 F.2d 883 (6th Cir. 1974), in which courts affirmed convictions under § 242. If the defendants in this case desire more specific information than that provided in the indictment, they may move for a bill of particulars. See United States v. Debrow, 346 U.S. 374, 378, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Tasby v. United States, 504 F.2d 332, 335 (8th Cir. 1974), cert. denied, 419 U.S. 1125, 95 S.Ct. 811, 42 L.Ed.2d 826 (1975).
12
We reverse and remand for further proceedings consistent with this opinion.
| {
"pile_set_name": "FreeLaw"
} |
923 F.2d 853
Fernandezv.Texas Industrial Svcs.
NO. 90-8017
United States Court of Appeals,Fifth Circuit.
JAN 09, 1991
1
Appeal From: W.D.Tex.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
FILED
United States Court of Appeals
Tenth Circuit
February 9, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
NORBERTO PEREZ AROCHO,
Plaintiff-Appellant,
v. No. 11-1278
(D.C. No. 1:07-CV-02603-REB-KLM)
HARLEY LAPPIN, Director, Federal (D. Colo.)
Bureau of Prisons; S. NAFZIGER,
Clinical Director,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and BALDOCK, Circuit Judges.
Plaintiff Norberto Perez Arocho brought this prison civil rights action
claiming he was unconstitutionally denied treatment for Hepatitis C while at the
federal prison in Florence, Colorado. The district court initially dismissed the
action on the pleadings, holding that the complaint failed to establish personal
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
jurisdiction over defendant Harley Lappin, Federal Bureau of Prisons (BOP)
director, and failed to state a claim against defendant Steven Nafziger, clinical
director at Florence responsible for plaintiff’s treatment. We partially reversed
that decision, holding in pertinent part that the allegations of the complaint, if
true, established personal jurisdiction over defendant Lappin and that, while the
complaint did not state a claim against defendant Nafziger, a dismissal without
prejudice was appropriate to give plaintiff an opportunity to cure its deficiencies
by amendment. See Arocho v. Nafziger, 367 F. App’x 942 (10th Cir. 2010).
On remand, plaintiff amended his complaint and defendants moved for
summary judgment. Adopting the recommendation of the magistrate judge, the
district court granted the motion and (1) dismissed the claim against defendant
Lappin with prejudice after concluding that it lacked personal jurisdiction over
him and that transfer to another forum was unwarranted; (2) dismissed plaintiff’s
primary claim against defendant Nafziger with prejudice on the merits; (3) and
dismissed additional claims asserted against defendant Nafziger for failure to
exhaust administrative remedies. Plaintiff then timely commenced this appeal.
We take up each of these matters in turn below and affirm in all respects save
one: the dismissal of defendant Lappin for lack of personal jurisdiction should
have been without prejudice, and we therefore remand the matter to the district
court to modify its judgment accordingly.
-2-
A very brief factual summary will suffice to frame the case. As additional
facts are needed to assess particular issues, they will be introduced in the course
of our analysis below. Plaintiff has been diagnosed with chronic Hepatitis C
since approximately 2002. In July 2007, a blood test suggested advancing liver
disease, and defendant Nafziger ordered additional testing. He also recommended
that plaintiff be given the psychological evaluation required before beginning
Interferon/Ribavirin therapy. In October 2007, after the evaluation, defendant
Nafziger submitted a recommendation to the BOP Central Office that plaintiff be
approved for the therapy. Plaintiff was informed of the recommendation, and
then was told in January 2008 and February 2008 that it was still awaiting
approval. Defendant Nafziger left BOP’s employ in late February 2008. In the
meantime, plaintiff filed this suit seeking damages and injunctive relief, claiming
that the denial/delay of the treatment constituted deliberate indifference to a
serious medical need in violation of his Eighth Amendment rights, attributable to
both defendants Lappin and Nafziger.
I. DISMISSAL OF CLAIM AGAINST DEFENDANT LAPPIN
In our previous decision, we made it clear that our reversal of the initial
dismissal on the pleadings in favor of defendant Lappin did not foreclose a later
dismissal on an evidentiary record developed for summary judgment:
Of course, the question of personal jurisdiction can always be
revisited at a post-pleading stage of the proceedings, where the
evidence may show that the relevant facts are other than they have
-3-
been pled (by showing, for example, that Lappin actually had nothing
to do with the denial of Hepatitis C treatment, or was connected with
the denial of treatment only through application of a broad policy
issued at the national level and was unaware of any harm that would
specifically befall Mr. Arocho in Colorado). And when personal
jurisdiction is assessed at an evidentiary hearing or at trial, the
plaintiff generally must substantiate his allegations with proof by a
preponderance of the evidence. . . .
Id. at 950 (emphasis added) (citation omitted). That is just how events unfolded
on remand.
A. Analysis of Personal Jurisdiction
Defendant Lappin presented evidence, contrary to plaintiff’s allegations but
uncontroverted by any competent evidence from plaintiff, that he was not directly
responsible for authorizing the recommended treatment. That responsibility was
delegated to the Assistant Director of BOP’s Health Services Division. R. Vol. 1
at 353. Defendant Lappin did not make specific decisions regarding medical
treatment. Id. And he was not aware of plaintiff’s condition or the request made
for its treatment. Id. at 354. Echoing the emphasized statement in the passage
from our earlier decision quoted above, Lappin confirmed that “[a]ny decisions
[he] made which may have affected the provision of medical services within the
[BOP] have been of general applicability to all [BOP] facilities.” Id. at 353.
The magistrate judge began her analysis of personal jurisdiction by noting
that defendant Lappin did not have the kind of continuous and systematic contacts
with the forum state to support the exercise of “general” personal jurisdiction
-4-
over him. See generally Shrader v. Biddinger, 633 F.3d 1235, 1239 (10th Cir.
2011) (explaining and contrasting general and specific personal jurisdiction). We
agree. Defendant does not reside in, work in, or have direct control over the
operation of any prison facility in the State of Colorado.
The focus of the personal jurisdiction question here has been, rather, on the
court’s “specific” personal jurisdiction over defendant Lappin, particularly
whether he “purposefully directed” activities at the forum state that gave rise to
the plaintiff’s injury. See Arocho, 367 F. App’x at 949-50 (following analysis of
this condition for specific jurisdiction in Dudnikov v. Chalk & Vermilion Fine
Arts, Inc., 514 F.3d 1063, 1071-72 (10th Cir. 2008)). Based on the evidence cited
above, the magistrate judge concluded plaintiff could not satisfy this condition for
specific personal jurisdiction. The magistrate judge also went on to conclude,
alternatively, that defendant Lappin had made a compelling case that the exercise
of personal jurisdiction over him would, in any event, offend traditional notions
of fair play and substantial justice. See Arocho, 367 F. App’x at 950 (discussing
this final limitation on the exercise of personal jurisdiction).
Plaintiff was properly warned that he had to submit specific objections to
the magistrate judge’s recommendation or risk forfeiture of appellate review, see
R. Vol. 1 at 683, pursuant to this court’s firm waiver rule, see, e.g., Duffield v.
Jackson, 545 F.3d 1234, 1237-38 (10th Cir. 2008); U.S. v. One Parcel of Real
Property, 73 F.3d 1057, 1060 (10th Cir. 1996). He did file a timely objection, see
-5-
R. Vol. 1 at 688-90, but it was very general and did not advance particularized
challenges to the analysis of personal jurisdiction; any challenge in this regard
was limited to a general reference to this court’s earlier reversal of the dismissal
on the pleadings, id. at 690. Defendants insist that we apply our waiver rule and
summarily affirm the dismissal in favor of defendant Lappin. We decline to do
so. Our waiver rule includes an interest-of-justice exception, which takes into
account “a pro se litigant’s effort to comply [and] the force and plausibility of the
explanation for his failure to comply.” Duffield, 545 F.3d at 1238 (internal
quotation marks omitted). Plaintiff’s objection explained that his legal and
personal property was confiscated on March 29, 2011, and had still not been
returned a month later when he had to prepare and file the objection. R. Vol. 1 at
688-89. Defendants do not contest these facts. 1 It is not difficult to see how this
would undermine the pro se plaintiff’s effort to advance particularized challenges
to a lengthy and legally complicated recommendation. Under the circumstances,
we elect not to rest our disposition on waiver. 2
1
Defendants argue that we should not consider the confiscation of plaintiff’s
legal materials as an excuse for his failure to frame more specific objections,
because his complaints about the confiscation incident seem to refer, rather, to his
inability to file an adequate response to the summary judgment motion. But,
while plaintiff’s pro se argumentation is at times unclear, the facts he states are
not. The confiscation occurred after he responded to the summary judgment
motion but before the time for filing his objection to the magistrate judge’s
recommendation, so only the latter would have been affected.
2
We also decline defendants’ suggestion that we summarily affirm on the
(continued...)
-6-
Returning to the merits of the personal jurisdiction issue, we fully agree
with the magistrate judge’s conclusion that there is no evidence defendant Lappin
purposefully directed actions at the forum state to cause plaintiff’s alleged injury.
As already alluded to above, his only potential connection with plaintiff’s case
relates to decisions of general applicability he has made affecting the provision of
medical services within BOP facilities countrywide. As indicated in our decision
on the prior appeal, that is not enough to show that he purposefully directed his
relevant actions at the forum state. See Arocho, 367 F. App’x at 949-50 (applying
test for personal jurisdiction distilled from Calder v. Jones, 465 U.S. 783 (1984),
derived in Dudnikov, 514 F.3d at 1072).
B. Dismissal or Transfer
As required by circuit precedent, the magistrate judge went on to consider
whether the district court should exercise its discretion not to dismiss the claim
against defendant Lappin but to transfer it to a forum with personal jurisdiction
over him. See, e.g., Trujillo v. Williams, 465 F.3d 1210, 1222-23 (10th Cir.
2006). In conducting this inquiry, the district court may “tak[e] a ‘peek at the
2
(...continued)
basis of inadequate appellate briefing by plaintiff on appeal. While not very
effective as advocacy, his briefing is sufficient to place the merits of the district
court’s decision before us. In any event, defendants have not been prejudiced;
they clearly knew the operative legal issues and have addressed them at length in
their own briefing. See Arocho, 367 F. App’x at 950 n.8 (declining similar
suggestion by defendants on prior appeal).
-7-
merits’ to avoid raising false hopes and wasting judicial resources that would
result from transferring a case which is clearly doomed.” Haugh v. Booker,
210 F.3d 1147, 1150 (10th Cir. 2000) (quoting Phillips v. Seiter, 173 F.3d 609,
610 (7th Cir. 1999)). As explained in Phillips, there is no paradox in this peek at
the merits by a court that “lack[s] jurisdiction to adjudicate [the case] fully,” as
the court is merely acting on its authority “to decide [the limited question]
whether to transfer or dismiss” the case. Phillips, 173 F.3d at 611. Here, the
magistrate judge concluded transfer was not warranted because defendant
Lappin’s lack of personal involvement in the denial of treatment would undercut
any claim on the merits against him. See Cameron v. Thornburgh, 983 F.2d 253,
258 (D.C. Cir. 1993) (holding BOP Director could not be held liable in absence of
participation in “any decision or approv[al of] any policy that related to the
case”); see Brown v. Montoya, 662 F.3d 1152, 1164-65 (10th Cir. 2011) (making
same point as to claim against state Secretary of Corrections). The district court
properly exercised its discretion in declining to transfer on this ground. 3
3
To avoid misunderstanding, we clarify one point. A supervisory federal
official like the BOP director may be held liable for his “personal involvement in
the acts causing the deprivation of a person’s constitutional rights” or “if he
implements a policy so deficient that the policy itself acts as a deprivation of
constitutional rights.” Cronn v. Buffington, 150 F.3d 538, 544 (5th Cir. 1998);
see Brown, 662 F.3d at 1164-65 (making same point as to claim against state
Secretary of Corrections). The second basis for liability is significant in that it
points to a divergence between the analysis of personal jurisdiction and liability
on the merits: as we have noted, defendant Lappin may not be haled into court
(continued...)
-8-
C. Dismissal with Prejudice
Finally, the district court adopted the magistrate judge’s recommendation to
dismiss with prejudice, contrary to the established rule that dismissals for lack of
personal jurisdiction are without prejudice, Hollander v. Sandoz Pharm. Corp.,
289 F.3d 1193, 1216 (10th Cir. 2002); see also Trujillo, 465 F.3d 1222-23 (noting
court’s dispositional choices upon finding lack of personal jurisdiction are
transfer or dismissal without prejudice); Arocho, 367 F. App’x at 951 n.10
(same). The magistrate judge did not cite any authority for this deviation, but just
stated that her look at the merits in connection with the question of transfer
indicated that defendant Lappin was entitled to a judgment on the merits. There
is a fundamental problem with this approach tied to the rationale for the precedent
from which it departs.
Like subject matter jurisdiction, “[p]ersonal jurisdiction, too, is an essential
element of the jurisdiction of a district court, without which the court is powerless
to proceed to an adjudication.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574,
3
(...continued)
everywhere on the basis of a general policy (however unconstitutional) not aimed
specifically at the particular forum state; but he could be held liable, in the proper
forum, for his unconstitutional policies. Thus, for example, if a BOP director
were to initiate a policy plainly denying prisoners constitutionally mandated care,
legal relief would be available in a forum that could exercise personal jurisdiction
over the director. But here, while defendant Lappin vaguely alluded to decisions
he has made broadly affecting the provision of medical services in federal
prisons, there is no evidence of an unconstitutional policy relevant to plaintiff’s
claims.
-9-
584 (1999) (internal quotation marks and ellipses omitted). Absent the power to
proceed to an adjudication, a court must dismiss without prejudice because it
cannot enter a judgment on the merits. Guidry v. U. S. Tobacco Co., 188 F.3d
619, 623-24 n.2 (5th Cir. 1999) (noting Ruhrgas dictates dismissal without
prejudice for lack of personal jurisdiction); see Brereton v. Bountiful City Corp.,
434 F.3d 1213, 1217 (10th Cir. 2006) (holding that “once a court determines it
lacks jurisdiction over a claim, it perforce lacks jurisdiction to make any
determination of the merits”). To be sure, a court may consider the merits of a
claim over which it lacks personal (or subject matter) jurisdiction in deciding
whether to transfer it to a court with jurisdiction. But, as noted above, the only
reason this does not create a jurisdictional paradox is that the court’s authority in
this respect is limited to a “peek at the merits” solely to determine whether to
transfer, not to engage in adjudication. 4 Indeed, any other result would
effectively usurp the adjudicative authority of the proper forum.
4
This point also forecloses one other possible rationale for entering a merits
judgment here on the basis of the analysis of the transfer issue. When a case
involves two claims, one within and one without the court’s jurisdiction, and the
court’s merits disposition of the former necessarily entails the merits disposition
of the latter, the court may effectuate that “foreordained” conclusion instead of
dismissing the latter claim. Rural Water Sewer & Solid Waste Mgmt. v. City of
Guthrie, 654 F.3d 1058, 1069 (10th Cir. 2011). But the basis for adjudicating the
claim against defendant Lappin here was not a merits disposition at all, but only a
preliminary assessment pursuant to the court’s limited authority to decide whether
to transfer the claim.
-10-
D. Conclusion
In sum, we agree that plaintiff failed to establish personal jurisdiction over
defendant Lappin and that dismissal rather than transfer was a proper exercise of
the district court’s discretion. But the district court’s dismissal with prejudice
was contrary to circuit precedent and the fundamental principles of adjudicative
authority on which that precedent rests. We therefore remand the matter solely
for the district court to modify its judgment to reflect that its dismissal of the
claim is without prejudice.
II. CLAIMS AGAINST DEFENDANT NAFZIGER
Defendant Nafziger presented evidence, uncontroverted by competent
evidence from plaintiff, establishing the following material facts. He was clinical
director at Florence from January 2007 through February 2008. R. Vol. 1 at 306.
In July 2007 he noted that plaintiff, who had chronic Hepatitis C, was due for
blood testing. Id. at 308-09. Most persons with chronic Hepatitis C remain
healthy, but a small number develop serious liver disease. Id. at 309. Thus, they
are typically monitored by testing, id. at 309-10, and may be treated with antiviral
medication depending on the physician’s judgment about the appropriateness and
optimal timing for such treatment, which is not always effective, carries adverse
risks, and may be superseded by better treatments in the future, id. at 310.
When the initial test results were suggestive of advancing liver disease, id.
at 308, defendant Nafziger recommended that plaintiff be seen in the prison’s
-11-
Chronic Care Clinic, id. at 309. Such clinics are used to monitor inmates with
ongoing medical needs like chronic hepatitis, which require periodic evaluation at
clinically appropriate intervals. Id. at 308. Plaintiff had refused to go to the
clinic in 2003, 2004, 2005. Id. This time he went to the clinic and defendant
Nafziger ordered more testing. Id. In addition, he was sent for a psychological
consultation required before starting treatment with Interferon and Ribavirin due
to adverse side effects. Id. at 310. Shortly thereafter, in October 2007, defendant
Nafziger recommended to the Medical Director at the BOP Central Office that
plaintiff be approved for treatment. Id. at 310-11. He did not have authority to
approve the treatment himself, id. at 311, and there was nothing more he could do
to speed up the process, id. The delay awaiting approval was typical for such a
request, id. at 312, and at the time he terminated his employment with BOP a few
months later, “[p]laintiff had not and did not face a substantial risk of harm from
the lack of Interferon/Ribavirin treatment in [his] medical opinion,” id.
A. Failure to Obtain Interferon/Ribavirin Treatment
The standard for Eighth Amendment claims of deliberate indifference to
prisoner health and safety needs was clarified in Farmer v. Brennan, 511 U.S. 825
(1994). In Farmer, the Court specified a two-pronged inquiry, with an objective
component concerned with the seriousness of the need at issue and a subjective
component concerned with the defendant’s culpable state of mind. Id. at 834.
-12-
The district court’s disposition in the instant case turned on the subjective
component, so that is where we will focus our analysis.
The Farmer Court made it clear that the subjective component is not
satisfied “unless the [prison] official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837. The Court likened the subjective
component to “recklessness in the criminal law,” in that the defendant “must
consciously disregard a substantial risk of serious harm.” Id. at 837, 839 (internal
quotation marks omitted). The Supreme Court had already emphasized in its
initial decision recognizing deliberate indifference claims, Estelle v. Gamble,
429 U.S. 97 (1976), that “a complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment,” since “[m]edical malpractice does
not become a constitutional violation merely because the victim is a prisoner.” Id
at 106. As our cases reflect, when medical judgment is involved “the subjective
component is not satisfied, absent an extraordinary degree of neglect.” Self v.
Crum, 439 F.3d 1227, 1232 (10th Cir. 2006).
We agree with the district court that plaintiff has not demonstrated the
existence of a triable case under these principles. The facts recited above show a
medically reasonable course of conservative treatment, followed by a prompt
-13-
response by defendant Nafziger when tests he ordered indicated a possible acute
turn in plaintiff’s hitherto chronic condition. Further testing and evaluation led to
his recommendation for the treatment plaintiff seeks. The required authorization
remained pending when he left the employ of BOP four months later, and he
averred without contradiction that this limited delay was neither unusual nor, in
his medical judgment, a matter giving rise to a substantial risk of harm to
plaintiff. Whether or not other medical professionals would have followed the
same course with a similar patient (and there is no basis in the record to conclude
they would not), we see no reasonable basis for a jury to infer that defendant
Nafziger knew of and deliberately disregarded a substantial risk of harm to
plaintiff. If there has been any constitutional violation with regard to plaintiff’s
medical treatment during his ongoing federal confinement, it was not at the hands
of defendant Nafziger during the fairly short period of time at issue here.
B. Exhaustion of New Claims Asserted in Amended Complaint
Plaintiff interjected three new claims against defendant Nafziger in his
amended complaint, alleging that he failed to (1) vaccinate plaintiff, leading to
plaintiff’s contraction of Hepatitis B; (2) ensure that plaintiff received proper
medical care after defendant Nafziger left the BOP; and (3) provide adequate
medical care generally. The district court dismissed these claims without
prejudice for lack of exhaustion.
-14-
Congress has directed that no suit over prison conditions may be brought
“until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). This requirement applies to federal prisoners. Garrett v. Hawk,
127 F.3d 1263, 1265 (10th Cir. 1997), abrogated on other grounds as explained
in Yousef v. Reno, 254 F.3d 1214, 1216 n.1 (10th Cir. 2001). As the magistrate
judge discussed, defendants submitted an affidavit from an attorney employed at
Florence who is familiar with its administrative remedy process and who has
access to the database that tracks inmates’ complaints and appeals. See R. Vol. 1
at 314-17; see also id. at 321-33 (attached printout from database). The attorney
notes that plaintiff exhausted his original claim about the Interferon/Ribavirin
treatment, see id. at 317, but not any of the newly asserted claims, id. at 318. As
plaintiff has not presented any competent evidence to controvert this showing, the
dismissal of these claims under § 1997e(a) for failure to exhaust was correct.
-15-
The district court’s judgment is AFFIRMED in all respects except that the
claim against defendant Lappin is REMANDED to be modified to a dismissal
without prejudice. Appellant’s motion to proceed on appeal without prepayment
of fees is GRANTED. He is reminded of his continued obligation to continue
making partial payments until the filing fee is paid in full.
Entered for the Court
Stephen H. Anderson
Circuit Judge
-16-
| {
"pile_set_name": "FreeLaw"
} |
348 So.2d 23 (1977)
TAMARAC VILLAGE, INC., Appellant,
v.
BATES & DALY CO., a Florida Corporation, Appellee.
No. 75-1796.
District Court of Appeal of Florida, Fourth District.
June 17, 1977.
Rehearing Denied August 4, 1977.
*24 Herbert Buchwald, Miami Beach, for appellant.
Philip M. Warren, Pompano Beach, for appellee.
DOWNEY, Judge.
We have for review a final summary judgment for appellee, Bates & Daly Co., foreclosing its mechanic's lien against appellant, Tamarac Village, Inc., the owner of the real property in question.
The primary issue on appeal is whether the owner may claim as proper payments a) certain payments it made to the general contractor before the owner recorded a notice of commencement and before appellee began to furnish any labor and material under appellee's subcontract, and b) payments it made to complete the construction without recording a notice of recommencement after the general contractor had abandoned the construction project.
The following is the pertinent chronology of events:
a) On August 27, 1973, Tamarac, as owner, contracted with a general contractor to improve its property;
b) between September 10, 1973, and October 12, 1973, Tamarac paid the contractor a total of $15,315.08;
c) on October 16, 1973, Tamarac recorded its Notice of Commencement;
d) between October 26, 1973, and November 1, 1973, Bates furnished labor and materials to the improvement to the extent of $1,762.52;
e) on November 23, 1973, the general contractor abandoned the job;
f) on November 30, 1973, Bates served notice to owner upon Tamarac;
g) on December 3, 1973, Bates recorded its claim of lien.
After the general contractor abandoned the contract, Tamarac had the construction completed at a cost of $64,963.36. Tamarac paid $100,226.56 toward the improvement, or $20,501.56 in excess of the adjusted contract price of $79,725.00.
Several of the critical events which must be kept in mind are:
1) Tamarac paid $15,315.08 to the general contractor prior to recording its notice of commencement;
2) Bates served its notice of intention to claim a lien pursuant to Section 713.06(2)(a) within 45 days of the time it commenced its work but 7 days after the general contractor abandoned the contract;
3) Tamarac had the construction completed, but it did not record a notice of recommencement as required by Section 713.07(4), Florida Statutes (1973).
The circuit court entered summary judgment in which it found that:
"counsel for each of the parties having agreed that there is no genuine issue of material fact, and that therefore the Court can and should now decide this cause as a matter of law, the Court finds that there was a failure on the part of the Defendant-Owner to timely file a Notice of Commencement, prior to the Owner making some payment under the contract, and the Court further finding that there was a failure on the part of Defendant-Owner to file a Notice of Re-Commencement, therefore, a surplus of funds has been created from which the Plaintiff is entitled to recover on its lien in the amount of $1,762.52."
The court thereupon adjudged that Bates was entitled to have Tamarac's property sold to satisfy Bates's lien claim (plus interest, costs, and attorney's fees).
On appeal, Tamarac contends that: (a) since Bates did not commence work until after Tamarac had paid the general contractor $15,315.08, those payments were not improper, even though they were made before Tamarac recorded its notice of commencement; (b) even if the $15,315.08 payments were improper, Bates still cannot recover because the reasonable cost of completion exceeded the contract price and therefore there was no surplus fund to satisfy Bates's claim of lien; and (c) since Bates, contrary to the requirements of Section 713.06(2)(a), did not serve its Notice to Owner before the general contractor abandoned *25 the job, the lien is unenforceable. We disagree with all of Tamarac's contentions.
If an owner fulfills all the duties the Mechanics' Lien Law places upon him, his liability for all mechanics' lien claims cannot exceed the contract price.[1] See Alton Towers, Inc. v. Coplan Pipe & Supply Co., 262 So.2d 671 (Fla. 1972), and Section 713.06(1), Florida Statutes (1973). However, if the owner makes improper payments, then he has failed to comply with the Mechanics' Lien Law, and his liability for mechanics' lien claims may exceed the contract price. See, e.g., Renuart Lumber Yards v. Stearn, 95 So.2d 517 (Fla. 1957).
We hold that the payments Tamarac made before it recorded its notice of commencement were improper payments under Section 713.06(3)(a), Florida Statutes (1973). In addition, we hold that Tamarac's failure to file a notice of re-commencement as required by Section 713.07(2), Florida Statutes (1973), rendered the payments Tamarac made to complete the project also improper payments. See Melnick v. Reynolds Metals Company, 230 So.2d 490 (Fla. 4th DCA 1970), and Bill Ader, Inc. v. Maule Industries, Inc., 230 So.2d 182 (Fla. 4th DCA 1969). Thus, Tamarac could not deduct the pre-notice of commencement payments of $15,315.08, nor the reasonable cost of completion, from the adjusted contract price. Accordingly, there remained in Tamarac's hands improperly paid portions of the adjusted contract price sufficient to satisfy appellee's lien.
For the foregoing reasons the judgment appealed from is affirmed.
AFFIRMED.
ALDERMAN, J., and DURANT, N. JOSEPH, Jr., Associate Judge, concur.
NOTES
[1] See Section 713.01(3), Florida Statutes (1973) for the definition of "contract price".
| {
"pile_set_name": "FreeLaw"
} |
951 F.2d 257
PHILLIPS PETROLEUM COMPANY, Plaintiff-Appellee,v.Manual LUJAN, Secretary of the Interior, Robert Kallman,Director or Acting Director, Minerals Management Service,Department of the Interior, Nick L. Kelly, Area Manager,Dallas Regional Compliance Office, Minerals ManagementService, the United States Department of the Interior, theMinerals Management Service, Defendants-Appellants.
No. 90-5122.
United States Court of Appeals,Tenth Circuit.
Dec. 2, 1991.
Robert L. Klarquist, Attorney, Dept. of Justice, Environment and Natural Resources Div., Washington, D.C. (Richard B. Stewart, Asst. Atty. Gen., Washington, D.C., Tony M. Graham, U.S. Atty., and Nancy Nesbitt Blevins, Asst. U.S. Atty., Tulsa, Okl., Edward J. Shawaker, Attorney, Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., Peter J. Schaumber and Geoffrey Heath, Office of Sol. Gen., Washington, D.C., with him on the brief), for defendants-appellants.
Thomas L. Cubbage, II, of Phillips Petroleum Co., Bartlesville, Okl. (L.K. Smith and Paul E. Swain, III, of Boone, Smith, Davis, Hurst & Dickman, Tulsa, Okl., William G. Paul, John L. Williford and Jennifer S. Goering of Phillips Petroleum Co., Bartlesville, Okl., with him on the brief), for plaintiff-appellee.
Donald B. Craven and James P. Tuite, of Miller & Chevalier, Chartered, Washington, D.C., David T. Deal of the American Petroleum Institute, Washington, D.C., for Amicus Curiae, American Petroleum Institute.
Before McWILLIAMS and BALDOCK, Circuit Judges, and DUMBAULD, District Judge.*
BALDOCK, Circuit Judge.
1
Defendants-appellants, the Secretary of the Interior and his department, the Mineral Management Service which is a division within the Department of the Interior, and two other administrative officials of the Mineral Management Service, appeal the district court's order granting summary judgment to plaintiff-appellee, Phillips Petroleum Company, in a declaratory action. We have jurisdiction under 28 U.S.C. § 1291. Our review of orders granting motions for summary judgment is de novo. United States v. Gammache, 713 F.2d 588, 594 (10th Cir.1983). We reverse and remand to the district court with instructions to enter judgment for defendants.
2
Defendants are responsible for issuing and administering oil and gas leases for federal lands, see 30 U.S.C. §§ 181, 223-237, and for approving issuance of and administering such leases for lands allotted to Indians and tribal lands. See 25 U.S.C. §§ 396-396g. Congress has directed defendants to "establish a comprehensive inspection, collection and fiscal and production accounting and auditing system to provide the capability to accurately determine oil and gas royalties, interest, fines, penalties, fees, deposits, and other payments owed, and to collect and account for such amounts in a timely manner." 30 U.S.C. § 1711(a). Further, defendants are required to "audit and reconcile, to the extent practicable, all current and past lease accounts for leases of oil or gas and take appropriate actions to make additional collections or refunds as warranted, ... and may also audit accounts and records of selected lessees and operators." Id. § 1711(c)(1).
3
Plaintiff holds oil and gas leases for both federal and Indian lands. These leases contain an inspection clause which requires, in relevant part, that the lessee "keep open ... for the inspection of any duly authorized officer of the Department ... all books, accounts, maps and records relative to operations and surveys or investigations on the leased lands or under the lease." As a lessee of oil and gas rights, plaintiff is required to "establish and maintain any records, make any reports, and provide any information that the Secretary may, by rule, reasonably require for the purpose of implementing this chapter or determining compliance with rules or orders under this chapter." 30 U.S.C. § 1713(a). Further, "[u]pon the request of any officer or employee duly designated by the Secretary ... the appropriate records, reports, or information which may be required by this section shall be made available for inspection and duplication...." Id. Plaintiff is also required to maintain records of its oil and gas leases for six years after the records are generated "unless the Secretary notifies [plaintiff] that he has initiated an audit or investigation involving such records and that such records must be maintained for a longer period."1 Id. § 1713(b).
4
On September 30, 1988, defendants ordered plaintiff to provide records relating to thirty-two leases for the period October 1, 1980, through September 30, 1983. The order stated that plaintiff previously had been notified of an impending audit for the period October 1, 1980 through September 30, 1986, and that this particular order pertained only to the first segment of the audit. The stated purpose of the audit was to ascertain "the propriety of the royalty payments made by [plaintiff]."
5
On October 28, 1988, plaintiff filed the present action seeking declaratory and injunctive relief. The complaint contended that, pursuant to the general federal statute of limitations, 28 U.S.C. § 2415, defendants must audit and file claims for underpayment or mispayment of royalties within six years after royalty payments are made or due. Plaintiff sought a judgment that the order which requested records that were more than six years old was unenforceable, arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.2 See 5 U.S.C. § 706 (scope of judicial review of agency actions). Plaintiff argued that a cause of action on royalty payments accrues at the time of payment; therefore, any cause of action on payments made more than six years earlier was barred by the statute of limitations. As plaintiff's argument goes, the six-year limitation on maintaining records deprived defendants of their authority to audit records that were more than six years old.
6
On cross-motions for summary judgment, the district court denied defendants' motion3 and granted plaintiff's motion. The district court declared that there was no authority for defendants' action unless they could show that the statute of limitations was tolled. The district court determined that the statute was not tolled and granted the declaratory relief requested by plaintiff because defendants' request for records was untimely.4
7
Congress has vested federal courts with the power to review agency actions. 5 U.S.C. § 704. However, the scope of review is a "narrow one." Edwards v. Califano, 619 F.2d 865, 868 (10th Cir.1980). The fact that plaintiff has brought this action not on appeal from an administrative ruling but rather as a preemptive declaratory action makes no difference as to the substantial deference we afford to the actions of administrative agencies in compliance with their statutory enforcement obligations. Indeed, unless the agency's order can be considered "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," 5 U.S.C. § 706(2)(A), we cannot set it aside.
8
The district court viewed the six-year limitation on the record keeping requirement and the six-year statute of limitations on actions to collect royalty payments as dispositive on whether defendants could compel disclosure of the records. The district court framed the issue as "whether [defendants] must audit and file claims for underpayment or mispayment of royalties within 6 years after the royalty payments are made or due." We cannot agree with that characterization.
9
Defendants were not asserting a claim for underpayment of royalties. Had they been, plaintiff might have very well been able to assert a statute of limitations defense. See 28 U.S.C. § 2415 (six-year statute of limitations on "action for money damages brought by the United States ... which is founded upon any contract). Rather, defendants were merely ordering plaintiff to provide records. Such an order is well within defendants' authority under the lease agreements and under the pertinent statutes and regulations governing the management of royalty payments.
10
The lease agreements require plaintiff to permit defendants to inspect "all books, accounts, maps and records...." The inspection clause of the agreement is not limited to records generated within the past six years. Indeed, the only limitation on the disclosure of records that plaintiff and defendants have formally agreed upon is that the records must be "relative to operations and surveys or investigations on the leased lands or under the lease." We will not read a limitation into a lease provision which was not part of the agreement between the parties. See Yankee Atomic Elec. Co. v. New Mexico & Ariz. Land Co., 632 F.2d 855, 858 (10th Cir.1980) (10th Cir.1980) ("courts cannot change or alter contract language for the benefit of one party and to the detriment of another party"). See also Williams Petroleum Co. v. Midland Cooperatives, Inc., 539 F.2d 694, 696 (10th Cir.1976).
11
In addition to the lease terms requiring disclosure, the statutes and regulations governing the payment of royalties on oil and gas leases also require disclosure of the records. Upon the request of defendants, plaintiff is required to make available for inspection and duplication "the appropriate records, reports, or information." 30 U.S.C. § 1713(a). See also 30 C.F.R. § 212.51(c) (1991). While plaintiff is required to maintain the records for six years, unless otherwise notified, 30 U.S.C. § 1713(b); 30 C.F.R. § 212.51(b) (1991), plaintiff's duty to disclose records is not limited to records which plaintiff could have lawfully destroyed but, instead, has retained.5
12
Administrative agencies vested with investigatory power have broad discretion to require the disclosure of information concerning matters within their jurisdiction.6 See, e.g., United States v. Morton Salt Co., 338 U.S. 632, 642-43, 70 S.Ct. 357, 363-64, 94 L.Ed. 401 (1950) (agency could compel the production of information even if action was a "fishing expedition"); Endicott Johnson v. Perkins, 317 U.S. 501, 509, 63 S.Ct. 339, 343, 87 L.Ed. 424 (1943) (district court must enforce administrative subpoena unless the evidence sought was "plainly incompetent or irrelevant to any legal purpose" of the agency). Further, the Supreme Court has held that a summons issued by an enforcement agency, specifically the Internal Revenue Service, need not make any showing of an act which would toll the statute of limitations, such as fraud, in order to enforce a summons for documents which relate to a period outside the applicable statute of limitations. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964). Ironically, defendants could obtain the records under normal civil discovery procedures. Indeed, the records are relevant to the present declaratory action because plaintiff's contention is premised on the absence of some event, such as fraud, which would toll the statute of limitations. Plaintiff cannot avoid disclosure of the records simply by asserting that any action defendants might bring to which the documents relate is barred by the statute of limitations.7
13
We REVERSE the district court's order granting summary judgment for plaintiff and REMAND to the district court with instructions to enter judgment for defendants.
*
The Honorable Edward Dumbauld, Senior United States District Judge, Western District of Pennsylvania, sitting by designation
1
Once an audit or investigation is underway, the lessee is required to maintain the records until the Secretary releases it from such obligation. 30 U.S.C. § 1713(b)
2
Plaintiff agreed to produce the records for the period October 1, 1982 through September 30, 1983, which were requested within the six-year period
3
Defendants initially moved to dismiss the amended complaint contending that plaintiff should be required to exhaust its administrative remedies prior to seeking judicial review, and that the order was not a final agency action. See 5 U.S.C. § 704. Defendants have not appealed the denial of their motion to dismiss, and, accordingly, we express no opinion on these issues
4
Finding that the declaratory relief granted fully disposed of the issues, the district court denied plaintiff's request for injunctive relief. The district court denied defendants' subsequent motion to alter or amend the judgment
5
Plaintiff contends that the order violates the six-year statutory and regulatory limitation on record maintenance, see 30 U.S.C. § 1713(b); 30 C.F.R. § 212.51(b) (1991), because the order requires it to maintain the records indefinitely. However, by giving the Secretary the authority to unilaterally extend the period for maintaining records, 30 U.S.C. § 1713(b), Congress has recognized that the six-year limitation is not absolute. The fact that defendants did not exercise this authority within six years does not negate plaintiff's duty to disclose records which it was legally required to compile and voluntarily chose to retain beyond six years
6
Plaintiff's attempt to distinguish orders by defendants premised on their investigatory power and orders by defendants premised on their power to audit is without merit. Defendants' investigatory power is their power to audit records maintained by lessees such as plaintiff. See 30 U.S.C. § 1711(c)
7
Because we believe that the statute of limitations, 28 U.S.C. § 2415, is irrelevant to defendants' authority to obtain the records, we need not address the questions of when a cause of action on royalty payments accrues or whether the statute was tolled under the facts before us. Further, we have considered plaintiff's additional arguments concerning laches and defendants' failure to follow required procedures, and find them to be without merit
| {
"pile_set_name": "FreeLaw"
} |
11th Court of Appeals
Eastland, Texas
Opinion
Mike Henry Herron
Appellant
Vs. No. 11-03-00251-CR – Appeal from Harris County
State of Texas
Appellee
The jury convicted Mike Henry Herron of telephone harassment, and the trial court assessed
his punishment at confinement in the Harris County Jail for 3 days. We affirm.
The record before this court consists of the clerk’s record and the reporter’s record. When
appellant’s brief was not filed by the January 12, 2004, due date, this court abated the appeal and
requested that the trial court conduct a hearing pursuant to TEX.R.APP.P. 38.8(b). As a result of
the Rule 38.8(b) hearing, the trial court has determined that appellant wishes to abandon his appeal.
Therefore, the appeal will be submitted on the record alone. Rule 38.8(b).
Harris County Deputy Suzanne Shinneman testified that she was dispatched as the result of
a 911 call early in the morning to the location of a possible disturbance. When she arrived at the
residence, Robert Pogany was standing in the driveway. Pogany identified himself and began to tell
Deputy Shinneman “his side of the disturbance.” They went inside the home where appellant
approached Deputy Shinneman and stated that he had made the 911 call and that he wanted to talk
to her first. Pogany stated that his nine-month-old baby woke up and was crying. As Pogany and
his wife were tending to their baby, appellant came into the room yelling that they must be sexually
abusing the baby because “that’s the only reason babies cry in the middle of the night.” Deputy
Shinneman stated that appellant became angry with her because he had to wait to tell his side of the
disagreement. She recognized appellant because she had been to the residence “a few times before.”
When Deputy Shinneman finished interviewing Pogany, appellant refused to talk to her. He
wanted to call 911 to get another officer. Two other officers arrived before appellant could call.
These officers had been dispatched at the same time as Deputy Shinneman.
Appellant was angry. Deputy Shinneman left the room in hopes that appellant would talk
to the other officers. Although all three officers told him not to call 911 again, appellant called and
asked for a different officer to be sent.
Appellant became mad at the other officers and refused to talk to them. One officer smiled
too much, and the other did not smile enough. Appellant claimed that they were hiding something
from him. Appellant told Deputy Shinneman that the Poganys were sexually abusing their baby and
their other children and that Mr. Pogany was prostituting his older three daughters.
Appellant called 911 again and asked that different officers be sent out. The 911 operator
hung up on appellant, and he accused the three officers of being in a conspiracy with 911. Appellant
told the officers that he was going to a “higher source,” looked up a number in a small notebook, and
called the F.B.I. and stated his complaint.
Deputy Shinneman testified that, during this incident, the Poganys were calm, that their
children were polite, that the family was “more than willing to leave the residence,” and that they
just wanted some time to find a shelter. Appellant was angry and wanted the officers to “toss them
out on the doorstep right then.” Deputy Shinneman testified that, when appellant was informed that
it was against the law to repeatedly call 911 while the officers were present and there was no actual
emergency, appellant responded that he was an ordained minister and that “those rules did not apply
to him.”
Deputy Shinneman testified that several times appellant said that his chest hurt. Each time
Deputy Shinneman would ask if he needed medical attention. Each time appellant refused.
Traci Mullins testified that she was the audio records custodian for the Harris County
Sheriff’s Office. The record reflects that 911 calls were made from the residence at 4:53 or 4:55
a.m., at 5:09 a.m., and at 5:40 a.m.
Lynn Del Castillo testified that she was appellant’s daughter and that she did not think he had
been abusive. Del Castillo stated that, when she got there, Pogany was “totally red-faced” and that
appellant was trying to stay calm.
After reviewing the record in the light most favorable to the record, we find that a rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex.Cr.App.2000). The
evidence is legally sufficient to support the conviction.
After reviewing all of the evidence in a neutral light, we have determined that the evidence
supporting guilt is not so weak as to render the conviction clearly wrong and manifestly unjust and
that the evidence supporting guilt is not so greatly outweighed by the overwhelming weight of
contrary evidence as to render the conviction clearly wrong and manifestly unjust. Vasquez v. State,
67 S.W.3d 229, 236 (Tex.Cr.App.2002); Goodman v. State, 66 S.W.3d 283 (Tex.Cr.App.2001);
Johnson v. State, 23 S.W.3d 1, 11 (Tex.Cr.App.2000); Cain v. State, 958 S.W.2d 404
(Tex.Cr.App.1997); Clewis v. State, 922 S.W.2d 126 (Tex.Cr.App.1996). The evidence is factually
sufficient to support the conviction.
Appellant was properly admonished and chose to represent himself. The record before this
court supports the trial court’s determination that appellant knowingly and intelligently chose to
waive his right to counsel and proceed pro se. Faretta v. California, 422 U.S. 806 (1975); Ex parte
Davis, 818 S.W.2d 64 (Tex.Cr.App.1991); Hubbard v. State, 739 S.W.2d 341 (Tex.Cr.App.1987);
Webb v. State, 533 S.W.2d 780 (Tex.Cr.App.1976).
The record does not reflect any reversible error. The judgment of the trial court is affirmed.
PER CURIAM
April 22, 2004
Do not publish. See TEX.R.APP.P. 47.2(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
| {
"pile_set_name": "FreeLaw"
} |
669 F.Supp. 212 (1987)
Joshua MARTINKOVIC, a minor, by his mother and natural guardian, Deborrah MARTINKOVIC; Deborrah Martinkovic, individually, and Valentine Martinkovic, Plaintiffs,
v.
WYETH LABORATORIES, INC., Defendant.
No. 84 C 9568.
United States District Court, N.D. Illinois, E.D.
August 31, 1987.
*213 Thomas G. Wilson, Hunt & Wilson, Charleston, W.Va., Barbara Ziegler Ashley, Larson & Lambert, Wayzata, Minn., for plaintiffs.
Peter A. Tomaras, Richard C. Bartelt, Richard C. Palmer, Wildman, Harrold, Allen & Dixon, Chicago, Ill., Hedy M. Powell, Wyeth Laboratories, Inc., Philadelphia, Pa., for defendant.
MEMORANDUM OPINION
PRENTICE H. MARSHALL, District Judge.
Defendant Wyeth Laboratories, Inc. manufactures a diphtheria and tetanus toxoids and pertussis vaccine adsorbed [DTP vaccine] with which plaintiff Joshua Martinkovic was inoculated three times as an infant. Joshua allegedly suffers from a seizure disorder and other permanent, disabling injuries, which he and his parents, plaintiffs Deborrah and Valentine Martinkovic, allege were caused by the vaccine's pertussis component. In this diversity action, plaintiffs seek compensatory and punitive damages from Wyeth under Illinois tort laws of intentional misrepresentation, strict liability, absolute liability, breach of warranty, and negligence in warnings, design, and handling of the vaccine.
Wyeth moves for summary judgment, arguing first that federal regulations preempt Illinois from providing tort remedies to persons injured by the DTP vaccine. In the alternative, Wyeth contends that plaintiffs have failed to show that a genuine issue of material fact exists and that it is entitled to judgment as a matter of law.
First we consider the effect on state tort claims of the Public Health Service Act, 42 U.S.C. §§ 262 et seq. (1982), the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq. (1982), and ensuing regulations promulgated by the Food and Drug and Administration [FDA]. Where Congress explicitly states its intent that a federal act will supplant state laws, either in the act or in legislative history, preemption occurs. Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S. 141, 152-53, 102 S.Ct. 3014, 3022, 73 L.Ed.2d 664 (1982); see U.S. Const. art. VI, cl. 2. Furthermore, courts will infer preemption *214 upon a showing that: (1) Congress intended to occupy the field, as evidenced by the pervasiveness of the federal regulatory scheme, by a dominant federal interest, or by the means established to effect the federal objective; or (2) state laws actually conflict with federal law or impair achievement of the federal objective. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 248, 104 S.Ct. 615, 621, 78 L.Ed.2d 443 (1984); Fidelity Federal, 458 U.S. at 153, 102 S.Ct. at 3022. In areas traditionally regulated by the states, such as health and safety, there is a presumption against preemption absent clear evidence of contrary congressional intent. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 206, 103 S.Ct. 1713, 1723, 75 L.Ed.2d 752 (1983) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947)); accord Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 718, 105 S.Ct. 2371, 2377-78, 85 L.Ed.2d 714 (1985).
Of the handful of federal district courts that have considered whether FDA regulations preempt suits for injuries from pertussis vaccination, two have found preemption. Abbott v. American Cyanamid Co., No. 86-857-A, mem. op. (E.D.Va. Mar. 9, 1987); Hurley v. Lederle Laboratories, 651 F.Supp. 993 (E.D.Tex.1986). In Hurley, the court acknowledged that there is no explicit evidence of congressional intent on the preemption issue. Hurley, 651 F.Supp. at 998, 1003. It stated, however, that because the comprehensive regulations arose from the FDA's specific balancing of the risk of injury against the benefits from vaccination, a state court could not find that the DTP vaccine was labeled inadequately or designed or produced defectively. Id. at 999-1001, 1003-06. Such a verdict would constitute an actual conflict with the federal plan to prevent disease through uniform vaccination procedures. Id. at 1004-05. See Abbott, supra, at 3-9 (similar analysis and conclusion).
Diluting Hurley's strength, however, is the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to 300aa-28 (1987 West supp.). The act will not take effect until Congress enacts a special tax. Wack v. Lederle Laboratories, 666 F.Supp. 123 (N.D.Ohio 1987) (available on Lexis). Nonetheless, its passage suggests that Congress does not intend FDA regulations to preempt tort remedies. The House Committee on Energy and Commerce, for example, clearly assumed tort remedies were available before the act was passed: "Currently," it wrote, "vaccine-injured persons can seek recovery for their damages only through the civil tort system or through a settlement arrangement with the vaccine manufacturer." 1986 U.S.Code Cong. & Admin.News 6287 at 6347. Furthermore, although the act's victim compensation program will limit recovery from manufacturers on some tort theories, the act assumes civil plaintiffs will continue to seek relief under tort theories it does not proscribe. 42 U.S.C. § 300aa-22; see Morris v. Parke-Davis & Co., 667 F.Supp. 1332, 1339-40 (C.D.Cal. 1987). Given that the vaccine act itself will not occupy the field of regulation of the pertussis vaccine, it is clear that the FDA's current regulations, though comprehensive, do not establish such an occupation. Cf. Hillsborough, 471 U.S. at 718, 105 S.Ct. at 2377 (in permitting ordinances restricting blood plasma donation, Court writes it "will seldom infer, solely from the comprehensiveness of federal regulations, an intent to pre-empt in its entirety a field related to health and safety").
Furthermore, the vaccine act's compensation provisions demonstrate that the federal policy of preventing disease through vaccination "is not to be achieved at all costs." Patten v. Lederle, 655 F.Supp. 745, 750 (D.Utah 1987). Cf. Pacific Gas & Electric, 461 U.S. at 220-23, 103 S.Ct. at 1730-32 (stating that federal goal of nuclear power is not to be won at all costs, Court permits California to regulate nuclear power for economic reasons). Illinois, even while requiring immunization against communicable diseases, Ill.Rev.Stat. ch. 122, ¶ 27-8.1, ch. 111 ½, ¶ 22.11-.12 (1985), permits persons injured by vaccines to recover tort *215 damages from manufacturers. See Malek v. Lederle Laboratories, 125 Ill.App.3d 870, 81 Ill.Dec. 236, 466 N.E.2d 1038 (1984) (reviewing jury verdict for manufacturer in DTP suit), judgment reaffirmed, 152 Ill. App.3d 493, 105 Ill.Dec. 608, 504 N.E.2d 893 (1987). There is no federal remedy now, Wack, supra, and the federal vaccine act foresees continuation of some state tort claims even after it is effected. Therefore, Illinois's provisions for compensation neither conflict with federal laws nor thwart federal purposes.
We join those courts that have held, after evaluating the National Childhood Vaccine Injury Act, that federal regulation does not preempt state tort claims against DTP vaccine manufacturers. Graham v. Wyeth Laboratories, 666 F.Supp. 1483 (D.Kan.1987); Morris v. Parke-Davis & Co., 667 F.Supp. 1332 (C.D.Cal.1987) (vacating previous memorandum opinion that had found preemption); Patten v. Lederle Laboratories, 655 F.Supp. 745 (D.Utah 1987). Cf. Wack, supra (lack of federal civil remedy bars preemption); Smith v. Wyeth Laboratories, No. 84- 2002, mem. op. (S.D. W.Va. Aug. 21, 1986) (without considering vaccine act, found no preemption because no federal provisions for compensation then existed). Wyeth's motion for summary judgment on the preemption ground is denied.
We turn to the merits of this lawsuit. At the hub are Wyeth's warnings regarding the DTP vaccine. Plaintiffs seek to recover from Wyeth for failure to warn, based alternatively on theories of negligence and strict liability, and for intentional misrepresentation of facts. Complaint ¶¶ XXI-XXV, XXVI, XXXI, XXXV. They further allege that Wyeth should be liable for designing a defective vaccine and for breaching implied warranties of merchantability and fitness. Id. ¶¶ XXIX, XXXIV, XXXVII-XLVII. As we shall see, adequacy of the warnings affects consideration of these latter claims.
Under Illinois law, a drug manufacturer has a duty to warn adequately of any risks about which it knew or should have known at the time it sold the product; failure to warn exposes the manufacturer to strict liability. Woodill v. Parke Davis & Co., 79 Ill.2d 26, 33, 37 Ill.Dec. 304, 308, 402 N.E.2d 194, 198 (1980). The manufacturer's warnings are deemed adequate if they: are in a form likely to catch a physician's attention; contain language clearly conveying the dangers; and are intense enough to provoke a physician to proceed cautiously. Mahr v. G.D. Searle & Co., 72 Ill.App.3d 540, 562, 78 Ill.Dec. 624, 630, 390 N.E.2d 1214, 1230 (1979). The adequacy of warnings is a question for the trier of fact in Illinois. Id. Yet a manufacturer may obtain summary judgment if plaintiffs fail to "present competent medical expert testimony" countering the manufacturer's evidence of adequacy. White v. Wyeth Laboratories, Inc., Nos. 52108 & 52564, slip op. at 13 (Ohio App. July 30, 1987) [Available on WESTLAW, OH-CS database].
Plaintiffs argue that Wyeth has a duty to warn them as patient and parents. Complaint ¶ XXXV. The Illinois Supreme Court, however, recently held that a drug manufacturer's duty to warn extends only to the physician. Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, ___ _ ___, 111 Ill.Dec. 944, 513 N.E.2d 387 (1987). It is the physician's duty in turn to use his medical judgment to relay the manufacturer's warnings to his patients. Id. at ___, 111 Ill.Dec. 944, 513 N.E.2d 387.
The prescribing physician in this case, Dr. Ishtiaque Bangash, stated in a deposition that before vaccinating Joshua Martinkovic, he read Wyeth's package insert regarding its 1982 DTP vaccine. Memorandum in Support of Defendant Wyeth Laboratories Inc.'s Motion for Summary Judgment [Def. Mem.], Ex. B. [Bangash dep.] at 2-4. The insert stated in part:
Contraindications
....
Occurrence of any of the following signs, symptoms, or conditions following administration is a contraindication to further use of this product ...: fever over 103 *216 [degrees] F ...; convulsion(s) with or without accompanying fever; alterations of consciousness; focal neurologic signs; screaming episodes (also called screaming fits); shock; collapse; thrombocytogenic purpura.
The presence of an evolving or changing neurologic disorder is a contraindication to use....
Def. Mem., Ex. K (footnote omitted). See also Bangash dep. at 3-4. The insert proceeds to elaborate on these adverse reactions, stating, "The incidence of these reactions is unknown, but they seem to be exceedingly rare. Should such reactions occur, further immunization against pertussis is contraindicated." Def. Mem., Ex. K. The insert ends with a list of articles detailing the effects of the vaccine. Id.
The crucial question is whether the incidence of adverse reactions indeed seems exceedingly rare. Bangash, quoting an unidentified document, said in his deposition that the rate of convulsions was one in every 7,000 children. Bangash dep. at 18. And because he believed side effects to be so "rare," Bangash gave Joshua two pertussis vaccines after the first indication that the child had a seizure disorder. Id. at 2, 21-22, 53. Meanwhile, an article cited in Plaintiff's Memorandum in Opposition at 26 states that one study had found convulsions as infrequently as once in 800,000 immunizations. Cody, Baraff, Cherry, Marcy & Manclark, Nature and Rates of Adverse Reactions Associated with DTP and DT Immunizations in Infants and Children, 68 Pediatrics 650, 656 (1981). The authors' own study, however, revealed convulsions in one of every 1,750 children. Id. Relying on this last figure, the court in Smith v. Wyeth Laboratories, No. 84-2002, mem. op. at 23 (S.D.W.Va. Aug. 21, 1986), held Wyeth's package insert adequate as a matter of law. "Categorizing one in every seventeen hundred fifty as exceedingly rare may be a slight exaggeration," it wrote. "However, such a rate of complications can hardly be characterized as common." Id. at 22.
In this case, however, plaintiffs have submitted evidence that adverse reactions are more common. Dr. John Tilleli, a board-certified pediatrician and toxicologist, states in an affidavit that he has reviewed internal Wyeth documents that indicate the seizure rate is one in 300 injections. Tilleli affid., ¶ 17. That rate cannot be considered "exceedingly rare" as a matter of law. Thus plaintiffs have established that an issue of fact remains regarding what Wyeth knew or should have known of the incidence of adverse reactions when it prepared the 1982 package insert. Cf. Graham, supra (factual dispute remains on warning issue). This dispute in turn calls into question whether the package insert clearly conveyed the dangers of the vaccination or alerted Bangash to those risks. We deny Wyeth summary judgment on plaintiffs' claims that the warnings were inadequate and misrepresented facts.
Plaintiffs further allege that Wyeth should be held strictly liable for selling the vaccine "in a defective condition unreasonably dangerous to the user...." Restatement (Second) of Torts § 402A (1965); see Complaint ¶ XXXIV. Wyeth asserts as a defense comment k to § 402A, which bars recovery for injuries caused by products that are "unavoidably unsafe" and whose public utility outweighs the risks. Cf. Kirk, supra, 117 Ill.2d at ___ _ ___, 111 Ill.Dec. 944, 513 N.E.2d 387 (in Illinois, comment k can be applied in product liability suit against drug manufacturer). As a precondition to pursuing a comment k defense, however, Wyeth must establish that the vaccine was both "properly prepared, and accompanied by proper directions and warning." Restatement, supra, comment k. See Toner v. Lederle Laboratories, 112 Idaho 328, 335-37, 732 P.2d 297, 304-06 (1987); Lawson v. G.D. Searle & Co., 64 Ill.2d 543, 551, 1 Ill.Dec. 497, 501, 356 N.E.2d 779, 783 (1976). Since Wyeth has not established that its warnings were adequate, we need not determine whether the vaccine was unavoidably unsafe within the meaning of comment k.
Summary judgment would be inappropriate in any event, for Tilelli's affidavit and accompanying medical articles discussing safer alternatives sufficiently counter *217 Wyeth's evidence that any danger involved in using the vaccine was unavoidable. Compare Tilelli affid., ¶¶ 8-16 & Exs. B-D with Def. Mem., Ex. A. Cf. Graham, supra ("the decision as to whether a drug, vaccine, or any other product triggers unavoidably dangerous product exemption from strict liability design defect analysis poses a mixed question of law and fact"); Smith, supra, at 16 (denying summary judgment on comment k issue); Toner, 112 Idaho at 339, 732 P.2d at 308 (comment k issue requires "full evidentiary hearing"). But see Conafay v. Wyeth Laboratories, 84-85 Prod.Liab.Rep. (CCH) ¶ 10,487 at 27,903 (D.D.C.1985), remanded on other ground, 793 F.2d 350 (D.C.Cir.1986) (applying comment k without analysis). Wyeth's motion for summary judgment regarding plaintiffs' design defect claim is also denied.
Similarly, adequacy of packaging and production are elements of implied warranties of merchantability and fitness for particular purpose. Ill.Rev.Stat. ch. 26, ¶¶ 2-314, 2-315 (1985). Thus Wyeth is not entitled to summary judgment barring plaintiffs' breach of warranty claims either. Accord Graham, supra.
The reasonableness of Wyeth's conduct with regard to production of the vaccine and attendant warnings also is a key element of plaintiffs' negligence claims. See Restatement, supra, §§ 291, 388. Wyeth's asserted compliance with FDA requirements regarding the vaccine does not establish this element in favor of Wyeth: compliance is but one factor for the jury to consider in deciding the reasonableness of the manufacturer's conduct. Malek, 125 Ill.App.3d at 872, 81 Ill.Dec. at 237-38, 466 N.E.2d at 1039-40. See also Mahr, 72 Ill.App.3d at 561, 78 Ill.Dec. at 629, 390 N.E.2d at 1229 ("FDA ... compliance is only minimal and does nothing to abrogate or alter duties arising under common law."). We deny summary judgment on the negligence claims as well.
Finally, Wyeth contends that plaintiffs have not established that it possessed the state of mind necessary to justify imposition of punitive damages. Def. Mem. at 39-41. But we have concluded that a factual dispute exists regarding what Wyeth knew or should have known when it sold the vaccine. It would be premature to determine the applicability of punitive damages until this issue is decided.
ORDER
Defendant Wyeth Laboratories, Inc.'s motion for summary judgment pursuant to Fed.R.Civ.P. 56 is denied. Cause set for report on status/settlement and to set firmly for trial September 9, 1987 at 9:15 a.m. Trial counsel must appear.
| {
"pile_set_name": "FreeLaw"
} |
991 So.2d 867 (2008)
PITTS
v.
STATE.
No. 2D08-355.
District Court of Appeal of Florida, Second District.
September 19, 2008.
Decision without published opinion. Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
875 F.2d 857
Stovallv.City of N.Y.
NO. 89-7029
United States Court of Appeals,Second Circuit.
APR 11, 1989
1
Appeal From: S.D.N.Y.
2
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
380 F.2d 372
CAMPBELL SOUP COMPANY, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 23769.
United States Court of Appeals Fifth Circuit.
June 21, 1967.
George E. Seay, Dallas, Tex., Robert McWhirter, Paris, Tex., McWhirter & Braswell, Paris, Tex., Malone, Seay & Gwinn, Dallas, Tex., of counsel, for petitioner.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Frank H. Itkin, Atty., Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Nancy M. Sherman, Atty., N.L.R.B., Washington, D. C., for respondent.
Before BELL, GODBOLD, and DYER, Circuit Judges.
PER CURIAM:
1
This case comes to us on the petition of Campbell Soup Company to set aside the Board's order, and on the cross petition of the Board to enforce the order.
2
Campbell asserts that it was denied procedural due process in several respects by the Trial Examiner. We find no merit in these contentions. There is also ample support in the record considered as a whole to support the findings that Campbell violated § 8(a) (1) of the Act, 29 U.S.C.A. § 158(a) (1), by interrogating and threatening employees with regard to their union activity. The portion of the order relating to these violations will be enforced.
3
The order deals, in addition, with a company rule relating to the distribution of written or printed material in the plant and on company property, and with another rule governing the unauthorized solicitation for contributions, memberships or sales during company working hours. The Board concluded that these rules were overbroad in the area of union activity to the extent that they prohibited distribution or solicitation during a particular employee's non-working time, and in parts of the plant set aside for breaks, lunchrooms or rest rooms. Both rules were held invalid. Cf. Republic Aviation Corp. v. N.L.R.B., 1945, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372; Brewton Fashions, Inc. v. N.L. R.B., 5 Cir., 1966, 361 F.2d 8; N.L.R.B. v. Mira-Pak, Inc., 5 Cir., 1965, 354 F.2d 525; N.L.R.B. v. Southwire Company, 5 Cir., 1965, 352 F.2d 346; N.L.R.B. v. Plant City Steel Corporation, 5 Cir., 1964, 331 F.2d 511; N.L.R.B. v. Linda Jo Shoe Company, 5 Cir., 1962, 307 F.2d 355; and N.L.R.B. v. Walton Manufacturing Company, 5 Cir., 1961, 289 F.2d 177.
4
The rule relating to the distribution of written or printed material here is not a model of clarity but, nevertheless, it does not prohibit employees, on non-working time, from distributing material in behalf of a labor organization in non-working areas of the plant. This was the concern of the Board and is the proscription set out in the Board order with respect to the distribution rule. It follows that the part of the order which relates to this rule will not be enforced.
5
The other rule provides that there may be no "* * * Unauthorized solicitation for contributions, memberships or sales during Company working hours." This rule is vague and indefinite. It may reasonably be interpreted to mean that there may be no solicitation whatever during company working hours. An employee, as Campbell concedes, has the right to solicit his fellow employees during their non-working time even though the solicitation is during company working hours. Campbell asserts that the rule has not been otherwise applied but we cannot say that the Board's finding is without support. The order provides that Campbell may not prohibit its employees, during nonworking time, from soliciting their fellow employees to join a labor organization. To avoid vagueness in the order itself, we construe the non-working time language of this paragraph of the order as applying to the employee doing the soliciting and to the employee being solicited and, as such, it will be enforced.
6
Enforced in part; denied and set aside in part.
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Dependency of
No. 74950-1-1
B.M.C,
D.O.B.: 02/13/12, DIVISION ONE
33-
UNPUBLISHED OPINION ro
Minor Child.
FILED: January 23, 2017
IN."-
Trickey, A.C.J. — William Chambers appeals the order terminating his
parental rights to his 4-year-old son, B.M.C. Chambers challenges the
sufficiency of the evidence supporting the trial court's decision. Because
Chambers has been incarcerated throughout B.M.C.'s entire life, will remain so
for at least 18 months and possibly much longer, and given the absence of any
consistent contact between Chambers and B.M.C, substantial evidence supports
the trial court's findings, which in turn, support the order of termination. We
affirm.
FACTS
B.M.C. was born February 13, 2012. At that time, Chambers was
incarcerated. B.M.C. lived with his mother for about a week when she brought
him to Elizabeth Adams. Adams had been a foster grandmother to B.M.C's
mother during her own dependency.
Chambers has spent essentially his entire adult life in jail or prison.1 In
2009, at age 16, Chambers pleaded guilty to manslaughter, second degree
robbery, and possession of stolen property. In 2011, he was sentenced to 8
1Any factual findings referenced in the facts section of this opinion refer to unchallenged
findings, which are verities on appeal. In re Interest of J.F., 109 Wn. App. 718, 722, 37
P.3d 1227 (2001).
No. 74950-1-1/2
months in jail for first degree theft and sentenced to 21 months in prison for
second degree attempted assault. He was also convicted of hit and run-attended
vehicle and third degree theft. In 2013, Chambers pleaded guilty to being a felon
in possession of a firearm after he was found with a stolen assault rifle and 30
rounds of ammunition. He was sentenced to 72 months in a federal prison.
Chambers has been out of custody only two weeks during B.M.C's life.
During that two week period, when B.M.C. was about 7 months old, Chambers
saw him for the first time and spent some time with him.
In August 2013 B.M.C. was formally placed with Adams by court order. At
that time, Chambers was incarcerated in federal prison in California.
On April 23, 2014, Chambers agreed to a dependency and dispositional
order for B.M.C. The dependency order indicates that Chambers had two
parental deficiencies: uncertainty regarding B.M.C's paternity and a criminal
history which rendered him unavailable to perform parental obligations. The
dispositional order required Chambers to establish paternity, but nothing else.
Paternity testing established Chambers as B.M.C's biological father.
Chambers was incarcerated in federal prison throughout B.M.C's
dependency. While incarcerated, Chambers received multiple disciplinary
infractions. He was transferred from a medium security prison to a maximum
security prison due to fighting. He continued to be involved in fights and was
placed in a secured housing unit with 23 hours of daily lockdown. Due to
misconduct, Chambers lost phone and visitation privileges for significant periods
of time.
No. 74950-1-1/3
The Department of Social and Health Services (Department) filed a
petition to terminate Chambers' parental rights, and a hearing was held on the
petition on February 1 and 2, 2016.2 The trial court heard testimony from five
witnesses and admitted 35 exhibits. B.M.C. was almost 4 years old at the time of
trial.
Chambers is not expected to be released until April 2018, and if he fails to
accumulate good time credits, his release date could be as late as October 2018.
Chambers testified that, although he could be released to a halfway house before
his scheduled release date, this would not allow him to provide parental care to
B.M.C. He testified that he would be unable to care for B.M.C on a full time
basis until a year or two after his release from prison.
Chambers acknowledged that he had seen B.M.C. only once in California
when Adams brought him there. He also testified that B.M.C. had frequent
contact with Chambers' grandmother, Margaret Harris, and other members of
Chambers' family.
Adams testified that B.M.C. had lived with her during almost all of his life.
She testified that B.M.C. is doing well, has no special problems or needs, and is
bonded with her. She would like to adopt B.M.C.
The trial court found that, Chambers had not established a meaningful
relationship with B.M.C, was not currently capable of parenting B.M.C. and
would not be capable in the near future, and there were no services the
Department could have offered that would make Chambers available in B.M.C's
2The parental rights of B.M.C's mother were terminated earlier by default.
3
No. 74950-1-1/4
foreseeable future. It found that the Department had proved termination was in
B.M.C's best interest, and entered an order terminating Chambers' parental
rights.
Chambers appeals.
ANALYSIS
Washington courts use a two-step process when deciding whether to
terminate parental rights. In re Welfare of A.B., 168 Wn.2d 908, 911, 232 P.3d
1104 (2010); RCW 13.34.190(1). The State must prove the requirements set
forth in RCW 13.34.180(1) by clear, cogent, and convincing evidence:
(a) That the child has been found to be a dependent child;
(b) That the court has entered a dispositional order pursuant
to RCW 13.34.130;
(c) That the child has been removed . . . from the custody of
the parent for a period of at least six months pursuant to a finding of
dependency;
(d) That the services ordered under RCW 13.34.136 have
been expressly and understandably offered or provided and all
necessary services, reasonably available, capable of correcting the
parental deficiencies within the foreseeable future have been
expressly and understandably offered or provided;
(e) That there is little likelihood that conditions will be
remedied so that the child can be returned to the parent in the near
future. . . .
. . .; and
(f) That continuation of the parent and child relationship
clearly diminishes the child's prospects for early integration into a
stable and permanent home.
If a parent is incarcerated, the court must also
consider whether a parent maintains a meaningful role in his or her
child's life based on factors identified in RCW 13.34.145(5)(b);
whether the department or supervising agency made reasonable
efforts as defined in this chapter; and whether particular barriers
existed as described in RCW 13.34.145(5)(b) including, but not
limited to, delays or barriers experienced in keeping the agency
No. 74950-1-1/5
apprised of his or her location and in accessing visitation or other
meaningful contact with the child.
RCW 13.34.180(1 )(f). The trial court may consider the six factors identified in
RCW 13.34.145(5)(b) in assessing whether the incarcerated parent "maintains a
meaningful role in the child's life":
(i) The parent's expressions or acts of manifesting concern
for the child, such as letters, telephone calls, visits, and other
forms of communication with the child;
(ii) The parent's efforts to communicate and work with the
department or supervising agency or other individuals for the
purpose of complying with the service plan and repairing,
maintaining, or building the parent-child relationship;
(iii) A positive response by the parent to the reasonable
efforts of the department or the supervising agency;
(iv) Information provided by individuals or agencies in a
reasonable position to assist the court in making this assessment,
including but not limited to the parent's attorney, correctional and
mental health personnel, or other individuals providing services to
the parent;
(v) Limitations in the parent's access to family support
programs, therapeutic services, and visiting opportunities,
restrictions to telephone and mail services, inability to participate in
foster care planning meetings, and difficulty accessing lawyers and
participating meaningfully in court proceedings; and
(vi) Whether the continued involvement of the parent in the
child's life is in the child's best interest.
If the State meets its burden under RCW 13.34.180(1), it must then prove
by a preponderance of the evidence that termination is in the "best interests of
the child." RCW 13.34.190(1 )(b).
Once the trial court weighs the evidence and enters findings of fact and
conclusions of law, this court's review is limited to whether those findings of fact
are supported by substantial evidence and whether they support the trial court's
conclusions of law. In re Dependency of K.S.C, 137 Wn.2d 918, 925, 976 P.2d
No. 74950-1-1/6
113 (1999). In determining whether substantial evidence supports the trial
court's findings, this court will not weigh the evidence or make credibility
determinations. In re Welfare of C.B., 134 Wn. App. 942, 953, 143 P.3d 846
(2006). Unchallenged findings of fact are verities on appeal. In re Interest of
J.F.. 109 Wn. App. 718, 722, 37 P.3d 1227 (2001).
Chambers concedes that the first three statutory elements required for
termination were established at trial. RCW 13.34.180(1 )(a)-(c). However, he
challenges the trial court's findings that the State met its burden under RCW
13.34.180(1 )(d)-(f) in light of the additional factors relevant to incarcerated
parents. We disagree.
Necessary and Reasonably Available Services
Chambers challenges the sufficiency of the evidence supporting the trial
court's finding that the Department offered or provided all necessary services
capable of correcting his parental deficiencies within the foreseeable future as
required by RCW 13.34.180(1 )(d). "A service is necessary within the meaning of
the statute if it is needed to address a condition that precludes reunification of the
parent and child." In re Dependency of D.L.B., 188 Wn. App. 905, 920, 355 P.3d
345 (2015), affd, 186 Wn.2d 103, 376 P.3d 1099 (2016); see RCW
13.34.136(1 )(b)(i) ("services" are offered to parents "to enable them to resume
custody"). Although Chambers claims parenting and anger management classes
No. 74950-1-1/7
were necessary because these services could have "facilitated the legislative
goal of family reunification," we disagree.3
Chambers' identified deficiency was his history of committing criminal acts
which rendered him unable to perform his parental obligations. Neither anger
management nor parenting classes were ordered because neither would have
addressed Chambers' deficiency.
Chambers has failed to identify any services that were capable of
correcting his parental deficiencies in the foreseeable future. Accordingly,
sufficient evidence supports the trial court's finding that the Department offered
or provided all necessary services as required by RCW 13.34.180(1 )(d) because
any additional services would have been futile. D.L.B., 188 Wn. App. at 920
("The Department is not required to offer or provide services that would be
futile."); In re Welfare of M.R.H.. 145 Wn. App. 10, 25, 188 P.3d 510 (2008)
("Where the record establishes that the offer of services would be futile, the trial
court can make a finding that the Department has offered all reasonable
services.").
Current Unfitness to Parent B.M.C
To warrant termination of parental rights, "[t]he Department must prove
that the parent is currently unfit." D.L.B., 188 Wn. App. at 921. Chambers
challenges the trial court's finding that he is currently unfit to parent B.M.C. To
meet its burden to prove current unfitness, the State must prove that the parent's
"deficiencies prevent the parent from providing the child with 'basic nurture,
3 Mot. for Accelerated Review and Appellant's Br. at 15.
7
No. 74950-1-1/8
health, or safety.'" In re Welfare of A.B., 181 Wn. App. 45, 61, 323 P.3d 1062
(2014) (quoting RCW 13.34.020). At 4 years old, B.M.C needs a caregiver to
provide all of his basic needs, including food, shelter, clothing, medical care, and
education. Chambers cannot provide for any of these needs while incarcerated.
Thus, he is currently unfit to parent B.M.C. D.L.B.. 188 Wn. App. at 921.
Chambers claims that imprisonment alone is insufficient to show current
parental unfitness, but his citation to In re Seqo. 82 Wn.2d 736, 513 P.2d 831
(1973), in support of that contention is unavailing. In Seqo, the court made no
ruling as to whether incarceration renders a parent currently unfit. 82 Wn.2d at
740 (incarceration alone "does not necessarily justify an order of permanent
deprivation" (emphasis added)); cf In re Dependency of T.L.G., 126 Wn. App.
181, 203-04, 108 P.3d 156 (2005) (the court first considers whether a parent is
currently unfit and then asks whether the evidence supports a "finding under
RCW 13.34.180(1 )(e) that 'there is little likelihood conditions will be remedied so
that the child[] can be returned to the parent[] within the near future'" (footnote
omitted) (quoting RCW 13.34.180(1 )(e))). Because Chambers is unavailable to
provide for any of B.M.C's basic needs while he is incarcerated, he is currently
unfit.
Little Likelihood of Reunification
Chambers challenges the trial court's finding under RCW 13.34.180(1 )(e)
that "there is little likelihood that conditions will be remedied so that the child can
8
No. 74950-1-1/9
be returned to the parent in the near future."4 He claims he will be able to care
for B.M.C. when he is released from prison in late 2017 or 2018 because he and
B.M.C. can live with Harris. We disagree.
Chambers will not be released from prison until April 2018 and possibly
much later. In addition, he acknowledges that he will not be capable of caring for
B.M.C. until a year or more after he has been released from prison. Thus,
Chambers' own testimony supports the trial court's finding that B.M.C. will not
have a parent available to meet his daily needs until he is 6 or 7 years old, at
which point he will have never lived with his father.
What constitutes "near future" depends on the age of the child. T.L.G..
126 Wn. App. at 204. B.M.C. was almost 4 years old at the time of the
termination hearing, and taken from his point of view, the near future is
significantly less than the two years Chambers had remaining on his prison term.
See, e.g., In re Dependency of T.R., 108 Wn. App. 149, 165-66, 29 P.3d 1275
(2001) (one year is not foreseeable or near future for a 6-year-old child); In re
Dependency of A.W., 53 Wn. App. 22, 32, 765 P.2d 307 (1988) (one year not in
the near future of 3-year-old child). To the contrary, as noted by the Court
Appointed Special Advocate, Cassie Short, from B.M.C's perspective, waiting
another two years until Chambers was released would be like waiting "a
lifetime."5
4 Mot. for Accelerated Review and Appellant's Br. at 16.
5 Report of Proceedings (RP) at 162.
No. 74950-1-1/10
No Meaningful Relationship Existed Between B.M.C and Chambers
Because Chambers was incarcerated at the time of trial, the trial court had
to consider whether Chambers could maintain a meaningful role in B.M.C's life
and whether the Department made reasonable efforts to help him remedy his
deficiencies.6 See In re Parental Rights to M.J., 187 Wn. App. 399, 408, 348
P.3d 1265 (2015). In deciding whether Chambers maintained a meaningful role
in B.M.C's life, the trial court had to consider the factors identified in RCW
13.34.145(5)(b). See In re Dependency of A.M.M., 182 Wn. App. 776, 787, 332
P.3d 500 (2014) (trial court's assessment of RCW 13.34.180(1 )(f) in cases
involving incarcerated parent must be "informed by evidence presented and
conclusions reached regarding the six factors contained in RCW
13.34.145(5)(b)"). Even though the trial court is statutorily mandated to consider
the factors set forth in RCW 13.34.145(5)(b), these factors do not compel any
conclusion regarding termination of parental rights. In re Welfare of E.D., 195
Wn. App. 673, 381 P.3d 1230 (2016).
After reviewing the factors contained in RCW 13.34.145(5)(b), the trial
court concluded that Chambers "ha[d] not had a meaningful role in [B.M.C.j's
life."7 Chambers challenges this finding, claiming that he has built a relationship
with B.M.C. He notes that he has had several in-person visits with B.M.C, talked
6 In Sego, the court identified certain factors to be taken into account when determining
an incarcerated parent's fitness, including the nature of the crime, the victim, and the
parent's conduct before and during incarceration. 82 Wn.2d at 740. Unchallenged
findings establish that the trial court considered all of the factors set forth in Sego.
Chambers does not challenge these findings on appeal.
7 Clerk's Papers (CP) at 160 (Finding of Fact (FF) 2.29).
10
No. 74950-1-1/11
to B.M.C. on the phone, and has sent cards, letters, and pictures. He claims that
through these efforts, he maintained a bond with B.M.C.
The trial court reviewed Chambers efforts, but concluded that they did not
show that Chambers had a meaningful role in B.M.C's life. Substantial evidence
supports the trial court's conclusion.
Unchallenged finding of fact 2.21 establishes that Chambers has had one
face-to-face visit with B.M.C. in the past three years and that was two years ago;
and that in the past six months, Chambers was only able to call B.M.C. once. In
addition, Adams testified that Chambers' phone calls were inconsistent, and he
went eight or nine months without any calls to B.M.C. She also testified that
B.M.C. never asked to speak with Chambers, and it was unclear whether B.M.C.
could even "put the voice with a face in his mind."8 Short testified that she did
not believe B.M.C. knew who his father is, the phone calls were not meaningful to
him, and there was no bond on the part of B.M.C. with his father.
Unchallenged finding of fact 2.17 acknowledges that Chambers' minimal,
intermittent contact with B.M.C. made it difficult for Chambers "to have a
meaningful relationship" with B.M.C9 It also establishes that Chambers' lack of
contact with B.M.C. resulted from his own conduct—misbehavior in prison—not
from any action or inaction on the part of the Department.
Accordingly, substantial evidence supports the trial court's finding that
Chambers "ha[d] not had a meaningful role in [B.M.C]'s life" and there are "no
8 RP at 60-61.
9 CP at 158.
11
No. 74950-1-1/12
efforts the Department can make that would provide services to [Chambers] that
can correct his deficiency of being unable to provide parenting responsibilities."10
Continuation of the Parent/Child Relationship
Chambers challenges the trial court's finding that continuation of the
parent-child relationship clearly diminished B.M.C's prospects for an early
integration into a permanent and stable home because his relationship with
B.M.C. was not endangering his placement. See RCW 13.34.180(1 )(f). He
contends that there is no indication Adams will cease caring for B.M.C. before
Chambers is released.
The main focus of this factor is whether the parent-child relationship
impedes the child's prospects for integration. K.S.C, 137 Wn.2d at 927. The
Department can satisfy RCW 13.34.180(1 )(f) by showing that "prospects for a
permanent home exist but the parent-child relationship prevents the child from
obtaining that placement." In re Welfare of R.H.. 176 Wn. App. 419, 428, 309
P.3d 620 (2013).
It is undisputed that prospects for a permanent home exist because
Adams desires to adopt B.M.C. Evidence that the parent-child relationship is
preventing B.M.C from a permanent placement includes Department Social
Worker Diane Drobinski's testimony that B.M.C's relationship with Chambers
created a barrier which prevented adoption from occurring, and Adams'
testimony that she does not wish to enter into guardianship.
10CPat160(FF2.29).
12
No. 74950-1-1/13
Chambers again argues that he has maintained a meaningful role in
B.M.C's life despite incarceration, but as previously discussed, substantial
evidence showed otherwise. Thus, substantial evidence supports the court's
finding that continuation of the parent-child relationship impeded B.M.C's
prospects for early integration into a stable and permanent home because it
prevented Adams from adopting B.M.C.
Termination was in B.M.C's Best Interest
Chambers challenges the trial court's determination that termination is in
B.M.C's best interest. We accord broad discretion to the trial court's best
interest determination and its decision receives great deference on review. In re
Dependency of J.A.F., 168 Wn. App. 653, 670, 278 P.3d 673 (2012). Substantial
evidence supporting the trial court's finding on this issue includes: (1) Adams'
testimony that B.M.C. is doing well in her care and has no problems or special
needs; (2) Drobinski's testimony that B.M.C. does not have a meaningful
relationship with Chambers and it is in B.M.C's best interest to be adopted by
Adams; and (3) Short's testimony that B.M.C. considers Adams to be his parent
and that moving B.M.C. from his current placement would be a "huge disservice"
and "very harmful" to him.11
Chambers contends that termination of his parental rights is not in
B.M.C's best interest because it will sever B.M.C's relationship with Harris and
other family members. However, testimony at trial indicates that Adams and
Harris have an amicable relationship, and there is no reason to think Adams will
11 RP at 160-63.
13
No. 74950-1-1/14
act in a way that is contrary to B.C's best interest by refusing to foster
relationships that are beneficial to him.
Affirmed.
I^\c/t<*y AC3
WE CONCUR:
/jjtj£t2£e(l,r kfrxJ>
14
| {
"pile_set_name": "FreeLaw"
} |
268 F.Supp. 416 (1965)
BLAZON, INC., Plaintiff,
v.
DeLUXE GAME CORP., Defendant.
No. 65 Civ. 697.
United States District Court S. D. New York.
May 11, 1965.
*417 *418 *419 Davis, Hoxie, Faithfull & Hapgood, New York City, Ely, Goldrick & Flynn, Cleveland, Ohio, Albert L. Ely, Jr., Cleveland, Ohio, of counsel, for plaintiff.
Arnold Fein, New York City, for defendant.
MEMORANDUMOPINION
TENNEY, District Judge.
Plaintiff moves herein for a preliminary injunction to restrain defendant from further infringing plaintiff's copyrighted work. The complaint as drawn avers a cause of action for copyright infringement and for unfair competition. The alleged infringing item is defendant's hobby horse named "Thunder" which plaintiff asserts infringes upon its *420 copyrighted hobby horse "War Cloud". Jurisdiction of this Court is invoked under Section 1338(a) and (b) of Title 28 of the United States Code (28 U.S.C. § 1338(a), (b) (1962).
Plaintiff's complaint is predicated on the assumption that the horse displayed in defendant's showroom and seized pursuant to a writ of seizure dated March 8, 1965, is the alleged infringing item. It is clear, however, that the seized and displayed item is in fact plaintiff's own horse, admittedly bought by defendant and displayed by it in its showroom.
It is further not disputed that defendant repainted plaintiff's item and in the process painted over the copyright notice, and, in addition, it appears that plaintiff's trademark was replaced with its own. While that much is not disputed, there is much dispute as to the reasons for defendant's actions, the use to which the item was put, and statements made by defendant's salesmen with respect to the item.
Insofar as the horse seized and displayed is concerned, it is clear that plaintiff cannot, based on that use of the item, ground an action for copyright infringement.
It is clear that before there can be infringement there must be both an averment and some proof of copying (Affiliated Enterprises, Inc. v. Gruber, 86 F. 2d 958 (1st Cir. 1936); see Nimmer, Copyright § 137.1 (1963)), and as a matter of logic there can be no copying in the case at bar where the horse seized and alleged to copy "War Cloud" is in fact "War Cloud", nor is there an infringement upon any of plaintiff's other protected rights by reason of the display of the copyrighted work. For a full discussion of possible rights protected, see Appendix "A", hereto.
Furthermore, if it can be held that the display of "War Cloud" by defendant constituted a copying of "War Cloud" and/or a violation of any other rights, and therefore an infringement of the copyright, there is no showing of any harm, much less irreparable harm, by denying the motion for the injunction. While it cannot be doubted that after a prima facie showing is made by plaintiff of copyright validity and infringement, plaintiff need not make a detailed showing of danger of irreparable harm (Rushton Co. v. Vitale, 218 F.2d 434 (2d Cir. 1955)), nonetheless, as Professor Nimmer points out, "[t]he Court may nevertheless deny a preliminary injunction if the plaintiff's damages appear to be trivial [Consumers Union of United States, Inc. v. Hobart Mfg. Co., 189 F. Supp. 275 (S.D.N.Y.1960)] * * * or possibly if the plaintiff fails to indicate a sufficient likelihood of immediate irreparable injury to satisfy the granting of such relief. [See Platt & Munk Co. Inc. v. Republic Graphics, Inc., 218 F. Supp. 262 (S.D.N.Y.1962), modified, 315 F.2d 847 (2d Cir. 1963)]". Nimmer, supra, § 157.2 at 698. In the case at bar the model of "War Cloud" that was displayed has been seized, and accordingly there can be no further infringement by its continued display. In addition, there is no indication nor averment by plaintiff that defendants will buy another "War Cloud" and display it in place of the seized horse.
However, if we broadly construe plaintiff's complaint, there can be read therein an alternative but more substantial allegation of copyright infringement. For plaintiff asserts that defendant's hobby horse "Thunder" infringes plaintiff's copyrighted horse "War Cloud" and this can be construed as averring that "Thunder", whether it be the horse seized by the Marshal, or the horse displayed in photographs furnished by defendant's counsel to the Court and to plaintiff, infringes on "War Cloud". It is admitted that the horse in the photographs was also on display in defendant's showrooms. Accordingly, we must now ascertain whether "Thunder" as portrayed in the picture is an infringing work.
Of necessity, the first item to be decided is the validity of plaintiff's copyright.
*421 While defendant questions whether a hobby horse is entitled to copyright protection since all hobby horses flow from an effort to simulate real horses (Gurbst Affidavit, Mar. 29, 1965, at 12), it is no longer subject to dispute that statues or models of animals or dolls are entitled to copyright protection, see e. g., F. W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162 (1st Cir. 1951) (model of a dog in a "show" position); Rushton Co. v. Vitale, 218 F.2d 434 (2d Cir. 1955) (chimpanzee); Ideal Toy Corp. v. Adanta Novelties Corp., 223 F.Supp. 866 (S.D.N.Y. 1963) ("Tammy" doll), and accordingly a model horse, per se, is copyrightable.
Plaintiff has annexed to his complaint the registration certificate covering "War Cloud". Section 209 of the Copyright Act (17 U.S.C. § 209 (1952)) provides that the registration certificate issued by the copyright office "shall be admitted in any court as prima facie evidence of the facts stated therein." This in effect means that a plaintiff, in a copyright infringement action based on a statutory copyright, is entitled to a prima facie presumption of originality since among the facts to be set forth in the certificate is a statement of the author of the work and "authorship presumptively connotes originality." Remick Music Corp. v. Interstate Hotel Co., 58 F.Supp. 523, 531 (D.Nebr.1944), aff'd, 157 F.2d 744 (8th Cir. 1946); see Drop Dead Co. v. S. C. Johnson & Son, Inc., 326 F.2d 87, 92 (9th Cir. 1963), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 177 (1964).
Defendant does not directly attack the originality of "War Cloud." At a number of points in the affidavits submitted in opposition to the motion, defendant does infer that perhaps "War Cloud" is based on one of its (defendant's) prior hobby horse models, "Flash". Thus, for example, in the Affidavit of Herbert Gurbst, Vice President of defendant corporation (dated March 25, 1965), he avers: "During the years 1963 to 1964 plaintiff has copied exactly from defendant and sold a number of lines of hobby horses. Plaintiff may very well have based its `War Cloud' model, subject of this motion, on copies of defendant's models." Id. at 12. (Emphasis added.)
At the hearing, defendant produced prior models of its hobby horse line and compared them with other models of plaintiff's line, attempting to show that plaintiff had on prior occasions copied its models from defendant's. However, no specific attempt was made demonstrating how by reason of the copying of these other models, plaintiff had copied "War Cloud" as well. A similar veiled inference appears at page 13 of the same Gurbst Affidavit wherein he asserts that "[u]nder these circumstances [one of defendant's former employees having been hired by plaintiff] it is not surprising that plaintiff's `War Cloud' has the characteristic appearance of defendant's `Flash'.[1] (See Affidavit of Milton Henry, at page 3. "It is also immediately evident on visual inspection that plaintiff modeled its `War Cloud' after defendant's `Flash'.")
Is this a sufficient attack on the originality of "War Cloud"? I think not.
"[W]ith respect to the issue of plaintiff's originality upon introduction of the certificate of registration * * * the burden shifts to the defendant to prove that plaintiff copied from a prior source and hence was not original. Mere denial by the defendant, unsupported by evidence, is not sufficient to overcome the prima facie presumption of plaintiff's originality." Nimmer, supra, at § 139.2 at 602. And "[p]roof that plaintiff copied from prior works should involve the same elements as are required to establish copying by the defendant, i. e., access and similarity." Id. at 602, n. 235.
The fact that plaintiff took a matter admittedly in the public domain, (i. e., a horse) does not in and of itself *422 preclude a finding of originality, since plaintiff may have added unique features to the horse, enlarged it and made it sufficiently dissimilar from defendant's horse as to render it copyrightable to plaintiff. See Doran v. Sunset House Distrib. Corp., 197 F.Supp. 940, 941 (S.D. Calif.1961), aff'd, 304 F.2d 251 (9th Cir. 1962) (Santa Claus); Alva Studios, Inc. v. Winninger, 177 F.Supp. 265 (S.D. N.Y.1959) (Replica of Rodin's "Hand of God" in a reduced size); and cases cited supra at 421.
In addition, the thrust of defendant's affidavits, while seemingly discussing originality, are directed more to the matter asserted in its counterclaim (i. e., that one of defendant's former employees transmitted trade secrets to plaintiff, which presumably assisted it in the production of "War Cloud" and that, accordingly, a trust should be impressed on plaintiff's copyright), rather than to an attack on the originality per se of "War Cloud" insofar as it relates to the question of copyright. Accordingly, the affidavits will be so construed on the instant motion.
Thus in view of the failure of proof by the defendant, and in view of the disposition of the within motion, for the purposes of the present proceeding the Court will assume the originality of "War Cloud" and that plaintiff's copyright is valid and subsisting.
While copyright validity has thus been assumed, copyright infringement cannot also be assumed. Plaintiff must show copying to sustain his burden of proof. Direct evidence of copying is rarely available, since the cases are few wherein there is direct testimony by a witness that he saw defendant copying plaintiff's item. "Therefore copying is ordinarily established indirectly by the plaintiff's proof of access and substantial similarity." Nimmer, supra, § 141.2 at 613.
On the issue of access, it is admitted by defendant that it bought "War Cloud" and displayed it. However, there is no proof as to when "War Cloud" was bought and, more importantly, as to what stage of development "Thunder" was in when "War Cloud" was bought by defendant, allegedly to demonstrate merely how a hobby horse would look in defendant's unique frame, since the model of "Thunder" on display next to "War Cloud" was too heavy to be mounted in the frame.
On the other hand, plaintiff avers that it first published "War Cloud" on March 17, 1964, a full year prior to its display by defendant, and from this fact it may be presumed that, at any point in that year, defendant had an opportunity to view plaintiff's item. There is a conflict of authority as to the burden plaintiff must carry to show access. Some courts have defined access as the actual viewing and knowledge of work by the person who composed defendant's work. See Nimmer, supra, at § 142.1 n. 35, and cases cited therein. These cases reason that the opportunity to view creates an inference of access which in turn creates an inference of copying. Professor Nimmer, however, in his treatise, submits that the proper test to be applied, and the more just test in terms of plaintiff's burden of proof, is to regard a "reasonable opportunity to view as access in itself and not merely as creating an inference of access." Id. at 615 (see id. at n. 39.) In view of the latter more liberal test, I am of the opinion that access has prima facie been shown. Accordingly, we now proceed to the more substantial aspect of plaintiff's case, upon which it has not sustained its burden, namely, proof of substantial similarity. See, generally, Nimmer, supra § 143, and its subdivisions.
Defendant asserts, and it is uncontradicted, that it has not produced a hobby horse named "Thunder". The only thing that has been produced, as of this point, is a plaster model of "Thunder" weighing approximately one hundred pounds which, due to its size and weight, has not been produced in court.[2]*423 It has, however, produced photographs of the plaster model. "War Cloud" was produced in court and the Court has in its possession photographs of "War Cloud" annexed to the writ of seizure.
In approaching the question of substantial similarity it must be borne in mind that the figure is a horse and that, accordingly, since both items are copies of horses, some similarity is inevitable. See Ideal Toy Corp. v. Adanta Novelties Corp., 223 F.Supp. 866, 868 (S.D.N.Y. 1963).
It is a well established rule of law that a copyright on a work of art does not protect a subject (i. e., a horse) but only the treatment of a subject. See, e. g., Stephens v. Howells Sales Co., 16 F.2d 805, 808 (S.D.N.Y.1926). This proposition was elaborated by Justice Holmes in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 249-250, 23 S.Ct. 298, 47 L.Ed. 460 (1903) wherein with respect to cromolithographs of a circus scene prepared for advertising purposes, he said:
"But even if they had been drawn from the life, that fact would not deprive them of protection. The opposite proposition would mean that a portrait by Velasquez or Whistler was common property because others might try their hand on the same face. Others are free to copy the original. They are not free to copy the copy. Blunt v. Patten; 2 Paine 397, 400. Fed.Cas.No.1,580. See Kelly v. Morris, L.R. 1 Eq. 697; Morris v. Wright, L.R. 5 Ch. 279. The copy is the personal reaction of an individual upon nature. Personality always contains something unique. It expresses its singularity even in handwriting, and a very modest grade of art has in it something irreducible, which is one man's alone. That something he may copyright * * *."
By reason of the fact that defendant has not as yet made any infringing items, save the plaster model, and the inability to produce it in court, I must weigh the question of similarity based on the photographs submitted. While Mr. Chapman, Treasurer of plaintiff corporation, in his affidavit in support of the motion (dated March 15, 1965) lists ten features common to both "War Cloud" and what he thought was "Thunder", it seems clear that he in fact was comparing "War Cloud" to the seized "War Cloud", for in his deposition, a part of which is set forth in defendant's brief at page 5, he states that he did not examine the plaster model of "Thunder" on display in defendant's showroom. In opposition, defendant sets forth some sixteen differences which it contends are substantial between "Thunder" and "War Cloud".
The closest case that I have been able to find raising a somewhat similar problem is F. W. Woolworth Co. v. Contemporary Arts, Inc., 193 F.2d 162 (1st Cir. 1951), wherein the copyrighted item was a model of a cocker spaniel in a "show" position.
In that case, the Court took particular note of the proportion, form, contour, configuration and conformation of the model rather than the coloring and standard stylized position of a dog in that particular stance as being matters of importance insofar as the distinctness of the copyrighted item was concerned.
On the issue of infringement, the Court stated as follows:
"There is ample evidence in the record that the plaintiff's dog and the Woolworth one embody the identical intellectual or artistic conception of a dog of the breed involved in show attitude. Moreover, this evidence is strongly supported by visual comparison. It is true that a dog with short hair on the head, neck and upper two thirds of the body is represented in the plaintiff's statuettes, whereas the dog in the Woolworth model is represented as having long hair on the *424 body and neck. This difference, however, is unimportant, for on ample evidence the court below found that the representation of long hair on the Woolworth model could readily have been accomplished, and was in fact accomplished, by etching in wavy lines on a plaster master model made from one of the plaintiff's plaster statuettes. What is highly, if not conclusively, significant of copying is the fact that the plaintiff's and the defendant's statuettes are identical in proportion, and so far as we can see with inexpert eyes in conformation, and furthermore the configuration of the curls and folds of the long hair represented on the under body and the feathering represented on the legs of the plaintiff's statuette are shown as asymmetrical, and the defendant's statuette shows the identical lack of symmetry in these respects. Thus there is ample evidence that one model was copied from the other." Id. at 165-166.
In addition, in that case there was expert testimony on the issue of conformation.
In contrast, in the case at bar, plaintiff has relied on affidavits rather than live proof. There has been no expert testimony. The comparison of the animals of necessity must be done on the basis of photographs. Plaintiff's affidavits highlighting the similarity between the hobby horses in fact set forth the similarity between two models of the same horse.
Does the Court have enough before it upon which to invoke the extraordinary remedy of a preliminary injunction? Bearing in mind the subject matter involved[3] and the fact that in this area the line dividing originality, similarity and copying is thin at best, I think not. See Ideal Toy Corp. v. Adanta Novelties Corp., 223 F.Supp. 866, 868 (S.D. N.Y.1963); cf., Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir. 1962) (Dissenting opinion per Clark, J.).
"The granting of a preliminary injunction `is an exercise of a very far-reaching power, never to be indulged in except in a case clearly demanding it.' * * * `It is a cardinal principle of equity jurisprudence that a preliminary injunction shall not issue in a doubtful case. Unless the court be convinced with reasonable certainty that the complainant must succeed at final hearing the writ should be denied.'" Nadya, Inc. v. Majestic Metal Specialities, Inc., 127 F. Supp. 467 (S.D.N.Y.1954).
Since I do not have sufficient information before me upon which to make the requisite findings, I am constrained to hold that plaintiff has not sustained its burden of proof and, accordingly, the motion for a preliminary injunction is denied.
I next proceed to plaintiff's claim of unfair competition.
Accepting the factual averments in the affidavits of plaintiff as true (as will be noted, infra, they are very hotly disputed), the following picture emerges.
Plaintiff asserts that defendant bought one of plaintiff's horses, painted it over thereby erasing plaintiff's copyright notice, changed the trademark thereon to defendant's trademark and thereafter displayed the horse in its showrooms and solicited orders on it, representing that the horses to be delivered were the same as the model displayed.[4] (Affidavit of Patrick J. Flaherty, Mar. 29, 1965.)
*425 While the propriety of these actions, if proven, may be subject to question, they do not constitute unfair competition, and even assuming, arguendo, that such a cause of action were made out, the facts are so in dispute that the grant of a preliminary injunction under these circumstances would be an improper exercise of this Court's equity powers.
It appears that what is involved herein is a "reverse" palming-off situation. In the usual case a defendant presents its product in such a way as to give the impression that it is plaintiff's product, thus palming off its product as that of another. Midwest Plastics Corp. v. Protective Closures Co., 285 F.2d 747 (10th Cir. 1960). In the case at bar, defendant has reversed the sequence and palmed off plaintiff's product as its own. Is this an actionable wrong?
It has now been definitively held by the Court of Appeals for this Circuit that state law (in this case New York law) governs an unfair competition claim resting upon the doctrine of pendent jurisdiction alone, as well as a claim resting both on pendent jurisdiction and diversity of citizenship. Flexitized, Inc. v. National Flexitized Corp., 335 F.2d 774, 780-781 (2d Cir. 1964).
In Pic Design Corp. v. Sterling Precision Corp., 231 F.Supp. 106 (S.D.N.Y. 1964), defendant bought certain items from plaintiff through an intermediary, removed their identifying markings, replacing them with its own, and resold the items to the customer.[5] Id. at 113.
Chief Judge Ryan initially limited International News Service v. Associated Press, 248 U.S. 215, 235, 39 S.Ct. 68, 63 L.Ed. 211 (1918) to its particular facts, thereby following that line of authority which has been less than enthusiastic with the broad sweep of that decision.[6]
"It is to be noted, however, that the International News Service case has not been given the scope and effect such language [at page 235 of 248 U.S., 39 S.Ct. 68 and quoted at page 113 of Judge Ryan's decision] would seem to demand. Subsequent cases exhibit a lack of judicial enthusiasm for a full extension of this doctrine; e. g., Speedry Products Inc. v. Dri Mark Products, Inc., 2 Cir., 271 F.2d 646 (1959)." 231 F.Supp. at 113; see Handler, Product Simulation: A Right or a Wrong, 64 Colum.L.Rev. 1183 (1964).
Then, in reliance on Mastro Plastics Corp. v. Emenee Indus., Inc., 16 A.D.2d 420, 228 N.Y.S.2d 514, 517 (1st Dep't), aff'd without opinion, 12 N.Y.2d 826, 236 N.Y.S.2d 347, 187 N.E.2d 360 (1962), Chief Judge Ryan held that "[w]e are unable to find any actionable wrong at common law under the facts of this case insofar as defendants' actions in purchasing items from plaintiff for resale are concerned." 231 F.Supp. at 114. [The Court then proceeded to discuss, on the facts presented, a possible violation of the Lanham Act, 15 U.S.C. § 1125(a) (1963).]
In the Mastro Plastics case, supra, the New York courts denied any common law right of action in a case where a defendant bought bongo drums from plaintiff, removed plaintiff's trademarks and identifying characteristics, replaced them with its own and used them as a sample to the trade of its own brand of bongos. As is obvious, the facts are almost indistinguishable from those in the *426 case at bar. The Court, in denying relief, held as follows:
"Title to these chattels which plaintiff had put on unrestricted general sale and for which defendant paid plaintiff's price had passed to defendant. By reason of such title defendant has as much right to sell and use them for the purposes of sale as it would an exact reproduction of the plaintiff's drums made by itself. A workable distinction between a right to use in the channels of trade an original to which title had been acquired and an exact reproduction is not easily drawn.
In removing the plaintiff's trademark from the chattels to which defendant had acquired title, defendant did precisely what it should have done to avoid unfair competition before using them as samples in trade, because, although its right to resell or use for the purposes of trade the drums made by plaintiff is clear, it had no such right to use the plaintiff's trade-mark in furtherance of its own trade or promotion (cf. Lanvin Parfums Inc. v. Le Dans, Ltd., 9 N.Y.2d 516, 215 N.Y.S.2d 257, 174 N.E.2d 920; Bourjois Sales Corp. v. Dorfman, 273 N.Y. 167, 7 N.E. 2d 30, 110 A.L.R. 1411).
Placing its own trade-mark on the drums is quite a different thing from misusing the plaintiff's trade-mark. If defendant has the right to reproduce and sell reproductions of plaintiff's drums it had a correlative right to put its trade-mark on the chattel it proffered to the public; and, indeed, the reverse situation exists from that which would have occurred if the defendant had left plaintiff's trade-mark on the drums.
The use of its own trade-mark amounted to a representation that defendant and not the plaintiff stood behind the sample chattel and behind the chattels bought in reliance on the sample. This is the antithesis of palming off and the plaintiff demonstrates no actionable rights in the defendant's use of its own trade-mark on a product it bought to use in promoting its own products." Id. 228 N.Y.S.2d at 517.
On appeal, the Court of Appeals affirmed the lower court's decision but granted plaintiff leave to serve an amended complaint based on 15 U.S.C. § 1125(a) (1963) for a preliminary injunction.
While these decisions are persuasive, I would prefer to rest my denial of the motion not on the absence of a cause of action for unfair competition, but rather on an insufficiency of proof. In the Mastro case, for example, the Court's opinion was based in part on the fact that plaintiff had not secured a patent or copyright on the drums, and accordingly "[w]hat it [defendant] could thus reproduce [without fear of copyright or patent infringement] and sell it could use as samples of what it would produce and sell." 228 N.Y.S.2d at 516. Similarly, in the Pic case, supra, there was no discussion as to whether the items bought were covered by a patent.
In addition, in Midwest Plastics Corp v. Protective Closures Co., 285 F.2d 747 (10th Cir. 1960), cited above, one of the averments was that the defendants had bought quantities of the plaintiff's products and resold them to its customers. Id. at 749. And while the thrust of the opinion revolves around the normal palming-off situation, at least one of the cited cases involved reversed palming off, and the Court cited the following language in its opinion: "`Deceit is the basis of an action of this character. The principle underlying unfair trade practice cases is that one manufacturer or vendor is palming off his merchandise as that of another * * * or that he is vending the products of another as his own * * *.' Reynolds & Reynolds v. Norick, 10 Cir., 114 F.2d 278, 281." Id. at 750. See Pic Design Corp. v. Sterling Precision Corp., supra, 231 F.Supp. at 113.
Moreover, while International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918) has been limited, there is language therein particularly applicable to the instant case. 248 *427 U.S. at 241-42, 39 S.Ct. 68. The scope of the wrong was similarly expressed in the opinion of Mr. Justice Holmes, who disagreed not as to the impropriety of the action nor as to the necessity of some relief, but rather as to the scope of the relief granted. 248 U.S. at 247, 39 S.Ct. 68. See also A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 531-532, 55 S.Ct. 837, 79 L.Ed. 1570 (1935).
Accordingly, a review of the sharp conflict as to the facts is warranted.
Plaintiff's position, as set forth above, is that defendant's sales representative, one Irving Sircus, quoted prices on the seized "War Cloud" and was accepting orders on it. (See Affidavit of Patrick J. Flaherty, Mar. 29, 1965; Affidavit of Thomas E. Chapman, Mar. 29, 1965.)
In opposition, defendant submits the affidavit of Herbert Gurbst, its Vice President, wherein he asserts that "Defendant's plaster model of its `Thunder' horse so displayed weighs approximately 100 pounds, much too heavy to be placed in the metal frames in which hobby horses usually weighing 10 to 15 pounds are displayed, sold and used by children. Such a weight might cause the frame to collapse. In any event, it would make it impossible to demonstrate the movement of defendant's hobby horse and its position in relation to the frame. * * * Defendant did not yet have a polyethylene sample of its `Thunder' model for display but wished to be able to demonstrate the size and position of a polyethylene horse, the size of its `Thunder' model and its position in defendant's unique frame." (Gurbst Affidavit, March 29, 1965, at 3-4.) Accordingly, the plaintiff's model "War Cloud" was purchased and painted over and was placed adjacent to the plaster model of "Thunder".
Gurbst further avers as follows:
"I was present during the Toy Fair and engaged in selling on behalf of defendant. I also conducted sales meetings and instructed defendant's sales personnel and was present during much of their selling. Prospective customers were shown defendant's plaster model and told that this was the hobby horse which defendant would manufacture and sell. The only reference made to the plaintiff's hobby horse modified and set in defendant's frame as aforesaid was to indicate to prospective customers the mode and manner in which defendant's horse would appear in the frame. * * *
* * * Plaintiff's horse modified by defendant for demonstration purposes was not offered for sale by defendant." Id. at 4-5.
Similarly, Irving Sircus, the individual who is accused of having taken the orders on "War Cloud" initially, asserted in his affidavit that he did not know Flaherty, to whom the representations were allegedly made, and did not meet him on the day alleged, and in support submits his appointment sheet for that date. He further averred that
"[i]n accordance with the instructions of defendant's Vice President, Herbert S. Gurbst, at a sales meeting, the Saturday prior to March 3, 1965, in attempting to sell defendant's `Thunder' model hobby horse, I demonstrated defendant's plaster model exhibited in defendant's showroom. I told the customers that this was the hobby horse which defendant would produce and sell.
The only reference I made to plaintiff's hobby horse `War Cloud', exhibited nearby defendant's plaster model, in defendant's unique frame, was to say that defendant's horse would fit and ride in defendant's frame substantially in the same manner. At no time did I state that defendant was selling plaintiff's `War Cloud' or that defendant's model was a `knock-off' of plaintiff's `War Cloud', as alleged by Mr. Flaherty. I did not say to anyone, in reference to plaintiff's horse, `This is our new modelisn't it a beauty,' as asserted by Mr. Flaherty. Nor did I ever state to him or anyone else that plaintiff's horse was `our new model' or `our new horse.'
At all times, I made clear to the customers, and to all who questioned me, *428 that the horse to be manufactured and sold by defendant was in its `Thunder', to be modeled after the plaster model exhibited in the showroom." (Sircus Affidavit, April 9, 1965, 2-3.)
There is similar conflict as to whether the plaster model of "Thunder" was displayed adjacent to or even in the same area as "War Cloud". (Compare Chapman Affidavit, March 30, 1965, at 2, with Gurbst Affidavit, March 29, 1965, at 5.)
Based on the sharp conflict of facts in the affidavits, it is impossible to even attempt to ascertain whether, assuming that certain actions, if proved, would constitute actionable unfair competition, the horse was put to such an improper use. In view of this sharp conflict, I am unable to permit the invocation of the equity powers of this Court and permit the imposition of such a drastic remedy on such a minimal showing.
"Where sharp issues of fact are presented it is apparent that the case is not a fit one for preliminary relief and the resolution of the disputed issues must await trial. [Citing cases.]" Heyman v. Ar. Winarick, Inc., 166 F.Supp. 880, 883 (S.D.N.Y.1958); see General Elec. Co. v. American Wholesale Co., 235 F.2d 606, 608-609 (7th Cir. 1956).
Finally, plaintiff, in its supplemental memorandum of law, for the first time asserts a cause of action based on an alleged violation of Section 1125(a) of Title 15 of the United States Code (the Lanham Act) (15 U.S.C. § 1125(a) (1963)). In its complaint, plaintiff neither alleges that defendant violated this section nor even sets forth factual averments from which such violation can be inferred, though not specifically pleaded. Moreover, the "newly acquired facts" upon which plaintiff bases this assertion were known to it as of March 29, 1965, and no motion was made or attempted, though there surely was sufficient time to do so, to amend the complaint to add a cause of action for a violation of Section 1125(a). On that basis alone I would be disposed to deny its motion for a preliminary injunction predicated on a violation of that section.
However, even assuming arguendo that the complaint had been amended and the matters set forth in the supplemental memorandum of law incorporated therein, there would still be both an insufficiency of pleading and proof to warrant the issuance of a preliminary injunction.
Section 1125(a) of Title 15 of the United States Code in pertinent part provides:
(a) Any person who shall affix, apply, or annex, or use in connection with any goods * * * a false designation of origin * * * including words or other symbols tending falsely to describe or represent the same, and shall cause such goods or services to enter into commerce, and any person who shall with knowledge of the falsity of such designation of origin * * * cause or procure the same to be transported or used in commerce or deliver the same to any carrier to be transported or used, shall be liable to a civil action by any person * * * who believes that he is or is likely to be damaged by the use of any such false description or representation." (Emphasis added.)
As is obvious from the language italicized in the above citation, the only actionable wrong proscribed by the statute is the false designation of origin of a product and the causing of its subsequent entry into interstate commerce.
The word "origin" has now been definitively held to refer not merely to geographical origin, but in addition, to origin of source or manufacture as well. Federal-Mogul-Bower Bearings, Inc. v. Azoff, 313 F.2d 405, 408 (6th Cir. 1963).
However, the requirement of the statute that the goods upon which the false designation appears must enter into interstate commerce is not to be lightly taken since it is jurisdictional in nature. Miles Lab., Inc. v. Frolich, 195 F.Supp. 256, 257-258 (S.D.Cal.), aff'd, *429 296 F.2d 740 (9th Cir. 1961) (Per curiam), cert. denied, 369 U.S. 865, 82 S.Ct. 1030, 8 L.Ed.2d 84 (1962). See Mogul-Bower Bearings, Inc. v. Azoff, supra. Even causing one item with false designation to enter into commerce is sufficient. Drop Dead Co. v. S. C. Johnson & Son, Inc., 326 F.2d 87, 93 (9th Cir. 1963), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 177 (1964). But for pleading purposes there must at least be that minimal connection and, a fortiori, there must be some proof of such connection on a motion for a preliminary injunction.
The term "used in commerce" is defined in the statute as follows:
For the purposes of this chapter a mark shall be deemed to be used in commerce (a) on goods when it is placed in any manner on the goods or their containers or the displays associated therewith or on the tags or labels affixed thereto and the goods are sold or transported in commerce and (b) on services when it is used or displayed in the sale or advertising of services and the services are rendered in commerce, or the services are rendered in more than one State or in this and a foreign country and the person rendering the services is engaged in commerce in connection therewith.
In the case at bar the only allegation is that defendant replaced plaintiff's trademark with defendant's in violation of Section 1125(a) and that the horse was on display in defendant's showroom in New York. However, there is no averment herein that the seized "War Cloud" with the false designation entered into interstate commerce subsequent to the time that the trademark was changed. It is obvious that, having been seized, the article cannot now enter into interstate commerce. In short, even accepting all of plaintiff's assertions as true, there is no statement either express or implied that the seized "War Cloud" at any time was caused to enter into interstate commerce.
"There is no allegation that after the making of any misrepresentation in regard to the goods any of the defendants caused such goods to enter into commerce or transported or used them in commerce, even though an allegation of such subsequent connection of the goods with commerce is an essential element of the cause of action created by the Act. It is true that `commerce' as used in the Act is defined broadly as `all commerce which may lawfully be regulated by Congress.' 15 U.S. C.A. § 1127. This definition, though broad, is not all-inclusive. Business essentially local in nature is still outside the scope of its terms in the absence of some relationship to interstate commerce sufficient to bring it within the limits of Congressional power. The complaint does not allege such a relationship nor any facts nor circumstances from which such a relationship can be inferred."
Samson Crane Co. v. Union Nat'l Sales, Inc., 87 F.Supp. 218, 221 (D.Mass.1949), aff'd, 180 F.2d 896 (1st Cir. 1950) (Per curiam).
While, in the case at bar, the defendant company obviously deals in interstate commerce, it is the transportation of the item with the mark on it rather than the general scope of business which would appear to be determinative under the statute, and, as noted, the item itself has never entered into interstate commerce and was never transported therein.
Moreover, even if we were to construe the statute as applying to goods which, though not themselves individually having false designations, were sold and entered into commerce as a result of the intrastate display of the seized "War Cloud" with the false designation and therefore "affecting commerce", (see Drop Dead Co. v. S. C. Johnson & Son, Inc., 326 F.2d 87, 94 (9th Cir. 1963), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 177 (1964); Stauffer v. Exely, 184 F.2d 962, 966 (9th Cir. 1950); Mastro Plastics Corp. v. Emenee Indus, Inc., 14 N.Y.2d 498, 248 N.Y.S.2d 223, *430 197 N.E.2d 620 (1964); see also Aluminum Fabricating Co. of Pittsburgh v. Season-All Window Corp., 160 F.Supp. 41, 45-46 (S.D.N.Y.1957), aff'd, 259 F.2d 314 (2d Cir. 1958))[7], an injunction could not issue thereon in view of the sharp conflict as to the use made of the horse. The same considerations necessitating the denial of an injunction on a claim of unfair competition apply here as well. (See 428, supra.)
To be distinguished from the instant case is Pic Design Corp. v. Sterling Precision Corp., 231 F.Supp. 106 (S.D.N.Y. 1964), relied upon so heavily by plaintiff, wherein there was proof, at a trial on the merits, that there had been an order by a customer and a receipt by him of one of plaintiff's items, shipped by defendant after the removal of all designation. In that case there was no question of sale, use in commerce, and/or a use "affecting commerce", whereas in the case at bar, aside from the unsupported and contradicted assertions of plaintiff, there is a total failure of proof on this critical point.
In summation, I find myself unable to issue an injunction on: (a) a claimed copyright infringement, by reason of an inability to determine the issue of similarity, i. e., insufficiency of proof; (b) unfair competition by reason of the sharply conflicting and contradictory factual averments in the affidavits of the respective parties; and (c) violation of the Lanham Act, by reason of an insufficiency of pleading and proof and the same conflict as to the facts noted in subdivision (b) above.
Accordingly, on the basis of the facts before me or the lack thereof, the motion for a preliminary injunction is denied.
In addition to its motions for a preliminary injunction, plaintiff also moves herein to dismiss defendant's amended conterclaim.
Rule 15(a) of the Federal Rules of Civil Procedure provides in part that "[a] party may amend his pleading once as a matter of course at any time before a responsive pleading is served * * *."
In the case at bar the summons and complaint for copyright infringement and unfair competition were served on March 8, 1965, and the answer and counterclaim were served by defendant's original counsel on March 12, 1965. Plaintiff moved to dismiss this counterclaim by a motion served on March 16, 1965.
Thereafter, different counsel were substituted by defendant, and the deposition of plaintiff's Treasurer was commenced. On March 26, 1965, an amended answer and counterclaim for unfair competition was served, within twenty days of the service of the summons and complaint.
Defendant was entitled to serve under the Rules an amended pleading as a matter of right prior to service by plaintiff of a responsive pleading, and no such responsive pleading has been filed. Plaintiff's motion to dismiss the counterclaim was not such a responsive pleading and thus did not terminate plaintiff's right to amend under Rule 15(a). Breier v. Northern California Bowling Proprietors' Ass'n, 316 F.2d 787, 789 (9th Cir. 1963) and cases cited therein.
Accordingly, I will now proceed to the merits of plaintiff's motion to dismiss, addressed to the amended counterclaim.
On a motion to dismiss, the averments of the pleading attacked must, *431 of course, be accepted as true. 2 Moore, Federal Practice ¶ 12.08 (2d ed. 1964).
The thrust of defendant's counterclaim is to impress a trust on plaintiff's copyright by reason of the appropriation from defendant of valuable trade secrets which enabled plaintiff to produce the copyrighted "War Cloud".
"The hobby horse body copyrighted by plaintiff was created as a result of plaintiff's misappropriation of defendant's trade secrets in conspiracy with defendant's former employee, Kovacs, who, while in defendant's employ, participated in the creation of the design of the hobby horse copyrighted by plaintiff and reproduced those designs for plaintiff and revealed other of defendant's designs and trade secrets." (Defendant's Memorandum of Law at 9.) Defendant thus asserts that one of its employees, to whom were revealed many secret processes respecting the method, mode and sources of materials for molds and sculpting services, was induced by plaintiff to terminate his services with defendant, and to betray these secrets relating to design of hobby horses to plaintiff. These secrets included the "process of rotational casting embodying the use of powdered polyethylene [alleged to be] * * * unique in the manufacture of hobby horse bodies and [which] represented confidential information and a trade secret * * *." (Amended Answer ¶ Ninth.) Similarly, in the second amended counterclaim, defendant alleges that by reason of the confidential nature of his (Kovacs') employment, defendant's President showed to him certain porcelain statues of horses, the features of which were to be embodied into the design of a hobby horse body, and that this information was also given to plaintiff by Kovacs and subsequently embodied in "War Cloud". By reason of all these acts, defendant seeks to impress a trust on plaintiff's copyrighted horse.
Insofar as the remedy is concerned, if plaintiff has a cause of action the imposition of a trust is one of the remedies which might be imposed. Colgate-Palmolive Co. v. Carter Prod., 230 F.2d 855, 865 (4th Cir.), cert. denied, 352 U.S. 843, 77 S.Ct. 43, 1 L.Ed.2d 59 (1956).
Plaintiff, in its brief in opposition, admits the propriety of the claim insofar as it arises out of the same transaction or series of transactions as plaintiff's claim, thus being a proper counterclaim. (Plaintiff's Brief in support of motion to dismiss at page 7.) However, based on two recent Supreme Court decisions, Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), plaintiff asserts that defendant has not set out a claim upon which relief can be granted.
Plaintiff argues that "due to the failure of defendant to allege that defendant's alleged copied designs were patented or copyrighted (as they in fact are not) under Sears Roebuck and Co. v. Stiffel Co. * * * and Compco Corp. v. Day-Brite Lighting, Inc. * * * plaintiff would have had a perfect right to copy such alleged designs * * *." (Plaintiff's Brief, supra, at page 3.)
The holdings of both cases is best summed up as follows:
"Today we have held in Sears, Roebuck & Co. v. Stiffel Co., (supra) that when an article is unprotected by a patent or a copyright, state law may not forbid others to copy that article. To forbid copying would interfere with the federal policy, found in Art. I, § 8, cl. 8, of the Constitution and in the implementing federal statutes, of allowing free access to copy whatever the federal patent and copyright laws leave in the public domain. Here Day-Brite's fixture has been held not to be entitled to a design or mechanical patent. Under the federal patent laws it is, therefore, in the public domain and can be copied in every detail by whoever pleases."
Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. at 237-238, 84 S.Ct. at 782.
What effect do these cases have on the trade secret doctrine?
In the very recent case of Titelock Carpet Strip Co. v. Klasner, 142 U.S.P.Q *432 405 (Cal.Super.Ct. July 24, 1964), the defendant not only copied plaintiff's machine in "practically all details" (ibid.) but was a former employee who had gained access to the premises under the guise of seeking to purchase parts of plaintiff's machine as scrap, when in fact he intended to use these parts for purposes of reconstruction "and physically appropriate[d] from the plaintiff's plant some of the parts which went into the assembling of the defendant's first machine." (Ibid.) Although acknowledging that "many hundreds of hours of effort" went into plaintiff's project before he had produced an economically effective machine and that the defendant had obtained "for free" the advantage of all of this experimental effort, cost and time expenditure, the plaintiff was left without relief aside from a $250. recovery, the cost of the misappropriated scrap parts. Citing Sears and Compco, supra, the Court held defendant's conduct "if a wrong" to be actionable only under the patent laws. Cf., Angell Elevator Lock Co. v. Manning, 348 Mass. 623, (Mass. Sup.Jud.Ct., March 2, 1965.)
In Servo Corp. of America v. General Elec. Co., 337 F.2d 716 (4th Cir. 1964), cert. denied, 383 U.S. 934 (1965), plaintiff corporation in its complaint sought recovery for infringement of three patents and for unjust enrichment. The Court of Appeals, on appeal, held the two patents involved in the appeal invalid, but nonetheless sustained a cause of action for unjust enrichment, based on improper appropriation of trade secrets by defendant.
It appears from the opinion that plaintiff corporation had a confidential relationship with the Southern Railway Company during plaintiff's installation and testing of its "hot box detector" on Southern's tracks in Salisbury, North Carolina.
In breach of this confidental relationship, one of Southern's officers accompanied defendant's engineers to Salisbury where members of the party photographed the installation, brought back with them Southern's drawings of the installation, and examined a diagram of the installation made by plaintiff; and the court below confirmed the master's finding that defendant, as a result of the trip, "`gleaned and copied ideas belonging to Servo * * *.'" Id. at 722.
The Court of Appeals initially stated the traditional pre-Sears rule, that "where a holder of a trade secret imparts to another in confidence and that other person then appropriates it for his own use, equitable remedies may be invoked to remedy the wrong. That it is not necessary that the trade secret be covered by patent was made explicit by the early and oft-quoted case of Booth v. Stutz Motor Car Co. of America, 56 F.2d 902 (7 Cir. 1932)." Id. at 723.
The Court then distinguished Sears thusly:
"Because of the confidential relationship which was betrayed here by Southern, this case is distinguishable from Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L. Ed.2d 661 (1964). In that case the action was grounded upon state law which gave a remedy for copying resulting in confusion as to the source of manufacture. In that case the Court held that a manufacturer whose design and mechanical patents are invalid for want of invention cannot under state unfair competition law obtain an injunction against copying its product, nor an award of damages for such copying, as such use of state law conflicts with the federal government's power to grant patents. The Court went on to hold that an unpatented article being in the public domain may be freely copied as the federal patent law had preempted the field from state action. This case, however, is one of unjust enrichment through breach of a confidential relationship, and the remedy is derived from the court's power to award general equitable relief. In Saco-Lowell Shops v. Reynolds, supra, [4 Cir.,] 141 F.2d [587] at page 598, we held:
`[W]hether the [inventor's ideas] were covered by patent or not, he *433 was entitled to protection against their use by one to whom he had disclosed them in the course of a confidential relationship.'"
Id. at 724-725.
After quoting the Restatement of Torts § 757(c) (1939) to reject the defendant's argument that the secrets were obtained not from plaintiff but from Southern, the Court held that "General Electric and Southern were in pari delicto and General Electric may not escape liability in a court of equity." Id. at 725.
The Court then stated:
"Several cases have held that a businessman who hires his rival's former employee and induces the employee to divulge the rival's trade secrets imparted in confidence may be required to respond in damages. A. O. Smith Corp. v. Petroleum Iron Works Co. of Ohio, 73 F.2d 531 (6 Cir. 1934). modified on another point, 74 F.2d 934 (6 Cir. 1935); Herold v. Herold China and pottery Co., 257 F. 911 (6 Cir. 1919). The facts here vary; the principle remains constant. General Electric learned that which it needed to know through Southern, and both parties knew that their concerted activities were in violation of the confidence reposed in Southern by Servo. Under the circumstances the plaintiff is entitled to recover of the defendant the reasonable value of the data acquired and utilized by it in unfair competition with the plaintiff. See International News Service v. Associated Press, 248 U.S. 215, 39 S.Ct. 68, 63 L.Ed. 211 (1918)." Ibid.
It is axiomatic that a pleading should not be dismissed if by any construction it states a claim upon which relief can be granted. See 2 Moore, Federal Practice ¶ 12.08 (2d ed. 1964).
In view of the Servo decision, I am of the opinion that the amended counterclaim as drawn does state a claim upon which relief could be granted.
In addition, in view of the state of flux in which this area of the law is presently embroiled in light of the Sears and Compco decisions[8] I would be loath to dismiss a pleading until the exact guidelines of those decisions are definitively set.
In view of that fact, plaintiff's motion to dismiss the counterclaim is denied.
The motions are disposed of as noted herein.
So ordered.
APPENDIX "A"
"The Copyright Act grants to the copyright proprietor the exclusive right to reprint, publish, copy and vend the copyrighted work (17 U.S.C. § 1), but it gives him no further right of control over the use or disposition of the individual copies of the work once he has sold or otherwise disposed of them." Burke & Van Heusen, Inc. v. Arrow Drug, Inc., 233 F.Supp. 881, 882 (E.D. Pa.1964) and cases cited therein at page 882 et seq.; see 17 U.S.C. § 27 (1952).
"The use of a copyrighted work is not an infringing act if such use does not fall within the scope of those rights expressly granted to the copyright proprietor." Nimmer, Copyright § 100 at 374 (1963). Of course, "the nature of rights available to a copyright owner will often vary considerably depending upon the type of work which has been copyrighted." Nimmer, supra, § 100 at 375. In the case at bar, Section 1(a) of Title 17 delineates the rights reserved to the plaintiff, which include the right to "print, reprint, publish, copy and vend the copyrighted work."
There clearly is no infringement herein by defendant on the right to print or reprint the copyrighted work. (See, generally, Nimmer, supra, § 102.) The only *434 possible rights infringed upon are those of copying, vending and/or publishing.
The statute included the right to vend and publish as a protected right, as a complement to the preservation of the right to copy, since "it would be anomalous indeed if the copyright owner could prohibit public distribution of his work when this occurred through unauthorized copying but were powerless to prevent the same result if the owner's own copies (or copies authorized by him) were stolen or otherwise wrongfully obtained and thereafter sold or published." Nimmer, supra, § 103.31 at 384-85.
However, "[t]his rationale becomes inapplicable in the situation where the copyright owner first consents to the sale or other disposition of his work. * * * [A]t this point the policy favoring a copyright monopoly for authors gives way to the policy opposing restraints of trade and restraints on alienation." Nimmer, supra, § 103.31 at 385. See Burke & Van Heusen, Inc. v. Arrow Drug, Inc., supra. The same rationale, policy considerations and rule of law apply to the right to publish as well. Nimmer, supra, § 104 at 390.
Accordingly, once the item has been lawfully obtained, as in the case at bar, the "first sale" doctrine (see, generally, Nimmer, supra, § 103 and its subdivisions) would apply and the proprietor thereafter loses his right to control its subsequent vending and/or publication.
As is obvious, however, the rule should not apply with respect to other rights protected by the statute. Nimmer, supra, § 103.34.
Since, in the instant case, it is not disputed that the hobby horse was lawfully acquired, the above-cited precedents would appear to apply and hence any subsequent vending (the existence of which is a very sharply disputed fact) or publication infringes on none of plaintiff's presently-protected rights.
Similarly, insofar as the right to copy is concerned, there is no "tangible object that is a reproduction of the original work," (Nimmer, supra, § 101.2 at 376); in fact there has been no reproduction whatsoever. Compare Mura v. Columbia Broadcasting System, Inc. et al., 245 F.Supp. 587 (S.D.N.Y.), which involved the display of copyrighted puppets on television as constituting infringement of copyright. However, in that case the plaintiff alleged that the defendants made copies of her hand puppets by reproducing a transitory picture on a television screen.
Accordingly, there has been no infringement of any rights reserved to plaintiff as a result of the display by defendant of a lawfully-acquired model of plaintiff's hobby horse. See also Scarves By Vera, Inc. v. American Handbags, Inc., 188 F.Supp. 255 (S.D.N.Y. 1960), wherein the defendants purchased plaintiff's copyrighted towels and incorporated them into their ladies' handbags. Significantly in that case, suit was not brought on the theory of copyright infringement but rather a violation of Section 105 of Title 17.
NOTES
[1] I might observe parenthentically that "War Cloud" has the characteristics of a real live horse, as well.
[2] In view of that fact and of the other sharply disputed facts presented by the respective affidavits as to what transpired when counsel appeared before Judge Cannella, and what was said at the time the subpoena to produce the model in court was served, plaintiff's motion to cite defendant for contempt in failing to so produce the model cannot be decided on this disputed record. See Stringfellow v. Haines, 309 F.2d 910 (2d Cir. 1962); 4 Barron & Holtzoff § 2428 at 387-88 (1951).
[3] As was observed by Chief Judge Ryan in Alva Studios, Inc. v. Winninger, 177 F.Supp. 265, 267 (S.D.N.Y.1959): "Where the principal elements of design of plaintiff's copyrighted work and of defendant's allegedly infringing article are taken, as a common source, from an object in the public domain, mere resemblance will not justify a finding of infringement."
[4] In its complaint, drawn on the theory that the seized "War Cloud" was really "Thunder", plaintiff averred that this seized model was being palmed off as plaintiff's, deceiving the public "into believing that the plagiarizing work is the copyrighted work." Complaint ¶ 8. This theory has, of course, now been changed in the light of subsequently developed facts.
[5] In the case at bar, however, defendant is only accused of using plaintiff's item as a display and sample and taking orders on it. There is no allegation that defendant is buying plaintiff's horses en masse and selling them to customers.
[6] The International News Service case held actionable the defendant's issuing of plaintiff's news compilations as its own, thus applying the common law doctrine of unfair competition "to misappropriation as well as misrepresentation, to the selling of another's goods as one's ownto misappropriation of what equitably belongs to a competitor." Schechter Poultry Corp. v. United States, 295 U.S. 495, 532, 55 S.Ct. 837, 844, 79 L.Ed. 1570 (1935).
[7] While Mastro, supra, presents a closely analogous problem, in that case there seemed to have been no dispute that sales were made and goods shipped in commerce as a result of the display of the item with false designation, whereas in the case at bar there is no such showing. In addition, as distinguished from Mastro, in the instant case there is no allegation that defendant's products were inferior in quality to plaintiff's, (see George O'Day Associates, Inc. v. Talman Corp., 206 F.Supp. 297, 300 (D.R.I.), aff'd sub nom. O'Day Corp. v. Talman Corp., 310 F.2d 623 (1st Cir. 1962), cert. denied, 372 U.S. 977, 83 S.Ct. 1112, 10 L. Ed.2d 142 (1963)), an allegation which has been said to be the very essence of a Section 1125(a) Lanham Act violation. Note, Development in the Law, Competitive Torts, 77 Harv.L.Rev. 888, 907-08 (1964).
[8] See, e. g., Symposium-Product Simulation: A Right or Wrong, 64 Colum.L.Rev. 1178 (1964) which includes articles by Daphine R. Leeds (id. at 1179), Milton Handler (id. at 1183), Walter J. Derenberg (id. at 1192), Ralph S. Brown (id. at 1216); Note, Unfair Competition Protection After Sears & Compco, 40 N.Y. U.L.Rev. 101, 108 nn. 66, 67 (1965).
| {
"pile_set_name": "FreeLaw"
} |
297 F.2d 367
OIL TRANSFER CORPORATION, as owner of the M/V Otco Bayway,Libelant-Appellant,v.ATLANTIC TANKERS, LTD., as owner of the Atlantic Prince,Respondent-Appellee.
No. 106, Docket 27090.
United States Court of Appeals Second Circuit.
Argued Dec. 4, 1961.Decided Jan. 3, 1962.
Macklin, Speer, Hanan & McKernan, New York City (John C. Hart, New York City, of counsel), for libelant-appellant.
Foley & Martin, New York City (John H. Hanrahan, Jr., New York City of counsel), for respondent-appellee.
Before WATERMAN, SMITH and MARSHALL, Circuit Judges.
PER CURIAM.
1
The two tankers involved in this litigation collided in the Kill van Kull, one of the busier waterways in the New York Harbor area, at about 4:45 A.M. on January 6, 1959. It was a cold night with the temperature at about 10 degrees above zero, Fahrenheit.
2
The Otco Bayway was adrift broadside in the ship-channel. She was ice-encrusted, the ice in some places being as much as two feet thick. Her anchors were frozen forward, her capstans and windlasses, the deck claw holding the anchor chain and the hawser pipe were all ice-encrusted. It was planned that she would dock at Constable Hook, but, preparatory to docking, it was discovered that her engines could not be stopped when the bridge signalled such an order. She avoided hitting the dock, swung back into the channel, and thereafter her Chief Engineer disconnected her fuel lines. She was neither at anchor, nor with power, at the time of the collision.
3
The Atlantic Prince was under way, escorted by two tugs, at a speed of 5 or 6 Knots an hour when about a mile and a half from the Otco Bayway.
4
The versions of what followed that led up to the collision were, as stated by the trial judge, 194 F.Supp. 920, 923, dissimilar. Suffice it for now to say that libelant-appellant maintains on appeal 'that the sole cause of the collision was the failure of the Atlantic Prince to pay any attention to her navigation. She ran down a motionless vessel because she didn't look, didn't see and didn't hear'-- and that respondent-appellee maintains on appeal 'that the sole cause of the collision was the gross negligence of the Otco Bayway and her general apathy at and prior to the collision.'
5
The trial judge made detailed findings of fact and extracted therefrom his conclusion that the negligence of both vessels equally contributed to the collision. These findings and conclusions are contained in his written opinion, reported at 194 F.Supp. 920. We affirm the interlocutory decree based thereon.
6
The Atlantic Prince, being guilty of statutory faults, was unable to rebut the presumption that this guilt contributed to the collision. It could only counter-charge that the collision was caused by the poor seamanship shown by the crew of the Otco Bayway. Despite the obvious peril to shipping that she permitted herself to be, the Otco Bayway defends herself by emphasizing her helplessness and would have us overlook the fact that this helplessness was created when her fuel lines were disconnected. Nor is the finding of fact by the trial judge that she sounded a series of short blasts rather than a continuous sound a 'clearly erroneous' finding. Before reaching his result the judge carefully weighed and discussed the conflicting testimony of many witnesses, 194 F.Supp. 920, 927-928. This statutory fault the Otco Bayway seeks to overcome by claiming the fault was prior in time to the faults of the Atlantic Prince; that her helplessness was clearly observable, or ought to have been clearly observable, by the Atlantic Prince; and that therefore the doctrine announced in The Syosset, 71 F.2d 666 (2 Cir., 1934); and in The Bell-haven, 72 F.2d 206 (2 Cir., 1934); and in Chemical Transporter, Inc. v. M. Turecamo, Inc., etc., 290 F.2d 496 (2 Cir., 1961), applies to her, and her negligence was not a contributing cause of the collision. This claim is invalidated by the finding that this helplessness was not conveyed to the Atlantic Prince by Proper signals, and the Atlantic Prince, though burdened, could hardly be expected to assume that the Otco Bayway, broadside of one of the busiest channels in the harbor, could not make headway. Actually, the Otco Bayway was in motion, for, according to the facts set up in her brief, at 4:20 A.M. she was broadside to the wind headed in a westerly direction under the influence of the elements, and prior to that time she, left to the mercy of the northwest wind, had begun to drift toward Staten Island-- in summary, she was drifting away from the Atlantic Prince.
7
Decree affirmed.
| {
"pile_set_name": "FreeLaw"
} |
J-S68024-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH DEWAYNE PENNYBAKER :
:
: No. 671 WDA 2019
APPEAL OF: PENNSYLVANIA STATE :
POLICE :
Appeal from the Order Entered April 3, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0009324-2017
BEFORE: GANTMAN, P.J.E., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY LAZARUS, J.: FILED JANUARY 27, 2020
Pennsylvania State Police (PSP) appeals from the order, entered in the
Court of Common Pleas of Allegheny County, denying its motion for
clarification and/or reconsideration/motion to intervene following the court’s
April 24, 2018 order removing Keith DeWayne Pennybaker from the
Pennsylvania Sexual Offender Registry (Registry). After our review, we
quash.1
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Because we quash this appeal, we deny as moot the PSP’s motion to
supplement the record.
J-S68024-19
On April 8, 1997, Pennybaker entered a guilty plea to one count each of
rape2 and involuntary deviate sexual intercourse.3 He committed his offenses
on September 8, 1995, prior to the date Megan’s Law I4 went into effect.
While he was incarcerated, Megan’s Law II5 went into effect. Pennybaker was
released from incarceration in 2011; shortly thereafter, Pennybaker was
notified that he was required to register for life as a Tier III offender under
the Sex Offender Registration and Notification Act (SORNA).6 See 42 Pa.C.S.A.
§§ 9799.14(b), 9799.15(a)(3), (e)(3).
On July 19, 2017, the Pennsylvania Supreme Court issued its Opinion
Announcing the Judgment of the Court in Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017), which found SORNA to be punitive in nature and held
that retroactive application of the registration and reporting requirements of
SORNA violated the ex post facto clauses of the United States and
____________________________________________
2 18 Pa.C.S.A. § 3121.
3 18 Pa.C.S.A. § 3121(a)(1).
442 Pa.C.S.A § 9791 et seq., Act of Oct. 24, 1995, P.L. 1079, No. 24, effective
Oct. 24, 1995 (Spec. Sess. No.1).
542 Pa.C.S.A. § 9791, et seq., Act of May 10, 2000, P.L. 74, No. 18, effective
July 9, 2000.
6 Act of Dec. 20, 2011, P.L. 446, No. 111, amended as 42 Pa.C.S.A. §§
9799.10-9799.41.
-2-
J-S68024-19
Pennsylvania Constitutions. Id. at 1223. In response to Muniz, the
legislature enacted Act 10 of 2018, 42 Pa.C.S.A. § 9799.51,7
On February 12, 2018, Pennybaker filed a motion for removal from the
Registry. Here, Pennsybaker’s offense occurred prior to the effective date of
SORNA or any version of Megan’s Law. On April 24, 2018, the trial court
granted the motion and ordered Pennybaker removed from the Registry. See
Order of Court, 4/24/18.
On August 31, 2018, PSP filed a motion for reconsideration and a motion
to intervene, alleging that it was not served with notice of Pennybaker’s
motion (although the Commonwealth was served), and that “failure to serve
PSP–let alone join PSP as an indispensable party–robbed this [c]ourt of subject
____________________________________________
7 Act 10, 2018, Feb. 21, P.L. 27, No. 10, § 6, imd. effective, was reenacted at
2018, June 12, P.L. 140, No. 29, §, imd. effective (referred to collectively as
“Act 10”). Essentially, Act 10 sought to eliminate the punitive effects of
SORNA and return the law back to Megan’s Law II, adding a mechanism for
removal from the registry after 25 years. Act 10 structured two different
tracks for sex offenders: Subchapter H applies to offenses committed after
December 20, 2012, and provides that an offender may petition for removal
from the registry and also allows some reporting requirements to be
completed remotely; and Subchapter I applies to offenses committed
between April 22, 1996 and December 20, 2012, requires offenders to register
for periods of either 10 years or life (Sexually Violent Predators), and reduced
the length of time from 15 or 25 years to 10 years, eliminated some offenses
from registration and provides for a mechanism for removal of lifetime
registration after 25 years. Our Supreme Court is currently considering
whether Acts 10 and 29 are constitutional. See Commonwealth v.
Lacombe, 35 MAP 2018 (Pa. 2018).
-3-
J-S68024-19
matter jurisdiction to rule on his [m]otion.” Motion for Clarification and/or
Reconsideration, 8/13/18, at 7.8
____________________________________________
8 In its motion, the PSP acknowledges, “because of [Muniz] . . . [Pennybaker]
no longer had to register as a sex offender.” Id. at 9. PSP alleges, however,
that due to the enactment of Subchapters H and I of Act 10, “reporting
requirements are again considered a collateral consequence of the conviction.”
Id. at 10. Further, PSP alleges that the fact that Pennybaker’s offense
occurred prior to the enactment of Megan’s Law I is irrelevant. The PSP
argues: Subchapter I of Act 10 applies to those “required to register with the
Pennsylvania State Police under a former sexual offender registration law of
this Commonwealth on or after April 22, 1996 but before December 20, 2012,
whose period of registration has not expired.” Supplement to Motion for
Clarification and/or Reconsideration, 11/15/18, at 2. In support of this
contention, PSP avers:
Megan’s Law I became effective [on] May 22, 1996, and required
defendants convicted of rape to register for ten years as a sex
offender. See former 42 Pa.C.S. § 9793(b). This ten-year
registration applied “to all offenders convicted of an offense
equivalent to an offense set forth in § 9793(b) before the effective
date of this section who remain[ed] incarcerated or on parole
on the effective date of this section.” See former 42 Pa.C.S. §
9799.6 (emphasis added). [Pennybaker] was serving his
sentence at the time that Megan’s Law I became effective;
therefore, Megan’s Law I applied to him and he was required to
register for ten years. See Commonwealth v. Gaffney, 733
A.2d 616, 617 (Pa. 1999) (finding no violation of any ex post facto
provision in requiring registration when the acts underlying an
individual’s conviction occurred prior to the effective date of the
registration requirements of Megan’s Law I). Megan’s Law II
became effective on July 10, 2000, subjecting defendants
convicted of rape to lifetime registration requirements.
Specifically, Megan’s Law II applied “to individuals incarcerated or
convicted on or after the effective date of this act.” See former
42 Pa.C.S. § 9791(2) (emphasis added). Therefore, because
[Pennybaker] had not yet finished serving his registration
requirements under Megan’s Law II as of the effective date of Act
10 of 2018, he must continue as a lifetime registrant.
-4-
J-S68024-19
The question of timeliness of an appeal is jurisdictional.
Commonwealth v. Moir, 766 A.2d 1253, 1254 (Pa. Super. 2000). Time
limitations on appeal periods are strictly construed and cannot be extended
as a matter of grace. Commonwealth v. Perez, 799 A.2d 848, 851 (Pa.
Super. 2002); see also Pa.R.A.P. 105(b) (stating that, although appellate
court may enlarge time prescribed in rules of appellate procedure for good
cause shown, court may not enlarge time for filing notice of appeal).
In order to preserve the right to appeal a final order of the trial court, a
notice of appeal must be filed within thirty days after the date of entry of that
order. Pa.R.A.P. 903(a). Although the entry of a final order triggers the
thirty-day appeal period, this period may be tolled if the trial court expressly
grants a motion for reconsideration within the thirty-day period. Pa.R.A.P.
____________________________________________
Id. at 3 (emphasis in original).
Even if we were to reach the merits, we are not convinced by this
argument. Subchapter I sets forth the registration requirements that apply
to all offenders convicted of committing offenses on or after Megan’s Law I’s
effective date (April 22, 1996), but prior to SORNA’s effective date. See
Commonwealth v. Bricker, 198 A.3d 371, 375–76 (Pa. Super. 2018). Here,
Pennybaker was convicted on April 8, 1997 for his 1995 offense. Retroactively
applied registration requirements are unconstitutional under Muniz. “Critical
to relief under the Ex Post Facto Clause is not an individual’s right to less
punishment, but the lack of fair notice and governmental restraint when the
legislature increases punishment beyond what was prescribed when the
crime was consummated.” Muniz, 164 A.3d at 1194 (quoting Weaver v.
Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (emphasis
added). The “critical inquiry” is the “date of the offense.” Commonwealth
v. Lippincott, 208 A.2d 143, 149 (Pa. Super. 2019) (en banc), citing
Commonwealth v. Horning, 193 A.3d 411, 417 (Pa. Super. 2018).
-5-
J-S68024-19
1701(b)(3). Although a party may file a motion for reconsideration pursuant
to Rule 1701, a trial court’s “[f]ailure to ‘expressly’ grant reconsideration
within the time set by the rules for filing an appeal will cause the trial court to
lose its power to act on the application for reconsideration.” Moir, 766 A.2d
at 1254. The mere filing of a motion for reconsideration is insufficient to toll
the appeal period. Moore v. Moore, 634 A.2d 163, 167 (Pa. 1993). Rule
1701 is clear: the thirty-day appeal period is tolled only by a timely order
“expressly granting” reconsideration; the establishment of a briefing schedule,
hearing date, or issuance of a rule to show cause does not suffice. Valley
Forge Center Associates v. Rib–It, K.P., Inc., 693 A.2d 242, 245 (Pa.
Super. 1997); see Moir, 766 A.2d at 1254 (holding trial court’s action of
granting rule to show cause and setting hearing date on motion for
reconsideration was insufficient to toll appeal period). “Therefore, as the
comment to Pa.R.A.P. 1701 explains, although a party may petition the court
for reconsideration, the simultaneous filing of a notice of appeal is necessary
to preserve appellate rights in the event that either the trial court fails to grant
the petition expressly within 30 days, or it denies the petition.” Moir, 766
A.2d at 1254; Pa.R.A.P. 1701, Cmt.
The appeal in this case should have been filed within thirty days from
the April 24, 2018 order, or reconsideration should have expressly been
granted within thirty days of that order. Neither event occurred. The court’s
April 24, 2018 order became final on May 24, 2018, when no appeal was filed
and the court did not expressly grant reconsideration. As Pennybaker states
-6-
J-S68024-19
in his motion to quash, PSP attempts to remedy its failure to file a timely
appeal by purporting to appeal from the trial court’s order denying its motion
for reconsideration and motion to intervene. See Motion to Quash, 6/12/19,
at 9. An appeal from an order denying reconsideration is improper and
untimely. Moir, supra at 1254; Valentine v. Wroten, 580 A.2d 757 (Pa.
Super. 1990); Fortune/Forsythe v. Fortune, 508 A.2d 1205 (Pa. Super.
1986). Since the untimely filing of an appeal goes to the jurisdiction of this
Court, we quash this appeal. Pa.R.A.P. 903(a); Moir, supra; Valley Forge
Center, supra.
Appeal quashed.
Judge Pellegrini joins this Memorandum.
President Judge Emeritus Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2020
-7-
| {
"pile_set_name": "FreeLaw"
} |
50 N.J. 390 (1967)
235 A.2d 889
HELEN L. BETENBAUGH, ET AL., PLAINTIFFS-RESPONDENTS,
v.
PRINCETON HOSPITAL, A NEW JERSEY CORPORATION, ELLWOOD W. GODFREY AND R.J. BELFORD, DEFENDANTS-APPELLANTS.
The Supreme Court of New Jersey.
Argued November 6, 1967.
Decided November 20, 1967.
*393 Mr. John A. Willette for appellant, Princeton Hospital, (Messrs. Williams & Willette, attorneys).
Mr. Daniel K. VanDorn for appellant, Ellwood W. Godfrey, (Messrs. Mead, Gleeson, Hansen & Pantages, attorneys; Mr. Victor C. Hansen, of counsel).
Mr. Robert J.C. McCoid for appellant, R.J. Belford (Messrs. Schneider & Morgan, attorneys).
Mr. Leonard J. Felzenberg for respondents (Messrs. Roskein, Kronisch & Felzenberg, attorneys).
PER CURIAM.
The judgment is affirmed for the reason expressed in the opinion of the Appellate Division.
For affirmance Chief Justice WEINTRAUB and Justices JACOBS, FRANCIS, PROCTOR, GOLDMANN, SCHETTINO and HANEMAN 7.
For reversal None.
| {
"pile_set_name": "FreeLaw"
} |
859 F.2d 925
U.S.v.Denson**
NO. 87-5918
United States Court of Appeals,Eleventh Circuit.
SEP 21, 1988
Appeal From: S.D.Fla., 668 F.Supp. 1531
1
AFFIRMED.
**
Local Rule: 36 case
| {
"pile_set_name": "FreeLaw"
} |
52 F.3d 315
James C. Huhta, M.D.v.Children's Hospital of Philadelphia, University ofPennsylvania, School of Medicine of University ofPennsylvania, Edmond F. Notebaert, Elias Schwartz, M.D.,Bernard J. Clark, Jr., M.D., Alvin J. Chin, M.D.
NO. 94-1685
United States Court of Appeals,Third Circuit.
Mar 06, 1995
Appeal From: E.D.Pa., No. 93-2765,
Fullam, J.
1
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
484 S.W.2d 587 (1972)
Gary Dale KIRKPATRICK, Petitioner,
v.
Mrs. D. M. HURST, Respondent.
No. B-3104.
Supreme Court of Texas.
July 19, 1972.
Rehearing Denied October 11, 1972.
*588 Fisher, McLaughlin & Harrison, J. D. McLaughlin, Paris, for petitioner.
Cornett, Echols & Biard, Leighton Cornett, Paris, for respondent.
STEAKLEY, Justice.
This suit for personal injuries sustained in an automobile collision was brought in the name of Mrs. D. M. Hurst without the joinder of her husband. The collision occurred on December 16, 1967, and the injuries to Mrs. Hurst were alleged to have been proximately caused by the negligence of Gary Dale Kirkpatrick, petitioner here. The suit was filed on January 2, 1970, and, among other matters, Kirkpatrick pleaded in defense the two-year statute of limitations, Art. 5526, Vernon's Ann.Civ.Stat. In a trial to a jury, there were findings of primary negligence against Kirkpatrick and of contributory negligence against Mrs. Hurst. The trial court granted the motion of Mrs. Hurst for judgment notwithstanding the verdict after overruling Kirkpatrick's plea of limitation. The court of civil appeals sustained the ruling on limitation but found error otherwise and reversed and remanded. 472 S.W.2d 295. We hold that the suit of Mrs. Hurst was barred and so reverse the judgments below and render judgment for petitioner Kirkpatrick.
Under Art. 5526 the suit of Mrs. Hurst must have been "commenced and prosecuted within two years after the cause of action shall have accrued, and not afterwards...." As noted, the collision out of which the claim of Mrs. Hurst arose occurred on December 16, 1967, and this suit was not instituted until January 2, 1970. She seeks to avoid the bar of Art. 5526 on the theory that under the terms of Art. 5535 she was under the disability of coverture on the date of the accident and until January 1, 1968, when an amendment to Art. 5535 became effective. Prior to the amendment, Art. 5535 provided that "If a person entitled to bring any action mentioned in this subdivision of this title be at the time the cause of action accrues either a minor, a married woman, ... the time of such disability shall not be deemed a portion of the time limited for the commencement of the action and such person shall have the same time after the removal of his disability that is allowed to others by the provisions of this title." The mentioned amendment substituted the words "a married person under twenty-one years of age" for the words "a married woman." Mrs. Hurst was not a married person under twenty-one years of age at the time the amendment became effective.
Assuming without deciding that Mrs. Hurst is correct in her position that she was formerly under a statutory disability, and that the period between the date of the accident and the effective date of the noted amendment is not to be included, her suit was yet not brought within the statutory period of two years. Giving the amendment to Art. 5526 the effect for which she contends, the right of Mrs. Hurst to enforce her claim for injuries to her body arose the first instant of January 1, 1968, and existed during the whole of this day. Accordingly, there is no basis for excluding this day in computing the period of limitation and the commencement of her suit on January 2, 1970, was not within the two year period provided in Art. 5526. The ruling principle is found in Ross v. Morrow, 85 Tex. 172, 19 S.W. 1090 (1892) and Pate v. Thompson, 179 S.W.2d 355 (Tex.Civ.App.1944, writ ref'd). It was there held that the statute of limitations commences to run against a minor on the date he becomes twenty-one years of age since he can institute suit at any moment of that day.
Mrs. Hurst urges the statement in 37 Tex.Jur.2d, Limitation of Action, § 65, that "in computing the time to sue under a newly enacted statute of limitations, the day on which the act took effect is excluded," together with the two decisions of Courts of Appeal cited for support, i. e., *589 Texas & Pac. R'y Co. v. Goodson, 2 White & W.Civ.Cas.Ct.App. § 27 (1883) and Dowell v. Vinton, 1 White & W.Civ.Cas. Ct.App. § 327 (1883). Goodson states the rule that the first day should not be counted where it is partly consumed when the act is done, and cites Dowell v. Vinton as holding that the effective date of an act reinstating a statute of limitation should be excluded. However, Dowell v. Vinton involved the approval by an act of Congress on May 30, 1870 of the Texas Constitution of 1869 which, in turn, reinstated suspended statutes of limitation. Only part of the day of approval was left after Congress acted, thus invoking the rule that he law will take no notice of fractions of a day.
Were it held otherwise in the above respects, i. e., that limitation commenced on January 2, 1968, the two year limitation period provided by Art. 5526 nevertheless terminated on January 1, 1970. We disagree with the holding of the court of civil appeals that Rule 4 of the Texas Rules of Civil Procedure extended the statutory limitation period by one day, i. e., until January 2, 1970, by reason of the fact that January 1, 1970, was a legal holiday. Article 5526 does not provide that its time period of two years shall be exclusive of legal holidays otherwise prescribed by statute, and Rule 4 may not be given the effect of thus enlarging Art. 5526. Article 1731a relinquished rule making power to the Supreme Court, repealed all laws governing the practice and procedure in civil actions, and expressly provided that no substantive law or part thereof was repealed. Rule 4 must therefore yield to, and may not be given an effect inconsistent with, Art. 5526. Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424 (Tex. 1971); Missouri, K. & T. Ry. Co. of Texas v. Beasley, 106 Tex. 160, 155 S.W. 183 (1913); Fulghum v. Baxley, 219 S.W.2d 1014 (Tex.Civ.App.1949, no writ).
The judgments below are reversed and judgment is here rendered for petitioner, Gary Dale Kirkpatrick.
| {
"pile_set_name": "FreeLaw"
} |
485 N.W.2d 78 (1992)
Lee A. BINGHAM and Christine Bingham, Husband and Wife, Appellants,
v.
MARSHALL & HUSCHART MACHINERY COMPANY, INC., Appellee.
No. 91-575.
Supreme Court of Iowa.
May 13, 1992.
Gregory T. Racette of Hopkins & Huebner, P.C., Des Moines, for appellants.
John Werner and Daniel J. Hanson of Grefe & Sidney, Des Moines, for appellee.
Considered by McGIVERIN, C.J., and CARTER, NEUMAN, SNELL and ANDREASEN, JJ.
ANDREASEN, Justice.
A products liability suit was filed against an insolvent manufacturer and a seller of an allegedly defective machine. Prior to trial, the district court granted the seller's motion to dismiss the strict liability and implied warranty claims brought against it. The plaintiff's negligence claim proceeded *79 to a jury trial. The jury returned a verdict against the plaintiffs and in favor of the seller. Appeal was taken from the pretrial dismissal and from the judgment entered upon the verdict. Issues are also raised regarding evidentiary rulings made during the negligence trial as well as to instructions given to the jury. Finding no error, we affirm.
I. Background.
In March of 1987, Lee Bingham severely injured his thumb while working with a straight-line table-feed drill at the John Deere Works (Deere) in Ankeny, Iowa. The drill was manufactured by Moline Tool Company (Moline). Deere purchased the drill from a distributor, Marshall & Huschart Machinery, Inc. (Huschart), in 1974.
As a result of his injuries, Bingham[1] filed suit against Moline and Huschart alleging strict liability, breach of implied warranty, and negligence. Moline is insolvent and has been so declared by the United States Bankruptcy Court for the Northern District of Illinois' Eastern Division.
Bingham filed a motion to have the trial court declare the manufacturer insolvent and to hold Huschart liable for his injuries under Iowa Code subsection 613.18(1) (1989). Huschart countered with a motion to dismiss all of Bingham's claims. After hearing, the district court denied Bingham's motion and granted Huschart's motion in part; dismissing the strict liability and breach of warranty claims under subsection 613.18(1)(a). The court, however, preserved the negligence claim for trial.
Bingham then applied to this court for permission to file an interlocutory appeal. We denied the request. The negligence claim proceeded to trial. Numerous objections were made to evidentiary rulings and to the instructions submitted to the jury. The jury returned a verdict in favor of Huschart on all counts. Bingham appeals.
II. Products LiabilityIowa Code Section 613.18.
The term "product liability" relates to liability arising from injury or damage resulting from the use of a product. Product liability may involve causes of action stated in negligence, strict liability or breach of warranty. See generally 72 C.J.S. Products Liability §§ 2, 3 (Supp. 1975); 63 Am.Jur.2d Products Liability §§ 1, 5-7 (1984).
Strict liability in tort was first recognized by this court in Hawkeye-Security Insurance v. Ford Motor Co., 174 N.W.2d 672, 684 (Iowa 1970). We adopted the principles of strict liability as found in Restatement (Second) of Torts section 402A. Id. Under these principles, a seller of a defective product may be held liable for harm to the ultimate user or to the user's property. Under comment (f) to section 402A, the term seller is defined as a person engaged in the business of selling products for use or consumption. The term seller included the manufacturer, wholesaler, dealer, distributor and retailer. Id. Strict liability was included in the definition of fault when, by statute, Iowa adopted comparative fault in 1984. 84 Iowa Acts, ch. 1293, § 1 (now codified at Iowa Code § 668.1).
With the adoption of 86 Iowa Acts chapter 1211, section 32, now codified at Iowa Code section 613.18, a statutory limitation was imposed upon strict liability and implied warranty claims against nonmanufacturers. The section provides:
1. A person who is not the assembler, designer, or manufacturer, and who wholesales, retails, distributes, or otherwise sells a product is:
a. Immune from any suit based upon strict liability in tort or breach of implied warranty of merchantability which arises solely from an alleged defect in the original design or manufacture of the product.
b. Not liable for damages based upon strict liability in tort or breach of implied warranty of merchantability for the product upon proof that the manufacturer is subject to the jurisdiction of the courts of *80 this state and has not been judicially declared insolvent.
2. A person who is a retailer of a product and who assembles a product, such assembly having no causal relationship to the injury from which the claim arises, is not liable for damages based upon strict liability in tort or breach of implied warranty of merchantability which arises from an alleged defect in the original design or manufacture of the product upon proof that the manufacturer is subject to the jurisdiction of the courts of this state and has not been judicially declared insolvent.
In challenging the court's dismissal of the strict liability and implied warranty claims, Bingham argues that subsection 613.18(1)(a) does not give the seller a complete exemption from suit. Bingham asserts the general immunity is qualified or limited by the requirements of subsection 613.18(1)(b). He urges the intent of subsection 613.18(1) was to provide immunity to wholesalers, retailers, distributors and other sellers upon proof that the manufacturer was subject to the jurisdiction of Iowa courts and had not been declared judicially insolvent. We disagree with Bingham's construction of the statute.
In interpreting Iowa Code section 613.18, we keep our familiar rules of statutory construction in mind. See, e.g., American Asbestos v. Eastern Iowa Community College, 463 N.W.2d 56, 58 (Iowa 1990). The statute is divided into two subsections. Subsection 613.18(1) pertains to wholesalers, retailers, distributors and other sellers who are not the manufacturer or designer of the product and who do not assemble the product. Subsection 613.18(2) pertains to retailers who do assemble the products they sell.
Subsection 613.18(1) is itself divided into two paragraphs. Paragraph 613.18(1)(a) provides for immunity from suit when the potential claim arises solely from defects in the original design or manufacture of the product. Paragraph 613.18(1)(b) limits strict liability and implied warranty claims when the claims do not arise solely from an alleged defect in the original design or manufacture of the product. Examples of suits arising under paragraph 613.18(1)(b) include suits under strict liability for failure to warn about the dangers of a product. See, e.g., Cooley v. Quick Supply Co., 221 N.W.2d 763, 768-69 (Iowa 1974) (citing Restatement § 402A); LaCoste v. Ford Motor Co., 322 N.W.2d 898, 900 (Iowa App.1982); Prosser & Keeton on Torts § 99, at 695 (5th ed. 1984); 63 Am. Jur.2d Products Liability § 545 (1984).
There is no dispute that Huschart, the distributor, sold, but did not assemble, the drill. Thus, subsection 613.18(2) is inapplicable. It is also clear that Bingham's claim is one that arises solely from an alleged defect in the original design or manufacture of the product. Thus, subsection 613.18(1)(a) is applicable and provides Huschart with a statutory immunity from suit. Subsection 613.18(1)(b) does not impose a limitation upon the immunity protection of subsection 613.18(1)(a); it provides alternate protection against strict liability and breach of implied warranty for suits against nonmanufacturers where the defect was not in the original design or manufacture. Subsection 613.18(1)(a) provides a "person ... is immune from any suit based upon...." Subsections 613.18(1)(b) and (2) provide a "person ... is not liable for damages based upon ... upon proof that...." Although the statute is not a model of clarity, we believe the immunity protection of 613.18(1) is not dependent upon proof that the manufacturer of the product is subject to the jurisdiction of the courts of this state and has not been declared judicially insolvent as required in subsections 613.18(1)(b) and (2).
The district court was correct in granting Huschart's motion to dismiss Bingham's strict liability and implied warranty claims.
III. Evidentiary Rulings.
A trial court is granted a broad range of discretion in determining the admissibility of evidence and in giving instructions to the jury. We therefore review to determine whether the court abused its broad range of discretion. See, *81 e.g., State v. Harmon, 238 N.W.2d 139, 145 (Iowa 1979).
A. Evidence of Subsequent Remedial Measures.
Bingham claims that Huschart was negligent in failing to give proper safety instructions and warnings to Deere, the purchaser of the drill. Bingham offered evidence that Deere had changed the control mechanisms on the drill after he suffered his injuries.
Huschart objected to the evidence of Deere's subsequent remedial measures to the drill; citing both Iowa Rules of Evidence 407 and 403. However, it was eventually conceded that rule 407 did not prohibit the introduction of such evidence because the subsequent remedial measure had been taken by one other than the defendant. The court excluded the evidence based upon rule 403. Rule 403 permits the exclusion of relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.
We, like the federal courts and the trial court, believe that rule 407 does not prohibit the introduction of evidence of subsequent remedial measures if they are undertaken by a third party nondefendant. See Raymond v. Raymond Corp., 938 F.2d 1518, 1524 (1st Cir.1991) ("Rule 407 applies only to subsequent remedial measures taken voluntarily by the defendant.") (emphasis supplied) (citing cases). See also, E. Cleary McCormick on Evidence § 275, at 816 (3d ed. 1984); Annotation, Admissibility of Evidence of Subsequent Remedial Measures Under Rule 407 of the Federal Rules of Evidence, 50 A.L.R.Fed. 935 § 3, at 937 (1980 & 1991 Supp.); Annotation, Admissibility of Evidence of Subsequent Repairs or Other Remedial Measures in Products Liability Cases, 74 A.L.R.3d 1001 § 4[b], at 1016 (1976 & Supp.). Even though such evidence may not be prohibited by rule 407, it still may be excludable on other grounds, including rule 403.
Many federal courts have excluded evidence of subsequent remedial measures on the basis of rule 403 when rule 407 has been held inapplicable. See, e.g., Raymond, 938 F.2d at 1524 and cited cases. See also Petree v. Victor Fluid Power, 887 F.2d 34, 39 (3d Cir.1989). We agree with the reasoning of the 1st Circuit in Raymond:
This does not necessarily mean, however, that the evidence must be admitted. As discussed supra, evidence may be excluded under Fed.R.Evid. 403 if its probative value is outweighed by the unfair prejudice that could result. Rule 403 may be used to exclude evidence of subsequent third party actions which are felt to bear only marginally on the question of whether a product was unreasonably dangerous at the time of manufacture. Grenada Steel [Industries, Inc. v. Alabama Oxygen Co., Inc.] 695 F.2d [883] at 889 [(5th Cir.1983)] (Evidence of subsequent nonparty repairs was properly excluded under 403 because it "lacked probative value and injected the dangers of confusion and misleading the jury."); Gauthier v. AMF, Inc., 805 F.2d 337, 338 (9th Cir.1986) (Evidence of nonparty manufacturer's subsequent design changes should have been excluded under 403 as irrelevant.); Koonce [v. Quaker Safety Products & Manufacturing Co.] 798 F.2d [700] at 720 [(5th Cir.1986)] (Memo written by nonparty to suit regarding safety measures taken in response to accident could properly have been excluded as prejudicial or misleading.).
Id. at 1524-25.
Evidence of Deere's modification of the drill by installing two hand button controls has little relevance to Bingham's negligence claim based upon failure to give proper instructions and warning. It would have greater relevance in proof of a strict liability claim, a claim properly dismissed by the court. We believe that the trial court was well within its discretion to exclude the evidence of the subsequent remedial measure taken by Deere based on rule 403.
B. Other Evidentiary Rulings.
We have reviewed Bingham's other evidentiary challenges and find them without *82 merit. The court did not abuse its discretion in initially excluding testimony made by Deere's safety director who was a production supervisor at the time the drill was purchased. The original proffered testimony related to what action Deere would have taken had the warning been given at the time of purchase. The witness was later allowed to testify as to what actions he would have taken as safety director had a warning been given to Deere prior to Bingham's injury. Thus, substantially the same evidence was later in the record without objection.
The exclusion or admission of certain expert testimony, based upon the court's determination of the qualification of the witness, was well within its discretion. The court can properly consider the experience and familiarity with the subject, or the lack thereof, in assessing the witness' qualifications.
The exclusion of evidence relating to Bingham's loss of earning capacity is not reversible error. No prejudice can be shown. Even if the court improperly excluded evidence offered to prove damages, it is not reversible error where the jury finds in favor of the defendant on the issue of liability. Shawhan v. Polk County, 420 N.W.2d 808, 811 (Iowa 1988).
We have followed well-established standards in our review of the propriety of the submission of instructions to the jury. See Young v. Gregg, 480 N.W.2d 75, 80 (Iowa 1992). We find no prejudicial error in the instructions actually given or in the court's refusal to give Bingham's requested instructions. The instructions given thoroughly and fully presented the issues to the jury so that it had a proper understanding of the law to be applied in reaching a verdict.
IV. Conclusion.
We affirm the district court judgment. We were required to expend additional time and energy in addressing the issues in this appeal because appellant's counsel is unfamiliar with the Iowa Rules of Appellate Procedure. We urge appellant's counsel to carefully review and comply with our rules in the future; specifically rule 14(a)(5).
AFFIRMED.
NOTES
[1] Bingham's wife, Christine, was also a named plaintiff in the suit. Christine's claims are for loss of consortium. We will refer to the Binghams in the singular.
| {
"pile_set_name": "FreeLaw"
} |
32 So.3d 623 (2010)
BRUNO
v.
McNEIL.
No. 1D10-1380.
District Court of Appeal of Florida, First District.
April 9, 2010.
Decision Without Published Opinion Habeas Corpus denied.
| {
"pile_set_name": "FreeLaw"
} |
Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.
ENTRY ORDER
SUPREME COURT DOCKET NO. 2012-323
FEBURARY TERM, 2013
In re S.M., Juvenile } APPEALED FROM:
}
} Superior Court, Chittenden Unit,
} Family Division
}
} DOCKET NO. 379-10-08 Cnjv
Trial Judge: Edward J. Cashman
In the above-entitled cause, the Clerk will enter:
Father appeals from the termination of his parental rights in S.M. We affirm.
The record shows the following history. S.M. was born in July 1998. She was taken into the
custody of the Department for Children and Families (DCF) in 2008 after telling a school guidance
counselor that her stepfather was sexually abusing her. S.M. was adjudicated as a child in need of care
or supervision in January 2009. In October 2011, mother indicated to the court that father was S.M.’s
biological parent. Genetic testing confirmed this, and father was added as a party. Father played no
direct or indirect caretaking role in S.M.’s life. He saw S.M. twice in her life, once shortly after her
birth and once many years later at a DNA testing session. Mother voluntarily relinquished her parental
rights and following a hearing, the court terminated father’s rights.
The court found as follows. S.M. has a long history of sexualized behavior consistent with
being sexually abused. She exhibited severe developmental delays throughout her life and expressed
herself with violence at school. A doctor who examined S.M. opined that she had lengthy exposure to
an unhealthy and unstable family setting that included sexual and physical abuse among family
members. Despite her chronological age of fourteen, S.M. had the emotional and intellectual skills of
a first grader. The court found that S.M. had shown improvement in her foster home. She also
received significant assistance from numerous school professionals at her new school. The court found
that any success that S.M. had gained came from the coordinated efforts of her caseworker, foster
family, school-based clinician, an educational surrogate, a school social worker, and a special educator.
Given S.M.’s numerous needs, the court found that she needed a primary caretaker who understood the
challenges she faced and could provide sustained cooperation with a treatment team that included a
social worker, school officials, and other health care providers.
As noted above, father had essentially no contact with S.M. nor did he meaningfully participate
in the DCF proceedings. Father was aware shortly after S.M.’s birth that mother claimed he was the
child’s father. Father ignored the court’s advice at the time to pursue DNA testing, and otherwise
ignored the child. Father stated that he thought mother was doing fine with S.M. and “walked away”
from the situation. The court noted that father also abandoned another child from a different
relationship.
Father admitted that he knew nothing about S.M. He had no sense of her present needs, her
medical, physical, and emotional history, her current siblings and friends, her progress in school, or
even her grade level. He mistakenly believed that she suffered from epilepsy. Father was unconcerned
about removing S.M. from her foster family and her foster siblings. Father asserted that mother,
S.M.’s foster parents, and the case worker had brainwashed the child. Father did not explain what he
meant by that term or what facts supported his claim.
The court noted that father also appeared to be physically unable to care for S.M. Father had
heart disease, high blood pressure, and diabetes. Additionally, father’s wife provided the primary care
for three small children, including a newborn. Father was not clear whether his wife would be willing
to care for an additional child, and he had given no thought to how these children would react to S.M.’s
presence. Father admitted that left to his own skills and abilities he would be unable to care for S.M.
Based on these and other findings, the court agreed with DCF that father had abandoned S.M.
shortly after her birth and that he lacked the skills necessary to parent her. The facts of abandonment
were uncontested. Father provided no emotional, financial, or other support for S.M. He took no
action regarding the child, other than opposing the termination of his residual parental rights. He had
not participated in the DCF proceedings. He sought out no information from S.M.’s caseworker,
treatment providers, or school authorities.
The court also found that father presented no favorable evidence under any of the statutory
best-interests factors. He had no relationship with S.M. and no understanding of her special needs or
behavior problems. S.M. had adjusted favorably to her living situation with her foster family. Father
was unaware of the child’s progress with her foster family, yet would remove her from this setting to
an uncertain placement within his own home. The court found it clear from the evidence that father
lacked an adequate understanding of how and if the child would fit into his home, or who would care
for her. S.M. was loved and wanted in the foster setting. She was making progress there, was happy,
and wanted to stay. The court found that father had not accepted responsibility for the care of his
children, and he had abandoned two children. He had no observable skill or experience with child
rearing. Father suffered from debilitating health issues that would seem to prevent his providing
anything beyond the most superficial supervision of another caretaker’s efforts to struggle with S.M.’s
many needs. He demonstrated no insight into the depth and variety of S.M.’s needs. He proffered no
current capacity, or future means by which to gain the skills and motivation needed, to effectively
address those needs. Father played no constructive role in the child’s life. The court thus concluded
that termination of father’s rights served S.M.’s best interests. Father appealed.
As we have often repeated, the superior court “may terminate parental rights only when it finds
by clear and convincing evidence that to do so is in the best interests of the child as determined by
consideration of four statutory factors.” In re J.B., 167 Vt. 637, 639 (1998) (mem.); see 33 V.S.A.
§ 5114. The most important factor in the court’s best-interests analysis “is the likelihood that the
parent will be able to resume parental duties within a reasonable time.” In re J.B., 167 Vt. at 639. As
long as the court applied the proper standard, we will not disturb its findings on appeal unless they are
clearly erroneous; we will affirm its conclusions if they are supported by the findings. In re G.S., 153
Vt. 651, 652 (1990) (mem.).
Father first argues that the court erred by treating abandonment per se as an independent
ground for termination of parental rights. We need not address this issue because the record shows that
the court applied the statutory best-interests factors and its conclusion that termination of father’s
rights is in S.M.’s best interests is amply supported by the record. As father acknowledges, the
uncontested evidence that father abandoned S.M. was certainly relevant to this analysis.
Father next argues that the court’s conclusion that he lacked parenting skills is based in
material part on clearly erroneous findings. According to father, the court speculated in finding that he
2
appeared physically unable to care for S.M., and it erred in finding that he had not accepted
responsibility for the care of his children and had no observable skill or experience with child rearing.
Father also states that his wife wanted S.M. to join their family, contrary to the court’s finding that he
was unclear on this issue. Finally, father argues that the court erred in finding him unconcerned about
removing S.M. from her foster home. Father maintains he thought it would beneficial for S.M. to live
with her biological siblings and that his “brainwashing” comment was based on his own experience in
DCF custody.
Even assuming arguendo that the findings above were clearly erroneous, they would not
undermine the court’s well-supported conclusion that termination of father’s rights was in S.M.’s best
interests. See In re G.F., 2007 VT 11, ¶ 15, 181 Vt. 593 (mem.) (explaining that superior court’s
decision will be upheld, despite clearly erroneous findings, if other valid findings also support court’s
conclusion). As set forth above, father played no role whatsoever in S.M.’s life and none of the
statutory best-interest factors weighed in his favor.
In any event, with one exception, the findings challenged by father are supported by the record.
The court could reasonably infer, based on the evidence presented, that father’s health issues might
have an impact on his physical ability to care for S.M. The court’s statement that father did not accept
responsibility for his children is supported by the uncontested fact that father abandoned two of his
natural children. Father’s testimony that the three children who currently live with him are “doing
great” does not demonstrate that he has the skills and experience necessary to parent S.M.
Additionally, while father testified that his wife wanted S.M. to live with them, it does not
necessarily follow that she would be willing (or able) to care for S.M. But even if the court did err in
finding it unclear whether father’s wife was willing to care for S.M., the error is harmless as the court’s
decision in no way turned on this finding. See In re B.M., 165 Vt. 194, 205 (1996) (Supreme Court
will not reverse superior court’s decision even if one or more finding is erroneous as long as findings
are not material to court’s decision).
Finally, the evidence supports the court’s finding that father was unconcerned about removing
S.M. from her foster home. Regardless of the context of the brainwashing comment or father’s belief
that it would be beneficial for S.M. to live with her biological siblings, the record shows that father
appeared to have no understanding of the impact that such removal would have on S.M. We find no
grounds to disturb the court’s conclusion that termination of father’s rights was in S.M.’s best interests.
Affirmed.
BY THE COURT:
_______________________________________
Paul L. Reiber, Chief Justice
_______________________________________
John A. Dooley, Associate Justice
_______________________________________
Brian L. Burgess, Associate Justice
3
| {
"pile_set_name": "FreeLaw"
} |
Case: 14-10576 Date Filed: 08/22/2014 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10576
Non-Argument Calendar
________________________
D.C. Docket No. 3:12-cr-00048-CAR-CHW-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ULYSSES ANTWAIN BLACKMON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(August 22, 2014)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Ulysses Antwain Blackmon appeals his conviction for conspiracy to possess
cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
(b)(1)(C). He argues that: (1) the district court erred by denying his motion to
Case: 14-10576 Date Filed: 08/22/2014 Page: 2 of 4
suppress evidence of cocaine; and (2) the district court abused its discretion by
denying his motion for a mistrial. After careful review, we affirm.
We apply a mixed standard of review to the denial of a motion to suppress,
reviewing factual findings for clear error and the application of law to those facts
de novo. United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). We
construe all facts in a light most favorable to the prevailing party. Id. We review
de novo a court’s determination of probable cause, Ornelas v. United States, 517
U.S. 690, 699 (1996), and constitutional errors, United States v. O’Keefe, 461 F.3d
1338, 1346 (11th Cir. 2006). We accept testimony deemed credible by the district
court unless it violates laws of nature or is so inconsistent that no reasonable
factfinder would accept it. United States v. Ramirez-Chilel, 289 F.3d 744, 749
(11th Cir. 2002). Finally, we review for abuse of discretion the denial of a motion
for mistrial. United States v. Chastain, 198 F.3d 1338, 1351 (11th Cir. 1999).
First, we reject Blackmon’s claim that the court should have suppressed
cocaine found during a consensual search of the vehicle he was riding in because
the officer lacked probable cause for the initial traffic stop. An officer is permitted
to conduct a warrantless investigatory stop when he has probable cause to believe a
traffic offense has occurred or reasonable suspicion of criminal activity. United
States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009). This standard is met
2
Case: 14-10576 Date Filed: 08/22/2014 Page: 3 of 4
when an officer personally observes a traffic infraction. United States v. Harris,
526 F.3d 1334, 1338 (11th Cir. 2008).
In this case, the officer testified that he witnessed two traffic infractions
committed by the driver of the vehicle Blackmon was riding in, and the district
court concluded that the officer’s testimony was credible. Blackmon argues that
the officer could not have distinguished the tag light and failed to corroborate his
observation of a lane violation, but the officer’s testimony to the contrary was
deemed credible by the district court. Because the officer’s testimony was not so
inconsistent that no factfinder could reasonably accept it, the district court did not
err by concluding that the officer had probable cause to justify an investigative stop
or by denying Blackmon’s motion to suppress.
We also are unpersuaded by Blackmon’s claim that the district court abused
its discretion by denying his motion for a mistrial after a government witness
committed a Doyle 1 violation. A defendant’s due process rights are violated if the
prosecution attempts to use his silence after receiving a Miranda2 warning to
impeach him. Doyle, 426 U.S. at 619. A statement references the defendant’s
silence if “it was the prosecutor’s manifest intention to refer to the defendant’s
silence” or if the statement would naturally and necessarily be understood by the
1
Doyle v. Ohio, 426 U.S. 610 (1976).
2
Miranda v. Arizona, 384 U.S. 436 (1966).
3
Case: 14-10576 Date Filed: 08/22/2014 Page: 4 of 4
jury to be a comment on the defendant’s silence. United States v. Dodd, 111 F.3d
867, 869 (11th Cir. 1997). A single statement about the defendant’s silence does
not show a manifest intent to reference the defendant’s silence when it is a direct
response to an open-ended question from defense counsel. Chastain, 198 F.3d at
1351-52.
As the record here shows, the government witness’s brief reference to
Blackmon’s refusal to submit to an interview was given in response to an open-
ended question on cross-examination. Furthermore, the witness’s statement -- that
he had “attempt[ed] to interview Mr. Blackmon” -- could not be understood
necessarily as a comment on Blackmon’s silence because it could also be
interpreted as a statement that the witness was unable to schedule an interview with
Blackmon. On this record, the district court did not err in concluding that such a
passing reference was not manifestly intended to reference Blackmon’s silence.
Therefore, the district court did not abuse its discretion by denying Blackmon’s
motion for a mistrial.
AFFIRMED.
4
| {
"pile_set_name": "FreeLaw"
} |
395 So.2d 766 (1981)
STATE of Louisiana
v.
Diane SUMLER.
No. 63810.
Supreme Court of Louisiana.
March 2, 1981.
Rehearing Denied April 6, 1981.
*767 William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., J. Carl Parkerson, Dist. Atty., Steven A. Hansen, Asst. Dist. Atty., for plaintiff-appellee.
Thomas W. Davenport, Jr., Monroe, for defendant-appellant.
DIXON, Chief Justice.
In December, 1977 defendant appeared in a hospital emergency room with her eighteen month old son. Forty per cent of his body had been burnedfrom his waist down to his toes; thirty per cent of his body was covered with third degree burns burns completely through the skin, down, at least, to the subcutaneous fat layer. His skin was blistered, cracked open and peeling. The third degree burns required grafting procedures. The child had received the burns in a bathtub.
Defendant was tried before a district judge, and was convicted of cruelty to a juvenile. R.S. 14:93. Four assignments of error are raised in this appeal. None have merit.[1]
Assignments of Error Nos. 2 and 3
While at the hospital, defendant made certain inculpatory remarks to the physician who examined her child and to a police officer who was investigating the case. She was not advised of her rights prior to making these statements, and claims that the statements should have been held inadmissible.
The physician had asked defendant to explain how the child had been burned. This inquiry was obviously part of the doctor's effort to diagnose the child's condition accurately. The burns were critical, and the manner in which they were caused was apparently of medical significance. Defendant told the doctor that she had put the child in a bathtub to give him a bath, and that she had left the room for a few minutes to check on another child. When she returned, she said, the child was burned.
Defendant gave substantially the same story to the police officer. In addition, though, she told him that she had been "mad" at her child when she bathed him, that she turned on more hot water than cold, and that she pushed the baby back into the tub when he tried to get out. She said that she had been out of the bathroom for about three minutes when she heard the child crying, and that she saw steam rising from the tub when she returned.
These inculpatory remarks are not confessions, but admissions. R.S. 15:449. Defendant did not admit guilt, but merely acknowledged facts that tended to establish her guilt; at the same time, she attempted to explain her behavior in a manner that made the burning seem accidental. Such admissions are exempt from the hearsay rule. R.S. 15:434, 449 et seq. Compare F.R.E. 801(d)(2). It is clear that defendant made the statements voluntarily.
Defendant, however, takes the position that her statements were unconstitutionally solicited, and that they should not have been admitted into evidence. Reliance is placed upon the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Art. 1, § 13 of the Louisiana Constitution.
Article 1, § 13 states in part:
"When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel...."
This article essentially incorporates the procedural safeguards established in Miranda v. Arizona, supra, although the term "detained" might have a slightly different meaning than the term "custody" used in *768 the Miranda case. Hargrave, "The Declaration of Rights of the Louisiana Constitution of 1974," 35 La.L.Rev. 1, 40-42 (1974). A suspect is entitled to be informed of the right to silence, the privilege against self incrimination and the right to the assistance of counsel when he is "arrested or detained," that is, when he is subjected to custodial interrogation. The United States Supreme Court explained it this way:
"... By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way...." Miranda v. Arizona, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706.
Under both the Miranda decision and Art. 1, § 13, a suspect is considered to be detained or held in custody when he "necessarily and reasonably must have understood that he was under compulsion to remain and submit to questioning." State v. Menne, 380 So.2d 14, 17 (La.1980).
The basic purpose of the warnings is to counteract "the coercive potential of police interrogation." State v. Segers, 355 So.2d 238, 244 (La.1978). For that reason, the warnings are not necessary when a coercive environment is not present: "police officers are not required to administer Miranda warnings to everyone whom they question." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714, 719 (1977). In determining whether a custodial or inherently coercive situation exists, this court has generally examined factors "indicating the degree the police suspect the person interrogated of committing the offense ..." State v. Segers, supra, 355 So.2d at 243-44. These factors include the existence of probable cause to arrest, the focus of the police investigation, and the reasonable beliefs of the person being questioned. See State v. Redic, 392 So.2d 451 (La.1980); State v. Jones, 386 So.2d 1363 (La.1980); State v. Menne, supra.
Defendant argues that the emergency room physician was acting as an agent of the state because he was under a legal duty to report any possible case of child abuse. R.S. 14:403. It is unnecessary to respond to this argument because the record clearly indicates that defendant was not being detained or deprived of her freedom in any significant way when she responded to the doctor's questions. The only compulsion under which she could have labored would have been a desire to aid the physician in treating her child's severe and disfiguring injuries.
The case is slightly different with regard to the police officer's questioning. The officer had received a radio dispatch reporting a possible case of child abuse. He was required to make a report of his findings, and determined that his best source of information was the child's mother. The officer asked defendant to step outside the emergency room, where he could talk to her privately. She readily responded, and made the statements in question.
The officer's investigation was obviously in a preliminary stage. He had no reason to suspect that defendant had committed a crime, and had not focused his investigation upon any person. Cf. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964). Indeed, the officer did not arrest defendant even after the statements were made. Cf. State v. Redic, supra. It is evident that the officer was simply gathering general information about the circumstances of the case so that he could complete his report; his efforts were purely investigatory, and should not have placed the defendant under apprehension that she was under any compulsion to remain with the officer and answer his questions. Cf. State v. Menne, supra. Under these circumstances, it was not necessary for the officer to advise defendant of her rights. The trial judge correctly admitted the statements into evidence.
Assignment of Error No. 4
At the close of the prosecution's case in chief, defense counsel made a motion for acquittal. Such a motion can be granted only if the evidence presented by the state "is insufficient to sustain a conviction." *769 C.Cr.P. 778. In reviewing claims of insufficiency of evidence, this court has applied the standard established in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979): whether a rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could conclude that the offense was proven beyond a reasonable doubt.
When the trial judge denied defendant's motion,[2] the following circumstantial evidence was before him: defendant's child was severely burned from the waist to his toes, but no burns were apparent on his hands or his upper torso; the water in the tub was hot enough to cause third degree burns, the most severe type of burn, which causes damage not only to the skin but to the layers of flesh beneath the skin. These circumstances alone foreclose any reasonable doubt that the injuring might have been accidental: the pattern of the burns indicates that the child did not splash about or use his arms to try to push himself out of the tub. It is not reasonable to believe that an eighteen month old child would sit passively in a tub of scalding water without kicking, thrashing, or trying to push himself up out of the water in an attempt to get out. The absence of any burns on his hands, arms or above his waist is consistent only with the child's being held in the hot water by another person.
According to the policeman who took the initial report, defendant admitted that she was angry at her boy when she was bathing him, and that she pushed the baby back into the tub when he tried to climb out. She also stated that she had adjusted the faucet so that the tub was filled with more hot water than cold; that she left the bathroom and that she heard her son crying, but that she left him alone for several minutes.
The offense of cruelty to a juvenile is defined as "the intentional or criminally negligent mistreatment or neglect, by anyone over the age of seventeen, of any child under the age of seventeen whereby unjustifiable pain or suffering is caused to said child." R.S. 14:93. The term "intentional," as used in the statute, refers to general criminal intent, "present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act." R.S. 14:10(2). Defendant admitted that she deliberately pushed her child back into a tub of hot water when he tried to climb out. If she did not know that the water was hot enough to scald her child, it would have taken no effort to find out. Criminal negligence exists when "there is such disregard of the interest of others that the offender's conduct amounts to a gross deviation below the standard of care expected to be maintained by a reasonably careful man under like circumstances." R.S. 14:12.
Under either theory of criminal responsibility, intentional or accidental mistreatment, the state presented sufficient evidence of guilt beyond a reasonable doubt in its case in chief. Defendant drew the bath and adjusted the temperature; the water was scalding hot; the baby was obviously restrained from leaving the tub, a fact corroborated by his mother's admission; and the child was left in the tub for some minutes. The state's evidence tended to show, beyond a reasonable doubt, that defendant either deliberately filled the tub with hot water and then held her son in the tub to punish him, or that she carelessly allowed the water to become scalding and then held him in the tub, a gross deviation *770 below the standard of care expected of her. The absence of burns on any portion of the child's body except that area that was exposed to the water while he was in a sitting position is a singular circumstance which excludes any reasonable doubt as to defendant's innocence. R.S. 15:438. The child was restrained in the tub, when the water was scalding, by defendant. Accordingly, there was sufficient evidence of guilt to deny the motion for acquittal.
Defendant's conviction and sentence are affirmed.
NOTES
[1] Assignment of Error No. 1 complained of an improper foundation for the introduction of Polaroid photographs because the officer who snapped the shutter did not identify them only the officer who took the prints from the camera, held them while they developed, and peeled the backing from the finished pictures. The assignment is wholly without merit.
[2] Under the authority of State v. Smith, 332 So.2d 773 (La.1976) (Dixon, Calogero and Dennis, JJ. dissenting), this court is allowed to review all of the evidence presented at trial in determining whether a motion for acquittal should have been granted. Whatever the merits of this rule, it need not be invoked in the present case, since the evidence presented by the state in its case in chief affords a sufficient basis for denying the motion. Our review is limited to the evidence to which the motion for acquittal was directed. Defendant does not contend that the evidence as a whole is insufficient to support the conviction. See C.Cr.P. 920.
| {
"pile_set_name": "FreeLaw"
} |
342 P.2d 580 (1959)
Ex parte Bobbie Jean CRAWFORD.
No. A-12774.
Court of Criminal Appeals of Oklahoma.
July 29, 1959.
Carroll Samara, Paul G. Darrough, Oklahoma City, for petitioner.
Mac Q. Williamson, Atty. Gen., Raymond Theimer, Asst. County Atty., Oklahoma City, for respondent.
*582 NIX, Judge.
The petitioner filed herein a petition for writ of habeas corpus through which she prays for her discharge from a writ of extradition. Petitioner herein resists being turned over to the state of Texas upon the sole grounds that she is not a fugitive from justice as she was not in the state of Texas at the time of the alleged crime.
The facts are that the demanding state contends that the petitioner committed the offense of forgery by writing a $5 check on the 24th day of July, 1958, in the name of B.J. Barton and passing same to Cabell's Minit Market in Midland, Texas. A governor's warrant was issued ordering the petitioner extradited to the state of Texas. An informal hearing was had before the Governor's representative and petitioner ordered sent back to the demanding state. It is alleged at said hearing that petitioner and her witnesses were denied the right to testify, and that the demanding state offered in support of their demand for extradition one witness who was not sworn and did not testify under oath. Petitioner filed a petition for a writ of habeas corpus in the District Court of Oklahoma County. Upon hearing of testimony the court denied the writ. The petitioner then lodged her petition for a writ of habeas corpus in this court. The transcript of the governor's hearing and the testimony of the hearing before the District Court are submitted in support of the petition.
There was submitted in evidence a check in the amount of $5 made payable to the Cabell Minit Market in Midland, Texas, and signed by B.J. Barton, dated July 24, 1958. A witness, Charles Elliott, testified he was cashier at said store and he remembered petitioner as the one who gave him the check. He did not remember having seen the petitioner before nor since until the hearing before the Governor's representative, Mr. Sam Crossland. The time expiring between the dates of giving the check and the hearing was approximately nine months. He testified he noticed no change in her appearance other than she was better dressed. Petitioner denied having been in Texas, denied writing the check, and testified that she left Texas on July 4, 1958, to bring her year old baby to the University Hospital to be treated for a serious liver condition. She further stated that the baby was placed in the hospital on July 7 and remained there until September 10, 1958. This is verified by hospital records. The evidence reflects that on July 24 petitioner was six and one half months pregnant, and was showing conspicuously on that date. Witness Elliott made no mention of this in identifying the petitioner. Petitioner further testified that she stayed with her mother, a resident of Oklahoma county for thirty days, during the time her baby was in the hospital and that she visited her baby at the University Hospital every evening from three until 8 from July 7 until September 10. Her visits were necessary because she was the only one who could feed the baby its evening meal. She stated that she had not been in Texas since July 4, 1958, and definitely did not write nor pass the check in question.
Mrs. H.R. Price, a resident of Oklahoma county, testified she met petitioner at the train on July 5 when she arrived in Oklahoma City and took petitioner to her mother's home. That she saw the petitioner every day during the month of July as she took her to visit the baby every evening from three until eight from July 7 until September 10 and that she could not have been in Texas on July 24.
Petitioner's mother, Mrs. Dick Pugh stated she had lived in Oklahoma City thirty years; that petitioner stayed in her home through the month of July and that she visited the hospital every day to feed the baby; that she was in her home on July 24 and could not have been in Texas.
Mrs. Sarah McArthur, a nurse at the University Hospital, testified that petitioner visited her baby every day from July 7 until September 10 and was the only one who could feed the baby.
Buck Linley Crawford, the husband of the petitioner, testified he lived in Midland, Texas; that he took his wife to the train *583 on July 4 to bring the baby to University Hospital; that he communicated with his wife at least twice each week by telephone; that his wife had not been back to Texas since she left to his knowledge and that there was nothing between them to keep petitioner from visiting him had she returned.
Carroll Samara, attorney for petitioner, testified that the only person identifying petitioner as the one who gave the check was Mr. Elliott who at the time of the hearing in District Court was wearing unusual thick eye lenses and had an obvious vision deficiency and appeared to be mentally retarded.
The testimony further reflects that petitioner was in court in Oklahoma City during the month of July on a child custody case, wherein her former husband, Mr. Barton, and parents, residents of Midland, Texas, were attempting to take custody of petitioner's minor daughter, then age 10.
Petitioner's brief by innuendo leaves the inference that the extradition is in bad faith and arises from litigation between a former husband and in-laws to obtain custody of petitioner's child. However, this court is concerned chiefly with the question of whether petitioner is a fugitive as to warrant extradition since the passage of the Uniform Criminal Extradition Act 1949, 22 O.S. 1951 § 1141.1 et seq. This court has held that the court is limited in its inquiry as stated in the case of Ex parte Deere, 93 Okl.Cr. 291, 227 P.2d 420, 421:
"Where extradition papers required by statute are in proper form and extradition warrant has been issued by the Governor, and the extradition is not based upon the provisions of Sec. 6 of Uniform Criminal Extradition Act, 22 O.S.Supp. § 1141.6, the only evidence admissible on habeas corpus to secure release from custody under the warrant of extradition is such as may tend to prove that defendant was not in demanding state at time crime was allegedly committed, or that the person sought to be extradited is not actually the person charged with the crime in the demanding state."
Prior to that time the court was committed to the rule that the question of good faith of the prosecution is open to inquiry on habeas corpus and that the proceedings may be reviewed to see that no extradition is consummated on a mere pretext or to subserve private malice or some ulterior purpose. However, it is not necessary herein to discuss whether the adoption of the Uniform Criminal Extradition Act completely closes the door to inquiry into motive or good faith where the evidence is clear and convincing, as no evidence was offered in the case at bar, to overcome the presumption of good faith. Under the majority rule the court may inquire into the questions of whether petitioner was the person charged or whether she was a fugitive from justice. In considering the evidence in this respect the court is fully cognizant of its duty and responsibility to lend the state's fullest cooperation to the strict enforcement of the Act and never permit our state to become an asylum for fugitives from justice. On the other hand the authority to protect the citizens of this state from illegal arrest and detention must never be watered down, waived, or abandoned. The requirements which the demanding state must adhere to are simple and well established by law: that the accused must be charged with a crime in demanding state and be a fugitive from justice of such state. However, if in a habeas corpus proceeding, accused can successfully controvert either, he or she is entitled to be discharged.
In the instant case petitioner produced five witnesses to support the contention that she was not in the state of Texas at the time of the alleged crime. Their testimony was clear, cogent and most convincing. The hospital records bear out the fact that petitioner's one year old child was confined during the month in which the crime was committed. The witness Price testified positively that she took petitioner to the hospital each and every day during the *584 child's confinement and that petitioner was the only one who could give the baby its evening meal. This was also substantiated by witness Pugh, petitioner's mother. Great weight was given by this court to the testimony of Mrs. Sarah McArthur, who was then and is now a nurse at the University Hospital who saw petitioner as she visited her baby each and every day during the month of July. Neither the District Court nor the Governor's office had the benefit of this testimony as she was not called upon to testify at either hearing. Petitioner's husband who lives in Midland, Texas, substantiated the testimony.
The demanding state presented one witness who identified petitioner though he had not seen her before or after the alleged crime, nine months prior to the hearing. There was evidence that said witness had an obvious visual impairment and portrayed the actions of a person somewhat retarded.
The court was impressed by the fact that no mention was made by the witness for the demanding state relative to petitioner being six months pregnant at the time the alleged crime was committed. It is doubtful if said witness could have been so positive without noticing this feature at the time. No expert testimony was presented by the state as to handwriting comparison and this court does not attempt to make any comparison or hold itself out as capable of doing so. The court is of the opinion that the combined evidence of petitioner is clear, positive, satisfactory, and convincing and is sufficient to controvert the assertion that she is a fugitive from justice. This court approves the language set forth in 39 C.J.S. Habeas Corpus § 39, p. 558:
"The court will not discharge a defendant arrested under an extradition warrant where there is merely contradictory evidence on subject of presence in, or absence from the state, as habeas corpus is not the proper proceeding to try the question of alibi, or any question as to the guilt or innocence of accused. If, however, it clearly appears that accused is not in fact a fugitive, discharge will not be refused simply because there is some conflict in the evidence."
In a habeas corpus proceeding resisting extradition the burden of proof is upon the petitioner to controvert the allegation as to being a fugitive from justice. In the case at bar the court feels the burden was assumed and proof was adequate to require her discharge.
The writ is therefore granted and petitioner ordered discharged.
POWELL, P.J., and BRETT, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
78 Ariz. 309 (1955)
279 P.2d 721
Daniel J. MARSIN, Petitioner,
v.
The Honorable Nicholas UDALL, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent.
No. 6032.
Supreme Court of Arizona.
February 3, 1955.
*310 Flynn, Van Haren & Stewart and John J. Flynn, Phoenix, for petitioner.
Honorable Nicholas Udall, Phoenix, in pro. per., and Wm. P. Mahoney, Jr., County Atty. and Charles C. Stidham, Deputy County Atty., Phoenix, for respondent.
Jennings, Strouss, Salmon & Trask, Phoenix, amicus curiae.
WINDES, Justice.
The county attorney of Maricopa County filed an information charging Daniel J. Marsin, hereinafter designated petitioner, with the crime of kidnapping for ransom, a felony. The local rules of the superior court of Maricopa County provide for the selection of the trial judge from nine judges available to be made by an assignment judge. Among the duties of this assignment judge is the hearing of all preliminary motions, the conduct of all arraignments, setting the trial date for all cases and, shortly prior to the respective dates of trial, assigning such cases for trial before a particular judge. Following that procedure, in July, 1954, prior to petitioner's arraignment, his counsel filed a motion to quash the information, a motion to return and suppress, a motion for bill of particulars and a motion for production of documents and tangible evidence for inspection by the defendant. The Honorable Nicholas Udall, respondent herein, serving in the capacity of assignment judge, heard arguments and passed upon the foregoing *312 motions. The trial date was finally fixed for January 11, 1955. On January 8th, the Honorable R.C. Stanford, Jr., then acting as assignment judge, assigned the case for trial before respondent and on January 10th, petitioner filed an affidavit of bias and prejudice against respondent. Respondent refused to recognize the affidavit upon the ground that he had theretofore heard and passed upon the foregoing motions and the affidavit was, therefore, not timely made and that he was required to try the case. Petitioner seeks a writ of prohibition to prevent respondent from trying the case. We issued an alternative writ.
The right to a fair and impartial trial before a fair and impartial judge is a valuable substantive right originating in the common law and recognized by statute in both criminal and civil cases. Neither this court nor the superior court can by rule of procedure deprive a party of the opportunity to exercise this right. Courts cannot enact substantive law. A court is limited to passing rules which prescribe procedure for exercising the right. Any rule of court that operates to lessen or eliminate the right is of no legal force. It has even been held by the Supreme Court of the United States that under some circumstances a procedure that had such effect offended the due process clause of the Federal constitution. Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749, 50 A.L.R. 1243. Of course, one may with knowledge of the facts, consent that his case be tried before a judge he thinks is biased and prejudiced. The privilege to challenge the judge's fairness carries with it the concomitant right to willingly submit to trial. He is not compelled to exercise the right but may waive it. Whether an affidavit of bias and prejudice is timely filed is dependent upon the law of waiver and before one can be said to have waived the right, he must first have had an opportunity to exercise it. A waiver is a voluntary relinquishing of a known right.
The court by procedural law can prescribe the conditions under which a party may be said to have consented that his case be tried before a particular judge, i.e., whether he has waived his right to challenge the fairness of the judge, provided it does not operate to deprive him of the right. To that end, this court passed Rule 251, Rules of Criminal Procedure, section 44-1204, A.C.A. 1939, to the effect that one expecting to exercise this right of challenge must file his affidavit of bias and prejudice at least three days before the case is called for trial. The respondent ruled that petitioner under the circumstances was not bound by the three-day rule, section 44-1204, supra. In this he was correct since the petitioner did not know who the trial judge was to be in time to comply therewith and, therefore, had no prior opportunity to challenge respondent's qualifications. A non-compliance with this rule cannot operate to prevent the affidavit of bias and prejudice *313 from being timely filed under such conditions.
The contention of respondent is that while petitioner was not barred from filing his affidavit by reason of the provisions of the three-day rule, section 44-1204, supra, his affidavit was untimely because of the law as pronounced by this court in Arizona Conference Corp. v. Barry, 72 Ariz. 74, 231 P.2d 426. That case decided (1) that the affidavit of bias and prejudice filed therein was untimely for the reason that if a petitioner permits a judge to rule upon any litigated or contested matter whatever, either on a motion or plea of the party making the affidavit, he waives the right, and (2) that if a judge had been permitted to go this far, he could not even disqualify himself unless in fact he were disqualified. There is a distinction between being in fact disqualified and being disqualified by reason of the filing of the affidavit. In the latter instance, it is the affidavit that disqualifies irrespective of whether the judge in fact is biased. Conkling v. Crosby, 29 Ariz. 60, 239 P. 506.
The Barry case was a civil case but the principles of law by which we determine whether one had lost his right to a fair and impartial judge are, of course, the same whether the case be civil or criminal. Consequently, if the reasoning of the Barry case is sound, respondent is correct in ruling that defendant, having permitted him to pass upon the preliminary motions, waived his right to file the disqualifying affidavit and that he, respondent, could not voluntarily relinquish the case unless in fact he was prejudiced against petitioner. Knowing respondent to be an honorable judicial official, we assume that he in fact had no prejudice and therefore, if he is to follow the Barry decision, he could not relinquish the case.
The Barry case ignored prior decisions of this court and adopted the rule of New Mexico. As we analyze the previous pronouncements of this court, it has been ruled that when evidence is taken, the right to challenge the judge on grounds of bias and prejudice is waived, if the evidence is to be used in the final determination of the case on its merits, Allan v. Allan, 21 Ariz. 70, 185 P. 539; when judgment is rendered on the pleadings thereby rendering a trial unnecessary, Mosher v. Wayland, 62 Ariz. 498, 158 P.2d 654; or when the trial has commenced to the extent of calling prospective jurors into the box for the purpose of selection, Sam v. State, 33 Ariz. 383, 265 P. 609. This court, prior to the Barry decision, was also committed to the proposition that when the court had heard a contested motion and had made an order requiring the defendant to pay costs, the right to disqualify the judge was not waived and was timely made after the court's decision. Stephens v. Stephens, 17 Ariz. 306, 152 P. 164, 166. Therein, this court said:
"But two or three orders had been entered by the court, one of which required the appellant to pay the costs *314 of appellee's witnesses up to the date of the last continuance. Appellee suggests that it was this order mulcting appellant for costs that prompted the latter to make his application for a change, and it is urged that an adverse ruling of that kind ought not to be allowed as a pretext or excuse for an affidavit of bias or prejudice. Whether that is the reason or not does not appear. The law does not require the affiant to give or assign any reason or reasons for his belief that he cannot have a fair and impartial trial because of the judge's bias or prejudice or interest. It requires him to make and file the affidavit and prescribes its contents, but it does not make it a condition of the affidavit that it shall be true, nor will it weigh or estimate the motive for making it. So then it matters not what may have prompted the affidavit, if it complies with the law and was made and filed in time."
It is apparent there is a conflict between the reasons upon which the Barry case is bottomed and the holding in the Stephens case. We do not think this court intended to overrule the Stephens case, else it would have said so. We think the failure to recognize it was inadvertent. Our view is that the Stephens decision is correct. To the extent, therefore, that Arizona Conference Corp. v. Barry, supra, is authority for the proposition that a party permitting a judge to pass upon any litigated or contested matter whatever, either on motion or plea, waives his right to disqualify the judge, that case is expressly disapproved.
Whether the result reached in the Barry case is correct for other reasons is a different matter. There the Honorable Judge Barry heard an application for temporary injunction to stop the construction of a church for the alleged reason it violated building restrictions. Voluminous evidence was taken, including the testimony of various witnesses and upon the request of all parties, the judge viewed the premises involved, examining the extent of construction and checking violations which had been testified to, thereby testing the accuracy of oral testimony. He then announced conclusions from the evidence submitted, including the physical evidence gained from his personal observations. We think under these circumstances the result reached that the affidavit in that case was untimely filed was correct for the reason that the parties had permitted the judge to accept evidence which of necessity would have a bearing on final determination of the matter on its merits. It would be superficial to say that Judge Barry if allowed to finally hear the matter for permanent injunction would not or could not use in making the final decision the physical evidence gathered from his visit to the properties. This physical evidence would necessarily be weighed against oral testimony submitted at the final hearing and might conflict therewith. The effect of all this *315 was that Judge Barry had partially tried the issue to be ultimately decided. This does not mean that all evidence submitted on a preliminary motion would operate to shut off a subsequent affidavit of bias and prejudice. Evidence of collateral matters not bearing on the final decision cannot constitute a waiver of the right to challenge the fairness of a judge, but this court is committed to the rule that if a judge is allowed to receive evidence which of necessity is to be used and weighed in deciding the ultimate issues, it is too late to disqualify him on the ground of bias and prejudice. Allan v. Allan, supra. The result reached in Arizona Conference Corp. v. Barry, supra, was correct for this reason only.
Since the reasons given for the decision in Arizona Conference Corp. v. Barry, supra, are disapproved, the affidavit herein was timely filed and the alternative writ of prohibition is made permanent.
LA PRADE, C.J., and UDALL, PHELPS, and STRUCKMEYER, Jr., JJ., concurring.
UDALL and PHELPS, Justices (specially concurring).
We agree with the majority that the respondent judge was effectually disqualified and hence the alternative writ of prohibition should be made permanent. However, we arrive at this conclusion by a very different approach and process of reasoning than does the majority. Furthermore, it is our opinion that all the statements in the majority decision regarding the civil rules and prior decisions of this court involving civil cases are dicta being wholly unnecessary to a determination of the instant case. Our view is that this entire matter is wholly governed by our criminal rules as there is no statutory provision making the civil rules applicable in criminal cases except as pertaining to rules of evidence instructions and oath to jury. See, Section 44-1811, A.C.A. 1939.
We believe our brethren of the majority have been led into this error by failing to recognize that since statehood there have been separate and distinct statutory or rule provisions in civil and criminal cases relative to obtaining the valuable substantive right of a change of judge because of alleged bias or prejudice.
In criminal cases the provisions for disqualification are to be found in Penal Code 1913, section 999, and in the 1928 Revised Code, section 5022, and these requirements vary in many essential particulars from those provided for in civil cases. This statutory law, with no material change, remained in force and effect until the adoption by this court of the present criminal rules of procedure which became effective on April 1, 1940. The only decisions we have been able to find interpreting these criminal statutes are Sam v. State, 33 Ariz. 383, 265 P. 609, and Bellamack v. State, 37 Ariz. 344, 294 P. 622. The latter case holds *316 that the fact a judge has taken the plea of accused and set date of trial does not necessarily mean he must try the case. The Sam case holds that an affidavit of bias and prejudice comes too late where not presented until after the trial begins, the court stating [33 Ariz. 383, 265 P. 616]:
"The trial commences, for this purpose at least, when the jurors are first called into the box."
These rulings do not create a road block or require us to "iron out" any phraseology, as what is therein stated is entirely consistent with our unanimous present holding.
The American Law Institute drafted a proposed code of criminal procedure which was later adopted by this court with at least one significant change. The governing criminal rules of procedure are numbered 248, 249, 250, 251, and 252 (now appearing as sections 44-1201 to 44-1205, inclusive, A.C.A. 1939). These spell out in some detail how a change of judge may be effected. The final draft of Rule 251, as prepared by the Institute, provided that:
"The application for a change of judge may be made only before or at the time the cause is called for trial."
This court no doubt recognized that at least in courts having but one presiding judge a provision that the defendant at the last moment might disqualify the judge was impractical and might prove very expensive and disrupting to orderly court procedure. It therefore amended same to read as follows:
"The application for change of judge must be made at least three (3) days before the time the cause is called for trial."
The instant case, calling for an interpretation of these rules, is the first to reach this court. The problem presented is a simple one. Petitioner meticulously followed the rules in seeking the disqualification of the respondent judge. We agree with the majority that the trial court correctly ruled that under the circumstances shown by this record the affidavit of disqualification was timely filed. Being timely filed the fact respondent had theretofore ruled upon preliminary law matters is of no legal significance. Hence, there is no merit to respondent's claim that he was required to try this case.
If perchance the decision in the Barry case interpreting the rules of procedure relative to disqualification of judges in civil cases is wrong a matter not now properly before us it can be corrected when a civil case squarely presenting this question is before us. It should not be overthrown in the instant proceeding.
If the adoption of the assignment system in Maricopa County presents new problems we are of the opinion these should be met by this court in a forthright manner by the formulation and adoption of appropriate rules to meet the situation. However, it is our opinion that the assignment system of Maricopa County is in nowise involved. As a matter of fact, under the views herein *317 expressed at least in criminal cases the Maricopa judiciary are in an advantageous position because there are always other judges to whom a given case may be assigned for trial. We do not consider the views herein expressed are in any wise incompatible with the operation of such system.
| {
"pile_set_name": "FreeLaw"
} |
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-3659
_____________
MOHAMAD IBRAHIM SHNEWER,
Appellant
v.
UNITED STATES OF AMERICA
_____________
On Appeal from the United States District Court
for the District of New Jersey
District Court No. 1-13-cv-03769
District Judge: Honorable Robert B. Kugler
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
July 13, 2017
Before: SMITH, Chief Judge, NYGAARD, and FUENTES, Circuit Judges
(Filed: August 9, 2017)
_____________________
OPINION*
_____________________
This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
*
not constitute binding precedent.
SMITH, Chief Judge.
Mohamad Shnewer appeals a District Court order denying a motion to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Shnewer
claims that he received ineffective assistance because trial counsel failed to pursue
and obtain a plea deal. The District Court determined that Shnewer failed to show
that he was prejudiced by trial counsel’s conduct. For the following reasons, we
will affirm the District Court’s order.
I.
A jury convicted Shnewer under 18 U.S.C. § 1117 for his role in a
conspiracy to murder members of the United States military, and of attempted
possession of a firearm in furtherance of the conspiracy. The United States District
Court for the District of New Jersey sentenced him to life in prison for the
conspiracy conviction and a consecutive term of 360 months for the firearm
conviction. Shnewer appealed. We vacated the attempted possession conviction
and associated sentence because the Government conceded that the attempted
possession charge was not a legally cognizable crime. United States v. Duka, 671
F.3d 329, 353 (3d Cir. 2011). We affirmed both the conspiracy conviction and the
life sentence. Id. at 356.
Shnewer filed a pro se motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. §2255 and later retained counsel. In his § 2255 motion,
2
Shnewer advanced various claims of ineffective assistance of trial counsel, which
the District Court denied. Shnewer sought reconsideration pursuant to Fed. R. Civ.
P. 59(e) and 60(b)(6), and the District Court denied that motion as well. Shnewer
filed a timely notice of appeal, and we granted a certificate of appealability as to
Shnewer’s claim that trial counsel rendered ineffective assistance by failing to
pursue and obtain a plea deal.
When the District Court considered the ineffective assistance claim at issue
here, it declined to hold an evidentiary hearing. See Shnewer v. United States, No.
13-3769 (RBK), 2016 WL 867461, at *21 (D.N.J. Mar. 7, 2016). The District
Court instead based its decision on written declarations from Shnewer, Rocco
Cipparone (Shnewer’s trial counsel), and William Fitzpatrick (the Assistant United
States Attorney).
In his declaration supporting the §2255 motion, Shnewer stated that he told
Cipparone that he was “very interested in any plea offer from the prosecution,” id.
at *18 (quoting Shnewer Declaration), and that he would have accepted any offer
that reduced the likelihood of a life sentence. He also indicated that Cipparone
never told him about any discussions he had with the government attorney or any
possible plea offers.
Cipparone’s version of events differs. Cipparone maintains that Shnewer did
not direct him to engage the government in plea negotiations. Nevertheless,
3
Cipparone initiated preliminary plea discussions with the prosecutor, who told
Cipparone that any potential plea deal would need to be approved by then-United
States Attorney Chris Christie. According to Cipparone, Fitzpatrick informed him
that he would consider recommending to Christie a deal wherein Shnewer would
plead guilty to the conspiracy charge in exchange for the dismissal of the charge
for attempted possession of a firearm. Cipparone stressed that Fitzpatrick said that
he would not recommend, and Christie likely would not approve, any deal
preventing the Government from pursuing a sentence of life imprisonment.
Cipparone also stated that, in his experience, the United States Attorney’s
Office invariably communicated formal plea offers in writing, and he never
received any formal written or oral offer. Cipparone characterized his discussions
with Fitzpatrick as mere “negotiations and exploratory conversations.” JA 81-82.
Finally, contrary to Shnewer’s factual allegations, Cipparone indicated that he kept
Shnewer informed of his conversations with Fitzpatrick.
Fitzpatrick’s declaration is consistent with Cipparone’s description of the
negotiations as preliminary and informal. He stressed that “[a]t no time did the
Government ever provide a formal written plea agreement proposal.” JA 84.
Fitzpatrick indicated that the Government believed “a sentence of life
imprisonment [to] be the only reasonable sentence in this case,” JA 85, and would
therefore seek to apply a terrorism enhancement, pursuant to USSG § 3A1.4,
4
which would render “the applicable guideline range . . . exclusively life
imprisonment,” id. He also stated that the Government would not agree to any plea
deal that prevented the imposition of a sentence of life imprisonment.
After reviewing the three declarations, the District Court reached two
conclusions. First, it determined that Fitzpatrick did not make a formal plea offer,
and therefore held that Cipparone could not have been ineffective by failing to
communicate a plea offer to Shnewer. Shnewer, 2016 WL 867461, at *17. Second,
the District Court held that, even if Shnewer could show that Cipparone’s
performance was deficient due to his failure to pursue plea negotiations, Shnewer’s
claim would nonetheless fail because he could not show that he was prejudiced by
Cipparone’s conduct. Id. at *23–24.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 2255.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). When reviewing a
District Court’s denial of a § 2255 motion, “we review legal determinations de
novo, factual findings for clear error, and matters committed to the District Court’s
discretion for abuse thereof.” United States v. Doe, 810 F.3d 132, 142 (3d Cir.
2015). Although the District Court’s decision to grant an evidentiary hearing is
discretionary, we have imposed limitations on the exercise of that discretion. See,
e.g., United States v. Booth, 432 F.3d 542, 545–46 (3d Cir. 2005). “The District
5
Court is required to hold an evidentiary hearing ‘unless the motion and files and
records of the case show conclusively that the movant is not entitled to relief.’” Id.
(quoting Gov’t of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989)). The District Court
is also required to accept the “movant’s factual allegations [as true] unless they are
clearly frivolous on the basis of the existing record.” Id. at 545.
Ineffective assistance of counsel claims are governed by Strickland v.
Washington, 466 U.S. 668 (1984). In Strickland, the Supreme Court created a two-
part test to determine whether a defendant’s constitutional rights have been
violated by trial counsel’s performance. Id. at 687. First, “the defendant must show
that counsel’s performance was deficient.” Id. This is typically done by
demonstrating that counsel’s performance fell below “prevailing professional
norms.” Id. at 688. Second, “the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id. at 687. To do this, a defendant “must show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
Since Strickland, the Supreme Court has identified certain duties of defense
counsel that, when not met, may give rise to ineffective assistance claims. In
Missouri v. Frye, the Supreme Court held that among them is defense counsel’s
6
duty to communicate formal plea offers to the defendant.1 566 U.S. 133, 145
(2012). In order to satisfy Strickland’s prejudice requirement in such a case, a
defendant must show that, but for counsel’s failure, there is a reasonable
probability “that the plea offer would have been presented to the court, that the
court would have accepted its terms, and that the conviction or the 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 v. Cooper, 566 U.S. 156, 164
(2012).
Thus, to show prejudice, Shnewer would need to demonstrate that it was
reasonably probable that Fitzpatrick would have offered him a particular plea deal,
that the deal would have resulted in a sentence less than life in prison, and that the
1
Because of the preliminary and informal nature of the negotiations between the
attorneys in his case, Shnewer attempts to rely upon some emerging case law from
other jurisdictions, which appears to expand trial counsel’s duty to convey formal
plea offers, which the Supreme Court recognized in Frye, to informal offers and
even, possibly, to informal plea negotiations. See, e.g., Carmichael v. United
States, 659 F. App’x 1013, 1022 (11th Cir. 2016) (deciding that trial counsel
provided ineffective assistance when he failed to convey the government’s
informal plea offers to the defendant); United States v. Polatis, 2013 WL 1149842,
at *10 n.16 (D. Utah Mar. 19, 2013) (noting approval of defendant’s argument
“that even if a firm offer is not conveyed to defense counsel, when the government
indicates it is willing to negotiate a resolution in a case, defense counsel has a duty
to engage in the negotiation process.”). Here, we need not consider whether trial
counsel has such a duty with respect to informal plea offers or preliminary plea
negotiations because, as will be discussed, Shnewer cannot satisfy Strickland’s
prejudice requirement in any event.
7
court would have accepted the deal’s terms. Failure to show any one of those three
facts is fatal to Shnewer’s claim.
Shnewer fails to demonstrate that any possible deal would have reduced his
sentence to less than life in prison. The declarations make clear that the only
possible deal contemplated by the informal negotiations between Cipparone and
Fitzpatrick would have been a guilty plea for the very same conspiracy charge on
which Shnewer was ultimately convicted. That conviction always permitted the
imposition of a life sentence.
When the District Court imposed Shnewer’s sentence for the conspiracy
charge, it considered the factors set out in 18 U.S.C. § 3553(a), including the
seriousness and nature of the offense, protection of the public, and the potential for
correctional treatment of the offender. See 18 U.S.C. § 3553(a)(2). The District
Court concluded that those factors supported a life sentence. Shnewer, 2016 WL
867461, at *23. Despite trial counsel’s arguments that Shnewer was a first-time
offender and an otherwise productive member of society, the District Court
concluded that Shnewer was “so deeply committed to this ideology and this desire
to kill that he [could not] be rehabilitated.” Id. at *7 (quoting Sent. Tr. 51:8-11,
republished at JA 99).
Shnewer argues that, had he been convicted of the same charge pursuant to a
plea offer rather than after a jury trial, less evidence pertaining to the § 3553(a)
8
factors would have been presented to the District Court. This is both speculative
and unlikely. As Fitzpatrick noted in his declaration, the Government believed that
life in prison was the only appropriate sentence. There is no support for a claim
that Fitzpatrick would have declined to present any evidence at sentencing that
could support such a sentence. Because the § 3553(a) analysis would have
remained the same even if Shnewer had entered a plea rather than gone to trial, he
cannot show that he was prejudiced by trial counsel’s conduct.
Moreover, we are not persuaded by Shnewer’s claim that the Government
would have offered him a plea deal that permitted any possibility of advocating for
a sentence of less than life in prison. Shnewer vigorously contends that the
Government would have offered him a deal excluding the six-point victim
enhancement. If Shnewer had actually been offered a plea agreement that excluded
this six-point enhancement, he still would have faced the possibility of life
imprisonment for the conspiracy conviction—but the reduction in offense level
would have opened the door to allow him to argue for a sentence as low as 360
months.2 The exclusion of the six-point victim enhancement is therefore the
2
All federal offenses carry a base offense level, which may then be adjusted
upward or downward. See U.S. Sentencing Guidelines Manual (USSG) § 1B1.1
(U.S. Sentencing Comm’n 2016). Shnewer’s conspiracy conviction carried a base
offense level of 33, id. § 2A1.5, and he received two upward adjustments: a
twelve-point terrorism enhancement and a six-point victim enhancement. See id.
§§ 3A1.4, 3A1.2. At 51, his offense level was well above 43, the point at which the
sentencing guideline becomes exclusively life in prison. See id. ch.5 pt. A,
9
linchpin of Shnewer’s argument. If the alleged plea offer did not include a firm
commitment by the Government that it would not pursue the victim enhancement
at sentencing, the deal would not have offered even a possibility of terms that were
less severe than the judgment imposed. See Lafler, 566 U.S. at 164.
The only support Shnewer offers for his theory that he would have received
a deal excluding the six-point victim enhancement is the silence of the prosecuting
attorney’s declaration on that point. When Fitzpatrick described the early-stage
plea negotiations with Shnewer’s lawyer, he discussed a clear intention to pursue a
twelve-point terrorism enhancement, but he did not mention an intention to pursue
the six-point victim enhancement. Shnewer relies on this omission as if it is proof
of the contents of a more favorable deal. He argues, “[h]ere, in the plea offer as
relayed by prosecutor Fitzpatrick, no mention was made of the official victim
enhancement, only the terrorism enhancement. Taking this as being true,
Shnewer’s advisory Guidelines range, at least with respect to the minimum range,
would be dramatically reduced.” Appellant Br. at 27.
“Sentencing Table.” Shnewer claims that he would have received a deal that
excluded the six-point victim enhancement. It is undisputed that, if Shnewer had
pled guilty, he would have received a three-point deduction for accepting
responsibility. See id. § 3E1.1. These changes would bring Shnewer’s offense level
down to 42, which carries a sentencing guideline range of 360 months to life. See
id. ch.5 pt. A, “Sentencing Table.”
10
Shnewer overstates the record. He characterizes Fitzpatrick’s declaration as
a description of a “plea offer relayed by [the] prosecutor,” id., but that description
is not supported by the declaration itself:
I engaged in informal plea discussions with Cipparone at an
early point in the District Court proceedings . . . . During these
discussions, I informed Cipparone that, at sentencing, the
Government would take the position that the Sentencing
Guidelines [sic] “terrorism enhancement,” U.S.S.G. § 3A1.4,
applied to Shnewer, and that if the Court agreed, the applicable
Guidelines range would be exclusively life imprisonment.
JA 85.3 Thus, Fitzpatrick did not say that he made Shnewer an offer,
either formal or informal, and he did not say that any hypothetical offer
would exclude the six-point victim enhancement. Fitzpatrick merely
stated that he engaged in “informal plea discussions with Cipparone.” JA
84.
Fitzpatrick’s failure to mention the victim enhancement in no way implies
that he would not have argued for that enhancement at sentencing; in fact, the
evidence demonstrates that he would have pursued the victim enhancement even if
he made Shnewer a plea offer. As the District Court observed,
Fitzpatrick indicates that [the Government] would have never
agreed to advocate to a sentence of less than life imprisonment
and that the [G]overnment believed a life sentence was the only
reasonable sentence in this case. Thus, it would certainly follow
3
In his reply brief, Shnewer relies on this passage from the Fitzpatrick declaration
to show that Fitzpatrick in fact offered him a deal, and that the deal excluded the
six-point victim enhancement. See Appellant Reply Br. at 9.
11
that the [G]overnment would seek to include all relevant
enhancements in attempting to secure [a life sentence for
Shnewer].
Shnewer, 2016 WL 867461, at *22 n.5.
Shnewer argues that he should at a minimum be granted an evidentiary
hearing to pursue this claim, contending that the District Court abused its
discretion by “fail[ing] to take as true the factual allegations set forth in Shnewer’s
§ 2255 motion and affidavit, and the record remains inconclusive as to whether
Shnewer is entitled to relief.” Appellant Br. at 29. In particular, Shnewer claims
that the District Court failed to credit his assertion that the Government would have
offered him a firm deal excluding the victim enhancement.
Although the District Court is generally required to accept a defendant’s
factual allegations as true, it is not obligated to accept allegations that are frivolous
on the basis of the existing record. See Booth, 432 F.3d at 545. The record does not
support Shnewer’s claims. Both lawyers characterize the negotiations as
preliminary, and Fitzpatrick’s mere failure to mention the victim enhancement
does not require the speculative leap that the enhancement would have been
excluded from any potential plea offer. To credit Shnewer’s representation of the
facts, the District Court would have needed to depart considerably from the
12
existing record, and we cannot say that the court abused its discretion by declining
to do so.4
IV.
In summary, Shnewer cannot show that, but for trial counsel’s conduct, it is
reasonably likely that he would have received a sentence less than life in prison.
Accordingly, Shnewer cannot show that he was prejudiced by counsel’s conduct
and we will therefore affirm the District Court’s order denying Shnewer’s motion
for relief under 28 U.S.C. § 2255.
4
The District Court also held that Shnewer could not show that he would have
been offered a particular plea deal because he offered no evidence to show that
Christie, who had final authority over all plea deals, would have approved any deal
proposed by Fitzpatrick. Shnewer, 2016 WL 867461, at *17. Shnewer objects to
this reasoning on the grounds that some courts in other jurisdictions, including the
Eleventh Circuit in Carmichael, have granted evidentiary hearings where a
defendant has not been offered a formal deal. See Carmichael, 659 F. App’x at
1022. We need not consider this argument because we affirm the District Court’s
decision on other grounds.
13
| {
"pile_set_name": "FreeLaw"
} |
510 F.Supp.2d 1299 (2007)
Randall B. CARTER, Plaintiff
v.
ALK HOLDINGS, INC., d/b/a ACME Security; Michael D. Hassebrock; and John Doe I, Defendants.
Civil No. 1:06-CV-2080-JTC.
United States District Court, N.D. Georgia, Atlanta Division.
June 5, 2007.
*1300 *1301 Ashish D. Patel, Barry E. Kaplan, Joel D. Myers, Myers & Kaplan, Intellectual Property Law, LLC, Atlanta, GA, for Plaintiff.
Elizabeth G. Borland, Smith Gambrell & Russell, Atlanta, GA, for Defendants.
ORDER
JACK T. CAMP, District Judge.
This matter is currently before the Court on Defendants ALK Holdings, Inc. and Michael D. Hassebrock's motion to dismiss [# 6].
I. Background[1]
Plaintiff Randall B. Carter is a Georgia resident and former employee of Defendant ALK Holdings, Inc., a Georgia corporation. Defendant Michael D. Hassebrock, also a Georgia resident, is the sole owner of Defendant ALK Holdings, which does business as ACME Security ("ACME"). ACME is a company that provides security systems and solutions to its customers through the use of third-party security products. For example, Defendant ACME provides and services the locks on safe-deposit boxes at banks.
Plaintiff Randall Carter is the former vice president and general manager of ACME. He alleges `that during his employment with ACME, he invented on his own time and with his own resources a new locking mechanism ("the Carter invention") for safe-deposit boxes that significantly decreases the possibility that one key can open multiple boxes in the same bank. According to Carter, ACME and Hassebrock initially declined interest in the invention when he presented them with the device. Hassebrock later approached Carter, however, and informed him that a bank was potentially interested in licensing the invention. Hassebrock proposed a "50/50 partnership" with Carter, and also retained a patent attorney, Defendant John Doe I, to draft a provisional, and later a non-provisional, patent application for the Carter invention. In addition to Plaintiff Carter, the patent applications listed Hassebrock as an inventor of the locking device.
After the patent application was filed, Hassebrock, over the course of several months and in conjunction with employment negotiations, demanded that Plaintiff Carter assign most or all of his rights in the invention to ACME. Carter consistently refused, and ACME eventually terminated his employment. This lawsuit followed. The gravamen of Carter's Complaint is that Defendants have attempted to steal his invention by misidentifying Hassebrock as an inventor on the patent application and by coercing Carter to assign the invention to ACME.
II. Legal Standard
A motion under Federal Rule of Civil Procedure 12(b)(6) motion does not test whether Plaintiff will prevail on the merits; it tests merely whether the Complaint properly states a claim upon which relief may be granted. "The rule is not designed to strike inartistic pleadings or to provide a more definite statement to answer an apparent ambiguity, and the analysis of a 12(b)(6) motion is limited primarily to the face of the complaint and attachments thereto." Brooks v. Blue Cross *1302 & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir.1997). A claim should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts" which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). In considering a motion to dismiss, the Court must accept the Complaint's allegations as true and `construe them in the light most favorable to Plaintiff. Powell v. United States, 945 F.2d 374, 375 (11th Cir.1991).
III. Discussion
The Complaint charges Defendants with a plethora of claims, each of which is in some way related to Carter's claim that Defendants intentionally misidentified Defendant Hassebrock as a co-inventor on the patent application and then forced him to assign his rights in the invention. As discussed below, none of Plaintiff's claims states a claim under federal law upon which relief may be granted.
A. Count I â Violation of Constitutional-Rights
Count i of the Complaint charges Defendant John Doe I with "violation of Article I, Section 8, Clause 8 of the United States Constitution and 35 U.S.C. et seq."[2] Carter's cause of action set forth in this count is puzzling, because the portion of the Constitution cited is the provision which gives Congress authority to regulate patents and copyrights. See U.S. Const. art. I, § 8, cl. 8 ("The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . ."). Nevertheless, Carter contends that:
Randall B. Carter is entitled to an order from this Court declaring that John Doe I, by acting as a licensed patent attorney under the authority of the United States Patent and Trademark Office and through the Patent Laws of the United States, has violated Randall B. Carter's Constitutional Rights by depriving Randall B. Carter of his right to join in the prosecution of his patent application and to secure his Constitutional right of the exclusive right to his invention, and moreover by continued, improper and oppressive threats of termination unless Randall B. Carter would acquiesce in such intimidation and hence assign his rights to Acme.
(Compl.ś 36.)
Section 8 of Article I of the Constitution is directed to delimiting the scope of Congress's authority. Clause 8, the provision cited by Carter in support of his alleged constitutional rights, gives Congress the specific authority to promulgate laws relating to patents and copyrights. As should be obvious, this provision has absolutely nothing to do with Carter's purported constitutional "right to join in the prosecution of his patent application" or "right [to] the exclusive right to his invention." Simply put, there is no private cause of action for Carter under Article I, Clause 8, Section 8 of the U.S. Constitution.[3] Count I is DISMISSED.
*1303 B. Counts II and III â False Designation of Origin; False Advertising
Plaintiff Carter charges Defendants in Count II with false designation of origin in violation of Section 43(a) of the Lanham Act. Prior to Carter's departure from ACME, Hassebrock and Carter, acting on behalf of ACME, engaged in discussions with Wachovia Corporation regarding a possible sale of locks made according to the Carter invention. Consequently, Carter argues that these discussions constitute a false designation of origin because Defendants represented to Wachovia "that [ACME], and not Randall B. Carter, was to be the source of the goods." (Compl. ś 41; see also id. ś 40.)
Section 43(a) prohibits a person from making any "false designation of origin . . . which . . . is likely to cause confusion . . . as to the origin . . . of his goods." 15 U.S.C. § 1125(a)(1)(A). Plaintiff misunderstands the nature of false designation of origin. As the Supreme Court recently made clear, the "origin" of "goods" is not "the author of any idea, concept, or communication embodied in those goods," but is instead "the producer of the tangible goods that are offered for sale. . . ." Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 37, 123 S.Ct. 2041, 2050, 156 L.Ed.2d 18 (2003).
Here, Plaintiff Carter alleges that Defendants ACME and Hassebrock offered to sell Wachovia locks based in whole or part on the Carter invention. It is clear from the Complaint, however, that should the sale to Wachovia ever materialize, the "origin" of the locking devices would be Defendants (or perhaps some other company contracted to manufacture the locks), who would be the "producer of the tangible goods." The origin would not be Carter, even though he may be "the author of [the] idea . . . embodied in those goods." If, for example, Carter physically manufactured locks made according to his invention and Defendants repackaged them as their own and sold them to Wachovia, he would have a viable reverse passing off claim under the Lanham Act. But those are not the facts of this case. What Carter alleges is that Defendants are offering to sell locks to Wachovia and are not properly attributing the fact that Carter may have invented the underlying concept. This is not a cognizable claim under Section 43(a). Count II is DISMISSED.
Carter contends in Count III that Defendants have engaged in false advertising. Section 43(a) of the Lanham Act prohibits a person from making any "false or misleading description of fact . . . or false or misleading representation of fact . . . which . . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities. . . ." 15 U.S.C. § 1125(a)(1)(B). In this portion of the Complaint, Carter alleges that "through the unlawful listing of Michael D. Hassebrock as a, co-inventor on the patent application, [Defendants] continue to unlawfully state or misleadingly suggest sponsorship and/or approval to the goods by Randall B. Carter." (Compl.ś 50.)
These allegations do not state a claim for false advertising. First, the Lanham Act prohibits false or misleading representations in connection with "commercial advertising or promotion." Plaintiff Carter's allegations revolve around his central charge that the patent application misidentifies Defendant Hassebrock as an *1304 inventor. Nowhere does the Complaint allege that Defendants have made commercial representations either that Hassebrock invented the invention or that Carter approves the locks made according to the invention. Second, because the alleged misrepresentations involve only the pending patent application, and not any product or service, they do not fall within the Lanham Act's proscriptions. Cf. Digigan, Inc. v. Ivalidate, Inc., 71 U.S.P.Q.2d 1455, 1459-60, 2004 WL 203010 (S.D.N.Y.2004) ("A patent is not a `good or service' as those terms are used in the Lanham Act."). Finally, the Court notes that even were Carter able to survive these initial defects, a determination of whether the alleged representations are actually false would require the Court to delve into the inventorship issue, which as discussed immediately below, it cannot. For these reasons, Count III is DISMISSED.
C. Counts V and VI â Modification of Inventorship
In Counts V and VI, Carter requests the Court declare him the sole inventor of the invention embodied in the non-provisional and provisional patent applications filed with respect to the locking mechanism. The Patent Act contain two provisions directed to modification of inventorship. Under 35 U.S.C. § 116, which deals with inventorship vis-a-vis patent applications,
Whenever through error a person is named in an application for patent as the inventor, or through error an inventor is not named in an application, and such error arose without any deceptive intention on his part, the Director [of the Patent and Trademark Office] may permit the application to be amended accordingly, under such terms as he prescribes.
Under 35 U.S.C. § 256, which deals with inventorship vis-a-vis issued patents,
Whenever through error a person is named in an issued patent as the inventor, or through error an inventor is not named in an issued patent and such error arose without any deceptive intention on his part, the Director may, on application of an the parties and assignees, with proof of the facts and such other requirements as may be imposed, issue a certificate correcting such error. . . . The court before which such matter is called in question may order correction of the patent on notice and hearing of all parties concerned and the Director shall issue a certificate accordingly.
Section 116 is at issue here because Plaintiff Carter requests that inventorship be modified in a currently pending application.
It is evident from these related provisions, however, that Congress did not intend for district courts to become involved in the adjudication of inventorship until after a patent has issued. Section 116, directed to patent applications, mentions only the Patent and Trademark Office's ("PTO") ability to modify inventorship. contrast, § 256, which is directed to issued patents, gives both the PTO and the courts authority to adjudicate inventorship. These complementary provisions evidence a scheme in which Congress intended for courts to become involved in inventorship only after the patent has issued. Sagoma Plastics, Inc. v. Gelardi, 366 F.Supp.2d 185, 188 (D.Me.2005) ("Given the structural parallels between the two provisions, it can be inferred that Congress' clear delegation of power to the courts in § 256 to correct issued patents and its failure to make any such express delegation in § 116 indicates a conscious choice to bar the courts from correcting errors regarding inventorship until after the patent has issued."). This construction is supported *1305 not only by the text of the statutes but also by common sense. If the PTO determines that the invention claimed in the application is not patentable, or that the portions claimed by the putative inventor are not patentable, a long and costly litigation in district court over inventorship would be futile as well as wasteful. See id. at 188 ("It seems unlikely that Congress intended to authorize a scheme in which such a waste of scarce judicial resources was possible.").
Thus, so long as the patent application is pending in the PTO, Plaintiff Carter cannot state a claim for modification of inventorship under § 116. Numerous courts have so held. E.g., E.I. Du Pont de Nemours & Co. v. Okuley, 344 F.3d 578, 584 (6th Cir.2003); Sagoma Plastics, 366 F.Supp.2d at 190; cf. Eli Lilly & Co. v. Aradigm Corp., 376 F.3d 1352, 1356 n. 1 (Fed.Cir.2004) (stating, in dicta, "The text of section 116 . . . only grants the [Director] the authority to take certain actions and plainly does not create a cause of action in the district courts to modify inventorship on pending patent applications."). Counts V and VI are DISMISSED.
D. Count VIII â "Breach of Fiduciary Duty by John Doe I in Violation of 35 U.S.C. et seq., 37 C.F.R. et seq., and the Manual of Patent Examining Procedure"
In this count Carter attempts to manufacture a federal cause of action by couching a garden-variety malpractice claim in terms of patent law. (E.g., Compl. ś 82 ("John Doe I has breached his fiduciary and legal duties by continuing representation of two parties with conflicted interests and by sacrificing the rights of one party, Randall B. Carter, for the benefit of the other party, [ACME].").) There is no such federal cause of action. Count VIII is DISMISSED.
E. Count IX and X â Violations of the Sherman Act
In Count IX, Carter charges Defendants with violation of Section 1 of the Sherman Act, which prohibits contracts, combinations, and conspiracies in restraint of trade. 15 U.S.C. § 1 ("Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.") In Count X, Carter charges Defendants with violation of Section 2 of the Sherman Act, which prohibits monopolization, attempted monopolization, and conspiracy to monopolize. 15 U.S.C. § 2 ("Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony. . . . ").
The principal facts underlying Carter's antitrust claims involve his contention that Defendants "conspired . . . to coerce and intimidate [Carter] to assign his inventive rights [in the invention] to ACME." (Compl.ś 93.) According to Carter, if he had not been forced to assign the invention to ACME, he, as a patent co-owner, if the patent eventually issued, would have been entitled to practice the invention, or license the invention to others, without Defendants' permission. Thus, because of this coerced assignment, Carter argues Defendants have conspired to remove a competitor from the marketplace in violation of Section 1 of the Sherman Act. Similarly, Carter argues this alleged conspiracy to eliminate him as a competitor evidences an unlawful attempt to achieve a monopoly in violation of Section 2 of the Sherman Act. Carter's Complaint does not state a claim under the Sherman Act. A party who alleges violation of either of these provisions *1306 must allege damage to competition in general, not merely damage to a competitor. See Spanish Broad. Sys. of Fla., Inc. v. Clear Channel Commc'ns., Inc., 376 F.3d 1065, 1069 (11th Cir.2004); see also Am. Key Corp. v. Cole Nat'l Corp., 762 F.2d 1569, 1579 n. 8 (11th Cir.1985) ("Harm to competition is a necessary element of all private antitrust suits under Sections 1 and 2 of the Sherman Act. . . ."). Here, Carter has alleged only that Defendants' alleged actions would prevent him from entering the marketplace in the event a patent issues, not that their actions would have any negative impact on competition in general.
This defect to Carter's Sherman Act claims brings the Court to a larger problem with the Complaint â it relies, indeed is dependent, upon the assumption that a patent will eventually issue on the invention. Although the pending application may eventually ripen into a patent, it is also possible that it will not. Until such time as a patent does issue, anyone, including Carter, is free to practice the invention set forth in the patent application. There is simply no viable Sherman Act claim on the facts alleged by Carter. Counts IX and X are DISMISSED.[4]
F. Count XI â Violation of 35 U.S.C. § 122
Carter charges Defendants Hassebrock and John Doe I in Count XI with violation of 35 U.S.C. § 122. This section provides, in relevant part, that "applications for patents shall be kept in confidence by the Patent and Trademark Office and no information concerning the same given without authority of the applicant or owner. . . ." 35 U.S.C. § 122(a). Carter argues that Defendants Hassebrock and John Doe I have somehow violated this provision "through the unlawful listing of [Taylor] and [Hassebrock]" on the patent application, which according to Carter has resulted in "significant harm to the right of [Carter] to have his application remain confidential for a certain period of time." (Compl.śś 106-07.)
As seen in the text of § 122, this statute imposes a duty on the PTO to keep patent applications in confidence subject to the exceptions listed in § 122(b). It has absolutely nothing to do with, nor can it support, Carter's claim that Defendants have violated the provision by listing on the patent application an inventor who Carter claims should not be there. Count XI is DISMISSED.[5]
G. State Law Claims
Because the Court has dismissed all federal claims over which it has jurisdiction, the Court declines to exercise supplemental jurisdiction over Carter's remaining state law claims for fraud (Count IV), breach of fiduciary duty (Count VII), *1307 tortious interference with a prospective business relationship (Count XII), defamation (Count XIII), deceptive trade practices (Count XIV), and breach of contract (Count XV). See 28 U.S.C. § 1367(c). Therefore, these claims are DISMISSED without prejudice.
H. Failure to Serve Defendant John Doe I
On February 7, 2007, the Court directed Plaintiff Carter to show cause why the Court should not dismiss the claims against Defendant John Doe I pursuant to Rule 4(m) for failure to effect timely service of process. Plaintiff Carter responded and explains that he believed the matter would be settled before he "would be forced to identify an attorney as a fraudfeasor on the public record, to file State Bar complaints against the attorney, and to make an appropriate report to the United States Patent and Trademark Office, where such attorney Doe I is registered to practice." (Pl.'s Resp. to Order to Show Cause at 2.) Thus, Plaintiff claims he was engaging in professional courtesy by not naming (or serving) Defendant John Doe I until it became necessary to do so.
Carter's explanation is disingenuous, however, because he actually identified John Doe I by name several times before service was to be effected, by which time the matter would presumably be settled. For example, Plaintiff Carter identified John Doe I as Justin S. Rerko in his response to Defendants' motion to dismiss almost two months prior to the 120 day service deadline. Once the cat was out of the bag, so to speak, Carter had ample time to serve Mr. Rerko and amend his Complaint accordingly.
Plaintiff Carter has not shown cause for his failure to timely serve Defendant John Doe I. Accordingly, the Court DISMISSES all claims against Defendant John Doe I pursuant to Rule 4(m).
IV. Rule 11 Sanctions
Pursuant to Rule 11, when an attorney files a pleading in federal court, he
is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . [that] the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law. . . .
Fed.R.Civ.P. 11(b)(2). Under this provision, the Court has discretion to impose Rule 11 sanctions if a party "files a pleading that is based on a legal theory that has no reasonable chance of success and that cannot be advanced as a reasonable argument to change existing law. . . ." Anderson v. Smithfield Foods, Inc., 353 F.3d 912, 915 (11th Cir.2003). The attorney's conduct is tested under a "reasonableness under the circumstances" standard. Id.; see also Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir.2003) ("[C]ourts determine whether a reasonable attorney in like circumstances could believe his actions were factually and legally justified.").
Though the Court has; found that each of Plaintiffs federal claims fails to state a claim upon which relief may be granted, the Court finds that three of Plaintiff Carter's claims, in particular, appear to run afoul of Rule 11 by presenting baseless legal theories with no chance of success nor for which a reasonable argument could be advanced. The offending claims are: (i), alleged violation of Article I, Clause 8, Section 8, of the U.S. Constitution (Count I); (ii) breach of fiduciary duty in violation of the Patent Act, the Code of Federal Regulations, and the Manual of Patent Examining Procedure (Count VIII); and (iii) violation of 35 U.S.C. § 122 (Count XI).
*1308 Pursuant to Rule 11(c)(1)(B), counsel for Plaintiff Carter is DIRECTED to SHOW CAUSE within ten (10) days of entry of this Order why he should not be sanctioned for presenting the frivolous claims discussed above. Defendants are DIRECTED to respond within ten (10) days of Plaintiff's submission. Both parties are DIRECTED to address the nature and/or amount of sanctions to be awarded if the Court finds that sanctions are appropriate. Due to the Court's sua sponte treatment of this issue, Defendants' motion for sanctions [# 18] and Plaintiffs motion to defer ruling [# 19] are DENIED as moot.
V. Conclusion
The Court is not unsympathetic to Carter's plight. His allegations related to the attempted theft of his invention are troublesome and, if true, will likely entitle him to relief. Unfortunately, this Court is unable to provide Carter with the relief he seeks. If Carter is to vindicate his rights, it must be in the PTO for his claims related to inventorship and in Georgia state courts for his claims related to Defendants' bad faith conduct. Therefore, for the reasons discussed above, Defendants' motion to dismiss [# 6] is GRANTED. Plaintiff's federal claims are DISMISSED with prejudice. Because the Court declines to exercise supplemental jurisdiction, Plaintiffs state law claims are DISMISSED without prejudice. All claims against Defendant John Doe I are DISMISSED without prejudice for failure to effect timely service of process. Finally, because Plaintiff has unfortunately presented the Court with claims which appear to have been made without a reasonable investigation into their underlying legal bases, counsel for Plaintiff is DIRECTED to SHOW CAUSE in writing within ten (10) days of entry of this Order why he should not be sanctioned pursuant to Rule 11(b)(2). Defendants' motion for sanctions [# 18] and Plaintiffs motion to defer ruling [# 19] are DENIED as moot.
SO ORDERED.
NOTES
[1] The Court accepts the Complaint's well-pleaded allegations and construes the facts in the light most favorable to Plaintiff.
[2] Plaintiff Carter's general citation to Title 35 of the United States Code is unhelpful. If Carter desires to assert a cause of action under the Patent Act in this count, as he has done in other portions of the Complaint, he should be more specific. It is not the duty of the Court to scour the statute books in search of a cause of action. In any event, it is clear that this claim, at bottom, seeks relief for violation of an alleged constitutional right.
[3] Notably, Defendants argued as much in their motion to dismiss and Plaintiff failed to address the argument in his response. "[A] party's failure to respond to any portion or claim in a motion indicates such portion, claim or defense is unopposed." Kramer v. Gwinnett County, Ga., 306 F.Supp.2d 1219, 1221 (N.D.Ga.2004) (Evans, C.J.); cf. N.D. Ga. R. 7.1B. Because Plaintiff failed to respond to Defendants' argument regarding this claim, the Court deems it abandoned. See Sherk v. Adesa Atlanta, LLC, 432 F.Supp.2d 1358, 1374 (N.D.Ga.2006) (Camp, J.).
[4] Multiple other defects exist with respect to these claims. For example, it is unlikely that Carter could establish the "conspiracy" necessary to go forward on his Section 1 conspiracy to restrain trade claim because the alleged conspirators, Defendants Hassebrock and. John Doe I, acted in their capacity as agents for Defendant ACME. Cf. Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir.1952) ("A corporation cannot conspire with itself any more than a private individual can, and it is the general' rule that the acts of the agent are the acts of the corporation."). In addition, Plaintiff Carter cannot show â particularly at this stage where all that exists is a pending patent application â a "dangerous probability" that Defendants might have achieved monopoly power, a required element for his Section 2 attempt to monopolize claim. Tech. Res. Servs., Inc. v. Donner Med. Sys., Inc., 134 F.3d 1458, 1466 (11th Cir.1998).
[5] Notably, Carter did not respond to Defendants' argument that no such cause of action exists. The Court therefore deems it abandoned.
| {
"pile_set_name": "FreeLaw"
} |
67 B.R. 899 (1986)
In re CHATTANOOGA WHOLESALE ANTIQUES, INC., Debtor.
C. Kenneth STILL, Trustee,
v.
ROSSVILLE BANK, Defendant.
Bankruptcy No. 1-82-02041, Adv. No. 1-84-0300.
United States Bankruptcy Court, E.D. Tennessee.
December 11, 1986.
*900 Thomas E. Ray & Harold L. North, Jr., Ray & North, P.C., Chattanooga, Tenn., for plaintiff.
Fred T. Hanzelik, Chattanooga, Tenn., for defendant.
MEMORANDUM
RALPH H. KELLEY, Bankruptcy Judge.
The debtor, Chattanooga Wholesale Antiques, filed a chapter 11 bankruptcy petition and had a plan of reorganization confirmed, but was unable to complete the plan. The case was converted from chapter 11 to a chapter 7 liquidation. The plaintiff was appointed trustee in bankruptcy. He seeks to recover payments that the debtor made to the defendant, Rossville Bank, both before the debtor filed its chapter 11 petition and during the chapter 11 case. The trustee contends that the pre-petition payments to the bank can be recovered as preferential transfers. He contends that the payments during the chapter 11 are recoverable either because they were unauthorized postpetition transfers under § 549 or because they were erroneously paid on the basis that the bank's claim was secured.
The Preference Question
During the 90 days before it filed its chapter 11 bankruptcy petition, the debtor wrote two checks to the bank for $7,488.97 and $3,082.29. The checks were written on the debtor's account with the bank and applied to antecedent loan debts to the bank. Exhibits 1 & 2 (Notes 8007809 & 8007353).
The key question, as the court sees the proof, is whether the trustee proved that the payments were preferential under § 547(b)(5). 11 U.S.C. § 547(b)(5).[1] This proof is usually easy in a case begun as a chapter 7 liquidation since events after filing of the petition should not adversely affect the liquidation value of the debtor's assets. In a case begun as a chapter 11 and converted to chapter 7, the question is whether the trustee must back up and determine what would have been paid in a chapter 7 liquidation case begun when the chapter 11 petition was filed. The question has recently been answered in this circuit. In re Tenna Corp., 801 F.2d 819 (6th Cir. 1986), reversing 53 B.R. 493, 13 Coll.Bankr. Cas.2d 1153 (N.D.Ohio 1984); 43 B.R. 140, 11 Coll.Bankr.Cas.2d 477 (Bankr.N.D.Ohio 1984). The court held that the trustee must estimate what the creditors would have been paid if the case had began as a chapter 7 liquidation.
*901 The trustee's proof is that unsecured creditors were paid 8.3% under the chapter 11 plan. This proof does not satisfy the requirement of In re Tenna, because it does not necessarily reflect what the creditors would have received in a chapter 7 liquidation. The trustee could be trying to make the point that 8.3% paid under the plan was paid only because of the debtor's continued operation under chapter 11, whereas nothing would have been paid in a chapter 7 liquidation. The argument is not made clearly, if at all. In any event, it would also require proof of what creditors would have been paid in a chapter 7 liquidation at the beginning of the case. Since there is no such proof, the trustee cannot recover the prepetition payments as preferential transfers.
The Postpetition Payments
The debtor made one payment to the bank by a check for $4,061.78 written less than two weeks after it filed its chapter 11 petition. The payment was apparently applied to note 8007353. Exhibit 2.
Between two and three months after filing of the chapter 11 petition, the debtor and the bank filed a "Stipulation Authorizing Debtor to Use Cash Collateral and For Adequate Protection". The stipulation recited that the bank had a valid security interest in the debtor's cash collateral to secure a prepetition debt of $75,490.67. The stipulation then provided:
(1) Debtor is hereby authorized to use debtor's pre-petition cash account and all cash generated by it during the postpetition operation of the debtor's business.
(2) In consideration thereof, the Rossville Bank is hereby granted a valid and enforceable first lien and security interest in debtor's inventory.
(3) Debtor shall pay the outstanding obligations to the Rossville Bank at the rate of $1,800.00 per month, plus 14% interest annually, through the plan.
The day after the stipulation was filed the court entered an order with the same provisions.
The debtor's disclosure statement and plan followed the stipulation and order. They provided that the bank would be paid in full at the rate of $1,800 per month plus 14% interest. The plan was confirmed on April 20, 1983.
The plan provided that creditors should file proofs of claims not later than March 23, 1983, the date set by the court under Rule 3003. The bank did not file a proof of claim until September, 1983. The bank's claim was not scheduled as disputed, contingent, or unliquidated.
The payments to the bank as provided in the stipulation and the confirmed plan totaled $30,600. The proof is unclear as to whether any of these payments were made before confirmation of the plan. The stipulation and order for the use of cash collateral only required payments under the plan and not before. The court assumes that all the payments were made under the confirmed plan.
The debtor continued under the plan for about sixteen months, but being unable to carry it out, moved to convert the case to chapter 7 and the motion was granted. The plaintiff was appointed trustee in bankruptcy. He objected to the bank's claim on the ground that it should be treated as unsecured because the security interest was unperfected when the chapter 11 petition was filed. The court agreed and avoided the security interest. 11 U.S.C. § 544(a)(1), (2); Tenn.Code Ann. § 47-9-302(1).
The court will first consider whether the trustee can recover the payments under the plan.
When a debtor files a chapter 11 petition, it becomes to some extent a new entity, called the debtor-in-possession. The debtor-in-possession has essentially the same rights and responsibilities as a trustee in bankruptcy. 11 U.S.C. §§ 1106, 1107, & 704. This means that the debtor-in-possession must act for the benefit of all creditors. It has the powers of a trustee to avoid liens and other transfers.
The debtor-in-possession not only has the power to avoid liens and other *902 transfers, but also the duty to exercise that power for the benefit of all creditors. In re Hughes, 704 F.2d 820, 10 Bankr.Ct.Dec. 693 (5th Cir.1983); In re E. Paul Kovacs and Co., Inc., 16 B.R. 203 (Bankr.D.Conn. 1981). This does not mean that the debtor-in-possession must attempt to avoid every lien or other transfer that might be avoidable. The debtor-in-possession, like a trustee, must consider the economics of attempted avoidance. However, when the plan proposes to treat a claim as secured, the debtor-in-possession should at least reveal the possibility, if any, of avoiding the lien securing the claim. 11 U.S.C. § 1125; In re Metrocraft Pub. Services, Inc., 39 B.R. 567, 10 Coll.Bankr.Cas.2d 1182 (Bankr.N.D. Ga.1984). Obviously a debtor-in-possession can carry out this duty only if it first carries out the duty to investigate claims. 11 U.S.C. §§ 1107, 1106 & 704(4). In this case, the debtor-in-possession failed to carry out its duties.
The bank was not required to file a proof of claim that would have revealed its failure to perfect its security interest. The bank's claim was not scheduled as disputed, contingent, or unliquidated and so was "deemed allowed" without the filing of a proof of claim. 11 U.S.C. §§ 502 & 1111(a). The plan provided that creditors should file proofs of claim before the deadline set by the court under Rule 3003. But the deadline set under Rule 3003 applies only to claims not already deemed allowed. Bankruptcy Rule 3003(b) & (c). In this situation, the statutes, the rules, and the plan did not require the bank to file a proof of claim. In re Collins Manufacturing Corp., 19 B.R. 535, 8 Bankr.Ct.Dec. 1345 (Bankr.E.D.Tenn.1982).
Under § 549(a), the trustee can recover postpetition payments that were not authorized by the Code or the court. 11 U.S.C. § 549(a)(2)(B). The trustee in effect argues that the payments were not authorized because the claim should not have been treated as secured.
The court might hold that plan payments on a secured claim were unauthorized if the claim were a fraudulent claim. The court might also hold that the payments were unauthorized if the creditor obtained confirmation of the plan by fraud, but this reasoning is less certain since § 1144 does not allow confirmation to be revoked for fraud if more than 180 days have passed after confirmation. Payments called for by the plan might also be unauthorized if based on a mutual mistake, but it is difficult to imagine such a case. In any event, this case does not present such questions.
The proof shows that the debtor-in-possession failed to discover that the bank's security interest was avoidable. The proof does not show that the debtor-in-possession committed fraud by finding it out before confirmation and failing to disclose it.
The bank did not commit fraud in obtaining confirmation, and its claim was not fraudulent. The bank was not required to file a proof of claim that would have revealed the failure to perfect its security interest. The bank was not required to volunteer the information that it had failed to file a financing statement to perfect its security interest. As far as the bank was concerned, its claim was secured until in fact avoided.
When the drafters of the Code excused creditors from filing proofs of claims in chapter 11 cases, they must have understood that it would leave the door open for a debtor-in-possession to buy peace with its secured creditors under the plan without bothering to try to avoid their liens or even investigating to determine if the liens could be avoided. This problem will exist in many cases in which the debtor-in-possession can make substantial payments to one or a few secured creditors whose cooperation will open the way to quick confirmation of a plan. Other creditors should realize that this is a risk built into chapter 11.
The court concludes that the payments were authorized by confirmation of the plan and cannot be recovered under § 549(a). The few decisions in point support this result. In In re Ford, the proceeds of a postpetition contract were not *903 subject to the creditor's prepetition security interest but the debtor used the proceeds to make payments on the prepetition secured debt as provided in the chapter 11 plan. In re Ford, 61 B.R. 913, 14 Coll. Bankr.Cas.2d 1399 (Bankr.W.D.Wis.1986). The trustee after conversion of the case to chapter 7 attempted to recover the payments. The court held that, assuming the money was property of the bankruptcy estate, the payments were authorized and not recoverable under § 549. In another case, some administrative expenses and lower priority claims were paid under a confirmed plan, but the complaining parties received no payments on their administrative expense claims before the case was converted to chapter 7. They sought to "reel in" the earlier payments so that the money could be redistributed and they would receive a share. The court held that payments under the plan could not be recovered for the benefit of creditors dealt with by the plan. In re Kaleidoscope of High Point, Inc., 56 B.R. 562, 14 Coll.Bankr.Cas.2d 83 (Bankr. M.D.N.C.1986). In a reported decision Judge Mahoney held that a chapter 11 trustee, who proposed a plan treating a debt as secured, was bound by the confirmed plan to pay the creditor the proceeds from the sale of the collateral, even though the trustee had since determined that the creditor's lien wasavoidable. In re Mahloch, 62 B.R. 102 (Bankr.D.Neb.1986), Villm v. Wallace, 62 B.R. 102 (Bankr.D. Neb.1986).
The trustee next argues that he can recover the payments as a result of the court's reconsideration of the bank's claim and decision to hold it unsecured.
Section 502(j) of the code, as it read before the 1984 amendment, applies to this case. It provides that the court can reconsider a claim at any time before a bankruptcy case is closed. 11 U.S.C. § 502(j). It says nothing about whether the trustee can recover payments on an allowed claim that has been reconsidered and disallowed or allowed as unsecured rather than secured.
Under the Bankruptcy Act of 1898, the subsection on reconsideration of claims was followed by a subsection that expressly provided for the recovery of dividends (previously authorized payments). 11 U.S.C. § 93(k), (l) (1978). The 1984 amendments to § 502(j) seem to make it clear that, by leaving out a specific right to recover dividends in the original § 502, Congress did not intend to take away the trustee's right to recover. The last sentence added by the 1984 amendment provides:
This subsection does not alter or modify the trustee's right to recover from a creditor any excess payment or transfer made to such creditor.
Under the 1898 Act, the courts held that claims could be reconsidered in reorganization, arrangement, and wage-earner plan cases (chapters X, XI, & XIII). National City Bank v. O'Connell, 155 F.2d 329 (2d Cir.1946); In re Madden, 388 F.Supp. 47 (D.Idaho 1975); In re Cote, 313 F.Supp. 509 (D.Me.1970). The Bankruptcy Code does not change this rule. 11 U.S.C. § 103.
The court's authority to reconsider and disallow a claim under the 1898 Act did not mean that the trustee could automatically recover dividends already paid on the claim. In re Jules Meyers Pontiac, Inc., 779 F.2d 480 (9th Cir.1985). The rule under § 502(j) should be same.
There are several technical arguments against allowing the trustee to recover the payments to the bank despite reconsideration of its claim.
1.
The first argument is that only § 549 applies and it does not allow recovery of postpetition payments authorized in a confirmed chapter 11 plan. The court believes that § 549(a) was not intended to deal with the problem of whether earlier payments that were authorized according to the claim's earlier status can be recovered when the claim is reconsidered and its status is altered.
2.
The second argument is also based on the trustee's avoiding powers, or more to *904 the point, the lack thereof. Conversion of a chapter 11 case to chapter 7 does not change the date of filing of the bankruptcy petition. 11 U.S.C. § 348. This appears to mean that the trustee cannot use the avoiding powers among postconfirmation creditors only, as if conversion to chapter 7 was the filing of a new bankruptcy case. But see 11 U.S.C. § 348(d). The avoiding powers surely do not apply to payments made under the plan by comparing them to what other creditors were paid under the plan or by comparing them to what was paid or will be paid on postconfirmation claims. This implies that payments under a plan cannot be recovered as a result of reconsideration of a claim, no matter how unfair the payments were to creditors dealt with by the plan or postconfirmation creditors.
The third and fourth arguments are related.
3.
The third argument is that the trustee cannot recover the payments because they were not property of the bankruptcy estate. This argument in effect distinguishes between payments by the trustee in a liquidation case under chapter 7 and payments by a debtor under a confirmed chapter 11 plan.
In a chapter 7 liquidation case, the debtor's assets will be reduced to a fixed amount of money that is to be paid on general unsecured claims and priority claims as provided in Code § 726. 11 U.S.C. § 726. If the trustee overpays a particular claim he may be allowed to recover the overpayment and distribute it as required by § 726.
In a chapter 11 case, however, the payments under a confirmed plan usually come from the debtor's business earnings after confirmation. The division of the debtor's income among its creditors must be determined by the chapter 11 plan, rather than the statutes. The statutes impose some requirements as to how a plan must treat the various kinds of claims in order for the plan to be confirmed. But these requirements allow the debtor considerable leeway in dividing the available income among creditors. The point is that the recovery of payments authorized by a confirmed plan may amount to remaking the plan long after confirmation could be revoked.
This is less of a problem if the debtor is still operating under the plan and the payments fall into what the court might call the authorized-unauthorized category. It makes a difference that the debtor is still carrying out the plan because the debtor can redistribute the money recovered as provided in the plan, or at least it will go into the debtor's income and be available for that purpose.
As to authorized-unauthorized payments, the court has in mind two situations first, payments on an allowed claim that is reconsidered and disallowed, and second, payments on a claim that was misclassified or miscalculated after confirmation of the plan. In either situation, there may be equitable reasons for denying recovery.
As to a claim that is reconsidered and disallowed, a confirmed plan technically authorizes payment only on allowed claims.
The other situation recognizes that a plan can, to some extent, reserve until after confirmation the determination of which unsecured claims are entitled to priority, the classification of the general unsecured claims, and the determination of the exact amount of such claims. An error after confirmation may result in a claim being paid more than it should have been paid under the plan. The court sees no especially compelling reasons for an absolute bar to the recovery of such payments by the debtor or the trustee, while the chapter 11 plan is still being carried out. In re Madden, 388 F.Supp. 47 (D.Idaho 1975).
If the case has been converted to chapter 7, the argument against allowing the trustee to recover is that the chapter 7 trustee cannot go back in time and return the money to the debtor for its use under the plan. The court doesn't see that this makes a lot of difference. The (assumed) fact is that the payments really were not payments provided for in the plan. A perfect *905 remedy is not required before any remedy can be granted. Unless there are equitable reasons for denying recovery, why shouldn't the trustee recover the money for the benefit of all creditors? The recovery does not upset the finality of confirmation.
4.
The finality of confirmation is the fourth argument against allowing the trustee to recover the payments to the bank in this case. The argument is as follows. The overpayment did not result from an error in the amount or classification of the claim after confirmation. It did not result from allowance of a claim that should have been disallowed. The plan itself determined that the bank's claim was secured and set forth exactly how much it would be paid per month. The court could reconsider the bank's claim and declare it unsecured for future purposes, but recovery of the plan payments will amount to undoing confirmation of the plan. Confirmation of a plan binds the debtor, the creditors, and the debtor's stockholders and partners. 11 U.S.C. § 1141(a). It removes the debtor's property from the bankruptcy estate and revests it in the debtor free of the claims of creditors, stockholders, and partners, except as provided in the plan. 11 U.S.C. § 1141(b), (c). A confirmed plan cannot be modified after substantial consummation. 11 U.S.C. § 1127. Thus, confirmation is an irrevocable determination of the rights fixed by the plan.
The court must add to this argument two earlier conclusions. First, the payments to the bank are not recoverable under § 549 as unauthorized postpetition transfers. Second, the payments are not recoverable on the basis that they were preferential or fraudulent or otherwise avoidable as to creditors whose claims arose after confirmation or as to creditors whose claims were provided for in the plan. Finally, the court must point out that confirmation of a plan can be revoked only for fraud in obtaining confirmation and only if a complaint is filed within 180 days after confirmation. 11 U.S.C. § 1144; Bankruptcy Rule 7001. Thus, the statutes seem to say that any unfairness that makes its way into a confirmed plan, by fraud or otherwise, is not necessarily correctable.
On this point, the bank could argue that the creditors dealt with by the plan had their opportunity to determine the true facts but failed to do so, and the bank did nothing wrong in taking advantage of the situation. The creditors counter-argument would be that they had the right to rely on the debtor-in-possession to investigate claims and avoid liens or at least reveal the possibility of avoidance. Since the bank knowingly took unfair advantage based on the debtor's failure, and since the money cannot be recovered from the debtor, the bank should be required to pay it back.
These arguments bring the court back to an earlier point. There is built into chapter 11 the risk that a debtor-in-possession will forsake its duty to avoid liens in favor of obtaining quick confirmation of a plan by buying off its supposedly secured creditors. Other creditors can avoid this risk by assuring that the debtor performs of its duty to investigate claims and avoid liens or by investigating the claims themselves.
These arguments do not apply to creditors whose claims arose after confirmation. As to them, the technical reason for denying recovery from the bank is that the Code does not allow recovery of payments under a plan for the benefit of postconfirmation creditors. This rule makes sense as a practical matter. The opposite result would significantly impair the willingness of creditors to accept chapter 11 plans.
The finality argument also includes the "perfect remedy" or "you can't go back in time" argument. If the money is recovered and redistributed under § 726, it will amount to remaking the confirmed plan. Furthermore, the court cannot say what would have happened if the plan had not been confirmed or if the avoidability of the bank's security interest had been discovered by other creditors before confirmation of the plan. The court rejected this argument earlier, but it has validity to the extent *906 it is based on finality as a value in and of itself.
Finality is a consideration in and of itself, even for decisions that were clearly wrong on the law or were wrong only because the true facts were not brought to the court's attention. A wrong decision of either kind is presumed to be unfair to someone. The law allows this unfairness to stand in the interest of putting litigation to a definite end. Confirmation of a chapter 11 plan is different from many court decisions because it does not completely end the case. Nevertheless, the statutes appear to give confirmation the same general effect as any decision that is not appealed and is no longer revocable.
The court concludes that the trustee cannot recover the payments under the plan. That leaves only the question of whether he can recover the payment made shortly after the case began and before confirmation of the plan.
During the interim between filing of a chapter 11 petition and confirmation of a plan, the debtor-in-possession may find it necessary to make payments on a secured claim. One court has held that such a payment is authorized by the Code and is not recoverable under § 549. In re Ford, 61 B.R. 913, 14 Coll.Bankr.Cas.2d 1399 (Bankr.W.D.Wis.1986). Such payments may be authorized to an extent, depending on how long they continue and whether the lien is obviously avoidable or the claim is not allowable as secured under § 506. The court might hold that a creditor takes such payments subject to recovery if the claim ends up being unsecured under § 506, or if the lien is avoided during the chapter 11 case. In this case, however, the chapter 11 plan treating the debt as secured was confirmed and continued for long past the time allowed to file a complaint for revocation of confirmation. The court concludes that the payment cannot be recovered.
This memorandum constitutes findings of fact and conclusions of law. Bankruptcy Rule 7052.
NOTES
[1] Except when otherwise indicated, all citations are to the Bankruptcy Code before the 1984 amendments took effect.
| {
"pile_set_name": "FreeLaw"
} |
14 Ill. App.2d 443 (1957)
144 N.E.2d 816
Frank J. Brophy et al., doing business as F.J. Brophy & Company, Plaintiffs-Appellants,
v.
City of Joliet, Illinois, Defendant-Appellee.
Gen. No. 10,997.
Illinois Appellate Court Second District.
September 4, 1957.
Rehearing denied October 2, 1957.
Released for publication October 2, 1957.
*444 O'Gallagher and Schlax, of Chicago, for plaintiffs-appellants.
Paul F. Brumund, corporation counsel, of Joliet and James V. Bartley, City Attorney, of Joliet, and Ernest H. Pool, of Ottawa, for appellee.
PRESIDING JUSTICE DOVE delivered the opinion of the court.
*445 Plaintiffs, doing business as F.J. Brophy and Company, filed their verified complaint against the defendant, city of Joliet, for breach of contract in connection with the sale of $3,400,000 of Waterworks and Sewerage Revenue Bonds. The defendant filed a motion to dismiss, which, upon hearing, the court sustained, and from an appropriate final judgment against them, the plaintiffs appeal.
The complaint alleged that the plaintiffs are and have been for many years engaged in the business of purchasing and selling municipal bonds and obligations; that the defendant is a municipal corporation organized and existing under the laws of the state of Illinois; that the defendant did, and still does, contemplate the construction of a primary sewerage treatment plant on land owned by and under control of the defendant; that acting under the power granted to it under the provisions of Article 62 of "The Revised Cities and Villages Act" of the state of Illinois, effective January 1, 1942, as amended, the defendant did, on August 2, 1954, introduce Ordinance No. 4108 authorizing and directing the officials of the city of Joliet to issue and sell the bonds therein set forth for the purpose of financing the construction of said sewerage treatment plant; that on August 2, 1954, said ordinance was filed for public inspection; that on August 9, 1954, said ordinance was passed and on August 10 it was recorded, and duly published.
It was then alleged that, pursuant to said ordinance, the plaintiffs, under date of April 15, 1955, submitted to the defendant a proposal to purchase said bonds in accordance with Ordinance No. 4108; that pursuant to and in compliance with said ordinance, the defendant at a regular meeting of the city council held on April 18, 1955, received plaintiffs' proposal, and by resolution placed it on file with the city clerk; that thereafter, at a regular meeting of the council held on April 25, 1955, the proposal of the plaintiffs theretofore submitted *446 and placed on file was accepted by resolution and the mayor and city clerk were authorized to sign the contract of sale of said bonds as set forth in said ordinance to plaintiffs.
It was next alleged that the plaintiffs kept in continuous contact with the defendant and were ready, able and willing at all times, and still are, to accept delivery of the aforementioned bonds, and did perform their agreement as set forth in their proposal; that they so advised the defendant on April 29, 1955, May 12, 1955, May 24, 1955, and on June 9, 1955, by letters addressed to the mayor, city council and the corporation counsel of defendant.
It was then alleged that at a special meeting of the city counsel of defendant held on April 28, 1955, and again at a special meeting of the council held on April 30, 1955, the said contract to sell the bonds in question was breached and that subsequently at a regular meeting of the council of defendant held on June 7, 1955, the defendant accepted a proposal of Townsend, Dabney and Tyson of Boston, Massachusetts for the purchase of the bonds described in Ordinance No. 4108 in breach and in violation of its contract with plaintiffs; that under date of June 25, 1955, plaintiffs received a letter from the city clerk of the defendant enclosing plaintiffs' cashier's check in the sum of $25,000, which the plaintiffs had deposited along with their proposal of April 15, 1955, to purchase the bonds in question.
The complaint then concluded that as a result of the aforementioned intentional, deliberate, wrongful and unlawful acts of the defendant, said contract with the plaintiffs has been breached by the defendant, although performance thereof has been duly demanded by the plaintiffs; that said defendant has attempted to rescind its contract with the plaintiffs and as a result of the unlawful breach of the contract and the attempted rescission of the same by the defendant, *447 the plaintiffs are deprived of the profits which they would have otherwise gained if said contract had been carried out, amounting to the sum of $106,250, said sum being the difference between the cost of said bonds to the plaintiffs and the amount the plaintiffs would have received from the sale of said bonds.
Attached to and made a part of the complaint were copies of Ordinance No. 4108, plaintiffs' proposal addressed to the mayor and city council, dated April 15, 1955, the proceedings of the city council had on April 18, 1955, April 25, 1955, April 28, 1955, April 30, 1955, and June 7, 1955, and the letters of plaintiffs or their attorneys to the defendant, dated April 29, 1955, May 12, 1955, May 24, 1955, and June 9, 1955.
The proposal of the plaintiffs directed to the mayor and city council is dated April 15, 1955, and, after referring to the passage of Ordinance No. 4108 by the city on August 9, 1954, and to other matters, then stated: "We make you the following proposal: we will purchase $3,400,000 City of Joliet Waterworks and Sewerage Revenue Bonds, series of 1954, as described in Ordinance No. 4108, said bonds to bear interest at the rate of 3 1/4 per cent per annum, to be dated September 1, 1954, and to mature on May 1 serially, in the years 1957 to 1991, as described in said ordinance. We will pay for each $1,000 bond $985 and accrued interest to delivery to us in Chicago, Illinois, at a bank mutually agreeable to you and ourselves. Delivery to be accompanied by a complete transcript of all proceedings taken in the issuance of these bonds which will enable you and ourselves to obtain the unqualified approving opinion of Chapman and Cutler, Chicago, Illinois, or some firm of nationally recognized municipal bond attorneys, attesting to the validity of this issue of bonds.
"It is understood and agreed that the parties hereto shall make every effort to promptly consummate this *448 transaction. This offer is made for delivery of bonds to us by June 1, 1955, and if delivery is made later than that date, in accordance with sound banking procedures, the interest cost to the city shall be adjusted to the time of delivery according to the following formula." (Here follows the formula and certain obligations on behalf of appellants to the effect that they assume the cost of the attorneys' approving opinion and the cost of providing the printed bonds and several other provisions.)
The proposal then concludes: "Attached herewith is a cashier's check payable to the city treasurer of the city of Joliet, Illinois, in the amount of $25,000 as evidence of our good faith, and to be held by him uncashed and to be applied as part payment on the bonds when delivered. The signed acceptance of this proposal shall constitute a contract between the undersigned and the city, and the undersigned agrees to promptly perform their obligations as stated above and the city agrees to deliver the Waterworks and Sewerage Revenue Bonds as described above, all in accordance with this proposal and Ordinance No. 4108 passed August 9, 1954. Submitted this 15th day of April, 1955. F.J. Brophy and Company.
"Accepted for and on behalf of the City of Joliet, Illinois, by a resolution passed this ____ day of ____, 195__, which is hereby acknowledged by the duly, qualified officials.
"________________
Mayor
"________________
City Clerk "
[1] The record discloses that the city of Joliet operates under the optional commission form of municipal government, with a mayor and four commissioners who constitute the city council; that the defendant availed itself of the provisions of the Cities *449 and Villages Act, which authorized it to issue and sell revenue bonds for the purpose of defraying the cost of a combined waterworks and sewerage system payable solely from revenue derived from the operation of such system (Ill. Rev. Stat. 1953, chap. 24, art. 62.) Ordinance No. 4108 was duly passed by the city pursuant to this statutory authority. Section 20 of this ordinance provided: "As soon after this ordinance becomes effective as may be, the council of the city of Joliet shall sell the bonds hereby authorized in such manner as they may hereafter determine ..." The statute required the corporate authorities to determine the manner of sale (Ill. Rev. Stat. 1953, chap. 24, art. 62, sec. 3) and this power could not be delegated by the council to its mayor and city clerk or to anyone else. (People v. City of Centralia, 1 Ill. App.2d 228, 233; People v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 354 Ill. 342, 346; City of Sullivan v. Cloe, 277 Ill. 56, 59.)
In the instant case, if the city council desired to take any action on the proposal submitted by plaintiffs, it was required to do so in accordance with the provisions of the Cities and Villages Act. (Ill. Rev. Stat. 1953, chap. 24, art. 19.) Section 52 of that article provides that every resolution making or authorizing the making of any contract shall remain on file with the municipal clerk for public inspection, in the form in which it is finally passed, at least one week before the final passage thereof.
Section 51 of Article 19 provides: "The Mayor and each Commissioner shall have the right to vote on all questions coming before the council. Three members of the Council shall constitute a quorum and the affirmative vote of three members shall be necessary to adopt any motion, resolution or ordinance." It is then provided: "Upon every vote the `yeas' and `nays' shall be called and recorded. Every motion, resolution, or *450 ordinance shall be reduced to writing and read before a vote is taken thereon, and all Council members present at any meeting shall vote thereon." The last paragraph of this section then provides: "The Mayor shall have no power to veto, but every resolution, ordinance or warrant passed or ordered by the council must be signed by the Mayor or by two Commissioners...."
At a regular meeting of the council held at 2:00 o'clock p.m. on April 18, 1955, the mayor and the four commissioners were present. The record of this meeting discloses: "A proposal submitted by F.J. Brophy and Company, 231 South LaSalle Street, Chicago 4, Illinois, to purchase $3,400,000 City of Joliet Waterworks and Sewerage Revenue Bonds, Series of 1954, as described in Ordinance No. 4108, was presented and read. Commissioner Franck moved that said proposal be received and placed on file with the city clerk. Motion seconded by Commissioner Vollmer. (Motion duly reduced to writing and read.) Motion carried by following vote: Ayes; Mayor Janke and Commissioners Daniel, Franck, Vollmer and Whalen; Nays, None."
One week later, according to the record, on April 25, 1955, at 2:00 o'clock, p.m., another regular meeting of the city council was held. The mayor and all four commissioners were present, and at that meeting the record discloses that "Commissioner Franck moved that the Mayor and City Clerk be authorized to sign contract of F.J. Brophy and Company, 231 South LaSalle Street, Chicago 4, Illinois, as presented on April 18 for purchase of $3,400,000 Waterworks and Sewerage Revenue Bonds as per conditions set forth in proposal. Motion seconded by commissioner Vollmer. (Motion duly reduced to writing and read.) Motion carried by the following vote: Ayes; Mayor Janke and Commissioners Franck and Vollmer; Nays, *451 commissioners Edward J. Daniel and Joseph F. Whalen. Commissioner Whalen moved that the council adjourn. Motion seconded by commissioner Vollmer. (Motion duly reduced to writing and read.) Motion carried by the following vote: Ayes; Mayor Janke and commissioners Daniel, Franck, Vollmer and Whalen."
Appellants insist that a valid and legally enforcible contract came into existence by the action of the city council on April 25, 1955, directing the mayor and city clerk to sign the contract or proposal which was presented by appellants on April 18, 1955.
The city contends that no contract came into existence because the proposal stated that "the signed acceptance of the proposal shall constitute a contract" between the parties. That since the allegations of the complaint show there was no signed acceptance by the mayor and city clerk, there was, therefore, no contract.
In Park Commissioners v. Carmody, 139 Ill. App. 635, relied upon by counsel for appellants, it appeared that the Park Commissioners of West Chicago, on January 25, 1906, advertised for bids for laying certain pipes. The bids were to be received by February 2, 1906. Carmody bid on the job and his bid was accepted at a regular meeting of the board and a letter sent him notifying him to this effect. He was asked to call at the office of the park commissioners on February 23 and pick up a contract covering the project. On February 26 Carmody had his doctor send a letter to the commissioners advising them he was in ill health and should not undertake the job. He never called for the contract and the commissioners forfeited the $500 deposit required to accompany a bid. He then brought suit for the return of this deposit on the ground that no contract was entered into by him with the Park District. In denying him relief, the court said (p. 640): "The plaintiff Carmody, in response *452 to the advertisement by the Park Commissioners, made a definite bid for the work, and the Park Commissioners accepted his bid as made. The bid and its acceptance constituted a contract between the parties, and the execution thereafter of a formal written instrument embodying the terms of the contract would not be the contract itself, but merely evidence of it.
"In 1 Parsons on Contracts, Section 476, 6th ed., the author says: `Thus an offer to sell a certain thing, on certain terms, may be met by the answer, "I will take that thing on those terms," or by any answer which means this, however it may be expressed'; and if the proposition be in the form of a question, as `I will sell you so and so; will you buy?' the whole of the meaning may be conveyed by the word `Yes,' or any other simply affirmative answer. And thus a legal contract is completed.
"In 7 Eng. and Am. Ency., 2d ed., p. 125, this language is used: `All express executory contracts resolve themselves, upon analysis, into an offer by one of the parties and an acceptance of that offer by the other. The act of acceptance closes the contract and ordinarily nothing further is required to make the obligations effective. No special formalities are required.'
"In Garfielde v. U.S., 93 U.S. 242, the U.S. advertised for proposals for carrying mails. Garfielde made a proposal which the Government accepted, in reference to which the court said: `... the proposal on the part of Garfielde, and the acceptance of the proposal by the department, created a contract of the same force and effect as if a formal contract had been written out and signed by the parties.'"
In the Carmody case the municipality advertised for bids. A bid was made, which the municipality accepted and the court held this created a contract. In the instant case the municipality, by ordinance, was *453 authorized to issue and sell the bonds therein set forth. In pursuance to this ordinance appellants submitted a written proposal of purchase. This proposal was definite and unequivocal, consisted of numerous provisions and concluded: "The signed acceptance of this proposal shall constitute a contract between the undersigned and the city and the undersigned agrees to promptly perform their obligations as stated above and the city agrees to deliver the Waterworks and Sewerage Revenue Bonds as described above, all in accordance with this proposal and Ordinance No. 4108, passed August 9, 1954."
[2] Appellants had a perfect right to designate the manner in which its proposal should be accepted. They did so, stating that in order to constitute a contract the proposal must not only be accepted, but the acceptance must be signed. Having so provided and specified, no other form of acceptance would be effective to bind appellants. Where an offer requires an acceptance to be made in writing, no other form of acceptance can be made. (Brach v. Matteson, 298 Ill. 387, 392.) This is what distinguishes the instant case from the Carmody case. Until this proposal or proposed contract was signed by the mayor, clerk or someone authorized by the municipal authorities, there was no legal contract according to the terms of the proposal itself.
In Baltimore and Ohio S.W.R.R. Co. v. The People, 195 Ill. 423, it appeared that a board of education accepted a bid of a contractor to construct a school building, it being understood that a formal building contract acceptable to the board of education was to be thereafter signed. The Supreme Court held that at the date the bid was accepted there was no contract in existence and would not be until the written contract was executed. In the course of its opinion the court quoted from 7 Am. and Eng. Ency. of Law, 2d ed., p. 140, *454 where it is said: "Where the parties make the reduction of an agreement to writing and its signature by them, a condition precedent to its completion, it will not be a contract until that is done and this is true although all the terms of the contract have been agreed upon. But where the parties have assented to all the terms of the contract, the mere reference to a future contract in writing will not negative the existence of a present contract."
In 38 Am. Jur. 176, Municipal Corporations, Sec. 501, it is said: "While the contracts of a municipal corporation are ordinarily executed and signed by the mayor or other chief executive officer on behalf of the corporation, it is possible for a contract binding a municipal corporation to be brought into existence by a vote of the municipal council. Thus an ordinance or resolution which is in effect an offer by a municipal corporation, upon acceptance by the party to whom it was addressed, becomes a contract, similarly, when an offer has been made to a municipal corporation, a vote of the municipal council accepting the offer will constitute a contract. In such a case, the minutes and record of the proceedings of the municipal council constitute a sufficient compliance with the statute of frauds. Care should be taken, however, to distinguish between the vote of a municipal council consisting in and of itself an offer or acceptance and a vote authorizing the executive officers to enter into a contract. In the latter case, the municipality will not be bound until the executive officers have acted."
In Waggeman v. Bracken, 52 Ill. 468, it was stated that "an article of agreement purporting to be made between two parties, imposing mutual obligations upon them, showing upon its face it was to be executed by both parties before it would be binding on either, but only executed by one of them, cannot be given as evidence to the jury for any purpose, not even against *455 the party executing it." See also Hausman Steel Co. v. Severin, 316 Ill. App. 585, where it is said that the rule is that where the parties make the reduction of the agreement to writing, and its signature by them, a condition precedent to its completion, it will not be a contract until that is done, and Atkins and Company v. Kirk, 187 Ill. App. 310, which holds that where it is apparent that the offer as made contemplates a formal written acceptance as a condition precedent, such formal acceptance is required. If an offer prescribes the place, time or manner of acceptance, its terms, in this respect must be complied with in order to create a contract. (Restatement of the law of Contracts, sec. 61.)
[3, 4] Counsel for plaintiffs argue that the portion of their proposal which stated that its signed acceptance shall constitute the contract means accepted by the city council by written motion or resolution. That, however, is not what this proposal states. This proposal clearly specified the method of its acceptance. This proposal did not say that when signed by the proper authorities it would be evidence of the contract, but unequivocally stated: "The signed acceptance of this proposal shall constitute a contract between the undersigned and the city." Plaintiffs saw fit to include in their proposal the method of its acceptance. They had a right to do this. In order to create a valid municipal contract it is necessary that the essentials of a good contract be present and there is no contract existing between the city and a contractor before the contract, as written, received the final approval of the other, or where, the acceptance is not made in the manner specified in the offer, or where, although there has been substantial agreement, the parties recognize something remains to complete its execution. (63 C.J.S. 560, Title Municipal Corporations, sec. 993.) The only action the council took with reference to the *456 proposal of the plaintiffs was to authorize the mayor and city clerk to sign the contract of plaintiffs presented on April 18, as "per conditions set forth in their proposal."
[5, 6] The mayor and clerk, of course, could not nullify the action of the council by withholding their signatures, as their duties, in this respect, would be ministerial and could have been enforced by mandamus. Never having signed the proposal, the city council on April 30, 1955, rescinded its action and the plaintiffs were so notified. There is no contract on which an action can be based where the resolution authorizing it is rescinded before the contract is executed. (63 C.J.S. 564, Title Municipal Corporations, sec. 994.)
The judgment appealed from must be affirmed.
Judgment affirmed.
CROW, J., concurs.
| {
"pile_set_name": "FreeLaw"
} |
118 N.J. 513 (1990)
572 A.2d 622
STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JAMES JEROLD KOEDATICH, DEFENDANT-RESPONDENT.
The Supreme Court of New Jersey.
Argued October 23, 1989.
Decided April 19, 1990.
*514 Joseph Connor, Jr., and Thomas J. Critchley, Jr., Assistant Prosecutors, argued the cause for appellant (Lee S. Trumbull, Morris County Prosecutor, attorney).
*515 David A. Ruhnke, Designated Counsel, argued the cause for respondent (Alfred A. Slocum, Public Defender, attorney).
The opinion of the Court was delivered by STEIN, J.
In State v. Koedatich, 112 N.J. 225, 548 A.2d 939 (1988), cert. denied, ___ U.S. ___, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989), we affirmed defendant's conviction for the murder of Amie Hoffman but vacated his death sentence and remanded for a new penalty-phase hearing. The issue on this appeal is whether the State can offer evidence at the resentencing hearing of aggravating factors that were charged but that the jury in the first proceeding did not unanimously find to exist. The trial court concluded the State was barred from resubmitting those aggravating factors. We granted the State's motion for leave to appeal that ruling and now reverse.
I.
On November 23, 1982, eighteen-year-old Amie Hoffman was abducted from the Morris County Mall where she worked part-time. Two days later, police discovered her body in a water-retention tank located in a secluded area of Randolph Township. Medical evidence revealed that she had been sexually assaulted and then stabbed to death. The resulting police investigation culminated in the arrest of James Jerold Koedatich. In October 1984, a Morris County jury convicted Koedatich of several offenses including murder and sentenced him to death.[1]
At the penalty phase of the trial, the State charged four aggravating factors: (1) that defendant had previously been *516 convicted of murder, N.J.S.A. 2C:11-3c(4)(a) (defendant had been convicted of second-degree murder in Florida in 1971); (2) that the murder was committed while defendant was engaged in the commission of or flight from the commission of a sexual assault and kidnapping, N.J.S.A. 2C:11-3c(4)(g); (3) that the murder was committed for the purpose of escaping detection, N.J.S.A. 2C:11-3c(4)(f); and (4) that the murder was outrageously and wantonly vile, N.J.S.A. 2C:11-3c(4)(c).
The jury unanimously found that defendant had a prior murder conviction and that he killed Amie Hoffman in the course of a sexual assault and kidnapping. The jury was unable to agree unanimously with respect to the other two aggravating factors. The Penalty Phase Special Verdict Form revealed that eleven of the twelve jurors determined that the murder was "outrageously and wantonly vile," and eight determined that the murder was committed "to escape detection."
Defendant subsequently appealed both the conviction and the death sentence. Although this Court affirmed the underlying conviction, we vacated defendant's death sentence, finding reversible error in the penalty phase. 112 N.J. at 340, 548 A.2d 939. Specifically, we held that the trial court had erroneously charged the jury that the mitigating factors must outweigh the aggravating factors in order for the court to impose a sentence other than death. Id. at 325, 548 A.2d 939. Further, we held that the trial court had erred by requiring that the jury unanimously find the existence of mitigating factors. Id. at 326-27, 548 A.2d 939. Accordingly, we remanded the matter for a new penalty-phase hearing.
In September 1988, the State filed a Notice of Intention to Seek the Death Penalty at Resentencing, in which it relied on the same four aggravating factors charged in the initial sentencing proceeding. Defendant argued at resentencing that this Court's decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987) (Biegenwald II), and State v. Biegenwald, 110 N.J. 521, 542 A.2d 442 (1988) (Biegenwald III), preclude the *517 State from resubmitting both the "outrageously wanton and vile" and the murder "to escape detection" factors.[2] The trial court agreed, holding that those death-penalty decisions barred the State from charging any aggravating factors at resentencing that the jury in the first penalty phase did not unanimously find to exist.
II.
We note that the Capital Punishment Act, N.J.S.A. 2C:11-3 (the Act), offers no specific guidance on the question whether aggravating factors not unanimously found to exist by the jury at the initial sentencing proceeding can be presented at resentencing following a remand. Nor have our prior decisions concerning the presentation of aggravating factors at resentencing dealt specifically with the issue raised by this appeal.
In Biegenwald II, supra, 106 N.J. 13, 524 A.2d 130, we affirmed defendant's conviction for the murder of Anne Olesiewicz, but reversed his death sentence because the trial court had improperly instructed the jury in the penalty phase. Accordingly, we remanded the case for a new sentencing proceeding, observing that "[r]esentencing cannot be considered double-jeopardy where the first sentence was a death sentence and the evidence was sufficient." Id. at 68, 524 A.2d 130.
At the initial penalty-phase proceeding in Biegenwald II, the jury unanimously found the existence of two aggravating factors: (1) that defendant had previously been convicted of murder, N.J.S.A. 2C:11-3c(4)(a); and (2) that "the murder was outrageously or wantonly vile, horrible or inhuman in that it *518 involved torture, depravity of mind, or an aggravated battery to the victim." N.J.S.A. 2C:11-3c(4)(c) ("c(4)(c)"). We held that principles of double jeopardy barred the State from proving the existence of the "aggravated battery" or "torture" components of the c(4)(c) aggravating circumstance at resentencing because there was insufficient evidence in the record to support those components. 106 N.J. at 51, 524 A.2d 130. We noted, however, that the State would not be barred from offering evidence of "depravity of mind" to establish aggravating factor c(4)(c). Id. at 52, 524 A.2d 130.
In Biegenwald III, supra, 110 N.J. 521, 542 A.2d 442, the issue was whether the State could introduce as an aggravating factor at the resentencing hearing defendant's conviction for the murder of William Ward, which was obtained after the Olesiewicz conviction. We held that admission of the Ward conviction at resentencing complied with the double-jeopardy clauses of both the federal and state constitutions and with principles of fundamental fairness. Id. at 540-41, 542 A.2d 442. As dictum in that opinion, we offered this guideline:
If the sentencing jury in the first trial specifically rejects an aggravating factor or an appellate court finds that the State failed to establish by sufficient evidence the existence of an aggravating factor at the original trial, the aggravating factor[,] or that part of the aggravating factor rejected by the jury, cannot be used at the resentencing proceeding. [Id. at 542, 542 A.2d 442.]
Neither Biegenwald II nor Biegenwald III, however, is dispositive of the issue before us. Therefore, we begin our analysis by considering the question in the context of double-jeopardy jurisprudence. Because we have held the double-jeopardy clauses of the state and federal constitutions to be substantially coextensive, State v. DeLuca, 108 N.J. 98, 102, 527 A.2d 1355 (1987); State v. Dively, 92 N.J. 573, 578, 458 A.2d 502 (1983); State v. Barnes, 84 N.J. 362, 370, 420 A.2d 303 (1980), we proceed with an overview of federal double-jeopardy law pertaining to sentencing issues.
The Supreme Court has recognized that the double-jeopardy clause of the fifth amendment embodies three distinct protections for criminal defendants:
*519 It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. [North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1965) (footnotes omitted).]
Constitutional protections against double jeopardy clearly preclude the retrial of a defendant who has been acquitted of the offenses with which he was charged. As the Court observed in Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957):
[T]he State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
Nevertheless, it is consistent with the guarantee against double jeopardy to retry a defendant who has succeeded in obtaining reversal of his conviction based on trial errors:
It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction. [United States v. Tateo, 377 U.S. 463, 466, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448, 451 (1964).]
Where a defendant's conviction has been overturned due to insufficient evidence, however, principles of double jeopardy prohibit retrial. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).
Defendants have sought to extend the significance accorded acquittal of a criminal offense to the imposition of a particular sentence. In North Carolina v. Pearce, supra, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, the Court considered whether the imposition of a greater sentence, after conviction on retrial, was barred on double-jeopardy grounds. Reasoning that the "power to impose whatever sentence may be legally authorized" was a "corollary of the power" to retry a defendant whose conviction was set aside on appeal, the Court held that the prohibition against double jeopardy did not preclude the imposition of a harsher sentence on reconviction. Id. at 720, 89 S.Ct. at 2078, 23 L.Ed.2d at 666. The Court explained that the rationale for *520 its holding "rests ultimately upon the premise that the original conviction has, at the defendant's behest, been wholly nullified and the slate wiped clean." Id. at 721, 89 S.Ct. at 2078, 23 L.Ed.2d at 667.
The Court's unwillingness to equate acquittals with the imposition of a particular sentence was reaffirmed in United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). Rejecting arguments that for double-jeopardy purposes "the imposition of the sentence is an `implied acquittal' of any greater sentence," id. at 133, 101 S.Ct. at 435, 66 L.Ed.2d at 343, the Court upheld a provision of the Organized Crime Control Act that granted the government the right to appeal the sentences of "dangerous special offenders," as defined by that Act. Id. at 136, 101 S.Ct. at 437, 66 L.Ed.2d at 345. Thus, because of fundamental distinctions between the two, the Court has made clear that "the pronouncement of sentence has never carried the finality that attaches to an acquittal." Id. at 133, 101 S.Ct. at 435, 66 L.Ed.2d at 343.
Due to the unique features of penalty-phase proceedings in capital cases, the Court has modified its view on the distinction between trials and sentences, resulting in an exception to the "clean slate rationale" generally applicable to sentencing at retrial. In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the Court considered whether a defendant who was convicted of murder and sentenced to life imprisonment in a bifurcated-capital proceeding could, after successfully appealing his conviction, be subjected to the death penalty on retrial. The Court observed that by enacting a capital-sentencing procedure that resembles a trial on the issue of guilt, Missouri explicitly requires the jury to determine whether the prosecution has "proved its case" for the death penalty:
The jury in this case was not given unbounded discretion to select an appropriate punishment from a wide range authorized by statute. Rather, a separate hearing was required and was held, and the jury was presented both a choice between two alternatives and standards to guide the making of that choice. *521 Nor did the prosecution simply recommend what it felt to be an appropriate punishment. It undertook the burden of establishing certain facts beyond a reasonable doubt in its quest to obtain the harsher of the two alternative verdicts. The presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence. It was itself a trial on the issue of punishment so precisely defined by the Missouri statutes. [Id. at 438, 101 S.Ct. at 1858, 68 L.Ed.2d at 278-79 (footnote omitted).]
By sentencing defendant to life imprisonment at the first trial, the jury effectively "`acquitted' defendant of whatever was necessary to impose the death sentence." Id. at 445, 101 S.Ct. at 1861, 68 L.Ed.2d at 283 (citation omitted); see also Arizona v. Rumsey, 467 U.S. 203, 211, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164, 171 (1984) (holding that double-jeopardy clause prohibited State from seeking death penalty at resentencing, where judge sentenced defendant to life imprisonment in the original penalty-phase proceeding).
In Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), the Court defined the contours of the "acquittal" analogy employed in Bullington and Rumsey as it applied to the resubmission at resentencing of an aggravating factor rejected at the original trial. In Poland, two brothers robbed a cash-delivery van and killed the two guards attending the van; the bodies were placed in weighted sacks and dumped into a lake. A jury convicted both defendants of capital murder. At the penalty-phase hearing, the State charged two statutory aggravating factors: (1) that defendants had "committed the offense as consideration for the receipt, or in expectation of the receipt, of [something] of pecuniary value"; and (2) that defendants had "committed the offense in an especially heinous, cruel, or depraved manner." The trial judge, sitting as sentencer, failed to find the existence of the "pecuniary gain" aggravating circumstance, believing it applied only to contract killings, but did find the existence of the "especially heinous, cruel, or depraved" factor. After performing the appropriate balancing procedure, the court sentenced defendants to death. On appeal, the Arizona Supreme Court reversed the convictions due to error in the guilt phase of the proceeding and remanded *522 for a new trial. With respect to the penalty phase, the court held that there was insufficient evidence to support the trial court's finding of the "especially heinous, cruel, or depraved" aggravating factor. The court also held that the "pecuniary gain" aggravating circumstance was not limited to situations involving contract killings and expressly ruled that that factor could be considered at resentencing.
Defendants were subsequently reconvicted of capital murder and sentenced to death. The trial judge found that the "pecuniary gain" and "especially heinous, cruel or depraved" aggravating factors were present in each defendant's case. On appeal, the Arizona Supreme Court again found insufficient evidence to support the existence of the "especially heinous, cruel, or depraved" aggravating factor. Concluding that there was sufficient evidence to support the "pecuniary gain" factor, however, the court upheld the respective death sentences.
The United States Supreme Court affirmed, observing that
[a]t no point during petitioners' first capital sentencing hearing and appeal did either the sentencer or the reviewing court hold that the prosecution had "failed to prove its case" that petitioners deserved the death penalty. Plainly, the sentencing judge did not acquit, for he imposed the death penalty. While the Arizona Supreme Court held that the sentencing judge erred in relying on the "especially heinous, cruel, or depraved" aggravating circumstance, it did not hold that the prosecution had failed to prove its case for the death penalty. [Id. at 154, 106 S.Ct. at 1754, 90 L.Ed.2d at 131-32.]
In so holding, the Court rejected defendants' argument that the sentencing judge "acquitted" them of the "pecuniary gain" circumstance by not finding its existence in the initial sentencing proceeding, concluding that principles of double jeopardy did not bar consideration at resentencing of evidence relating to that circumstance:
We reject the fundamental premise of petitioners' argument, namely, that a capital sentencer's failure to find a particular aggravating circumstance alleged by the prosecution always constitutes an "acquittal" of that circumstance for double jeopardy purposes. Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has "decided that the prosecution has not proved its case" that the death penalty is appropriate. We are not prepared to extend Bullington further and view the capital sentencing hearing as a set of mini-trials on the existence of each aggravating circumstance. *523 Such an approach would push the analogy on which Bullington is based past the breaking point.
* * * * * * * *
We hold, therefore, that the trial judge's rejection of the "pecuniary gain" aggravating circumstance in this case was not an "acquittal" of that circumstance for double jeopardy purposes, and did not foreclose its consideration by the reviewing court. Furthermore, because the reviewing court did not find the evidence legally insufficient to justify imposition of the death penalty, there was no death penalty "acquittal" by that court. The Double Jeopardy Clause, therefore, did not foreclose a second sentencing hearing at which the "clean slate" rule applied. [Id. at 155-57, 106 S.Ct. at 1755-56, 90 L.Ed.2d at 132-33 (footnote omitted) (emphasis added).]
Although three Justices dissented in Poland, no member of the Court adopted the defendant's argument that principles of double jeopardy preclude the State from charging at resentencing aggravating factors not found to exist at the initial penalty-phase proceeding.[3] Therefore, under federal double-jeopardy doctrine, where a defendant who has been sentenced to death succeeds in having the sentence overturned on appeal, the "clean slate" rule of Pearce applies to the new sentencing proceeding. The State is permitted to resubmit aggravating factors at the new proceeding even if those factors were not found at the initial-sentencing proceeding, provided there is sufficient evidence in the record to sustain the original death sentence. Poland v. Arizona, supra, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123. Where a defendant was originally sentenced to life imprisonment, however, the State may not, consistent with principles of double jeopardy, seek the death penalty on remand because the State failed "to prove its case" for *524 that sentence in the first proceeding. Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270.
III.
We have on several occasions demonstrated a willingness to read our state constitutional provisions more expansively than the federal counterpart where necessary to provide our citizens with enhanced protections. See State v. Novembrino, 105 N.J. 95, 519 A.2d 820 (1987); State v. Williams, 93 N.J. 39, 459 A.2d 641 (1983); Right to Choose v. Byrne, 91 N.J. 287, 450 A.2d 925 (1982); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982). Because no distinct tradition of state-constitutional doctrine requires departure from federal decisions on this issue, we decline to view "the capital sentencing hearing as a set of mini-trials on the existence of each aggravating circumstance." Poland v. Arizona, supra, 476 U.S. 147, 155, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123, 132. We conclude, therefore, that a jury's failure to determine unanimously the existence of a statutory aggravating factor does not constitute an "acquittal" of that factor, barring its presentation at resentencing on double-jeopardy grounds.
The Capital Punishment Act, N.J.S.A. 2C:11-3, which governs the administration of the death penalty in this state, "calls for a bifurcated trial in which punishment is determined in a separate proceeding following the establishment of guilt." State v. Ramseur, 106 N.J. 123, 156, 524 A.2d 188 (1987). The capital-sentencing scheme delegates to jurors the sensitive task of determining whether a defendant convicted of capital murder will live or die. Indeed, the fact-finder's determination in the penalty phase of a capital proceeding focuses on whether death is the appropriate punishment for the defendant. As we explained in State v. Bey, 112 N.J. 123, 158, 548 A.2d 887 (1988) (Bey II),
[t]he vehicle through which the jury discharges its responsibility is the determination of the existence of aggravating and mitigating factors and the balancing of the former against the latter. In the sentencing phase, the jury is obliged to *525 determine, first, the existence of any aggravating factor or factors. The jury must find that at least one aggravating factor exists before the death penalty may be imposed. If the jury "finds that no aggravating factors exist * * * the court shall sentence the defendant pursuant to subsection b," which requires a term of imprisonment. If, however, the jury finds an aggravating factors exists, then it must determine whether any mitigating factors also exist. After making fact findings about the "existence or non-existence" of aggravating and mitigating factors, the jury must then make the normative judgment whether the aggravating outweigh the mitigating factors beyond a reasonable doubt. That decision, in effect, determines the appropriateness of the death penalty for the defendant.
In recognition of the fact that a finding with respect to the existence or non-existence of an aggravating factor will tip the delicate balance between life and death, the Act requires that the State prove the existence of aggravating factors beyond a reasonable doubt. N.J.S.A. 2C:11-3c(2)(a). Although the Act does not expressly mandate it, we have interpreted the Act to require that in order for an aggravating factor to be considered in the balancing process, the jurors must agree unanimously with respect to its existence. See, e.g., Bey II, supra, 112 N.J. at 159, 548 A.2d 887. Thus, the role of statutory aggravating factors in our capital-sentencing scheme is of critical importance to the jury's ultimate determination concerning the appropriate punishment to be imposed. We observed in State v. Ramseur, supra, 106 N.J. at 185-86, 524 A.2d 188, that the jury's consideration of statutory aggravating factors serves to narrow the class of death-eligible murderers as well as to guide the jury's discretion in determining the appropriateness of a death sentence.
Under our capital-sentencing scheme, a unanimous finding of the existence of any one of the statutory aggravating factors charged by the State could result in a death sentence, provided that the jury determines that that aggravating factor outweighs the mitigating factors beyond a reasonable doubt. Unlike the situation in guilt-phase deliberations, a jury charged with deciding the existence of several aggravating factors might not necessarily exhaust its deliberative capacity in an effort to achieve unanimity on all such factors if it should *526 determine that one aggravating factor, on which it does unanimously agree, outweighs the mitigating factors beyond a reasonable doubt. Thus, although we acknowledge the critical role of aggravating factors in deciding whether the death penalty is an appropriate punishment, we are unwilling to imbue a jury's non-unanimous decision with respect to an aggravating factor with the same reliability as attends a verdict of acquittal on a criminal charge. Instead, in the penalty-phase proceeding, a jury vote that is less than unanimous on an aggravating factor is a finding that that factor does not exist for purposes of its use in that proceeding.
Our dissenting colleagues disagree, emphasizing that "a non-unanimous verdict in a capital case is a verdict in every sense of the word," post at 545, 572 A.2d at 639 (O'Hern, J., dissenting); "The Court itself has recognized that a non-unanimous verdict constitutes a jury verdict." Post at 538, 572 A.2d at 635 (Handler, J., dissenting.) In addition, Justice Handler reasons that because at least one aggravating factor must be found to exist to expose a defendant convicted of murder to capital punishment, the aggravating factors submitted to a jury are elements of the crime of capital murder. Id. at 533, 572 A.2d at 632. Applying traditional double-jeopardy principles, he asserts that "a retrial seeking the death penalty based on identical aggravating factors [not unanimously found at the first proceeding] is tantamount to a retrial for the same crime." Post at 534, 572 A.2d at 633. The issue cannot, however, be simplified and resolved so categorically. Because the jury must find one aggravating factor before the death penalty can be imposed, it is appropriate to consider aggravating factors as analogous to elements of other crimes. But in a capital-sentencing proceeding in which multiple aggravating factors are submitted to the jury, a finding that all such factors exist is not a prerequisite to a death sentence. In that context, the analogy to "elements of a crime" breaks down; the jury's non-unanimous finding on "extra" aggravating factors cannot be analogized, *527 for double-jeopardy purposes, to a determination that the State has failed to prove an essential element of a crime.
Similarly, although the Act authorizes a non-unanimous verdict in the sentencing proceeding, the statutory authorization refers to the jury's determination "whether the defendant should be sentenced to death * * *." See N.J.S.A. 2C:11-3c(1). On that question, both the statute and our cases clearly recognize that a non-unanimous verdict is permissible under the Act. See State v. Ramseur, supra, 106 N.J. at 312, 524 A.2d 188. Nevertheless, we have held that when a trial court in a capital-sentencing proceeding is first advised that a jury could not reach a unanimous verdict, the court should inquire whether the jury's report "indicated its final verdict or whether the jury wanted more time to deliberate." State v. Hunt, 115 N.J. 330, 380, 558 A.2d 1259 (1989); State v. Ramseur, supra, 106 N.J. at 302, 524 A.2d 188. That procedure, intended to assure that a jury had exhausted its deliberative capacity on the issue of life or death, would be completely unnecessary and inappropriate under circumstances where, as in the initial sentencing proceeding in this case, the jury was unanimous on the death sentence but non-unanimous only on two of four aggravating factors. Thus, although the Act authorizes non-unanimous verdicts in the sentencing phase, that authorization is far from decisive on the question whether a non-unanimous vote on two of four aggravating factors, under principles of double jeopardy, bars resubmission of those factors in a second sentencing proceeding.
We note that an overwhelming majority of jurisdictions that have considered the issue have also rejected double-jeopardy challenges to the introduction, at resentencing, of aggravating factors not unanimously found to exist in the initial sentencing proceeding. See Rose v. State, 461 So.2d 84 (Fla. 1984) (trial court's reliance on aggravating factor at resentencing that was not found at initial proceeding did not violate double jeopardy), cert. denied, 471 U.S. 1143, 105 S.Ct. 2689, 86 L.Ed.2d 706 (1985); Zant v. Redd, 249 Ga. 211, 290 S.E.2d 36 (1982) (where *528 defendant's death sentence was overturned on appeal, State could resubmit at resentencing aggravating factors charged but not found to exist at original trial), cert. denied, 463 U.S. 1213, 103 S.Ct. 3552, 77 L.Ed.2d 1398 (1983); State v. David, 468 So.2d 1133 (La. 1985) (jury finding that single aggravating factor exists does not amount to an acquittal of other aggravating factors presented to jury), cert. denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678, reh'g denied, 478 U.S. 1014, 106 S.Ct. 3321, 92 L.Ed.2d 728 (1986); State v. Gilbert, 277 S.C. 53, 283 S.E.2d 179 (1981) (no double-jeopardy violation in submitting aggravating factor to jury not found at initial trial), cert. denied, 456 U.S. 984, 102 S.Ct. 2258, 72 L.Ed.2d 863 (1982); Hopkinson v. State, 664 P.2d 43, 70 (Wyo.) (holding that aggravating factors not found to exist at first trial could be submitted at resentencing without violating principles of double jeopardy because "there is no such thing as an acquittal from an aggravating circumstance in the penalty phase."), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983). Contra State v. Silhan, 302 N.C. 223, 275 S.E.2d 450 (1981) (holding that considerations of double jeopardy preclude State from relying at resentencing on aggravating factors not found at original proceeding).
IV.
Having concluded that principles of double jeopardy present no bar, we next consider whether the State's reliance at resentencing on aggravating factors charged but not unanimously found in the initial proceeding offends notions of fundamental fairness. We frequently invoke the doctrine of fundamental fairness in criminal matters "when the scope of a particular constitutional protection has not been extended to protect a defendant." State v. Yoskowitz, 116 N.J. 679, 705, 563 A.2d 1 (1989). Accordingly, precepts of fundamental fairness have been used to prohibit various types of governmental action even though a defendant's constitutional rights were not directly implicated. See, e.g., State v. Tropea, 78 N.J. 309, 394 *529 A.2d 355 (1978) (fundamental fairness precludes any retrial where on appeal for failure to produce an essential element of proof court vacated defendant's earlier conviction on same charge); Rodriguez v. Rosenblatt, 58 N.J. 281, 277 A.2d 216 (1971) (considerations of fairness dictate that municipal court appoint counsel where necessary to protect indigents against injustices that may result from their inability to cope fairly with the charges against them); State v. Calvacca, 199 N.J. Super. 434, 440, 489 A.2d 1199 (App.Div. 1985) (custodial sentence imposed for drunk-driving conviction "infringe[d] on [defendant's] right to fundamental fairness in sentencing" where court relied on defendant's drunkenness in imposing custodial sentence for conviction of death by auto).
State v. Currie, 41 N.J. 531, 197 A.2d 678 (1964), focuses on the "fundamental fairness" doctrine in the context of double jeopardy. In Currie, police officers stopped defendant's car. As one of the officers approached, defendant drove away, striking the officer and the police car. Another officer was injured as he tried to avoid the speeding car. Defendant was ultimately apprehended, charged, and convicted in municipal court for reckless driving and leaving the scene of an accident. More than one year later, defendant was charged with and convicted by a jury of atrocious assault and battery. Both the Appellate Division and this Court rejected defendant's claim that the second prosecution was barred on double-jeopardy grounds.
Justice Jacobs, writing for the Court, also considered whether the second prosecution was unfair, stating that "[i]n applying the prohibition against double jeopardy * * * [t]he primary considerations should be fairness and fulfillment of reasonable expectations in the light of the constitutional and common law goals." Id. at 539, 197 A.2d 678. The Court concluded the second prosecution did not involve "elements of oppression or harassment" or violate the reasonable expectations of the defendant. Id. at 543, 197 A.2d 678. Rather, barring the second prosecution would have been grossly unfair to the State. Ibid. *530 The Currie analysis suggests that the doctrine of fundamental fairness may fairly be considered "a penumbral right reasonably extrapolated from other specific constitutional guarantees * * *." State v. Abbati, 99 N.J. 418, 430, 493 A.2d 513 (1985) (citations omitted).
We have also applied principles of fundamental fairness in death-penalty proceedings. In State v. Ramseur, supra, we held that precepts of fundamental fairness require that "juries in capital cases be informed of, and free to exercise, the statutory option to return a final, non-unanimous verdict * * *." 106 N.J. at 308-09, 311-12, 524 A.2d 188. In Biegenwald II, supra, we held that the dictates of fundamental fairness require that the jury, in order to impose a death sentence, must find that the statutory aggravating factors adduced by the State outweigh mitigating factors beyond a reasonable doubt. 106 N.J. at 62, 524 A.2d 130. We concluded that the adoption of the reasonable doubt standard in other contexts indicated the Legislature's "probable intention to impose the same burden" on the capital sentencing balancing process. Id. at 60, 524 A.2d 130. Finally, in Biegenwald III, we held that consideration of a murder conviction at the second penalty-phase proceeding, which occurred before resentencing but after the original trial, was not fundamentally unfair, because there was "no element of unfairness or surprise to the defendant." 110 N.J. at 540, 542 A.2d 442.
In the context of double jeopardy, determination of whether government action offends concepts of state fundamental fairness depends largely on the policy interests underlying that constitutional guarantee. State v. Currie, supra, 41 N.J. at 539, 197 A.2d 678. We conclude that resubmission of aggravating factors that the jury in the first sentencing proceeding did not unanimously find to exist does not implicate the policies underlying the double-jeopardy clause, which primarily seek to prevent the State from using its vast resources to harass and oppress defendants through multiple prosecutions or punishments for the same offense. Id. at 536, 197 A.2d 678.
*531 Proper administration of our capital-sentencing scheme requires that the jury's decision in the penalty phase be based on consideration of the "individual characteristics of the offender and his crime." Biegenwald III, supra, 110 N.J. at 538, 542 A.2d 442. Accordingly, we have recognized that in capital sentencing, "the jury must have before it all the possible relevant information `regarding the individual characteristics of the defendant and his offense, including the nature and circumstances of the crime and the defendant's character, background, history, mental condition and physical condition.'" Id. at 539, 542 A.2d 442 (citing California v. Ramos, 463 U.S. 992, 1006, 103 S.Ct. 3446, 3455, 77 L.Ed.2d 1171, 1184 (1983) (citation omitted)). To that end, we have construed the death-penalty statute to impose on defendants only the burden of presenting evidence of mitigating factors in order for such factors to be considered by a jury in its penalty-phase deliberations. Bey II, supra, 112 N.J. at 159, 548 A.2d 887. Moreover, any juror is permitted, in the balancing process, to weigh a mitigating factor found to exist by that juror, even if no other juror agrees. Id. at 160, 548 A.2d 887. Nor has the State ever suggested that we should preclude a defendant from resubmitting, at a second sentencing proceeding, a mitigating factor rejected by all jurors at the first proceeding.
We note that the Capital Punishment Act as interpreted by this Court provides extensive safeguards against unfair and arbitrary imposition of the death penalty. As we observed in State v. Bey (Bey I), 112 N.J. 45, 92, 548 A.2d 846 (1988):
We acknowledge that the death sentence and capital proceedings differ in several respects from incarceration and noncapital prosecutions. We believe that in death penalty cases an appellate court must subject the record to intense scrutiny. The stark fact that a litigant's life is at stake intensifies the obligation of judicial review. * * * [W]e have engaged in that very meticulous and searching review of the record in every capital case that has come before us. (Citations omitted.)
Nevertheless, we are satisfied that to allow the State to charge at resentencing aggravating factors that were supported by sufficient evidence but not unanimously found at the initial *532 sentencing hearing poses no fundamental unfairness to defendants. We conclude that resubmission of such aggravating factors at a second penalty proceeding is consistent with the basic premise that all relevant evidence "regarding the individual characteristics of the defendant and his offense" be considered by the jury. Biegenwald III, supra, 110 N.J. at 539, 542 A.2d 442 (citations omitted). Exclusion of this relevant information regarding the nature and circumstances of a defendant's crime would unnecessarily impede the jury's crucial function in determining whether death is the appropriate punishment.
Judgment reversed.
HANDLER, J., dissenting.
In the earlier trial of defendant for the murder of Amie Hoffman, the jury unanimously found two aggravating factors: that he had a prior murder conviction (N.J.S.A. 2C:11-3c(4)(a)) and that he killed in the course of a sexual assault and kidnapping (N.J.S.A. 2C:11-3c(4)(g)). The jury, however, did not find two other aggravating factors that were alleged by the State: that the murder was "outrageously or wantonly vile" (N.J.S.A. 2C:11-3c(4)(c)) and committed to "escape detection" (N.J.S.A. 2C:11-3c(4)(f)). The jury was unable to agree unanimously with respect to those two factors, voting eleven to one in favor of the former, and eight to four in favor of the latter. Following the appeal to our Court, the case was remanded for another trial to determine whether defendant should be put to death.
On remand, defendant moved to bar the submission of the aggravating factors not previously found by the jury, i.e., that he had committed an "outrageously wanton and vile" murder "to escape detection." The trial court agreed, holding that our decisions in State v. Biegenwald, 106 N.J. 13, 524 A.2d 130 (1987), and 110 N.J. 521, 542 A.2d 442 (1988), barred the State from charging any aggravating factors at the second penalty *533 trial which it failed to prove to unanimous-jury satisfaction in the first penalty trial. The majority reverses that determination, concluding "that a jury's failure to determine unanimously the existence of a statutory aggravating factor does not constitute an `acquittal' of that factor, barring its presentation at resentencing on double-jeopardy grounds." Ante at 524, 572 A.2d at 628.
I disagree. The dissenting opinion of Justice O'Hern, with which I concur, demonstrates as a matter of federal constitutional law that double jeopardy applies to the specific context of the sentencing phase of a capital-murder trial and should bar the resubmission of the aggravating factors that were not found by the jury in the prior sentencing trial. Post at 547, 572 A.2d at 639-640 (citing Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981)). I would also hold that given this State's statutory treatment of aggravating factors, double jeopardy principles under state, as well as federal, constitutional standards preclude the re-presentation at a new trial of aggravating factors that have been rejected by a jury, either by a unanimous or non-unanimous determination.
We have consistently recognized the bar of double jeopardy against successive prosecutions for essentially the same crime. See State v. DeLuca, 108 N.J. 98, 527 A.2d 1355 (1987); State v. Dively, 92 N.J. 573, 458 A.2d 502 (1983); State v. Lynch, 79 N.J. 327, 399 A.2d 629 (1979); State v. Tropea, 78 N.J. 309, 394 A.2d 355 (1978). The crime of capital murder is defined by relevant aggravating factors. As underscored by Justice O'Hern, it is indisputable that under our death penalty statute the aggravating factors are essential elements of the crime of capital murder a murder for which the death penalty can be imposed. Unless a murder is shown to have been committed under circumstances establishing an aggravating factor under the death penalty statute, it will not constitute capital murder warranting the death penalty. Post at 545-547, 572 A.2d at 639. This Court itself recognized in the seminal Ramseur case that the aggravating factors constitute elements of the offense *534 of capital murder. The Court, here, reiterates this understanding:
We observed in State v. Ramseur, supra, 106 N.J. at 185 [524 A.2d 188], that the jury's consideration of statutory aggravating factors serves to narrow the class of death-eligible murderers as well as to guide the jury's discretion in determining the appropriateness of a death sentence.
[Ante at 525, 572 A.2d at 628.]
According to one standard test under well-settled principles of double jeopardy, a crime is defined by its essential elements; crimes are the same if their elements are the same. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932); State v. DeLuca, supra, 108 N.J. at 105, 527 A.2d 1355; see Brown v. Ohio, 432 U.S. 161, 163, 97 S.Ct. 2221, 2224, 53 L.Ed.2d 187, 193, 195 (1977). Thus, the subsequent prosecution for an offense that is based on the same elements of a crime involved in an earlier prosecution would involve the prosecution of the same crime for double jeopardy purposes. See, e.g., State v. DeLuca, supra, 108 N.J. 98, 527 A.2d 1355; State v. Dively, supra, 92 N.J. 573, 458 A.2d 502. It follows that when there is a verdict to impose the death penalty involving the rejection of specific aggravating factors, a retrial seeking the death penalty based on identical aggravating factors is tantamount to a retrial for the same crime. Here, two of the elements of the crime tried and previously determined not to exist are identical to two of the elements of the crime that will be retried, namely, capital murder as defined by the aggravating factors c(4)(c) and c(4)(f). The State may not in any other context retry a defendant for the same crime involving the same elements with respect to which there was a rejection. See, e.g., State v. Grunow, 102 N.J. 133, 149, 506 A.2d 708 (1986). The State should not, in the context of a capital murder prosecution, be given an opportunity in the retrial of a defendant to establish the same aggravating factors that had previously been rejected.
The majority explains its conclusion that double jeopardy does not apply in this case by focusing on asserted differences that can distinguish a sentencing trial from a guilt trial for *535 double jeopardy purposes. It suggests that aggravating factors may not, after all, constitute elements that serve to define the crime of capital murder warranting the death penalty, and, therefore, a jury's determination with respect to an aggravating factor, be it an affirmative or negative finding, is not a result that can be equated with a conviction or acquittal.
The Court's position in this regard is untenable. In a capital-murder prosecution there are differences between the trial to determine criminal guilt and the trial to determine the penalty. These trials, however, cannot be principally distinguished for double jeopardy purposes. There can be no question that the bifurcated proceeding prescribed by our capital-murder statute to determine whether a defendant shall be put to death entails trials that must be conducted with maximum protections. The trial that can eventuate in a verdict of capital murder and the death sentence is in all respects a criminal trial that is surrounded by all of the constitutional protections guaranteed any criminal defendant, including those relating to double jeopardy. The majority acknowledges this, as it must. Ante at 520-521, 572 A.2d at 625-626 (citing and quoting Bullington v. Missouri, supra, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270.)
The majority endeavors to escape the conclusion that double jeopardy applies fully to a death-penalty trial by relying on Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), where the Supreme Court expressed the view that the failure of the sentencer to find alleged aggravating factors is not an "acquittal" for double jeopardy purposes because the determination of such factors does not involve the determination of a crime or its essential elements. 476 U.S. at 155-57, 106 S.Ct. at 1755-56, 90 L.Ed.2d at 132-33. Accordingly, the majority here rules that the determination of aggravating factors at the sentencing trial entails only the determination of subsidiary facts and does not rise to the level of a determination of the elements of the crime of capital murder. Ante at 526, 572 A.2d at 629. The majority, however, superimposes the Poland holding on an inapposite statutory scheme, and in *536 effect redefines our law concerning the legal significance of statutory aggravating factors. Its legerdemain involves, first, equivocating over whether aggravating factors constitute the essential elements of capital murder; second, viewing aggravating factors somehow as incidental facts not equatable with the elements of a crime; and, third, characterizing the determination of such incidental facts as something less than a verdict.
Because it now chooses to describe aggravating factors as incidental facts, not essential elements of a crime, the majority believes it has put the sentencing trial into a more accurate perspective for double jeopardy purposes. By down-grading aggravating factors, the Court can then consider the jury's deliberation on these factors as ordinary fact-finding rather than a truly critical and discrete functional part of the trial. So viewed, the jury's actual determination of such factors, therefore, does not constitute a significant decision, i.e., either a "conviction" or an "acquittal," and does not implicate the protections of double jeopardy. For this reason, the Court declines to view "the capital sentencing hearing as a set of mini-trials on the existence of each aggravating circumstances," surmising that were it to characterize the determination of aggravating factors in a death-penalty trial as entailing more than the resolution of incidental facts, that would convert the penalty trial into a series of trials within a trial. Ante at 522, 572 A.2d at 626-627 (quoting Poland v. Arizona, supra, 476 U.S. at 155-56, 106 S.Ct. at 1755-56, 90 L.Ed.2d at 132-33).
The flaw in this presentation, however, flows from the labels that the Court uses. It is misguided and confusing to label the jury's consideration and determination of aggravating factors as entailing "mini-trials," even on the premise that those factors are, indeed, the elements of the crime of capital murder. The jury is required by statutory mandate, not judicial whimsy, to deliberate separately on each aggravating factor and to consider, in accordance with the highest standards of proof, whether each aggravating factors exists. This is functionally no different from the jury's responsibility in any criminal case *537 to determine each element of the crime charged beyond a reasonable doubt. N.J.S.A. 2C:1-13a; see State v. Federico, 103 N.J. 169, 174, 510 A.2d 1147 (1986); State v. Martinez, 97 N.J. 567, 572, 483 A.2d 117 (1984) (quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560, 573, reh. den., 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979)). Yet, in the setting of ordinary criminal prosecutions, we are not impelled to call the jury's consideration and determination of essential elements of the charged crime a "mini-trial." Furthermore, the responsibility for the specific determination of such elements is heightened in a capital-murder prosecution as compared to an ordinary criminal prosecution. In the latter it is generally impermissible to request juries to return special verdicts or answer specific interrogatories with respect to particular fact issues or elements. See, e.g., State v. Simon, 79 N.J. 191, 398 A.2d 861 (1979). The opposite is true of a capital-murder prosecution wherein we insist that such special interrogatories be answered by the jury. See N.J.S.A. 2C:11-3.
Hence, just as double jeopardy would apply to any jury determination that necessarily resolves the existence of an element of a crime, so must it apply when the jury's determination resolves the existence of an aggravating factor. The characterization or label given the jury's deliberations on aggravating factors simply has nothing to do with whether double jeopardy can attach. A jury's determination of the elements of a crime is itself a matter to which we give legal significance. See N.J.S.A. 2C:1-13a. Surely, the specific determination of separate statutory aggravating factors required of a jury in a capital-murder case is an identifiable trial event invested with similar significance.
Having undone the legal concept that aggravating factors are elements of capital murder, the Court then proceeds to ignore the statutory and judicial recognition of "non-unanimity" in capital-murder sentencing. It now rules that a non-unanimous determination cannot be accorded the significance of a non-unanimous verdict. It states:
*538 [W]e are unwilling to imbue a jury's non-unanimous decision with respect to an aggravating factor with the same reliability that attends a verdict of acquittal on a criminal charge.
[Ante at 526, 572 A.2d at 629.]
The majority, as earlier noted, repudiates, without expressly acknowledging, our statutory and decisional law that equates aggravating factors with the essential elements of the crime of capital murder, which must be determined by the jury in a death-penalty trial by the same standards of proof that apply to its determination of criminal liability and its determination of the sentence. Because the jury is required conscientiously to make a determination of aggravating factors in the sentencing trial satisfying the exacting standards of proof, and, indeed, to do so with even greater clarity, specificity, and solemnity than may surround its determination of the elements of criminal guilt, aggravating factors are properly considered the subject of a jury "verdict." The Court's contrary position today is unfathomable because it depreciates the role of non-unanimity in a capital-murder trial. Thus, N.J.S.A. 2C:11-3c(3)(c) explicitly and clearly provides:
If the jury is unable to reach a unanimous verdict, the court shall sentence the defendant pursuant to subsection b [providing for a prison sentence rather than the death penalty].
The Court itself has recognized that a non-unanimous verdict constitutes a jury verdict. We have stated clearly, precisely, and simply:
From this statutory language, it is clear that the Legislature contemplated three possible final verdicts in a capital case: a unanimous verdict that results in imprisonment, a unanimous verdict that results in death, and a non-unanimous verdict that results in imprisonment.
[State v. Ramseur, supra, 106 N.J. at 301, 524 A.2d 188.]
Moreover, we could not have been more emphatic about the legal significance of a non-unanimous determination as constituting a verdict:
In a capital trial, unlike the ordinary criminal prosecution, the jurors need not reach a unanimous verdict; a true jury deadlock results not in a mistrial but is a final verdict.
[Id. at 312, 524 A.2d 188.]
*539 The Court understandably suggests that there is a significant difference between a "verdict" encompassing guilt or innocence or the sentence itself and a "determination" of other issues in the trial. The notion of non-unanimous rejection, as it were, applies only to the former, according to the Court. Undoubtedly, the difference between a verdict and a determination in this context is more than semantical, but it surely cannot follow that a non-unanimous determination a failure to reach a unanimous determination of the existence of an aggravating factor is tantamount to a "non-determination." The statute and our decisional law demand explicitly that an aggravating factor be found only by unanimous jury agreement. In contrast, a mitigating factor can be found even by a non-unanimous determination and be used in the critical and delicate weighing process. See State v. Bey (II), 112 N.J. 123, 161, 548 A.2d 887 (1988). Clearly it is within the completion of our legislative scheme that once a jury has been asked to consider and determine unanimously whether an aggravating factor exists, its failure to do so must equate legally with the rejection of that factor. This conclusion is entirely consistent with that prescribed for the return of a sentencing verdict, and must be accorded the same treatment.
The Court justifies its ruling that a non-unanimous determination of aggravating factors is not a legal final determination with respect to those factors by impugning the integrity of jurors, stating that jurors who have reached "non-unanimous decisions" are "unreliable."
Under our capital-sentencing scheme, a unanimous finding of the existence of any one of the statutory aggravating factors charged by the State could result in a death sentence, provided that the jury determines that such aggravating factor outweighs the mitigating factors beyond a reasonable doubt. Unlike guilt-phase deliberations, a jury charged with deciding the existence of several aggravating factors might not exhaust its deliberative capacity in an effort to achieve unanimity on all such factors if it has already found that one aggravating factor, on which it does unanimously agree, outweighs the mitigating factors beyond a reasonable doubt.
[Ante at 525-526, 572 A.2d at 628.]
*540 The Court must be describing a phantom jury summoned to serve a special role in its opinion. There is, however, not the slightest suggestion that the real jury in this case at the first trial acted like the flagging, impatient, and inattentive jury in the Court's scenario. The jury in this case was required by express instructions to consider and determine each and every aggravating factor before it proceeded to consider mitigating factors, which it must have then done because it was also instructed to do so before it could weigh aggravating factors against mitigating factors. If the jury had followed the Court's script here, we would have to conclude that the jury willfully failed to follow instructions. If that becomes an operating premise with respect to the way we believe jurors discharge their responsibilities, it will undermine the foundation on which this Court has upheld the constitutionality of the death-penalty statute. That foundation is based on the belief in the integrity of jurors, who must, under clear standards to guide their discretion, act as the conscience of the community in deciding whether the defendant lives or dies. State v. Bey (II), supra, 112 N.J. at 163, 548 A.2d 887.
The Court's jaundiced view of jurors contradicts both its holding and its reasoning in State v. Ramseur, supra, that jurors will be conscientious and responsive to their oaths even when they reach a non-unanimous determination.
We do not believe that the premise underlying this reasoning that jurors will, if given the chance, take the easy way out and fail even to try to reach agreement is sound. The process of death qualification, the jurors' oath, and the trial court's instructions are all designed to assure that the jury will make a conscientious attempt to follow the law in reaching its verdict. The entire system of capital punishment depends on the belief that a jury representing the conscience of the community will responsibly exercise its guided discretion in deciding who shall live and who shall die. To hide from the jury the full range of its sentencing options, thus permitting its decision to be based on uninformed and possibly inaccurate speculation, is to mock the goals of rationality and consistency required by modern death penalty jurisprudence. A capital jury does not "avoid its responsibility" by disagreeing genuine disagreement is a statutorily permissible conclusion of its deliberations.
[106 N.J. at 310-11, 548 A.2d 887 (citations omitted).]
*541 The Court's obliteration of the legal significance of a non-unanimous jury decision engenders greater confusion when we remind ourselves of the Court's statement of its holding: "a non-unanimous jury finding with respect to the existence of a statutory aggravating factor does not constitute an `acquittal' of that factor, barring its presentation at resentencing on double-jeopardy grounds." Ante at 524, 572 A.2d at 628. Unexplained is whether the infirmity of such a jury determination for double jeopardy purposes is the fact that it is non-unanimous or the fact that it involves an aggravating factor. If the former, then unextracted from the Court's holding is the inference that a unanimous rejection by a jury of an aggravating factor would constitute "an `acquittal'" and trigger double jeopardy, barring the re-presentation of the same aggravating factor in a new death-penalty trial. The Court should say so. If the latter, then the Court must acknowledge that aggravating factors are not the essential elements of the crime of capital-murder, repudiating the construction of our own capital-murder statute and its state constitutional implications. It should say so.
I adhere to the view under our case law that we are here confronted with what is legally the rejection by a jury of an essential element of a crime. It is illogical to inform a jury that a non-unanimous outcome is legally permissible and acceptable, and will engender specific results, and then fail to attribute any significance or finality thereto. Indeed, we have ruled explicitly in the context of capital murder that even the lost opportunity to have the jury consider and return a non-unanimous verdict concerning the death penalty will trigger double jeopardy and bar a retrial seeking the death penalty.
We hold that where a trial court in a capital case has erroneously given coercive supplemental instructions in violation of [State v. Czachor, 82 N.J. 392, 413 A.2d 593 (1980)] to a jury that has expressed its inability to agree, the law must afford defendant the benefit of the final non-unanimous verdict that might have been returned absent the coercion. Having erroneously been deprived of a substantial opportunity to receive a jury verdict resulting in imprisonment *542 rather than death, the defendant may not be subject to another capital sentencing proceeding.
[Ramseur, supra, 106 N.J. at 313, 524 A.2d 188.]
The majority deprecates the effect of its holding by asserting that to disregard completely the non-unanimous verdict is not fundamentally unfair to the defendant who has been told by the Legislature and by this Court that a non-unanimous verdict is a verdict. Here, the jury has been specifically instructed that a failure to agree unanimously on the existence of an aggravating factor means that that factor cannot be considered in any way in the deliberations that can eventuate in death sentence. Yet, the Court says that the resubmission of aggravating factors at resentencing that were rejected by a non-unanimous determination "poses no fundamental unfairness to defendants." Ante at 532, 572 A.2d at 631-632. That cannot be squared with what we have already concluded to be the effect of a non-unanimous verdict in determining whether the defendant should be put to death: "In these circumstances, we would regard it as intolerably unfair to require the defendant to undergo a second capital resentencing proceeding." Ramseur, supra, 106 N.J. at 314, 524 A.2d 188. Moreover, the Court consoles itself with the thought that negating the effect of a non-unanimous determination of an aggravating factor will also be "helpful" to the next jury. Ante at 531-532, 572 A.2d at 631-632. That, however, cannot be determinative: Presenting issues foreclosed by a prior prosecution cannot forestall the bar of double jeopardy, no matter how enlightening they may be in a subsequent trial. We have repeatedly stressed that
underlying all the protections provided by the [double jeopardy] clause is the principle
that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.
[State v. DeLuca, supra, 108 N.J. at 102, 527 A.2d 1355, quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199, 204 (1957).]
*543 The Court, here, again acknowledges that double jeopardy protections "primarily seek to prevent the State from using its vast resources to harass and oppress defendants through multiple prosecutions or punishments for the same offense." Ante at 530, 572 A.2d at 631 (citing State v. Currie, 41 N.J. 531, 539, 197 A.2d 678 (1964)). It strikes me that what the Court is doing today is both "intolerably unfair" and a use of State resources "to harass and oppress" a defendant.
The Court's rationalization of fairness and enlightenment in support of its holding sounds particularly hollow. Notwithstanding a crocodilian explanation to the contrary, the Court sanctions a prosecution that flouts the protections of double jeopardy and is patently unprincipled. Its holding is flatly at war with our clear holdings construing and applying the capital-murder statute. The Court redefines the legislative scheme and converts our prior decisions into curious essays on capital-murder jurisprudence. Because the Court does not confront our prior holdings and overrule them, it disquietingly appears to abandon the fundamental principle that a capital-murder system is tolerable only if the execution of defendants is based firmly on the nondelegable decision of responsible jurors clearly guided by exacting standards. As disturbing, the Court's opinion betrays a loss of patience with the current administration of capital-murder justice a patience that is essential if we insist, as we must, that the State may not execute a defendant without first providing the fullest measure of protection.
Justice CLIFFORD joins in so much of this opinion as departs from the Court's "new ruling" that non-unanimous jury decisions are "unreliable."
O'HERN, J., dissenting.
No one wants to see cases like this drag through the system for years. The families of the victims relive their suffering as long as the case goes on. In my view, the trial court wisely *544 declined to create a problem of constitutional dimension in this case. We would be well advised to let its decision stand.
Defendant has been convicted of a cruel and vicious murder. The question on his appeal is whether he may be subjected to a second trial on elements of capital murder that a former jury resolved in his favor. The majority says that he may be twice tried for these elements of capital murder because in the prior proceeding "a jury charged with deciding the existence of several aggravating factors might not necessarily exhaust its deliberative capacity in an effort to achieve unanimity on all such factors if it should determine that one aggravating factor, on which it does unanimously agree, outweighs the mitigating factors beyond a reasonable doubt." Ante at 525-526, 572 A.2d at 628.
To begin with, this is an incorrect understanding of how we expect juries to proceed in capital cases. We explained in State v. Bey (II), 112 N.J. 123, 548 A.2d 887 (1988) that:
In the sentencing phase, the jury is obliged to determine, first, the existence of any aggravating factor or factors. The jury must find that at least one aggravating factor exists before the death penalty may be imposed. If the jury "finds that no aggravating factors exist * * * the court shall sentence the defendant pursuant to subsection b," which requires a term of imprisonment. If, however, the jury finds an aggravating factor exists, then it must determine whether any mitigating factors also exist. After making fact findings about the "existence or non-existence" of aggravating and mitigating factors, the jury must then make the normative judgment whether the aggravating outweigh the mitigating factors beyond a reasonable doubt. That decision, in effect, determines the appropriateness of the death penalty for the defendant. [Id. at 158, 548 A.2d 887.]
Besides, this principle of abstract reasoning may have relevance to certain social sciences or other fields of public policy in which finality is not an end in itself. A jury verdict, however, is not just another decision that may be reviewed and revised if its premises are questioned.
We have always accorded the most solemn significance to a jury verdict. No judge may command that a verdict be entered. No judge may allow partial verdicts with reconstituted juries. No jury may be questioned about the reasons for its verdict.
*545 It is not that we value the truth-seeking process the less, but that we value the jury the more. Hence, we would never apply the majority's principles to any other setting. An example will suffice. If a jury convicted a defendant of non-capital murder but acquitted him of an underlying related felony, such as a rape or robbery, we could never retry him for the underlying rape or robbery on the theory that the jury had not "exhaust[ed] its deliberative capacity." Ante at 525, 572 A.2d at 628. Is it not ironic, then, that we can say that "[i]mposition of the penalty of death is `profoundly different from all other penalties,' * * * and, as such, requires more, not fewer, procedural safeguards * * *," State v. Biegenwald, 96 N.J. 630, 639, 477 A.2d 318 (1984) (quoting in part Lockett v. Ohio, 438 U.S. 586, 605, 98 S.Ct. 2954, 2965, 57 L.Ed.2d 973, 990 (1978)), and yet not apply those safeguards here?
The answer may be made that a capital sentencing verdict is different because it is not a unanimous acquittal in the same sense that a guilt acquittal is. But a non-unanimous verdict in a capital case is a verdict in every sense of the word. Our decisions in State v. Bey (II), supra, 112 N.J. 123, 548 A.2d 887, and State v. Hunt, 115 N.J. 330, 558 A.2d 1259 (1989), have made that clear.
In many cases, an aggravating factor of murder is self-proving, e.g., in the felony-murder situation, N.J.S.A. 2C:11-3c(4)(g), or the killing of a police officer, 2C:11-3c(4)(h), as in State v. Rose, 112 N.J. 454, 548 A.2d 1058 (1988). A conscientious jury will almost invariably find such an aggravating factor unanimously to exist. The jury trial on any remaining aggravating factors may be critical in deciding whether the defendant will live or die. A non-unanimous jury verdict on any other aggravating factor would be a verdict in favor of such a defendant. His or her life would have been put at risk once for violation of that factor.
Can a defendant be twice put in jeopardy on the same elements? The goal of all death-penalty jurisprudence is to *546 assure "`reliability in the determination that death is the appropriate punishment.'" Gardner v. Florida, 430 U.S. 349, 364, 97 S.Ct. 1197, 1208, 51 L.Ed.2d 393, 405 (1977) (White, J., concurring) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976)). It is hard to assert with persuasion that we are advancing "reliability in the determination that death is the appropriate punishment" when one defendant may receive the benefit of a non-unanimous verdict and live, but another may not, depending on the presence, vel non, of another aggravating factor in the case.
The majority has made an ad hoc determination that this defendant should not receive the benefit of a favorable verdict on some, but not all, of the elements of capital murder. The Court understandably wishes this defendant to face the full measure of punishment for this murder. We have an intuitive sense that the nearly unanimous eleven-to-one vote finding the presence of the N.J.S.A. 2C:11-3c(4)(c) "outrageously or wantonly vile" factor should allow retrial of that factor. But our Court must use more than intuition; it must use principles of consistent application. What if, in another case, other aggravating factors used to premise a death sentence were found legally wanting, see, e.g., State v. Biegenwald, 106 N.J. 13, 51, 524 A.2d 130 (1987) (foreclosing c(4)(c) factor based on aggravated battery/torture), and the defendant had won an eleven-to-one vote in his favor on the absence of any other factors? Would we say that a defendant whose appeal set aside the factors relied on by the jury could be retried on the factors found in his favor? I should think not.
Under our statute, the aggravating factors are essential elements of the crime of capital murder. State v. Biegenwald, supra, 106 N.J. at 59-60, 524 A.2d 130. Without aggravating factors, a homicide is not capital murder. Under double-jeopardy principles, acquittal of an essential element of a form of homicide, e.g., knowledge or purpose, forbids retrial of that element of the homicide. See State v. Grunow, 102 N.J. 133, 149, 506 A.2d 708 (1986). When a "slate [is] wiped clean" on *547 appeal, ante at 520, 572 A.2d at 625, the defendant in a non-capital case never loses the benefit of a favorable jury verdict. Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957). How then can the majority avoid application of those principles to this proceeding? Constitutional guarantees apply to the sentencing phase of death-penalty proceedings in states in which death-penalty statutes require "all of the hallmarks of a full-blown criminal trial." Note, "Fairness to the End: The Right to Confront Adverse Witnesses in Capital Sentencing Proceedings," 89 Colum.L.Rev. 1345, 1365 (1989) (citing Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (double-jeopardy guarantees extend to trial-type capital sentencing proceeding)).
Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986), does not deal with a sentencing proceeding like New Jersey's. Under Arizona law, capital sentencing is reposed in the judge. In Poland, the court had returned an advisory finding on the aggravating factor based on an interpretation of Arizona law. Factually, it found the factor to exist. As a matter of law, the court questioned whether killing to steal was an aggravating factor under the Arizona statute. The case involved a bank robbery. The question was whether the homicide was "killing for pecuniary gain" as opposed to the classic example of the hired gun. Poland v. Arizona is not, then, a clear case of a jury's factual rejection of an aggravating factor. But, more important, Arizona's capital sentencing scheme is not like New Jersey's. Our Legislature, in order to channel the discretion of sentencing juries, has established statutory aggravating factors that a jury must unanimously find to exist beyond a reasonable doubt. State v. Bey (II), supra, 112 N.J. at 159, 548 A.2d 887; N.J.S.A. 2C:11-3c(2)(a).[1] A 1985 amendment to the Act, N.J.S.A. 2C:11-3f, now requires:
*548 Prior to the jury's sentencing deliberations, the trial court shall inform the jury of the sentences which may be imposed pursuant to subsection b. of this section on the defendant if the defendant is not sentenced to death. The jury shall also be informed that a failure to reach a unanimous verdict shall result in sentencing by the court pursuant to subsection b.
"In a capital case, unlike the ordinary criminal prosecution, jurors need not reach a unanimous verdict. Thus, a decision not to agree is a legally acceptable outcome, which results not in a mistrial, but in a final verdict." State v. Hunt, supra, 115 N.J. at 382-83, 558 A.2d 1259 (citing State v. Ramseur, 106 N.J. 123, 308, 524 A.2d 188 (1987)).
Sooner or later, this federal double-jeopardy question will have to be resolved. If we judge wrongly on this issue, it may well result in another capital retrial, prolonging yet again the final disposition of this matter. There are remaining statutory aggravating factors in this case, including two prior murder convictions (the Florida murder and another New Jersey murder, see State v. Koedatich, 112 N.J. 225, 238 n. 1, 548 A.2d 939 (1988), cert. denied, ___ U.S. ___, 109 S.Ct. 813, 102 L.Ed.2d 803 (1989)), and the underlying felonies. Those factors will enable the jury to make a reliable sentencing determination.
Justices CLIFFORD and HANDLER join in this opinion.
For reversal Chief Justice WILENTZ and Justices POLLOCK, GARIBALDI and STEIN 4.
Dissenting Justices CLIFFORD, HANDLER and O'HERN 3.
NOTES
[1] In addition to the conviction for capital murder, N.J.S.A. 2C:11-3(a)(1) and (2), Koedatich was convicted of felony murder, N.J.S.A. 2C:11-3a(3); kidnapping, N.J.S.A. 2C:13-1; aggravated sexual assault, N.J.S.A. 2C:14-2a; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; and possession of a weapon, N.J.S.A. 2C:39-5d.
[2] Several months after being convicted of the Hoffman murder, defendant was convicted of the murder of Diedre O'Brien and sentenced to life imprisonment. In the O'Brien case, the jury did not unanimously find that defendant had previously been convicted of murder in Florida in 1971. Based on that finding, defendant also contended that the State was collaterally estopped from introducing the Florida conviction as an aggravating factor at resentencing. The trial court ruled that collateral estoppel was not a bar, a ruling not challenged on this appeal.
[3] Justice Marshall filed a dissenting opinion in which Justices Brennan and Blackmun joined. The dissenters contended that the defendants in Poland could not be subjected to a second penalty proceeding because their death sentences in the first proceeding were based on an aggravating factor improperly relied on by the trial judge. Id. at 158-59, 106 S.Ct. at 1756-57, 90 L.Ed. at 134-35. Thus, the dissenters never addressed whether aggravating factors properly submitted to but rejected by the fact-finder at one penalty proceeding could be resubmitted at a second penalty hearing.
[1] State v. Biegenwald, supra, 106 N.J. at 53, 524 A.2d 130, established this principle in reliance on a later amendment to the Act, which we believed should apply to cases on appeal.
| {
"pile_set_name": "FreeLaw"
} |
287 F.3d 192
REPUBLIC OF VENEZUELA, Appellee,v.PHILIP MORRIS INCORPORATED, et al., Appellants.
No. 00-7213.
No. 00-7214.
No. 00-7215.
No. 00-7216.
No. 00-7257.
No. 00-7258.
United States Court of Appeals, District of Columbia Circuit.
Argued October 16, 2001.
Decided April 26, 2002.
COPYRIGHT MATERIAL OMITTED Appeals from the United States District Court for the District of Columbia (No. 99ms00213).
Herbert M. Wachtell argued the cause for appellants Philip Morris Companies, Inc., et al. With him on the briefs were Timothy M. Broas, Robert F. McDermott, Jr., Paul S. Ryerson, Daniel F. Kolb, Kenneth N. Bass, Gene E. Voigts, Richard L. Gray, Patrick S. Davies and Steven Klugman. David Gruenstein and Leigh A. Hyer entered appearances.
Robin S. Conrad, Kenneth S. Geller and John J. Sullivan were on the brief of amicus curiae Chamber of Commerce of the United States of America in support of appellants.
Joel S. Perwin argued the cause for appellees. With him on the brief were Jonathan S. Massey, George M. Fleming, Sylvia Davidow and Andres C. Pereira.
Before: GINSBURG, Chief Judge, HENDERSON, Circuit Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge GINSBURG.
Separate concurring opinion filed by Senior Circuit Judge STEPHEN F. WILLIAMS.
GINSBURG, Chief Judge:
1
The district court issued orders remanding to a Florida state court four lawsuits filed by foreign states against tobacco companies based in the United States. The companies ask that we reverse the orders of the district court and that we issue a writ of mandamus to prevent the court from ordering the remand of similar lawsuits still pending before it. We hold that we are without appellate jurisdiction to review the orders the district court already has issued and that we have no warrant to prohibit the district court from remanding to state court those cases upon which it has not yet acted.
I. Background
2
Various foreign countries or subdivisions thereof sued 15 United States tobacco companies in a Florida court to recover damages under the laws of Florida. Specifically, the Republics of Venezuela and of Ecuador, the Brazilian States of Mato Grosso Do Sol, Goias, and Espirito Santo, and the Russian Federation filed nearly identical complaints in the Circuit Court for Florida's Eleventh Judicial District in Miami-Dade County. They advanced at least ten distinct theories of liability, such as fraud, negligence, and unjust enrichment, and sought compensation from the companies for the costs of treating persons suffering from diseases associated with tobacco use. Twenty-nine other foreign states or subdivisions have filed similar actions — not now before us — in state and federal courts around the United States. The tobacco companies removed the present cases from the Florida state court to the United States District Court for the Southern District of Florida. The Judicial Panel on Multidistrict Litigation then consolidated the cases brought by Venezuela and three other foreign states and transferred them to the United States District Court for the District of Columbia.
3
Some months later the district court dismissed for failure to state a claim a substantially similar suit against the tobacco companies brought in that court by the Republic of Guatemala. See In re Tobacco (Guatemala), 83 F.Supp.2d 125, 126 (1999), aff'd, Service Employees Int'l Union Health & Welfare Fund v. Philip Morris Inc., 249 F.3d 1068 (2001). The court ruled that Guatemala's claims were not viable because Guatemala could not establish that its alleged injuries, that is, its expenditures for the care and treatment of its citizens, were proximately caused by any misconduct on the part of the tobacco companies. For the same reason the district court has since dismissed several cases that had originated in other federal courts and been transferred by the JPML to this district. The cases under review are unlike those the district court dismissed only in that they were filed originally in state courts and therefore reached the district court after the tobacco companies removed them to a federal court pursuant to 28 U.S.C. § 1441; they are substantively identical in all other respects.
4
The district court ordered that Venezuela's suit be remanded to the Circuit Court for Florida's Eleventh Judicial District on the ground that there is no federal jurisdiction over the case. The court held that Venezuela's complaint does "not present a federal question on [its] face, and federal question jurisdiction is not proper under the federal common law of foreign relations." In re Tobacco (Venezuela), 100 F.Supp.2d 31, 38 (2000); see also id. at 35 ("The complaints ... contain only state statutory and common law claims"). The court later ordered the cases filed by Ecuador, Espirito Santo, and Goias remanded to the same Florida state court "for the reasons stated" in Venezuela. Since this case was argued on appeal, the Florida court in turn has dismissed the suits of Venezuela and Espirito Santo, citing with approval the district court's opinion in Guatemala. See Venezuela v. Philip Morris Cos., No. 99-01943 (Nov. 20, 2001); Espirito Santo v. Brooke Group Ltd., Inc., No. 00-07472 (Nov. 20, 2001). The suits filed by Ecuador and by Goias remain pending before the Florida court.
5
On October 30, 2000 — after the district court had dismissed Guatemala and ordered Venezuela remanded — the JPML transferred to that court the cases Russia and Mato Grosso had brought in Florida and the tobacco companies had removed to the federal court there. The district court here has not yet acted upon those cases.
6
To summarize, the six cases now on review were originally filed in the Florida Circuit Court, then removed to a federal court in Florida, and finally transferred to the district court here; the district court ordered four cases — Venezuela, Ecuador, Espirito Santo, and Goias — remanded to the Florida Circuit Court for lack of federal subject matter jurisdiction and has pending before it the two — Russia and Mato Grosso — that reached the district court after it had ordered the other cases remanded. For the sake of simplicity, we will refer to the four remanded cases as the Latin America Cases.
II. Analysis
7
The tobacco companies appeal the remand orders in the Latin America Cases. They also ask the court to issue a writ of mandamus prohibiting the district court from ordering the remand of Russia and Mato Grosso to the state court where those cases originated. Apparently, the companies would rather have the district court dismiss all the cases on the merits, as it dismissed Guatemala, than remit the cases to any less certain fate in the courts of Florida.
A. Appeal of the Latin America Cases
8
This court is without jurisdiction to consider the appeal of the Latin America Cases. The orders of the district court return those cases to the state court from which they were removed on the ground that the court did not have federal subject matter jurisdiction over them. When it appears that a district court lacks subject matter jurisdiction over a case that has been removed from a state court, the district court must remand the case, 28 U.S.C. § 1447(c), and the court's order remanding the case to the state court whence it came "is not reviewable on appeal or otherwise," id. § 1447(d). See also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 711-12, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996) ("remands based on grounds specified in § 1447(c) are immune from review under § 1447(d)").
9
The tobacco companies claim that, notwithstanding the unambiguous bar of the statute, some courts have said the prohibition of § 1447(d) "is not as broad as it seems." Poore v. American-Amicable Life, 218 F.3d 1287, 1291 (11th Cir.2000). In each case they cite, however, the court was describing not the prohibition in § 1447(d) but the exception thereto allowing review of a remand order that is not predicated upon either a lack of subject matter jurisdiction or a defect in the removal process. See Poore, 218 F.3d at 1289; Liberty Mut. v. Ward Trucking, 48 F.3d 742, 745-46 (3d Cir.1995). Because the district court remanded the Latin America Cases for want of federal subject matter jurisdiction, the exception does not apply here, and the cases cited by the companies are not on point.
10
The tobacco companies argue also that their appeals raise the "substantial question whether Congress intended by § 1447(d) to make a district court the final arbiter of ... an important issue of constitutional dimension," namely, "whether, under our constitutional scheme, claims by foreign governments of this nature fall within the adjudicatory authority of the federal courts based upon federal common law." We are tempted to say, as Wolfgang Pauli once said of a colleague's idea, the contention is "not even wrong." JAMES GLEICK, GENIUS: THE LIFE AND SCIENCE OF RICHARD FEYNMAN 115 (1992). For starters, the appeal does not raise an issue of "constitutional dimension." The district court decided a pleading point: whether a complaint alleging various torts under the law of Florida "raises issues of federal law." Chicago v. International Coll. of Surgeons, 522 U.S. 156, 163, 118 S.Ct. 523, 139 L.Ed.2d 525 (1997). There is no provision in the Constitution, and the companies do not cite to any, that suggests this mundane inquiry takes on a "constitutional dimension" when the plaintiff is a foreign sovereign.
11
Furthermore, the companies err in suggesting there is an exception to the prohibition of appellate review in § 1447(d) when the remand order does raise a constitutional question. As long as the district court orders a case remanded for want of subject matter jurisdiction, the Congress has insulated the decision to remand from review "whether or not that order might be deemed erroneous by an appellate court." Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). The decision of the Third Circuit In re TMI Litig. Cases Cons.II, 940 F.2d 832 (1991), which the companies offer for the proposition that "in extraordinary circumstances [§ 1447(d) does not prohibit] appellate consideration of certain categories of remand orders," is not to the contrary. TMI holds that "1447(d) was not intended to preclude appellate consideration of a section 1292(b) certified question concerning the constitutionality of an Act of Congress" — in that case the very statute upon the basis of which the plaintiff had invoked federal jurisdiction. Id. at 836. The decision recognizes that § 1447(d) precludes appellate review of an order remanding a case to a state court when, as here, the order is "based upon a finding that removal was not authorized by Congress." Id. at 845; accord Rio de Janeiro v. Philip Morris Inc., 239 F.3d 714, 716 n. 6 (5th Cir.2001).
12
The plaintiffs argue that the court may not hear the appeals for the additional reason that the records of the cases have been transferred back to the state court. See Starnes v. McGuire, 512 F.2d 918, 935 (1974) (en banc), a habeas corpus case in which we said that "once a record is transferred to a permissible forum in another district, this court loses jurisdiction over the matter." The companies respond that Starnes governs only those cases that have been transferred to another federal court, see Kimbro v. Velten, 30 F.3d 1501, 1504 n. 2 (D.C.Cir.1994), and that we should not extend its holding to cases that have been remanded to state court. Having already held that § 1447(d) precludes review, however, we need not resolve this side dispute in order to decide the present cases.
B. Mandamus in Russia and Mato Grosso
13
The tobacco companies also petition this court for a writ of mandamus prohibiting the district court from issuing any orders remanding Russia and Mato Grosso to the Florida Circuit Court where they were filed. The companies contend the lawsuits arise under federal common law because they implicate the vital interests — economic and sovereign — of a foreign nation and, hence, the foreign relations of the United States. (We will assume without deciding that the companies are correct about the significance of these cases to American foreign policy.) The foreign states respond that "federal jurisdiction exists only when a federal question is presented on the face of the plaintiff's properly pleaded complaint," and that a federal court may not assert jurisdiction over a case that raises no question of federal law simply because the plaintiff is a foreign sovereign. We need not resolve this dispute unless we determine first that a writ of mandamus is at least potentially available in the circumstances of this case.
14
As a threshold matter, we agree with the tobacco companies that § 1447(d) is not a jurisdictional bar to the relief they request. The statute "prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ," Thermtron Prods., 423 U.S. at 343, 96 S.Ct. at 589, but the district court has not issued an order of remand in Russia or Mato Grosso. By its terms, therefore, § 1447(d) does not prevent the court from entertaining the present petitions. But see Black & Decker v. Brown, 817 F.2d 13, 14 (3d Cir.1987). We will not infer a jurisdictional limitation upon "our normal and traditional function when no statute requires that we do so." Id. at 15 (Garth, J., dissenting).
15
As we often have noted, "the writ of mandamus is an extraordinary remedy, to be reserved for extraordinary situations." National Ass'n of Crim. Def. Lawyers, Inc. v. United States DOJ, 182 F.3d 981, 986 (1999) (NACDL). We are particularly disinclined to issue the writ before the district court has acted, as the petitioners here request. See In re Bituminous Coal Operators' Ass'n, Inc., 949 F.2d 1165, 1167 (D.C.Cir.1991) ("indiscriminate use of the remedy [would] avoid the stricture of the final judgment rule"). In resolving such a preemptive petition, we consider instructive the following factors:
16
(1) whether the party seeking the writ has any other adequate means, such as a direct appeal, to attain the desired relief;
17
(2) whether that party will be harmed in a way not correctable on appeal;
18
(3) whether the district court clearly erred or abused its discretion;
19
(4) whether the district court committed an oft-repeated error; and
20
(5) whether the decision of the district court raises important and novel problems or issues of law.
21
See NACDL, 182 F.3d at 986-87. As the tobacco companies correctly observe, a petitioner need not be favored by all five factors in order to demonstrate its entitlement to the writ of mandamus; indeed, "it is difficult to envision a case that involves both an oft-repeated error as well as an issue of law of first impression." Valley Broad. Co. v. United States Dist. Ct. for the Dist. of Nev., 798 F.2d 1289, 1292 n. 3 (9th Cir.1986). Our cases also make clear, however, that two of the factors are actually prerequisites, for no writ of mandamus — whether denominated "advisory," "supervisory," or otherwise — will issue unless the petitioner shows (1, above) that it has no other adequate means of redress, see NACDL, 182 F.3d at 987, and (3, above) that the writ is necessary to emend a clear error or abuse of discretion. See Byrd v. Reno, 180 F.3d 298, 303 (D.C.Cir. 1999).
22
We doubt the tobacco companies satisfy the first condition. It is true, as the companies assert, that they could not seek review of an order remanding Russia or Mato Grosso to the state court in Florida, but that is not because some practical exigency prevents the companies from availing themselves of their remedy at law. Compare, e.g., In re Sealed Case, 141 F.3d 337, 340 (D.C.Cir.1998) (issuing writ to prevent transfer of motion to quash third-party subpoena). On the contrary, the companies have no legal right to appellate review. Rather, the court of appeals is prohibited by statute from reviewing remand orders — by appeal or otherwise — of the sort the district court might issue in Russia and Mato Grosso. Although, as we have said, § 1447(d) does not deprive this court of jurisdiction to issue a writ of mandamus, the determination of the Congress that we should not review a remand order certainly militates against our opining in advance upon the propriety of a remand order the district court might otherwise issue. See Ex parte Pennsylvania, 137 U.S. 451, 454, 11 S.Ct. 141, 34 L.Ed. 738 (1890) ("it is unquestionably a general rule that the abrogation of one remedy does not affect another. But in this case, we think, it was the intention of [C]ongress to make the judgment of the circuit court remanding a cause to the state court final and conclusive").
23
In any event, the tobacco companies do not come close to demonstrating that it would be a clear error or an abuse of discretion for the district court to order the cases remanded. The companies identify no precedent of this court or of the Supreme Court even suggesting there is federal subject matter jurisdiction over a case merely because the plaintiff is a foreign government with a sovereign or an economic interest in the outcome of the lawsuit. The other circuits to have considered the companies' theory — in cases where the foreign sovereigns were not the plaintiffs but had a material interest in the outcomes — are divided over the issue of federal jurisdiction. Compare Pacheco de Perez v. AT&T Co., 139 F.3d 1368, 1377 (11th Cir.1998) ("Where a state law action has as a substantial element an issue involving foreign relations or foreign policy matters, federal jurisdiction is present"), and Torres v. Southern Peru Copper Corp., 113 F.3d 540, 542-43 (5th Cir.1997) (same), with Patrickson v. Dole Food Co., 251 F.3d 795, 803 (9th Cir.2001) (rejecting reasoning of Pacheco and Torres and citing with approval decision of district court to remand in Venezuela). Considering that the Ninth Circuit has adopted as its own the district court's reason for remanding in the Latin America Cases, we cannot agree with the companies that the district court is now poised to commit a clear error that would justify our issuing a writ of mandamus.* See Byrd v. Reno, 180 F.3d 298, 303 (D.C.Cir.1999) (denying petition for writ of mandamus "because it [was] far from clear that the district court erred"); In re Thornburgh, 869 F.2d 1503, 1507 (D.C.Cir.1989) ("the petitioner must demonstrate that [its] right to relief is `clear and indisputable'") (quoting Kerr v. United States Dist. Ct. for the N. Dist. of Ca., 426 U.S. 394, 403, 96 S.Ct. 2119, 48 L.Ed.2d 725 (1976)).
24
In sum, the companies have failed to make out one if not both prerequisites for a writ of mandamus. Therefore, we deny the companies' petitions without considering the other factors mentioned in NACDL.
25
Finally, we decline, as we must, the companies' invitation to issue an advisory opinion to the effect that the district court should not remand Russia or Mato Grosso. See Br. of Appellants at 31 ("[I]t may be entirely possible for this Court to grant petitioners effective relief in this proceeding while stopping short of actually issuing a writ of mandamus at this time"). Article III does not authorize a federal court "to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it." California v. San Pablo & T.R. Co., 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747 (1893).
III. Conclusion
26
For the foregoing reasons, the appeals in the Latin America Cases are dismissed for want of appellate jurisdiction, and the petitions for a writ of mandamus in Russia and Mato Grosso are denied.
27
So ordered.
Notes:
*
The companies argue in a footnote that "even if the entire claims [sic] of these foreign governments are not deemed to be governed by federal common law ... the question of the availability of the parens patriae doctrine in these suits is in and of itself clearly a substantial question governed by federal law sufficient to confer federal-question jurisdiction." We respond in kind. Cf. Hutchins v. District of Columbia, 188 F.3d 531, 539 n. 3 (D.C.Cir. 1999) ("We need not consider cursory arguments made only in a footnote").
"[T]he doctrine of parens patriae is merely a species of prudential standing," Service Employees, 249 F.3d at 1073; it is not a substantive element of the plaintiffs' state common law claims. Whether a litigant has standing to sue may present a threshold issue for a federal court, but our doctrines of prudential standing are of no moment in a state court, the jurisdiction of which is not similarly limited to what is granted by an act of the legislature. The companies may not bootstrap their way into a federal court with a claim that the plaintiffs' standing would be an issue had the plaintiffs originally filed their lawsuits in a federal court, and the district court therefore did not err in rejecting this argument.
28
STEPHEN F. WILLIAMS, Senior Circuit Judge, concurring:
29
Although I agree that the defendants' arguments do not prevail, they seem to me a good deal subtler than the majority opinion lets on.
30
First, the argument for federal jurisdiction is not for all claims in which a plaintiff foreign government has "a sovereign or an economic interest in the outcome," Maj. Op. at 199, but for a considerably narrower set, ones "where the actions of a foreign government are a direct focus of the litigation." Defendants' Br. at 36, quoting Pacheco de Perez v. AT&T, 139 F.3d 1368, 1377 (11th Cir.1998). This is manifested here, defendants argue, by the plaintiff governments' claim that "their very policymaking — their core governmental decisionmaking as such — was subverted by an American industry over a period of some 40 years." Appellants' Br. at 34. From this the defendants reason that adjudication of the claims will necessarily take the court deep into the evaluation of plaintiff states' governmental decisionmaking, thereby implicating United States foreign relations and rendering the dispute "inappropriate for state law to control." Texas Indus. v. Radcliff Materials, Inc., 451 U.S. 630, 641, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981).
31
But it is not clear that these allegedly federal issues satisfy the well-pleaded complaint rule — i.e., the proposition that federal court jurisdiction under § 1331 exists only if the federal issue appears on the face of a properly pleaded complaint. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987); see also Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908). Federal issues raised by way of defense do not qualify, see Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 14, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936), yet that appears to be the character of the issues sketched out by defendants. The plaintiffs presumably will portray themselves as completely innocent gulls of the tobacco companies, akin for example to garden-variety medical insurers, and the companies will then respond with evidence impugning the supposed innocence.
32
The defendants hint at an argument that the present case might fall under the rubric of "complete preemption," an exception to the well-pleaded complaint doctrine. See Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475-76, 118 S.Ct. 921, 139 L.Ed.2d 912 (1998). But they do not offer us an analytical basis for extending the complete preemption doctrine beyond the two statutes that the Supreme Court has held effected such a preemption: § 502(a) of the Employee Retirement Income Security Act and § 301 of the Labor Management Relations Act. See, e.g., Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 64-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (ERISA); Avco Corp. v. Aero Lodge Number 735, International Ass'n of Machinists and Aerospace Workers, 390 U.S. 557, 560-62, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (LMRA); see also Anderson v. H&R Block, 287 F.3d 1038, 1040-44 (11th Cir.2002) (discussing well-pleaded complaint and complete preemption doctrines).
33
Second, defendants argue a still narrower position: that some of plaintiffs' common law claims, those brought by the foreign governments as parens patriae, even though they are purportedly only under state law, in fact depend on an anterior federal law issue, namely a finding of federal prudential standing. See Defendants' Br. at 38 & n.**. Although normally of course federal standing doctrines are no part of state common law actions, see Maj. Op. at 199 n.*, defendants point to our decision in Service Employees Int'l Union Health & Welfare Fund v. Philip Morris, Inc., 249 F.3d 1068 (D.C.Cir.2001), in which we treated the parens patriae standing issue as an element of the plaintiffs' state common law claims, and, in reliance entirely on federal law concepts, found the absence of such standing fatal to the claims. See id. at 1073; see also id. at 1069 (noting complaints' inclusion of common law claims). But in that case the plaintiffs themselves explicitly invoked parens patriae standing as to all claims, see Appellants' Opening Br. at 37-38 and Reply Br. at 6-7, Service Employees (No. 00-7093), drawing no distinction between the statutory and common law claims. Thus, the court in Service Employees had no occasion to hold that state common law parens patriae claims by a foreign government inherently include a federal element.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GRACE WILSON,
Plaintiff-Appellant,
v.
No. 95-1831
SOUTHERN NATIONAL BANK OF NORTH
CAROLINA,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-93-274-3-P)
Submitted: May 7, 1996
Decided: August 8, 1996
Before WIDENER, MURNAGHAN, and LUTTIG, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Shelley Blum, Charlotte, North Carolina, for Appellant. Philip M.
Van Hoy, VAN HOY, REUTLINGER & TAYLOR, Charlotte, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Grace Wilson appeals the district court's order granting summary
judgment to Appellee Southern National Bank of North Carolina ("the
Bank") in this action alleging employment discrimination based upon
sexual harassment. Because we find no reversible error, we affirm.
Wilson filed a complaint under Title VII of the Civil Rights Act of
1964, 42 U.S.C.A. § 2000e (West 1994), against her former
employer, the Bank. Wilson was employed at the Bank from March
13, 1991, until June 17, 1993. The complaint alleged that a male co-
worker sexually harassed Wilson and that the Bank retaliated against
her when she reported some of the alleged harassing incidents to her
supervisor. The complaint also included a state law claim for inten-
tional infliction of emotional distress.
The Bank moved for summary judgment. Wilson belatedly
opposed that motion and filed her own motion for summary judgment
without supporting depositions. The district court granted summary
judgment to the Bank. Wilson timely appealed.
I.
Wilson and the Bank have very different accounts of what hap-
pened in the workplace. However, because Wilson did not provide
supporting depositions with her motion for summary judgment, the
district court relied on the portions of her deposition submitted by the
Bank and also on the unopposed depositions filed by the Bank. We
briefly detail the alleged events below.
A. The Hand-on-Hip and Rubber Band Incidents
Wilson alleged that in October or November 1991, Eric Wright, a
co-worker in her department, put his hand on Wilson's hip, licked his
lips, and said: "umm . . . I'd like to have some of that." Wilson turned
around and told Wright to keep his hands off of her. Wright then
threw his hands up in a surrendering motion and said, "oh, oh, oh."
2
The alleged incident occurred in the workplace. Later that day, Wil-
son told Wright that she did not want anyone to touch her and asked
him not to do it again. Wright responded, "okay, okay, okay." Wilson
did not report the incident to a supervisor at the time. Wright never
did this to Wilson again. Later in the week, Wright shot Wilson in the
hip with as many as three rubber bands. Wilson returned fire with a
rubber band. Other workers, all female, also shot rubber bands.
About a week after the hand-on-hip incident, Wilson complained
about that incident and the rubber band incident to her department
supervisor, Richard Burch. Within four days of receiving Wilson's
complaint, Burch sent a memo and held a meeting (with Wright pres-
ent) where he told the department employees that they should act in
a professional manner at work.
B. The Hiked Pants, Dirty Cartoons,
and "Older Women" Incidents
Wilson alleged that, after the above meeting with Burch, Wright
would "yank up his pants as high as he could get them so that [the
outline of] his genitals would show and then he would get in front of
your face." Wilson stated in her complaint that this occurred on sev-
eral occasions. In her deposition, however, Wilson stated that the
behavior occurred "25 to 30 times." Wilson would turn away and ask
Wright to stop. Wilson never reported this alleged behavior to any
member of management.
Wilson also alleged that, after the meeting with Burch, some of her
co-workers would show her "dirty cartoons." Wright brought in one
of these cartoons, but a majority of them were brought in by a female
co-worker. The department's employees, both male and female, gen-
erally laughed and joked about the cartoons. When Wright showed
Wilson a cartoon, she turned away. When a female co-worker showed
Wilson a cartoon, she said she did not want to see it. Burch saw a car-
toon and appeared to think it was funny. Wilson never reported the
cartoon incidents to management.
Wilson further alleged that Wright, who is half Wilson's age, told
Wilson twice that he preferred older women. Wilson never reported
this incident to management.
3
C. The Clipboard Incident
Wilson alleged that on June 22, 1992, Wright "finished a session
of holding up his pants, . . ." while singing a song "about hips and
butts and things like that." Then, as Wilson was leaning over an office
machine that had jammed, Wright "whacked" her in the hip with a
clipboard. The whack "felt like bee stings" and Wilson was "stunned,"
"fell into the machine," "saw stars," and "had tears running from [her]
eyes." Other co-workers, mostly female, were present. Wilson alleged
that she could hear people laughing.
Wilson sought medical treatment about a week later, but did not
see a doctor because she did not have a workers' compensation report
and did not want to pay the doctor herself. Wilson eventually saw a
doctor six or seven weeks after the clipboard incident.
When the clipboard incident originally occurred, Wilson did not
report it to management because Burch was out of town. Wilson sub-
sequently reported the incident to Burch. Wilson tried three times to
relate the incident to Burch's supervisor, Sheila Ezell, but was unable
to contact her. At Burch's recommendation, Wilson told Renita Bar-
ton, an Affirmative Action Coordinator in the Bank's Personnel
Department, that "[she] had been hit [and she] had a bruise on [her]
hip." Barton asked if Wilson wanted to file a workers' compensation
claim, but Wilson declined at that time. Burch called Wright into his
office and told him that "in no circumstances should [he] ever touch
another employee, and that there certainly shouldn't be any hitting of
another employee." Burch warned Wright that actions of that sort
could lead to Wright losing his job.
After the alleged clipboard incident, Wilson felt that a female co-
worker and Wright were teasing her because she complained to man-
agement. In response to Wilson's concerns, Burch transferred Wilson
to another department where she worked in a separate room with only
one other person. Wilson also received a raise as a result of the trans-
fer. Wilson was "overjoyed" and "really appreciated" the transfer.
After the transfer, Tish Jones, a female co-worker,"would come to
the door, shut the door behind her and ask [Wilson] what [she] was
doing" and why she would not talk to Wright or Jones. Jones would
also "get closer and closer to" Wilson until Wilson "would get up,
4
open the door and leave." Wright would do the same thing sometimes
and lean over Wilson. Burch told Jones and Wright to leave Wilson
alone. Wright then only entered Wilson's office once more for a busi-
ness purpose. When Jones continued to bother Wilson, Burch
instructed her to leave Wilson alone.
At some point Burch told Wilson that she was too slow and needed
to pick up the pace of her work. Wilson admits that she was not keep-
ing up with her work. Wilson resigned from her position by giving
two weeks notice. The first week of her notice she spent on vacation.
When she returned for her second and final week, Wilson took a sick
day, but ran into another employee of the Defendant when she was
out shopping. Wilson was fired, but was paid for the second week.
II.
We review the district court's award of summary judgment de
novo. Higgins v. E.I. Du Pont de Nemours & Co. , 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when the
record taken as a whole could not lead a rational trier of fact to find
for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). In ruling on a motion for summary judgment, we
must assess the evidence in the light most favorable to the non-
moving party. Charbonnages de France v. Smith , 597 F.2d 406, 414
(4th Cir. 1979). Although summary judgment disposition should be
used sparingly in employment discrimination cases, it is appropriate
where there is no genuine dispute of material fact. Ballinger v. North
Carolina Agric. Extension Serv., 815 F.2d 1001, 1004-05 (4th Cir.),
cert. denied, 484 U.S. 897 (1987).
A. Sexual Harassment
To prove a hostile work environment claim under Title VII, a
plaintiff must show that the conduct in question was unwelcome, that
the harassment was based on sex, and that the harassment was suffi-
ciently severe or pervasive to create an abusive working environment,
and that some basis exists for imputing liability to the employer.
Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989); Swentek
v. USAIR, Inc., 830 F.2d 552, 557 (4th Cir. 1987). For sexual harass-
ment to be actionable, it must be sufficiently severe or pervasive to
5
alter the conditions of employment and create an abusive working
environment. Meritor Sav. Bank, FSB v. Vinson , 477 U.S. 57, 67
(1986).
We find that the district court properly concluded that, with the
possible exception of the rubber band incident (in which Wilson par-
ticipated), the conduct complained of was unwelcome. When Wright
put his hand on Wilson's hip, she told him to keep his hands off her.
When Wilson was shown a cartoon or when Wright hiked his pants,
Wilson turned away. Finally, the clipboard incident caused Wilson
physical pain. Thus, the district court correctly found that Wilson had
demonstrated that the conduct she complained of was unwelcome.
The district court next concluded that, accepting as true Wilson's
version of events, the alleged conduct could reasonably be found to
have been based on sex. Specifically, the court found that the hand-
on-hip, hiked pants, and cartoon incidents had sexual overtones. Fur-
ther, the district court found that the "older women," rubber band, and
clipboard incidents, when viewed in context with the other incidents,
could reasonably be seen as based on sex. Accordingly, the district
court properly found that Wilson met the second element by showing
that the alleged behavior was based on sex.
The district court then concluded that the alleged conduct could
reasonably be found to be severe or pervasive. The court reasoned
that the alleged conduct was more than an isolated incident (making
it possibly pervasive) and involved physical contact (making it possi-
bly severe). Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991);
Paroline v. Unisys Corp., 879 F.2d at 105. Thus, the court found that
the alleged conduct was sufficiently severe or pervasive to be action-
able; accordingly, Wilson met the third element of sexual harassment.
As to the fourth factor, the district court correctly found that no
basis existed for holding the Bank liable for any harassing behavior
engaged in by its employees. An employer is liable for an employee's
sexual harassment of another worker if the employer had actual or
constructive knowledge of the existence of a sexually hostile working
environment and took no prompt and adequate remedial action.
Paroline, 879 F.2d at 106. Wilson's testimony reveals that she never
informed Bank managers about the hiked pants, cartoon, or older
6
women incidents. Thus, the Bank had no actual knowledge of any
hostile work environment which may have arisen from these inci-
dents. Moreover, these incidents were not so pervasive or obvious as
to give the Bank constructive knowledge of the alleged harassment,
and the district court correctly so held.
Wilson did complain to management about the hand-on-hip, rubber
band, and clipboard incidents; thus, the Bank had actual knowledge
of any hostile work environment that may have arisen out of those
incidents. The record reveals, however, and the district court correctly
noted, that when the Bank learned of these incidents, it did not "ac-
quiesce in a practice of sexual harassment." Katz v. Dole, 709 F.2d
251, 254 (4th Cir. 1983). Rather, the Bank took prompt remedial
action that was reasonably calculated to end the harassment. Katz, 709
F.2d at 256. Wilson's testimony reveals that within four days of her
complaint to Burch about the hand-on-hip and rubber band incidents,
Burch convened a meeting of the department and distributed a memo
regarding the need for employees to act in a professional manner. Fol-
lowing that meeting, there were no more such incidents. Thus, the dis-
trict court properly found that no reasonable fact finder could find that
the Bank did not take prompt remedial action.
As to the clipboard incident, Wilson waited a week to report the
incident. When she did report it, the incident was referred to the Per-
sonnel department. Burch counseled Wright that he should never
touch or hit another employee, and warned Wright that his behavior
could lead to termination. Further, the Bank transferred Wilson to
another department with a raise to separate her from her alleged
harasser. Wilson welcomed the transfer. When Wright continued to
bother Wilson in a non-sexual manner in her new work area, he was
warned to stay away from her and leave her alone. Wright never both-
ered Wilson again.
Based on the above prompt remedial action taken by the Bank in
response to Wilson's complaints, we find that the district court prop-
erly found that Wilson failed to establish that the Bank is liable for
any hostile work environment which may have been created by the
actions of a co-worker. Wilson simply failed to offer evidence that the
Bank acquiesced in a practice of sexual harassment. Accordingly, the
7
district court properly granted summary judgment to the Bank on Wil-
son's sexual harassment claim.
B. Retaliation
An employer may not discriminate against an employee in retalia-
tion for that employee's opposition to, or complaint about, an unlaw-
ful employment practice. 42 U.S.C. § 2000e-3. Wilson alleged that
the Bank retaliated against her in violation of that provision because
the Bank's employees responded to her complaints of sexual harass-
ment in a demeaning, disrespectful, and emotionally destructive man-
ner. Wilson alleged that the Bank purposely responded in this manner
in retaliation for Wilson's complaints. Further, Wilson alleged the
Bank ratified the hostile work environment and failed to protect her
from further harassment, which caused her to resign.
To prevail on a claim of retaliation, Wilson must show that she
engaged in protected activity, that the employer took adverse employ-
ment action against her, and that a causal connection existed between
the protected activity and the adverse action. Ross v. Communications
Satellite Corp., 759 F.2d 355, 365 (4th Cir. 1985). The district court
correctly found that Wilson engaged in protected activity by com-
plaining to management about Wright's actions. However, the Bank
did not take adverse employment action against Wilson. Wilson
asserted that the Bank's alleged failure to protect her from retaliatory
teasing by Wright satisfies the adverse employment action element of
her retaliation claim. However, the record demonstrates that the Bank
took prompt remedial action reasonably calculated to end the alleged
retaliatory harassment by Wright and Jones. Thus, Wilson cannot
establish the second element of her retaliation claim.
Moreover, the district court correctly noted that Wilson complained
only of retaliation by her co-workers. Wilson did not allege that man-
agement took any direct retaliatory action against her, such as her
transfer or discharge. In any event, the district court properly found
that the Bank offered ample evidence showing that Wilson's transfer
was not retaliatory, but was welcomed by Wilson and accompanied
by a pay raise. Finally, the undisputed evidence showed that Wilson
was discharged during her last week for good cause-- she was seen
shopping on a day when she had called in sick to work. Thus, the dis-
8
trict court properly granted summary judgment to the Bank on this
claim.
C. Intentional Infliction of Emotional Distress
Wilson's complaint included a state law claim for intentional
infliction of emotional distress. To prevail on such a claim, Wilson
must show that the Bank engaged in extreme and outrageous conduct,
that the conduct was intended to cause severe emotional distress, and
that the conduct in fact caused severe emotional distress. Waddle v.
Sparks, 414 S.E.2d 22 (N.C. 1992). Rarely will conduct in the
employment context rise to the level of outrageousness necessary to
provide a basis for recovery for the tort of intentional infliction of
emotional distress. Cox v. Keystone Carbon, 861 F.2d 390, 395 (3d
Cir. 1988), cert. denied, 498 U.S. 811 (1990).
Wilson's complaint merely asserts that the Bank's response to her
complaints of sexual harassment was performed "intentionally and
with reckless indifference to the consequences to the Plaintiff." Wil-
son further alleged that "the conduct alleged did in fact cause severe
emotional distress to the Plaintiff." However, Wilson failed to offer
any evidence of a severe or disabling emotional or mental condition,
as required to prevail on such a claim. See Waddle v. Sparks, 414
S.E.2d at 27 (defining "severe emotional distress" as including neuro-
sis, psychosis, chronic depression, phobia, or any other type of severe
and disabling emotional or mental condition which may be generally
recognized and diagnosed by professionals trained to do so). In fact,
the medical doctors who treated Wilson both concluded that Wilson
has no permanent disability, either physical or mental, and that she
suffered from "tremendous symptom magnification and fixation."
Thus, the district court properly granted summary judgment to the
Bank on this claim.
For the reasons set forth above, we affirm the district court's order
granting summary judgment to the Bank. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
9
| {
"pile_set_name": "FreeLaw"
} |
895 N.E.2d 703 (2005)
357 Ill. App.3d 1106
PEOPLE
v.
HOUSDEN.
No. 5-04-0033.
Appellate Court of Illinois, Fifth District.
June 1, 2005.
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
610 F.3d 747 (2010)
JUDICIAL WATCH, INC., Appellee
v.
BUREAU OF LAND MANAGEMENT, Appellant.
No. 08-5379.
United States Court of Appeals, District of Columbia Circuit.
Argued April 19, 2010.
Decided July 6, 2010.
*748 Michael E. Robinson, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Leonard Schaitman, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.
Michael Bekesha argued the cause for appellee. With him on the brief were Paul J. Orfanedes and James F. Peterson.
Before: HENDERSON, TATEL and GRIFFITH, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge.
The Bureau of Land Management appeals an award of attorneys' fees to Judicial Watch, Inc. in an action brought under the Freedom of Information Act. For the reasons set forth below, we reverse the decision of the district court and vacate the fee award.
I.
In March 2007, Judicial Watch requested records of communications between the Bureau and the Nevada congressional delegation about a transaction involving federal lands. When the Bureau failed to produce the documents, Judicial Watch sought to compel their disclosure in a FOIA suit filed in the district court in September 2007. The Bureau voluntarily turned over thirty-five pages of responsive documents later that month. At Judicial Watch's request, the Bureau also conducted a supplemental search for additional relevant documents. When that search proved fruitless, Judicial Watch elected not to proceed with its lawsuit. In January 2008, the parties filed a joint stipulation asking the district court to enter a judgment *749 in favor of the agency. In the stipulation, Judicial Watch reserved the right to request attorneys' fees.
On December 31, 2007, after the Bureau's disclosure of the requested records but before the filing of the stipulation, the President signed into law the OPEN Government Act of 2007. See Pub.L. No. 110-175, 121 Stat. 2524 (codified at 5 U.S.C. § 552 (Supp. III 2009)) [hereinafter 2007 Act]. Before the 2007 Act took effect, only FOIA plaintiffs who had "`been awarded some relief by [a] court,' either in a judgment on the merits or in a court-ordered consent decree," could recover attorneys' fees. Oil, Chem. & Atomic Workers Int'l Union v. Dep't of Energy, 288 F.3d 452, 457 (D.C.Cir.2002); see Davis v. DOJ, No. 09-5189, 610 F.3d 750, 2010 WL 2651297 (D.C.Cir. July 6, 2010). The 2007 Act made fee awards permissible not only when the litigation results in "a judicial order, or an enforceable written agreement or consent decree," 5 U.S.C. § 552(a)(4)(E)(ii)(I) (Supp. III 2009), but also when the lawsuit brings about "a voluntary or unilateral change in position by the agency," so long as the FOIA claim is "not insubstantial," id. § 552(a)(4)(E)(ii)(II).
After the district court entered judgment for the Bureau, Judicial Watch moved for attorneys' fees. Because Judicial Watch was not eligible for a fee award under the old standard, its motion for attorneys' fees was based on the 2007 Act. The Bureau opposed the motion, arguing that the Act could not be applied retroactively to increase the government's liability for conduct that took place before it became law. The district court disagreed and awarded Judicial Watch $3,605.57. Judicial Watch, Inc. v. Bureau of Land Mgmt., 562 F.Supp.2d 159, 166-72, 176 (D.D.C.2008).
While the Bureau's appeal was pending, we held in Summers v. Department of Justice that the 2007 Act cannot be applied retroactively. 569 F.3d 500, 503 (D.C.Cir.2009). The Bureau moved for summary reversal of the district court's decision in light of Summers. We denied the motion in order to consider more fully Judicial Watch's argument that applying the new statute to its fee request raised no retroactivity concerns because the parties settled their dispute after the new law took effect. We have jurisdiction to review the award under 28 U.S.C. § 1291. See Cotton v. Heyman, 63 F.3d 1115, 1117-19 (D.C.Cir.1995). Because the temporal scope of a statute is a question of law, our review is de novo. Trout v. Sec'y of Navy, 317 F.3d 286, 289 (D.C.Cir.2003).
II.
At least four events must occur before the government is liable for attorneys' fees under 5 U.S.C. § 552(a)(4)(E)(ii)(II): (1) the plaintiff files a FOIA request with the agency; (2) the agency fails to disclose requested records; (3) the plaintiff sues; and (4) the agency voluntarily or unilaterally changes its position. In this case, as in Summers, all four events took place before the 2007 Act became law. But unlike in Summers, where the parties settled in 2005, the parties here did not settle their litigation until after the change in the law. Judicial Watch argues that the Summers court, by expressly holding that the 2007 Act cannot be applied to cases settled before its effective date, 569 F.3d at 503-04, implicitly held that it can be applied to any case settled after that date.
The matter is not so simple. Summers held that the 2007 Act may not be given retroactive effect, but it did not address the question presented here: whether the Act applies when the agency *750 unilaterally disclosed the requested records before the statute's enactment but the parties' formal settlement came afterwards. We conclude that application of the 2007 Act to these facts would have impermissible retroactive effects.
A statute has retroactive effects if it "attaches new legal consequences to events completed before its enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 270, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Applying the 2007 Act to this case would attach a new legal consequence (liability for attorneys' fees) to an event completed before its enactment (the Bureau's disclosure in September 2007). Judicial Watch implicitly concedes as much when it argues that it became eligible for an award of attorneys' fees under the new law when the Bureau disclosed the requested records. See Appellee's Br. at 18 ("It was only after Judicial Watch filed the Complaint that BLM released the responsive documents.... [T]his constitutes a voluntary change in position by BLM.... Judicial Watch ... is, therefore, eligible for an award of attorneys' fees."). That assertion undermines Judicial Watch's argument that application of the 2007 Act would not be retroactive because the litigation continued until after the Act became law. The disclosure was last in the chain of events relevant to Judicial Watch's eligibility for attorneys' fees under the new law, and it took place months before the law's enactment. That the parties subsequently settled is without relevance to the Bureau's possible liability for attorneys' fees. And because the fact of the settlement is irrelevant, the timing of the settlement has no bearing upon the question of retroactivity. If the 2007 Act were applied to these facts, it would attach new legal consequences to the Bureau's disclosure of the records. Because the disclosure came before the 2007 Act took effect, application of the new law here would be retroactive.
Application of the new statute to this case raises the same retroactivity concerns identified in Summers. Because Congress did not make the statute retroactive, see Summers, 569 F.3d at 504, it is of no help to Judicial Watch.
III.
The decision of the district court is reversed and the award of attorneys' fees vacated.
So ordered.
| {
"pile_set_name": "FreeLaw"
} |
13-2985
Verma v. Holder
BIA
Christensen, IJ
A098 477 816
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 17th day of December, two thousand fourteen.
5
6 PRESENT:
7 RALPH K. WINTER,
8 DENNIS JACOBS,
9 SUSAN L. CARNEY,
10 Circuit Judges.
11 _____________________________________
12
13 MEENA VERMA, AKA CHARANJIT KAUR,
14 Petitioner,
15
16 v. 13-2985
17 NAC
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, New York, NY.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; William C. Peachey,
27 Assistant Director; Daniel E.
28 Goldman, Senior Litigation Counsel,
29 Office of Immigration Litigation,
30 United States Department of Justice,
31 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Meena Verma, a native and citizen of India, seeks
6 review of the July 22, 2013, decision of the BIA affirming
7 the August 30, 2011, decision of the Immigration Judge
8 (“IJ”), which denied her application for withholding of
9 removal and relief under the Convention Against Torture
10 (“CAT”). In re Meena Verma, No. A098 477 816 (B.I.A. July
11 22, 2013), aff’g No. A098 477 816 (Immig. Ct. N.Y. City Aug.
12 30, 2011). We assume the parties’ familiarity with the
13 underlying facts and procedural history.
14 Under the circumstances of this case, we have reviewed
15 the IJ's decision as modified by the BIA decision. See Xue
16 Hong Yang v. U.S. Dep't of Justice, 426 F.3d 520, 522 (2d
17 Cir. 2005). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Absent past persecution, an applicant for withholding
21 of removal under 8 U.S.C. § 1231(b)(3) must show that it is
22 more likely than not that she will be persecuted on account
23 of her “race, religion, nationality, membership in a
2
1 particular social group, or political opinion.” 8 C.F.R.
2 § 1208.16(b)(1); Ramsameachire v. Ashcroft, 357 F.3d 169,
3 178 (2d Cir. 2004). Here, we detect no error in the
4 agency’s determination that Verma failed to demonstrate a
5 likelihood of persecution as required to establish her
6 eligibility for withholding of removal.
7 “While consistent, detailed, and credible testimony may
8 be sufficient to carry the alien’s burden, evidence
9 corroborating h[er] story, or an explanation for its
10 absence, may be required where it would reasonably be
11 expected.” Diallo v. INS, 232 F.3d 279, 285-86 (2d Cir.
12 2000). The agency appropriately found that corroboration
13 was necessary in this case because Verma’s claim was based
14 on substantially the same facts as her husband’s claim,
15 which was deemed not credible in his separate removal
16 proceeding. See id. The agency afforded no weight to her
17 husband’s statements, see Xiao Ji Chen v. U.S. Dep't of
18 Justice, 471 F.3d 315, 342 (2d Cir. 2006), observed that her
19 background evidence did not specifically address her
20 situation, and considered her failure to produce available
21 corroboration in the form of letters from friends or family,
22 see Diallo, 232 F.3d at 285-87. These rulings were
23 reasonable.
3
1 The agency also reasonably discounted the likelihood of
2 future persecution on the grounds that: her account of
3 evading police during her husband's alleged arrests (she
4 moved to another room) was implausible; one of her similarly
5 situated sons continues to live in India unharmed; and she
6 failed to show that police would look for her if she
7 returned. See Melgar de Torres v. Reno, 191 F.3d 307, 313
8 (2d Cir. 1999) (evidence showing family continued to live
9 safely in country of origin “cuts against” claim of future
10 harm based on family relationship); see also Jian Xing Huang
11 v. INS, 421 F.3d 125, 129 (2d Cir. 2005) (providing that a
12 fear is not objectively reasonable if it lacks “solid
13 support” in the record and is merely “speculative at
14 best.”). The agency’s findings that she failed to provide
15 sufficient corroboration or demonstrate a likelihood of
16 persecution were dispositive of withholding of removal and
17 CAT relief because those claims were based on the same
18 factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-
19 57 (2d Cir. 2006).
20 For the foregoing reasons, the petition for review is
21 DENIED. As we have completed our review, any stay of
22 removal that the Court previously granted in this petition
4
1 is VACATED, and any pending motion for a stay of removal in
2 this petition is DISMISSED as moot. Any pending request for
3 oral argument in this petition is DENIED in accordance with
4 Federal Rule of Appellate Procedure 34(a)(2), and Second
5 Circuit Local Rule 34.1(b).
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk
8
9
10
5
| {
"pile_set_name": "FreeLaw"
} |
356 Mass. 92 (1969)
248 N.E.2d 246
COMMONWEALTH
vs.
JOSEPH H. WALLACE.
Supreme Judicial Court of Massachusetts, Franklin.
April 7, 1969.
June 2, 1969.
Present: WILKINS, C.J., SPALDING, CUTTER, KIRK, & SPIEGEL, JJ.
*93 Reuben Goodman for the defendant.
Stanley L. Cummings, Assistant District Attorney, for the Commonwealth.
SPALDING, J.
In a trial conducted pursuant to G.L.c. 278, §§ 33A-33G, the defendant was convicted under an indictment containing two counts. One charged breaking and entering in the nighttime with intent to commit a felony (G.L.c. 266, § 16), and the other charged stealing in a building (G.L.c. 266, § 20). The defendant appealed. The offences were alleged to have been committed in Greenfield, Massachusetts.
Prior to the trial a hearing was held on the defendant's motion to suppress, at which there was evidence of the following: The defendant was arrested in Montreal, Canada, around 2 A.M. on May 10, 1966, as he approached an automobile lent to him by one Kirkpatrick. The arrest was made on the basis of a teletype request from police in a nearby town to detain the automobile and its occupant, because there was a warrant outstanding for the arrest of Kirkpatrick. The defendant was taken to a police station, where he was searched. The police found somewhat more than $1,000 in American money and a watch which he had been wearing. As one of the officers began to count the money, he noticed that the defendant had taken the watch from the table and put it in his pocket. The defendant was then searched again, and the watch was taken from him. The watch still had both its serial number and a price tag of $325 on it.
About one-half hour after the arrest, the Montreal police learned that the defendant was not wanted in connection with the automobile or Kirkpatrick's activities. Because of the large amount of money in the defendant's possession, together with his conduct relating to the watch, the police held him for investigation. The defendant gave conflicting stories of how, when, and by what means he acquired possession of the watch. Upon further investigation the police learned that the watch had been stolen from a jewelry store *94 in Greenfield, Massachusetts, on May 7, 1966. A Greenfield police officer and a State police detective arrived in Montreal around 6:30 P.M. on May 11, 1966, the day after the defendant's arrest, and questioned him. Three separate complaints filed by the Montreal police were subsequently nol prossed to allow the defendant's extradition to this Commonwealth.
By his pre-trial motion the defendant sought to suppress the watch and certain statements which he had made to the Montreal and Greenfield police. The statements did not constitute a confession but were in the nature of admissions by reason of their inconsistency with other statements. The judge sustained the motion in so far as it concerned any statement made to the American police, because the defendant had not been given all the warnings required by Miranda v. Arizona, 384 U.S. 436.[1] However, the court found that "there is nothing in the record to show that the defendant was deprived of any of his rights under Canadian law at any time after he was first taken into custody on May 10, 1966, insofar as they relate to investigation and interrogation concerning criminal charges eventually made by the Canadian police against him for violations of Canadian law." The judge denied the motion to suppress the watch and the statements made to the Canadian police.
The watch was introduced in evidence at the trial. A Montreal police officer testified that the defendant had first stated that he had bought the watch. The defendant testified that he had taken the watch as security for a loan of $75 and admitted that he had lied when he said that he had bought the watch. There was other evidence from which the jury could have found that the defendant stole the watch from the jewelry store in Greenfield.
The defendant argues only three points: the watch should have been suppressed; the statements to the Canadian police should have been suppressed; and a pre-trial *95 identification by a clerk in the jewelry store "deprived the defendant of due process of law under the Fourteenth Amendment as applied in Stovall v. Denno, 388 U.S. 293."
1. There was no error in the denial of the motion to suppress the watch; and it was rightly received in evidence. We assume in the defendant's favor that there was no probable cause to arrest him and therefore the arrest and the incidental search, if they had occurred in the United States, would have violated his Fourth Amendment rights. But this assumption is of no avail to the defendant, because in fact the arrest and search were made in Canada by Canadian police. The Fourth Amendment is designed to deter violations by Federal officials and, as incorporated by the Fourteenth Amendment (Mapp v. Ohio, 367 U.S. 643), violations by State officials. Neither amendment is directed at foreign police, and no purpose would be served by applying the exclusionary rule, since what we do will not alter the search and seizure policies of the foreign nation. Brulay v. United States, 383 F.2d 345 (9th Cir.), cert. den. 389 U.S. 986. See United States v. Stonehill, 274 F. Supp. 420 (S.D. Cal.); Robson v. United States, 279 F. Supp. 631, 634 (E.D. Pa.); People v. Kelley, 66 Cal.2d 232, 250.
2. We now turn to the question whether the statements made by the defendant to the Montreal police should have been suppressed. At the pre-trial hearing on his motion to suppress the defendant testified that on the morning of May 10, 1966 (the date of his arrest), he asked to be allowed to call his attorney. A Montreal police officer testified that the defendant was not permitted to make such a call, and did not see an attorney, until the following afternoon. The officer also testified that he informed the defendant that he did not have to say anything and that anything he said could be used against him; apparently, however, the defendant was not told he had a right to see a lawyer.
The defendant urges that in these circumstances the admission in evidence of his statements violated his rights under the Fifth and Fourteenth Amendments. We assume that the statements would not have been admissible if the *96 questioning had been done by police in this country. Miranda v. Arizona, 384 U.S. 436, 474. The issue is whether this case applies to questioning carried out by foreign officials in a foreign country.[2]
In Bram v. United States, 168 U.S. 532, the defendant had been interrogated in Canada by a Canadian police officer concerning a crime committed on an American ship on the high seas. Statements made by the defendant were later introduced at his trial. The Supreme Court stated that "wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by ... the Fifth Amendment." Bram v. United States, supra, 542. Although there was no other discussion on the point, the court, in ruling that the defendant's statements were inadmissible, implicitly held that the test of voluntariness applied to confessions made to foreign police in a foreign country.
It does not necessarily follow, however, despite the defendant's argument to the contrary, that statements made to the foreign police now may not be admitted unless the full Miranda warnings were given. We are of opinion that the statements made to the Canadian police were admissible. In Johnson v. New Jersey, 384 U.S. 719, the Supreme Court, in holding that Miranda is not to be applied retroactively, stated that a constitutional rule is not to be applied retroactively if it does not significantly enhance the reliability of the fact finding process. Pp. 727-728. The opinion emphasized that one of the major purposes of the Miranda warnings was to set guidelines to control the activities of police officers and that this purpose would not be aided by applying the case retroactively. P. 734. Similarly, applying the Miranda rule to foreign police officers will not affect *97 their conduct, and therefore we decline to so extend the scope of that decision. We hold that statements voluntarily made to foreign police, like such statements made to private citizens in this country (Commonwealth v. White, 353 Mass. 409, 414-417), are admissible even if the Miranda warnings were not given. We are of opinion that the statements under consideration were voluntary.
We recognize that in a somewhat analogous situation at least one other court, in considering the nature of the constitutional rights dealt with in the Miranda and Johnson line of cases, reached a conclusion opposite to ours. In People v. Kelley, 66 Cal.2d 232, the Supreme Court of California concluded that statements made by the defendant to military police, rather than to foreign police, were not admissible because the defendant had not been given the full Miranda warning. See United States v. Miller, 261 F. Supp. 442 (D. Del.). In so doing, the court relied on Elkins v. United States, 364 U.S. 206, which held that evidence obtained by the State officers, which, had it been obtained by Federal officers, would have violated the Fourth Amendment, could not be introduced in a Federal court. P. 223. We are not disposed to apply the Elkins case here, however, for it was based not on constitutional grounds but rather on the court's supervisory power over the Federal courts. P. 214. Moreover, it has been held that the Elkins decision does not apply to a search by foreign officials which violated the Fourth Amendment. United States v. Stonehill, 274 F. Supp. 420, 426 (S.D. Cal.) (evidence resulting from illegal search made in the Philippines which would also have been illegal in the United States held admissible).
3. The defendant's remaining argument is that the pretrial identification by the jewelry clerk deprived the defendant of due process of law under the Fourteenth Amendment as applied in Stovall v. Denno, 388 U.S. 293. This matter was not made the subject of an assignment of error and brings nothing to this court for review. Commonwealth v. Chester, 337 Mass. 702, 703, and cases cited.
Judgments affirmed.
NOTES
[1] Although the statements were made prior to the date of the Miranda decision, the trial took place after that date and thus was governed by Miranda. See Johnson v. New Jersey, 384 U.S. 719.
[2] The judge at the pre-trial hearing concluded that the record showed no violation of the defendant's rights under Canadian law. Although the defendant contended otherwise at the trial, he does not so argue here. We do not treat the one sentence suggestion in a footnote in his brief as amounting to an argument. Lolos v. Berlin, 338 Mass. 10, 14. We thus need not decide whether it would make any difference if in fact the defendant's rights under Canadian, as well as American, law were violated.
| {
"pile_set_name": "FreeLaw"
} |
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 25, 2010*
Decided December 9, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
JOHN L. COFFEY, Circuit Judge
DANIEL A. MANION, Circuit Judge
No. 10‐2165
MICHAEL F. HENRY, Appeal from the United States Tax Court.
Petitioner‐Appellant,
No. 17055‐08L
v.
Maurice B. Foley,
COMMISSIONER OF INTERNAL Special Trial Judge.
REVENUE,
Respondent‐Appellee.
O R D E R
In 2002, Michael Henry filed a refund suit against the IRS in the Eastern District of
Louisiana claiming that he overpaid his income tax for 1999 and won a judgment in the
amount of $122,839. Instead of writing him a check for the amount of the judgment, the IRS
offset the award against a much larger deficiency for that same tax year. The appellant then
asked the Tax Court to set aside the unpaid liability and reverse the offset, but the court
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus the appeal is submitted on the briefs and the record. See FED. R. APP. P.
34(a)(2).
No. 10‐2165 Page 2
held that it lacked subject‐matter jurisdiction to do either. The petitioner‐appellant is
appealing the Tax Court’s decision.
Henry had filed an income tax return for 1999 but amended it several times, in part
to lower the reported gain from a multimillion dollar stock transaction. The IRS was still
reviewing his amended returns when Henry sued for a refund in the Eastern District of
Louisiana in April of 2002. While defending that suit, the IRS concluded that Henry owed
another $3.1 million for 1999 and issued a notice of deficiency in December 2004. See 26
U.S.C. § 6212(a). The district court gave Henry time to petition the Tax Court for a
redetermination of the deficiency. See id. §§ 6213(a); 7422(e). Henry did nothing and the IRS
assessed the deficiency on May 22, 2005.
The refund action moved forward, and in April 2007 the district court accepted a
jury verdict that Henry had overstated his gain from the stock transaction and awarded him
a refund of $122,839. Henry v. United States, No. 02‐0968 (E.D. La. Apr. 30, 2007) (judgment).
That amount was far less than the petitioner‐appellant wanted, and although the Fifth
Circuit upheld the judgment on his appeal, Henry v. United States, 277 F. App’x 429, 435 (5th
Cir. 2008), Henry continues to launch postjudgment motions in the trial court, see, e.g., Henry
v. United States, No. 02‐0968, 2010 WL 2605822 (E.D. La. June 21, 2010), and has filed a
number of related civil suits against the IRS and its employees in the district courts of both
Louisiana and Illinois, alleging that the defendants committed fraud in assessing the tax
deficiency, see Henry v. United States, 360 F. App’x 654, 655 (7th Cir. Jan. 14, 2010); Henry v.
United States, 276 F. App’x 503, 504 (7th Cir. 2008).
The IRS did not pay the $122,839 judgment and instead notified the appellant in
August 2007 that it intended to collect the $3.1 million assessment. Henry exercised his
right to a collection due process hearing with the IRS Office of Appeals, see 26 U.S.C.
§ 6330(a)(1), and when he received a Notice of Determination sustaining the proposed levy,
Henry sought review of that decision in the Tax Court, see id. § 6330(d)(1). In the meantime
the IRS offset the refund that was due to the petitioner against his unpaid assessment.
See id. § 6402(c). The appellant challenged both the offset and the underlying deficiency
assessment, but the Tax Court concluded that neither matter was properly before it. Henry
appeals that decision.
In his opening brief, Henry ignores the Tax Court’s holding that it lacked subject‐
matter jurisdiction to consider his claims, and thus we could affirm the decision on that
basis alone. See Maher v. City of Chicago, 547 F.3d 817, 821 (7th Cir. 2008); United States v.
Hatchett, 245 F.3d 625, 644‐45 (7th Cir. 2001); Senese v. Chi. Area I.B. of T. Pension Fund, 237
F.3d 819, 823 (7th Cir. 2001). In any event, the decision is correct. The Tax Court’s
jurisdiction is limited, see 26 U.S.C. § 7442; Comm’r v. McCoy, 484 U.S. 3, 7 (1987); Cleveland v.
No. 10‐2165 Page 3
Comm’r, 600 F.3d 739, 741 (7th Cir. 2010), and here the Tax Court’s jurisdiction was
predicated upon 26 U.S.C. § 6330(d)(1)(A). § 6330(d)(1)(A) gives the Tax Court jurisdiction
to review a levy. An offset is not a levy. Boyd v. Comm’r, 451 F.3d 8, 11‐13 (1st Cir. 2006);
Belloff v. Comm’r, 996 F.2d 607, 616 (2d Cir. 1993); Sage v. United States, 908 F.2d 18, 27 (5th
Cir. 1990); Hankin v. United States, 891 F.2d 480, 482‐83 (3d Cir. 1990). Thus, § 6330(d)(1)(A)
does not give the court jurisdiction to review the IRS’s decision to credit the appellant’s
overpayment against his unpaid tax liabilities. Moreover, an underlying tax liability may be
challenged in a collection due process hearing only if the taxpayer “did not receive any
statutory notice of deficiency for such tax liability or did not otherwise have an opportunity
to dispute such tax liability.” 26 U.S.C. § 6330(c)(2)(B); see United States v. Patridge, 507 F.3d
1092, 1093 (7th Cir. 2007). Henry received notice in 2004 and had 90 days to petition the Tax
Court to redetermine the deficiency. See 26 U.S.C. § 6213(a). He let the deadline lapse, and
it is too late now to challenge the liability in the Tax Court.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
589 S.E.2d 666 (2003)
264 Ga. App. 78
SUMTER REGIONAL HOSPITAL, INC.
v.
HEALTHWORKS, INC.
No. A03A1535.
Court of Appeals of Georgia.
November 12, 2003.
Fennessy & Nettum, Michael A. Fennessy, Americus, Alston & Bird, Angela T. Burnette, Atlanta, for appellant.
Howard S. McKelvey, Jr., J. Michael Greene, Americus, for appellee.
MIKELL, Judge.
Healthworks, Inc. ("Healthworks") sued Charles Davis, M.D. and Robert Bartosh, M.D., d/b/a Americus Orthopaedic Associates *667 ("P.A."), and Sumter Regional Hospital, Inc. (the "Hospital"), alleging breach of contract, conduct in restraint of trade, and tortious interference with contractual relations. Drs. Davis and Bartosh filed a motion for summary judgment, which the trial court granted as to actual damages and denied as to nominal damages.[1] The Hospital also filed a motion for summary judgment, the denial of which is the subject of this appeal.
The Hospital asserts five related errors, four of which set forth reasons the trial court erred in denying summary judgment on Healthworks' tortious interference claim.[2] The remaining error challenges the trial court's denial of summary judgment on Healthworks' claim for punitive and bad faith damages. Because Healthworks has not established that a genuine issue of material fact remains for jury consideration on the tortious interference claim, we reverse.
"When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence."[3] Where there is no evidence sufficient to create a genuine issue of fact on at least one essential element of plaintiff's claim, however, we must grant summary judgment to the defendant.[4] The evidence shows that P.A. and Healthworks entered a management service agreement (the "Agreement") on January 10, 1998, wherein Healthworks agreed to provide rehabilitation management services to P.A., in exchange for 40 percent of the net proceeds of fees collected from patients treated at Americus Rehab, a new rehabilitation clinic owned by P.A. Americus Rehab opened in February 1999. In a letter dated May 18, 2000, Dr. Bartosh notified Healthworks' chief executive officer ("CEO"), Cole Blair, that he was going to terminate the Agreement at the end of June due to the unprofitability of the venture. On September 5, 2001, Healthworks filed its complaint, alleging that the Hospital exerted economic pressure on the co-defendants to persuade them to refer patients to the Hospital for rehabilitative services, which conduct constituted unlawful restraint of trade and tortious interference with contractual relations. Healthworks also alleged that the Hospital engaged in bad faith, which entitled Healthworks to recover attorney fees and the expenses of litigation. The Hospital filed a motion for summary judgment, arguing that Healthworks' action must fail because there was no evidence that the Hospital induced the doctors to refer patients to it and because Healthworks could not establish damages.
1. In its first four enumerations of error, the Hospital argues that the trial court's denial of its motion for summary judgment on Healthworks' claim for tortious interference was erroneous, and we agree.
The elements of tortious interference with contractual relations, business relations, or potential business relations are: (1) improper action or wrongful conduct by the defendant without privilege; (2) the defendant acted purposely and with malice with the intent to injure; (3) the defendant induced a breach of contractual obligations or caused a party or third parties to discontinue or fail to enter into an anticipated business relationship with the plaintiff; and (4) the defendant's tortious conduct proximately caused damage to the plaintiff.[5]
The "improper action" or "wrongful conduct" required to substantiate a tortious interference claim "generally involves predatory tactics such as physical violence, fraud or misrepresentation, defamation, use of confidential information, abusive civil suits, and *668 unwarranted criminal prosecutions."[6] Where the plaintiff cannot raise an issue of fact as to this first requirement, the tortious interference claim must fail.[7]
The wrongful conduct alleged in the instant case was the Hospital's exertion of pressure on P.A. to refer patients requiring rehabilitation to the Hospital, rather than to Americus Rehab. In support of its allegation, Healthworks relies solely on two statements in the May 18 letter from Dr. Bartosh to Blair. Dr. Bartosh referred to "strong negative pressure" that he was getting from the Hospital and the PHO and stated that the Hospital's CEO, Jerry Adams, had worked very hard to try to "lock out" Americus Rehab from the local employers. Healthworks maintains that if the conduct referenced in these statements occurred, the first three elements of its claim for tortious interference are satisfied. The evidence in the record, however, is to the contrary.
When Dr. Bartosh was asked what he meant by "the strong negative pressure [he was] getting from Sumter Regional Hospital," he deposed that:
A. Well, there was nothing direct, but there was, I think some indirect things. I think my association with Jerry or my relationship with Mr. Adams changed at that point in time. It become [sic] a bit adversarial. The hospital did try at about that time to recruit some other orthopedists as direct competition to us. Now whether that wasI don't know the reasons for that, but that had never happened before.... So it was kind of really a feeling more than anything direct. Also, at this point in time, we were still having a hard time getting patients through the [South Georgia Health Care Association] PHO to come. And again, although nothingI guess I interpreted some of that initially when I had some discussions with Doctor Davis and I thought that some of this was direct. It turned out that there were no direct things.... So there was nothing directly done, but I think some of the things that were occurring at that point in timejust the atmosphere and I think my relationship with Mr. Adams and everything. And since nothing else had changed, this was the only thing different, so I inferred that....
Q. Other than recruiting an orthopedic surgeon or trying to recruit an orthopedic surgeon, were you referring to anything else that the hospital was doing that you were writing about here in this letter that you call strong negative pressure.
A. I can't think of anything specific.
When asked what pressure he received from the PHO, Dr. Bartosh deposed:
We didn't receive pressure. We were not getting people that were in the PHO approved to our therapy unit.... [W]e were filing their insurance claims because we owned it under our tax ID numbers. And since both Doctor Davis and I were a member [sic] of the PHO, it should not have been a problem.... But as far as I know, nothing was done directly from the hospital or from Mr. Adams or from the leadership of the PHO.
Dr. Davis, who was a board member of the PHO, deposed that the PHO never exerted any pressure on P.A. to refer its patients to the Hospital.
Regarding the comment that "[t]he present hospital CEO has worked very hard to lock out this physical therapy service," Dr. Bartosh stated, "[w]ell, we had no direct proof of anything, but again, things that we have reiterated. We seemed to be having a difficult time getting into the PHO, getting employers that are in the PHO to send patients, so we were having a difficult time getting everybody that we wanted to refer into our system." When asked specifically about Adams' efforts, Dr. Bartosh explained:
I think just the change in attitude that we had to each other. I mean, I am sure that I am part of the blame of that, but there was a change in our working relationship, and it seemed to sour, which had been a good relationship prior to this. I mean, I understand that this is business and if another orthopedist comes into town that *669 is recruited against me, I am going to try the same thing, to not send him any business. I mean, that is business. Is it unfair? No. Did Mr. Adams do anything dirty or crooked? Not that I am aware of anything like that. I think he practiced good business as the CEO of a major corporation in this town.
Dr. Bartosh also deposed that no one connected to the Hospital, including dams, directly influenced him to send patients to the Hospital but that he made his determination of where to send a patient based on that patient's desires and needs; that between February 1999, and March 31, 2002, he referred approximately 95 percent of his patients to Americus Rehab; and that during the last three months of Americus Rehab's operation, he did not change his referral patterns in that he always referred patients based upon their medical needs or their requests. In addition to Dr. Bartosh's testimony, there is a plethora of other evidence in the record that supports the Hospital's argument that Healthworks' claim for tortious interference should not have survived summary judgment.
Dr. Davis deposed that his referral of patients to the Hospital rather than Americus Rehab did not result from direct or indirect pressure from the Hospital. Further, Dr. Davis deposed that neither Adams nor anyone else affiliated with the Hospital exerted any pressure on him and Dr. Bartosh to terminate the Agreement with Healthworks. Dr. Davis explained that he wanted to terminate the Agreement because the venture with Healthworks was not profitable and specifically recalled sharing this fact with Blair. In an affidavit, Adams averred that he did not exert any economic or other pressure on the doctors to persuade them to refer patients to the Hospital or to terminate their contract with Healthworks, nor did he know of anyone affiliated with the Hospital who had done so. Healthworks has not presented any admissible evidence to the contrary.
Blair deposed that Healthworks' tortious interference claim was based solely on Dr. Davis' and Dr. Bartosh's comments to him that the Hospital put pressure on the PHO to lock the doctors out of the PHO and threatened to open a competing orthopedic practice. However, this testimony concerning the doctors' alleged statements is hearsay, which has no probative value and cannot be considered as evidence on summary judgment.[8] Blair deposed that other than what he was told by Drs. Davis and Bartosh, he did not know of any pressure exerted by the Hospital.
"[G]uesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment."[9] Therefore, in light of the unequivocal testimony of Drs. Davis and Bartosh that the Hospital did not influence P.A. to terminate the Agreement and Healthworks' inability to point to any evidence of specific instances of misconduct on the Hospital's part, we cannot infer from Dr. Bartosh's letter to Blair that the Hospital acted improperly or engaged in wrongful conduct. Since the Hospital has shown that an essential element of Healthworks' claim for tortious interference could not be proven under any theory, there remains no genuine issue of material fact to be tried by the jury on this claim,[10] and the Hospital is entitled to summary judgment as a matter of law.
2. In light of our decision in Division 1, the Hospital's remaining enumeration of error, which relates to damages, is rendered moot.
Judgment reversed.
JOHNSON, P.J., and ELDRIDGE, J., concur.
NOTES
[1] The trial court's grant of the physicians' motion for summary judgment is not the subject of this appeal.
[2] Healthworks abandoned its restraint of trade claim in its response to the Hospital's motion for summary judgment.
[3] (Citation omitted.) Stanford v. Paul W. Heard & Co., 240 Ga.App. 869-870(1)(a), 525 S.E.2d 419 (1999).
[4] Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).
[5] (Citations and footnotes omitted.) Blakey v. Victory Equip. Sales, 259 Ga.App. 34, 38(2)(d), 576 S.E.2d 288 (2002).
[6] (Citation and punctuation omitted.) Disaster Svcs. Inc. v. ERC Partnership, 228 Ga.App. 739, 741-742, 492 S.E.2d 526 (1997). Accord Culpepper v. Thompson, 254 Ga.App. 569, 572(c)(2), 562 S.E.2d 837 (2002).
[7] Beeson v. Crouch, 227 Ga.App. 578, 582(3), 490 S.E.2d 118 (1997).
[8] Sumter Regional Hosp. v. Sumter Free Press, 248 Ga.App. 780, 782(1), 546 S.E.2d 831 (2001).
[9] (Citations and punctuation omitted.) Watkins & Watkins, P.C. v. Colbert, 237 Ga.App. 775, 778, 516 S.E.2d 347 (1999).
[10] St. Mary's Hosp. of Athens v. Radiology Professional Corp., 205 Ga.App. 121, 124(2), 421 S.E.2d 731 (1992); Munna v. Lewis, 181 Ga.App. 860, 862-863(2), 354 S.E.2d 181 (1987).
| {
"pile_set_name": "FreeLaw"
} |
518 P.2d 1288 (1974)
Roy CURTIS, Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-73-343.
Court of Criminal Appeals of Oklahoma.
February 6, 1974.
Duane A. Woodliff, Henryetta, for appellant.
Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., James C. Peck, Legal Intern, for appellee.
*1289 OPINION AND DECISION
BRETT, Judge:
Appellant, Roy Curtis, hereinafter referred to as defendant, was convicted by a jury in the Okmulgee County District Court, Case No. CRF-72-30, for the offense of Obtaining Money by False Pretenses, and was sentenced to serve five (5) years imprisonment. Judgment and sentence was imposed on June 11, 1973, after defendant's motion for new trial was denied. Defendant was unable to post bail pending appeal, and is presently incarcerated in the Oklahoma State Penitentiary. Defendant was represented by court appointed counsel, Mr. Duane A. Woodliff of Henryetta, Oklahoma.
The facts briefly stated reveal that in July and August of 1972, two men representing themselves to be employees of the Triple A Exterminators in Henryetta, one of whom was the defendant, were paid the sum of Two Thousand Four Hundred Dollars ($2,400.00) on one occasion, and later an additional sum of Fifteen Hundred Dollars ($1,500.00), for work on the complaining witness' home. The complaining witness was Mr. Victor M. Baird, a man 63 years of age. Soon thereafter, on December 15, 1972, two other men approached Mr. Baird at his home and informed him that they were officers of the law; and that they were attempting to locate the men who had earlier performed the exterminating services on his home. They informed Mr. Baird that he would be contacted by one of the men who had swindled him; and in order to apprehend the two men, Mr. Baird should cooperate with them and give them the sum of Five Thousand Two Hundred Dollars ($5,200.00), to be used by them to catch the embezzlers. The two men insisted that the money should be in cash. However, due to circumstances which arose, and upon the advice of the bank personnel, Mr. Baird obtained a cashier's check made payable to his brother, Glenn Baird; but when the check was typed the name was misspelled as "Glen Baird." Mr. Baird delivered the cashier's check to the two men and at their request he endorsed the check "Glen Baird." Thereafter, defendant did not see the men again. Several days later the complaining witness consulted the local police concerning what had happened to him, and the police proceeded to conduct their investigation.
Defendant was apprehended in Waco, Texas, where he worked for Mr. S.E. Chastain doing extermination work; he also worked as a salesman for Chastain Salvage Company. When he was arrested at the Texas National Bank in Waco, Texas, he was cashing a check at the drive-in window. While defendant was in the Waco, Texas jail, Mr. Fred Lee, Special Agent of the FBI, took the defendant's signed statement wherein defendant said that he deposited a check to the account of "Glen Baird," in the amount of Five Thousand Two Hundred Dollars ($5,200.00) in the Texas National Bank on December 20, 1972, at the request of Mr. Chastain, and that he had cashed other checks on that account for Mr. Chastain; defendant stated he did not open the Glen Baird account, nor did he sign the checks, although he did endorse checks which were made out and given to him by Mr. Chastain. In the statement defendant asserted that he was only an errand boy for Chastain, and that all of the money obtained from the checks was turned over to Mr. Chastain.
Soon after defendant was taken to the jail in Henryetta, Oklahoma, the local police and Mr. B.G. Jones, an agent for the Oklahoma Bureau of Investigation, took six (6) photographs of different individuals to the home of the complaining witness *1290 for him to view. Even though hesitatingly, the complaining witness picked out defendant's photograph as one of the two men who came to his home and posed as law enforcement officers, and to whom he delivered the cashier's check. The complaining witness also made an in-court identification of defendant as one of the two men to whom he gave the cashier's check, and testified that defendant did most of the talking for the two men who posed as law enforcement officers.
The defense offered at this trial was that of alibi, in which defendant asserted and attempted to prove to the jury's satisfaction that on December 15, 1972, he was in Waco, Texas; and that this was a matter of mistaken identification. In his defense he offered the testimony of his wife, Ruth Curtis, who testified she saw defendant every day during the month of December, 1972, becoming formally engaged to him on December 13. She testified further that defendant never left Waco, Texas during the month of December, and that on December 15, the day the crime occurred, she and defendant were at her girl friend's house where defendant bought some Stanley Product's perfume. Mr. Richard Hutton, a legal intern, testified that he interviewed defendant in the Henryetta Jail and while going through defendant's personal effects, found a sales receipt for two bottles of cologne from Stanley Products, dated December 15, 1972. This receipt was introduced as defendant's Exhibit 4.
Defendant's sister, Meryl Casper, testified that she lives in Fort Smith, Arkansas, and that defendant telephoned her on the 4th, 6th, 7th, and 11th of December, 1972, and that she called him on the 7th and 13th. She related that the telephone calls were made to her collect and her telephone bill was introduced into evidence to verify these calls.
Defendant testified in his own behalf and related that he works for S.E. Chastain doing extermination work, and as a salesman in the Chastain Salvage Company. He related that his duties include depositing and cashing checks for Mr. Chastain; that he moved from Oklahoma to Waco in September, 1972, and has been there ever since. He testified that he was not in Oklahoma on December 15; that he did not talk to Mr. Baird, the complaining witness; nor did he impersonate an officer in Henryetta on December 15, 1972. He denied knowing that the Five Thousand Two Hundred Dollar ($5,200.00) cashier's check which he deposited in the Texas National Bank for Mr. Chastain came from the complaining witness. He asserted further that the check was deposited at Chastain's direction and that the Glen Baird account was already opened by someone else when he deposited the cashier's check in that account. He related that he cashed several other checks on that account at Chastain's direction, but that all the checks were drawn and signed before defendant ever saw them. Defendant further testified that he learned of the connection between the cashier's check and Mr. Victor Baird after he was arrested. He related, however, that after he saw Mr. Baird he realized that it was his home under which he worked as an exterminator in August of 1972, before he moved to Waco, Texas.
Other witnesses who testified related that the complaining witness withdrew from his savings account in the American Exchange Bank in Henryetta the required sum of money used to purchase the cashier's check. Mr. Sam Johnson, a Deputy Sheriff for McClendon County, Waco, Texas, who also served as security guard for the Texas National Bank, testified that he arrested defendant when defendant was attempting to cash a check made payable to cash with the signature of "Glen Baird," but that this was not the cashier's check from the American Exchange Bank in Henryetta.
Defendant's first proposition asserts: "The trial court erred in overruling defendant's request for a copy of the defendant's statement which had been reduced to writing by an Oklahoma Crime Bureau Agent." This complaint relates to the *1291 interrogation by Mr. B.G. Jones, an Agent of the Oklahoma Bureau of Investigation. The trial record reflects that the only written statement signed by defendant was the one taken by Mr. Fred Lee, Special Agent of the FBI. It also appears from the record that a copy of that statement was provided defendant. However, the testimony of Agent Jones was that he only took notes concerning what defendant told him, that no written statement was taken in his presence, and that none was given or signed in his presence.
It is not entirely clear from the record whether or not defense counsel requested these items at the preliminary hearing. In his brief he asserts that he did make this request of the examining magistrate, but the same was denied. The record seems to be clear, however, that defendant did not file a written application for the items he wished to inspect. It appears that defendant and his court appointed counsel appeared for trial and had voir dired the jury, when the court adjourned into chambers. While in chambers it came to the trial judge's attention that defendant had not been arraigned; so, with the consent of defendant and his counsel, the trial court proceeded to arraign the defendant. Defendant, however, agreed to the delayed arraignment and proceeded to trial upon the providing of the envelope in the possession of Agent Jones, and a copy of a fingerprint purportedly lifted from that envelope. After arraignment, the parties returned to the courtroom where both sides announced ready for trial.
Mr. Jones, the Oklahoma Bureau Agent, testified that the scribbled name written on the envelope appeared to be "Bill David." The complaining witness testified that when the two men impersonating police officers were at his home, he asked one of them what his name was, and the man replied Bill Davis and wrote his name on the envelope. Mr. Jones also testified that the fingerprint which appeared on the envelope could not be lifted from the envelope, but that it was photographed. On cross-examination he testified, "I was just advised a few minutes ago that there is not sufficient fingerprints here for an identification." He related that he had turned a set of defendant's fingerprints and the photograph of the envelope print to the laboratory technician for comparison; and by telephone he had been advised by the technician that no comparison could be made.
Defendant's second proposition must be discussed in relation with the first, insofar as both pertain to pretrial discovery. Defendant's second proposition asserts: "The trial court erred in overruling defendant's request for a copy of fingerprints and other evidentiary items taken from the scene of the crime." This second proposition more directly relates to the fingerprint allegedly left on the envelope and defendant's oral request for the copy of defendant's fingerprints and the photograph of the print on the envelope. In support of these propositions defendant cites: Doakes v. District Court of Oklahoma County, Okl.Cr., 447 P.2d 461 (1968); Smith v. State, Okl.Cr., 481 P.2d 468 (1971); and Stevenson v. State, Okl.Cr. 486 P.2d 646 (1971).
Considering the notes Agent Jones made during his interview of defendant, it is reasonably clear that the defendant is not entitled to the work product of the prosecutor or his investigators; and insofar as no written statement was taken from the defendant by Agent Jones, his field notes constitute part of his work product, to which defendant is not entitled. In Doakes v. District Court, supra, this Court held:
"In the interest of justice and for good cause shown, the prosecution should allow pre-trial inspection by accused or his counsel of a statement in prosecution's possession given by the accused without benefit of counsel where accused is later unable to remember what he said in the statement."
Later in Smith v. State, supra, wherein defendant filed a written motion requiring the prosecution to furnish a copy of the *1292 statement which the prosecutrix gave to the police, we held:
"We are of the opinion that a defendant is not entitled to an inspection of the work product of the prosecutor consisting of statements signed by other than the defendant, unless such statements contain material which is material to the defense of the case."
Several months later, in Stevenson v. State, supra, at page 650, this Court set forth the American Bar Association's standards for criminal justice, relating to discovery and procedure before trial, i.e. parts of paragraph 2.1, which pertained to the prosecutor's obligations. However, in Stevenson defendant filed a written motion for the "criminal records of the prosecution witnesses," and "inspection of materials favorable to the defendant and in the possession of" the State. We found, however, that the defendant did not specify what materials he desired. In the Stevenson decision, at page 649, this Court stated:
"As to pre-trial discovery and inspection of articles in the possession of prosecuting authorities, this Court has held there should be disclosure to the defendant of technical reports ... the alleged death weapon with reports concerning same, and defendant's statement to police... . [Citations omitted.]
"Furthermore, 22 O.S.Supp., 1970, § 749, enacted in 1969, expressly allows a defendant to a copy of the `statement of any person having knowledge of such criminal offense' made to any peace officer or prosecutor. This Court had denied inspection of the prosecutor's `work product.' [Citation omitted.] And denied inspection of a detective's personal notes not subject to introduction into evidence."
Consequently, it was not error when the trial court did not require the prosecution to furnish defendant with a copy of Agent Jones' notes. Had Agent Jones taken a written statement, defendant would have been entitled to that statement. Likewise, insofar as the alleged photograph of the fingerprint on the envelope was not shown to be other than how Agent Jones testified, and it was not used in the prosecution against defendant, we deny defendant's first and second propositions.
Defendant's third proposition of error asserts, "The trial court erred in allowing the State to inquire into the juvenile record of accused." It is defendant's contention that insofar as he was convicted at the age of 16 years for the offenses of "joy riding and second degree burglary," that the State should not have been permitted to inquire concerning these alleged convictions, because he was a juvenile at the time. On cross-examination the State inquired of defendant concerning these convictions to test his credibility. The law at the time defendant was convicted provided that a boy 16 years of age could be tried as an adult. It was not until 1972 when 10 O.S. 1971, § 1101(a) was amended to provide that persons under 18 years of age are juveniles. Consequently, we are bound to hold that at the time defendant was convicted he stood charged as an adult. We therefore believe that defendant's reference to Raper v. State, Okl.Cr., 501 P.2d 847 (1972), wherein this Court held that cross-examination as to a juvenile offense for impeachment purposes was highly improper, is not specifically applicable to the instant case.
Defendant's fourth proposition of error asserts, "The trial court erred in failing to limit the State's cross-examination of the defendant to the scope of direct examination, and thereby allowing the State, over the objections of the defendant, to cross-examine the defendant as to alleged uncharged misconduct." This complaint pertains primarily to the prosecutor's interrogation of defendant, concerning work which he and another man performed on Mr. Baird's house in August, 1972. Mr. Baird had testified in the State's case in chief that two men representing an exterminating company performed work under his house during August, and that on one *1293 occasion he gave them a check for Two Thousand Four Hundred Dollars, and later he gave them a second check for some Fifteen Hundred Dollars. Likewise, Mr. Baird had testified that the reason for giving the cashier's check to the two men posing as police officers was allegedly to assist them to apprehend the two men who had earlier worked under Mr. Baird's house in August. Also, on direct examination defendant testified that he deposited a cashier's check for Five Thousand Two Hundred Dollars ($5,200.00) at Mr. Chastain's instruction, and Mr. Baird identified defendant as being one of the two men. Consequently, as we view the prosecutor's cross-examination, this particular area of interrogation would be evidence of other offenses which is admissible when it is explanatory of the motive or intent of the offender in the commission of the offense charged. The result is that the sum of money which defendant was charged with obtaining from Mr. Baird was predicated upon the initial work allegedly done in August, 1972. Therefore, in order to consider the impact of the cashier's check incident, it is necessary also to consider the two earlier checks given by Mr. Baird in August, 1972. It was the prosecutor's contention that the entire transaction constituted a scheme and design on the part of defendant and others to obtain money under false pretenses from Mr. Baird.
Defendant cites Doser v. State, 88 Okl. Cr. 299, 203 P.2d 451 (1949) for the authority that it is the trial court's duty to confine the cross-examination of defendant to issues of and transactions which are pertinent to the charge laid in the information. In the same case this Court said at page 464, 203 P.2d:
"This Court has held that other offenses committed by accused are admissible when the same shows motive with respect to the offense charged. [Citations omitted.] In Smith v. State [83 Okl.Cr. 209, 175 P.2d 348 (1946)] evidence of other offenses are admissible when they are explanatory of the motive or intent of the offender in the commission of the offense charged. We therefore are of the opinion that evidence in relation to the two burglaries in Austin, Texas, is admissible as tending to establish the motive for the theft of the automobile with which to effect the escape of the defendant and her accomplices. Likewise, we are of the opinion that the desire to escape provided the motive for the trip to Oklahoma City and the desire to get to Oklahoma City until the `heat was off' and the breakdown of the 1939 Oldsmobile provided the motive for the attempted robbery and the murder of Streckenfinger. Moreover, where the two crimes are logically related or connected, so that proof of the other tends, or is necessary, to prove the one charged, or is necessary to complete account thereof, as where they are so inseparable as to constitute but one transaction or crime, or where the extraneous crime forms part of a chain of circumstantial evidence of guilt of the crime charged the evidence of other crimes is admissible."
Consequently, we arrive at the conclusion that the initial sums obtained from Mr. Baird in August of 1972, being the predicate for the obtaining of the Five Thousand Two Hundred Dollars ($5,200.00) for which defendant was charged, was part of the res gestae. We will therefore deny defendant's fourth proposition.
Defendant's fifth proposition asserts the verdict is not sustained by the evidence and is contrary to the law. After reviewing the transcript of testimony, we find that defendant was sufficiently connected with the cashier's check to satisfy the jury that defendant was guilty as charged. Notwithstanding the fact that the complaining witness' initial description of one of the two men who posed as a police officer, and who accepted the cashier's check, was not entirely accurate, we believe that the in court identification was sufficient to satisfy the requirements of the jury. Defendant admitted possession of the cashier's check; he admitted making *1294 the deposit; he admitted having been a part of the alleged work under defendant's house in August 1972, and was sufficiently connected to the cashier's check to submit the question to the jury. At this stage we are unable to say that defendant's identification was a "misidentification," as contended by defendant. We have consistently held that where there is competent evidence in the record from which the jury could reasonably conclude that the defendant is guilty as charged, this Court will not interfere with the verdict, even though there is sharp conflict in the evidence and different inferences may be drawn therefrom, since it is the exclusive province of the jury to weigh the evidence and determine the facts.
Defendant next asserts that the punishment assessed by the jury is excessive; however, we observe that defendant did not receive the maximum punishment allowed by statute. We must therefore conclude that the punishment is not excessive.
Defendant's next complaint refers to remarks and statements by the District Attorney during closing arguments as being "evidentiary harpoons," and highly prejudicial and calculated to violate the rights of the accused. We observe that the closing arguments were not recorded and therefore are not before this Court. In Pitts v. State, Okl.Cr., 431 P.2d 449 (1966), this Court held, "Where there is no proper record in the casemade of alleged improper remarks of the prosecuting attorney to the jury, such assignment of error will not be considered on appeal."
Defendant's seventh and last proposition asserts that the trial court committed error in overruling defendant's motion for new trial. In support of this proposition defendant relies on the provisions of 22 O.S. 1971, § 952, which provide that a new trial may be granted upon newly discovered evidence. However, we observe in defendant's brief that he admits that Mr. Chastain and Glenda Pelham both had earlier agreed to appear at defendant's trial, but both failed to do so. Consequently, it cannot be said that their evidence was newly discovered. Notwithstanding the fact that defendant attached to his motion several affidavits from people from Waco, Texas, it appears that such testimony would be cumulative in nature to what was presented for the jury's consideration. It has long been the holding of this Court that whether a motion for new trial shall be granted is within the sound discretion of the trial court, and unless an abuse of that discretion is shown, this Court will not change the trial court's decision.
Therefore, after carefully considering the record in defendant's trial, we are of the opinion that defendant received a fair trial and that there was sufficient evidence to sustain the charges lodged against him, and that the judgment and sentence in Okmulgee County District Court Case No. CRF-73-343 should be affirmed.
It is so ordered.
| {
"pile_set_name": "FreeLaw"
} |
772 P.2d 552 (1989)
Donald R. LOPER, Petitioner,
v.
Duane SHILLINGER, Warden of the Wyoming State Penitentiary and Joseph B. Meyer, Attorney General of the State of Wyoming, Respondents.
No. 88-59.
Supreme Court of Wyoming.
April 25, 1989.
Leonard D. Munker, State Public Defender, for petitioner.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., Karen A. Byrne, Asst. Atty. Gen., and Paul S. Rehurek, Asst. Atty. Gen. (argued) for respondents.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
*553 CARDINE, Chief Justice.
This matter is before us on a writ of certiorari. The issue presented is whether a sentence, legally imposed on a defendant for crimes committed while on parole, is presumed to run concurrently with the remainder of the original sentence reinstated by parole revocation. We answer this question in the negative.
Petitioner Donald Loper was on parole from the Wyoming State Penitentiary when he committed a number of burglaries. He was arrested and charged with four counts of burglary. Pursuant to a plea bargain agreement, he pled guilty to all four counts and received sentences of five to ten years on each count, with all four sentences to run concurrently. After his return to the penitentiary, the Board of Parole revoked his parole, and informed Loper that he would begin to serve his new sentences when his original sentence was completed.
Petitioner does not contest the legality of his sentences for the burglary counts, nor does he contest the legality of his parole revocation. The essence of his argument is that in the absence of any express statement to the contrary in the court's last judgment and sentence, his last sentence should be presumed to run concurrently with the remainder of his original sentence. He asks that we adopt a judicial presumption to the effect that a sentence which is silent concerning the effect of parole revocation be presumed to run concurrent with a reinstated sentence.
We decline to adopt the presumption advanced by petitioner. The sentencing judge has discretion to determine whether sentences shall be served consecutively or concurrently. Eaton v. State, 660 P.2d 803 (Wyo. 1983). Here, the sentencing judge was aware that petitioner was on parole at the time he was sentenced. Petitioner was advised that his guilty plea could result in revocation of parole. The judge did not specify that the four concurrent sentences would run concurrently with the remainder of his original sentence in the event that parole was revoked.
To presume concurrency in this situation ignores the logic of the United States Supreme Court as articulated in Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399, 116 A.L.R. 808 (1938):
"Parole is intended to be a means of restoring offenders who are good social risks to society; to afford the unfortunate another opportunity by clemency under guidance and control of the [parole] Board. Unless a parole violator can be required to serve some time in prison in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be practically nullified." 304 U.S. at 363, 58 S.Ct. at 874.
We see no reason to adopt a presumption which would have the effect of rewarding one who uses release on parole as an opportunity to commit further crimes.
No error.
URBIGKIT, Justice, dissenting.
I respectfully dissent. The issue presented does not involve the discretion of the trial court to make sentences either consecutive or concurrent; what is presented is the effect of nondesignation.
The rules of criminal law have been clear for many more years than the time that present jurists of this court have been engaged in this activity. Generally, by majority rule, a presumption exists for sentences to be concurrent unless specifically defined to be consecutive. I reject a thesis that we, as the appellate court, should now make the sentencing decision by opining that rationally the trial court should have wanted these sentences to be consecutive even though the designation was not made or compatible intent is not expressed in written sentence or mittimus. Here, even though I might believe that appellant Donald R. Loper (Loper) is not ill-served by consecutive sentences when committing burglaries during parole release, it is concluded that the trial court should have made that determination and included the *554 decision in written document as expressly stated to authenticate the option selected.[1]
Prosecutors in draftsmanship and proof-reading in preparation of judgments have a justified obligation to refute any later claimed omission of the judge in execution of the order which omitted such a critical factor as whether duplicate sentences are to be served consecutively or concurrently. The duty of specificity is particularly impressed since there is the constitutional fairness and due process concern within which a liberty interest is enfolded.[2]
Even if today in post-entry cogitation we prefer that this particular sentence should have been stated to be consecutive, it was not and should not now be reconstructed to write our view of appropriateness by abandonment of the long-standing presumption of concurrence and retreat from the principle of lenity. I respectfully dissent from appellate court rewriting of what the prosecutor did not effectively compose or the trial court did not otherwise edit.
As a question of intent to make the sentences consecutive, which decision failed by non-inclusion in the order and sentence, this record is obtuse as usual. In original plea, Loper was asked about the plea bargain and sentence by the trial court and then inquired, "That is a five to ten concurrent, I take it; is that correct? [Prosecuting Attorney] That's correct, Your Honor." [Emphasis added.]
Likewise at sentencing, the trial court stated:
Credit will be given to this defendant off the maximum sentence for time served. The sentences, to make the order clear, Mr. Howard, and I trust you will take care of preparing this order, are four sentences of five to ten years each to run concurrently.
Nothing was said about the sentences running consecutive to any term of probation revocation which would remain to be served. Consequently, the concurrent nature of the sentence and plea bargain was twice stated to Loper and it was never indicated by question, comment or other detail that the sentence would turn out to be consecutive to the then pending sentence for which he had been placed on parole. The rule of lenity surely has appropriate application here. Brock v. Sullivan, 105 N.M. 412, 733 P.2d 860 (1987). Also, I would follow the legalism and moralism stated by the United States Supreme Court in United States v. Daugherty, 269 U.S. 360, 363-64, 46 S.Ct. 156, 157, 70 L.Ed. 309 (1926), where that court stated:
Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them. * * *
* * * * * *
This and similar unfortunate causes should admonish the trial courts to require the use of meticulously precise language in all judgment entries. Especial care is essential where sentences for crime are imposed.
*555 The sentence was entered on February 27, 1987, and thereafter on April 2, 1987, Loper was called to appear before the parole board and his parole was revoked effective April 6, 1987, requiring his incarceration for time when he had been released from confinement. An administrative decision then followed to require him to first serve revoked parole time before commencing to serve the sentences entered by the order of February 27, 1987.
As presented by these facts, I cannot follow the conclusions of the majority in this case nor find authority cited by the State to be persuasive. All of these cases cited can be easily distinguished because anchored in express state statutes or derived from a long-standing state history as within the minority rule that sentences are presumed to be consecutive unless expressly stated to be concurrent.
In many jurisdictions there exists a statutory presumption that any multiple sentences imposed by the court will run concurrently, either when such sentences are imposed simultaneously or where a sentence or sentences are imposed upon an offender who is already serving a prior sentence. Moreover, where there is no such statutory presumption and the record of the sentencing court is silent or ambiguous regarding the matter, most jurisdictions employ a judicial presumption that the sentences are to be served concurrently. The practical effect of either this statutory or judicial presumption is similar to that of the so-called "rule of lenity" discussed earlier in the context of determining whether multiple violations will be regarded as separate offenses.
A. Campbell, Law of Sentencing § 76 at 249-50 (1978) (emphasis in original and footnotes omitted).
This concept and sentencing criteria has recently been addressed in detail by the Tenth Circuit Court of Appeals in United States v. Earley, 816 F.2d 1428, 1429 (10th Cir.1987), as a rehearing en banc, where the issue was stated:
The only issue in this appeal is whether a federal district judge who failed to state whether sentences he imposed were consecutive to or concurrent with a preexisting federal sentence may order, five months later and after the defendant was imprisoned, that the sentences were to be consecutive. The district judge described his later order as a "clarification .. . to eliminate any ambiguity as to the Court's intention."
As here, the case involved crimes committed while the defendant was on parole and whether the new offense sentences would be consecutive to incarceration time for parole revocation. No designation was provided and the new offense sentences had been plea bargained. That court recognized:
The federal courts have adopted a presumption that federal sentences imposed at different times run concurrently, absent an express statement to the contrary. Our circuit recognized the presumption of concurrent sentences in Subas v. Hudspeth, 122 F.2d 85 (10th Cir.1941), in which we stated: "Absent clear language to the contrary, it is presumed that sentences imposed on more than one offense at the same time, or at different times, will run concurrently."
Id. at 1431.
The federal court then noted that Congress in 1987 had changed the rule by statutory enactment that sentences ran consecutively if imposed at different times but kept the concurrence rule for multiple sentences imposed at the same time. That tribunal then applied the rule of concurrence which was in effect at time of sentencing, in the absence of "some objective evidence demonstrating that the defendant was aware of the court's intent at sentencing." Id. at 1432 n. 4. Consequently, the new offense sentence ran concurrently with the revoked parole confinement which appellate decision reversed the clarification ordered by the district court fives months after the initial sentence had been vacated.[3]
*556 This similar question was considered also in the recent case of State v. Rau, 129 N.H. 126, 523 A.2d 98 (1987) with resulting holding that the presumption of concurrence required that the probation term and subsequent offense term in absence of controlling statement of intent would run at the same time.
"Where a sentencing order is silent on when the probationary term commences, there is a strong presumption that the term starts on the date sentence is imposed and runs concurrently with any period of imprisonment imposed on any remaining count or counts.3
3 If a sentencing court does not intend this result, then the probationary sentence should state explicitly and precisely when probation is to commence."
Id. 523 A.2d at 101 (quoting United States v. Adair, 681 F.2d 1150, 1151 (9th Cir.1982)).
That case was different in that probation revocation was attempted after the subsequent offense jail-time sentence had been fully served. Right to amend the original sentencing order did not continue. United States v. Rodriguez, 682 F.2d 827 (9th Cir.1982); Adair, 681 F.2d at 1151. See also the principle that probation and incarceration can be served at the same time. Burns v. United States, 287 U.S. 216, 53 S.Ct. 154, 77 L.Ed. 266 (1932).
The rules relating to concurrent sentences should not be confused with the cases where nothing is done about the parole revocation until after the service of confinement for the later criminal sentences has been completed. Zerbst v. Kidwell, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399 (1938). These line of cases do not raise the concurrent sentence inquiry since "service of the original sentence was interrupted by parole violation, the full term of that sentence has not been completed." Zerbst, 304 U.S. at 362, 58 S.Ct. at 873 (emphasis in original). See also Hunley v. Hollowell, 199 N.W. 163 (Iowa 1924) and Com. v. Polsgrove, 231 Ky. 750, 22 S.W.2d 126 (1929).
Likewise not presented here as valid authority are cases from states with a dispositive statute or a long-standing consecutive sentence thesis for separate offenses as established state policy. State ex rel. Young v. Ohio Adult Parole Authority, 24 Ohio St.2d 67, 263 N.E.2d 399 (1970). In these states constituting the rather defined minority, an express statement is required to make sentences concurrent. That adaptation is contrary to the normal or majority rule that express statement is required to make sentences consecutive. See likewise, King v. Maxwell, 173 Ohio St. 536, 184 N.E.2d 380, cert. denied 371 U.S. 869, 83 S.Ct. 133, 9 L.Ed.2d 106 (1962). Nebraska also follows the minority rule, Harpster v. Benson, 216 Neb. 776, 345 N.W.2d 335 (1984). Delaware has a controlling statute, Semick v. Department of Corrections, 477 A.2d 707 (Del.Supr. 1984), as does West Virginia, Adams v. Circuit Court of Randolph County, 317 S.E.2d 808 (W. Va. 1984) and Tennessee, State ex rel. York v. Russell, 180 Tenn. 515, 176 S.W.2d 820 (1944). New York follows a modified concurrence concept only, Browne v. New York State Bd. of Parole, 10 N.Y.2d 116, 218 N.Y.S.2d 33, 176 N.E.2d 492 (1961).
Wyoming has no concurrence or consecutive presumption statute and no prior history of adopting the minority rule. The basic thesis which I follow is that the trial court should make clear what the sentence entered is and, in failure to do so, the historical rule of lenity should be applied. Obviously, the benefit of all parties is served by explicit decision and written authentication. In the absence of that defined intent as inscribed in judgment and commitment, I would follow
the general rule that two or more sentences to the same place of confinement run concurrently, in the absence of specific *557 provisions in the judgment to the contrary, and where defendant is already serving a former sentence, and a second sentence does not state that the time is to commence at the expiration of the former, the sentences will run concurrently, in the absence of a statute providing for a different rule.
Annotation, Sentences by Different Court as Concurrent, 57 A.L.R.2d 1410, 1418 (1958).
I would reverse.
NOTES
[1] In January 1980, Loper had received a sentence of four to eight years for auto burglary and then in March 1982 an additional sentence for escape of three to six years to begin January 10, 1985. Released on parole April 3, 1986, he had then served about fifteen months on the three to six year escape sentence. The present sentence for the four new February 1987 charges is concurrent sentences on each of five to ten years. Following entry of the current sentence, his parole was revoked on the earlier escape charge and sentence. At issue then is the process whereby his credit for incarceration will first be applied to the revoked parole to total the remaining approximate twenty-one months to fifty-seven months and then he will commence service of time for the more recent conviction. The trial court was aware of his parole violation status when the last sentence was given which included the near certainty that he would be revoked on earlier sentence by virtue of the criminal conduct committed during parole. The sentencing judge could have ran the current sentence either concurrent or consecutive to any remaining confinement from the revoked parole. Unfortunately, the sentence stated neither option. Under Wyoming indeterminate sentencing, many other choices also existed, including a minimum of six years and nine months on the current offense as concurrent to time to be served for revoked parole.
[2] Defense counsel cannot escape responsibility completely by neglect to ask the clarifying question while the accused is still present in the courtroom. Accuracy has many authors.
[3] In another case decided at the same time, the Tenth Circuit Court of Appeals also determined that the oral pronouncement when unambiguous and clearly shown in the record would control over a conflicting judgment and commitment order as the subject of whether the sentences were concurrent or consecutive. United States v. Villano, 816 F.2d 1448 (10th Cir.1987).
| {
"pile_set_name": "FreeLaw"
} |
371 S.W.2d 587 (1963)
The CITY OF HOUSTON et al., Appellants,
v.
Glenn H. McCARTHY et ux., Appellees.
No. 14271.
Court of Civil Appeals of Texas, Houston.
September 19, 1963.
On Rehearing October 10, 1963.
*588 R. H. Burks, City Atty., G. Gordon Whitman, Sr., Asst. City Atty., B. F. Richard, Asst. City Atty., Houston, for appellants.
Franklin R. Navarro and B. Rice Aston, Houston, for appellees.
WERLEIN, Justice.
The City of Houston and the Houston Independent School District sought to recover against appellees delinquent taxes, penalties, interest and attorney's fees for the years 1951, 1953, 1954 and 1956 to 1962, inclusive. Appellants made out a prima facie case of the validity of the assessed valuations and delinquent taxes by introducing in evidence their official records. Doneghy v. State, Tex.Civ.App., 334 S.W. 2d 506, error ref., n. r. e.; Whaley v. Nocona Independent School Dist., Tex.Civ. App., 339 S.W.2d 265, error ref.; Joy v. City of Terrell, Tex.Civ.App., 143 S.W.2d 704, dism., judg. cor.; City of San Marcos v. Zimmerman, Tex.Civ.App., 361 S.W.2d 929, writ ref., n. r. e. From a judgment of the trial court in favor of appellees for all of said years except 1962, appellants have perfected their appeal.
In their first four points, briefed together, appellants contend that there is no evidence, or insufficient evidence, to show any monetary injury to appellees by reason of any illegal scheme of taxation employed by appellants and that the court erred in submitting issues with respect thereto and also erred in overruling their motions for an instructed verdict and judgment non obstante veredicto. Appellees, on the other hand, take the position that the court properly entered judgment for them since the undisputed evidence shows that appellants made no attempt to assess or collect taxes on bank accounts and savings accounts or upon household furniture and furnishings, clothing, jewelry, stocks, and bonds and other personal property in Houston, and that only 5% of such personalty was voluntarily rendered by owners, and only 15% or less of the bank accounts were tax exempt. They also assert that the jury on sufficient evidence found that appellants employed during the years 1951 to 1961 a scheme for fixing values of property for taxing purposes that was not uniform, fair and equal, and that such scheme resulted in substantial injury to appellees.
*589 We agree with appellees that the evidence shows that the scheme employed by appellants for fixing values of property for taxing purposes was illegal, in that no effect was made to assess bank accounts and other personal property generally. Section 1 of Article VIII of the Texas Constitution, Vernon's Ann.St. provides that: "Taxation shall be equal and uniform. All property in this State * * * shall be taxed in proportion to its value." City of Arlington v. Cannon, 1954, 153 Tex. 566, 271 S.W.2d 414.
The burden was on appellees, however, to show that they suffered substantial injury as a result of appellants' failure to assess bank accounts and other personal property. It is not enough to show that an illegal system of rendering and assessing taxes was employed. In State v. Federal Land Bank of Houston, 160 Tex. 282, 329 S.W.2d 847, our Supreme Court, through Justice Greenhill, said:
"But while the Land Bank did prove an arbitrary and illegal scheme of ad valorem taxation, that fact alone under the facts here does not of itself entitle it to relief. This is not a direct attack on the scheme of taxation or a suit to prevent the initiation or operation of an illegal scheme. No relief was sought by mandamus or injunction. Here the taxpayer sat by and allowed the plan to be put into operation without even a suggestion of a protest, objection, or appeal. The County and the other taxpayers have proceeded under the plan. The point is made only after the county-wide valuations have been fixed and adjusted in the board of equalization, the taxes levied, assessed, and presumably paid by the other taxpayers in the county. Under those circumstances, the Land Bank must assume a very heavy and onerous burden."
The present case does not constitute a direct attack on the scheme of taxation or a suit to prevent the initiation or operation of an illegal scheme. No relief was sought by mandamus or injunction. The taxpayers sat by and allowed the plan to be put into operation without even a suggestion of a protest, objection, or appeal. Other taxpayers have proceeded under the plan.
The Court, in State v. Federal Land Bank of Houston, supra, also said:
"The government does not lose its right to taxes on one parcel of property by reason of the failure of its officers, either negligently or designedly, to assess other property that is likewise taxable. Once such a plan is put into effect, the litigant may defeat the recovery of taxes only to the extent that they are excessive; and he must prove the excessiveness. City of Arlington v. Cannon, 1954, 153 Tex. 566, 271 S.W.2d 414. When the attack is made because the taxing authority has followed an arbitrary plan or scheme, the taxpayer, to prevail, must show not only that the plan was an arbitrary and illegal one but also that the use of the plan worked to his substantial injury. State v. Whittenburg, 1954, 153 Tex. 205, 265 S.W.2d 569."
Appellees have failed to prove by sufficient evidence that their taxes were substantially higher by virtue of the omission of the taxable personal property and the failure to assess such property at its market value. The burden was on them not only to prove excessiveness but the extent thereof. City of Arlington v. Cannon, supra; Whelan v. State, 1955, 155 Tex. 14, 282 S.W.2d 378; State v. Whittenburg, 1954, 153 Tex. 205, 265 S.W.2d 569; City of Orange, Texas v. Levingston Ship Building Co., 5 Cir. 1958, 258 F.2d 240. The jury finding that the scheme employed by appellants for taxing property resulted in substantial injury to appellees is not supported by sufficient evidence.
The jury also found that the failure of appellants during the years 1951 through *590 1961 to collect or assess taxes, or assess or collect taxes on bank accounts, savings and loan accounts, furniture, jewelry, stocks and bonds, and clothing, did not result in substantial injury to appellees, and that if the City had during such years attempted to assess and collect taxes, and had collected taxes on such personal property, appellees' tax bill would not have been lessened. The answers of the jury to these last two issues support appellants' contention that appellees failed to prove that they had suffered substantial damage as a result of the omission of appellants to assess and tax personal property generally within the jurisdiction of the taxing authorities. The findings of the jury to these two issues seem in conflict with the finding that the scheme employed by appellants resulted in substantial injury to appellees, since the main basis for the finding that the scheme employed was not uniform, fair and equal, apparently was the failure of appellants to assess and collect taxes on personal property.
The parties entered into a stipulation to the effect that appropriate officials of the various 66 banks and 16 savings and loan associations in Houston would, if present, testify as to the total amounts of money on deposit in their respective institutions as of December 31 of the years 1951 through 1961; and that other competent witnesses would testify as to the retail value of furniture, jewelry, clothing, stocks and bonds, and other personal property in Houston and owned by citizens of Houston during such years; and that such property was omitted from the tax rolls, and no effort was made to assess or collect taxes thereon; and that had such property not been omitted therefrom there would have been an increase in tax revenue available in an amount in excess of $50,000,000.00 for "a total of the years mentioned, 1951-1961."
It was not shown how much additional tax money would have been available any one year. Only the total for the eleven-year period was given and such eleven-year period included two years for which the City and School District were not seeking to recover any taxes. The record shows the tax delinquency of appellees for each year in question, and also the amount of the City budget for each of such years, but it fails to show the amount of the School District budget for any of such years. Nor does the record show how much additional money would be available each of such years for City and School District maintenance and bond service. Furthermore, there is no evidence as to the amount or value of taxable bank accounts, savings, furniture, stocks, bonds and other personal property that may have been owned by appellees, nor of the amount of additional taxes that appellees might have been required to pay each year had all of their own personal property and all personal property, except that exempt, been taxed as they contend it should have been.
In Whelan v. State, supra, the court stated that petitioners had rendered their "cash on hand" each of the years in question. The court further said: "We cannot assume that the amount so rendered did not include money on deposit in banks. If it did not that fact may be developed on another trial." We are of the opinion that since the burden of proof was on appellees to establish substantial injury, it devolved upon them to show that had the correct scheme of taxation been employed, and had all of their personal property and all other taxable personal property been assessed and taxed each of such years, the amount of their tax would have been decreased each year in some definite amount. This they failed to do. City of Orange, Texas v. Levingston Ship Building Co., supra. Moreover, they presented no testimony or evidence as to the true value of their property or that other comparable property was assessed at a lower valuation than theirs, or what their tax bill would have been had another system of rendering and assessing property been used, or how much of their taxes were not owing and should be avoided. Then, too, the jury found against appellees on their contention that the failure to assess and collect taxes *591 on personal property resulted in substantial injury to them, or that their tax bill would have been lessened by assessing personal property.
The law places a most onerous burden upon the taxpayer in cases like this. In City of Arlington v. Cannon, supra, our Supreme Court said: "The difficulties to be encountered in making the necessary proof as a basis for relief is the penalty the taxpayer must pay for sitting idly by while taxing authorities put into effect a plan of taxation which deliberately permits certain classes of property to escape taxation."
The jury found that appellants' assessed taxes for the years 1951, 1953 and 1954 were on more than the 10.143 acres owned by appellees, and that for the years 1956 to 1960, inclusive, were on more than the 8.492 acres owned by them. The evidence is insufficient to support such findings. As hereinabove stated, appellants made out a prima facie case for the recovery of the delinquent taxes in question. They alleged in their petition the correct amount of acreage upon which taxes had been assessed for each of the years involved and the amounts of delinquent taxes. Evidence was introduced showing that the taxes due were on the correct amount of acreage alleged and that suit was brought to collect delinquent taxes on the correct amount of acreage owned by appellees for the years the taxes were delinquent. The testimony of Richard G. Parks, Tax Assessor-Collector of the City of Houston and the Houston Independent School District, shows the acreage owned by appellees which was assessed during each of the years in question. There is no sufficient evidence or contention by appellees that they did not own such acreage for such years as testified to by Mr. Parks.
It was error to tax court costs against appellants. Under Articles 7297, 7333 and 7343, Vernon's Annotated Texas Statutes, costs accruing in a suit to recover delinquent taxes may not be charged against the taxing authority. Electra Independent School District v. W. T. Waggoner Estate, 1943, 140 Tex. 483, 168 S.W.2d 645; Lubbock Independent School Dist. v. Owens, Tex.Civ.App., 217 S.W.2d 186, writ ref.; Grant v. Ellis, Tex.Com.App.1932, 50 S.W.2d 1093. We have been furnished a certified copy of an order of the Supreme Court retaxing the costs of court in Whelan v. State, supra, and ordering that the petitioners, D. E. Whelan and R. J. Whelan, and their surety, pay all court costs expended in the Supreme Court, Court of Civil Appeals, and District Court.
Appellants contend that the trial court erred in refusing to award attorney's fees in the amount of 5% sought by appellants. The Charter of the City of Houston, which was offered in evidence, Article III, Sec. 8, expressly sets the attorney's fees sought by appellants at 5% of the judgment and directs that such amount shall be taxed as costs against the property upon which the tax is due and unpaid. Article 7345b, Sec. 6, however, under which this suit was brought and which is controlling, provides in effect that all court costs in any suit brought by or in behalf of any taxing unit for delinquent taxes, together with such reasonable attorney's fees as may be incurred, not exceeding 10% of the amount sued for, such attorney's fees to be subject to the approval of the court, shall be chargeable as court costs.
Appellants offered no proof as to the amount of a reasonable attorney's fee, and no objection was made to the court's charge for failing to submit such issue to the jury. They, therefore, waived attorney's fees. In view of the fact that this case must be reversed for another trial, it is pointed out that the question of the amount and reasonableness of the attorney's fees should have been submitted to the jury. Holstein v. Grier, Tex.Civ.App., 262 S.W.2d 954; Gulf Paving Co. v. Lofstedt, 144 Tex. 17, 188 S.W.2d 155; Article 7345b, Sec. 6, V.A.T.S.
Reversed and remanded.
*592 On Motions for Rehearing
Appellants have called our attention to the fact that we have reversed the entire judgment of the trial court, including the part thereof in favor of appellants for delinquent taxes for the year 1962, although such part of the judgment is not complained of or assigned as error by either party.
Our opinion is, accordingly, corrected and reformed so as to reverse the judgment of the trial court and remand the cause, except that part of the judgment in favor of appellants for taxes for the year 1962, penalties and interest thereon and foreclosure of their tax lien therefor, which part of the judgment will remain undisturbed.
Appellees' motion for rehearing is overruled. Appellants' motion for rehearing is in part granted and in part refused.
| {
"pile_set_name": "FreeLaw"
} |
79 F.3d 1156
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
CASCADE ENERGY & METALS CORPORATION; Telegraph GoldCorporation, for itself and the successor ininterest to Telegraph Resources, Inc., Appellant,v.Jeffrey G. BANKS; Gold Technics Dfts; Kenneth Caldwell;Elmer J. Davis; David G. Henry; Roger A. Mann; MannCaldwell Partnership; Robert A. Nickerson; Peter P.Samarin; Patricia Stoltenberg; Herbert W. Stoltenberg;Edwin Stoltenberg; Delford R. Ashley; George Slater;Patricia Slater; Robert Doub; Sam Hambarian; AlyceHambarian; Lionel Ascher; Samuel Harmatz; BernardHodowski; A.C. Nejedly; Chris Waugh; H.E. Moses; R.E.Donahey; Grace V. Duncan; Eliot Weinberg; Harmatz andHodowski, a California partnership, Appellees.
No. 95-4045.
United States Court of Appeals, Tenth Circuit.
March 21, 1996.
Before ANDERSON, KELLY and HENRY, Circuit Judges.
ORDER AND JUDGMENT1
1
This appeal arose out of an adversary proceeding brought by Appellant Cascade Energy and Metals Corporation ("Cascade") in its Chapter 11 bankruptcy case. Cascade and Telegraph Gold Corporation ("Telegraph") sought declaratory relief and money
2
damages resulting from the recording in the county records of the final judgment in Cascade Energy & Metals Corp. v. Banks, et al., No. C82-1223J (D.Utah 1985), entered September 16, 1985. This final judgment was recorded twice with the County Recorder of San Bernardino County, California, without first being registered in a federal district court for the district which includes San Bernardino county, California as required by 28 U.S.C.1962 & 1963.
Background
3
In this adversary proceeding, Cascade sought to have the bankruptcy court declare that the recording of the final judgment in San Bernardino county without first registering it in the appropriate federal district court did not create an enforceable lien on Cascade's property. The bankruptcy court granted partial summary judgment, and the district court affirmed, in favor of Cascade declaring that appellees' improper recording of the judgment in San Bernardino county was ineffective to create a lien on Cascade's property. Appellees have not sought review of this order by this Court. Subsequently, appellees moved the bankruptcy court for summary judgment on all of Cascade's remaining claims in the adversary proceeding.2 The two improper "recordings of the Final Judgment in the Cascade action [were] the basis, in whole or in part, of nearly every claim and cross-claim asserted in [the adversary] proceeding." Aplee. Supp.App. 1, 7.
4
The bankruptcy court granted appellees' motion for summary judgment, finding that there existed no issue of material fact with respect to Cascade's claims; that California law governed all claims based upon the recording of the final judgment in the Cascade action and that under California law appellees' recordation was subject to an absolute judicial privilege under Cal. Civ.Code 47(b)(2); and that all claims in the adversary proceeding not based on the recording of the final judgment in the Cascade action were barred under the theories of statute of limitations, res judicata, and collateral estoppel, or were subject to dismissal for lack of subject matter jurisdiction. Aplee. Supp.App. 1-11. The district court affirmed the bankruptcy court's entry of summary judgment. We exercise jurisdiction under 28 U.S.C. 158(d) & 1291 and affirm.
Discussion
5
We review the bankruptcy court's grant of summary judgment de novo, applying the same legal standard used by the bankruptcy court and the district court, namely, Fed.R.Civ.P. 56(c). Stat-Tech Int'l Corp. v. Delutes (In re Stat-Tech Int'l Corp.), 47 F.3d 1054, 1057 (10th Cir.1995); Fed. R. Bankr.P. 7056. Summary judgment is appropriate if "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Once the moving party establishes beyond a reasonable doubt that it is entitled to summary judgment, the burden shifts to the nonmoving party to establish a genuine issue of material fact requiring submission of the case to a jury. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). We find that the appellants have failed to demonstrate the presence of any genuine issue of material fact which would preclude summary judgment. The arguments advanced by appellants are primarily legal in nature, regarding the nature and effects of appellees' recording of the final judgment. Moreover, appellants' other claims involve the application of legal principles, including statute of limitations, res judicata, collateral estoppel, and subject matter jurisdiction.
A.
6
Appellants first argue that California's absolute judicial privilege does not apply to this dispute because California law does not govern this action. A federal court must apply the law of the forum state in resolving conflict of laws issues. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under Utah law, the "most significant relationship" test of the Restatement (Second) of Torts governs choice of law issues. Rocky Mountain Helicopters, Inc. v. Bell Helicopter Textron, Inc., 24 F.3d 125, 128 (10th Cir.1994); Forsman v. Forsman, 779 P.2d 218, 219-20 (Utah 1989). Under the "most significant relationship" test, we examine the following factors and accord them weight based on their relative importance to the matter at hand: the state where the injury took place; the state where the conduct causing the injury took place; the domicile, residence, place of incorporation and principal place of business of the parties; and the state where the relationship between the parties is based. Rocky Mountain Helicopters, 24 F.3d at 128; Forsman, 779 P.2d at 219.
7
Based on these factors, California clearly has the most significant relationship to the claims arising from the recording of the Cascade final judgment and appellees' claim of judicial privilege. Cascade is a Nevada corporation; the Telegraph gold mine operated by Cascade is located in California; the recording of the final judgment, which allegedly resulted in damage to appellants, took place in California; and the appellees are all residents of California. Utah's only connections to the dispute are that Cascade's corporate offices are in Utah, and Cascade's bankruptcy action was brought in federal court in Utah. In our opinion, the factors favoring the application of California law clearly are the most significant, and the bankruptcy court correctly applied California law.
B.
8
Under California law, the recording of the final judgment in San Bernardino county was subject to California's absolute judicial privilege, and summary judgment was therefore properly granted. Under Cal. Civ.Code 47(b)(2), "[a] privileged publication or broadcast is one made ... [i]n any ... judicial proceeding." The definition of "privileged publication" under the statute "has been given broad application.... [T]he privilege is now held applicable to any communication, whether or not it amounts to a publication, and all torts except malicious prosecution." Silberg v. Anderson, 786 P.2d 365, 368 (Cal.1990) (in bank) (citations omitted). In Albertson v. Raboff, 295 P.2d 405 (Cal.1956) (in bank), the California Supreme Court held:
9
[T]he privilege applies to any publication ... that is required by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is invoked.... If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches.
10
Id. at 409 (citations omitted).
11
Based on the requirements set out in Silberg and Albertson, the privilege clearly applies to the recording of the final judgment in the Cascade action. First, the recording of the judgment was made in a judicial or quasi-judicial proceeding, i.e. the enforcement of an out-of-state judgment. Silberg, 786 P.2d at 369; see also Boston v. Nelson, 278 Cal.Rptr. 386, 388 (Cal.App.1991) (California enforcement action of Hawaii judgment meets requirements of 47(b)(2)). Despite Appellants' contentions, no malicious prosecution claim, under which the privilege would not apply, was alleged. II Aplt.App. 524-33 (Second Amended Complaint). Their ambiguous assertion of a defense to appellees' claim of privilege does not amount to "bringing an action" as required by California malicious prosecution law.
12
Second, appellees who recorded the judgment, and thus made the communication, were litigants in the action, and the communication was made "to achieve the objects of the litigation." Silberg, 786 P.2d at 369. Indeed, the recording of the judgment is the very object of the proceeding itself. Appellants' argument that the improper recording of the judgment makes the action one which was not "permitted by law" under Albertson is unavailing. See Wilton v. Mountain Wood Homeowners Ass'n, 22 Cal.Rptr.2d 471, 474 (Cal.App.1993) (holding that the filing of false and ineffective liens were nonetheless "authorized by law" and privilege applied); see also Adams v. Superior Court, 3 Cal.Rptr.2d 49, 53 (Cal.App.1992) ("Any doubt as to whether the privilege applies is resolved in favor of applying it."). And, finally, the recording had "some connection or logical relation to the action"--it is the necessary action for seeking enforcement of the final judgment in California. Silberg, 786 P.2d at 369.
13
Appellants argue that 47(b)(2) does not apply in this case because "[t]o come within the privilege the appellees must have made the recording in a judicial proceeding ... within the State of California." Aplt. Br. at 29-30. They contend there is no precedent "in which the California privilege statute has been applied to the recording of a foreign judgment which had not first become subject to a legal action within the State of California either by registering it or having it docketed in a court in California." Aplt. Br. at 30. Appellants are mistaken. First, the express language of the statute states no requirement that the privilege only applies to actions which are docketed in California; the statute speaks more generally of "any judicial proceeding." Second, the case law in both California and other jurisdictions shows that the California judicial privilege extends to proceedings outside of California. See Nelson, 278 Cal.Rptr. at 386-87 (holding that 47(b)(2) applied to the recording of a foreign judgment in California); AroChem Int'l, Inc. v. Buirkle, 968 F.2d 266, 269-71 (2d Cir.1992) (holding that action pending in federal court in Connecticut did not preclude application of California judicial privilege to defamatory statements made in California). We hold, as a matter of law, that appellees recording of the Cascade judgment in San Bernardino county was subject to the absolute judicial privilege of Cal. Civ.Code 47(b)(2).
C.
14
Appellants also contend that the bankruptcy court and the district court erred in dismissing Telegraph's crossclaims in the adversary proceeding that were unrelated to the administration of the bankruptcy estate. The bankruptcy court, however, lacked subject matter jurisdiction to decide collateral matters between third parties to a bankruptcy proceeding. First State Bank & Trust Co. v. Sand Springs State Bank, 528 F.2d 350, 353 (10th Cir.1976). Therefore, those claims not related to the recording of the final judgment were properly dismissed.
15
AFFIRMED.
1
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
2
Appellees moved for summary judgment on Cascade's claims seeking damages for breach of contract; fraud; slander of title; tortious interference with reorganization; and tortious interference with prospective economic gain. III Aplt.App. 1026, 1028
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-7327
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHONDU MAURICE DAWSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:04-cr-00305-F-2; 5:12-cv-00292-F)
Submitted: February 27, 2014 Decided: March 4, 2014
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Dismissed by unpublished per curiam opinion.
G. Alan DuBois, Assistant Federal Public Defender, Devon L.
Donahue, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North
Carolina, for Appellant. Kimberly Ann Moore, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shondu Maurice Dawson seeks to appeal the district
court’s order denying relief on his 28 U.S.C. § 2255 (2012)
motion. The order is not appealable unless a circuit justice or
judge issues a certificate of appealability. 28 U.S.C.
§ 2253(c)(1)(B) (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 motion states a
debatable claim of the denial of a constitutional right. Slack,
529 U.S. at 484-85.
We have independently reviewed the record and conclude
that Dawson has not made the requisite showing. Accordingly, we
deny a certificate of appealability and dismiss the appeal. We
dispense with oral argument because the facts and legal
2
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
DISMISSED
3
| {
"pile_set_name": "FreeLaw"
} |
543 U.S. 846
GUTIERREZ-BARAJASv.UNITED STATES.
No. 03-10706.
Supreme Court of United States.
October 4, 2004.
1
C. A. 9th Cir. Certiorari denied. Reported below: 88 Fed. Appx. 222.
| {
"pile_set_name": "FreeLaw"
} |
203 F.Supp.2d 383 (2002)
AMERICAN CELLULAR NETWORK COMPANY, LLC, Plaintiff,
v.
UPPER DUBLIN TOWNSHIP and Upper Dublin Township Zoning Hearing Board, Defendants.
Civil Action No. 01-994.
United States District Court, E.D. Pennsylvania.
May 20, 2002.
William E. Benner, Doylestown, PA, for Plaintiff.
George H. Knoell, III, Norristown, PA, for Defendants.
MEMORANDUM
DuBOIS, District Judge.
I. INTRODUCTION
American Cellular Network Company, LLC, d/b/a Cingular Wireless ("American Cellular"), is a provider of personal wireless telecommunications services. This litigation involves American Cellular's efforts to construct an eighty-foot monopole cell site in the Maple Glen section of Upper *384 Dublin Township ("the Township") so as to remedy what American Cellular perceives as a significant gap in its cellular services. Construction of the cell cite in the desired location required American Cellular to apply for variances from certain provisions of the Township Zoning Ordinance ("Zoning Ordinance"). After a one-day hearing, during which American Cellular presented testimony in support of its application, the Township Zoning Hearing Board ("the Board") denied American Cellular's requested variances. Thereafter, American Cellular filed the present action against the Board and the Township (identified collectively as "defendants"), alleging that the Board's rejection of American Cellular's requested zoning variances violated the Telecommunications Act of 1996, 47 U.S.C. § 332(c)(7) ("TCA").
Presently before the Court are American Cellular's Motion for Summary Judgment (Document No. 7, filed June 4, 2001), and Motion for Summary Judgment of Defendants Upper Dublin Township and Upper Dublin Township Zoning Hearing Board (Document No. 8, filed July 6, 2001). As memorialized in the Court's May 11, 2001, Scheduling Order, the parties agree "that the case could be resolved by the filing of a motion or motions for summary judgment." For the reasons stated in this Memorandum, the Court grants American Cellular's Motion and denies the Motion of Upper Dublin Township and Upper Dublin Township Zoning Hearing Board.
II. BACKGROUND
In this section, the Court sets forth a summary of the facts and procedural history concerning American Cellular's application to the Board for zoning variances. The summary is derived from the record of the January 29, 2001, hearing before the Board ("R."), the exhibits introduced at that hearing, and the Board's "Findings of Fact, Opinion and Order" ("Opinion"), all of which are appended to either American Cellular's Motion or defendants' Motion.[1] Additional facts are set forth in the Court's analysis of American Cellular's substantive claims. See infra § IV.A.1.
As a commercial provider of wireless telephone services, American Cellular conducts regular examinations of the strength of its cellular signal. R. at 92. In one such series of examinations, American Cellular identified the Maple Glen section of Upper Dublin Township as an area in which its signal was sufficiently inadequate so as to prevent its subscribers in that area from sustaining uninterrupted cellular telephone calls.[2] R. at 92-98. Maple Glen is defined by the Township boundary lines to the west and north, Susquehanna Road to the south, and Dreshertown Road to the east. R. at 189-90. To remedy its deficient cellular service in Maple Glen, American Cellular investigated various properties in that area for the construction of a new cell site containing antennas for receiving and transmitting signals to its subscribers. R. at 15 16; Ex. A-1.
On July 24, 2000, American Cellular entered into a License Agreement, Ex. A-1, with Mario DiFabio allowing American Cellular to use DiFabio's property at 633 Welsh Road for the construction of a cell *385 site. R. at 16. DiFabio's property is located in the commercial center of Maple Glen the triangle of land surrounded by Welsh Road, Limekiln Pike, and Norristown Road. R. at 190; see also Ex. A-15 (map portraying, inter alia, Maple Glen section of Upper Dublin Township). The License Agreement permitted American Cellular to construct behind the one-story building on DiFabio's property a 225-square-foot compound for sheltering radio and electronic equipment, and an eighty-foot monopole. R. at 25-26; Ex. A-1, Lease Exhibit "B."
American Cellular's plans for the cell site incorporated design techniques intended to "stealth" the site and reduce its visual obtrusiveness. R. at 25-26. Specifically, American Cellular planned to use a slender rust-colored pole that would blend into the undeveloped woods abutting the rear of the DiFabio property. R. at 25. American Cellular was, alternatively, willing to use a "pine tree pole." R. at 26. The site's antennas at the top of the pole were not to be supported by a triangular platform, but, rather, were designed to be flush with the pole. R. at 25. As for the equipment shelter, American Cellular planned to screen it with a chain-link fence which, in turn, would be screened by landscaping. R. at 26.
The DiFabio property lies in an area of the Township zoned "SC," for a "Shopping Center" district. R. at 23; Zoning Ordinance § 255-8.[3] There is a building on the property which houses a tailor shop and a barber shop. R. at 16. Although American Cellular's proposed cell site is a permitted use in the SC district under § 255-30.1 of the Ordinance, which governs "[c]ellular communications antennas," its proposal conflicted with the Ordinance's dimensional requirements and required a variance. Specifically, American Cellular's planned structures extended to within sixteen feet of the rear boundary of the DiFabio property, Ex. A-4, and violated the Zoning Ordinance's required forty-foot setback for cellular communications antennas. Zoning Ordinance § 255-30.1.D(2)(c). In planning the construction of the cell site, American Cellular was aware that it was not in compliance with the setback requirement; it believed, however, that the planned location was the most appropriate means of complying with another provision of the Zoning Ordinance, the requirement in § 255-30.1.B(6) that "[a]ll wireless communications facilities shall be of stealth design." R. at 24, 50.
In light of the setback requirement, on September 13, 2000, James R. Rodgers, on behalf of American Cellular, submitted an Application to the Board seeking an "Interpretation of Stealth Provisions" and a variance from the setback requirements. Ex. B at 1. On a section of the pre-printed Application reading "I/We believe that the Zoning Board should approve this request because," Rodgers handwrote as follows:
1. American Cellular Network Corp. d/b/a CellularOne[4] is required by the FCC to provide service in its licensed area. The Maple Glen area of Upper Dublin does not have CellularOne service, nor does it roam on any other service provider's system.
2. Because the property at issue contains commercial improvements, locating the antenna support structure in strict compliance with the ordinance may interfere with the safe and efficient internal traffic circulation. By placing the antenna support *386 structure as indicated on the companion zoning drawings to the rear of the property in close proximity to trees, CellularOne has substantially lessened the visual impact from the proposed installation.
Ex. B at 2 (emphasis supplied).
In response to the Application, on October 17, 2000, Township Director of Code Enforcement Richard D. Barton sent a letter to counsel for American Cellular. Ex. A-4. In the letter, Barton informed American Cellular than an "additional variance" would be required. Specifically, Barton cited Zoning Ordinance § 255-30.1.B(1), which provides that a wireless communications facility is not permitted "in a residential zoning district or within 500 feet thereof." American Cellular's proposed location, Barton wrote, "is less than 500 feet from the township's MHD Mobile Home District, which the township considers to be a residential district." Ex. A-4.
The Mobile Home District referenced in Barton's letter comprises the undeveloped, wooded lot abutting the rear of the DiFabio property. R. at 186. The entire area zoned as a Mobile Home District is owned by Acme Markets. Id. When American Cellular executed the License Agreement with DiFabio, it believed that its planned site would be in compliance with the 500-foot residential setback rule because it believed "that the Mobile Home District is technically not classified as a residential district in the ... Zoning Code." R. at 23.
Upon receipt of Barton's letter, American Cellular filed an amendment to its Application "contend[ing] that the Director of Code Enforcement erred when he classified the MHD Mobile Home District as a residential district." Ex. D. As supporting grounds for this argument, American Cellular stated that "Section 255-8 of the Zoning Code ... specifically identifies the zoning districts of A, A-1, A-2, B, and C as `residential districts,'" but the section "does not include the MHDMobile Home District as a `residential district.'" Id. In the event that the Board agreed with Barton's conclusion, American Cellular further amended "its Zoning Hearing Board application to request a variance from Section 255-30.1(B)(1) to authorize a wireless facility within 500 feet of a residential district." Id.
On January 29, 2001, American Cellular presented evidence to the Board in support of (1) its request for a variance from the forty-foot setback requirement; (2) its argument that Barton incorrectly identified the Mobile Home District as "residential"; and (3) in the event the Board rejected its argument as to the classification of the Mobile Home District, its request for a variance from the 500 foot setback from a residential district. Additionally, American Cellular presented evidence in support of its claim that a "significant gap" in cellular service existed in Maple Glen evidence that a gap existed not only in American Cellular's service, but also in the networks of all five other major cellular providers servicing the Township.
At the conclusion of the hearing, the six-member Board voted unanimously to reject all three components of American Cellular's Application. R. at 224-28. The Board subsequently issued written Findings of Fact and an Opinion. As to the classification of the Mobile Home District, the Board concluded that because "[b]oth by common usage and by definition in the Zoning Ordinance, a mobile home is a residence .... a district containing mobile homes is a residential zoning district in the eyes of the Board." Opinion at 5. The Board then stated that it denied both requested variances because (1) the DiFabio property "is in fact being used for its zoned purposes with the existence of two *387 operating business and their associated parking facilities," and (2) American Cellular's evidence that, in some areas of the Township, no more than ninety percent of its subscribers had "satisfactory service," did not amount to a hardship. Opinion at 5-6.[5] The Board did not specifically decide whether American Cellular had established a "significant gap" in cellular service, but did state that "[i]t would appear that there is very close to adequate coverage of the Township by some company even by [American Cellular's] standards." Id.
In the action now before the Court, American Cellular argues that the Board's decisions constituted a violation of the TCA.[6] In its first three arguments, American Cellular argues that none of the Board's three conclusions were supported by "substantial evidence." As a fourth argument, American Cellular asserts that the Board's decision had the effect of prohibiting cellular service by allowing a "significant gap" in cellular service to persist in the Township. Before addressing American Cellular's specific arguments, the Court briefly discusses the legal framework of the TCA.
III. TELECOMMUNICATIONS ACT OF 1996
The TCA has been described as an "overhaul of the federal regulation of communications companies." Omnipoint Communications Enters. v. Newtown Township, 219 F.3d 240, 242 (3d Cir.2000) ("Newtown Township") (quotation omitted). In enacting the TCA, Congress sought "to create `a pro-competitive, de-regulatory national policy framework designed to rapidly accelerate private sector deployment of advanced telecommunication and information technologies and services to all Americans by opening all telecommunications markets to competition.'" Nextel West Corp. v. Unity Township, 282 F.3d 257, 264 n. 6 (3d Cir.2002) (quoting H.R. Conf. Rep. No. 104-458 at 113 (1996), reprinted in 1996 U.S.C.C.A.N. 124). Although the TCA "expressly preserves the traditional authority enjoyed by state and local government to regulate land use and zoning," APT Pittsburgh Ltd. v. Penn Township, 196 F.3d 469, 473 (3d Cir.1999) ("APT") (citing 47 U.S.C. § 332(c)(7)),[7] at *388 the same time, it places limits on "the ability of local authorities to regulate and control the expansion of telecommunications technologies" by allowing courts to "review telecommunication zoning denials more closely than standard zoning decisions." Newtown Township, 219 F.3d at 242-43. The limits on local zoning authority are both procedural and substantive in nature.
One procedural limitation establishes the quantum of evidence a local zoning authority must cite in support of a denial with respect to telecommunications facilities: "Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record." 47 U.S.C. § 332(c)(7)(B)(iii). An important substantive limitation in the TCA covers the quality of wireless service available in a zoning authority's jurisdiction: "The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof.... shall not prohibit or have the effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). The TCA further provides that any party "adversely affected" by a local zoning authority's actions in violation of these provisions "may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction." 47 U.S.C. § 332(c)(7)(B)(v).
In this case, American Cellular raises arguments under both of the above limitations of local zoning authority.[8] Procedurally, American Cellular argues that none of the Board's decisions rejecting American Cellular's argument that the Mobile Home District is not "residential" and denying its two requested variances were supported by substantial evidence. Substantively, American Cellular argues that the Board's actions "have the effect of prohibiting the provision of personal wireless services."
Upon its review of the record and the parties' arguments, the Court concludes that American Cellular has indeed proven a substantive violation of the TCA that the Board's actions "have the effect of prohibiting the provision of personal wireless services." The Court will therefore not consider American Cellular's substantial evidence arguments,[9] but, instead, will proceed to a discussion of American Cellular's "effect of prohibiting" claim.
IV. AMERICAN CELLULAR'S "EFFECT OF PROHIBITING" CLAIM
The TCA "does not define what constitutes prohibitive effect." Nextel, 282 F.3d at 265. However, the Third Circuit, in a series of recent rulings, has established an analytical framework for evaluating whether a cellular provider has demonstrated a violation of the TCA's "effect of prohibiting" limitation on local zoning authority. *389 That analytical framework consists of a two-pronged inquiry.
First, a cellular service provider "must show that its facility will fill an existing significant gap in the ability of remote users to access the national telephone network." APT, 196 F.3d at 480 (emphasis added). Because the "relevant gap" in the significant gap inquiry "is a gap in the service available to remote users," providers must "include evidence that the area the new facility will serve is not already served by another provider." Id. The Third Circuit has further explained that a significant gap in wireless services exists "when a remote user of those services is unable either to connect with the land-based national telephone network, or to maintain a connection capable of supporting a reasonably uninterrupted communication." Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho-Kus, 197 F.3d 64, 70 (3d Cir.1999) ("Ho-Ho-Kus").
The second prong of the inquiry under the TCA's "effect of prohibiting" provision requires a cellular provider to "show that the manner in which it proposes to fill the significant gap in service is the least intrusive on the values that the denial sought to serve." APT, 196 F.3d at 480. To succeed on this prong of the inquiry, the cellular provider must show "that a good faith effort has been made to identify and evaluate less intrusive alternatives, e.g., that the provider has considered less sensitive sites, alternative systems designs, alternative tower designs, placement of antennae on existing structures, etc." Id.
With the above discussion of the TCA serving as a backdrop, the Court now turns to the merits of American Cellular's "effect of prohibiting" claim by addressing, in turn, the required two prongs. The Court's review of that claim is de novo. See APT, 196 F.3d at 475.
A. SIGNIFICANT GAP
Cases in this Circuit evaluating whether a cellular provider has established a "significant gap" demonstrate that determining whether a gap in service is significant involves at least[10] two sub-questions. The first question is a qualitative one. The Court must ask: has the cellular provider established that the quality of cellular service is sufficiently poor so as to rise to the level of a "significant" gap? See Omnipoint Communications Enters. v. Zoning Hearing Bd. of Easttown Township, 189 F.Supp.2d 258, 263-65 (E.D.Pa. 2002) (Hart, M.J.) ("Easttown") (analyzing number of dropped calls, instances of no service, and signal strength); Cellular Tel. Co. v. Zoning Bd. of Adjustment of Borough of Harrington Park, 90 F.Supp.2d 557, 565 (D.N.J.2000) ("Harrington Park") (analyzing percentage of dropped calls). The second question relates to the scope of the gap that is, how many users are affected by the gap, or how large an area is in the gap. The Court must ask: has the cellular provider established that the purported gap in service affects a large enough number of users so as to constitute a "significant" gap? See Ho-Ho-Kus, 197 F.3d at 70 n. 2 (noting that "it matters a great deal ... whether the `gap' in service merely covers a small residential cul-de-sac or whether it straddles a significant commuter highway or commuter railway"); see also Niehaus, 77 Notre Dame L.Rev. at 659 (noting that "courts have attempted to differentiate a significant gap from a mere dead spot").
*390 Upon its review of the evidence, the Court concludes that this case presents both qualitative and scope questions. Before discussing those questions more thoroughly, the Court sets forth all of the evidence presented by the parties on the significant gap issue.
1. Significant Gap Evidence
a. Evidence presented to the Board
To establish the presence of a significant gap in cellular coverage in Maple Glen, American Cellular relies on the testimony before the Board of its radio frequency engineer and manager, Jay Hettler.[11] The most relevant of Hettler's testimony for purposes of American Cellular's significant gap argument concerns a "drive test" that he conducted in Maple Glen on November 6, 2000. Hettler explained that to conduct the "drive test," he drove a "vehicle which has all of our competitors' phones and our phone feeding a computer, with a GPS system, totally automated, which makes call after call, and records the whether the call went through or not." R. at 111-12. The drive test also examined whether the speech was "garbled" and "records signal strength." R. at 112. In addition to a phone connected to American Cellular's service, Hettler's drive test involved phones connected to the services of all five other major service providers covering the Township: AT & T Wireless, Nextel, Sprint, Verizon, and VoiceStream. Id.
After conducting the drive test, Hettler produced six computer-generated maps of the Maple Glen area, one for each different cellular service provider. Exs. A 10, A 11, A 14.[12] Superimposed on the maps' displays of the major roadways running through Maple Glen are small circles filled with one of four colors green, yellow, red, or black. Each color represents a different level of "reliability" of cellular service, and, as such, portrays the reliability of each cellular provider's service in Maple Glen. Hettler explained that a green circle represents "reliable coverage"; a yellow circle represents "unreliable coverage"; and a red circle represents "really bad" coverage. R. at 113.[13]
In his testimony, Hettler further explained the information to be gleaned from the maps by quantifying "unreliable" service. Yellow circles, which represent such "unreliable" service, mean that "approximately 10 percent of the time," a call "cannot go through," the call is "interrupted," the call is "dropped," or voices on the call are "totally unintelligible." R. at 113-14. A red circle means that a cell phone user would "not [be] able to make a call whatsoever." R. at 113.
Hettler testified that his analysis of the maps led him to conclude that all six cellular providers have "unreliable service" in a half-mile stretch of Norristown Road near the Maple Glen commercial center. R. at 119. Hettler explained that it was particularly meaningful to find this confluence of unreliable service after a test conducted in November, when the leaves are "off the trees." R. at 112. Cellular signals are *391 stronger at such a time, Hettler testified, than "when the leaves are on the trees." R. at 112. In addition to presenting evidence concerning the results of the drive test, American Cellular introduced Hettler's testimony and documentary evidence about daily traffic patterns on Norristown Road to support its argument that a large number of cellular users are affected by the unreliable service in the half-mile stretch referenced above. R. at 105, 127; Ex. A-9.
At the hearing before the Board, no rebuttal evidence was presented with respect to Hettler's testimony as to the reliability of service on the relevant half-mile portion of Norristown Road. The Board's findings of fact reflected the undisputed evidence, as it found: "There is a stretch of approximately one-half mile on Norristown Road where all six carrier [sic] have what the Applicant regards as unreliable service." Opinion at 3.
Notwithstanding the fact that the Board did not identify any factual disputes, the Court concludes that there are two factual disputes presented in the record: one with respect to the qualitative question on the sufficiency of cellular service, and another concerning the scope of the purported gap. These factual disputes were the subject of further development of the record after the parties filed their summary judgment motions.
b. Further development of the record before this Court
The factual dispute on the qualitative issue arises from defendants' submission of a Supplemental Memorandum of Law (Document No. 11, filed September 24, 2001) with attached affidavit which defendants assert shows that at least one cellular provider, Sprint, has reliable cellular service in the Maple Glen area. To support this conclusion, defendants presented a "propagation report" prepared by Sprint which displayed Sprint's "predicted signal strength" in various parts of Montgomery County. The propagation report lists two different categories: one, identified by green coloring, to show where Sprint predicted that its signal would be received in buildings, and the other, identified by blue coloring, to show slightly weaker signals where Sprint predicted that the signal would not be received in buildings, but that it would be received in cars. On the propagation report, the entire area of Maple Glen is covered by green coloring, meaning that Sprint predicted its signal would be strong enough throughout Maple Glen to be received in buildings.
In response to defendants' additional evidence, American Cellular submitted a Supplemental Memorandum of Law in Opposition to Defendants' Supplemental Memorandum of Law (Document No. 13, filed October 22, 2001), with an attached affidavit of Jay Hettler dated October 15, 2001. In the affidavit, Hettler states that a "propagation report is a computer generated graphic that illustrates predicted coverage from a base station or cell site." Hettler Oct. 15, 2001, Aff. at ¶ 7. Although "propagation reports are generally reliable and serve as a useful tool in radio frequency engineering to predict signal propagation from a cell site," id., "[a] propagation report does not have the same level of accuracy or reliability as an actual drive test." Id. at ¶ 8. Further, Hettler stated, "[a]n actual drive test that measures signal strength like the one that I conducted in the Maple Glen section is more sensitive, more reliable, and is more accurate than a computer generated propagation prediction tool." Id. In light of this view, "[t]here is nothing in the propagation report" to change Hettler's opinion "concerning the actual, measured signal strength for Sprint in the Maple Glen section.... *392 That is, for a half mile section of Norristown Road, Sprint's signal is too weak to allow its subscribers the ability to carry a reliable wireless telephone call." Id. at ¶ 9.
Turning to the factual dispute on the scope question, that dispute arises from the Court's own review of the record. At the hearing before the Board, much of Hettler's testimony focused on the purportedly "unreliable" service on a half-mile stretch of Norristown Road. In support of this testimony, American Cellular presented Exhibit A-9, a "1999 PENNDOT Annualized Average Daily Traffic" report, which identifies the referenced half-mile section of Norristown Road as extending from its intersection with Limekiln Pike in a westerly direction to a point immediately east of its intersection with Butler Pike. Hettler's testimony is fairly interpreted to state that all six cellular providers whose service he tested have "unreliable" cellular service on the entire half-mile stretch of Norristown Road. R. at 119.
The Court's review of Hettler's maps, however, reveals that, for at least three providers, Nextel, Sprint, and VoiceStream, the yellow circles representing "unreliable" service appear on only a small part of the relevant half-mile section of Norristown Road the part immediately west of Limekiln Pike which represents, in the Court's estimation, one-eighth of a mile. See Ex. A-10 (Sprint and VoiceStream); Ex. A-11 (Nextel). The remainder of the half-mile section of Norristown Road for each of these three providers is covered with green circles, representing "reliable" service.
Upon noting these factual disputes and the fact that the Court's May 11, 2001, Scheduling Order did not provide a procedure for resolving them, the Court conducted a telephone conference with counsel for the parties. As a result of that telephone conference, the Court issued its April 22, 2002, Order embodying the parties' agreement that the Court should resolve the aforementioned fact disputes in deciding the motions for summary judgment. Additionally, the Court granted the parties leave to submit additional evidence and supplemental memoranda addressing the factual disputes.
American Cellular submitted a supplemental memorandum (Document No. 15, filed April 26, 2002) and attached an additional affidavit by Jay Hettler dated April 25, 2002, addressing only the factual dispute with respect to the scope of the purported gap in cellular service. In that submission, American Cellular provided an alternative argument[14] that the gap in cellular service is not limited to the half-mile section of Norristown Road, but, rather, that a gap exists throughout Maple Glen. As support for this argument, American Cellular relies on Hettler's statement that:
When I testified before on January 29, 2001, I concentrated my testimony on the one-half mile section of Norristown Road between Butler Pike and Limekiln Pike. In analyzing the drive test data for all six licensed carriers illustrated on Exhibits A-10, A-11 and A-14 ... it is clear that all six carriers have gaps in coverage for a distance of approximately one-half mile along other streets in Maple Glen. For example, AT & T Wireless *393 has poor[15] coverage extending more than one-half mile along Norristown Road, Welsh Road, and Limekiln Pike. Cingular Wireless has poor coverage for more than one-half mile along Limekiln Pike. Verizon has poor coverage for a one-half mile section of Norristown Road and along Limekiln Pike and Tennis Avenue. Nextel has poor coverage along Limekiln Pike. Sprint has unreliable coverage for more than one-half mile along Butler Pike and along Norristown Road east of its intersection with Limekiln Pike. VoiceStream has unreliable and poor coverage along Limekiln Pike for a distance of approximately one-half mile south of Norristown Road.
Hettler April 25, 2002, Aff. at ¶ 10. Defendants, in their responsive submission, do not challenge these factual assertions, but, instead, argue that the purportedly unreliable service in Maple Glen does not rise to the level of a "significant" gap. The Court relies on the record as supplemented in its determination as to which party is entitled to judgment.
2. Legal Analysis
As stated above, the Court's significant gap analysis consists of two questions: a qualitative inquiry and a scope inquiry.
a. Qualitative Inquiry
Hettler testified that all six service providers experienced "unreliable" service in the relevant area and defined "unreliable" as indicating a ten-percent call failure rate. The question the Court must ask, then, is whether a ten-percent failure rate is sufficiently poor service to constitute a significant gap.
Two cases in this Circuit have involved similar analyses. The more recent of the two is Easttown, a case decided by Magistrate Judge Hart of this Court. In that case, Judge Hart considered the expert report of Paul Dugan, a radio frequency engineer for the cellular provider, Omnipoint. Easttown, 189 F.Supp.2d at 263-65. In a drive test similar to that conducted by Hettler in this case, but on different roadways, Dugan tested eight service providers. Id. at 264. In the test, approximately eighty calls were made on each telephone. Id. at 265. Looking to the number of "dropped calls" and "instances where there was no service," the court stated Dugan's test showed that out of eighty calls made on Omnipoint's service, there were eleven dropped calls and thirteen instances of no service a thirty percent failure rate. Id. In sharp contrast, of the 560 calls made with the other seven providers' phones, only eleven calls, or 1.96% of all calls on the other providers' phones, experienced service problems. Id. This evidence, the court concluded, showed "that only one provider, Omnipoint, was incapable of providing reliable service to its customers." Id. Because the significant gap inquiry requires a showing that all providers experience a gap in service, the court held that Omnipoint's claim under the TCA's "effect of prohibiting" provision failed. Id. (citing APT, 196 F.3d at 480).[16]
Harrington Park is the second case involving a similar analysis. In that case, *394 where Cellular Telephone Co. d/b/a AT & T Wireless sought zoning approval for a cellular site in the borough of Harrington Park, testimony established that "five to seven percent of the calls placed in this area are lost." Harrington Park, 90 F.Supp.2d at 565. The court rejected the defendant Zoning Board's argument that this evidence did not establish a significant gap. Id. Rather, "[g]iven `the Telecommunications Act's twin goals of encouraging rapid deployment of new technologies and providing nationwide seamless cellular service to the public,'" the court concluded "that a loss of five to seven percent is a significant gap." Id. (quoting Ho-Ho-Kus, 197 F.3d at 69); see also id. (quoting Smart SMR of New York v. Borough of Fair Lawn, 152 N.J. 309, 704 A.2d 1271, 1283 (1998)) (noting that reliable cellular service provides "benefits to `the general public, commercial entities, as well as fire, police, and other rescue personnel'").
Easttown and Harrington Park provide useful guideposts in determining what level of unreliability is necessary to establish a significant gap. Although there surely can be no hard-and-fast percentage of failed calls to define a significant gap, the Court concludes that a line of demarcation falling somewhere between 1.96% and five-to-seven percent is a reasonable interpretation of the TCA. In this case, Hettler testified that he defined "unreliable" service as service resulting in ten percent failure that is, one out of every ten calls "cannot go through," are "interrupted," are "dropped," or have "totally unintelligible" sound quality. R. at 113-14. The ten-percent rate of unreliability is well beyond the line of demarcation defined by Harrington Park and Easttown. In sum, the Court concludes that, assuming the accuracy of Hettler's drive test, American Cellular's evidence of a ten-percent rate of unreliability satisfies the qualitative component of the significant gap inquiry.
The Court underscores the word "assuming," because, as described above, the parties' supplemental memoranda addressing Sprint's propagation report, give rise to a fact question regarding Hettler's conclusions. The Court's decision of this fact question rests on a credibility determination as to which exhibits Hettler's drive-test-generated maps or Sprint's propagation report more accurately reflect the quality of cellular service in Maple Glen.
In resolving this question, the Court finds most persuasive Hettler's statement that "[a] propagation report does not have the same level of accuracy or reliability as an actual drive test." Hettler Oct. 15, 2001, Aff. at ¶ 8. Because Hettler's reports are based on empirical testing, and because the propagation report is based only on a mere prediction, the Court finds that Hettler's reports showing that all six cellular service providers had unreliable service in Maple Glen accurately reflect the actual reliability of cellular service in Maple Glen.
The Court concludes that American Cellular has established, qualitatively, a significant gap in cellular service in Maple Glen. Next, the Court addresses the question whether the qualitative gap in cellular service affects a large enough number of users or geographical area to constitute a significant gap.
b. Scope Inquiry
The inquiry as to the scope of the gap is derived from the Third Circuit's decision in Ho-Ho-Kus, where the court stated that "it matters a great deal ... whether the `gap' in service merely covers a small residential cul-de-sac or whether it straddles a significant commuter highway or commuter railway." Ho-Ho-Kus, 197 F.3d at 70 n. 2. Such an inquiry is important in significant gap cases because of the unique nature of cellular service: "Unlike *395 a utility such as electrical power, cellular service is used in transit, so a gap that covers a well-traveled road could affect large numbers of travelers and the people who are trying to communicate with them." Id.
Much of the testimony before the Board and much of the argument in the filings before this Court addresses the question of whether American Cellular has shown a significant gap in a half-mile section of Norristown Road. The Court rejects American Cellular's argument in this respect. The maps produced as a result of Hettler's drive test show that three providers have reliable service on nearly all of the half-mile section of Norristown Road. Because the Third Circuit has adopted what may be called a common denominator approach analysis of the gap is tied to the service provider with the best service in the purported gap the gap on Norristown Road, for purposes of the TCA, must be viewed as extending only one-eighth of a mile on Norristown Road. Notwithstanding American Cellular's arguments as to the high level of traffic on this one-eighth-of-a-mile section of Norristown Road, the Court concludes that it is not significant it covers too small an area and affects too few people.
This conclusion does not, however, end the matter. Rather, the Court finds meritorious American Cellular's argument, supported by Hettler's affidavit, that there is unreliable cellular service throughout the entire Maple Glen area, and that the scope of this unreliable service renders the gap "significant." Importantly, it is undisputed that American Cellular's proposed tower on the DiFabio property will remedy this problem by providing reliable cellular service to all of Maple Glen. See Ex. A-13 (portraying coverage of proposed cellular site); R. at 133.
In adopting American Cellular's argument placing the focus of the significant gap analysis on the entirety of Maple Glen, the Court notes that American Cellular's argument is a novel one, as the Third Circuit has not stated how tightly the "area" covered by a gap should be defined. In APT, the Third Circuit held that "[t]he provider's showing on [significant gap] will thus have to include evidence that the area the new facility will serve is not already served by another provider." APT, 196 F.3d at 480 (emphasis added). The record before the Court shows that all six providers tested by Hettler clearly have some service in Maple Glen. In light of this fact, it might be argued, following APT, that American Cellular cannot establish a significant gap. For example, because Sprint and Verizon are the only providers to have unreliable service on Tennis Avenue, see Ex. A-10 (Sprint); Ex. A-11 (Verizon), whereas the other four providers have reliable service on Tennis Avenue, focusing solely on Tennis Avenue would lead to the conclusion that there is no significant gap there.
The Court concludes, however, that focusing on only one roadway improperly narrows the scope of the significant gap analysis. Finding no significant gap in Maple Glen solely on the ground that each provider has some reliable service there disregards the fact, conclusively established in the record,[17] that all six providers also have unreliable service on extended more than one-half mile stretches of various heavily trafficked roads throughout Maple Glen. The net effect of the unreliable service pattern in Maple Glen is that *396 all cellular subscribers driving through Maple Glen, regardless of which service provider they use, will, at some point, experience unreliable service. Given the Congressional policy underlying the TCA to provide "nationwide seamless cellular service to the public," Ho-Ho-Kus, 197 F.3d at 69, the Court concludes that, in this case, the "area" referred to by the Third Circuit in APT, must not be viewed as single roadways, but, rather, must be viewed as the entirety of Maple Glen.
The Court draws further support for this conclusion from American Cellular's presentation of testimony that, during one year, its users alone made 4,000 cell phone calls to the Township's 911 emergency service. R. at 127. Although this testimony does not show conclusively how many 911 calls were made from Maple Glen, the Court draws an inference that, because Maple Glen comprises approximately thirty-three percent of the geographic area of Upper Dublin Township, R. at 190, and because users of the other five providers' cellular service undoubtedly place 911 calls on their cellular telephones, the number of cellular 911 calls originating on Maple Glen roadways is a large one. There is thus a weighty public-safety interest in focusing the significant gap analysis on the entirety of Maple Glen.
Given the Court's adoption of this analysis, and given Hettler's credible affidavit statement that all six providers have unreliable service at some point in Maple Glen, the Court concludes that American Cellular has satisfied its burden of proving that the scope of the gap in cellular service is sufficiently broad to constitute a significant gap.
B. LEAST INTRUSIVE ALTERNATIVE
In evaluating American Cellular's argument that the DiFabio site is the least intrusive option, the Court must consider the values that the Board sought to serve in denying American Cellular's Application. APT, 196 F.3d at 480. The Board's Opinion, however, does not state any affirmative reasons for denying the Application; rather, it is limited to an analysis of what the Board concluded was American Cellular's failure to establish a right to variances under state and local law.
Nevertheless, the record of the proceedings before the Board makes clear that the prevailing objection to placing a new cellular site in the Maple Glen community was based on aesthetics. At the conclusion of the hearing, immediately before the Board voted to reject the Application, seven residents of the Township addressed the Board. R. 214-23. The residents' statements unanimously reflect an objection to the aesthetic obtrusiveness of the proposed site. For example, Carol Benet, a resident of the Township and Vice President of the Maple Glen Village Association, explained that the Association had worked with land planners and residents to "create a village atmosphere" in Maple Glen. R. at 215 16. The input that Benet had received from other residents showed no support for an "80-foot tree looking device in the middle of our village." R. at 216. Notwithstanding the Maple Glen community residents' aesthetic concerns, the Court concludes that American Cellular has satisfied its legal duty to adopt the least intrusive plan for its new cellular site.
With respect to American Cellular's pursuit of alternative systems designs and tower designs, the undisputed evidence shows a concerted effort to construct a safe cell site with minimal obtrusiveness. The DiFabio property is in a district zoned for commercial use, and it does not border any low-density residential districts. R. at 23; Ex. A-15. The proposed site is behind a one-story commercial building which will *397 provide a degree of screening. R. at 50. American Cellular expressed flexibility in how it would design the monopole, proposing use of either a rust-colored pole or a "pine tree" pole so as to blend into the undeveloped, wooded background. R. at 25 26. The antennas on the monopole would be flush with the pole as opposed to resting on a more visible triangular structure. R. at 25. The pole's height would be eighty feet the absolute minimum necessary for American Cellular's purposes which is much lower than the standard 150-foot or 160-foot pole. R. at 51, 135-36. This height would be close to the height of some of the pine trees in the undeveloped, wooded area abutting the DiFabio property. R. at 50-51. Finally, there would be no danger of damage to property in the extremely unlikely event that the pole should fall. R. at 82-86.
Defendants' sole argument on this prong of American Cellular's "effect of prohibiting" claim is that American Cellular has not undertaken a good faith effort to investigate less sensitive sites. Specifically, defendants argue that other sites were available both within the Township and in neighboring Horsham Township, and that the owners of those sites were willing to negotiate agreements with American Cellular. The Court finds, however, that the testimony of James Rodgers, the site development consultant to American Cellular who filed the Application with the Board on American Cellular's behalf, undermines defendants' argument.
Rodgers' testimony demonstrates that American Cellular's search for a site that would adequately address the gap in cellular coverage in Maple Glen was an exhaustive one. In an attempt to avoid constructing a new site, American Cellular investigated placing antennas on an existing structure, such as a water tower on Fort Washington Avenue in the Township. R. at 20-21. Although Sprint presently has a cell site on that water tower, that site was placed there before the Township amended its Zoning Ordinance to require a 500-foot buffer between cell sites and residential neighborhoods. Id. The amendment had the prospective effect of preventing cellular service providers from placing new cell sites on the water tower thus preventing American Cellular from using it. Additionally, American Cellular explored constructing a new site in Horsham Township, but found zoning restrictions in that township made such an option unfeasible. R. at 38. As for construction of a new site in Upper Dublin Township, American Cellular explored several other sites. A Genuardi's grocery store had no interest in entering into a leasing agreement with American Cellular. R. at 38-39. The same was true for a deli owner. R. at 39. A golf course, Arbor Meadow Farms, expressed an interest in allowing construction of the site on its property, but, upon investigation, found that a deed restriction prevented such construction. R. at 39.
Aside from the DiFabio property, only two property owners, the owner of a vacant property next to the DiFabio property, and the owner of a Dunkin' Donuts, expressed an interest in allowing construction of the site on their properties. R. at 39. Had American Cellular chosen the vacant property next to the DiFabio property, the same concerns raised by community members as to the visual obtrusiveness of the site would have applied. Additionally, American Cellular found that a cellular site would be a more appropriate fit with zoning regulations at the DiFabio property than at the Dunkin' Donuts site. Id.
Of additional importance to the Court's analysis is the record evidence that the Board's interpretation of the Mobile Home District as a "residential" district would *398 eliminate nearly every possible alternative for American Cellular's proposed cellular site. At the hearing before the Board, American Cellular introduced a "Site Evaluation" a map of the Township portraying all locations where a cell site would be permissible under the Zoning Ordinance. Ex. A-15; R. at 188-89. Taking into account the required 500-foot buffer zone from all residential districts, including the Mobile Home District, the Site Evaluation shows only one site in Maple Glen where a cell site could be located the Temple University Ambler campus. R. at 190-91; Ex. A-15. As James Rodgers testified, American Cellular spoke with appropriate personnel at the Temple campus about procuring a lease for a cell site, but Temple was not interested in negotiating such a lease. R. at 20. Thus, a combination of factors, including Temple University's unwillingness to negotiate with American Cellular and the Board's interpretation of the 500-foot buffer zone to apply to the Mobile Home District, effectively eliminated every potential cell site in Maple Glen.
In sum, defendants provide no evidence in support of their bare assertion that less intrusive sites were available. The Court therefore concludes that, in addition to diligently pursuing alternative designs to limit the obtrusiveness of the cell site, American Cellular satisfied its legal duty to select the least intrusive property to locate its cell site.
In reaching this conclusion, the Court is enforcing the mandate of the TCA. The Court does not pass judgment on the legitimate concerns of Maple Glen residents that a cell site in the Maple Glen commercial center will detract from the community's aesthetic vision. By expressly preserving local zoning authority, while at the same time "limiting the ability of local authorities to regulate and control the expansion of telecommunications technologies," Newtown Township, 219 F.3d at 243, Congress, in enacting the TCA, struck a balance between the interests of communities and the interests of wireless service providers and their subscribers. In this case, the evidence shows that the Township's efforts to regulate the placement of American Cellular's proposed cell site has upset that balance. The Court's Order provides the remedy to which, in the judgment of Congress, American Cellular is legally entitled.[18]
V. CONCLUSION AND REMEDY
For the foregoing reasons, American Cellular has proven that the Board's decision had the "effect of prohibiting the provision of personal wireless services." 47 U.S.C. § 332(c)(7)(B)(i)(II). Accordingly, the Court grants American Cellular's Motion for Summary Judgment, and denies the Motion for Summary Judgment of Defendants Upper Dublin Township and Upper *399 Dublin Township Zoning Hearing Board.
As for relief, although the "TCA does not specify a remedy for violations of the cellular siting subsection.... the majority of district courts that have heard these cases have held that the appropriate remedy is injunctive relief in the form of an order to issue the relevant permits." Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 497 (2d Cir.1999) (collecting cases); see also Brehmer v. Planning Bd. of Town of Wellfleet, 238 F.3d 117, 120-21 (1st Cir.2001); Sprint Spectrum L.P. v. Zoning Hearing Bd. of Willistown Township, 43 F.Supp.2d 534, 543 (E.D.Pa.1999). In this case, however, even had the Board granted American Cellular's Application, § 255-30.1.C of the Zoning Ordinance would have required American Cellular to seek approval of a conditional use. The record demonstrates that American Cellular is prepared to proceed with such an application. R. at 23-24.
Accordingly, the Court will grant injunctive relief as to American Cellular's Application for two dimensional variances, and remand the case to the Upper Dublin Township Zoning Hearing Board for further proceedings consistent with this Memorandum. See Willistown Township, 43 F.Supp.2d at 543.
An appropriate order follows.
ORDER
AND NOW, this 20th day of May, 2002, upon consideration of American Cellular's Motion for Summary Judgment (Document No. 7, filed June 4, 2001), the Motion for Summary Judgment of Defendants Upper Dublin Township and Upper Dublin Township Zoning Hearing Board (Document No. 8, filed July 6, 2001), all responsive and supplemental filings to the cross motions, and the record of proceedings before the Upper Dublin Township Zoning Hearing Board, for the reasons stated in the foregoing Memorandum, IT IS ORDERED as follows:
1. American Cellular's Motion for Summary Judgment is GRANTED;
2. The Motion for Summary Judgment of Defendants Upper Dublin Township and Upper Dublin Township Zoning Hearing Board is DENIED;
3. The Upper Dublin Township Zoning Hearing Board shall is ENJOINED TO APPROVE American Cellular's Application for
(a) a variance from the setback requirements of Upper Dublin Township Zoning Ordinance § 255-30.1.D(2)(c) (the forty-foot requirement); and
(b) a variance from the setback requirements of Upper Dublin Township Zoning Ordinance § 255-30.1.B(1) (the 500-foot requirement); and
4. The Upper Dublin Township Zoning Hearing Board is ENJOINED TO CONDUCT further conditional use proceedings as required by Upper Dublin Township Zoning Ordinance § 255-30.1.C in a manner consistent with the foregoing Memorandum.
NOTES
[1] Exhibits A-1 through A-15 are appended to American Cellular's Motion. Exhibits B, C, and D are appended to defendants' Motion.
[2] A number of cases and law review articles dealing with the TCA provide detailed background explanations of the mechanics of wireless communications networks. See, e.g., Nextel West Corp. v. Unity Township, 282 F.3d 257, 259-60 (3d Cir.2002); Stephanie E. Niehaus, Note, Bridging the (Significant) Gap: To What Extent Does the Telecommunications Act of 1996 Contemplate Seamless Service?, 77 Notre Dame L.Rev. 641, 646-54 (2002).
[3] All relevant provisions of the Township Zoning Ordinance are set forth at Ex. A-5.
[4] American Cellular has since changed its trade name from CellularOne to Cingular Wireless.
[5] The Board's conclusions on American Cellular's requested variances are keyed to Pennsylvania municipal planning law. In applying 53 P.S. § 10910.2, the Supreme Court of Pennsylvania has held "[t]here are essentially four factors" to determine entitlement to a variance:
(1) that an unnecessary hardship exists which is not created by the party seeking the variance and which is caused by unique physical circumstances of the property for which the variance is sought;
(2) that a variance is needed to enable the party's reasonable use of the property;
(3) that the variance will not alter the essential character of the district or neighborhood, or substantially or permanently impair the use or development of the adjacent property such that it is detrimental to the public's welfare; and
(4) that the variance will afford the least intrusive solution.
Larsen v. Zoning Bd. of Adjustment of the City of Pittsburgh, 543 Pa. 415, 672 A.2d 286, 289 (1996). The Board's rejection of American Cellular's requested variances is based on its conclusion that American Cellular met neither of the first two prongs that is, it did not demonstrate an "unnecessary hardship" and the property was still subject to "reasonable use."
[6] Count III of American Cellular's Complaint also contains a "State Law Appeal." Because American Cellular does not raise any independent state-law grounds in support of its arguments on the pending cross motions for summary judgment, the Court will limit its consideration to the federal issues that is, the TCA.
[7] Specifically, the TCA states: "Except as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless service facilities." 47 U.S.C. § 332(c)(7)(A).
[8] The Court notes that there is no dispute that American Cellular provides "personal wireless services" or that the proposed cell site at issue falls under the TCA's definition of "personal wireless service facilities," thus bringing this case under the TCA's coverage. 47 U.S.C. § 332(c)(7)(C)(i)-(ii).
[9] The Court need not address both issues because "the substantial evidence review contemplated by subsection 332(c)(7)(B)(iii) is not applicable to the issue of whether a state's denial of an application to construct a personal wireless service facility `has the effect of prohibiting the provision of personal wireless services.'" APT, 196 F.3d at 475.
[10] See Ho-Ho-Kus, 197 F.3d at 70 n. 2 ("There may be any number of factors that a reviewing court may find it necessary to consider when determining whether a significant gap exists....").
[11] Hettler is qualified to testify on this subject. In 1986, he obtained a Bachelor of Science degree in electrical engineering from Pennsylvania State University where he "specialized in communication and propagation and digital modulation techniques," R. at 89, and he has more than six years of experience working as a radio frequency engineer in the wireless communications industry. R. at 89-90.
[12] Hettler produced three exhibits for the six providers because each exhibit contains two maps.
[13] Hettler did not explain what a black circle represents.
[14] American Cellular also provided further argument as to why the half-mile portion of Norristown Road constituted a significant gap and a second alternative argument that actual signal strength is weaker than that portrayed on the maps produced before the Board. Because, as discussed below, see infra § IV.A.2.b., the Court agrees with American Cellular's argument concerning the gap in service in the entirety of Maple Glen, the Court does not address these two additional arguments.
[15] Hettler states that "poor" coverage is represented by the red circles appearing on the maps produced as a result of the drive test. Hettler April 25, 2002, Aff. at ¶ 10.
[16] In Easttown, the court, in addressing the significant gap analysis, limited its qualitative inquiry to the "`ability of remote users to access the national telephone network.'" Easttown, 189 F.Supp.2d at 263 (quoting APT, 196 F.3d at 480). This Court considers both that question and the question whether users are able "to maintain a connection capable of supporting a reasonably uninterrupted communication." Ho-Ho-Kus, 197 F.3d at 70.
[17] The Court agrees in all respects with Hettler's affidavit statement quoted at length above. See supra § IV.A.1.b.
[18] As a coda, the Court notes that one of the reasons cited by the Board for denying American Cellular's application was "that the very existence of this alleged gap in coverage occurred only because smaller hand-held cell phones are being sold to its customers" and that "[w]hen original larger units were used there was no hole in coverage." Opinion at 6 (citing R. at 97). This conclusion was a response to American Cellular's presentation of evidence that advancing technology has allowed the development of smaller cell phones which appeal to wireless users. R. at 121-22.
The Court rejects the Board's reasoning as a basis for denying American Cellular's requested variances. By citing the decreased size of cellular telephones as a reason to deny American Cellular's application for zoning variances, the Board has essentially blamed advancing technology for causing the service gap in Maple Glen. Such reasoning contravenes the policy goals underlying the TCA: to promote the rapid acceleration of "private sector deployment of advanced telecommunication and information technologies and services to all Americans." Nextel, 282 F.3d at 265 n. 6 (quotation omitted).
| {
"pile_set_name": "FreeLaw"
} |
12 U.S. 53
8 Cranch 53
3 L.Ed. 485
THE COMMON COUNCIL OF ALEXANDRIAv.PRESTON.
Feb. 18, 1814
Absent. WASHINGTON, J. and JOHNSON J.
1
ERROR to the Circuit Court for the district of Columbia,
2
sitting at Alexandria.
3
This was a motion in the Court below for judgment, and execution against Preston, (under the 11th section of the act of congress of 25th of February, 1804, 'to amend the charter of Alexandria,' vol. 7, p. 48) for taxes due to the corporation for the years 1804, 5 and 6, on a lot of ground in Alexandria, which Preston purchased of Scott in the year 1807, after the taxes were due. The assessors' books were returned on the 1st of May in every year to the office of the clerk of the common council, where they remained subject to public inspection.
4
The Court below, being of opinion that the summary remedy by motion, judgment, and execution, was given only against the person who was proprietor at the time of the assessment of the taxes, dismissed the motion; and the common council brought their writ of error.
5
The 11th section of the act to amend the charter of Alexandria is as follows:
6
'Be it further enacted, That whenever taxes upon real property, or other claims charged upon real property within the town, shall be due and owing to the common council, and the proprietor shall fail to discharge the same, the said common council, after giving the party reasonable notice when he resides in town; sixty days notice when he resides out of the town and in the United States; and after six months publication in the newspapers when he resides out of the United States; shall be empowered to recover the said taxes or debts, by motion in the Court of Alexandria; and, provided it shall appear to the satisfaction of the Court that such taxes or claims are justly due, judgment shall be granted and an execution shall issue thereupon, with the costs of suit, against the goods and chattels of the defaulter, if any can be found within the town; if not, that the whole property, upon which the tax or claim is due, shall, by order of the Court, be leased out at public auction for the shortest term of years that may be offered, on condition that the lessee pay the arrearages, and also the future taxes accruing during the term, and be at liberty to remove all his improvements at the expiration of the lease; provided always that the common council may prosecute any other remedy, by action, for the recovery of the said taxes and claims which is now possessed or allowed.'
7
E. I. LEE, for the Plaintiff in error.
8
The question arising upon this case is, whether the proprietor, for the time being, of a lot in Alexandria, is personally liable to a judgment and execution for arrearages of taxes assessed upon the lot before he became the proprietor thereof.
9
The act of congress gives a remedy, by motion, judgment and execution, against the proprietor who shall fail to discharge the taxes. Preston was the proprietor at the time of the demand of payment, and has failed to pay. He is therefore within the express letter of the law. 'The defaulter' also is the person who has failed to pay on demand; the person who was liable to pay when the demand was made upon him. Every proprietor of the land is liable for its taxes so long as he is proprietor. The claims, according to the words of the act, are charged upon the real property. They accompany the land into whose hands soever it may pass. The law was intended to give a remedy against any proprietor of the land. The taxes are placed on the same footing as other charges which are liens on the land. It is not a case of greater hardship than that of other liens on real estate. Caveat emptor is the rule where he has the means of knowledge. Here the assessors' books were always accessible. The purchaser is bound to take notice of the non-payment of the taxes. He purchases at his peril.
10
SWANN, contra.
11
The statute uses the definite article, 'THE proprietor.' The question is, which proprietor? Scott or Preston? We say it means him who was proprietor when the tax was laid, and in whose name the land was assessed, and who was unquestionably liable in the first instance. He was 'the proprietor,' 'the defaulter' contemplated by the legislature. If he was liable, did his liability cease when he sold the land? or is he still liable? There is nothing in the law to justify an idea that the legislature contemplated a succession of proprietors who should be successively liable,; a succession of debtors; nor that they should be all liable at once; nor that the corporation should have its choice out of the several successive proprietors. It suggests the idea of one proprietor only, and of one debtor, or defaulter only; and if but one, it can be no other than him who was confessedly liable; him who was proprietor at the time of the assessment. The tax is a lien on the lot so far as to authorize the Court to direct it to be leased out to any one who will pay the taxes, in case the goods and chattels of the debtor cannot be found.
12
The books of the assessor and collector are not matter of record. The purchaser has no right to inspect them. The tax is a secret lien.
February 19th.
13
THE COURT affirmed the judgment, without assigning their reasens.
| {
"pile_set_name": "FreeLaw"
} |
UNITED STATES, Appellee
v.
Robert W. PINSON III, Senior Airman
U.S. Air Force, Appellant
No. 01-0466
Crim. App. No. 32963
United States Court of Appeals for the Armed Forces
Argued October 25, 2001
Decided June 19, 2002
CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE, EFFRON, and BAKER, JJ., joined. SULLIVAN, S.J.,
filed an opinion concurring in the result.
Counsel
For Appellant: Lieutenant Colonel Timothy W. Murphy (argued);
Lieutenant Colonel Beverly B. Knott (on brief); Colonel James
R. Wise.
For Appellee: Captain Adam Oler (argued); Colonel
Anthony P. Dattilo and Major Lance B. Sigmon (on brief).
Military Judge: J. Jeremiah Mahoney
THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. Pinson, No. 01-0466/AF
Chief Judge CRAWFORD delivered the opinion of the Court.
Contrary to his pleas, appellant was convicted at a general
court-martial by military judge alone of disobeying a no-contact
order (one specification), assault (two specifications),
subordination of perjury at a prior trial (one specification),
and communicating threats (three specifications), in violation
of Articles 92, 128, and 134, Uniform Code of Military Justice
(UCMJ), 10 USC §§ 892, 928, and 934. He was also found guilty,
pursuant to his pleas, of adultery, in violation of Article 134.
The convening authority approved the sentence of a bad-conduct
discharge, three years’ confinement, and reduction to the lowest
enlisted grade. The Court of Criminal Appeals affirmed the
findings and sentence. 54 MJ 692 (2001).
Appellant raises two issues on appeal before this Court:
I.
WHETHER THE MILITARY JUDGE ERRED IN DENYING A
DEFENSE MOTION FOR APPROPRIATE RELIEF AFTER THE
GOVERNMENT SEIZED AND REVIEWED ATTORNEY/CLIENT
PRIVILEGED MATERIAL AND THAT MATERIAL WAS
SUBSEQUENTLY USED IN THE INVESTIGATION OF
APPELLANT.
II.
WHETHER THE MILITARY JUDGE ERRED IN FAILING TO
SUPPRESS APPELLANT’S PRETRIAL STATEMENTS TO
ICELANDIC AUTHORITIES TAKEN DURING A JOINT
INVESTIGATION, IN VIOLATION OF HIS FOURTH
AMENDMENT AND ARTICLE 31, UCMJ, RIGHTS, AND
BECAUSE THE STATEMENTS WERE INVOLUNTARY.
2
United States v. Pinson, No. 01-0466/AF
For the reasons set forth herein, we resolve both issues
against appellant and affirm.
FACTS – ISSUE I
At appellant’s first trial in February 1996, Helga Kristen
Helgadottir, the victim, perjured herself by testifying that her
earlier accusations concerning appellant’s assault and property
damage were false, and that the property in question belonged to
appellant, not herself. On April 1, 1996, the victim told the
civilian police that appellant had procured her perjured
testimony by beating and threatening her. To support her
allegation, she provided several letters from appellant that
included the alleged threats.
Based on this complaint, both the Icelandic police (IP) and
the Naval Criminal Investigative Service (NCIS) opened separate
investigations. NCIS agents Lockart and Green, and Master
Sergeant DeRoy from the Provost Marshal’s Office, obtained an
authorization to search appellant’s quarters. “An Icelandic
investigator [Superintendant Björn Bjarnasson] was present when
the NCIS searched the appellant’s quarters, but only as an
observer.” 54 MJ at 697. This search resulted in the seizure
of several notebooks containing appellant’s writings and
comments about the victim. It is a portion of these seized
materials that is alleged to be the attorney-client privileged
material.
3
United States v. Pinson, No. 01-0466/AF
As found by the military judge and affirmed by the Court of
Criminal Appeals, “[n]o privileged document was used as direct
evidence in the appellant’s court-martial.” Id. at 696. In
particular, the military judge found that the documents and
appellant’s writings were properly seized by NCIS agents, who were
investigating appellant for subornation of perjury at his first
court-martial. The documents were temporarily given to the
Icelandic police for their use in pursuing separate charges
involving threats and assaults by appellant on Ms. Helgadottir.
None of the investigators recognized any of the documents or
writings as potentially privileged instruments.
Prior to their discovery by a trial counsel, Captain Floyd,
on April 26, 1997, over a year after their seizure, none of the
documents had ever been positively identified as privileged
communications by anyone. Although both American and Icelandic
investigators looked at the seized material, only one, IP
Superintendent Bjarnasson, read the papers for content. Mr.
Bjarnasson did not find any information to be helpful in his
investigation. Accordingly, except as noted below, none of the
documents were in any way used to advance either the Air Force’s
or IP’s investigation against appellant.
The judge examined all of the exhibits, and they were
subsequently marked either “P” for privileged or “NP” for non-
privileged. Appellant puts in issue six exemplars, identified
4
United States v. Pinson, No. 01-0466/AF
as “six sides of four [spiral notebook] pages, identified as
NP67, NP68, NP70, NP74, P27 and P28,” that were seized and
submitted for comparison as known handwriting exemplars. The
exhibits NP67, NP68, NP70, and NP74 were found to be part of
appellant’s clemency package after his first trial. Thus, there
was no privilege. Counsel also stipulated that these documents
were not privileged. Therefore, this case revolves around two
documents, P27 and P28. The defense contends that the mere
comparison of P27 and P28 to other exemplars resulted in the
disclosure of privileged information, violating appellant’s
Sixth Amendment rights. Citing Weatherford v. Bursey, 429 U.S.
545, 554 (1977), appellant continues that when there is an
intentional government intrusion, the evidence obtained may not
be used directly or indirectly. See also Mil.R.Evid. 502(b)(4),
Manual for Courts-Martial, United States (2000 ed.).1
There is no finding by either the military judge or the Court
of Criminal Appeals that the questioned documents were examined
for any purpose other than to identify appellant’s handwriting.
More importantly, the military judge found
that to the extent P27 and P28 might at one time
[have] been protected by M.R.E. 502, their contents
have been fully disclosed in communications to
others, including those communications in
[Appellate Exhibit (App Ex)] XXV [Memorandum for
Convening Authority (8 AF/CC) dated Mar. 18, 1996],
App Ex XXVII [Congressional Complaint dated Nov.
16, 1996], and App Ex XXVIII [Memorandum for 85th
1
All Manual provisions are identical to the ones in effect at the time of
appellant’s court-martial.
5
United States v. Pinson, No. 01-0466/AF
Group Inspector General dated July 5, 1996].
Moreover, none of the material contained in P27 and
P28 was susceptible to being used directly or
indirectly against the accused on the charges in
this case. Moreover, the questioned documents
examiner testified that those items were not
necessary for his conclusion, and disregarding them
would not affect the certitude of his opinion.
Finally, the court rules as a matter of law that
mere comparison of the physical appearance of the
accused’s lawfully seized handwriting is not -- in
this case -- within the protection of the attorney
client privilege.
However, to ensure that there was no taint, Major Thompson,
Special Trial Counsel, represented the Government on the
issue of the privileged information. Appellant concedes that
there was no privileged evidence used directly against him at
trial. Appellant contends, however, that documents P27 and
P28 were privileged and that these documents were indirectly
produced at trial. The claim of indirect production is based
upon appellant’s suggestion that these documents may have
been discussed between two IP officers, and that these
documents were used in a handwriting analysis. In that
context, according to appellant, the military judge’s finding
that there was “no use of the material” is clearly erroneous.
Appellant also argues that since Captain Altschuler, a trial
counsel at his first court-martial, examined some of the
privileged documents in June 1996, the military judge’s
findings were also clearly erroneous.
6
United States v. Pinson, No. 01-0466/AF
The court below and the military judge found that the
seizure of any privileged documents by the Government was
pursuant to a lawful search and seizure, there was no
intentional seizure of privileged communications, and the
information was not used to the detriment of appellant.
DISCUSSION - ISSUE I
This is not a case of dual roles being
performed by defense counsel or outrageous
conduct by the Government. Both Congress ...
and this Court have gone to great pains to
ensure to servicemembers the right to counsel.
This right to a lawyer appointed free of charge
... applies at the pretrial stage, see, e.g.,
Mil.R.Evid. 305(d)(1)(A), 305(e), 321(b)(2);
trial stage, see, e.g., Art. 27 [,UCMJ, 10 USC
§ 827]; post-trial stage and even the appellate
stage, see, e.g., United States v. Palenius, 2
MJ 86 (CMA 1977). A concomitant right is the
right to confidential communications between the
attorney and client. Mil.R.Evid. 502. Any
exception to this rule must ensure that there is
no chilling effect on defendants freely speaking
with their military lawyers. See Grady v.
Darley, 44 MJ 48 (Summary disposition 1996).
United States v. Godshalk, 44 MJ 487, 490 (1996); cf. United
States v. Smith, 35 MJ 138, 140-41 (CMA 1992)(defense counsel
may be called as prosecution witness when the accused gave
counsel a fabricated document for use at trial).
The Supreme Court has addressed interference with the
attorney-client privilege on numerous occasions. In Weatherford
v. Bursey, supra, the Court refused to adopt a per se rule that
any interference with the attorney-client privilege required the
drastic remedy of reversal. The Supreme Court reversed the
7
United States v. Pinson, No. 01-0466/AF
Court of Appeals, which held that “whenever the prosecution
knowingly arranges or permits intrusion into the attorney-client
relationship the right to counsel is sufficiently endangered to
require reversal and a new trial.” 528 F.2d 483, 486 (4th Cir.
1975).
Bursey and Weatherford, an undercover agent, were arrested
in 1970 for breaking into a Selective Service Office on two
occasions. While Weatherford was still maintaining his
undercover status, he was invited to meet with Bursey and his
attorney twice. On neither of the occasions did he seek
information from Bursey or his attorney. The purpose of the
meetings was to obtain information, ideas, or suggestions as to
Bursey’s defense for breaking into the Selective Service Office.
Weatherford did not discuss with his superiors or the
prosecuting attorney “any details or information regarding
[Bursey’s] trial plans, strategy, or anything having to do with
the criminal action pending against [Bursey].” 429 U.S. at 548.
Based on the facts in Weatherford, the Supreme Court said
an undercover agent meeting with a criminal defendant and his
lawyer does not require reversal. Id. at 551.
[I]f an undercover agent meets with a criminal
defendant who is awaiting trial and with his
attorney and if the forthcoming trial is discussed
without the agent’s revealing his identity, a
violation of the defendant’s constitutional rights
has occurred, whatever was the purpose of the agent
in attending the meeting, whether or not he
reported on the meeting to his superiors, and
8
United States v. Pinson, No. 01-0466/AF
whether or not any specific prejudice to the
defendant’s preparation for or conduct of the trial
is demonstrated or otherwise threatened.
Id. at 550. Nonetheless, the Weatherford Court stated that its
prior cases “individually or together” did not require or
suggest a per se rule of reversal in such a situation. Id. at
551.
The Supreme Court noted that “Bursey would have [had] a
much stronger case” if either (1) “Weatherford [had] testified
at Bursey’s trial as to the conversation between Bursey and [his
attorney]”; (2) the “State’s evidence [had] originated in these
conversations”; (3) the “overheard conversations [had] been used
in any other way to the substantial detriment of Bursey”; or (4)
“the prosecution [had] learned from Weatherford ... the details
of the ... conversations about trial preparations.” Id. at 554.
But the Court found “[n]one of these elements ... present here.”
Id. at 555. Thus, the Court held that there was no violation of
the Sixth Amendment. However, the invasion that took place in
Weatherford had significant investigative justification.
Likewise, in Hoffa v. United States, 385 U.S. 293 (1966),
when an undercover agent was present during the attorney-client
conversation, the Court held that there was no violation of the
defendant’s rights because the substance of the lawyer-client
conversations was not communicated or used at trial. Even so,
we must always ask whether the invasion impacted on the
9
United States v. Pinson, No. 01-0466/AF
attorney’s performance or resulted in the disclosure of
privileged information at the time of trial.
While Weatherford had to maintain his undercover identity,
the Supreme Court addressed an unjustified invasion into the
attorney-client relationship in United States v. Morrison, 449
U.S. 361 (1981). DEA agents, who knew that the defendant was
represented by an attorney, met with Morrison without defense
counsel’s knowledge or permission. The Court of Appeals held
that the defendant’s right to counsel had been violated,
irrespective of the lack of proof of prejudice to her case. The
Supreme Court said that assuming there was prejudice, any action
taken had to be “tailored to the injury suffered.” Id. at 364.
Since “respondent has demonstrated no prejudice of any kind,
either transitory or permanent, to the ability of her counsel to
provide adequate representation in these criminal proceedings,”
there was “no justification”for such “drastic relief” as a
dismissal with prejudice. Id. at 366-67.
[A]bsent demonstrable prejudice, or substantial
threat thereof, dismissal of the indictment is
plainly inappropriate, even though the violation
may have been deliberate.... The remedy in the
criminal proceeding is limited to denying the
prosecution the fruits of its transgression.
Id. at 365-66 (footnotes omitted).
Here, appellant has not carried his burden to show
intentional or outrageous government misconduct, such as having
no basis for a search, or that he was prejudiced by the
10
United States v. Pinson, No. 01-0466/AF
disclosure of information. This case is more like Weatherford
than Morrison because there was a legitimate search of
appellant’s quarters to obtain evidence of his alleged
subornation of perjury at the first trial. There was no direct
interference with the attorney-client relationship. See, e.g.,
Geders v. United States, 425 U.S. 80 (1976). Appellant concedes
that no direct evidence was used at trial. While he argues that
the two privileged documents were used to analyze his
handwriting, an individual has no expectation of privacy in his
handwriting. United States v. Fagan, 28 MJ 64, 66 (CMA 1989).
Finally, a review of the record shows that the Government’s
case was based on independent evidence.2 Accordingly, we hold
that the military judge’s decision was not an abuse of
discretion.
FACTS - ISSUE II
After receiving the report from Ms. Helgadottir, the
Icelandic police attempted to locate appellant. Before the
interrogation began, the Icelandic authorities gave appellant’s
name to the NCIS and asked that he be made available. When he
arrived at the Naval Security Building, appellant was arrested
by Mr. Bjarnasson and advised of his right to an attorney and
his right to remain silent. He invoked his right to an
2
Having found that P27 and P28 were not used directly or indirectly against
appellant, we need not determine the legal significance, if any, of the
military judge’s finding that these documents were subsequently disclosed
after trial in communications with others.
11
United States v. Pinson, No. 01-0466/AF
attorney, and the interrogation ceased until an attorney was
furnished for him. In the meantime, Mr. Bjarnasson informed
appellant that under the treaty agreement between Iceland and
the United States, each side is required to cooperate with the
other. Appellant’s Icelandic attorney advised him that a
negative inference can be drawn if an accused asserts his right
to remain silent. Before being transported to the Icelandic
facility, appellant said that he knew the Icelandic police
wanted to talk to him because of Ms. Helgadottir; specifically,
that she wanted her clothes and watch back. Subsequently, he
decided to cooperate, and the interrogation continued there at
various times over a two-month period.3
Mr. Bjarnasson testified that the Icelandic police did not
talk to any of the NCIS agents prior to initiating their
interrogation of appellant. No NCIS agent asked that the
Icelandic police get certain information or that appellant be
asked certain questions. The interrogation was “purely for the
benefit of the Icelandic” authorities. In fact, there was no
conversation involved at all with the Naval authorities as to
the details of the interrogation.
Inspector Björn Sveinsson, one of the two IP interviewers,
testified during cross-examination that he did not tell anyone
that he was asking questions on behalf of the NCIS. His only
3
There were two interrogations that took place on the 23d of April, and
other interviews took place throughout April and May. Appellant’s appointed
12
United States v. Pinson, No. 01-0466/AF
request to NCIS was for its agents to locate Eddie Barnes, a
military friend of appellant who had been with appellant, the
victim, and their mutual friends on several occasions.
The military judge found that two separate investigations
had taken place: NCIS and the IP Department. In particular, the
military judge found that
Icelandic Authorities ... were acting at their own
behest and not as instrumentalities of US Authorities.
The accused’s statements to the Icelandic Authorities
were taken in conformity with Icelandic Law for
potential use in the prosecution in Icelandic Courts.
They were not taken as a subterfuge to circumvent the
accused’s refusal to talk to NCIS Agents without an
attorney. Nothing in the manner of substance of
taking of these statements offends the accused’s right
to due process in this court.
DISCUSSION - ISSUE II
Article 31(b), UCMJ, 10 USC § 831(b), states that
[n]o person subject to this chapter may
interrogate, or request any statement from
an accused or a person suspected of an
offense without first informing him of the
nature of the accusation and advising him
that he does not have to make any statement
regarding the offense of which he is accused
or suspected and that any statement made by
him may be used as evidence against him in a
trial by court-martial.
Article 31(b) would apply only if it is shown that the IP
Department was acting as an agent of the military during its
interrogations of appellant.
Icelandic attorney was present at most of these sessions.
13
United States v. Pinson, No. 01-0466/AF
In United States v. Payne, 47 MJ 37, 43 (1997), we left
open the question of whether a military judge’s conclusion as to
whether a civilian investigation was “conducted, instigated, or
participated in,” Mil.R.Evid. 305(h)(2), by military authorities
should be reviewed de novo or under a “clearly erroneous”
standard. In Payne, we observed:
There may be a question whether these earlier
decisions treating the agency question as one of
fact remain viable in light of subsequent
amendments to the UCMJ, adoption of the Military
Rules of Evidence, and recent Supreme Court cases
announcing a de novo standard of appellate review
for constitutional issues. See, e.g., Ornelas v.
United States, 517 U.S. 690, 116 S.Ct. 1657, 134
L.Ed.2d 911 (1996)(de novo review of probable-
cause and reasonable-suspicion determinations);
Thompson v. Keohane, 516 U.S. 99, 102, 116 S.Ct.
457, 460, 133 L.Ed.2d 383 (1995)(de novo review
of question whether a suspect was “in custody” at
time of interrogation). We need not decide,
however, whether a de novo standard of review or
a more deferential “clearly-erroneous” standard
applies in this case, because we would uphold the
military judge’s ruling under either standard.
47 MJ at 42-43 (emphasis added).
Despite our recognition in Payne that changes in the legal
landscape may necessitate a change in our standard of review, we
need not decide at this time whether to apply a de novo standard
of review or clearly erroneous standard because under either, we
hold the military judge’s ruling was correct.
Appellant did not meet his burden of establishing that the
Icelandic investigators were acting under the control or at the
direction of the Naval investigators. Icelandic police
14
United States v. Pinson, No. 01-0466/AF
interrogated appellant in various stages over an extended period
of time. At no time did the Icelandic police ask the NCIS
agents for information or leads to assist the Icelandic police
in conducting the investigation. The limited assistance that
NCIS agents provided to the Icelandic police in this case --
such as locating appellant and American witnesses -- was
undertaken pursuant to the defense agreement between the two
countries, and did not constitute “participation” within the
meaning of the Mil.R.Evid. 305(h)(2). Accordingly, we hold that
the military judge’s ruling was not in error as to Issue II.
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
15
United States v. Pinson, No. 01-0466/AF
SULLIVAN, Senior Judge (concurring in the result):
I would affirm.
On Issue I, there was no showing of prejudice resulting to
appellant from the use of the attorney-client material. See
United States v. Tanksley, 54 MJ 169, 172 (2000).
On Issue II, the facts in this case are weaker than those in
United States v. French, 38 MJ 420, 428-31 (CMA 1993) (Sullivan,
C.J., dissenting). In the instant case, neither appellant’s
First Sergeant nor any other American military personnel played a
role in the actual interrogation of appellant. Cf. id. at 434.
Moreover, the level of coordination between foreign police and
military authorities was minimal compared to that in French. Id.
at 429-30. Accordingly, there was no merger of the civilian and
military investigations.
| {
"pile_set_name": "FreeLaw"
} |
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-09-00165-CR
William Flores, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 427TH JUDICIAL DISTRICT
NO. D-1-DC-08-200535, HONORABLE JIM CORONADO, JUDGE PRESIDING
MEMORANDUM OPINION
Following a bench trial, the district court convicted appellant William Flores of the
offense of aggravated robbery. See Tex. Penal Code Ann. § 29.03(a)(2) (West 2003). Punishment
was assessed at seventeen years’ imprisonment. In a single point of error, Flores asserts that the
evidence is legally insufficient to support a finding that he used a deadly weapon during the
commission of the offense. We will affirm the judgment.
STANDARD OF REVIEW
In a legal sufficiency review, we consider whether, after viewing the evidence in the
light most favorable to the finding of guilt, a rational trier of fact could have found the elements of
the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 324 (1979); Clayton
v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “This standard accounts for the factfinder’s
duty ‘to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts.’” Clayton, 235 S.W.3d at 778 (quoting Jackson, 443 U.S. at 319).
It is not necessary that every fact point directly and independently to the defendant’s guilt, but it is
enough if the conclusion is warranted by the combined and cumulative force of all the incriminating
circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
ANALYSIS
A person commits the offense of robbery if, in the course of committing theft and
with intent to obtain or maintain control of the property, he intentionally or knowingly threatens or
places another in fear of imminent bodily injury or death. See Tex. Penal Code Ann. § 29.02(a)(2)
(West 2003). The robbery is aggravated if the person uses or exhibits a deadly weapon during the
commission of the offense. See id. § 29.03(a)(2).
Flores concedes on appeal, as he did at trial, that he committed the offense of robbery.
Flores’s only contention is that the evidence is legally insufficient to support a finding that he used
or exhibited a deadly weapon. According to Flores, the State failed to prove that the object the State
charged him with using during the commission of the offense, a screwdriver, was a deadly weapon.
In concluding otherwise, the district court considered the following evidence. The
victim, Alexandera Salazar, testified that on January 27, 2008, she “went to Sam’s [Club] to get
some dinner for my kids.” Three of her four children were with her at the time. When Salazar
returned home and began to get her children out of the car, she “noticed someone drive by” but
thought “nothing of it” until the “car pulled back around” and “blocked off my driveway.” Then,
Salazar recalled, “a man got [out] and he was walking really fast, like a quick walk. And I didn’t
hear what he had told me the first time.” Salazar continued,
2
I didn’t understand what he said. That’s when I was like, “What?” And that’s when
I noticed he pulled out a—I saw a screwdriver and that’s when I heard him say, “Give
me your purse, lady.” So I gave him my purse and he ran back into his car and he
drove off. And when he was driving off, I got his license plate number.
Salazar testified that she did not notice the screwdriver until Flores was
approximately two feet away from her and demanded her purse. When asked to describe how
Flores was holding the screwdriver, Salazar explained, “He had it like holding like not all the way
out, but closer like that, like he leaned forward to me.” The prosecutor then asked, “Was his arm
extended all the way, was it pulled all the way toward his body where his fist or hand was touching
his body, or was it somewhere in between?” Salazar answered, “In between.” Salazar described the
screwdriver as approximately nine and one-half inches long with a sharp end. The metal part of the
screwdriver, Salazar added, was approximately six inches long. Salazar testified that she was afraid
that Flores would stab her with the screwdriver if she did not cooperate.
After Flores drove away, Salazar called the police. Shortly thereafter, Flores was
apprehended. Officers transported Salazar to the location where Flores was being detained,
and Salazar identified Flores as the man who had robbed her. Incident to Flores’s arrest, officers
searched Flores’s vehicle. In the passenger compartment, police officers found a large bag
containing Salazar’s purse and wallet as well as a screwdriver with an orange handle. A picture of
these items was admitted into evidence. When asked if the screwdriver discovered in the vehicle
was the same as the screwdriver used during the robbery, Salazar testified, “I can’t say exactly I
know, but I was too nervous at the time to notice if it was a Phillips or flathead. I just saw something
3
sharp at me.” When asked if she was sure that the screwdriver used during the robbery had a
sharp end, Salazar testified, “Yes.”
Officers Jeffrey Page and Randy Stachewicz of the Austin Police Department
investigated the robbery. Officer Page was asked if, in his experience, a screwdriver can be used as
a deadly weapon. Page testified, “Absolutely.” He explained, “A screwdriver, in my opinion it’s
a fact, is like any other type of knife or weapon. With enough force anything . . . slender enough,
small enough, be it an ice pick, be it a screwdriver, be it a ballpoint pen, delivered with force to a
part of the body can cause serious injury.” Page added that the sharp end of a screwdriver assists
the object in entering the body. Page agreed that a man of Flores’s height and build—approximately
six feet in height and of medium build, according to Page—could deliver enough force using a
screwdriver to inflict serious bodily injury or death. Similarly, Officer Stachewicz was asked if, in
his experience, a screwdriver could be used in the same manner as a knife. Stachewicz testified,
“Yes.” Stachewicz also agreed that a screwdriver could inflict serious bodily injury.
The statutory definition of “deadly weapon” includes “anything that in the manner
of its use or intended use is capable of causing death or serious bodily injury.” Id. § 1.07(a)(17)(B)
(West Supp. 2009). “The provision’s plain language does not require that the actor actually intend
death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object
in which it would be capable of causing death or serious bodily injury.” McCain v. State, 22 S.W.3d
497, 503 (Tex. Crim. App. 2000). “The placement of the word ‘capable’ in the provision enables
the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually
using deadly force.” Id. Accordingly, “[t]he State is not required to show that the ‘use or intended
4
use causes death or serious bodily injury’ but that the ‘use or intended use is capable of causing
death or serious bodily injury.’” Tucker v. State, 274 S.W.3d 688, 691 (Tex. Crim. App. 2008)
(citing id.). Factors considered in determining whether an object is capable of causing death or
serious bodily injury include the physical proximity of the parties, the threats or words used by the
defendant, the size, shape, and sharpness of the weapon, the manner in which the defendant used the
weapon, and the wounds inflicted on the victim. Brown v. State, 716 S.W.2d 939, 946 (Tex. Crim.
App. 1986); Wingfield v. State, 282 S.W.3d 102, 107 (Tex. App.—Fort Worth 2009, pet. ref’d).
In this case, the district court heard evidence that Flores quickly approached Salazar
and, when he was approximately two feet away from her, held out a screwdriver that was over
nine inches long, with a metal part that was approximately six inches long, and had a sharp end. As
Flores did so, Salazar testified, he demanded that Salazar give him her purse. Salazar also testified
that Flores leaned toward her and that his arm was in an “in between” position while he was holding
the screwdriver—meaning that it was neither touching his body nor extended all the way out. The
district court could have reasonably inferred from this evidence that Flores had threatened Salazar
with the screwdriver. Moreover, Officer Page testified that a screwdriver with a sharp end, delivered
with enough force, is capable of causing serious bodily injury. Page further testified that a man of
Flores’s height and build was capable of delivering such force. Officer Stachewicz testified that a
screwdriver could be used in the same manner as a knife, and he agreed that a screwdriver could be
used to inflict serious bodily injury. Also, a picture of the screwdriver that was found in Flores’s
vehicle along with Salazar’s stolen possessions was admitted into evidence. The screwdriver had
5
a sharp end. The district court could have reasonably inferred that this was the same screwdriver
used to threaten Salazar.
Viewing the above evidence in the light most favorable to the finding, we conclude
that the district court could have found beyond a reasonable doubt that Flores used or exhibited
a deadly weapon during the commission of the offense. Thus, the evidence is legally sufficient to
support Flores’s conviction for aggravated robbery. See Tischmacher v. State, 221 S.W.2d 258,
262 (Tex. Crim. App. 1949) (concluding that screwdriver may be considered deadly weapon “in
the mode and manner of its use”); Henderson v. State, 971 S.W.2d 755, 757 (Tex. App.—Houston
[14th Dist.] 1998, no pet.) (evidence was sufficient to support finding that screwdriver was deadly
weapon when victim testified that defendant “brandished” screwdriver “and began making
threatening motions toward” victim, defendant admitted to holding screwdriver during robbery, jury
viewed screwdriver “that was the same or similar to the one used” during commission of offense,
and police officer testified that similar screwdriver could be used to cause death); Thomas v. State,
875 S.W.2d 774, 778 (Tex. App.—Beaumont 1994, pet. ref’d) (evidence was sufficient to support
finding that screwdriver was deadly weapon when victim testified that defendant was “probably
about two feet” away from her when he threatened her with screwdriver and police officer testified
that similar screwdriver could cause death or serious bodily injury); Madden v. State, 628 S.W.2d
161, 162 (Tex. App.—Eastland 1982, pet. ref’d) (evidence was sufficient to support finding that
screwdriver was deadly weapon when victim testified that defendant “kind of jabbed” screwdriver
up victim’s pharmacy jacket and demanded that victim give him medicine, and police officer
testified that similar screwdriver could be used to cause death or serious injuries).
6
We overrule Flores’s sole point of error.
CONCLUSION
We affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Chief Justice Jones, Justices Pemberton and Waldrop
Affirmed
Filed: May 12, 2010
Do Not Publish
7
| {
"pile_set_name": "FreeLaw"
} |
OSCN Found Document:LEWALLEN v. STATE
OSCN navigation
Home
Courts
Court Dockets
Legal Research
Calendar
Help
Previous Case
Top Of Index
This Point in Index
Citationize
Next Case
Print Only
LEWALLEN v. STATE2016 OK CR 4Case Number: F-2014-1063Decided: 03/11/2016WILLIAM TODD LEWALLEN, Appellant, v. THE STATE OF OKLAHOMA, Appellee.
Cite as: 2016 OK CR 4, __ __
SUMMARY OPINION
HUDSON, JUDGE:
¶1 Appellant William Todd Lewallen was tried by jury and convicted of Child Neglect, After Former Conviction of Two or More Felonies, in violation of 21 O.S.2011, § 843.5(C), in the District Court of Tulsa County, Case No. CF-2012-5174. The jury assessed punishment at twenty-three (23) years imprisonment. The Honorable Mark Barcus, District Judge, sentenced accordingly.1 Lewallen appeals, raising the following issues:
(1) whether the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies;
(2) whether the evidence was sufficient to support his conviction for child neglect;
(3) whether improper expert opinion invaded the province of the jury and denied him a fair trial;
(4) whether the district court erred in refusing defense counsel's request for an instruction on the offense of child endangerment; and
(5) whether he received the effective assistance of counsel.
¶2 After thorough consideration of these propositions, and the entire record before us on appeal, including the original record, transcripts, exhibits and briefs of the parties, we AFFIRM Lewallen's conviction. However, finding merit with Lewallen's first proposition of error, we VACATE the sentence and REMAND this matter for RESENTENCING.
1.
¶3 Lewallen contends the trial court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies. For the reasons set forth below, we agree. The jury was incorrectly instructed pursuant to 21 O.S.2011, § 51.1(B) that the range of punishment was 20 years to life imprisonment. Although Lewallen failed to timely object, this error constitutes plain error which requires Lewallen's sentence be vacated and the case remanded for resentencing with proper instructions on the range of punishment. See Scott v. State, 1991 OK CR 31, ¶ 14, 808 P.2d 73, 77 (in a non-capital case where the Court has determined that a sentence is infirm due to trial error it may exercise one of three options: modify within the range of punishment, modify to the minimum punishment allowable by law, or remand to the trial court for resentencing); 22 O.S.2011, § 1066.
¶4 When a defendant with two or more felony convictions is convicted of an offense enumerated in 57 O.S.2011, § 571, his punishment range is 20 years to life. 21 O.S.2011, § 51.1(B). If the conviction is for an offense not listed in § 571, and the offense does not carry a minimum sentence for a first offense, the range of punishment is 4 years to life. 21 O.S.2011, § 51.1(C). While child abuse is an enumerated offense under § 571,2 child neglect is not. The State asserts that the definition of child abuse includes neglect, and accordingly, the inclusion of child abuse in § 571 automatically encompasses child neglect. The Court's resolution of this issue in unpublished cases has been inconsistent--both accepting and rejecting the State's assertion.3 A definitive resolution of this issue is necessary to rectify the confusion created by these cases.
¶5 At the time of Lewallen's offense, the definition of "child abuse" as provided within 21 O.S.2011, § 843.5(A) specifically referenced the definition of "abuse" set forth in 10A O.S.Supp.2012, §§ 1-1-105(2) of the Oklahoma Children's Code. This definition contains the phrase "harm or threatened harm." Id. "Harm" is defined in subsection 1-1-105(2)(a) and includes the term "neglect." It is the inclusion of the word "neglect" within this definition that provides the basis for the State's argument.
¶6 "[T]o ascertain the intention[s] of the Legislature . . . , we may look to each part of the statute, to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation." State ex rel. Mashburn v. Stice, 2012 OK CR 14, ¶ 11, 288 P.3d 247, 250 (citing Lozoya v. State, 1996 OK CR 55, ¶ 20, 932 P.2d 22, 28). "Each part of the various statutes must be given intelligent effect." Id.
¶7 The relevant statutes which must be evaluated and balanced in this matter are 21 O.S.2011, § 843.5 and 57 O.S.2011, § 571. Pursuant to 21 O.S.2011, §§ 843.5(A) and (C), child abuse and child neglect are separate and distinct criminal offenses. Simply, each offense is defined differently. As previously noted, child abuse was defined by 10A O.S.Supp.2012, § 1-1-105(2)4 at the time of Lewallen's offense. On the other hand, the crime of child neglect was defined by 10A O.S.Supp.2012, § 1-1-105(47).5 By definition both offenses include a failure to protect component. However, the protection component of child neglect is strictly limited to protecting a child from exposure to drugs, illegal activities or sexual acts. 21 O.S.2011, § 843.5(C); 10A O.S.Supp.2012, § 1-1-105(47). Hence, while some instances of child neglect could amount to child abuse, not every case of neglect is encompassed within child abuse. Indeed, in light of the definitional restrictions set forth in § 1-1-105(47), it is a stretch to say that even a bare majority of the instances of child abuse would amount to child neglect or vice versa. Thus, the Legislature clearly intended to create two separate criminal offenses. Lumping the two offenses together with regard to § 571 ignores the distinct delineation between the two offenses.
¶8 Had the Legislature intended for both offenses to be designated as a "violent crime" pursuant to § 571, it would have specifically designated both offenses as such in § 571. To find otherwise fails to give "intelligent effect" to each part of the relevant statutes. See Stice, 2012 OK CR 14, ¶ 11, 288 P.3d at 250. Thus, finding the jury was incorrectly instructed pursuant to 21 O.S.2011, § 51.1(B), Lewallen's sentence should be vacated and the case remanded for resentencing with proper instructions on the range of punishment--4 years to life.
2.
¶9 After reviewing the evidence in the light most favorable to the State, we find that any rational trier of fact could find beyond a reasonable doubt that Lewallen was guilty of child neglect based on the evidence presented at trial. See Logsdon v. State, 2010 OK CR 7, ¶ 5, 231 P.3d 1156, 1161; Spuehler v. State, 1985 OK CR 132, ¶ 7, 709 P.2d 202, 203-204. The evidence was sufficient to sustain Lewallen's conviction.
3.
¶10 We reject Lewallen's claim that he was denied a fair trial by admission of improper expert opinion from a pediatrician who examined the victims for abuse and neglect. The medical expert was qualified based on her training and experience to testify on the subject of child neglect. 12 O.S.Supp.2013, § 2702. Her testimony was helpful and admissible to assist the jury in its determination of the issues at trial. See Coddington v. State, 2006 OK CR 34, ¶ 41, 142 P.3d 437, 449 ("Any properly qualified expert testifying in accordance with the standards governing admissibility of expert testimony may offer an opinion on the ultimate issue if it would assist the trier of fact.") (quoting Johnson v. State, 2004 OK CR 25, ¶ 16, 95 P.3d 1099, 1104).
4.
¶11 We find that the trial court did not abuse its discretion in denying Lewallen's requested jury instruction on the offense of child endangerment because the evidence did not support this instruction. Jones v. State, 2006 OK CR 17, ¶ 6, 134 P.3d 150, 154; Shrum v. State, 1999 OK CR 41, ¶ 9, 991 P.2d 1032, 1036 (a lesser offense instruction should not be given unless the evidence would support a conviction for the lesser offense).
5.
¶12 Lewallen's final claim of ineffective assistance of counsel has been rendered moot by this Court's finding of error in proposition one, which dictates Lewallen's sentence be vacated and the case remanded for resentencing.
DECISION
¶13 The Judgment is AFFIRMED, but the Sentence is VACATED and the cause REMANDED to the District Court for RESENTENCING consistent with this Opinion. Lewallen's request for oral argument is DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2015), the MANDATE is ORDERED issued upon delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTYTHE HONORABLE MARK BARCUS, DISTRICT JUDGE
APPEARANCES AT TRIALCHARLES SULLIVAN SARA GARRETTASSISTANT PUBLIC DEFENDERS423 S. BOULDER, SUITE 300TULSA, OK 74103ATTORNEYS FOR DEFENDANT
APPEARANCES ON APPEALSTUART W. SOUTHERLAND ASSISTANT PUBLIC DEFENDER423 S. BOULDER, SUITE 300TULSA, OK 74103ATTORNEY FOR APPELLANT
KEVIN GRAY ASSISTANT DISTRICT ATTORNEY500 S. DENVERTULSA, OK 74103ATTORNEY FOR STATE
E. SCOTT PRUITT OKLAHOMA ATTORNEY GENERALMATTHEW L. WARRENASSISTANT ATTORNEY GENERAL313 N.E. 21ST STREETOKLAHOMA CITY, OK 73105ATTORNEYS FOR APPELLEE
OPINION BY: HUDSON, J.SMITH, P.J.: CONCURS IN PART/DISSENTS IN PARTLUMPKIN, V.P.J.: CONCURSJOHNSON, J.: CONCURS IN PART/DISSENTS IN PARTLEWIS, J.: CONCURS
FOOTNOTES
1 Under 21 O.S.2011, § 13.1, Lewallen must serve 85% of the sentence imposed before he is eligible for parole.
2 57 O.S.2011, § 571(2)(w).
3 See Littleraven v. State, No. C-2014-0693 (Okl.Cr. July 9, 2015) (Unpublished) (Petitioner who entered guilty plea to child neglect after former conviction of two or more felonies was allowed to withdraw his guilty plea after being advised that the range of punishment was 20 years to life because child neglect is not a specifically enumerated crime under 57 O.S.2011, § 571); Cole v. State, No. F-2013-0813 (Okl.Cr. Oct. 29, 2014) (Unpublished) (inclusion of child abuse in § 571 encompasses child neglect); Jackson v. State, No. F-2013-0833 (Okl.Cr. Oct. 1, 2014) (Unpublished) (same).
4 Effective May 9, 2014, the Legislature amended Title 21, Section 843.5(A) wholly defining "child abuse" within the subsection and removing its reference to Title 10A, § 1-1-105(2) for the definition. Notably, "neglect" is not included within this definition.
5 The current version of Title 21, Section 843.5(C)--child neglect--still references § 1-1-105 for the definition of "child neglect".
JOHNSON, J., CONCURRING IN PART AND DISSENTING IN PART:
¶1 The majority concludes, and I agree, that Lewallen's Judgment should be affirmed. I cannot agree, however, with the majority's conclusion that error raised in Proposition 1 requires the case be remanded for resentencing. I would reject Lewallen's claim that the district court erroneously instructed the jury on the range of punishment for child neglect after former conviction of two or more felonies. When a defendant with two or more felony convictions is convicted of an offense enumerated in 57 O.S.2011, § 571, his punishment range is twenty years to life. 21 O.S.2011, § 51.1(B). Child abuse is an enumerated offense under § 571. 57 O.S.2011, § 571(2)(w). "Abuse" is defined, in pertinent part, as "harm or threatened harm or failure to protect from harm or threatened harm to the health, safety, or welfare of a child[.]" 10A O.S.Supp.2012, § 1-1-105(2). "Harm or threatened harm to the health or safety of a child" is further defined as "any real or threatened physical, mental, or emotional injury or damage to the body or mind that is not accidental including but not limited to sexual abuse, sexual exploitation, neglect, or dependency." Id. § 1-1-105(2)(a) (emphasis added). In other words, "neglect" is explicitly included in the definition of "harm or threatened harm to the health or safety of a child," a phrase used to define "child abuse." The inclusion of child abuse in § 571, therefore, automatically encompasses child neglect. The district court properly instructed the jury on the range of punishment under 21 O.S.2011, § 51.1(B). I would find, therefore, that because the jury instructions, as a whole, fairly and accurately stated the applicable law in effect at the time the crime was committed there was no abuse of discretion. See Hicks v. State, 2003 OK CR 10, ¶ 3, 70 P.3d 882, 883.
¶2 I am authorized to state that Judge Smith joins this opinion.
Citationizer© Summary of Documents Citing This Document
Cite
Name
Level
None Found.
Citationizer: Table of Authority
Cite
Name
Level
Oklahoma Court of Criminal Appeals Cases
CiteNameLevel
1991 OK CR 31, 808 P.2d 73, Scott v. StateDiscussed
1996 OK CR 55, 932 P.2d 22, Benjamin Lozoya v. StateDiscussed
1999 OK CR 41, 991 P.2d 1032, Shrum v. StateDiscussed
2003 OK CR 10, 70 P.3d 882, HICKS v. STATEDiscussed
2004 OK CR 25, 95 P.3d 1099, JOHNSON v. STATEDiscussed
2006 OK CR 17, 134 P.3d 150, JONES v. STATEDiscussed
2006 OK CR 34, 142 P.3d 437, CODDINGTON v. STATEDiscussed
2010 OK CR 7, 231 P.3d 1156, LOGSDON v. STATEDiscussed
2012 OK CR 14, 288 P.3d 247, STATE v. STICEDiscussed at Length
1985 OK CR 132, 709 P.2d 202, SPUEHLER v. STATEDiscussed
Title 12. Civil Procedure
CiteNameLevel
12 O.S. 2702, Testimony by ExpertsCited
Title 21. Crimes and Punishments
CiteNameLevel
21 O.S. 13.1, Required Service of Minimum Percentage of Sentence - Offenses SpecifiedCited
21 O.S. 51.1, Punishment for Second and Subsequent Offenses after Conviction of Offense Punishable by Imprisonment in State PenitentiaryDiscussed at Length
21 O.S. 843.5, Abuse, Neglect, Exploitation, or Sexual Abuse of Child - PenaltiesDiscussed at Length
Title 22. Criminal Procedure
CiteNameLevel
22 O.S. 1066, Power of Appellate Court - Procedure When Case Reversed for New Trial - Duties of Court ClerkCited
Title 57. Prisons and Reformatories
CiteNameLevel
57 O.S. 571, DefinitionsDiscussed at Length
| {
"pile_set_name": "FreeLaw"
} |
98 B.R. 497 (1988)
In the Matter of Dennis Milford WEAVER, Debtor.
Bankruptcy No. BK88-40002.
United States Bankruptcy Court, D. Nebraska.
September 30, 1988.
Terri Sue Harder, Kearney, Neb., for debtor.
Clay B. Statmore, Lincoln, Neb., for Ms. Weaver.
John Wolf, Grand Island, Neb., trustee.
MEMORANDUM OPINION
JOHN C. MINAHAN, Jr., Bankruptcy Judge.
THIS MATTER is before the court on the objection of debtor's ex-wife to a claimed exemption for $26,365.00 held by debtor in a retirement plan in this Chapter 7 bankruptcy case. This case involves the interpretation of Nebraska's recently enacted exemption for stock, pension or similar plans under Neb.Rev.Stat. § 25-1563.01 (Supp.1987). Critical to disposition of this case is the meaning of the statutory phrase which limits the exemption to funds "reasonably necessary for the support of the debtor and any dependent of the debtor."
FACTS
The debtor is a twenty-eight-year-old male who is employed full-time by Nebraska Public Power District ("NPPD"), where he earns $13.64 an hour. The debtor is divorced, but he has one dependent, a four-year-old daughter who lives with her mother. The debtor's current monthly expenses are $1,689.29.
Through his employer, the debtor has a term life insurance policy, an accidental death and dismemberment policy, and a long-term disability policy. On the death of the debtor, the life and accidental death insurance policies will pay an amount equal to one and one-half times the debtor's annual salary. In the event of total disability, the disability insurance would pay sixty (60) percent of covered monthly earnings, not exceeding $3,000.00 per month.
The debtor also has a retirement plan through his employer. The current total balance of the retirement fund is $26,365.00, $16,711.00 of which is currently vested. The debtor has claimed that his entire interest in the retirement fund is exempt under Neb.Rev.Stat. § 25-1563.01. The debtor's ex-wife, a judgment creditor *498 listed on the debtor's bankruptcy schedules, filed an objection to this claimed exemption. At the hearing on the objection, the parties agreed that the retirement plan was a "pension or similar" plan under section 25-1563.01. The issue left unresolved was the meaning of the statutory phrase "to the extent reasonably necessary for the support of the debtor and any dependent of the debtor." The debtor claims that the entire amount in his retirement fund is reasonably necessary for the support of himself and of his dependent, and is thus entirely exempt from the claims of his creditors. The debtor argues that the legislative history behind section 25-1563.01 reveals that the objective of the state legislature in passing the law was not to deprive an innocent wage-earner of a long standing employer-based retirement plan. Rather, the objective of the legislature was to limit the previously existing unlimited exemption for annuities and unmatured life insurance.
The first issue presented for determination is the meaning of the phrase "to the extent reasonably necessary for the support of the debtor and any dependent of the debtor" as used in Neb.Rev.Stat. § 25-1563.01.
DISCUSSION
Section 25-1563.01 contains language similar to the exemption of retirement benefits found in Bankruptcy Code § 522(d)(10)(E), which is not applicable in Nebraska. The Nebraska exemption statute reads as follows:
25-1563.01. Stock, pension, or similar plan or contract; exempt from certain process; when. In bankruptcy and in the collection of a money judgment, the following benefits shall be exempt from attachment, garnishment, or other legal or equitable process and from all claims of creditors: To the extent reasonably necessary for the support of the debtor and any dependent of the debtor, (emphasis added), an interest held under a stock bonus, pension, profit sharing, or similar plan or contract payable on account of illness, disability, death, age, or length of service unless:
(1) Within two years prior to bankruptcy or to entry against the individual of a money judgment which thereafter becomes final, such plan or contract was established or was amended to increase contributions by or under the auspices of the individual or of an insider that employed the individual at the time the individual's rights under such plan or contract arose; or
(2) Such plan or contract does not qualify under section 401(a), 403(a), 403(b), or 408 of the Internal Revenue Code of 1986 or the successors of such section.
For purposes of this section, unless the context otherwise requires, insider shall have the meaning provided in 11 U.S.C. 101(30).
In determining the meaning of the exemption provided by Neb.Rev.Stat. § 25-1563.01, this court must apply Nebraska law. Since there are no state judicial decisions construing this statute, this court must decide the issue as it concludes the issues would be decided by the Nebraska Supreme Court. In the interpretation and construction of exemption statutes, the Nebraska Supreme Court has often stated that exemption statutes are to be liberally construed to effectuate their statutory purpose. See generally In the Matter of Welbourne, 63 B.R. 23, 25-26 (Bkrtcy.D. Neb.1986); In re Estate of Grassman, 183 Neb. 147, 152, 158 N.W.2d 673, 676 (1968); Hawley v. Arnold, 137 Neb. 238, 288 N.W. 823 (1939); Duncan, Through the Trapdoor Darkly: Nebraska Exemption Policy and the Bankruptcy Reform Act of 1978, 60 Neb.L.Rev. 219, 241, 252 (1981).
The statute does not elaborate on the meaning of the phrase "to the extent reasonably necessary for the support of the debtor and any dependent." The legislative history is helpful. Under the previous version of this statute there was no limitation on the amount of funds held in an annuity or unmatured insurance contract. See Neb.Rev.Stat. § 44-371. This was of considerable concern to creditors who felt that an unlimited exemption was absurd and abusive. The legislature enacted section *499 25-1563.01 for the general purpose of placing a limitation upon the exemption for annuities and unmatured life insurance.
Although there have been no judicial decisions construing Neb.Rev.Stat. § 25-1563.01, there have been numerous decisions construing the similar language contained in the Bankruptcy Code exemption for retirement benefits. See 11 U.S.C. § 522(d)(10)(E). Section 522(d) exemption for retirement benefits is not applicable in Nebraska because in 1980 the Nebraska legislature elected not to provide its citizens the basic protections afforded by the contemporary exemptions set forth in the Bankruptcy Code. See Neb.Rev.Stat. § 25-15,105. However, the Nebraska legislature elected to use the same language in the recently enacted section 25-1563.01 as had been used by Congress in Bankruptcy Code Section 522(d)(10)(E), which states:
* * * * * *
(d) The following property may be exempted under subsection (b)(1) of this section:
* * * * * *
(10) The debtor's right to receive
* * * * * *
(E) a payment under a stock bonus, pension, profitsharing, annuity, or similar plan or contract on account of illness, disability, death, age, or length of service, to the extent reasonably necessary for the support of the debtor and any dependent of the debtor, (emphasis added),
* * * * * *
The legislative history behind the federal statute is of some help in determining the meaning of the "reasonably necessary" phrase as used in § 25-1563.01. The legislative history reveals that the federal exemptions are derived from the Uniform Exemptions Act. See In re Kochell, 732 F.2d 564, 565 (7th Cir.1984). Section 6 of the Act defined the "reasonably necessary" phrase as
property required to meet the present and anticipated needs of the individual and his dependents as determined . . . after consideration of the individual's responsibilities and all of the present and anticipated property and income of the individual, including that which is exempt. Id.
Based upon the language of section 6, it has been held that although the retirement benefits may not be currently necessary for support, the court may consider the future needs of the debtor in determining whether or not, or to what extent, retirement benefits are exempt. In re Miller, 33 B.R. 549, 552 (Bkrtcy.D.Minn.1983). The legislative history indicates that § 522(d)(10) deals with "benefits that are akin to future earnings of the debtor." H.R.Rep. 595, 95th Cong., 1st Sess., 362 (1977), reprinted in 1978 U.S.Code Cong. & Admin.News 5787, 6318. Thus, the court in Miller indicated that since § 522(d)(10) deals with the right to future payments, the necessity for the debtor's future support should also be considered.
However, at least one court has held that the exemption of future payments under a retirement plan demonstrates a concern for the debtor's long-term security, and that this is a concern which is absent from the federal exemption statute. That court held that only present payments to the extent reasonably necessary for the present support of the debtor may be exempt. In re Clark, 711 F.2d 21, 23 (3rd Cir.1983). A separate opinion was filed, however, which disagreed with the majority.
In construing § 25-1563.01, a court should consider the future needs of the debtor and any dependents; the exemption should be construed to permit retirement plans to serve their intended purposes of providing funds "reasonably necessary for support of the debtor and any dependent of the debtor on account of illness, disability, death, age or length of service." This statutory exemption would be devoid of meaning, and its expressed purpose would be frustrated if a court did not consider the future needs of the debtor and any dependents of the debtor. In the context of other Nebraska exemptions, such as the Homestead Exemption, the in-lieu-of homestead exemption, the exemptions for tools of trade, provisions for six months, household *500 goods and wearing apparel, it is apparent that the exemption for retirement plans is referable to a legislative policy of exempting funds for future retirement needs and future expenses. See Neb.Rev.Stat. § 40-101; § 25-1552; § 25-1556. Accordingly, in construing § 25-1563.01, the court will consider the future needs of the debtor and his dependents.
The next question is how to determine what is "reasonably necessary," either presently or in the future. The leading case interpreting the "reasonably necessary" language of the federal exemption is In re Taff, 10 B.R. 101 (Bkrtcy.D.Conn. 1981). The Taff court held that
the reasonably necessary standard requires that the court take into account other income and exempt property of the debtor, present and anticipated, . . . and that the appropriate amount to be set aside for the debtor ought to be sufficient to sustain basic needs, not related to his former status in society or the lifestyle to which he is accustomed but taking into account the special needs. . . . Id. at 107.
In the case of In re McCabe, 74 B.R. 119, 122 (Bkrtcy.N.D. Iowa 1986), the court listed several factors to consider in the determination of whether property claimed as exempt is reasonably necessary. Those factors are:
(1) debtor's present and anticipated living expenses; (2) debtor's present and anticipated income from all sources; (3) age of the debtor and dependents; (4) health of the debtor and dependents; (5) debtor's ability to work and earn a living; (6) debtor's job skills, training, and education; (7) debtor's other assets, including exempt assets; (8) liquidity of other assets; (9) debtor's ability to save for retirement; (10) special needs of the debtor and dependents; (11) debtor's financial obligations, e.g. alimony or support payments.
The court concludes that the Nebraska Supreme Court would consider the factors enumerated by the court in In re McCabe, id., in construing the "reasonably necessary" language in section 25-1563.01.
Other cases interpreting the phrase "reasonably necessary for the support of the debtor and any dependent of the debtor" have distinguished between younger and elderly debtors. For example, In re Kochell, supra, involved a debtor who was a 44 year-old medical doctor. The court refused to exempt funds deposited by the debtor in his pension plans. The Seventh Circuit Court of Appeals held that the bankruptcy court properly considered the debtor's present earnings as a factor weighing against a finding that the funds were reasonably necessary for support. The court considered the debtor's ability to reestablish a retirement fund. Id. at 566. On the other hand, In re Donaghy, 11 B.R. 677 (Bkrtcy.S.D.N.Y.1981), involved a 62 year-old unemployed debtor with emphysema who had a 64 year-old wife with cancer. Here, no future earning capacity existed. The court granted the exemption of the debtor's retirement benefits.
Even in cases involving younger debtors, the courts have not consistently denied the exemption for retirement benefits. See In re Miller, supra; In re Sheridan, 38 B.R. 52 (Bkrtcy.D.Vt.1983); In re Johnson, 36 B.R. 54 (Bkrtcy.D.N.M.1984); In re Grant, 40 B.R. 612 (Bkrtcy.N.D.Tex.1984); and In re Schlee, 60 B.R. 524 (Bkrtcy.D.Minn. 1986). These cases have considered the number of working years the debtor has left, present income, future income, etc. In each case the debtor was 56 years old or younger, and had a modest income. The courts granted the exemption for retirement benefits.
In applying the factors enumerated in In re McCabe, supra, this court concludes that the entire amount in the retirement plan is exempt under Neb.Rev.Stat. § 25-1563.01 (Cumm.Supp.1987). Although the debtor is only 28 years old and presumably in good health, the amount of his accrued retirement does not exceed an amount reasonably necessary for the support of the debtor and his dependents when evaluated from the standpoint of present and future needs. Of the $26,355.00 balance of the retirement fund, $16,710.00 is vested. The non-vested amount is the real *501 amount in controversy in this case and it may be further reduced by federal and state income taxes and possible penalties if the funds are withdrawn. The vested portion of the account would not be sufficient to pay one year's budgeted expenses of the debtor and his dependent.
In the event of death and disability of the debtor, the funds will be reasonably necessary for the support of debtor's dependent. On the death of the debtor, the amount paid under debtor's life and accidental death policies would equal one and one-half times debtor's current annual salary. Should a total disability occur, the debtor's disability insurance would pay sixty (60) percent of covered monthly earnings, not exceeding $3,000.00 monthly. These amounts are modest when compared to the future needs of the debtor and debtor's dependent.
The retirement funds are also reasonably necessary to support the debtor in his old age. As has been noted in case law, benefits received from social security are likely to be low. See In re Schlee, supra, at 529; In re Miller, supra, at 553. Social security benefits will need to be supplemented by other sources of income to adequately provide for retirement. Debtor's retirement benefits are reasonably necessary to provide a supplement to social security.
Under Bankruptcy Rule 4003(c), the objecting party has the burden of proving that the exemptions are not properly claimed. The objecting party herein has failed to show that the debtor's retirement benefits are not reasonably necessary for support in the future. Specifically, the objecting party has failed to establish that the debtor's living expenses can be met in some way other than through his present retirement benefits. Further, there is no evidence that the debtor has other assets, including exempt assets, sufficient to provide for his own and his dependent's future support should his retirement benefits not be exempt from the claims of his creditors.
The court, therefore, concludes as a finding of fact, that the entire amount held by debtor in his retirement account is reasonably necessary for the support of the debtor and his dependent.
However, even though debtor's retirement plan is exempt from the claims of creditors, it would defy logic to permit the exemption to be asserted by the debtor against claims for support asserted by his dependents. The statutory purpose of Neb.Rev.Stat. § 25-1563.01 is to protect funds "reasonably necessary for the support of the debtor and any dependent." If the exemption could be asserted against claims for support, not only would the statutory purpose of providing for support be frustrated, but the statutory exemption would become the means by which support obligations could be avoided.
As stated by the Supreme Court in Wetmore v. Markoe, 196 U.S. 68, 25 S.Ct. 172, 49 L.Ed. 390 (1904),
Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral or legal, devolved upon the husband to support his wife and to maintain and educate his children.
196 U.S. 77, 25 S.Ct. 175. These words are applicable here.
The enactment of section 25-1563.01 by the Nebraska legislature does not positively require that the exemption be effective against claims of dependents for support.
As a matter of statutory construction, the court concludes that there is a necessarily implied exception to section 25-1563.01. The exemption is not effective against claims for support asserted by a dependent of the debtor. Dependents are not "creditors" within the meaning of the statute. This implied exception is necessary to assure that the statutory purpose is not frustrated. See, cf. American Tel. & Tel. Co., v. Merry, 592 F.2d 118 (2nd Cir. 1979). (Court found an implied exception to ERISA restrictions on alienation in family support situations and discussed numerous judicial decisions); Tenneco Inc. v. First Virginia Bank of Tidewater, 698 F.2d 688 (4th Cir.1983).
*502 The principle of estoppel also bars the debtor from asserting the exemption against his dependents. The exemption is limited to amounts "reasonably necessary for support of the debtor and his dependents." By taking the position that the retirement funds are necessary for the support of dependents, the debtor is precluded from taking the legal position that the retirement funds are exempt from claims for support.
A separate order will be entered consistent herewith.
| {
"pile_set_name": "FreeLaw"
} |
528 F.3d 756 (2008)
VANGUARD ENVIRONMENTAL, INC., Plaintiff-Counter-Defendant-Appellee,
v.
Dermot M. KERIN; United Services Environmental, Inc., Defendants-Counter-Claimants-Appellants.
No. 07-5077.
United States Court of Appeals, Tenth Circuit.
June 9, 2008.
*757 Michael C. Redman, Doerner, Saunders, Daniel & Anderson, L.L.P., Tulsa, OK, appearing for Appellant.
*758 J. Patrick Mensching, Lyons, Clark & Mensching, Inc., Tulsa, OK, appearing for Appellee.
Before TACHA, EBEL, and McCONNELL, Circuit Judges.
TACHA, Circuit Judge.
Defendants-Appellants Dermot M. Kerin and United Services Environmental, Inc. ("United Services") appeal from the district court's order denying them attorneys' fees under Federal Rules of Civil Procedure 41 and 54. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
I. BACKGROUND
Mr. Kerin was hired as a regulatory specialist by Plaintiff-Appellee Vanguard Environmental, Inc. ("Vanguard"), an environmental compliance consulting company, in July 1994. His employment agreement contained a covenant not to compete, a covenant not to solicit, and a covenant not to disclose confidential and proprietary information. Mr. Kerin resigned his position with Vanguard in January 1997.
In November 1999, Mr. Kerin founded United Services, also an environmental compliance consulting company. Shortly after Mr. Kerin began making sales calls, Vanguard's president, Michael Jameson, sent Mr. Kerin a letter reminding him of the terms of the employment agreement and accusing him of violating it in several respects. Approximately four years later, in November 2004, Vanguard filed a petition against Mr. Kerin and United Services in state court alleging various causes of action, including misappropriation of trade secrets in violation of the Oklahoma Uniform Trade Secrets Act ("OTSA"), Okla. Stat. tit. 78, § 85 et seq., and deceptive trade practices in violation of the Oklahoma Deceptive Trade Practices Act ("ODTPA"), Okla. Stat. tit. 78, § 51 et seq. Invoking federal diversity jurisdiction, Mr. Kerin subsequently removed the case to federal district court.
Only one depositionof Vanguard's president, Mr. Jamesonwas conducted by the parties, and thereafter the defendants filed a motion for summary judgment. Vanguard filed a response to the defendants' motion, but a few days later filed a motion to dismiss the action with prejudice. The district court sustained Vanguard's motion to dismiss on December 5, 2006. The defendants filed a motion for attorneys' fees pursuant to Federal Rules of Civil Procedure 41 and 54. The district court denied the motion, finding that Vanguard did not bring the action in bad faith and there were no exceptional circumstances justifying an award of fees. The defendants timely appealed.
II. DISCUSSION
A. Bad Faith
We review for abuse of discretion the district court's denial of a motion for attorneys' fees under Federal Rule of Civil Procedure 54(d)(2). Quigley v. Rosenthal, 427 F.3d 1232, 1236 (10th Cir.2005). Generally, a party seeking attorneys' fees under Rule 54(d)(2) must specify "the statute, rule, or other grounds entitling the [party] to the award." Fed.R.Civ.P. 54(d)(2)(B)(ii). Here, the defendants seek attorneys' fees under two Oklahoma statutes.
For a claim brought under the OTSA, a court "may award reasonable attorney's fees to the prevailing party if . . . [a] claim of misappropriation is made in bad faith." Okla. Stat. tit. 78, § 89(1). In an action brought under the ODTPA, the court "may, in its discretion, award reasonable attorneys' fees to the prevailing party," and if the court finds the plaintiff "acted in *759 bad faith in instituting the action," it must award attorneys' fees to the prevailing party. See Okla. Stat. tit. 78, § 54(C) (emphasis added). We assume, without deciding, that the defendants are "prevailing parties" for purposes of Oklahoma law, as Vanguard conceded this point in the district court and has thus waived it on appeal.[1]See Rosewood Servs., Inc. v. Sunflower Diversified Servs., Inc., 413 F.3d 1163, 1167 (10th Cir.2005) (noting that arguments not made in the district court are waived on appeal). The only issue, therefore, is whether Vanguard pursued this action in bad faith.
Oklahoma courts generally find bad faith "when the claim was made for oppressive, abusive or wasteful reasons." Green Bay Packaging, Inc. v. Preferred Packaging, Inc., 932 P.2d 1091, 1099 (Okla.1996) (quotation omitted). The court's inquiry focuses on "the intent of the actor who brought the claim," and "does not involve the quality or quantity of the evidence presented." Id. (emphasis added). For instance, in Green Bay, the Oklahoma Supreme Court held that the trial court did not err in awarding attorneys' fees based on bad faith when the record contained evidence that the plaintiff's intent in bringing a misappropriation claim was to drive the defendants out of business. Id.; see also Whitlock v. Bob Moore Cadillac, Inc., 938 P.2d 737, 739 (Okla.1997) ("[I]n the absence of a showing that the [plaintiffs] were motivated by an improper purpose, such as a desire to ruin the [defendant's] business, the award of an attorney's fee was error."). Here, the district court found simply that the "Defendants' allegations that Vanguard commenced this action in bad faith have not been substantiated."
As to Vanguard's misappropriation claim under the OTSA, the defendants point primarily to an alleged lack of evidence as the basis for bad faith. They argue that "there was no objective or subjective basis for the claim." As explained above, however, Oklahoma courts do not look to the quality or quantity of the evidence to determine the existence of bad faith. The defendants do not point to any evidence in the record that would indicate Vanguard's action was "motivated by an improper purpose." See Whitlock, 938 P.2d at 739. Absent such evidence, we cannot conclude that the district court abused its discretion.
The defendants' claim for attorneys' fees under the ODTPA is also based on an alleged lack of evidence that Mr. Kerin made false or misleading factual representations disparaging the goods, services, or business of Vanguard. See Okla. Stat. tit. 78, § 53(A)(8). But the defendants have failed to demonstrate that Vanguard acted with any illicit intent in bringing an action under the ODTPA. Moreover, the record contains evidence that Vanguard's president and sole shareholder honestlyeven if incorrectlybelieved that the defendants violated the ODTPA. Accordingly, the district court did not abuse its discretion in denying the defendants' motion for attorneys' fees based on the ODTPA.
B. Exceptional Circumstances
Unless the plaintiff seeks to dismiss an action before the defendant files an answer or all parties stipulate to dismissal, "an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper." Fed.R.Civ.P. 41(a)(2). The defendants argue that the *760 district court erred in declining to award attorneys' fees as a term and condition of dismissala decision we review for abuse of discretion. See AeroTech, Inc. v. Estes, 110 F.3d 1523, 1527 (10th Cir.1997).
A defendant may not recover attorneys' fees when a plaintiff voluntarily dismisses an action with prejudice, however, absent "exceptional circumstances." See id. at 1528 ("[W]hen a plaintiff dismisses an action with prejudice, attorneys' fees are usually not a proper condition of dismissal because the defendant cannot be made to defend again."). The defendants contend that Vanguard's action presents an exceptional circumstance because the action closely resembles a previously filed action against another former employee, Vanguard failed to substantiate its allegations, and Vanguard dismissed the action shortly before trial. They do not, however, cite any case where a court has found similar circumstances to be "exceptional." Moreover, the instant case falls short of the type of circumstances we have indicated might be sufficient to award attorneys' fees. See Steinert v. Winn Group, Inc., 440 F.3d 1214, 1222 (10th Cir.2006) (stating that an example of an exceptional circumstance is "`when a litigant makes a repeated practice of bringing claims and then dismissing them with prejudice after inflicting substantial litigation costs on the opposing party and the judicial system'" (quoting AeroTech, 110 F.3d at 1528)). Therefore, the district court did not abuse its discretion in declining to award attorneys' fees based on exceptional circumstances.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court's denial of attorneys' fees under Federal Rules of Civil Procedure 41 and 54.
NOTES
[1] In its response to the defendants' motion for attorneys' fees, Vanguard stated that "Defendants are correct in claiming they are `prevailing parties' due to Vanguard's judicially-approved dismissal of its Petition."
| {
"pile_set_name": "FreeLaw"
} |
IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
JOSEPH GLENN SAVICKI, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-1900
STATE OF FLORIDA,
Appellee.
___________________________/
Opinion filed September 16, 2016.
An appeal from an order of the Circuit Court for Santa Rosa County.
Ross M. Goodman, Judge.
Joseph Glenn Savicki, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
B.L. THOMAS, ROWE, and WINSOR, JJ., CONCUR.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4781
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOMINIQUE ANTOINE WOODS, a/k/a Stat, a/k/a Stack,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Terrence W. Boyle,
District Judge. (4:12-cr-00028-BO-1)
Submitted: May 13, 2013 Decided: May 31, 2013
Before SHEDD, DUNCAN, and WYNN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dominique Antoine Woods was sentenced to thirty-six
months’ imprisonment after pleading guilty, pursuant to a
written plea agreement, to one count of conspiracy to distribute
and possess with intent to distribute cocaine, in violation of
21 U.S.C. §§ 841, 846 (2006). As part of his plea agreement,
Woods waived the right to appeal his sentence as long as it did
not exceed the Guidelines range established at sentencing. On
appeal, counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), certifying that there are no meritorious
issues for appeal but questioning whether Woods’ sentence is
substantively unreasonable. The Government has moved to dismiss
Woods’ appeal, asserting that he waived the right to appeal his
sentence in the plea agreement. We dismiss in part and affirm
in part.
We review de novo whether a defendant has effectively
waived the right to appeal. United States v. Marin, 961 F.2d
493, 496 (4th Cir. 1992). A defendant may, in a valid plea
agreement, waive the right to appeal under 18 U.S.C. § 3742
(2006). United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). An appellate waiver must be “the result of a knowing and
intelligent decision to forgo the right to appeal.” United
States v. Broughton-Jones, 71 F.3d 1143, 1146 (4th Cir. 1995)
(internal quotation marks and citation omitted). To determine
2
whether a waiver is knowing and intelligent, this court examines
the totality of the circumstances, including the defendant’s
experience, conduct, educational background, and familiarity
with the plea agreement’s terms. United States v. General, 278
F.3d 389, 400 (4th Cir. 2002). Generally, if a court fully
questions a defendant regarding the appellate waiver during the
Rule 11 colloquy, the waiver is both valid and enforceable.
United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
However, this Court will refuse to enforce an otherwise valid
waiver if enforcing the waiver would result in a miscarriage of
justice. Id.
Upon review of the plea agreement and the transcript
of the Fed. R. Crim. P. 11 hearing, we conclude that Woods
knowingly and intelligently agreed to the waiver of appellate
rights as set forth in the plea agreement. During the Rule 11
colloquy, the court reviewed the terms of the plea agreement,
including the waiver provision, with Woods, and Woods affirmed
that he understood those terms. Moreover, Woods does not
contest the validity of the waiver either in his Anders brief or
in his response to the Government’s motion to dismiss. Because
Woods challenges the substantive reasonableness of his below-
Guidelines sentence, the issue he seeks to raise on appeal falls
squarely within the scope of the appellate waiver. Accordingly,
3
we grant the Government’s motion to dismiss Woods’ appeal of his
sentence.
The appellate waiver, however, does not preclude this
court’s review of Woods’ conviction pursuant to Anders. Prior
to accepting a guilty plea, a district court must conduct a plea
colloquy in which it informs the defendant of and determines
that the defendant understands: the nature of the charges to
which he is pleading guilty, any mandatory minimum penalty, the
maximum possible penalty, and the rights he is relinquishing by
pleading guilty. Fed. R. Crim. P. 11(b)(1); United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991). Additionally, the
district court must ensure that the defendant’s plea was made
freely and voluntarily and was supported by a factual basis.
Fed. R. Crim. P. 11(b)(2), (3).
Because Woods did not move to withdraw his guilty plea
in the district court or raise any objections to the Rule 11
colloquy, the colloquy is reviewed for plain error. United
States v. Martinez, 277 F.3d 517, 524-27 (4th Cir. 2002). To
demonstrate plain error, a defendant must show that: (1) there
was error, (2) the error was plain, and (3) the error affected
his “substantial rights.” United States v. Olano, 507 U.S. 725,
732 (1993). To establish that a Rule 11 error has affected a
defendant’s substantial rights, the defendant must “show a
reasonable probability that, but for the error, he would not
4
have entered the plea.” United States v. Dominguez Benitez, 542
U.S. 74, 83 (2004). Our review of the record reveals that the
district court substantially complied with Rule 11 in accepting
Woods’ guilty plea. Importantly, the district court properly
ensured that Woods’ plea was knowing, voluntary, and supported
by a sufficient factual basis.
In accordance with Anders, we have reviewed the record
in this case and have found no unwaived meritorious issues for
appeal. We therefore affirm Woods’ conviction.
This court requires that counsel inform Woods, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Woods requests that a
petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for
leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Woods. 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 IN PART;
AFFIRMED IN PART
5
| {
"pile_set_name": "FreeLaw"
} |
521 N.W.2d 649 (1994)
Paul SOWARDS, Appellant,
v.
HILLS MATERIALS COMPANY and Maryland Casualty Company, Appellees.
Nos. 18471, 18476.
Supreme Court of South Dakota.
Argued April 26, 1994.
Decided September 7, 1994.
*650 William Jason Groves and Michael L. Buffington of Groves Law Office, Rapid City, for appellant.
Benjamin J. Eicher and Heidi L. Towne of Wallahan and Eicher, Rapid City, for appellees.
AMUNDSON, Justice.
Paul Sowards appeals the circuit court's affirmance of the South Dakota Department of Labor's order permitting discovery by Hills Materials Company and Maryland Casualty Company. We affirm.
FACTS
On January 19, 1990, Paul Sowards (Sowards) became injured while working for Hills Materials Company (Employer). A stool broke as Sowards was stepping onto it, causing him to fall and sustain injuries to his right foot, ankle, knee, and hip. Some months after the accident, Sowards began experiencing impotency as well as inflammation of the right testicle. Eventually, in March 1992, Sowards underwent surgery by Dr. Andrew Yamada (Dr. Yamada) for a testicular inflammatory disease called "epididymo-orchitis." The pathologist involved in the surgery was Dr. James A. Rud (Dr. Rud).
Sowards filed a petition for hearing with the State Department of Labor (Department) on May 15, 1992. On June 12, 1992, Dr. Rud reported the condition of the testicle was not related to Sowards' work accident. On August 18, 1992, Dr. Yamada opined that the condition of the testicle was not "secondary to the previous injury [,i.e., work related]." On November 30, 1992, in response to Employer's request for admission, Sowards admitted that the testicular disease was not within the compensation duty of Employer, however, he refused to concede that his sexual dysfunction was not work-related. Consequently, the impotency condition is still disputed.
On January 28, 1993, Employer wrote a letter to Sowards' attorney requesting permission to ask Dr. Yamada and Dr. Rud to address whether the impotency claim was work-related.[1] On January 29, 1993, Sowards filed a motion for protective order to *651 prevent Employer from sending the proposed letter. Following a hearing on Sowards' motion for protective order, Department entered an order denying Sowards' motion.
Department's order provided the following:
1. Employer/Insurer's January 28, 1993, letter is a permissible communication with Claimant's doctors, is not subject to any physician-patient privilege, and is not an ex parte communication, as Claimant's attorney was provided a copy in advance;
2. Additional contacts by Employer/Insurer's counsel with Claimant's doctors are to be conducted in the following manner: if by letter, a copy is to be provided to Claimant's counsel in advance, with an opportunity given to object to inquiries irrelevant to the present action; if by conversation, in-person, on the phone, and the like, Claimant's counsel is to [be] notified, given the opportunity to participate, and to object to any inquiries deemed irrelevant to the present action. These guidelines in no way prevent [Employer's] use of permissible discovery procedures to obtain medical information, to call Claimant's doctors as witnesses in a hearing, or limit Employer/Insurer's right to seek an independent medical examination pursuant to SDCL 62-7.
Sowards appealed Department's order to the circuit court. The circuit court affirmed Department's order. Sowards appeals.
ISSUES
1. Did Department exceed its authority by issuing a discovery order allowing "informal" discovery over Sowards' objection?
2. Was Employer's letter to Sowards' "treating physicians" a permissible communication and not prohibited by Sowards' physician/patient privilege?
ISSUE ON NOTICE OF REVIEW
Did Department improperly restrict Employer's access to the "treating physicians" in its order?
STANDARD OF REVIEW
"We review the administrative agency's decision the same as did the circuit court. We do not substitute our judgment for that of the agency on the weight of the evidence unless clearly erroneous or characterized by an abuse of discretion." Rank v. Lindblom, 459 N.W.2d 247, 248 (S.D.1990) (citations omitted). "Nor do we make any presumptions that the circuit court's decision was correct." Schlenker v. Boyd's Drug Mart, 458 N.W.2d 368, 370 (S.D.1990) (citation omitted).
DISCUSSION
ISSUE 1
Did Department exceed its authority by issuing a discovery order allowing "informal" discovery over Sowards' objection?
Sowards argues that Department exceeded its statutory authority by issuing the order permitting Employer to contact the treating physicians because the Employer's contact with the treating physicians violates the physician/patient privilege and is also an ex parte communication.[2] Further, Sowards contends Department is required to follow the formal discovery rules as provided by SDCL 15-6-26.
Department ruled the proposed letter from Employer to the treating physicians was not subject to any physician/patient privilege and was not an ex parte communication because Sowards' attorney was provided with a copy of the letter in advance and was given an *652 opportunity to object. Department then ordered discovery to continue within certain procedural limits (i.e., notification of Sowards' attorney prior to contacting physicians).
Department's order of discovery will be reviewed under the abuse of discretion standard. Under the abuse of discretion standard, it is not for us to determine whether we would have made a like ruling, but whether a judicial mind in view of the law under the circumstances could reasonably have reached such a conclusion. Myron v. Coil, 82 S.D. 180, 143 N.W.2d 738 (1966); see also Wilcox v. City of Winner, 446 N.W.2d 772 (S.D.1989).
SDCL 15-6-1[3] provides that the rules of civil procedure govern procedure in the circuit courts. There is no statute or proclamation providing for worker's compensation proceedings to be governed by the rules of civil procedure. "Unless otherwise provided by statute or by proclamation of this court, such rules apply to no other proceedings." Perrine v. S.D. Dept. of Labor, 431 N.W.2d 156, 159 (S.D.1988). The logical conclusion is that worker's compensation proceedings are not governed by the rules of civil procedure unless otherwise ordered by the hearing officer. Perrine, 431 N.W.2d at 159; SDCL 1-26-19.2;[4]see also Lawler v. Windmill Restaurant, 435 N.W.2d 708 (S.D. 1989).
After reviewing all the evidence in this case, we conclude Department did not abuse its discretion by establishing the ground rules for informal discovery in a worker's compensation case. We agree with the Iowa Supreme Court's statement in Morrison v. Century Engineering, 434 N.W.2d 874, 877 (Iowa 1989): "The system is designed to be essentially nonadversarial. Whatever its faults, real or imagined, the system presupposes that all workers will benefit more if claims are processed routinely and paid quickly." Id. Department's order is a reasonable means of protecting the claimant's privacy interests while accommodating the nonadversarial, informal nature of worker's compensation proceedings.
ISSUE 2
Was Employer's letter to Sowards' "treating physicians" a permissible communication and not prohibited by Sowards' physician/patient privilege?
Sowards' motion for a protective order claimed Employer was making impermissible "ex parte" contacts with the treating physicians. In fact, at that time, Employer had not contacted the physicians but was simply informing Sowards of its plan to ask the physicians for their opinion of the work relatedness of Sowards' impotency. Department ruled the letter was not an ex parte communication because Sowards' attorney was provided with a copy in advance and no communication was made without prior notice. The circuit court affirmed this decision. We agree.
One of the primary purposes of the South Dakota Worker's Compensation Act is to provide an injured employee with a remedy which is both expeditious and independent of proof of fault. Scissons v. City of Rapid City, 251 N.W.2d 681, 686 (S.D.1977). In order to accommodate this purpose, worker's compensation procedure is "generally as summary and informal as is compatible with an orderly investigation of the merits." Larson, Worker's Compensation Law § 77A.00 (1993). "The whole idea is to get away from the cumbersome procedures ... and to reach a right decision by the shortest and quickest possible route." Id. at § 77A.10. This informality *653 not only prevents the defeat of claims by technicalities, but simplifies and expedites the achievement of substantially just results. Id. at § 77A.46.
Sowards also claims the letter is a violation of the physician/patient privilege. Department and the circuit court on appeal concluded the proposed communication was not subject to any physician/patient privilege. We agree.
The applicability of the physician/patient privilege to worker's compensation proceedings has been questioned by more than one scholar. "[E]nforcement of patient-physician privilege in an industrial accident tribunal is nonsense, obvious and complete." Maguire, Evidence Common Sense and Common Law 164 (1947). Professor Larson has written, "the validity of the privilege should be reexamined against the policies of compensation legislation. In particular, the physician-patient privilege ... is of doubtful utility[.]" Larson, Worker's Compensation Law § 79.83(c) (1993).
Under SDCL 1-26-19 South Dakota's administrative procedure provides: "The rules of evidence as applied under statutory provisions and in the trial of civil cases in the circuit courts of this state, or as may be provided in statutes relating to the specific agency, shall be followed.... Agencies shall give effect to the rules of privilege recognized by law."
SDCL 19-13-7[5] provides the physician/patient privilege in South Dakota. It is clear that South Dakota law implies a waiver of the privilege if, as here, a patient litigant has placed his or her physical condition at issue as the basis of a legal claim. The rules of evidence provide: "There is no privilege ... as to a communication relevant to an issue of the physical ... condition of the patient in any proceeding in which he relies upon the condition as an element of his claim or defense...." SDCL 19-13-11. Here, Sowards claims he suffers from impotency due to a work-related injury. This allegation directly implicates his physical health and constitutes a waiver of the privilege. Sheid v. Hewlett Packard, 826 P.2d 396 (Colo.App.1991).
The circuit court ruled that this communication did not violate the physician/patient privilege because SDCL 19-2-3 provides:
In any action or proceeding or quasi-judicial administrative proceeding, whenever the physical or mental health of any person is in issue, any privilege under § 19-13-7 shall conclusively be deemed to be waived at trial or for the purpose of discovery under chapter 15-6 if such action or proceeding is civil in nature ... (Emphasis added.)
The circuit court also cited SDCL 62-4-45, a worker's compensation provision, which provides:
All medical practitioners or surgeons attending injured employees shall comply with the rules promulgated pursuant to chapter 1-26 by the department of labor and shall make such reports as may be required by it. All medical and hospital information relevant to the particular injury shall, on demand, be made available to the employer, employee, insurer and the department of labor. No relevant information developed in connection with treatment or examination for which compensation is sought may be considered a privileged communication for purposes of a worker's compensation claim. If a medical practitioner or surgeon willfully fails to make any report required of him under this section, the department of labor may order the forfeiture of his right to all or part of payment due for services rendered in connection with the particular case. (Emphasis added.)
These statutory sections clearly indicate the legislature did not extend the physician/patient privilege to relevant medical information *654 in worker's compensation proceedings. There should be a free flow of information regarding an employee's physical condition when a worker's compensation claim is made.
Informality is in everyone's interest because in worker's compensation cases, unlike ordinary cases, liability is almost never an issue. The only question is the condition of the injured worker. Because of the narrow scope of inquiry the possibility of revealing extraneous evidence is lower in worker's compensation cases than in ordinary cases.
Morrison, 434 N.W.2d at 876.
Our review of the applicable South Dakota law and the facts of this case demonstrates that Department and circuit court correctly decided Employer's request would not violate the physician/patient privilege in this worker's compensation proceeding. This is especially true when the questions propounded could easily have been answered with a simple "yes" or "no."
We have reviewed the issue raised by Employer's notice of review and find it lacks merit. The circuit court order is affirmed in all respects.
MILLER, C.J., and WUEST, J., concur.
HENDERSON and SABERS, JJ., concur specially.
HENDERSON, Justice (specially concurring).
Theoretically, per the majority opinion, and acting upon an Iowa Supreme Court case in 1989, a worker's compensation case is supposed to be "nonadversarial." However, practically speaking, in my years of service to the public and the legal profession in South Dakota, I have not found that to be true. There are many highly skilled advocates in South Dakota whose practice emphasizes worker's compensation laws. They hold themselves out as highly knowledgeable in this area.
Our South Dakota Code reflects dozens of cases, tried below, which wended their way to the Supreme Court of this state for a decision. There is a wide variety of cases pertaining to (1) liability, (2) failure to file timely claims, (3) indemnification of third parties, (4) covered employment, (5) independent contractor or not, (6) burden of proof, (7) extent of disability, (8) mental disabilities, (9) election to proceed against employer, and (10) determination of necessary treatment, just to name a few.
As a practicing lawyer, trial judge and Supreme Court Justice for a period of over forty years, I have witnessed and participated in a great number of the aforementioned type of cases involving worker's compensation. Will "the system" (worker's compensation) be more beneficial "if claims are processed routinely and paid quickly?" Beneficial for whom?
It does not appear to me, notwithstanding this decision, that the practice of worker's compensation law, will become, per se, non-adversarial. Truly, legitimate claims should be paid and "quickly"in theorybut that does not always happen. And then the birth of legal controversy is upon us. This decision should not be a death knell for those who practice law in the field of worker's compensation. Nor should it be construed to hamper the legitimate claims of those who are injured in a dark mine in the Black Hills or a young lad who gets badly hurt unloading heavy boxes or a truck driver hauling cattle on an icy road or a nurse whose back is injured while lifting a patient. In commerce, there are many ways to be injured and there are many scenarios of different types of injuries. Questions from industrial accidents arise concerning permanent disability or permanent partial disability or death. There are many questions to be resolved in worker's compensation cases and the answers are not always black or white. There are areas of gray and that is when the lawyers must come to the fore. Injured claimants will always need lawyers. Fixing compensation cannot be administered solely by a slide rule within the Department of Labor at the State Capitol in a "nonadversarial, informal" setting. Injuries are of varying degree. People are different. If the insurance company has an advocate, so should the claimants. Insurance companies have corporate claims offices and a staff of attorneys. Not so with the *655 injured worker. Therefore, I cannot fully join the majority opinion which labels worker's compensation proceedings as "nonadversarial."
As I perceive it, the State Legislature of South Dakota has defined certain privileges and the terms by which they are lost or surrendered. These privileges have undergone a metamorphosis by the addition of SDCL 62-4-44, Report to be submitted to employer and department of labor by treating practitioner or surgeonTime limitation, via SL 1990, ch 416, § 4, and SDCL 62-4-45, Information about injury to be made availablePenalty for withholding information, via SL 1990, ch 416, § 5; 1993, ch 375, § 43. By the 1990 legislative act, new sections were added which materially affected selection of a medical practitioner or surgeon, treatment, reports, and requiring medical practitioners attending injured employees to make "medical and hospital information relevant" available on "demand." Same are now deemed to no longer be "a privileged communication for purposes of a worker's compensation claim." SDCL 62-4-45.
Finally, if claims are paid "routinely and quickly," it is to be remembered that the Workmen's Compensation Act is remedial and should be liberally construed to effectuate its purpose. Schwan v. Premack, 70 S.D. 371, 17 N.W.2d 911 (1945).
Justice is just like coffee. If you boil or perk it, it usually tastes pretty good. But if it's instant coffee, the aroma is not there and it doesn't taste so good. Myself, I have never enjoyed instant coffee.
SABERS, Justice (concurring specially).
Although I concur in the opinion, I do not join the last paragraph of footnote 1 because the statement in the letter is a statement of fact or intention, or legal right, rather than a threat.
NOTES
[1] Employer's proposed letter to the doctors asked the following questions:
1. Based upon the information you have in your files regarding Mr. Sowards, are you able to state an opinion, to a reasonable medical probability, as to whether Mr. Sowards' alleged impotency is related to his work injury?
2. Based upon information you have in your files regarding Mr. Sowards, are you willing to state an opinion, to a reasonable medical probability, as to whether Mr. Sowards' alleged impotency is related to his work injury?
3. Do you need to look at, or be supplied with, any other medical records in order to render an opinion regarding the alleged work-relatedness of Mr. Sowards' alleged impotency?
4. Would you prefer to examine and/or meet with Mr. Sowards before rendering such an opinion?
5. Can you state an opinion to a reasonable medical probability that the testicular inflammatory disease, which you have said is not related to Mr. Sowards' work injury, would have caused or contributed to the alleged impotency?
Employer's letter to Sowards' attorney concluded, "If you do not give me permission to send these letters, I frankly will send them anyway." (This type of threat certainly cannot be construed as falling within the parameters of "professionalism" when an attorney is involved in discovery. Our decision should not be interpreted as condoning this type of activity.)
[2] Sowards cites Roosevelt Hotel Ltd. Partnership v. Sweeney, 394 N.W.2d 353 (Iowa 1986), to support his position that Department has exceeded its authority. Roosevelt involves a personal injury action in which a defendant asked a court to compel a plaintiff to execute a waiver of physician-patient privilege authorizing defense counsel to communicate privately with and obtain medical information from plaintiff's health care providers. We find Roosevelt totally inapplicable to the case at bar. In Morrison v. Century Engineering, 434 N.W.2d 874, 876-77 (Iowa 1989), the Iowa Supreme Court stated: "We remain convinced of the appropriateness of the rule in Roosevelt but believe it should not be applied in workers' compensation cases."
[3] SDCL 15-6-1 provides:
This chapter governs the procedure in the circuit courts of the state of South Dakota in all suits of a civil nature, with the exceptions stated in § 15-6-81. It shall be construed to secure the just, speedy and inexpensive determination of every action.
[4] SDCL 1-26-19.2 provides:
Each agency and the officers thereof charged with the duty to administer the laws and rules of the agency shall have power to cause the deposition of witnesses residing within or without the state or absent therefrom to be taken or other discovery procedure to be conducted upon notice to the interested person, if any, in like manner that depositions of witnesses are taken or other discovery procedure is to be conducted in civil actions pending in circuit court in any matter concerning contested cases.
[5] SDCL 19-13-7 provides:
A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.
| {
"pile_set_name": "FreeLaw"
} |
790 F.Supp. 135 (1991)
The Thermo Chem Participating Companies consisting of: ABBOTT LABORATORIES, et al., Plaintiffs,
v.
THERMO CHEM, INC., Thomas Solvent Company, Thomas Solvent Company of Detroit, Inc., Thomas Solvent Company of Muskegon, Inc., Thomas Solvent of Indiana, Inc., TSC Transportation, Inc., and Richard E. Thomas, Defendants.
No. 1:89-CV-994.
United States District Court, W.D. Michigan, S.D.
August 20, 1991.
*136 *137 Steven C. Kohl, Landman, Latimer, Clink & Robb, Muskegon, Mich., for plaintiffs.
John L. Collins, Foster, Swift, Collins & Smith, PC, Lansing, Mich., for defendants.
OPINION
ROBERT HOLMES BELL, District Judge.
Plaintiffs filed this action to recover response costs from defendants pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), 42 U.S.C. § 9601 et seq. The parties have filed cross-motions for partial summary judgment. Plaintiffs seek an order adjudicating defendants jointly and severally liable for contribution for all response costs incurred or which may be incurred at the Thermo Chem NPL site in Muskegon, Michigan. Defendants seek an order striking plaintiffs' request for attorney fees.
Facts
Thomas Solvent Company owned and operated bulk industrial solvent storage and sale facilities in various locations in Michigan. Thermo Chem is a wholly owned subsidiary of Thomas Solvent Company. Thermo Chem operated an industrial waste solvent storage, recycling, incineration and disposal facility in Muskegon from 1967 through 1980. Thomas Solvent Company transported used or waste solvents to the Thermo Chem site.
The Thermo Chem site has been placed on the National Priorities List. The United States Environmental Protection Agency ("USEPA") identified plaintiffs as potentially responsible parties (PRP), and on November 7, 1987, plaintiffs entered into an administrative consent order with the USEPA to conduct a remedial investigation and feasibility study (RI/FS). Plaintiffs filed this suit seeking contribution from the defendants for costs incurred by plaintiffs in remediating the Thermo Chem site.
In Count I plaintiffs seek contribution against Thomas Solvent Company and Thermo Chem, claiming that their acts or omissions caused or contributed to the release of hazardous substances at the Thermo Chem site. In Count II, plaintiffs seek contribution against Thomas Solvent Company of Detroit, Inc., Thomas Solvent Company of Muskegon, Inc., Thomas Solvent Company of Indiana, Inc., and TSC Transportation, Inc., under theories of fraudulent conveyance and successor liability. In Count III plaintiffs seek contribution against Richard Thomas under 42 U.S.C. §§ 9607 and 9613 based upon his alleged control over the Thomas Solvent companies.
Discussion
Motions for Summary Judgment
In evaluating motions for summary judgment the Court must look beyond the pleadings and assess the proof to determine whether there is a genuine need for trial. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). The Court must determine "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, 251-53, 106 S.Ct. 2505, 2511-13, 91 L.Ed.2d 202 (1986). If the moving party carries its burden of showing there is an absence of evidence to support a claim then the opposing party must demonstrate by affidavits, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). See also, Street v. J.C. Bradford & Co., 886 F.2d 1472, 1476-80 (6th Cir.1989).
Liability of Thomas Solvent Company and Thermo Chem
Plaintiffs request judgment on the issue of the liability of Thomas Solvent Company *138 and Thermo Chem as owners, operators and/or transporters under 42 U.S.C. § 9607(a) for all response costs incurred at the Thermo Chem site.
A prima facie case of liability under section 107 requires that:
(1) the site be a facility; (2) there be a release or threatened release of a "hazardous substance" from the site; (3) the release or threatened release caused the plaintiff to incur response costs; (4) the defendants are covered persons within Section 107(a); and (5) the responsive actions taken and costs incurred were consistent with the National Contingency Plan.
B.F. Goodrich Co. v. Murtha, 754 F.Supp. 960, 963-64 (D.Conn.1991).
Plaintiffs have come forward with sufficient evidence to make out a prima facie case of liability against Thomas Solvent Company and Thermo Chem under 42 U.S.C. § 9607(a).
Defendants Thomas Solvent Company and Thermo Chem have not come forward with any evidence that would indicate that there is a genuine issue of material fact for trial on the issue of Thomas Solvent Company and Thermo Chem's liability as owner operators or transporters. The only defense raised by these defendants is that they cannot be held liable under CERCLA because application of CERCLA in this case would constitute an impermissible retroactive application of law in violation of their right to due process of law.
The Sixth Circuit has already determined that retroactive application of CERCLA is not unconstitutional in United States v. R.W. Meyer, Inc., 889 F.2d 1497, 1506 (6th Cir.1989), cert. denied, 494 U.S. 1057, 110 S.Ct. 1527, 108 L.Ed.2d 767 (1990).
There being no genuine issue of material fact as to the liability of Thomas Solvent Company and Thermo Chem as owner operators and/or transporters, they are liable to plaintiffs for contribution as a matter of law.
Offensive Collateral Estoppel
Plaintiffs request summary judgment as to the liability of defendants Thomas Solvent Company of Detroit, Inc., Thomas Solvent Company of Muskegon, Inc., Thomas Solvent of Indiana, Inc., and TSC Transportation, Inc. (the "spinoff corporations") and Richard E. Thomas on grounds of fraudulent conveyance and successor liability. Plaintiffs contend that offensive collateral estoppel should be applied to estop defendants from relitigating the liability issues already decided in an earlier case, Kelley v. Thomas Solvent Co., 725 F.Supp. 1446 (W.D.Mich.1988).
Defendants contend that Richard E. Thomas should not be treated the same as the spinoff corporations for purposes of the collateral estoppel analysis. The Court will address the liability of Richard E. Thomas below. This portion of the opinion is limited to the spinoff corporations.
"Offensive use of collateral estoppel occurs when a plaintiff seeks to foreclose a defendant from relitigating an issue the defendant previously litigated unsuccessfully in another action against the same or a different party." United States v. Mendoza, 464 U.S. 154, 159 n. 4, 104 S.Ct. 568, 571 n. 4, 78 L.Ed.2d 379 (1984).
The doctrine of collateral estoppel may be applied only if the following criteria have been satisfied:
1. the precise issue raised in the present case must have been raised and actually litigated in the prior proceeding;
2. determination of the issue must have been necessary to the outcome of the prior proceeding;
3. the prior proceeding must have resulted in a final judgment on the merits; and
4. the party against whom estoppel is sought must have had full and fair opportunity to litigate the issue in the prior proceeding.
Detroit Police Officers Association v. Young, 824 F.2d 512, 515 (6th Cir.1987) (quoted in United States v. Sandoz Pharmaceuticals Corp., 894 F.2d 825, 826-27 (6th Cir.1990)).
*139 Defendants contend that collateral estoppel is inappropriate in this case because the first and third criteria have not been met.
1. Identical Issues
In the prior case the court held that Thomas Solvent Company created the spinoff corporations to avoid potential liability related to existing groundwater contamination in Battle Creek, and in so doing violated the Michigan Fraudulent Conveyance Act, MCL § 566.17. 725 F.Supp. at 1452-56. The court also held that the spinoff corporations were corporate successors and were liable for contribution under theories of successor liability. Id. at 1456-59.
In Count II of the instant complaint plaintiffs seek contribution from the same spinoff corporations under theories of fraudulent conveyance and successor liability.
Defendants claim that the present case does not raise the "precise issue" which was decided in the prior case because the prior ruling was that the transfer of assets was made to avoid liability arising from the alleged contamination of the Verona Well field in Battle Creek and had nothing to do with the alleged contamination at the Thermo Chem site in Muskegon.
The difference is illusory. The Michigan fraudulent conveyance act under which liability in the prior action was premised provides:
Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud either present or future creditors, is fraudulent as to both present and future creditors.
M.C.L.A. § 566.17. The elements of the claim, as found in the prior action, were that Thomas Solvent Company is a person under the Michigan Act; that it made a conveyance; that it did so with actual intent to hinder, delay, or defraud creditors; and that plaintiffs are creditors under the Act. 725 F.Supp. at 1452.
The first three elements are precisely the same as the issues presented in the instant case. As to the fourth element, this court has already determined above that there is no question that plaintiffs are creditors of Thomas Solvent Company. Since the statute confers liability for fraud as to both present and future creditors, the precise issue of fraudulent conveyance raised in the present case was raised and actually litigated in the prior proceeding.
Moreover, the court in the prior action found the defendant spinoff corporations liable as successor corporations. Defendants have not raised any arguments, and this Court is aware of no basis for finding that this issue is not precisely the same as the issue raised in the present action.
2. Finality
Defendants' second basis for contesting the application of collateral estoppel is the fact that the decision on the issues of fraudulent conveyance and successor liability was not a final judgment which was appealable under 28 U.S.C. § 1291; it was not certified for interlocutory appeal pursuant to 28 U.S.C. § 1292(b); and the parties in the prior action have reached a settlement agreement rendering the decision moot.
Section 13 of the Restatement (Second) of Judgments provides:
For purposes of issue preclusion ..., "final judgment" includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect.
The official comments to § 13 explain that the criteria for determining finality for purposes of issue preclusion are not as strict as they are for claim preclusion. Even though there is no final judgment in the strict sense, the court may regard the prior decision of the issue as final for the purpose of issue preclusion without awaiting the end judgment:
Before doing so, the court should determine that the decision to be carried over was adequately deliberated and firm, even if not final in the sense of forming a basis for a judgment already entered. Thus preclusion should be refused if the decision was avowedly tentative. On the *140 other hand, that the parties were fully heard, that the court supported its decision with a reasoned opinion, that the decision was subject to appeal or was in fact reviewed on appeal, are factors supporting the conclusion that the decision is final for the purpose of preclusion.
Restatement (Second) of Judgments § 13 comment g (1980). Illustration 3 following § 13 suggests that a finding of liability in a bifurcated trial is sufficiently final to have collateral estoppel effect. See also, McLendon v. Continental Group, Inc., 660 F.Supp. 1553, 1562 (D.N.J.1987) (liability determination sufficiently final despite remand for damages).
Finality for collateral estoppel is not the same as that required to appeal under 28 U.S.C. § 1291. Gilldorn Savings Association v. Commerce Savings Association, 804 F.2d 390, 393 (7th Cir.1986). In American Postal Workers Union Columbus Area Local v. United States Postal Service, 736 F.2d 317, 319 (6th Cir.1984), the Sixth Circuit held that even though there was no final judgment, "such a judgment is not required so long as there has been a final decision with respect to the issue to be given preclusive effect (in this case the motion to dismiss)." As noted by Judge Friendly in Zdanok v. Glidden Co., Durkee Famous Foods Division, 327 F.2d 944, 955 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964), "finality" in the context of collateral estoppel "may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again."
In Chemetron Corp. v. Business Funds, Inc., 682 F.2d 1149 (5th Cir.1982), cert. denied, 460 U.S. 1013, 103 S.Ct. 1254, 75 L.Ed.2d 483 (1983), a final judgment was not entered in the prior action because it was resolved by settlement after the court withdrew and set aside its findings of fact and conclusions of law. Nevertheless, the court held that issues of fact adjudicated adversely to the defendant in the prior action could be applied offensively against the defendant in the second action where such application of offensive collateral estoppel was not unfair. Id. at 1191-92.
Similarly, in Aetna Casualty & Surety Co. v. Jeppesen & Co., 440 F.Supp. 394, 399-405 (D.Nev.1977), vacated on other grounds, 642 F.2d 339 (9th Cir.1981), the district court held that a plaintiff can invoke offensive collateral estoppel on the issue of defendant's liability when a prior case had been fully litigated as to liability but settled before trial on the issue of damages and entry of final judgment.
A trial judge should not allow the use of offensive collateral estoppel where it would be unfair to a defendant. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651, 58 L.Ed.2d 552 (1979). Examples of unfair application of offensive collateral estoppel are if defendant had little incentive to defend vigorously in the first suit, if the judgment relied upon is itself inconsistent with one or more previous judgments in favor of the defendant; or if the second action affords the defendant procedural opportunities unavailable in the first action. Parklane, 439 U.S. at 330-31 (check pages), 99 S.Ct. at 651-52; Chemetron Corp., 682 F.2d at 1189.
The Court finds that the decision in the prior action is sufficiently firm to be accorded preclusive effect. The liability of defendant spinoff corporations was fully litigated and firmly established in a well-reasoned opinion. There was nothing tentative about the decision. Moreover, issue preclusion in this action would not be unfair to the spinoff corporations. They had every incentive, given their potential liability, to litigate the prior case vigorously. The prior liability determination is not inconsistent with any previous judgments in favor of defendants and the procedural opportunities in both cases are the same. It would be a waste of the Court's and the parties' resources to relitigate the issue of the liability of the spinoff corporations. Accordingly, this Court finds that defendant spinoff corporations are jointly and severally liable to plaintiffs for contribution.
Richard E. Thomas
Plaintiffs contend that offensive collateral estoppel should also be applied to *141 establish the liability of defendant Richard E. Thomas for contribution under theories of fraudulent conveyance and successor liability.
Defendants correctly note that neither in Kelley nor in the present case are there any allegations in the complaints that Richard E. Thomas is liable under theories of fraudulent conveyance or successor corporation liability. In both cases plaintiffs' liability claim against Richard E. Thomas was as the "owner" or "operator" of the facility.
Kelley appears to treat Richard E. Thomas and the spinoff corporations the same. "All six defendants here will be referred to as `defendants'." 725 F.Supp. at 1148. However, there was no express finding in Kelley that Richard E. Thomas was liable under theories of fraudulent conveyance and successor liability.
The Court cannot determine from the evidence presented whether the issue of Richard E. Thomas' liability under theories of fraudulent conveyance and successor liability was actually litigated in the prior action. Accordingly, application of offensive collateral estoppel as to Richard E. Thomas on these theories does not appear to be warranted. Accordingly, plaintiffs' motion for summary judgment, insofar as it relates to the liability of Richard E. Thomas, must be denied.
Attorney Fees
Defendants claim they are entitled to partial summary judgment on plaintiffs' request for attorney fees because as a matter of law such expenses are not recoverable under CERCLA.
CERCLA does not expressly address the award of attorney fees to a private party. The statute provides at 42 U.S.C. § 9613(f)(1) that private parties may bring an action against other potentially responsible parties for recovery of response costs. The term "response" is defined to include removal and remedial action and "enforcement activities related thereto". 42 U.S.C. § 9601(25). Plaintiffs claim that this litigation comes within the phrase "enforcement activities related thereto" and that attorney fees are "necessary costs of response incurred" pursuant to 42 U.S.C. § 9607(a)(4)(B).
The Sixth Circuit has not addressed the issue of whether the response costs recoverable under § 9607(a)(4)(B) include a private party's litigation expenses, and there is a split among the district courts that have addressed the issue.
The only circuit court to have addressed the issue has concluded that private parties may recover attorney fees. General Electric Co. v. Litton Industrial Automation Systems, Inc., 920 F.2d 1415 (8th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 1390, 113 L.Ed.2d 446 (1990). The court acknowledged that the statute does not explicitly allow attorney fees, but nevertheless determined that "it would strain the statutory language to the breaking point to read them out of the `necessary costs' that section 9607(a)(4)(B) allows private parties to recover." Id. at 1422. See also, Bolin v. Cessna Aircraft Co., 759 F.Supp. 692, 710 (D.Kan.1991); Gopher Oil Co. v. Union Oil Co., 757 F.Supp. 998, 1007 (D.Minn. 1991); Pease & Curren Refining, Inc. v. Spectrolab, Inc., 744 F.Supp. 945 (C.D.Cal. 1990).
Although the Court might agree that it would be good public policy to allow private parties to recover their attorney fees in cost recovery actions, this Court does not agree that an attorney fees provision for private recovery actions can be read into the CERCLA statute.
The American rule is that each party in a lawsuit ordinarily bears its own attorneys' fees unless there is express statutory authorization to the contrary. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983) (citing Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975)).
There is no question that the federal government is authorized to recover its attorney fees pursuant to CERCLA. R.W. Meyer, 889 F.2d at 1503. The statutory language clearly supports such recovery. 42 U.S.C. § 9607(a) authorizes the government to recover all costs of removal or *142 remedial action incurred by the government. "Removal" is broadly defined at 42 U.S.C. § 9601(23), and includes reference to the following:
[T]he President may undertake such planning, legal, fiscal, economic, engineering, architectural, and other studies or investigations as he may deem necessary or appropriate to plan and direct response actions, to recover the costs thereof, and to enforce the provisions of this chapter.
42 U.S.C. § 9604(b)(1) (emphasis added).
Section 310 of CERCLA, 42 U.S.C. § 9659, provides for citizens suits to supplement administrative action and aid in attacking CERCLA violators. Regan v. Cherry Corp, 706 F.Supp. 145, 149 (D.R.I. 1989). This section explicitly grants courts the right to award costs, including reasonable attorney fees. 42 U.S.C. § 9659(f).
In light of the statutory reference to the government's right to recover attorney fees and the explicit award of attorney fees to the prevailing party in citizens' suits, the silence of Congress with respect to recovery of attorney fees in private cost recovery actions is conspicuous. See, In re Hemingway Transport, Inc., 126 B.R. 656, 663 (D.Mass.1991); United States v. Hardage, 750 F.Supp. 1460, 1511 (W.D.Okla.1990); T & E Industries, Inc. v. Safety Light Corp., 680 F.Supp. 696, 708 (D.N.J.1988).
The prevailing rule is that attorney's fees are not recoverable as response costs in recovery actions brought by private litigants. New York v. SCA Services, Inc., 754 F.Supp. 995, 1000 (S.D.N.Y.1991). The rationale, as noted in Regan, is that comprehensive amendments were made to CERCLA under the Superfund Amendments and Reauthorization Act of 1986 (SARA). "If Congress had intended to permit citizens seeking response costs to recover their attorney fees, it would simply have amended § 107 to allow the recovery of these litigation costs." 706 F.Supp. at 149. See also, SCA Services, 754 F.Supp. at 1000.
This Court will not create a right to recovery of attorney fees where Congress has not expressly stated such to exist. T & E Industries, 680 F.Supp. at 708. Accordingly, defendants' motion for partial summary judgment to strike the portions of plaintiffs' complaint which request recovery of attorney fees must be granted.
Conclusion
For the reasons stated herein, plaintiffs' motion for partial summary judgment is granted as to defendants Thermo Chem, Inc., Thomas Solvent Company, Thomas Solvent Company of Detroit, Inc., Thomas Solvent Company of Muskegon, Inc., Thomas Solvent of Indiana, Inc., and TSC Transportation, Inc., and denied as to defendant Richard E. Thomas. Defendants' motion for partial summary judgment is granted.
| {
"pile_set_name": "FreeLaw"
} |
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4457
BILLY JAMES SIMS, a/k/a Rico,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CR-95-1067)
Argued: May 8, 1998
Decided: August 27, 1998
Before WIDENER and HAMILTON, Circuit Judges, and
FRIEDMAN, United States District Judge for the
Eastern District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: William Elvin Hopkins, Jr., MCCUTCHEN, BLANTON,
RHODES & JOHNSON, Columbia, South Carolina, for Appellant.
Marvin Jennings Caughman, Assistant United States Attorney,
Columbia, South Carolina, for Appellee. ON BRIEF: J. Rene Josey,
United States Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Billy James Sims appeals his conviction and sentence resulting
from a five count indictment charging conspiracy to possess with
intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841(a)(1), three counts of possession with intent to distribute and
distribution of crack cocaine, in violation of 21 U.S.C. § 846, and
possession and attempt to possess with intent to distribute crack
cocaine, in violation of 21 U.S.C. § 846. Sims raises multiple issues
challenging both his conviction and sentence. For the reasons that fol-
low, we affirm.
I.
Evidence at trial established that Sims had been involved with drug
trafficking in the Rock Hill, South Carolina area since the early
1990's, first as a runner and minor dealer, then as a major supplier of
other dealers. Sims eventually joined efforts with other dealers,
including several of the witnesses who testified on behalf of the gov-
ernment at trial. Each of these witnesses testified that he knew of
and/or accompanied Sims on trips to New York to obtain cocaine.
Specific testimony was presented concerning trips which occurred
during December 1994, and the spring and summer of 1995. In addi-
tion, the evidence showed that Sims employed a juvenile in relation
to the drug trafficking, and that Sims was in possession of a firearm
on at least one occasion while transporting drugs from New York to
South Carolina.
Count V of the indictment stemmed from a traffic stop on Septem-
ber 4, 1995, south bound on the New Jersey Turnpike. Sims and his
companion, Issac Kinard Davis, were pulled over by a New Jersey
State Trooper for following another vehicle too closely. Sims was
unable to produce a driver's license, but did provide the vehicle regis-
2
tration. The vehicle was registered to Davis' brother. Sims orally pro-
vided his name and license number to the New Jersey State Trooper,
Trooper Colon. Trooper Colon testified that he requested permission
to search the vehicle after receiving conflicting stories from its occu-
pants about their trip to New York. At that time, Sims completed a
consent to search form, and confessed that he had previously provided
a false name and driver's license number. A search of the vehicle
revealed a black vinyl bag with what felt like "rock like" substances
inside. When Trooper Colon opened the bag he saw a"white chunky
substance" that resembled crack cocaine. Sims was placed under
arrest and advised of his Miranda rights, which he acknowledged in
writing. The troopers transported Sims to the Newark State Police
Barracks where he was again advised of his Miranda rights. Sims
waived his rights and made a statement. Sims told the questioning
officer, Trooper Iannone, that he purchased 351 grams of cocaine in
New York "to sell in Rock Hill." Tests confirmed that the substance
seized was in fact crack cocaine.
II.
Sims raises the following challenges to his convictions and sen-
tence.
A.
Sims first assignment of error pertains to the propriety of venue in
the District of South Carolina for Count V of the indictment. Count
V alleges that on or about September 4, 1995, in the District of South
Carolina and elsewhere, Sims did knowingly and intentionally pos-
sess with intent to distribute and did attempt to possess with intent to
distribute crack cocaine, in violation of 21 U.S.C.§ 841(a)(1).
The Constitution guarantees a defendant the right to be tried in the
state where a crime was committed. U.S. Const. art. III, § 2, cl. 3. See
also Fed. R. Crim. P. 18. This right serves to safeguard against hard-
ship or prejudice which may result from prosecution in a distant loca-
tion. See Platt v. Minnesota Mining & Manufacturing Co., 376 U.S.
240, 245 (1964). Count V arose from a traffic stop on the New Jersey
Turnpike during which drugs were found in the car Sims was driving.
Sims argues that he never possessed the drugs in South Carolina, and
3
that venue was therefore improper as to Count V in the District of
South Carolina.
It is widely accepted that the privilege of venue may be waived
through a defendant's failure to make a timely objection. See, e.g.,
United States v. Dabb, 134 F.3d 1071, 1078 (11th Cir. 1998); United
States v. Turley, 891 F.2d 57, 61 (3rd Cir. 1989); United States v.
Winship, 724 F.2d 1116, 1124 (5th Cir. 1984). In this Circuit, when
a defect in venue is apparent on the face of the indictment, any objec-
tion must be raised prior to trial to be considered timely. United States
v. Melia, 741 F.2d 70 (4th Cir. 1984), cert. denied, 471 U.S. 1135
(1985). When an indictment alleges proper venue, an objection is
timely if made at the close of the government's case or at the close
of the evidence when the government fails to prove venue as alleged.
Id. at 71. Sims failed to raise any objection to venue in the district
court, and thereby waived venue. He cannot now seek appellate
review of the propriety of venue in the District of South Carolina for
Count V.
B.
Sims next contends the district court erred in denying his Batson
challenge. Sims, an African-American, was tried by an all white jury.
Although Sims does not have a right to a jury composed in whole or
in part by African-Americans, he does have the right"to be tried by
a jury whose members are selected pursuant to nondiscriminatory
criteria." Batson v. Kentucky, 476 U.S. 79, 85-86 (1986). See also
J.E.B. v. Alabama, 511 U.S. 127 (1994). This right, however, must be
exercised in a timely manner, and failure to raise a Batson challenge
prior to the venire being excused constitutes a waiver of the chal-
lenge. Morning v. Zapata Protein, 128 F.3d 213, 216 (4th Cir. 1997).
Sims objection to the makeup of the jury, was not raised until after
the dismissal of the venire. The district court found Sims waived his
Batson challenge because it was untimely, noting that the parties were
afforded ample opportunity for Batson challenges prior to the dis-
missal of the venire. The record clearly supports the district court's
finding, and we likewise find Sims waived any Batson challenge.
Nonetheless, the district court briefly addressed the merits of the
Batson challenge, finding that the government offered race-neutral
4
reasons for its peremptory challenges. We give great deference to the
district court's finding, and review it only for clear error. Jones v.
Plaster, 57 F.3d 417, 421 (4th Cir. 1995); see also Hernandez v. New
York, 500 U.S. 352, 369 (1991) (plurality opinion) (clearly erroneous
standard of review applies to trial court's findings in a Batson chal-
lenge). The record does not support Sims' contention that the district
court was clearly erroneous in its denial of his Batson challenge.
C.
Turning to Sims' claim that the district court erred in allowing the
statements of his alleged coconspirators into evidence, we find the
claim to be illogical and completely without merit. Sims did not
attempt to exclude hearsay statements of alleged coconspirators, but
rather the actual trial testimony of the coconspirators. The witnesses
in question made statements to law enforcement officers after Sims
was taken into custody and the conspiracy had ceased to exist.
According to Sims, the statements would be hearsay since they were
not made in furtherance of the conspiracy. Sims argues that the trial
testimony should be excluded as hearsay as well, because the content
was consistent with the statements made to the law enforcement offi-
cials.
Sims attempts to analogize the instant matter to this Court's deci-
sion in United States v. Blackshire, 538 F.2d 569 (4th Cir. 1976),
wherein the Court found that the statement of a coconspirator made
after the defendant's arrest was inadmissible hearsay. In Blackshire,
however, the government sought to admit the coconspirator's state-
ment not through the direct testimony of the coconspirator, but
through the police officer to whom the statement had been made. Id.
The facts of this case are inapposite. The alleged coconspirators them-
selves testified during the trial. The government did not attempt to
introduce the coconspirators' statements through others.
Sims incorrectly uses the term "hearsay" in an attempt to thwart
any assistance his coconspirators might provide the government.
According to Rule 801(c) of the Federal Rules of Evidence, "`Hear-
say' is a statement, other than one made by the declarant while testi-
fying at the trial or hearing, offered in evidence to prove the truth of
the matter." The end result Sims seeks would serve only to misinter-
5
pret the purpose of Rule 801(c), and would prevent the trial testimony
of any coconspirator who had spoken with law enforcement officials.
Direct testimony was before the district court, not hearsay. The testi-
mony of the coconspirators was properly admitted into evidence.
D.
As his next assignment of error, Sims contends the trial court erred
in denying his motion to suppress. Sims sought suppression of the
drugs recovered in the New Jersey traffic stop, challenging his con-
sent to the search of the vehicle. Voluntariness of consent is a ques-
tion of fact to be determined from the totality of the circumstances,
and the district court's finding will not be disturbed unless clearly
erroneous. United States v. Wilson, 895 F.2d 168, 172 (4th Cir. 1990)
(per curiam); United States v. Gordon, 895 F.2d 932, 938 (4th Cir.
1990). See also United States v. Mendenhall, 446 U.S. 544, 557
(1980). The evidence is viewed in the light most favorable to the pre-
vailing party, herein, the government. United States v. Elie, 111 F.3d
1135 (4th Cir. 1997).
The court must examine the totality of the circumstances surround-
ing consent in its determination of whether consent was voluntary.
Mendenhall, 446 U.S. at 557. Appropriate factors to consider include
"the characteristics of the accused (such as age, maturity, education,
intelligence, and experience) as well as the conditions under which
the consent to search was given (such as the officer's conduct; the
number of officers present; and the duration, location, and time of the
encounter)." United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.
1996). The government need not produce evidence that the defendant
"knew of his right to refuse consent to prove that consent was volun-
tary." Id.
The record supports the finding that Sims voluntarily consented to
the search of the car. Evidence introduced during the suppression
hearing established that Sims was stopped for following another vehi-
cle too closely, that he was unable to produce a driver's license, and
that Sims and his passenger provided conflicting accounts of their trip
to New York. In addition, the evidence established that Trooper
Colon asked Sims to complete a consent to search form, which he did,
consenting to the search of the car. While completing the form, Sims
6
informed the trooper that he had provided a false identity and was in
fact driving on a suspended license.
Sims nonetheless argues that the trooper coerced him into consent-
ing to the search. Although consent has been found invalid, and the
resulting search unreasonable, where consent was granted only in "ac-
quiescence to a claim of lawful authority," Bumper v. North Carolina,
391 U.S. 543, 548-49 (1968), the record herein does not support such
a finding. Sims' allegation of coercion arises from a statement
Trooper Colon made when Sims was unable to produce a driver's
license. The Trooper, relying on state law, told Sims he would search
for the license in the vehicle himself if Sims was unable to locate it.
While we decline to address the propriety of that action if it were to
have occurred, we find that the record does not support a conclusion
that this was the sole basis for Sims' consent to the search. Instead,
the statement was a single circumstance to be taken into account in
the totality of the circumstances surrounding the consent.
The district court had the opportunity to carefully consider each of
the factors outlined above, including Sims' characteristics and the
conditions under which he gave consent. Moreover, the district court
had the opportunity to observe the demeanor of the witnesses. See
Wilson, 895 F.2d at 172 (Where findings of consent are based on oral
testimony, "`the clearly erroneous standard is particularly strong since
the [court] had the opportunity to observe the demeanor of the wit-
nesses,'" quoting United States v. Sutton, 850 F.2d 1083, 1086 (5th
Cir. 1988)). Nothing contained in the record persuades us that the dis-
trict court's finding was clearly erroneous. Because Sims consent was
voluntary and not coerced by the state trooper, the district court did
not err in admitting the drugs.
E.
Sims next contends that the evidence was insufficient to support a
conviction for conspiracy. We find that this claim is also without
merit. The standard of review for a sufficiency of the evidence claim
in a criminal case is "whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt."
Jackson v. Virginia, 443 U.S. 307, reh. denied, 444 U.S. 890 (1979);
7
United States v. Giunta, 925 F.2d 758, 764 (4th Cir. 1991). The gov-
ernment is afforded all reasonable inferences which flow from the cir-
cumstantial and direct evidence brought before the district court.
United States v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc),
cert. denied, ___ U.S. ___, 117 S.Ct. 1087 (1997). In this case, the
Court has no duty to weigh the evidence or review witness credibility.
United States v. Burns, 990 F.2d 1426, 1439 (4th Cir. 1993). It is the
jury's role to "resolve conflicts in testimony, weigh the evidence, and
judge the credibility of witnesses." United States v. Manbeck, 744
F.2d 360, 392 (4th Cir. 1984).
Trial testimony included not only that of individuals who pur-
chased drugs from the Sims, but also testimony from those who
assisted him in transporting drugs, and in hiding both money from
drug sales and the drugs themselves. This Court has determined that
reversal should be confined to those cases in which the failure of
proof is clear. United States v. Jones, 735 F.2d 785, 791 (4th Cir.
1984). Faced with this strict standard for evaluating the evidence for
sufficiency, and given the evidence as construed in the light most
favorable to the government, we find the evidence was sufficient for
a reasonable jury to have found Sims guilty of conspiracy to distribute
and possess with intent to distribute crack cocaine.
F.
Ineffective assistance of counsel claims are not normally consid-
ered on direct appeal, but fall instead to collateral appeals, wherein a
defendant files a Section 2255 motion in district court. United States
v. Grubb, 11 F.3d 426, 441 (4th Cir. 1993). See also United States v.
Williams, 977 F.2d 866, 871 (4th Cir. 1992). For this Court to review
a claim of ineffective assistance of counsel on direct appeal, the
record must conclusively demonstrate an absence of effective assis-
tance of counsel. United States v. Ford, 88 F.3d 1350, 1363 (4th Cir.),
cert. denied, ___ U.S. ___, 117 S.Ct. 496 (1996). We do not reach the
issue of whether Sims' counsel's assistance was effective, finding that
the record does not conclusively demonstrate an absence of effective
assistance. Sims is free to raise his claim of ineffective assistance on
collateral review.
8
G.
As to Sims' claim that the trial court erroneously calculated the
amount of drugs attributable to him for sentencing purposes, we find
no error and affirm the trial court's determination. We review the trial
court's factual determinations as to drug quantities for sentencing pur-
poses for clear error. United States v. Fletcher , 74 F.3d 49, 55 (4th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 117 S. Ct. 157 (1996). In calculating
drug quantities attributable to a defendant, the district court may con-
sider any relevant evidence before it, including hearsay testimony.
United States v. Bowman, 926 F.2d 380, 381 (4th Cir. 1991).
The quantity of drugs attributable to a defendant in a conspiracy is
that which is "reasonably foreseeable to each coconspirator within the
scope of his agreement." United States v. Irvin, 2 F.3d 72, 78 (4th Cir.
1993). See also U.S. Sentencing Guidelines Manuel § 1B1.3 (a)(1)(B)
(hereafter "U.S.S.G."). The government must establish the quantity
attributable to a defendant by a preponderance of the evidence, and
may do so through the introduction of relevant and reliable evidence.
United States v. Jones, 31 F.3d 1304, 1316 (4th Cir. 1994); United
States v. Gilliam, 987 F.2d 1009, 1013-14 (4th Cir. 1993).
The district court found an aggregate amount of 8.4 kilograms of
cocaine base, or "crack" cocaine, attributable to Sims through his
involvement in the conspiracy. The district court based this finding on
the testimony of multiple witnesses, who actually testified to Sims'
involvement with in excess of 13 kilograms of crack cocaine. After
a lengthy hearing, the district court found only the lesser amount of
8.4 kilograms attributable to Sims. That amount was still substantially
higher than the 1.5 kilograms which would have given Sims the high-
est base offense level provided for in the guidelines. See U.S.S.G.
§ 2D1.1(c). A review of the record reveals no clear error in the district
court's finding.
H.
Finally, Sims argues that the trial court erred in enhancing the
offense level two points for possession of weapons during the com-
mission of a drug trafficking offense. See U.S.S.G. § 2D1.1(b)(1).
This contention lacks merit as well. The trial court's decision to
9
enhance the offense level is reviewed for clear error. United States v.
Falesbork, 5 F.3d 715, 719 (4th Cir. 1993).
For an enhancement under Section 2D1.1(b)(1) of the sentencing
guidelines to be improper, it must be "clearly improbable that the
weapon was connected with the offense." U.S.S.G.§ 2D1.1, commen-
tary at n. 3; see also United States v. Apple , 962 F.2d 335 (4th Cir.
1992). Moreover, an enhancement is proper where the weapon or
weapons in question were possessed by either the defendant or a
coconspirator, provided that the coconspirator's conduct was reason-
ably foreseeable and in furtherance of jointly undertaken activity.
United States v. Nelson, 6 F.3d 1049, 1054-57 (4th Cir. 1993).
The record clearly establishes the propriety of the guideline
enhancement for possession of a firearm during a drug trafficking
offense. A coconspirator testified that during one of the trips to New
York to obtain cocaine, he and Sims stopped in Washington, D.C.,
placing their weapons in the trunk of the Lexus they were driving.
They then left the Lexus in Washington, and drove to New York City
in a mini-van to purchase cocaine. After obtaining six kilograms of
cocaine, they returned to Washington and picked up the Lexus. Sims
and his coconspirator then transported the drugs back to South Caro-
lina in the Lexus, which still contained the weapons. We find no clear
error in the district court's conclusion that firearms were possessed
during the drug trafficking, and therefore affirm the district court's
enhancement of the guidelines.
III.
For the reasons stated herein, we affirm the judgment of the district
court.
AFFIRMED
10
| {
"pile_set_name": "FreeLaw"
} |
41 So.3d 844 (2008)
EX PARTE MOSE JOHNSON.
No. 1071444 (2070176).
Supreme Court of Alabama.
October 10, 2008.
Decision Without Published Opinion Cert. denied.
| {
"pile_set_name": "FreeLaw"
} |
964 A.2d 438 (2008)
COM.
v.
KENNETH JONES.
No. 1153 WDA 2007.
Superior Court of Pennsylvania.
October 15, 2008.
Affirmed.
| {
"pile_set_name": "FreeLaw"
} |
THE THIRTEENTH COURT OF APPEALS
13-18-00584-CR
JAMES EVERETT GRANT
v.
THE STATE OF TEXAS
On Appeal from the
249th District Court of Johnson County, Texas
Trial Cause No. DC-F201800270
JUDGMENT
THE THIRTEENTH COURT OF APPEALS, having considered this cause on
appeal, concludes that the judgment of the trial court should be AFFIRMED. The Court
orders the judgment of the trial court AFFIRMED.
We further order this decision certified below for observance.
August 1, 2019
| {
"pile_set_name": "FreeLaw"
} |
43 F.2d 53 (1930)
WEEKS
v.
PRATT et al. (two cases).
Nos. 5729, 5795.
Circuit Court of Appeals, Fifth Circuit.
September 5, 1930.
Rehearing Denied September 27, 1930.
*54 James H. Bunch, of Jacksonville, Fla., for appellant.
Mac Asbill and Edgar Watkins, both of Atlanta, Ga., and Walter F. Rogers, of Jacksonville, Fla. (Edgar Watkins, Jr., and Watkins, Asbill & Watkins, all of Atlanta, Ga., on the brief), for appellees.
Before BRYAN and FOSTER, Circuit Judges, and SIBLEY, District Judge.
FOSTER, Circuit Judge.
These two appeals have the same title, involve the same parties, and arise from the same transactions. They may be disposed of by one opinion.
Appellees, Nathaniel P. Pratt and George L. Pratt, filed a suit in equity against Charles J. Weeks, appellant, to compel specific performance of a contract dealing with the patenting and exploiting of certain inventions of the defendant, to be enforced by prohibitory and mandatory injunctions, and for damages. Judgment was entered for plaintiffs, granting injunctive relief as prayed for, and their damages were fixed at $81,026.68, with interest. The defendant failed to procure a supersedeas, and his interest in the inventions was sold under order of court, and was bought in by plaintiffs for some $38,000, which was allowed to be credited on the judgment. The appeal in No. 5729 is from this judgment.
In No. 5795 the appeal is from a judgment holding the defendant in contempt of the final decree, under which he served some thirty-three days in jail before obtaining a supersedeas and bail. As a decision on this appeal will follow the disposition made of the appeal in No. 5729, no more need be said about it.
The material facts are these: Charles J. Weeks is a retired locomotive engineer, some 65 years of age. He had invented a device designed to increase the mileage of automobiles operated by internal combustion engines. Part of this apparatus, called an oil-cooling device, had been patented. He had also discovered or invented a new automobile fuel. Nathaniel P. Pratt and George L. Pratt are brothers engaged in a general engineering and financing business. In July, 1927, Weeks demonstrated his fuel-saving device, which he had installed on a Hudson automobile, to the Pratts and others. The car ran a distance of 49.2 miles on one pint of ordinary gasoline, an average of nearly 400 miles to the gallon.
Weeks also demonstrated his fuel to plaintiffs by mixing with one quart of water a small quantity of other liquids taken from five different bottles. The mixture burned like ordinary gasoline.
Weeks stated to plaintiffs that he had had negotiations with representatives of the Reo Motor Company and the Ford Motor Company, and had received an offer of $1,350,000 from one oil company and $1,000,000 from another company for his inventions; that he feared the object of these negotiations and offers was to prevent the use of his inventions and that he wanted the public to have the benefit of them; that his fuel had not been perfected; that some of the ingredients had been put in simply to prevent analysis; that it was composed of 99 per cent. water, and could be manufactured for about 1 cent per gallon; and that he would not give any information whatever as to it until he had entered into a written contract.
The plaintiffs were convinced of the efficiency of defendant's inventions, and entered into negotiations with him to finance and develop them. Weeks insisted upon retaining control of his inventions, and they agreed to give him 51 per cent. interest and have 49 per cent. interest for themselves. It was decided to apply for patents on the fuel-saving device, but it was not decided whether to apply for a patent on the fuel or to keep the formula secret.
A patent attorney, Mr. Parry, was engaged by plaintiffs, and he visited Jacksonville and examined Weeks' device, first taken apart and then reassembled, and witnessed a successful demonstration of the car. He prepared applications for patents with the assistance of Weeks, and they were filed. Negotiations for a contract continued, but were not successful until Weeks had changed his attorney. A written contract was then drawn up and entered into on September 13, 1927. It is rather lengthy, but its material features may be somewhat briefly stated.
The contract, in substance, provided that a corporation should be organized under the laws of Florida, to be known as the Weeks-Pratt Corporation, with a capital stock of 25,000 shares of preferred stock, par value *55 of $100, and 1,000,000 shares of common stock having no par value. The preferred stock was to be divided 12,500 shares to defendant and 2,500 shares to plaintiffs, full paid and nonassessable. In addition, the plaintiffs were to pay into the corporation $100,000 in cash, for which they were to receive 1,000 shares of preferred stock, and they might be required to purchase up to 9,000 additional shares of preferred stock at par if and as needed for additional capital. The voting power was vested entirely in the common stock, and this was to be divided 510,000 shares to the defendant and 490,000 shares to the plaintiffs. The corporation was to have a board of directors composed of seven, nine, or eleven members, the number to be later agreed upon. If it should be decided to have seven members, the defendant should name four, if nine, he should name five, and if eleven, he should name six; the remaining directors to be named by the plaintiffs. It was further provided that none of the assets of the corporation should be sold, mortgaged, or licensed without the affirmative vote of at least two-thirds of the number of directors at the time; and that a similar affirmative vote of two-thirds should be required to purchase other property, organize other corporations, to develop or exploit any of the assets of the corporation, to fix salaries, elect officers, pay dividends, or change the by-laws as they might originally have been adopted. It was provided that defendant might be the chairman of the board if he so desired, but that a good business man should be selected as president. The defendant was obligated to transfer a one-half interest in his existing patents for an automatic fire door, the oil-cooling device, the inventions of the fuel-saving device, and the new fuel, to the plaintiffs, they in turn to transfer the said undivided one-half interest to the corporation to be formed and he also to transfer his remaining undivided one-half in said patents and inventions to the corporation. The contract provided that the plaintiffs should pay to Weeks $10,000 upon its execution and should pay him a salary of $1,000 per month until the corporation was organized, after which Weeks was to receive the same salary from the corporation for his services, including those as chairman of the board. Weeks had expended $8,000 on his inventions prior to the making of the contract. This and all sums paid him by plaintiffs were to be reimbursed to the respective parties by the corporation. Weeks was obligated to continue his studies and experiments as an inventor and to assign any future discoveries or inventions to the corporation. No definite term was fixed for his services. The plaintiffs agreed to use their skill, learning, and energy in the study, discovery, development, and exploitation of the processes and inventions of defendant. The contract contained a clause that, if it should develop there was no reasonable prospect of making the inventions commercially successful, the plaintiffs might serve notice on Weeks, and he would be discharged of his obligations, and they would be under no obligation to make further payments or advances, but they would retain a one-fourth interest in any of the patents that had been theretofore obtained or inventions or discoveries that had been made. Weeks was given an option for one week after their delivery to him to sell 1,000 shares of his preferred stock to plaintiffs. There was no obligation expressed for them to buy. The contract contained this clause: "This is an entire contract. Each part shall be dependent on every other part." Weeks was obligated to disclose the formula of his fuel to plaintiffs within sixty days after the contract was signed. Other provisions of the contract are comparatively immaterial.
On the day the contract was signed, Weeks demonstrated his new fuel in a Nash six-cylinder automobile, in the presence of plaintiffs and others. The car ran a distance of 19.8 miles, at a speed of approximately 25 miles an hour, on one gallon of the fuel, and only 7.8 miles on a gallon of ordinary gasoline.
After the applications had been made for patents, George Pratt installed an apparatus on a Jordan eight automobile, belonging to him, in accordance with the specifications and plans forming part of the patent application. On testing the car, it did not develop nearly as much mileage as had been obtained in Weeks' Hudson car but it did run 37.5 miles on one gallon of gasoline. The testimony is conflicting as to whether this installation was made with the consent of Weeks, but he had no part in its installation, and it is reasonably certain that the apparatus was not identical with that used by Weeks on his own car. Weeks told plaintiffs and the patent attorney that he got his results from low vacuum and high compression and that he had planed off the head of the motor on his car until he got a compression of 140. It is not shown that any attempt was made to coordinate the cylinder capacity with the device installed on the Jordan automobile.
The patent attorney sought further information *56 from Weeks for the purpose of prosecuting the applications for patents, and Weeks was either unable or unwilling to give it. At any rate, the patent attorney could not understand his explanations. Weeks testified he told him all he knew about the device.
Weeks delivered to plaintiffs a five-gallon jug of what he said was his fuel, but on being tested it developed no more power than ordinary gasoline, and on analysis it was shown that it would cost between 35 cents and 50 cents a gallon to manufacture. He declined to give any further information as to the formula for his fuel.
A draft of the proposed charter was drawn up and submitted to Weeks on October 20, 1927, and he declined to sign it because it provided for organization with two shares of preferred stock and two shares of common stock to himself and two shares of each to both of the plaintiffs, which he thought would give them an interest of 66 2/3 per cent. and control of the corporation, and, further, because he had discovered the clause in the contract which allowed the plaintiffs to recede from it on giving notice, which he contended he had not known about at the time of signing. The corporation was not organized. The draft of the charter is not in the record. We may assume it complied with the provisions of the contract.
The plaintiffs alleged in the bill that their damages amounted to $10,000,000. They testified that the fuel-saving device and the fuel were each worth at least $20,000,000. Expert witnesses introduced by plaintiffs fixed the value of these inventions at from $20,000,000 to $1,000,000,000.
We may put aside any discussion of whether defendant was guilty of a breach of contract warranting a judgment for plaintiffs in a suit at law. This is an appeal in equity. The whole case is before us, and we may render such decree as may be just and proper in the premises. Ridings v. Johnson, 128 U. S. 212, 9 S. Ct. 72, 32 L. Ed. 401.
The granting or withholding of the relief of specific performance is within the discretion of a court of equity, and is not a matter of right. Clarke v. Aiken (C. C. A.) 276 F. 21.
It is fundamental that equity will not lend its aid to the enforcement of a contract unless it is fair, equal, and just and based upon adequate consideration. Pomeroy's Specific Performance (3d Ed.) pars. 175-192.
There is no doubt that Weeks wanted the public to have the benefit of his inventions and therefore would not sell them to any one who would suppress them. Plaintiffs clearly so understood. It was this intention that animated Weeks in entering into the contract with plaintiffs, and he did so only because he was assured that he would have control of the corporation to be formed to exploit his inventions. The provisions that he should own a majority of the shares of voting stock and have the right to name a majority of the board of directors, standing alone, would give him such control, but other provisions of the contract completely nullified them. Weeks could be chairman of the board, but that term is indefinite and has no significance in law. He was not to be president; therefore he could not manage the business nor direct its policies personally. He derived no power through the right to name a bare majority of the directors because of the clause requiring two-thirds of the directors to concur in any important administrative act. The proportion of the directors to be named by Weeks, four, five or six, did not constitute two-thirds. Directors cannot be divided into fractional parts. A practical application of the clause would require action to be taken by either five, six, or eight directors, according to the number selected. It is unnecessary to impugn the good faith of the plaintiffs in considering this feature of the contract. The fact remains, through their right to name more than one-third of the directors, that they had it within their power to veto any action Weeks desired and to create the very condition of inactivity that he wanted to avoid. The contract therefore was not fair and just to Weeks.
An analysis of the evidence shows that the contract was not based upon adequate consideration. Plaintiffs proved up their damages of approximately $81,000, by including items amounting to $50,000 for their own engineering and other services. It is doubtful that these services were worth any such amount. Their other expenditures, except their own counsel fees, were to be reimbursed by the corporation. They were obligated to pay into the corporation $100,000, for which they would receive stock and might have been called upon to buy additional preferred stock up to 9,000 shares. It is extremely unlikely that any additional capital would have been needed. It is highly probable that the business of the corporation would have consisted in granting licenses instead of manufacturing, owing to the necessity of adapting the fuel-saving device to *57 each engine to which it would be applied. There is no doubt that the inventions had a market value of over $1,000,000 at the time the contract was first discussed. The undisputed testimony in the record conclusively shows that Weeks had discovered something revolutionary as applied to internal combustion engines. The results testified to are no greater tax on credulity than were the initial inventions of the automobile and the aeroplane. Evidence is hardly necessary to show that the inventions had enormous value, and the testimony in the record that they were worth from $40,000,000 to $1,000,000,000 cannot be disregarded. The conclusion is inescapable that the consideration moving to Weeks for entering into the contract and transferring 49 per cent. interest of the inventions to plaintiffs was so grossly inadequate as to be unconscionable. In such case the inadequacy of the consideration would prevent the specific enforcement of the contract, regardless of whether actual fraud be shown. Marks v. Gates (C. C. A.) 154 F. 481, 14 L. R. A. (N. S.) 317, 12 Ann. Cas. 120, and authorities therein cited.
Furthermore, by the terms of the contract each part was dependent upon every other part. It is apparent that the services of Weeks were necessary to secure the allowance of patents for the existing inventions. Perhaps the plaintiffs believed Weeks to be a mechanical genius who had discovered a method of achieving that dream of scientists, perfect combustion. At any rate, there is no doubt they wanted his services to invent new and useful appliances. The clause providing for his personal services was an essential part of the contract. Equity will not enforce part of a contract unless it can be separated from the rest without changing the contract in any essential particular. A contract for personal services will not be enforced in equity by compelling the rendition of the services. Roller v. Weigle, 49 App. D. C. 102, 261 F. 251; Karrick v. Hannaman, 168 U. S. 328-336, 18 S. Ct. 135, 42 L. Ed. 484.
It is unnecessary to discuss other provisions of the contract. For the reasons above given we conclude that the bill was without equity and plaintiffs were not entitled to the decree rendered in either case. The judgment in each case will be reversed and the cause remanded, with instructions to set aside the sale of defendant's assets, to recall the rule for contempt, and to dismiss the bill without prejudice, and for such other orders and decrees as may be just and equitable in the premises.
Reversed and remanded.
SIBLEY, District Judge (concurring specially).
I agree to the result reached, that the appellees should be left to another bill for rescission and accounting, or to an action at law for damages. The refusal of specific performance ought, I think, to be rested on the nature of the contract and the impossibility of a court of equity supervising its performance, rather than the inadequacy of consideration. The subject-matter of the contract was undeveloped inventions of undemonstrated value. I think the contract was not unconscionable, but reasonable.
| {
"pile_set_name": "FreeLaw"
} |
599 N.E.2d 1329 (1992)
234 Ill. App.3d 651
175 Ill.Dec. 315
In the Matter of the ESTATE OF Lenora E. OSBORN, Deceased. (Wanda Asplund, Carol Carlson, Gene Osborn and Paul Osborn, Plaintiffs-Appellants, James Osborn, individually and as executor of the estate of Lenora E. Osborn, deceased, and Rosetta Baptist Church, Defendants-Appellees).
No. 3-91-0302.
Appellate Court of Illinois, Third District.
August 31, 1992.
Rehearing Denied October 14, 1992.
*1330 John H. Bisbee (argued), Law Offices of John H. Bisbee, Macomb, for Wanda Asplund.
Robert C. Stoerzbach (argued), Barash, Stoerzbach & Henson, Carl E. Hawkinson, Barash, Stoerzbach & Henson, Galesburg, for James Osborn.
Lyman R. Fort, Fort & Neff, Stronghurst, for Rosetta Baptist Church.
No appearance, for Estate of Lenora E. Osborn.
Justice BARRY delivered the opinion of the court:
Wanda Asplund, Carol Carlson, Gene Osborn, and Paul Osborn, plaintiffs in a suit to contest the will of their deceased mother, Lenora E. Osborn, appeal from summary judgment entered in the circuit court of Warren County in favor of their brother, defendant James (Jim) Osborn. At issue is the validity of a will executed by decedent about six weeks before her death while hospitalized during her final illness.
Pertinent facts taken from the depositions and affidavits which accompanied defendant's motion for summary judgment and plaintiffs' responses are as follows: Plaintiffs are the four oldest children of Hobart and Lenora E. Osborn, all of whom had declined to join Hobart in the family farming operation. Defendant Jim Osborn, the youngest son, did farm in partnership with his father all of his life, and as a result of their joint efforts, Hobart was able to acquire additional farm land with the profits from the farming operation. The farm bank accounts and land were in the name of Hobart Osborn alone until about 1974 when Jim acquired a parcel of farm land, known as the Noonan farm, in his name. Also, in 1978 Jim's name was put on the title to a farm owned by Hobart, known as the Patterson farm.
In 1972, before Jim had acquired title to any farm land, Hobart and Lenora executed their wills. Hobart's will provided that the home farm, known as the Gerlaw farm, was to pass to his wife Lenora and the Patterson farm to Jim. The will acknowledged that Jim had a one-half interest in the farm machinery, livestock, and unsold crops, and it then provided that Hobart's one-half interest in the machinery was to go to Jim while his one-half interest in the livestock and unsold crops was to go to plaintiffs and his wife Lenora, with the remainder of his estate to be divided equally between Lenora, plaintiffs and Jim. Lenora's 1972 will provided that, in the event Hobart died before her, all her real estate would go to plaintiffs. Thus, Hobart and Lenora intended that Jim would have the Patterson farm as soon as Hobart died, while plaintiffs would have to wait until Lenora died to acquire the farm intended for them.
Hobart died in 1982, and Lenora and Jim were named coexecutors of his estate. At the time he died, he and Jim were in the process of acquiring a farm known as the Gridley farm by trading the Noonan farm and the Patterson farm. According to Jim, they intended to use the income from grain sales to pay off all their outstanding debts. Jim also stated that Hobart intended that title to the Gridley farm be in Jim's name alone since the Patterson farm had been traded for it and the Patterson farm was to be Jim's. Because Hobart died before the transaction was completed, plaintiffs claimed that the Gridley farm was a part of the estate and that they were entitled to their respective shares. Plaintiffs also claimed one-half the proceeds of sale of the grain in storage which Jim indicated was to be used to pay Hobart's share of the partnership debts. (It appears that Hobart's will disposed of his share of the grain on hand without providing for satisfaction of any unpaid expenses related to growing, harvesting, and storing that grain, thus placing the burden for those expenses on the remainder of his estate.)
Lenora tried to get the dispute settled and repeatedly asked plaintiffs to withdraw *1331 their claims. She instructed the attorney for the estate, David Hultgren, to inform plaintiffs' attorney that she would change her will and disinherit plaintiffs if they did not settle their claim. Finally Lenora mortgaged the Gerlaw farm in order to pay each of the plaintiffs $25,000. Apparently plaintiffs were making additional demands in 1986 when Lenora was diagnosed as having cancer and was hospitalized on April 17 in Macomb. On April 25 she was transferred to Methodist Hospital in Peoria for radiation treatments. The treatments were not helpful and Lenora's condition worsened rapidly. She continued to lose weight, to suffer a great deal of pain, and to become weaker. As the disease progressed, she became increasingly confused and disoriented.
Lenora executed the will at issue on June 3, 1986. The parties do not dispute the following facts related to that last will executed by her: While a patient in Methodist Hospital, Lenora was concerned that Hobart's estate had not yet been closed and that plaintiffs had not agreed to a settlement. Lenora asked a family friend and neighbor, Keith Sanderson, to help her get a new will drawn. Sanderson, a retired attorney and associate judge, contacted a Peoria law firm on Friday, May 30, and explained to attorney Edwin Walker that Lenora was terminally ill and desirous of executing a new will.
Walker visited Lenora in the hospital on Monday, June 2, to ascertain what provisions she wanted in the will and to satisfy himself that she had testamentary capacity. At Lenora's request, Sanderson contacted the persons Lenora wanted to be witnesses to the will (Mildred and Glenn Lipp of Gerlaw and JoAnn Hart of Monmouth), and Walker met with the witnesses on June 2 at Methodist Hospital and asked what they knew of the family situation and of Lenora's wishes for a new will. The witnesses indicated that Lenora had repeatedly said she would give Jim her farm if plaintiffs would not discontinue their litigation against her and Jim. Walker also explained to the witnesses the requirements of testamentary capacity. Walker further ascertained by questioning that neither Sanderson nor any of the witnesses had any interest in Lenora's estate.
Walker and the witnesses returned on Tuesday, June 3, at which time Walker questioned Lenora as to the date, the names of the witnesses, who her heirs were, and what property she owned. She answered correctly to all the questions, and after reading the will, she said that was what she wanted to do. She then signed the will followed by the signing of the witnesses. This new will provided for a $10,000 bequest to Rosetta Baptist Church and the bequest of her residence to plaintiffs. All the rest of her property she left to her son Jim who she named as executor. Walker stated that he never met or had any contact with Jim.
Other facts are in dispute, either by reason of direct contradiction or by inference. Although there is no direct evidence that Sanderson acted as agent for Jim in getting Lenora's new will prepared, plaintiffs argue that such agency may be inferred from the evidence. In his 1990 deposition, Sanderson said that he had talked to Jim about the "family situation" approximately 40 to 60 times since 1982 and that he had mentioned to Jim that Lenora was having trouble getting her will changed. Sanderson insisted that he talked much more with Lenora than he did with Jim. In Jim's deposition, he said that he only saw Sanderson three or four times per year and that he never had an in-depth discussion about the wills of his father and mother, although he admitted the subject might have been "casually mentioned" four or five times. Jim stated that he and Sanderson discussed farming, not legal matters, because Sanderson did not want to get involved.
Sanderson states that he did not tell Jim about the arrangements for the new will because he thought it was better for the beneficiary not to be involved. Jim also stated under oath that he did not know about the new will until after Lenora's death. In one deposition, Jim was asked if he had ever talked to Sanderson about Lenora's new will, and Jim answered, "No, because I don't want to know anything." Jim was then asked, "Why don't you?" He *1332 responded, "Why would I want to know anything about that? I want to be totally dumb about it. I don't want to know no names. I'm not going to look who signed that because I don't know these people. I don't even want that name in my head. Why would I want to know anything about that? If my mother did that and she wanted to do it and she asked somebody to help her, fine and dandy."
Plaintiffs filed affidavits by Carol Carlson and Wanda Asplund which were stricken by the trial court but which are an issue on appeal. In her affidavit Carol asserted that she was a daughter of Lenora and Hobart Osborn and resides in Roseville, Illinois; that she and her sister Wanda Asplund visited their mother every other day in the hospital; that they visited their mother on Sunday, June 1, 1986, and intended to visit her again on June 3; that she had discussed her visiting schedule with her brother Jim; that Jim called her during the latter part of the day of June 2 and advised her not to visit on June 3 because the doctors were discontinuing some of Lenora's treatment and it would be better for Lenora if she and Wanda did not come; that by reason of Jim's call, she and Wanda did not visit Lenora on June 3; and that at no time during their visits did Lenora mention her will or estate plans. Wanda stated in her affidavit that she and Carol visited Lenora every other day in Methodist Hospital and also related certain resentments that Jim had communicated to her concerning the dispute involving Hobart's estate.
In his deposition, Jim denied that he called Carol and advised her not to visit their mother on June 3. Jim also stated that he had no recollection as to whether he visited his mother on June 3 or not and that he does not keep a diary or calendar of appointments. He said that he visited his mother frequently, often early in the morning or late in the evening, especially during the planting season when he was busy with farm work.
According to Sanderson, after Lenora was in Methodist Hospital in Peoria he was informed by Jim that Lenora had made an appointment with the attorney for the estate, David Hultgren, to have a new will prepared. Sanderson stated that he learned from a call to Lenora that Hultgren had not kept his appointment and that he verified that with Jim. During Sanderson's next visit, he decided to take some action himself since he believed Lenora would not live long and because she asked him to help her get her will changed. That was when he contacted attorney Edwin Walker.
In David Hultgren's deposition, he stated that he visited Lenora in the hospital in Peoria once during May but that the visit was purely social and the making of a new will was not discussed. He recalls Lenora telling him to be certain that plaintiffs' attorney knew that she would change her will if Hobart's estate were not settled. He stated that Lenora never gave him directions to prepare a new will and that she did not make an appointment for him to come to the hospital. He indicated that he began to campaign for state representative in April of 1986 and did not practice law on a full time basis thereafter. He said he did not know Lenora had changed her will until after she died.
Also before the trial court were the nurses' notes from Lenora's hospital charts for June 2 and 3. On June 2, the attending nurse charted the following entries:
"0830Refused breakfast, grandson in room.
0900Valium withheld per grandson pt's request so pt. would be as alert as possible.
* * * * * *
1400Pt. visiting with lawyer
* * * * * *
1715Lawyer here, visiting with Pt."
Lenora's medication chart for June 2 indicated that Darvocet-N was refused by her grandson and that Valium was withheld "per son's request." On June 3 the nurse noted at 1000, "Tired and weak today. Lawyer and family here." At 2000, the nurse noted, "Confused off and on. Asks about her son in hall." The nurse who cared for Lenora during the morning *1333 of June 2 is deceased. Depositions were taken of the other nurses who attended her, but none of them had any independent recollection of Lenora's family or other visitors for the days of June 2 and 3. Nurse Amy Parks, who cared for Lenora during the 3 to 11 p.m. shift on June 3, testified that Lenora's son "was there a lot" during her illness.
Plaintiffs have provided affidavits from eight of Lenora's ten grandsons in which each swears that he did not visit Lenora on June 2 or 3. There was no affidavit from Brian Osborn, Jim's son, but he testified in his deposition that he visited Lenora in Methodist Hospital only on Thursday, May 29, 1986. There was nothing under oath from the remaining grandson, Peter Osborn.
The attending physician in Peoria, Dr. Michael Veeder, stated in his deposition that his progress notes for Lenora disclose that he found her alert on June 1, 2, and 3. On June 4, he noted that she was depressed. On the basis of his notes, Dr. Veeder stated that he would assume that Lenora knew who her children were, what property she owned, and what she wanted to do with it. Dr. Veeder noted a decline in her general condition beginning June 8, 1986.
In granting defendant's motion for summary judgment, the trial court ruled that affidavits of Carol Carlson and Wanda Asplund should be stricken. Those paragraphs relating to the affiants' visits to Lenora were stricken because they set forth events which took place in the presence of the decedent and, therefore, violated the Dead-Man's Act (Ill.Rev.Stat.1987, c. 110, par. 8-201). Other paragraphs setting forth conversations between the affiants' and Jim were stricken because they were not material to the issues of testamentary capacity and undue influence. The court also ruled that there was no question of fact that decedent had testamentary capacity when she signed the June 3 will and that there was no question of fact regarding whether Jim participated in the procurement, preparation, or execution of the June 3 will. Later the trial court denied plaintiffs' motion to reconsider with a ruling that plaintiffs have failed to provide any competent evidence to show that Jim procured the will.
On appeal plaintiffs contend that the trial court erred (1) in granting summary judgment on the testamentary capacity claim; (2) in striking the affidavits of Carol and Wanda for violation of the Dead-Man's Act; and (3) in granting defendant's motion for summary judgment on the undue influence claim.
Testamentary Capacity
Testamentary capacity requires that the testator have sufficient mental ability to know and remember the natural objects of her bounty, to comprehend the kind and character of property held, and to make disposition thereof according to some plan formed in the testator's mind. (In re Estate of Wrigley (1st Dist.1982), 104 Ill. App.3d 1008, 60 Ill.Dec. 757, 433 N.E.2d 995.) Evidence of physical impairment standing alone is insufficient to establish a lack of testamentary capacity. (Manning v. Mock (4th Dist.1983), 119 Ill.App.3d 788, 75 Ill.Dec. 453, 457 N.E.2d 447.) The burden is on the party asserting the lack of testamentary capacity to prove it. In re Estate of Bonjean (3d Dist.1980), 90 Ill. App.3d 582, 45 Ill.Dec. 872, 413 N.E.2d 205.
Here we have clear and credible evidence from the witnesses to the will, the attorney who drew the will, and Judge Sanderson that on June 3, 1986, Lenora knew who her heirs were, understood what property she owned, and had devised a plan of disposition which was consistent with repeated statements made before her illness. This direct testimony is corroborated by her doctor. The nurse's notation that she was weak and tired in the morning of June 3 describes her physical condition, not her mental capacity, and the note of some confusion at 10 p.m. on June 3 did not contradict the testimony of her mental alertness at 10 a.m. the same day. Where, as here, the witnesses clearly establish that testator had the requisite mental capacity to make a will, summary judgment on that issue is proper. (In re Estate of Kietrys *1334 (1st Dist.1982), 104 Ill.App.3d 269, 60 Ill. Dec. 31, 432 N.E.2d 930.) Since there is no genuine issue of material fact concerning Lenora's testamentary capacity when she signed her will on June 3, 1986, we hold that summary judgment was properly entered on that issue.
Dead-Man's Act Violation
The portions of the affidavits of Carol Carlson and Wanda Asplund that were stricken for violation of the Dead-Man's Act were those paragraphs stating that Carol and Wanda made it a practice to visit Lenora at Methodist Hospital every other day, that they had visited her on Sunday, June 1, and intended to visit her on Tuesday, June 3, and that during their visits Lenora never discussed her will.
The trial court also ordered stricken those portions of the affidavits relating Jim's alleged phone call to Carol on June 2 telling her not to visit Lenora on June 3. The court ruled those statements are not relevant or material to the issues of this case involving testamentary capacity and undue influence. Although plaintiffs have not argued on appeal that this portion of the court's ruling was erroneous, they do argue that the affidavits are intended to show that Jim knew of the pattern of their visits and that he acted to prevent them from being at the hospital on the day Lenora was to sign a new will. Plaintiffs then contend that an inference can be drawn that Jim participated in procuring the new will.
The Dead-Man's Act (Ill.Rev.Stat.1987, c. 110, par. 8-201) provides in part:
"In the trial of any action in which any party sues or defends as the representative of a deceased person * * *, 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 to any event which took place in the presence of the deceased * * *, [with certain exceptions not here relevant]."
The last paragraph of both affidavits purported to state that Lenora never conversed about her will or estate during visits by her daughters at Methodist Hospital. In our view, a statement that a particular subject was never discussed violates the statutory prohibition against testifying to any conversation with the deceased, and the trial court correctly ruled that these statements must be stricken.
The remaining portions of the affidavits at issue here are those concerning events, i.e. the dates of visits to the hospital. The current Dead-Man's Act does not impose a general rule of incompetency on adverse parties or interested persons, but rather bars such parties and persons from testifying concerning conversations with decedent and events occurring in decedent's presence. Manning v. Mock (4th Dist.1983), 119 Ill.App.3d 788, 75 Ill.Dec. 453, 457 N.E.2d 447.
Plaintiffs argue that they offer the evidence of visits to Lenora, not to show the truth of the statement that they made the visits, but to show that they communicated a pattern of visits to Jim and that he dissuaded them from going on June 3. They insist that communication to Jim of the pattern of visits does not constitute an event occurring in Lenora's presence and could not have been refuted by Lenora. Defendant argues that the testimony that they visited Lenora on an every-other-day pattern and that they visited her on June 1 and were due to return on June 3 were all matters which Lenora could have refuted.
In our view, testimony that Jim was told that hospital visits took place according to a certain pattern is not the kind of evidence which the Dead-Man's Act was intended to bar. Plaintiffs do not rely upon any conversations or occurrences happening in the course of those visits. We conclude that the trial court erred in striking the affidavits of Carol Carlson and Wanda Asplund with the exception of the last paragraph of each affidavit (relating what decedent did not discuss), both of which were properly stricken.
Undue Influence
Plaintiffs contend that the evidence in the affidavits and depositions before the *1335 court presented a disputed question of material fact as to whether Jim exercised undue influence upon Lenora sufficient to avoid the June 3 will.
The legal standard in such a case is as follows:
"Undue influence which will avoid a will must be directly connected with the execution of the will itself, must operate when the will is made, must be directed toward the procuring of the will in favor of a particular person, and be such as to destroy the freedom of the testator's action, thereby making the instrument more the result of the will and intent of another than that of the testator himself. [Citations.] No inference of undue influence arises from decedent's age and physical and mental condition * * *. Undue influence cannot be established merely by inference, though circumstances may tend to do so. [Citation.] Nor can undue influence be inferred from the provisions of the will in defendant's favor, inasmuch as a testator may distribute his estate as he pleases * * *." Hockersmith v. Cox (1950), 407 Ill. 321, 325-326, 95 N.E.2d 464, 467. Accord, In re Estate of Lemke (5th Dist.1990), 203 Ill.App.3d 999,149 Ill.Dec. 72, 561 N.E.2d 350.
Plaintiffs admit that there is nothing in the record to indicate that Jim directly participated in the preparation of Lenora's will or that he personally procured its preparation. Sanderson was the active participant, not Jim. Plaintiffs insist, however, there is an issue of fact as to whether an inference could be drawn that Sanderson acted as the agent of Jim in arranging the preparation of the new will. In Herbolsheimer v. Herbolsheimer (3d Dist.1977), 46 Ill.App.3d 563, 5 Ill.Dec. 134, 137, 361 N.E.2d 134, 137, this court noted that presence of the beneficiary at the execution of the will is not necessary to establish undue influence if secret influences were used against the testator by the one procuring the will. Plaintiffs argue that it is possible to infer that Jim's influence here was carefully concealed but was nonetheless exercised by and through Sanderson.
Plaintiffs rely upon certain contradictions in the evidence to support their theory that Sanderson was acting as agent in behalf of Jim when he contacted attorney Walker and arranged for witnesses for the execution of the will. Plaintiffs point to the following: (1) affidavits of Carol Carlson and Wanda Asplund indicating that Jim asked his sisters not to visit Lenora on their regular visiting day of June 3, contradicted by Jim's deposition stating that he did not make such a request; (2) Sanderson's testimony that he discussed Lenora's will with Jim, contradicted by Jim's statement that he never discussed her will with Sanderson; (3) Sanderson's testimony that he talked to Jim about his "family situation" 40 to 60 times between 1982 and 1990, contrary to Jim's testimony that he only saw Sanderson 3 or 4 times per year and rarely discussed his family matters; and (4) Sanderson's testimony that Jim told him Lenora had made an appointment with attorney Hultgren while she was hospitalized in Peoria for the purpose of preparing a new will, contradicted by Hultgren's statement that Lenora never asked him to prepare a new will.
If these contradictory statements were submitted to a trier of fact, if every contradiction were found in favor of plaintiffs, and if every reasonable inference were drawn in favor of plaintiffs, there would be no evidence to support plaintiff's theory that Sanderson acted as Jim's agent. The affidavits and depositions in the record on appeal can be construed to disclose a question of fact as to whether Jim knew that Sanderson was arranging for Lenora to have a new will prepared, but that does not give rise to an inference that Sanderson was acting on behalf of Jim rather than Lenora. Most significant here is the absence of any evidence contradicting Sanderson's statements that Lenora asked him to help her get a new will drawn.
The procedures followed by attorney Walker were carefully intended to verify that Lenora was exercising her own free will, that she was fully competent to execute a will, and that the proposed disposition of her property was rational. It would be hard to find fault with the way Walker *1336 proceeded, given the circumstances of this case. Lenora had two opportunities to disclose any doubts she might have hadonce on June 2 when Walker met with her alone to discuss what she wanted in her will and again on June 3 when he gave her the will and made certain that was what she wanted to do in front of three friends who had been selected by her to be witnesses. Sanderson was not present either time.
The most that plaintiffs can show is that Sanderson discussed with Jim the family dispute involving the disposition of Hobart and Lenora's property and also the provisions of Lenora's 1972 will. Since there is considerable evidence that Lenora considered Sanderson a trusted friend and that she discussed the family dispute with many of her friends, some such discussions between Sanderson and Jim would be reasonable under the circumstances. However, no one has testified to any conversation or event which would give rise to an inference that Sanderson acted pursuant to authority from Jim, not Lenora, in arranging for her 1986 will. Instead, the evidence is uncontradicted that Lenora's new will was prepared at her request, according to her directions, and in conformity with her stated desire to see that Jim was treated fairly.
Plaintiffs rely on a will contest case where there was no evidence that the beneficiaries of the will had personally procured the will and where we held that evidence of direct and indirect participation in the estate plans of the testatrix was sufficient to permit an inference that the beneficiaries were instrumental in procuring the will. There we ruled that the case should be tried to resolve the conflicts in the evidence and to draw necessary inferences. (In re Estate of Dossett (3d Dist.1987), 159 Ill. App.3d 466, 111 Ill.Dec. 418, 512 N.E.2d 807.) That case can be readily distinguished from the case before us here.
In Dossett, the beneficiary of the contested will had a power of attorney and took care of decedent's business, thus having a fiduciary relationship to decedent. Here, there was no evidence that Jim was Lenora's fiduciary or that he dominated her in any way. Lenora managed her own business matters right to the end, even to the point of point of signing the check to pay attorney Walker for his services in preparing her will. In Dossett, the plaintiff was decedent's sister and the beneficiaries under the will were not related to the decedent. Here, the beneficiary is the son of decedent who would not have benefitted under her 1972 will. Also, Lenora believed that Jim had not received what he was entitled to under Hobart's will and that plaintiffs had obtained more than Hobart had intended them to have.
Finally, in Dossett there was no evidence as to what transpired at the time the will was executed or that anyone determined that the will represented the desires of decedent; furthermore, there was some evidence that the decedent had complained earlier that defendants were pressing her to change her will in their favor. Here, we have clear and undisputed evidence that Lenora made her wishes known to Sanderson on May 30, to Walker on June 2, and to Walker and the witnesses on June 3. Numerous persons verified that the June 3 will carried out a plan which Lenora had considered and discussed for a long period of time. Hence, Dossett does not apply to the case at bar.
The trial court here found that plaintiffs had failed to produce evidence that Jim Osborn procured Lenora's new will, either directly or indirectly through Sanderson, and we conclude that the record supports the finding of the court. Even considering the erroneously stricken affidavits, we hold that summary judgment in favor of defendant was properly granted.
Reversed in part; affirmed in part.
McCUSKEY and GORMAN, JJ., concur.
| {
"pile_set_name": "FreeLaw"
} |
662 S.E.2d 811 (2008)
In the Interest of J.A.C., a child.
No. A08A0233.
Court of Appeals of Georgia.
May 30, 2008.
*812 Marnique W. Oliver, for appellant.
Steven Askew, District Attorney, Mary K. McKinnon, Assistant District Attorney, for appellee.
BERNES, Judge.
J.A.C. appeals from an adjudication of delinquency based on his commission of an aggravated assault. J.A.C. argues that the evidence is insufficient to support the juvenile court's finding of delinquency and its imposition of restrictive custody. We affirm.
On appeal from an order of delinquency, we determine whether a rational trier of fact could have found from the evidence presented that the juvenile committed the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); In the Interest of R.A.W., 197 Ga.App. 225, 398 S.E.2d 261 *813 (1990). We construe the evidence in favor of the trial court's findings, leaving the credibility of witnesses and the resolution of conflicts in the evidence to the trial court. In the Interest of R.A.W., 197 Ga.App. at 225, 398 S.E.2d 261.
So viewed, the record shows that on January 19, 2007, J.A.C.'s mother called the Washington County Sheriff's Office and requested that a deputy be sent to her home to assist her in dealing with her son. When Deputy Sheriff Daniel Douglass arrived, the mother told the deputy that in the course of a family argument over J.A.C.'s failure to wash some dishes, J.A.C. had pushed his sister to the ground. The mother also told Douglass that she wanted her son removed from the house. Douglass contacted the Department of Juvenile Justice, which recommended that he get a relative to take J.A.C. for the weekend. Douglass then told J.A.C. to call a relative to come pick him up.
After J.A.C. made the call, Douglass told him to pack some bags. J.A.C. wanted to take new clothes, but his mother refused to let him have them. J.A.C. then went into the bathroom, where he stayed for approximately 15 minutes. After repeated requests from Douglass to come out, J.A.C. did so. However, after J.A.C. exited the bathroom, he started going "back and forth" into the kitchen. When Douglass again told him to pack his bags so they could leave, J.A.C. told Douglass to "get out of his face." Douglass went outside to apprise the Department of Juvenile Justice of unfolding events. As he did so, J.A.C.'s mother approached him and told him he "needed to come now." As Douglass walked into the living room, J.A.C. threw an object from the kitchen straight past Douglass's face. When J.A.C. slung a pitcher across the kitchen, breaking it, Douglass told him that he was under arrest and to put his hands behind his back. J.A.C. then ran out the side door.
Douglass followed J.A.C. out of the house and grabbed his clothing, at which point J.A.C. turned and lunged toward the officer. Having called for backup, Douglass pulled out his baton and ordered J.A.C. to back off. After a brief standoff, J.A.C. threw up his hands as if preparing to hit Douglass, who swung his baton at J.A.C.J.A.C. then caught the baton and twisted it out of Douglass's hands. Afraid that J.A.C. was going to strike him with the baton, Douglass "went into" J.A.C., who advanced toward the officer with the baton in his hand. After a struggle over the baton, Douglass got it back, but J.A.C. then pushed him to the ground and hit him in the face and chest. Some neighbors came upon the scene and assisted Douglass until backup arrived. Douglass suffered a split lip, cracked ribs and knots on his head as a result of the attack.
1. The evidence was sufficient to support the juvenile court's finding of delinquency based on J.A.C.'s commission of acts constituting the offense aggravated assault if committed by an adult. J.A.C. committed an act with a deadly weapon advancing on Douglass with the baton in his hand which put the officer in reasonable apprehension of immediately receiving a violent injury. See OCGA §§ 16-5-20(a)(2) (defining assault as commission of "an act which places another in reasonable apprehension of immediately receiving a violent injury"); 16-5-21 (a)(2) (defining aggravated assault as assault with a deadly weapon or an object likely to cause serious bodily injury when used offensively); In the Interest of T.W., 280 Ga.App. 693-694, 634 S.E.2d 854 (2006) (whether tree limb was a deadly weapon under the circumstances was a question for the factfinder). Compare Nichols v. State, 238 Ga.App. 412, 413-414(2), 519 S.E.2d 20 (1999) (evidence was insufficient to sustain conviction for aggravated assault when defendant grabbed officer's hand as officer was reaching for defendant's knife in leather holder attached to his belt).
2. J.A.C. suggests that there was a fatal variance between the allegations and the proof because the delinquency petition charged him with "hitting" Douglass with the baton. We disagree.
Although it is true that "[a]verments in [a petition] as to the specific manner in which a crime was committed are not mere surplusage and must be proved as laid," (punctuation and footnote omitted) Quiroz v. State, 291 Ga.App. ___(1), 662 S.E.2d 235 (2008), the State has the burden *814 of proving only the material elements of an indictment. Id. at ___(1), 662 S.E.2d 235. The petition here alleged that J.A.C.'s use of the baton against Douglass amounted to an assault with an object likely to cause serious bodily injury when used offensively, and the proof supported this conclusion. Any variance between the indictment's allegation that J.A.C. actually hit Douglass with the baton and proof that he merely advanced on him immediately before a hand-to-hand struggle over the baton was therefore immaterial. See id. at ___(1), 662 S.E.2d 235 (variance between indictment alleging that defendant held knife to victim's neck and proof that defendant only pointed it at him was immaterial); Nash v. State, 222 Ga.App. 766, 766-767(1), 476 S.E.2d 69 (1996) (variance between indictment alleging that defendant threw a knife at the victim and proof that the knife fell out of the defendant's hand as he was stabbing the victim was not fatal to conviction for aggravated assault). Compare Roach v. State, 289 Ga.App. 23, 24-25, 656 S.E.2d 165 (2007) (where indictment alleged that the defendant remained on property under one subsection of the trespass statute, and where the crime could have been committed in a different manner under a different subsection, the absence of proof that the defendant remained on the property was fatal).
3. J.A.C. also argues that the juvenile court failed to make proper written findings in its determination to impose protective custody. He attacks the juvenile court's finding under OCGA § 15-11-63(c)(1) that he was "in need of treatment and rehabilitation" as not sufficiently specific, and its finding under OCGA § 15-11-63(c)(2) that his record included "previous convictions" as outright erroneous.
OCGA § 15-11-63(b) provides that a juvenile court's order of disposition concerning a felony act by a juvenile "shall be made within 20 days of the conclusion of the dispositional hearing and shall include a finding based on a preponderance of the evidence as to whether . . . the child does or does not require restrictive custody[,]" and that the court "shall make specific written findings of fact as to each of the elements set forth in paragraphs (1) through (5) of subsection (c) of this Code section as related to the particular child." The five factors prescribed by OCGA § 15-11-63(c) are:
(1) The needs and best interests of the child; (2) The record and background of the child; (3) The nature and circumstances of the offense, including whether any injury involved was inflicted by the child or another participant; (4) The need for protection of the community; and (5) The age and physical condition of the victim.
The juvenile court's finding that J.A.C. was "in need of treatment and rehabilitation," satisfied the first factor because it drew a conclusion about the needs and best interest of the child. Compare In the Interest of E.D.F., 243 Ga.App. 68, 70(3), 532 S.E.2d 424 (2000) (vacating order of protective custody where juvenile court found only that the juvenile's "actions cause him to be a risk to others") (punctuation omitted). And even though the trial court's reference to "previous convictions" was a misnomer, it is clear from the order and dispositional hearing transcript that the trial court was aware that J.A.C.'s record and background included only one delinquency adjudication. Thus, any error in the trial court's phraseology was harmless.
Judgment affirmed.
RUFFIN, P.J., and ANDREWS, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
819 F.2d 1146
Trohimovichv.Washington State Dept. of Revenue
85-3917
United States Court of Appeals,Ninth Circuit.
6/8/87
1
W.D.Wash.
AFFIRMED
| {
"pile_set_name": "FreeLaw"
} |
691 So.2d 490 (1997)
Albert BANKS, Appellant,
v.
STATE of Florida, Appellee.
No. 93-0983.
District Court of Appeal of Florida, Fourth District.
February 19, 1997.
Rehearing and Certification Denied April 23, 1997.
*491 Bert Winkler, West Palm Beach, for appellant.
Robert Butterworth, Attorney General, Tallahassee, Joan Fowler and Don Rogers, Assistant Attorney Generals, West Palm Beach, for appellee.
EN BANC
STONE, Judge.
We grant the state's motion for rehearing en banc, withdraw our opinion of September 13, 1995, and substitute the following opinion. The sole issue we address is whether the trial court erred in denying a motion for discharge under the "speedy trial" rule. The judgment and sentence are affirmed.
Appellant was charged on April 24, 1992 and a not guilty plea was entered on May 4, 1992. On that date, the defense also filed a demand for reciprocal discovery pursuant to rule 3.220, Florida Rules of Criminal Procedure.[1] The trial was set, without objection, for May 26th. At calendar call on May 22nd, defense counsel indicated that he was not ready for trial and requested a continuance because he had not received the full discovery from the state until May 20th.[2]
In response to the defense attorney's assertion that the continuance should not be "charged to" the defendant, the court advised counsel that he could not "have it both ways," and that the court was prepared to proceed to trial the following week unless the defense maintained its request for a continuance knowing that it would not be charged to the state. The defendant's attorney then advised the court that he was not ready for trial and could not be ready. Counsel indicated that he would need a continuance of at least 60 days, which the court granted. We note that the record reflects that the public defender had initially been appointed as counsel, and that private counsel was apparently retained after the arraignment. The trial was subsequently continued again and trial commenced in November, 207 days after the arrest.
Appellant did not, and does not, assert that there was a discovery violation. The record does not reflect any claim of misconduct or intentional delay by the state in furnishing discovery. Nor is there even a contention that the state was seeking some tactical advantage by the time taken in obtaining and furnishing the discovery material. Defense counsel's argument to the trial court was that counsel was not prepared and did not have sufficient time to prepare for trial.
Florida Rule of Criminal Procedure 3.191(j) states that where a trial is continued at a defendant's request, the resulting delay is "attributable to the accused." As a general rule, a defense request for continuance, absent state misconduct, inexcusable delay in providing discovery, or other violation of defense discovery rights, waives the 175 day "speedy trial" time and the defendant's right to discharge pursuant to criminal procedure rule 3.191(a). State v. Frazee, 617 So.2d 350, 351 (Fla. 4th DCA 1993); J.B. v. Korda, 436 So.2d 1109 (Fla. 4th DCA 1983); Colby v. *492 McNeill, 595 So.2d 115 (Fla. 3d DCA), rev. denied, 604 So.2d 487 (Fla.1992); Fonte v. State, 515 So.2d 1036 (Fla. 3d DCA 1987), rev. denied, 525 So.2d 878 (Fla.1988); Blackstock v. Newman, 461 So.2d 1021, 1022 (Fla. 3rd DCA), rev. denied, 467 So.2d 999 (Fla. 1985); State v. Fraser, 426 So.2d 46 (Fla. 5th DCA 1982), rev. denied, 436 So.2d 98 (Fla. 1983); State v. Brown, 412 So.2d 448 (Fla. 5th DCA 1982). See also Rubiera v. Dade County ex rel. Benitez, 305 So.2d 161 (Fla. 1974); State v. Oppert, 380 So.2d 1301 (Fla. 4th DCA), rev. denied, 392 So.2d 1377 (Fla. 1980); State v. Duda, 368 So.2d 918, 919-920 (Fla. 4th DCA 1979); State v. Kurtz, 354 So.2d 890, 891-892 (Fla. 4th DCA), cert. denied, 360 So.2d 1249 (Fla.1978); State v. Abrams, 350 So.2d 1104, 1105 (Fla. 4th DCA 1977); State ex rel. Gadson v. Tyson, 334 So.2d 56, 58 (Fla. 4th DCA 1976).
Finding no fault with the state, Appellant's argument is that he should not lose his right to seek a speedy trial discharge simply because the court scheduled his first trial date for only three weeks after arraignment. However, although a defendant is assured a fair opportunity to prepare for trial, there is no rule precluding a court's affording an early trial date opportunity.
The speedy trial right at issue here is not one of constitutional dimension and clearly may be waived. Fonte; Fraser. Nor is the defendant's lack of fault, or even possible defense prejudice, a determining factor in deciding whether speedy trial was waived by the defense being unavailable for trial. See State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971); Fonte; Fraser; Blackstock. In any event, Appellant is not prejudiced, as the defense at all times had available the 50 day speedy trial by demand remedy provided under rule 3.191, as well as speedy trial principles available under the state and U.S. constitutions.
In Cullen, the court rejected the argument that speedy trial rights cannot be waived by seeking a continuance where a defendant is prejudiced due to insufficient time to prepare within the time allotted prior to the scheduled trial date. The court, after recognizing that the request is a waiver, noted that, at that point (upon granting the continuance), it becomes "incumbent upon the trial court to set a trial date far enough in advance to allow adequate time for preparation." Id. at 863. The court also recognized that the defendant is not unduly prejudiced by this holding, as there remains the right to demand speedy trial under the rule and the defendant retains constitutional rights to a speedy trial.
The record does not reflect whether the state could have gathered, reviewed, prepared, and furnished full discovery in less than the time it utilized. Nor did defense counsel claim that the state could have done so. However, we note that even if the state could have done so, such would be irrelevant, as discovery was timely furnished and there was no misconduct or even a defense request to shorten the time for discovery. See State v. Miller, 672 So.2d 855 (Fla. 5th DCA 1996) (inappropriate to penalize state for not voluntarily waiving its right under rule 3.220(b) where defendant did not move for, and court did not order, shortening of compliance period).
We have considered State v. Del Gaudio, 445 So.2d 605, 611 (Fla. 3d DCA), rev. denied, 453 So.2d 45 (Fla.1984), but deem it inapposite. In Del Gaudio, the court was concerned with prejudice to the defendant by last minute delays caused by a violation of discovery rules as the speedy trial time was about to expire. Here, there is no such issue. For that reason, we also do not deem George v. Trettis, 500 So.2d 588 (Fla. 2d DCA 1986) and Lobik v. State, 506 So.2d 1077 (Fla. 2d DCA 1987) to be in conflict with this opinion. Appellant cites no authority applying the Del Gaudio principle under these circumstances, nor has Appellant furnished any authority indicating that it is an abuse of trial court discretion, per se, to schedule a first trial date three weeks after arraignment.
Having determined that Appellant waived his right to speedy trial on May 22nd, it is not necessary to address whether he also waived it by joining in a continuance request in August 1992. As to all other issues raised, we also affirm.
*493 GLICKSTEIN, DELL, WARNER, POLEN, KLEIN, PARIENTE, STEVENSON, SHAHOOD and GROSS, JJ., concur.
FARMER, J., dissents with opinion, in which GUNTHER, C.J., concurs.
FARMER, Judge, dissenting.
The essential problem in this case is that it was set for trial a mere 22 days after arrest and even less than that from counsel's initial appearance. The principal effect of setting such an immediate trial date, particularly on charges of murder,[3] is to force a defendant to request a continuance. Thus today's decision approves a very effective means for avoiding the speedy trial requirements of the rules of criminal procedure.
Judges now need merely set the case for trial within 20 days of arraignment. That will force the hapless defendant into requesting a continuance because he is, quite understandably, not ready for trial. That request for a continuance will then necessarily waive the general speedy trial provision. He may therefore purchase his right to due process but apparently only at the price of his speedy trial right under the rule. Because as a practical matter this procedure eviscerates a defendant's rights to due process, as well as the right to discovery and speedy trial under the rules, I must dissent.
Both the right to due process[4] and the right to a speedy trial[5] come from the identical concern: the manipulation of the timing of a criminal trial to frustrate a defendant's ability to defend the charges against him. The drafters of these constitutional provisions were very familiar with the use of both rushed and delayed trials by the agents of George III to ensure conviction and punishment of dissenters. Thus these rights emerged from a single injustice: the use of the timing of criminal trials to enhance the prospects of the state for convictions. They remedy the same evil. The state can neither inordinately rush nor unreasonably delay a defendant from going to trial. Yet, under today's decision, the one is forfeited by the necessary assertion of the other.
As I pointed out in the panel opinion, rule 3.191(a) provides generally that every person charged with a felony shall be brought to trial within 175 days.[6] At the same time, a defendant is also given the right by rule 3.191(b) to have the trial within 50 days of filing a demand. If defendant elects to assert this right for an earlier speedy trial, the trial must then begin no sooner than 5 days and not later than 50 days from the filing of the demand.[7] The text of subdivision (a) clearly states that it governs all criminal prosecutions and that every defendant, without any demand or action on his part, "shall be brought to trial" [emphasis supplied] by the end of the 175-day period. In contrast, *494 subdivision (b) merely gives a defendant the right to demand an earlier trial within 60 days.
And so, from these separate and different provisions, there are two speedy trial rights granted by the rule. One is automatic and applies to every defendant. The other accelerates the holding of trial and is triggered solely upon the demand of a defendant. There is nothing in rule 3.191 providing that the failure to demand the earlier trial waives the general 175-day limit. Hence, the general rule of 175 days contained in subdivision (a) governs when there has been no demand by the defendant.
The speedy trial rule requires that defendant be discharged if trial does not commence within the prescribed period of time, unless one of 4 circumstances exist.[8] The only exception plausibly applicable in this case is subdivision (j)(2), requiring the court to determine whether the failure to hold trial is attributable to the accused.
There is no definition of attributable in the rule. The word attribute is defined as relating "to a particular cause or source; to ascribe." See AMERICAN HERITAGE DICTIONARY (3rd ed.) 120. In a Usage Note accompanying the definition, the AHD lists "attribute, ascribe, impute, credit, assign, refer" as synonyms. It goes on to say:
"These verbs mean to consider as resulting from ... or belonging to a person or thing. Attribute and ascribe, often interchangeable, have the widest application."
Thus, when the generally held definition of attributable is used, subdivision (j)(2) requires the court to determine whether the failure relates to, is caused by, or has its source with the defendant.
Given the general meaning of attributable, there are two possible constructions of subdivision (j)(2), one broad and one narrow:
A. under the broad meaning, any request for a continuance by a defendant means that he is the cause or source of the failure; or
B. under the narrow meaning, the court is required to examine the circumstances and determine whether the root cause of the request for the continuance lies with conduct of the defendant or elsewhere.
If the rule's use of the term attributable has the meaning of the former, then any defense request for a continuance means that the failure to hold the trial is attributable to the defendant. If the latter, the failure is not attributable to him. Because both meanings are conceivable under the general meaning of attributable, we are obligated to apply the rule of lenity and strictly construe the term by using the meaning that favors the accused. § 775.021(1), Fla. Stat. (1995).
Today's decision does not engage in any examination of the circumstances of this case to ascertain whether the failure to hold the trial relates to, or was caused by, any particular cause or source other than the defendant. Instead, the court simply holds that a continuance is attributable to a defendant even though he has been forced to request the delay because the trial was scheduled before he could reasonably be expected to be ready for trial. This conclusion is apparently based on State ex rel. Butler v. Cullen, 253 So.2d 861 (Fla.1971).
Cullen was based on a different version of the speedy trial rule. In that time, the pertinent provision of the rule read as follows:
"(d)(3). Continuances; Effect on Motion.
If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that (I) a time extension has been ordered as provided in § (d)(2), *495 or (ii) the failure to hold trial is due to the unexcused actions or unexcused decisions of the accused, or of a codefendant in the same trial. If a continuance or delay is attributable to the accused and is not excused, the pending motion for discharge shall on motion by the State be voidable by the court in the interests of justice; provided, however, trial shall be scheduled and commence within 90 days." [emphasis supplied.]
253 So.2d at 863; see also In re Florida Rules of Criminal Procedure, 245 So.2d 33, 36 (Fla.1971).
The history of rule 3.191 shows that the words "attributable to the accused" in what is now subdivision (j)(2) replaced the words "due to the unexcused actions or unexcused decisions of the accused" in what was previously subdivision (d)(3). See The Florida BarIn re Rules of Criminal Procedure, 389 So.2d 610, 614 (Fla.1980). I read that amendment to change the intent of this provision. Under the previous version, the court was required to consider whether the conduct or decisions of the accused that result in a delay of trial should be excused. Under the new version, the court is required instead to decide whether the root cause for the delay lies with the accused or elsewhere. Otherwise the amendment is meaningless, and we do not view amendments of statutes or rules as empty gestures.
The facts in Cullen show that the court sought to determine whether conduct or decisions of the accused there should be excused. The pertinent facts in Cullen are illustrated in the following table:
Date Event
2/1/71 Arrested
5/25/71 Demand for speedy trial[9]
6/1/71 Indictment
...... First set for trial 7/12/71
7/2/71 Defense Moves for Continuance
...... Defense withdraws demand
for speedy trial
7/2/71 Trial set for 10/4/71
9/30/71 Motion for Discharge
The petition for discharge explained these events as follows:
"On July 2, 1971, court-appointed counsel moved the trial court to vacate the scheduled trial date on the grounds that the State (by myriad unexplained delays) had unconstitutionally deprived the Defendants of their opportunity to properly prepare for trial with effective aid of counsel.... The Court denied the motion to vacate trial date. Thereafter, and solely because of the Court's refusal to vacate the trial date, ... Relators withdrew their purported written Demands for Speedy Trial and requested additional time within which to prepare their defense prior to the trial of the case."
253 So.2d at 862.
The court held that the periods prescribed by the speedy trial rule were no longer applicable because the defendants moved for a continuance to obtain additional time to prepare their defense. 253 So.2d at 863 ("It appears on the face of the petition that petitioners requested a continuance so that they would have additional time within which to prepare their defense."). In other words, the petitioners there did not seek a continuance because the court had set their trial date within 3 weeks after being taken into custody and the initial appearance of their lawyer. Nor did they argue that the initial trial date on its face denied them due process by failing to afford them minimally sufficient time to prepare for trial. Instead, they obtained a continuance when their improper demand for speedy trial was deemed a nullity and then failed to renew their demand after the general period had been waived by them. As the court put it:
"Rather than file a demand, petitioners in this case ... caused a delay, waited until the time prescribed in the rule expired, and moved for a discharge."
253 So.2d at 863. Accordingly, I do not believe that Cullen can be read to hold that the general speedy trial right is waived even though a defense request for a continuance resulted from or was caused by setting the case for trial too soon after arrest so that defendant was denied even the minimal time necessary to be ready for trial.
*496 There appear to be only two reasons for attributing the continuance in this case to the defendant. First, even though the state's response to defendant's demand for discovery did not reach defense counsel until just 2 days before the calendar call, the state responded within the time prescribed by rule to answer discovery. Because the state responded timely to the discovery request, the continuance should be attributed to the defense. Second, defendant did not make a formal demand under subdivision (b) for an accelerated trial, thereby resulting in the continuance being attributed to him.[10]
Admittedly, there is a difference between rushing a defendant to trial, on the one hand, and delaying the defendant from defending against the charges on the other. In the former the defendant complains that he has not been given enough time to prepare, while in the latter he complains that the state has been given too much time to prepare. Both, however, can result in serious injustice to the defendant. Thus, due process prohibits rushing a defendant to trial before he can realistically be ready, while the speedy trial provision prohibits delaying the trial until the defensive evidence is stale or nonexistent. Equally so, one's readiness for trial is bound up in the ability to fairly meet the state's charges; therefore the rules provide for basic discovery of the state's case. Hence, the holding that the right to speedy trial under the rules may be lost in the exercise of the right to due process and discovery lacks textual support in the rule.
As previously shown, there is no provision in the text of rule 3.191 that the failure of a defendant to make a demand for an earlier speedy trial waives the 175-day provision. Indeed, rule 3.191(a) is entitled "Speedy Trial without Demand." [emphasis supplied.] The self-executing nature of rule 3.191(a) is entirely apparent from its text. Rule 3.191(b), on the other hand, is entitled "Speedy Trial with Demand." [emphasis supplied.] Requiring a defendant to make a formal demand for the speedy trial right set forth in rule 3.191(a) would both rewrite the text and entirely destroy the self-executing nature of the rule. Moreover, as I have said, the inevitable result of today's decision is that a defendant must now necessarily choose between the general right to speedy trial under the rule, on the one hand, and the defendant's due process right to reasonable time to prepare and discovery on the other. The one right or the other is forfeited under this decision. I should have thought that only the most exigent of reasons would support forcing a defendant to such a Hobson's choice between constitutional protections.
The rule provision for speedy trial is quite obviously the child of the constitutional entitlement to a speedy trial. Because the constitutional provision is cast in the form of a general imperative, the rule has been adopted to give content and direction to the generality of the constitutional provision. While a failure to try a defendant within the rule period is not, in and of itself, a violation of the general constitutional command, there can be no doubt that the rule protects the constitutional interest. Hence the right granted under the rule is hidebound with the right granted by the constitution, and should be construed and enforced with a healthy regard for its constitutional underpinnings in mind.
The setting of trial unreasonably shortly after defendant has been arrested is plainly a violation of due process, affecting even the right to counsel. As our supreme court said many years ago:
"Justice requires, and it is the universal rule, observed in all courts of this country, it is most sincerely to be hoped, that reasonable time is afforded to all persons accused of crime in which to prepare for their defense. A judicial trial becomes a farce, a mere burlesque, and in serious cases a most gruesome one at that, when a person is hurried into a trial upon an indictment charging him with a high crime, without permitting him the privilege of examining the charge and time for preparing his defense. It is unnecessary to dwell upon the seriousness of such an error; it *497 strikes at the root and base of constitutional liberties; it makes for a deprivation of liberty or life without due process of law; it destroys confidence in the institutions of free America and brings our very government into disrepute." [emphasis supplied.]
Coker v. State, 82 Fla. 5, 7, 89 So. 222 (1921). Even more recently, the court confronted the same subject in Valle v. State, 394 So.2d 1004 (Fla.1981), saying:
"The state admits that appellant's trial which commenced twenty-four days after arraignment constituted a period of time considerably less than average for capital cases, but contends that the denial of the trial continuance was both reasonable under the circumstances and a proper exercise of discretion. The state argues that the conviction and sentence should stand because (1) appellant failed to identify any resulting prejudice; (2) the evidence of appellant's guilt was overwhelming; and (3) defense counsel would not have been better prepared even if allowed more time. We reject the state's contentions and, under the circumstances of this case, find that the trial judge abused her discretion.
"It is a basic due process right and essential to a fair trial that defense counsel in a criminal case be afforded a reasonable opportunity to prepare his case. The United States Supreme Court has made this clear:
`We have many times repeated that not only does due process require that a defendant, on trial in a state court upon a serious criminal charge and unable to defend himself, shall have the benefit of counsel, ... but that it is a denial of the accused's constitutional right to a fair trial to force him to trial with such expedition as to deprive him of the effective aid and assistance of counsel.'
White v. Ragen, 324 U.S. 760, 763-64, 65 S.Ct. 978, 980, 89 L.Ed. 1348 (1945) (citations omitted). Accord, Hawk v. Olson, 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)."
394 So.2d at 1007. The court went on to explain:
"The law requires that each defendant have sufficient time to prepare a defense, including the opportunity to utilize available procedural discovery rules provided for that purpose. Florida Rule of Criminal Procedure 3.220(a)(1)(I) requires the prosecution to disclose to defense counsel the `names and addresses of all persons known to the prosecutor to have information which may be relevant to the offense charged, and to any defense with respect thereto.' It necessarily follows that the trial court must allow defense counsel the time to interview these persons to properly prepare for trial." [emphasis supplied.]
394 So.2d at 1008. The court held in Valle that the weight of the evidence and the absence of any showing that additional time would have led to a different result were insufficient reasons to overcome defendant's due process right not to be forced to trial so soon.[11]
The Valle court expressly held that the right to discovery under the rules is part of the due process right not to be forced to an early trial without sufficient time to prepare. As I pointed out in the panel opinion:
"Discovery must be furnished within sufficient time to permit the defendant to make use of it without having to forfeit his right to a speedy trial, and when discovery is not promptly furnished, the court may continue a case at the state's expense beyond the speedy trial limits even if such continuance effectively results in the discharge of the defendant. State v. Williams, 497 So.2d 730 (consolidated) (Fla. 2d DCA 1986). State v. Del Gaudio, 445 So.2d 605 (Fla. 3d DCA 1984)." [emphasis supplied.]
George v. Trettis, 500 So.2d 588, 589 (Fla. 2d DCA 1986).
In State v. Miller, 672 So.2d 855 (Fla. 5th DCA), rev. granted, 682 So.2d 1100 (Fla. 1996), the court analyzed my opinion's use of the holding in Trettis, saying:
"But Trettis involved a violation of the discovery rule. In fact, the Trettis trial court had previously had to order the State *498 to comply with the discovery request. A finding in Trettis, therefore, that the defendant was delayed in his preparation by the conduct of the State was most appropriate. But to hold that Trettis is authority for granting a continuance charged to the State when there has been no discovery violation is taking its holding out of context."
672 So.2d at 857. Yet it was not the holding in Trettis that I used. I strived to make abundantly clear that there was no discovery violation in this case. I borrowed only the statement of principle that I quoted. The application of a legal principle in one context has never been understood to bar its application in a related but different context.
The speedy trial rule was intended as a protection for the defendant and a burden to the state. When the state uses the entire time permitted by the discovery rule to provide discovery to the defendant but thereby impairs the defendant's due process right not to be unfairly rushed to trial, it does not penalize the state in any way to refuse to attribute a continuance to the defendant. Actually, one must not think of the state as being penalized at all under the speedy trial rule, because it was deliberately intended to be part of the state's burden in obtaining a conviction. Thus, the consequence of attributing the continuance to the state is to change nothing. The state must still bring the defendant to trial within the remainder of the 175 days provided by the rule. When the trial court granted the May continuance in this case, if it had explicitly held that the continuance was not attributable to the defendant, there would have been no burden added to the state. At that point, the state would still have had a period of more than 145 days to commence trial!
In fact, not attributing a continuance to the defendant under this circumstance vindicates both the state's right to respond within the discovery rule's time limit and the defendant's due process right but without denying his speedy trial right and at no additional burden to the state. Frankly I do not understand how the fact that the state did not violate the discovery rule has any bearing on either the due process question or the speedy trial question. Today's decision omits any explanation as to any logical relationship between the state's compliance under the discovery rule and attributing to the defendant the failure to hold trial.
The discharge of a guilty man is not a happy result. But then, our criminal justice system was deliberately designed with the possibility that some guilty people may escape conviction and punishment. The provisions in the Bill of Rights were intentionally framed to make it difficult for the state to convict and punish those who violate its criminal laws. From these rights, there are many points on the road to a felony conviction where the state may fail in its attempt to convict a guilty man: the state must first have probable cause to arrest and hold someone for trial; the formal charge must actually describe a crime that existed when the act was committed; the accused is entitled to counsel even at state expense; the accused must be given a trial by jury in the place where the crime was committed; the trial must be speedy and public; the state has the burden of proving all of the elements of the crime beyond any reasonable doubt; and the verdict of the jury must be unanimous. At any one of these stages in a criminal prosecution, the state may fail its burden even though the defendant is obviously guilty. Hence, a speedy trial discharge, however lamentable, is an inevitableif rareresult that is not avoidable merely because it releases the perpetrator of a crime.
If the trial judge had denied defendant's May motion for a continuance and the case had proceeded to trial then, I think it is obvious that we would have reversed any resulting conviction because of this patent due process violation. No one on this court suggests that the early setting of trial in this case did not deny the accused even the minimum time reasonably necessary to prepare for trial on charges of murder. The calendar call was held less than 20 days after defense counsel had entered his appearance and less than 30 days after defendant was taken into custody. While this compressed time might be permissible in some circumstances, no judge here has argued that such an immediate trial was tolerable in this case.
*499 I do not agree with the notion that, because the speedy trial provision is designed to prevent an undue delay by the state in prosecuting an accused, an early trial after arraignment has no effect on the speedy trial right. See e.g. State v. Fraser, 426 So.2d 46, 48-49 (Fla. 5th DCA 1982), rev. denied, 436 So.2d 98 (Fla.1983) ("if defendant is not ready for trial, while due process rights may be implicated if the scheduled trial date is one on which defendant could not reasonably be expected to be prepared, defendant's speedy trial rights under the rule have been observed"). As I have previously stated, the speedy trial right and the due process right of adequate time to prepare are different remedies for the same evil, manipulating the timing of trial to make conviction more likely. Thus I believe that the correct principle was stated in State ex rel. Wright v. Yawn, 320 So.2d 880 (Fla. 1st DCA 1975), cert. denied, 334 So.2d 609 (Fla.1976), where the court said:
"The state, through its own inaction by failing for 142 days to return either an indictment or an information against a person, cannot force a defendant to choose between two coequal rights. While the Florida Rules of Criminal Procedure have in recent years been given great emphasis as to an accused's right to speedy trial and discovery, we cannot forget that these rights are ultimately protected by our State and Federal Constitutions." [emphasis supplied.]
320 So.2d at 882.
There is simply no authority in the constitutions, the statutes, or the rules for the proposition that the right to speedy trial is an alternative to the right to due process or the right to discovery from the state. In fact as we have just seen, the correct principle is that "the state through its own inaction ... cannot force a defendant to choose between two coequal rights." So far as I am aware, no court has ever decided until now that the fundamental protections of due process, speedy trial and the right to counsel are mutually exclusive. Yet I fear that today's decision will be read to stand precisely for that proposition.
A previous decision of this court holds that the failure to hold trial is generally attribut able to a defendant who requests a continuance. State v. Frazee, 617 So.2d 350 (Fla. 4th DCA 1993) ("This rule has been construed to mean that any defense request to postpone a case is a motion for a continuance waiving speedy trial rights regardless of its characterization."). In finding that the defendant in this case waived his speedy trial right when he objected to being forced to trial less than a month after his arrest, the majority restates the Frazee holding in the following way:
"As a general rule, a defense request for continuance, absent state misconduct, inexcusable delay in providing discovery, or other violation of defense discovery rights, waives the 175 day `speedy trial' time and the defendant's right to discharge pursuant to criminal procedure rule 3.191(a)."
Op. at 491. As I indicated earlier, the term attributable must be narrowly construed in favor of the accused, not broadly read in favor of the construction favoring the state.
While I agree that state misconduct, or delay in providing discovery, or other violations of discovery rights are important instances where the failure to hold a trial should not be attributed to the defendant, I do not believe that they are the only such instances. The drafters of the rule wrote no list of the circumstances in which the failure to hold trial would be deemed attributable to the accused. The failure to specify categorically when a defendant is charged with the failure to hold trial must mean that the drafters intended no fixed rule and that it should be left, instead, to be determined by the circumstances of each case.
When a trial date is set so quickly after the arrest and first appearance of counsel, under today's decision defendant is left only with the "right" to choose between due process and discovery, on the one hand, and a speedy trial, on the other; but he cannot have both. Because there is absolutely nothing in the constitution or rules that even hints at such a mutual exclusion of rights, so that the choice of the one negates the other, *500 I believe that the trial court erred in denying the motion for speedy trial discharge.
I urge certifying the following question to the supreme court:
Is the failure to hold trial properly "attributable" to a defendant where his request for a continuance was occasioned by setting trial on murder charges within 22 days after arrest and even less than that from defense counsel's initial appearance?
GUNTHER, C.J., concurs.
NOTES
[1] The record does not reflect when the discovery demand was served on the state.
[2] The defense did receive a part of the discovery, a witness list and a probable cause affidavit, 10 days after filing the demand, but the balance of the discovery material was not received by defense counsel until May 20th, the same day the state attorney's office received it.
[3] The charges in this case are second degree murder, attempted first degree murder, and shooting into a building.
[4] See U.S. Const., amend. V ("nor shall any person ... be deprived of life, liberty, or property, without due process of law"), and amend. XIV, § 1 ("nor shall any State deprive any person of life, liberty, or property, without due process of law ..."); and Art. I, § 9, Fla. Const. ("No person shall be deprived of life, liberty or property without due process of law").
[5] See U.S. Const., amend VI ("In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial"); and Art. I, § 16(a), Fla. Const. ("In all criminal prosecutions, the accused shall ... have the right to have ... a speedy and public trial").
[6] See Fla.R.Crim.P. 3.191(a) ("Speedy Trial without Demand. Except as otherwise provided by this rule ... every person charged with a crime by indictment or information shall be brought to trial within ... 175 days if the crime is a felony.") [e.o.] Under this rule, the prosecutor bears the primary responsibility of insuring that the speedy trial requirements are met. For, when it appears that a speedy trial issue is looming and the trial judge has not been made aware of the problem, in our adversary system the prosecutor has the responsibility to alert the court to the potential problem and not stand silently by even when the judge has made some ruling that seemingly benefits the prosecution.
[7] Fla.R.Crim.P. 3.191(b) ("Speedy Trial upon Demand. Except as otherwise provided by this rule and subject to the limitations imposed under subdivisions (e) and (g), every person charged with a crime by indictment or information shall have the right to demand a trial within 60 days, by filing with the court ... a pleading entitled `Demand for Speedy Trial.'"). [Emphasis omitted.]
[8] Florida Rule of Criminal Procedure 3.191 (j) provides as follows:
"If trial of the accused does not commence within the periods of time established by this rule, a pending motion for discharge shall be granted by the court unless it is shown that:
(1) a time extension has been ordered under (I) and that extension has not expired;
(2) the failure to hold trial is attributable to the accused, a codefendant in the same trial, or their counsel;
(3) the accused was unavailable for trial under subdivision (k); or
(4) the demand referred to in subdivision (g) is invalid."
[9] The court held that the 5/25/71 demand for speedy trial was legally a nullity because defendant had not been formally charged when it was made and it was therefore in bad faith.
[10] Of course, if he was already forced to ask for a continuance because of the setting of an immediate trial, one might fairly ask why he would consider asking for an even earlier trial under rule 3.191(b).
[11] There was no issue of speedy trial in Valle.
| {
"pile_set_name": "FreeLaw"
} |
Filed 5/12/15; first mod. order filed 4/30/15 and unmodified opn. attached
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PETER MONSIVAIZ, B254859
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS136555)
v.
CIVIL SERVICE COMMISSION OF THE
COUNTY OF LOS ANGELES, ORDER MODIFYING
OPINION
Defendant;
[NO CHANGE IN JUDGMENT]
COUNTY OF LOS ANGELES
DEPARTMENT OF AGRICULTURAL
COMMISSIONER/WEIGHTS AND
MEASURES,
Real Party in Interest and Respondent.
THE COURT:
It is ordered that the opinion filed herein April 28, 2015, as modified on April 30,
2015, is further modified so that item No. 6 of the April 30 order reads as follows:
6. At page 2, last paragraph, fourth sentence beginning with “The Commission
did not dispute . . .” is deleted and replaced with:
The County did not dispute that plaintiff’s widow was the proper successor
in interest, only that there was no surviving action for her to maintain on behalf
of her deceased husband.
There is no change in the judgment.
_________________________________________________________________
RUBIN, Acting P. J. FLIER, J. GRIMES, J.
2
Filed 4/30/15 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PETER MONSIVAIZ, B254859
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS136555)
v.
CIVIL SERVICE COMMISSION OF THE
COUNTY OF LOS ANGELES, ORDER MODIFYING
THE OPINION
Defendant;
[CHANGE IN JUDGMENT]
COUNTY OF LOS ANGELES
DEPARTMENT OF AGRICULTURAL
COMMISSIONER/WEIGHTS AND
MEASURES,
Real Party in Interest and Respondent.
THE COURT:
The opinion in the above-entitled matter filed on April 28, 2015, is modified as
follows:
1. In the caption, delete “and Respondent” as party designation for Civil Service
Commission of the County of Los Angeles and add it after the “Real Party in
Interest” designation for the County of Los Angeles Department of
Agricultural Commissioner/Weights and Measures.
2. Under the counsel listing for McMillion & Hirtensteiner, delete “Defendant”
and replace it with: Real Party in Interest.
3. At page 2, first full paragraph, first sentence, lines 2 and 3, delete “and
respondent.”
4. At page 2, second paragraph of the Factual and Procedural Background, delete
the first sentence beginning with “Plaintiff was employed as an agricultural
inspector aid . . .” and replace with:
Plaintiff was employed as an agricultural inspector aid by real party in interest
and respondent County of Los Angeles Department of Agricultural
Commissioner/Weights and Measures (County).
5. At page 2, last paragraph, delete the third sentence beginning with “The
Commission opposed the motion . . .” and replace with:
The County appeared as real party in interest to oppose the motion, arguing the
writ proceeding abated and did not survive the death of plaintiff and that the
proceeding had to be dismissed for lack of jurisdiction.
6. At page 3, line 1, delete “Commission” and replace it with: County
7. At page 3, first paragraph under the Discussion, second sentence, delete the
phrase “by the Commission” after the word “cited.”
8. At page 7, under the Disposition, delete the second sentence beginning with
“Defendant and respondent Civil Service Commission . . .” and replace with:
Real party in interest and respondent County of Los Angeles Department of
Agricultural Commissioner/Weights and Measures shall recover costs on
appeal.
There is a change in the judgment.
_________________________________________________________________
RUBIN, Acting P. J. FLIER, J. GRIMES, J.
2
Filed 4/28/15 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
PETER MONSIVAIZ, B254859
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS136555)
v.
LOS ANGELES COUNTY CIVIL
SERVICE COMMISSION,
Defendant and Respondent;
COUNTY OF LOS ANGELES
DEPARTMENT OF AGRICULTURAL
COMMISSIONER/WEIGHTS AND
MEASURES,
Real Party in Interest.
APPEAL from an order of the Superior Court of Los Angeles County. Luis A.
Lavin, Judge. Affirmed.
Law Office of Esteban Lizardo and Esteban Lizardo for Plaintiff and Appellant.
McMillion & Hirtensteiner, Janine McMillion and Sylvia Havens for Defendant
and Respondent.
**********
The sole question presented is whether the death of plaintiff and appellant Peter
Monsivaiz during the pendency of the underlying writ proceeding divested defendant and
respondent Civil Service Commission of the County of Los Angeles (Commission) of
jurisdiction, thereby mandating a dismissal of plaintiff’s writ proceeding. We conclude
that it did, and therefore affirm the court’s order dismissing the writ proceeding with
prejudice.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only those facts germane to the narrow issue presented, and those
facts are undisputed by the parties.
Plaintiff was employed as an agricultural inspector aid by real party in interest
County of Los Angeles Department of Agricultural Commissioner/Weights and
Measures. Plaintiff was terminated from his position on February 18, 2010. Plaintiff
appealed his discharge to the Commission.
Following a hearing that took place over a period of days, the hearing officer
issued his decision recommending that plaintiff’s discharge be upheld. On December 14,
2011, the Commission issued its final order and decision adopting the hearing officer’s
recommendation and sustaining real party in interest’s discharge of plaintiff.
On March 13, 2012, plaintiff filed a petition for writ of mandate pursuant to Code
of Civil Procedure sections 1094.5 and 1094.6 contesting the Commission’s final order
and decision. Plaintiff’s writ petition sought an order from the superior court directing
the Commission to set aside its decision, to reinstate plaintiff to his former position as an
agricultural inspector aid, and to award plaintiff backpay.
On January 16, 2013, plaintiff died while the writ proceeding was still pending.
Plaintiff’s widow, Corina Monsivaiz, filed a motion pursuant to Code of Civil Procedure
section 377.31 for an order deeming her plaintiff’s legal successor in interest and
allowing her to maintain the writ proceeding through to completion. The Commission
opposed the motion, arguing the writ proceeding abated and did not survive the death of
plaintiff and that the proceeding had to be dismissed for lack of jurisdiction. The
Commission did not dispute that plaintiff’s widow was the proper successor in interest,
2
only that there was no surviving action for her to maintain on behalf of her deceased
husband.
On November 26, 2013, the court denied plaintiff’s widow’s motion on the
grounds the Commission, in light of plaintiff’s death, lacked jurisdiction to enforce any
order the superior court could issue in the writ proceeding. The court found there was no
action with which plaintiff’s widow could proceed as successor in interest to plaintiff.
The court therefore set an order to show cause regarding dismissal. Plaintiff’s widow
submitted written opposition arguing the same contentions raised in this appeal, in
essence urging that the Commission retains jurisdiction to resolve other issues related to
plaintiff’s termination and therefore the writ proceeding should continue.
On December 31, 2013, the court issued its written order dismissing plaintiff’s
writ proceeding with prejudice on the grounds plaintiff was deceased and “the court
lack[ed] any jurisdiction to continue.”
This appeal, filed on behalf of plaintiff and plaintiff’s widow as the proposed
successor in interest, followed.
DISCUSSION
The crux of this appeal concerns the jurisdiction of the Commission and its impact
on the viability of plaintiff’s writ proceeding following his death. In concluding that the
Commission was divested of jurisdiction upon plaintiff’s death, the trial court relied in
large part on two cases cited by the Commission in opposition to plaintiff’s widow’s
motion to maintain the writ proceeding as plaintiff’s successor in interest: Zuniga v. Los
Angeles County Civil Service Commission (2006) 137 Cal.App.4th 1255 (Zuniga) and
County of Los Angeles Department of Health Services v. Civil Service Commission
(2009) 180 Cal.App.4th 391 (Latham).
In Zuniga, a deputy sheriff with the Los Angeles County Sheriff’s Department was
suspended from his position after several criminal charges were filed against him.
(Zuniga, supra, 137 Cal.App.4th at p. 1257.) The deputy requested a hearing before the
Commission, but before the hearing was held, the deputy voluntarily retired from service.
(Ibid.) Thereafter, the hearing was held and the Commission sustained the deputy’s
3
suspension without pay. (Id. at p. 1258.) In a writ of mandate filed in the superior court,
the deputy challenged the Commission’s decision. The court denied the deputy’s petition
and the reviewing court affirmed the denial, concluding the Commission did not have
jurisdiction to consider a former employee’s claim for what had become, in light of the
voluntary retirement, just a claim for back wages. (Id. at pp. 1259-1260.)
Three years later in Latham, the court considered the denial of another county
employee’s writ petition. There, a nurse employed by the County of Los Angeles
Department of Health Services appealed both a suspension and her ultimate discharge to
the Commission. (Latham, supra, 180 Cal.App.4th at pp. 394-395.) While her civil
service appeal was pending, the nurse voluntarily retired. (Id. at p. 395.) Following
Zuniga, the reviewing court affirmed the denial of her writ petition, explaining that
“where an employee retires during the pendency of a civil service appeal, her future
status as an employee by definition is no longer at issue. The then pending appeal
becomes a ‘wage claim brought by a former civil servant,’ and under Zuniga the
Commission has no jurisdiction over such a wage claim because neither the charter nor
Civil Service Rules vest such jurisdiction. (Zuniga, supra, 137 Cal.App.4th at p. 1259.)
In short, the Commission has authority to address only matters involving a member of the
civil service, and a person who has retired is no longer a member of the civil service.”
(Latham, supra, at p. 401.)
In arguing that plaintiff’s claim did not abate upon his death, plaintiff’s widow
argues that Zuniga and Latham are not factually on point because neither case involved
the death of the employee. Plaintiff’s widow argues that plaintiff’s death is not
equivalent to the voluntary acts of resigning or retiring from county employment. She
further urges there are other issues to be resolved by the petition beyond backpay, such as
rectifying the workplace conditions of which plaintiff had complained and which
allegedly contributed to his discharge. We are not persuaded.
The Commission’s jurisdiction derives from the Charter of the County of Los
Angeles. “A civil service commission created by charter has only the special and limited
jurisdiction expressly authorized by the charter. [Citation.] Section 34 of the Los
4
Angeles County Charter provides that the Commission ‘shall serve as an appellate body
in accordance with the provisions of Sections 35(4) and 35(6) of this article and as
provided in the Civil Service Rules. [¶] The Commission shall propose and, after a
public hearing, adopt and amend rules to govern its own proceedings.’ [¶] Section 35(4)
of the charter requires the Commission to adopt rules (approved by the board of
supervisors) to provide for ‘Procedures for appeal of allegations of political
discrimination and of discrimination based on race, sex, color, national origin, religious
opinions or affiliations or handicap made by County employees, regardless of status, and
by applicants for employment.’ Section 35(6) of the charter requires that the rules
provide for ‘Civil Service Commission hearings on appeals of discharges and reductions
of permanent employees.’ ” (Hunter v. Los Angeles County Civil Service Commission
(2002) 102 Cal.App.4th 191, 194-195 (Hunter), italics added.)
Thus, the Commission has authority to act as an appellate body in very narrow
circumstances related to appeals by employees (or applicants for employment) of
discrimination claims, or appeals by employees regarding “discharges and reductions.”
Under the Commission’s rules (codified in the Los Angeles County Municipal Code, title
5, appendix 1), rule 2.24 defines employee as “any person holding a position in the
classified service of the county. It includes officers.” A deceased former employee does
not fit within the description of “employee” under the Commission’s rules. Other courts
that have considered the issue have, like Zuniga and Latham, construed the
Commission’s jurisdiction narrowly, even when involving current employees. (See, e.g.,
Berumen v. Los Angeles County Dept. of Health Services (2007) 152 Cal.App.4th 372,
378 [finding Commission lacked jurisdiction to consider employee’s appeal of
“constructive” demotion]; Hunter, supra, 102 Cal.App.4th at p. 192 [Commission lacked
authority to consider appeal from employee for alleged failure to promote under the
Public Safety Officers’ Procedural Bill of Rights].)
At the time his civil service appeal was filed, plaintiff was a discharged employee
entitled to bring an appeal before the Commission regarding his discharge in accordance
with section 35(6) of the Charter of the County of Los Angeles. However, plaintiff’s
5
death during the pendency of the underlying writ proceeding terminated his status as an
employee with the ability to be restored to service by act of the Commission. Plaintiff’s
widow does not cite to any provision of the Charter of the County of Los Angeles or any
of the Commission’s civil service rules that would support the jurisdiction of the
Commission to hear an appeal by the representative of a deceased former employee. Nor
has our research disclosed any such provision.
The logic of Zuniga and Latham applies with equal force here. Even more than
the voluntary act of retiring or resigning from service, the death of a former employee
prevents restoration of employment with the county. And, the Commission can only
resolve a claim for backpay in connection with the restoration of an employee to service.
(Zuniga, supra, 137 Cal.App.4th at p. 1259.) Moreover, plaintiff’s widow cites to no
authority the Commission has jurisdiction to consider generalized claims of poor work
conditions related to the work environment of a deceased former employee who cannot
be restored to service. Absent an express grant of jurisdiction, the Commission cannot
address the “other” issues raised by plaintiff’s widow. Nothing remains for resolution in
plaintiff’s writ petition within the jurisdiction of the Commission in light of plaintiff’s
death.
We are not persuaded either of the two cases cited by plaintiff’s widow compel a
different result here. In Hall-Villareal v. City of Fresno (2011) 196 Cal.App.4th 24, the
reviewing court declined to read Zuniga and Latham as creating a bright-line rule.
Rather, the court determined the public employee there, who had been discharged from
service, was entitled to maintain her appeal despite the fact she had applied for retirement
benefits. (Hall, at p. 33.) In so finding, the court noted the public employer there (the
City of Fresno) had not demonstrated the city charter or civil service rules dictated a
similar result to Zuniga and Latham. (Hall, at p. 33.)
And, in Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392, the
reviewing court distinguished Zuniga and Latham given the unique, and somewhat
tortured, factual chronology involved there. Hudson concerned the civil service appeal of
a discharged deputy sheriff who, during the pendency of her appeal, was placed on
6
“statutorily mandated” disability retirement by her employer, not by her own choice.
(Hudson, at p. 413.) The record before the Commission demonstrated the former deputy
had since been cleared for full duty by a physician, and the hearing officer had
determined the deputy’s discharge had been unjustified. Hudson concluded, given the
factual record there, that the former deputy’s disability retirement did not equate with an
“unequivocal intention” to sever her employment with the county, unlike the voluntary
retirements at issue in Zuniga and Latham, and should not result in her discharge being
immunized from review by the Commission. (Hudson, at p. 413.)
Because of plaintiff’s death, he could not be restored to service, nor could the
Commission resolve his claim for backpay. There was no act the superior court could
mandate the Commission to perform that was within its authority to undertake. The writ
petition was therefore properly dismissed.
DISPOSITION
The order of dismissal is affirmed. Defendant and respondent Civil Service
Commission of the County of Los Angeles shall recover costs on appeal.
GRIMES, J.
WE CONCUR:
RUBIN, Acting P. J.
FLIER, J.
7
| {
"pile_set_name": "FreeLaw"
} |
(Slip Opinion) Cite as: 591 U. S. ____ (2020) 1
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1107
_________________
TOMMY SHARP, INTERIM WARDEN, PETITIONER v.
PATRICK DWAYNE MURPHY
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[July 9, 2020]
PER CURIAM.
The judgment of the United States Court of Appeals for
the Tenth Circuit is affirmed for the reasons stated in
McGirt v. Oklahoma, ante, p. ___.
It is so ordered.
JUSTICE GORSUCH took no part in the consideration or
decision of this case.
JUSTICE THOMAS and JUSTICE ALITO dissent.
| {
"pile_set_name": "FreeLaw"
} |
Opinion filed September 30, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00270-CR
__________
MARTIN QUIROZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 385th District Court
Midland County, Texas
Trial Court Cause No. CR38816
MEMORANDUM OPINION
The jury convicted Martin Quiroz of the offense of assault on a public
servant and assessed punishment at confinement for four years and a $1,500 fine.
The trial court sentenced him accordingly. Because the judgment reflects the
incorrect penal code provision under which the jury convicted Appellant, we
modify the judgment to reflect the correct penal code provision and affirm as
modified.
In two issues on appeal, Appellant challenges the sufficiency of the evidence
and the admissibility of rebuttal testimony.
Appellant suffered from bipolar disorder and took medication as a result.
When his work schedule required him to work nights, Appellant took his
medication in the morning because it made him drowsy at work. But when he took
the medication in the morning, it caused him to have a lot of energy, and he did not
sleep or eat.
Elia Briseno, Appellant’s fiancée, had been staying awake to take care of
Appellant, and she was “exhausted.” She had taken Appellant to the hospital
earlier in the day, but because he was an adult and refused treatment, he was given
only Benadryl to help him sleep.
Briseno wanted Appellant to be taken to a hospital for a mental evaluation,
and she contacted law enforcement personnel. Officers from Midland Police
Department were dispatched to Appellant’s house. When Officer Bradley
Alexander arrived, he spoke to Appellant’s father in front of the residence and then
followed him inside. Appellant and his brother, Jesus Quiroz, were in the dining
area of a large room that also included the kitchen and living room. Appellant was
using a “large butcher knife” to carve a new hole in his belt. Officer Alexander
drew his weapon and gave repeated verbal commands for Appellant to “drop the
knife.” Although Appellant testified that he immediately dropped the knife,
Officer Alexander testified that Jesus took the knife from Appellant and placed it
on a nearby counter. Officer Alexander detained Jesus for officer safety. He
holstered his weapon and was putting handcuffs on Jesus when several other
family members came into the room. Officer Alexander ordered everyone into the
living room area.
2
At some point after he arrived, Officer Alexander used his radio to advise
Officer Demetrius Lee to “step it up.” Officer Lee understood this to mean that
Officer Alexander needed assistance as soon as possible. When Officer Lee
entered the residence, Officer Alexander and Jesus were in the kitchen, and
everyone else was in the living room. Appellant was sitting on the couch and was
upset that the officers were present and that they were detaining his brother.
Appellant began calling Officer Lee a “nigger” and referring to both officers as “f--
---g pigs.” When Briseno told Officer Lee that Appellant had another knife in a
sheath on his hip, Officer Lee asked Appellant to “roll over onto his stomach and
to place his hands behind his back.” Appellant complied and placed his right hand
behind his back. When Officer Lee placed a handcuff on Appellant’s right hand,
Appellant began to resist. Appellant used his free hand to push Officer Lee’s hand
away, and he put that free hand underneath his body.
When Officer Alexander saw Officer Lee wrestling with Appellant, he
rushed over, straddled Appellant’s back, reached under his left armpit, and secured
Appellant’s left wrist while Officer Lee maintained control of Appellant’s cuffed
right hand. As Officer Alexander was struggling with Appellant, he saw Appellant
move his right arm toward “a very large, fixed-blade knife in a sheath on
[Appellant’s] right hip.” Officer Alexander sprayed a short burst of pepper spray
into Appellant’s face. Instead of encouraging compliance, the pepper spray
appeared to “further enrage” Appellant.
As Officer Alexander continued to try to pull Appellant’s left wrist behind
his back, he saw Appellant open his mouth and bite Officer Alexander’s left
forearm. Appellant did not release his bite, and Officer Alexander began punching
Appellant on the side of the head to no avail. While he was biting Officer
Alexander, Appellant made eye contact with him and began shaking his head back
and forth. Officer Alexander then forced his arm underneath Appellant where he
3
“could get a shot at his chin” and punched him another five to ten times. Officer
Alexander believed that he momentarily knocked Appellant unconscious because
Appellant finally released his bite after thirty to forty-five seconds.
At trial, Appellant asserted the defense of necessity and claimed that he bit
Officer Alexander because he could not breathe. Appellant testified that he was
trying to put his left hand behind his back but could not because it was stuck under
the weight of his body. Appellant admitted, however, that his manic state affected
his memory. He could not remember the order of the events that night, nor could
he remember several statements that he made on the way to the hospital.
Appellant’s mother, father, and fiancée testified that Appellant complied with the
officer’s commands to put down the knife and sit on the couch, and they said that
the altercation began when Appellant told his brother not to worry because these
officers were not U.S. Marshals. They testified that Officer Lee pushed Appellant
facedown onto the sofa, that one of the officers put his knee on Appellant’s back,
and that Office Alexander put one arm around Appellant’s neck and hit Appellant
in the head while Appellant yelled that he was in pain and could not breathe. But
none of them saw Appellant bite Officer Alexander. None of them heard Officer
Alexander yell out in pain, nor did they hear him say, during the struggle, that
Appellant had bitten him.
In his first issue, Appellant challenges the sufficiency of the evidence. We
review the sufficiency of the evidence under the standard of review set forth in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912
(Tex. Crim. App. 2010). Under the Jackson standard, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
4
2010). As the sole judge of the credibility of the witnesses, the jury is free to
accept or reject any or all of a witness’s testimony, and we defer to the jury to
resolve conflicts in the evidence, to weigh the evidence, and to draw reasonable
inferences to reach ultimate facts. Gross v. State, 380 S.W.3d 181, 185 (Tex.
Crim. App. 2012); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).
A person commits the offense of assault on a public servant if he
intentionally, knowingly, or recklessly causes bodily injury to a person the actor
knows is a public servant while the public servant is lawfully discharging an
official duty. TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(1) (West Supp. 2014).
Knowledge that the assaulted person was a public servant is presumed if the person
was wearing a distinctive uniform or badge that indicated the person’s employment
as a public servant. Id. § 22.01(d). Necessity is a defense to prosecution for
conduct that would otherwise be criminal. Young v. State, 991 S.W.2d 835, 838
(Tex. Crim. App. 1999). To establish necessity, the accused must produce
evidence of a reasonable belief that the criminal act was immediately necessary to
avoid a greater, imminent harm. PENAL § 9.22 (West 2011); see also Mays v.
State, 318 S.W.3d 368, 385 (Tex. Crim. App. 2010). A “reasonable belief” is one
that would be held by an ordinary and prudent person under the same
circumstances. PENAL § 1.07(a)(42). “[I]mminent” means “impending, not
pending; something that is on the point of happening, not about to happen.”
Jackson v. State, 50 S.W.3d 579, 595 (Tex. App.—Fort Worth 2001, pet. ref’d).
Harm is imminent when there is an emergency situation and there is no time to
consider whether the conduct is illegal. Id.
When we assess the evidence that supports the defense of necessity, we
consider the facts that existed at the time of the criminal act and consider the
circumstances from the viewpoint of the accused. Wood v. State, 271 S.W.3d 329,
334 (Tex. App.—San Antonio 2008, pet. ref’d); see also Fitzgerald v. State, 782
5
S.W.2d 876, 885 (Tex. Crim. App. 1990). A defendant who asserts a necessity
defense has the burden to produce some evidence to support his claim. See PENAL
§ 2.03(c). Once the defense is raised, the State bears the ultimate burden of
persuasion to disprove the raised defense. See id. § 2.03(d); Zuliani v. State, 97
S.W.3d 589, 594 (Tex. Crim. App. 2003).
Appellant challenges “the lack of evidence presented by the State to
overcome his necessity defense” and argues that “[t]he State offered no evidence
that would negate the reasonableness of [Appellant’s] belief that he was in
imminent danger.” The State argues that it “met its burden of persuasion and a
rational trier of fact could reject appellant’s necessity defense beyond a reasonable
doubt.”
Contrary to Appellant’s assertion, the State has the burden of persuasion,
not production. The State’s burden does not require it to offer evidence to disprove
the claim of necessity or to disprove the evidence offered to support the defense; it
simply requires the State to prove its case beyond a reasonable doubt. See Zuliani,
97 S.W.3d at 594; Saxton, 804 S.W.2d at 913–14. When we review a sufficiency
challenge that involves a defense, we must view the evidence in the light most
favorable to the verdict to determine whether any rational jury could have found
the elements of the offense beyond a reasonable doubt and whether it could have
found against the appellant on the defensive issue beyond a reasonable doubt.
Saxton, 804 S.W.2d at 914 (citing PENAL § 2.03(d); Jackson, 443 U.S. 307; Butler
v. State, 769 S.W.2d 234 (Tex. Crim. App. 1989)).
In support of his necessity defense, Appellant testified that he could not
breathe and was scared for his life. During closing argument, the State pointed to
undisputed evidence that Appellant was yelling throughout the scuffle and argued
that “either he was being choked or he could scream” but that “it cannot be both.”
Therefore, the central issue before the jury was whether Appellant reasonably
6
believed that biting Officer Alexander was immediately necessary to avoid
imminent danger of death or asphyxiation. On appeal, the State argues that the
jury could have rejected Appellant’s claim because the evidence does not support
his assertion that he could not breathe.
Viewing the evidence in the light most favorable to the verdict, the record
shows that Appellant had refused to comply with the uniformed officers’ request
that he put his hands behind his back and that he further resisted their attempts to
physically force him to comply. When Appellant reached for a knife during the
struggle, Officer Alexander employed pepper spray. Although Appellant and other
defense witnesses testified that Officer Alexander choked Appellant and hit him in
the head, Officer Alexander said that he put his arm underneath Appellant’s
armpit, not around Appellant’s neck, and that he only hit Appellant in the head
after being bitten. Although Appellant testified that he was afraid he would die
from not being able to breathe, Officer Alexander said that Appellant continued
biting him for thirty to forty-five seconds and that Appellant made eye contact with
him during this time and shook his head back and forth while biting down on
Officer Alexander’s forearm. It was undisputed that Appellant was yelling the
entire time, and the State argued that Appellant would not have been able to yell
throughout the struggle if he could not breathe.
We must conclude from our review of the record that there is sufficient
evidence from which the jury could have determined beyond a reasonable doubt
that Appellant assaulted Officer Alexander and could have rejected Appellant’s
necessity defense. See Saxton, 804 S.W.2d at 914. The jury could have rejected
Appellant’s claim that he believed that biting Officer Alexander was immediately
necessary to prevent death or asphyxiation, or it could have determined beyond a
reasonable doubt that his belief was unreasonable. See Granger v. State, 3 S.W.3d
7
36, 39 (Tex. Crim. App. 1999) (holding reasonableness of the defendant’s belief
was an issue for the jury to decide). Appellant’s first issue is overruled.
In his second issue, Appellant challenges the admissibility of rebuttal
evidence. We review a trial court’s ruling on the admissibility of evidence for an
abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App.
2009). There is no abuse of discretion as long as the trial court’s ruling is within
the zone of reasonable disagreement. Id. We will uphold the trial court’s ruling if
it is correct under any theory of law applicable to the case. Romero v. State, 800
S.W.2d 539, 543 (Tex. Crim. App. 1990).
On rebuttal, the State may present any evidence that tends to refute a
defensive theory of the accused and the evidence introduced in support of that
theory. Laws v. State, 549 S.W.2d 738, 741 (Tex. Crim. App. 1977). Appellant
argues that it was error to admit the testimony of two rebuttal witnesses because
the witnesses “did not rebut any defensive theory he propounded.” According to
Appellant, the “thrust” of his defense was that biting Officer Alexander was
reasonable because he feared “that he was choking and could not breathe”; thus,
proper rebuttal witnesses would have “addressed the reasonableness of
[Appellant’s] belief of imminent harm or whether his actions were immediately
necessary to avoid such harm.”
A defensive theory includes defenses that would justify or excuse the
conduct constituting the offense, but an accused may also offer evidence that
negates an element of the offense. See Walters v. State, 247 S.W.3d 204, 209–10
(Tex. Crim. App. 2007). To prove that Appellant committed the offense of assault
on a public servant, the State had to establish that Officer Alexander was “lawfully
discharging an official duty” at the time of the assault. See PENAL § 22.01(b)(1).
Lawful discharge “means that the public servant is not criminally or tortiously
abusing his office as a public servant.” Hall v. State, 158 S.W.3d 470, 475 (Tex.
8
Crim. App. 2005). Examples of such abuse include acts of “official oppression” or
“the use of unlawful, unjustified force.” Id. (citing PENAL § 39.03 (“Official
Oppression”)).
Appellant and other defense witnesses testified that there was no
justification for Officer Alexander’s use of force. They testified that Appellant
complied with the officers’ orders and took no action that would permit the use of
force, and they also implied that an officer who had been trained to handle mental
health issues would not have used force.
Officer Lee testified that Appellant initially complied with his verbal
requests to lie on his stomach and put his hands behind his back but then refused to
put his left hand behind his back. Officer Alexander told the jury that he
intervened because he saw Appellant struggling with Officer Lee, that he used
pepper spray because Appellant reached for a weapon, and that he punched
Appellant in the head because Appellant bit him and would not release his bite.
The witnesses for the defense, however, claimed that Appellant complied with both
officers’ commands and that Officer Alexander straddled Appellant and began
choking and punching his head while Appellant yelled out in pain. Thus, to assess
the reasonableness of Officer Alexander’s actions, the jury had to determine
whether Appellant’s actions justified the use of force.
Appellant also testified that, during similar mental health checks, deputies
had simply asked him “a variety of questions” and that he went to the hospital
willingly on those occasions. Briseno testified that she told the officers that
Appellant was “the one that needs medical help and that he needs to get evaluated
and to be admitted to a hospital” and to “please stop, he needs help, you’re hurting
him, you’re not supposed to do this.” During the struggle, Appellant’s brother
questioned why the police had been called, and Appellant’s mother said that “this
is not what I wanted to see, this is not the reason we had called them. We just
9
wanted their help so that he could receive attention, medical attention, at the
hospital.” By testifying about previous mental health checks and how they
believed the officers should have responded, the witnesses implied that use of force
is not justified in relation to a mental health check.
Evidence that Officer Alexander used unjustified force put the lawfulness of
his actions in dispute, and the State was entitled to present evidence to refute this.
See Laws, 549 S.W.2d 741; see also Stiles v. State, 239 S.W. 963, 964 (Tex. Crim.
App. 1921) (“It is well settled in this state that, when any fact material to the issue
is introduced by one side, the other has a right to deny, contradict, or explain such
testimony, showing its falsity or breaking its force and effect in any legitimate
way.”).
Whether Officer Alexander’s actions were reasonable was an issue for the
jury to decide. See Granger, 3 S.W.3d at 39. The jury was instructed that it is a
police officer’s official duty “to make detentions and arrests and to conduct
searches. In making a detention or arrest, all reasonable means are permitted to be
used to effect it. No greater force, however, shall be resorted to than is necessary
to secure the detention or arrest of the accused.” If a qualified expert witness has
specialized knowledge that will assist the jury in its determination of a fact in
issue, the witness may offer an opinion or other testimony to aid the jury in that
determination. TEX. R. EVID. 702.
To establish that Officer Alexander used no greater force than was
necessary, the State called Officer Alexander’s supervisor at the time of the
altercation, Lieutenant Seth Herman, to testify about the various levels of force and
when each is justified. Lieutenant Herman explained that the reasonableness of an
officer’s use of force depends on the level of resistance provided by the suspect. If
a “suspect” fails to respond to verbal commands, the officer may be justified in
using physical contact. If physical contact does not coax compliance, an officer
10
can use various “pain compliance” techniques, including pressure-point control
tactics; disabling motor function; and the use of pepper spray, police batons, or
even deadly force.
The State also called Deputy Michael Naylor, a certified peace officer and
one of three certified mental health deputies in the Midland County Sheriff’s
Office, to testify about mental health checks generally. For his certification,
Deputy Naylor completed a forty-hour training program. According to Deputy
Naylor, force is sometimes necessary and warranted when responding to a call for
a mental health check, and the reasonableness of the officer’s response depends on
the specific circumstances of each case. When asked a hypothetical question based
on the facts of this case, Deputy Naylor explained that the proper response would
depend on how and whether the person is using the knife and whether he poses a
threat.
Appellant disputed the lawfulness of Officer Alexander’s conduct in using
force, and the testimony of Deputy Naylor and Lieutenant Herman was offered to
aid the jury in determining the circumstances under which force is justified.
Accordingly, we cannot conclude that the trial court abused its discretion when it
admitted the testimony of Deputy Naylor and Lieutenant Herman. Appellant’s
second issue is overruled.
The judgment in this case reflects that the jury convicted Appellant of an
offense under Section 22.02(b)(1) of the Texas Pendal Code. We modify the
judgment of the trial court to show that Appellant was guilty under Section
22.01(b)(1).
11
We modify the judgment to reflect the correct section of the Penal Code
under which the jury convicted Appellant, and as modified, we affirm the
judgment of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
September 30, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
12
| {
"pile_set_name": "FreeLaw"
} |
192 F.3d 28 (1st Cir. 1999)
WILTON K. ALMON, Plaintiff, Appellee,v.JANET RENO, ET AL., Defendants, Appellants.
No. 98-2055.
United States Court of Appeals for the First Circuit.
Heard Aug. 3, 1999.Decided Sept. 21, 1999.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTSAlison Marie Igoe, Trial Attorney, Office of Immigration Litigation, with whom Frank W. Hunger, Assistant Attorney General, U.S. Department of Justice, Civil Division, and Christopher C. Fuller, Senior Litigation Counsel, Office of Immigration Litigation, were on brief, for appellant.
Randy Olen for appellee.
Before Torruella, Chief Judge, Hill* and Cyr, Senior Circuit Judges.
TORRUELLA, Chief Judge.
1
Petitioner-appellee Wilton K. Almon is a native and citizen of Jamaica who entered the United States as an immigrant on March 29, 1980, at the age of nine. On October 24, 1996, the Immigration and Naturalization Service ("INS") issued an Order to Show Cause, charging Almon with deportability as an aggravated felon pursuant to § 241(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1251(a)(2)(A)(iii).1 The basis of the charges of deportability were three separate criminal convictions: (1) a September 16, 1996 conviction for entering a dwelling with intent to commit larceny; (2) a January 9, 1995 conviction for possession of a stolen motor vehicle; and (3) a January 9, 1995 conviction for assault with a dangerous weapon.
2
On June 25, 1997, an immigration judge found Almon deportable and ineligible for a § 212(c) waiver of deportation by operation of § 440(d) of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Almon was ordered deported to Jamaica. The BIA affirmed the deportation order on May 1, 1998.
3
Prior to April 24, 1996, Almon would have been able to apply for a discretionary waiver of deportation under § 212(c) of the INA. See 8 U.S.C. § 1182(c) (1995).2 However, effective April 24, 1996, § 440(d) of the AEDPA amended § 212(c) and rendered Almon ineligible for such a waiver. See AEDPA, Pub. L. No. 104-132, Title IV, § 440(d), 110 Stat. 1214, 1277 (1996).
4
Almon filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts, alleging that § 440(d) of the AEDPA violates his right to equal protection by irrationally denying eligibility for § 212(c) relief to aliens who, like himself, are in deportation proceedings, while preserving such relief for aliens in exclusion proceedings. The district court agreed with Almon, granting his petition, and remanding his case to the BIA for a discretionary determination of the merits of Almon's application for relief under the old INA § 212(c). This appeal followed.
DISCUSSION
5
In order to better understand Almon's equal protection claim, some background information is necessary. Deportable aliens are aliens presently residing in the United States, but who are subject to deportation on various grounds. See 8 U.S.C. § 1251(a) (1996). Excludable aliens are those who seek to enter the United States to set up residence, and whom the Attorney General has the power to exclude. See 8 U.S.C. § 1182(a) (1996). Prior to the passage of the AEDPA, § 212(c) of the INA provided that excludable aliens who were legal permanent residents of the United States for seven consecutive years and who traveled abroad voluntarily and temporarily could be re-admitted at the discretion of the Attorney General. See supra note 2. By its terms, § 212(c) discretionary relief applied specifically and exclusively to excludable aliens seeking readmission, and not to aliens in deportation proceedings. See id.
6
However, in 1956, in Matter of G.A., 7 I. & N. Dec. 274 (BIA 1956), the BIA permitted a criminal alien in deportation proceedings to apply for a § 212(c) waiver. See Matter of G.A., 7 I. & N. at 275. The petitioner in that case was convicted of a drug offense in 1947. See id. at 274. In 1952, he briefly left the United States, and upon his return was readmitted. See id. The INS did not initiate deportation proceedings against G.A. until 1956. See id. From 1947, the date of his drug conviction, to 1956, G.A. did not suffer any additional convictions. See id. at 274-75. In holding that G.A. was eligible to apply for discretionary relief under § 212(c), the BIA reasoned that if the Attorney General exercised his discretion under § 212(c) and waived the ground of excludability based upon G.A.'s 1947 criminal conviction when G.A. sought readmission to the United States in 1952, a deportation proceeding based upon the same criminal conviction could not thereafter be initiated. See Matter of G.A., 7 I. & N. at 275-76.
7
After the BIA's holding in Matter of G.A., resident criminal aliens were routinely considered eligible for discretionary relief under § 212(c) if, at some point after their convictions, they had temporarily departed the United States, been readmitted, and were in deportation proceedings. See, e.g., Matter of Tanori, 15 I. & N. Dec. 566, 568 (BIA 1976) ("Under section 212(c) of the Act, a waiver of the ground of inadmissibility may be granted in a deportation proceeding when, at the time of the alien's last entry, he was inadmissible because of the same facts which form the basis of his deportability."); Matter of Edwards, 10 I. & N. Dec. 506 (BIA 1963) (holding that the fact that a resident criminal alien's status may have changed from excludable to deportable does not preclude the exercise of discretionary relief contained in § 212(c)). At the same time, the BIA declined to extend § 212(c) relief to otherwise eligible resident criminal aliens in deportation proceedings who had not departed the country after being convicted. See, e.g., Matter of Arias-Uribe, 13 I. & N. Dec. 696 (BIA 1971). In this way, the BIA distinguished between two classes of deportable aliens: those who had traveled abroad after their convictions, and those who had never left the country.
8
This distinction did not go unnoticed. In 1976, in Francis v. INS, 532 F.2d 268 (2d Cir. 1976), the Second Circuit held that the BIA's distinction between these two classes of deportable aliens violated equal protection. See 532 F.2d at 273. Like G.A., the petitioner in Francis was in deportation proceedings but, unlike G.A., had never left the United States at any time after his conviction. See id. at 269. For this reason, the BIA deemed Francis ineligible for § 212(c) relief and ordered him deported. In granting Francis's request for a declaration of his eligibility for § 212(c) relief, the Second Circuit explained that the government had failed to suggest any reason why a deportable alien's failure to travel abroad after a conviction should be a crucial factor in determining his eligibility for a § 212(c) waiver. See id. at 273. Therefore, the Francis court concluded that distinguishing between different categories of deportable aliens based on whether they had departed and returned to the United States was "wholly unrelated to any legitimate government interest." Id. The remedy for this constitutional violation was a remand to the BIA for a determination of the merits of Francis' application for a § 212(c) waiver.
9
Prior to the passage of the AEDPA, Almon, like the petitioner in Francis, would have been eligible for § 212(c) relief. See Matter of Silva, 16 I. & N. Dec. 26 (BIA 1976) (holding that, after Francis, § 212(c) relief may be granted to permanent resident aliens in deportation proceedings). However, effective April 24, 1996, § 440(d) of the AEDPA amended the last sentence of § 212(c) to read: "[t]his section shall not apply to an alien who is deportable by reason of having committed [various enumerated criminal offenses]." AEDPA § 440(d), 110 Stat. 1214, 1277 (emphasis added). Although immigration judges initially applied this exclusion from § 212(c) eligibility to both excludable and deportable criminal aliens, the BIA in In re Fuentes-Campos, Int. Dec. 3318 (BIA 1997), interpreted § 440(d) as excluding only aliens in deportation proceedings from eligibility for § 212(c) relief. It is this interpretation of § 440(d), limiting eligibility for § 212(c) relief to criminal aliens in exclusion proceedings only, that Almon claims violates his right to equal protection.3 Specifically, Almon contends that there is no rational basis for treating two aliens convicted of exactly the same crime differently simply because one has chosen to leave the country while the other has not. We disagree.
10
Almon first argues that the Second Circuit's holding in Francis compels us to find the BIA's interpretation of § 440(d) violative of equal protection guarantees. However, Almon's equal protection claim is very different from that litigated in Francis. First, Almon challenges a different statutory classification: namely, the distinction between excludable and deportable aliens. Second, even assuming arguendo that excludable aliens and deportable aliens are similarly situated with respect to § 440(d), the government in this case has advanced a rational and legitimate reason for the statute's disparate treatment of excludable and deportable aliens. We therefore reject Almon's argument to the extent it is based on the Second Circuit's decision in Francis.
11
We turn next to the merits of Almon's equal protection claim. It is well established that a challenged classification that does not involve a suspect class or impinge upon fundamental rights is accorded a strong presumption of validity. See Heller v. Doe, 509 U.S. 312, 319 (1993). Such a classification must be upheld if it is rationally related to a legitimate governmental purpose. See id. at 320. Moreover, under this minimal standard of review, the government need not actually articulate at any time the purpose or rationale supporting its classification. See id. at 320. Instead, a classification must be upheld against an equal protection challenge "if there is any reasonably conceivable set of facts that could provide a rational basis for the classification" whether the basis has a foundation in the legislative record or not. Heller, 509 U.S. at 320 (quoting FCC v. Beach Communications Inc., 508 U.S. 307, 313 (1993)). Under this standard of review, we conclude that there exists a rational basis for the disparate treatment of excludable and deportable aliens under § 440(d) of the AEDPA.
12
We conclude that in limiting § 440(d)'s restrictions to criminal aliens in deportation proceedings, Congress advanced the legitimate legislative goal of expediting the deportation of criminal aliens currently residing within our borders. See LaGuerre v. Reno, 164 F.3d 1035, 1041 (7th Cir. 1998); Mattis v. Reno, 44 F. Supp. 2d 379, 385-86 (D. Mass. 1999). But see Wallace v. Reno, 39 F. Supp. 2d 101, 106-08 (D. Mass. 1999). The Congressional record leading up to the enactment of the AEDPA indicates that the number of deportable criminal aliens greatly exceeds the number of excludable criminal aliens. See H.R. Rep. No. 104-469(I) (1996) (1996 WL 168955 at 4-85) (reporting that in 1995 the INS deported approximately 29,255 criminal aliens and excluded approximately 2,738). Given these figures, the more lenient treatment of excludable criminal aliens under § 440(d) makes rational sense. With the passage of § 440(d), Congress created an incentive for deportable criminal aliens to leave the country without their having to be ordered to leave at the government's expense. See LaGuerre, 164 F.3d at 1041. As the Seventh Circuit explained: "To induce their voluntary departure, a little carrot is dangled before them consisting of the opportunity to seek a waiver should they seek to return to the country and by doing so trigger exclusion proceedings." LaGuerre, 164 F.3d at 1041. Section 440(d) clearly accomplishes this legitimate governmental purpose, and therefore must be upheld.
CONCLUSION
13
For the reasons stated above, we reverse the decision of the district court.
Notes:
*
Of the Eleventh Circuit, sitting by designation.
1
For aliens placed in immigration proceedings after April 1, 1997, this provision was recodified at 8 U.S.C. § 1227(a)(2)(A)(iii).
2
Prior to April 24, 1996, § 212(c) of the INA stated in relevant part:
Aliens lawfully admitted for permanent residence who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General . . . The first sentence of this subsection shall not apply to an alien who has been convicted of one or more aggravated felonies and has served for such felony or felonies a term of imprisonment of at least 5 years.
8 U.S.C. § 1182(c) (1995).
3
On April 1, 1997, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"). Among other things, this Act expressly repealed § 212(c) of the INA as amended by § 440(d) of the AEDPA, thus barring any discretionary relief for either deportable or excludable aliens. See IIRIRA § 304(b), Pub. L. 104-208, 110 Stat. 3009. However, the IIRIRA did not take effect until April 1, 1997 and therefore did not affect deportation proceedings pending before that date. See IIRIRA § 309(c)(1). In this case, the INS issued its Order to Show Cause on October 24, 1996. Therefore, the IIRIRA amendments do not apply to Almon's deportation proceedings.
| {
"pile_set_name": "FreeLaw"
} |
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3712-18T3
HOWARD KREBS,
Plaintiff-Appellant,
v.
BOARD OF TRUSTEES OF
UNION COUNTY COLLEGE,
Defendant-Respondent.
__________________________
Submitted March 25, 2020 – Decided June 23, 2020
Before Judges Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-2226-16.
Goldman Davis Krumholz & Dillon, PC, attorneys for
appellant (Evan L. Goldman and Kristen Ragon, on the
briefs).
Cleary Giacobbe Alfieri Jacobs, LLC, attorneys for
respondent (Micci J. Weiss, on the brief).
PER CURIAM
Plaintiff Howard Krebs appeals from a March 13, 2019 order granting
summary judgment to defendant Union County College (UCC) and dismissing
plaintiff's disability discrimination complaint with prejudice and an April 26,
2019 order denying reconsideration. We affirm.
We glean the following facts from the summary judgment record. In
August 2004, defendant hired plaintiff as a student service specialist, to advise
students seeking career advice, and develop programs to address student
retention goals. In December 2014, plaintiff was diagnosed with Type-I
Diabetes, which rendered him insulin dependent. Plaintiff took short-term
disability leave in August 2015. In October 2015, when he exhausted all his
sick leave and was cleared to work full-time without restrictions, he returned to
work. At work, plaintiff used an insulin pump to monitor his glucose levels and
deliver insulin.
After his return to work, plaintiff's attendance became inconsistent.
Within a few weeks, Robert Case, Associate Director of Advising, Career, and
Transfer Department, gave plaintiff a verbal warning and placed him on a two-
week review to monitor his attendance. In December 2015, Heather Keith,
Director of the Advising, Career, and Transfer Department, sent plaintiff a First
Written Warning for "excessive absences." The warning noted: "Since our
A-3712-18T3
2
[verbal warning] on 11/9/15, you have . . . been absent from work on 11/17 [and]
12/3 sick, and 12/2 half day emergency vacation. Furthermore, as reported by
the floor manager, you disappear from the floor for extended periods of time
throughout the day." Keith advised plaintiff that failure to improve would result
in further disciplinary action up to and including discharge. On that same day,
Donnell K. Clement, manager of the UCC Elizabeth Campus, suggested plaintiff
separate his lunch break into two separate parts–two thirty-minute breaks–so
plaintiff could better manage his medical condition.
On March 3, 2016, Keith sent plaintiff a First Written Warning for
Tardiness, asserting that from December 15, 2015 through February 17, 2016,
plaintiff was late to work on thirteen days. On March 11, 2016, Case sent
plaintiff a Written Warning for "Poor Performance and Insubordination"
because plaintiff's management of his caseload continued to be at an
unacceptable level and his work was not submitted in a timely manner.
Approximately two weeks later, on March 24, 2016, Case sent plaintiff a
Final Written Warning with a three-day suspension because plaintiff: was absent
for three days, late on four days, and left early on three days in March 2016; his
performance continued to decline; and he did not respond to the associate
director's multiple requests for responses.
A-3712-18T3
3
On April 4, 2016, plaintiff, through counsel, formally demanded that the
parties initiate the "'interactive process'" and requested a meeting to address the
issue of reasonably accommodating plaintiff's disability status. The interactive
process had begun in a meeting on December 4, 2015 where plaintiff was
informed that if he needed an accommodation, he should consult a medical
professional and convey such information to defendant.
On April 14, 2016, the parties attended an interactive process meeting. As
a result of the meeting, Human Resources acknowledged, by letter dated April
18, 2016, defendant was
able to continue accommodating two . . . half an hour
lunch breaks daily. In addition, we are able to
accommodate up to two . . . fifteen minute breaks
during the day per your request to take care of your
personal needs with medical certification from your
doctor stating this need.
Currently you are working three . . . days per
week from 11:30am-7:30pm and two . . . days per week
from 8:30am-4:30pm. We would be willing to
permanently change your hours to five . . . days per
week from 11:30am-7:30pm if this will help your
situation.
As of the date of this letter, you are expected to
be on time for your shift and perform the functions
outlined in your job description which was presented to
you at the meeting. If you continue to be late or absent,
insubordinate, and not perform, it will result in further
disciplinary action up to and including termination.
A-3712-18T3
4
However, on April 21, 2016, Vincent Lotano, defendant's Director of
Human Resources, reminded plaintiff "[t]o be clear, the accommodations
previously discussed and recorded during the interactive process cannot be
considered for approval without sufficient medical documentation. Submit your
medical provider report to me by April 28, 2016."
Plaintiff never provided the medical certification by the imposed deadline
and on April 29, 2016, he was terminated from his employment "for repeated
poor performance, poor attendance, excessive tardiness, and insubordination."
Plaintiff filed a complaint against defendant alleging violations under the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, on the basis
of his disability. Following discovery, defendant filed a motion for summary
judgment.
The court heard argument on defendant's motion and on March 13, 2019,
granted summary judgment and dismissed the entirety of plaintiff's complaint
with prejudice. Plaintiff moved for reconsideration which was denied.
This appeal followed.
We review rulings on a motion for summary judgment de novo. Richter
v. Oakland Bd. of Educ., 459 N.J. Super. 400, 412 (App. Div. 2019) (citation
omitted). We view the competent evidential materials presented in a light most
A-3712-18T3
5
favorable to the non-moving party, according him all favorable inferences and
affirming summary judgment only if the facts present no genuine issue for trial.
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (citation
omitted).
On appeal, plaintiff asserts the court erred granting summary judgment in
favor of defendant and dismissing his claim for disability discrimination under
the LAD. Specifically, plaintiff asserts the court: (1) did not correctly apply the
standard to determine whether plaintiff established a prima facie case of
discrimination or failure to accommodate; (2) contravened established case law
by finding plaintiff's absenteeism excessive, as such an inquiry is better left for
a jury; and (3) ignored critical evidence illustrating that defendant failed to
engage in the interactive process.
The LAD prohibits an employer from terminating a disabled employee
because of his or her disability "unless the nature and extent of the disability
reasonably precludes the performance of the particular employment." N.J.S.A.
10:5-4.1. To establish a prima facie case of disability discrimination in a
termination context, plaintiff must demonstrate by a preponderance of evidence
that: (1) he was disabled within the meaning of the LAD; (2) he was performing
his job at a level which met defendant's legitimate expectations; (3) he was
A-3712-18T3
6
discharged; and (4) the defendant sought someone to perform the same work
after he left. Grande v. St. Clare's Health Sys., 230 N.J. 1, 17-18 (2017). A
disability discrimination case alleging a failure to accommodate an employee's
disability, requires proof on only the first three elements of a prima facie
discrimination claim. Victor v. State, 401 N.J. Super. 596, 610 (App. Div.
2008); Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 91 (App.
Div. 2001).
If a plaintiff succeeds in establishing a prima facie case, "a presumption
arises that the employer unlawfully discriminated against the plaintiff." Clowes
v. Terminix Int'l, Inc., 109 N.J. 575, 596 (1988). "The analysis then proceeds
to the second step of the test, where 'the employer's burden varies depending on
whether the employer seeks to establish the reasonableness of the otherwise
discriminatory act or advances a non-discriminatory reason for the employee's
discharge.'" Grande, 230 N.J. at 18-19 (quoting Jansen v. Good Circus
Supermarkets, Inc., 110 N.J.363, 382 (1988)).
If the employer asserts, as here, it has a non-discriminatory reason for the
discharge, the burden of production shifts to the employer. Id. at 19. "The
employee may [then] respond by proving by a preponderance of the evidence
that the reason proffered by the employer 'was not the true reason for the
A-3712-18T3
7
employment decision but merely a pretext for discrimination.'" Ibid. (quoting
Jansen, 110 N.J. at 382-83). The burden of proving intentional discrimination
always remains with the employee. Ibid.
Here, the second prima facie element, whether plaintiff was performing
his job at a level which met defendant's legitimate expectations, is in dispute.
In analyzing this element, we consider whether a plaintiff was able to perform
the essential functions of the position with a reasonable accommodation. The
Grande Court explained that a plaintiff may satisfy the second element of the
prima facie case "by putting forth evidence either that [he] was actually
performing [his] job or was able, with or without reasonable accommodation, to
perform [his] job to [his] employer's legitimate expectations." Grande, 230 N.J.
at 21. "Procedurally, courts have recognized that the prima facie case is to be
evaluated solely on the basis of the evidence presented by the plaintiff,
irrespective of defendant's efforts to dispute the evidence." Zive v. Stanley
Roberts, Inc., 182 N.J. 436, 448 (2003).
Defendant argues plaintiff never established this second prong because his
absenteeism rendered him unqualified for the position and defendant had no duty
to accommodate such absenteeism. See Svarnas v. AT&T Commc'ns, 326 N.J.
Super. 59 (App. Div. 1999). In addition, defendant asserts that plaintiff was
A-3712-18T3
8
advised that he would be terminated if he showed no improvement in his poor
attendance, excessive tardiness, poor performance, and insubordination.
In Svarnas, an employee who suffered from asthma and bodily injuries
after a car accident was "absent from the office more than 600 days in a twenty-
two-year period. . . ." 326 N.J. Super. at 80. The employer terminated the
employee for excessive absenteeism. Id. at 63. The employee sued the company
under the LAD, asserting discrimination based on her asthma condition and her
bodily injuries. Ibid. The employee alleged that her absenteeism was merely a
pretext for the company's unwillingness to accommodate her part-time work
schedule and desire for a smoke-free work environment. Ibid.
The trial court granted summary judgment for the employer finding that
no accommodation was required because plaintiff was not otherwise qualified
to do her work. Id. at 72. Because plaintiff had been out of work unpredictably
and for a variety of medical reasons, plaintiff "could not be so qualified because
she was not there." Id. at 72. We affirmed noting that "plaintiff had been warned
about her sporadic, unpredictable, chronic, and excessive absenteeism for at
least eight years prior to termination." Id. at 77. We stated "reasonably regular,
reliable, and predictable attendance is a necessary element of most jobs," and
A-3712-18T3
9
that "an employee who does not come to work cannot perform any of her job
functions, essential or otherwise." Id. at 78.
By way of contrast, in Grande, the Court found the modest burden to
withstand summary judgment as to the second prong was met. 230 N.J. at 26.
In that case, the plaintiff suffered a series of work-related injuries and spent four
months recovering from surgery before returning to work full duty. Id. at 8.
Although plaintiff's doctor cleared her to resume full-duty work, her employer
stated she would have to undergo physical testing before returning to full duty.
Id. at 9. The results of the testing revealed the plaintiff would have permanent
lifting restrictions and her employer terminated her stating that the limitation
would prevent her from doing her job. Id. at 11-12.
Grande's employer argued, among other things, that she failed to satisfy
the second element of the prima facie case because her lengthy absences were
proof that she was not performing her job. Id. at 24-25. The Court
acknowledged that the plaintiff worked for defendant for ten years and was
never warned that her job was at risk, however, the court also noted that the
plaintiff "was absent for over twelve months due to her injuries, worked about
two months on light duty assignment, and was on light duty, concededly at the
hospital's request, at the time she was fired." Ibid. Nevertheless, the Court
A-3712-18T3
10
found that the modest burden to withstand summary judgment as to the second
prong had been met and stated an issue of fact existed as to whether plaintiff's
"periods of absence from work were sufficiently 'chronic and excessive,'" to
prevent her from illustrating that she was performing the job when she was
terminated. Id. at 26.
Here, the trial court correctly determined that plaintiff failed to establish
the second prong of his prima facie case. While neither Svarnas nor Grande
directly mirror the facts of this case, Svarnas is more instructive. In Svarnas,
we determined the employee was not qualified because she had excessive
absenteeism despite being notified that her attendance was an issue and could
lead to termination. Plaintiff here was also absent on numerous occasions and
his overall attendance was not "reasonably regular, reliable, and predictable"
despite being notified through various warnings that he could be terminated if
he showed no improvement. Notably, plaintiff does not dispute that his job
required him to be in the office as his position required consistent interaction
with students.1
1
As noted above, defendant articulated multiple reasons for terminating
plaintiff including repeated poor performance, poor attendance, excessive
tardiness, and insubordination. The trial court only relied on plaintiff's
absenteeism for the proposition that he was unqualified. It is worth noting that
A-3712-18T3
11
Moreover, plaintiff's failure to actively engage in the interactive process
is fatal to his disability discrimination claim under the LAD.
The New Jersey Administrative Code (Code) states the role of an
employer in guaranteeing that a disabled person is not disadvantaged in the
workplace. Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 421 (App.
Div. 2001). The Code requires employers "consider the possibility of reasonable
accommodation before firing, demoting, or refusing to hire or promote a person
with a disability on the grounds that his or her disability precludes job
performance." N.J.A.C. 13:13-2.5(b)(2). We adopted the standard for the
informal interactive process set forth in federal regulations in Tyan v. Vicinage
a large portion of plaintiff's attendance issues, since returning from leave,
stemmed from tardiness rather than absenteeism. We have found that a modified
work schedule, in certain circumstances, is a reasonable accommodation,
whereas, excessive absenteeism need not be accommodated even if caused by a
disability under the act. Compare Jones v. Aluminum Shapes, 339 N.J. Super.
412, 421 (App. Div. 2001) (noting that N.J.A.C. 13:13-2.5 states under certain
circumstances modified work schedules are reasonable accommodations); with
Svarnas, 326 N.J. Super. at 77 (noting that there is no way to reasonably
accommodate the unpredictable aspect of an employee's sporadic absences even
if the employee is using time allotted to her, and even if the absences are
disability related.). Nevertheless, on balance, we note plaintiff was on notice
that his attendance issues were an issue that could lead to termination, he was
accommodated, was given chances to fix this behavior, and his overall
attendance (tardiness, absenteeism, and leaving early) was unpredictable.
Additionally, plaintiff's attendance issues were further compounded by his
inability to help in facilitating the interactive process.
A-3712-18T3
12
13 of Superior Court of N.J., 351 N.J. Super. 385, 400-01 (App. Div. 2002),
where we stated
To determine what appropriate accommodation is
necessary, the employer must initiate an informal
interactive process with the employee. . . . This process
must identify the potential reasonable accommodations
that could be adopted to overcome the employee's
precise limitations resulting from the disability. . . .
Once a handicapped employee has requested assistance,
it is the employer who must make the reasonable effort
to determine the appropriate accommodation.
A plaintiff arguing that an employer failed to participate in the interactive
process bears the burden of demonstrating:
(1) the employer knew about the employee's disability;
(2) the employee requested accommodations or
assistance for [his] disability; (3) the employer did not
make a good faith effort to assist the employee in
seeking accommodations; and (4) the employee could
have reasonably accommodated but for the employer's
lack of good faith.
[Tyan, 351 N.J. Super. at 400-01.]
While it is beyond cavil that the LAD requires employers to make good
faith efforts in assisting disabled employees in seeking accommodations, id. at
401, employees must also engage in the interactive process. See Potente v. Cty.
of Hudson, 187 N.J. 103, 111 (2006) ("[A]n employee cannot refuse to cooperate
with an employer's efforts to accommodate his disability and then claim failure
A-3712-18T3
13
to accommodate."); see also Mengine v. Runyon, 114 F.3d 415, 420 (3d. Cir.
1997) (finding under the reasonable accommodation requirement of the
Rehabilitation Act of 1973 "both parties have a duty to assist in the search for
appropriate reasonable accommodation and to act in good faith.").
We reject plaintiff's argument that the interactive process failed because
of defendant. Defendant provided accommodations to plaintiff, defendant had
no duty to accommodate plaintiff's absenteeism or tardiness, and plaintiff failed
to keep them updated as to the status of his medical certification—information
which was needed to determine how the additional proposed accommodations
would have remedied plaintiff's tardiness and absenteeism.
Affirmed.
A-3712-18T3
14
| {
"pile_set_name": "FreeLaw"
} |
530 So.2d 1077 (1988)
Ernest Curtis SAVAGE, Appellant,
v.
STATE of Florida, Appellee.
No. 87-1306.
District Court of Appeal of Florida, First District.
September 13, 1988.
Ernest Curtis Savage, pro se.
*1078 Robert A. Butterworth, Atty. Gen., and Elizabeth Masters, Asst. Atty. Gen., Tallahassee, for appellee.
JOANOS, Judge.
Ernest Savage appeals the trial court's summary denial of his motion for post-conviction relief, asserting as grounds therefor that (1) his conviction was based on an involuntary plea, and (2) he received ineffective assistance of counsel. We reverse and remand for an evidentiary hearing.
On December 9, 1982, Savage plea nolo contendere to armed robbery charges filed in three separate cases. Pursuant to a plea bargain, the trial court imposed concurrent 30-year sentences, the sentences to run concurrently with a prior 10-year sentence Savage was serving on an unrelated charge.
Savage's motion alleges that his plea was involuntary in that it had been entered without a clear understanding of the nature of the plea and its consequences. The motion states Savage has been incompetent since receiving a head injury at the age of twelve. The motion further alleges that since his incarceration, Savage has been hospitalized for periods of time due to incompetency.
The trial court found the record demonstrated that Savage freely and voluntarily entered a plea of nolo contendere and attested to his complete understanding of the consequences. The trial court further found the record demonstrated that Savage was satisfied with the services provided by his counsel. Accordingly, the trial court denied relief, and attached the transcript of the plea and sentencing proceeding to the order denying relief.
There are no set criteria to determine whether a prisoner's allegation that he was incompetent at the time of the plea or the trial is sufficient to require an evidentiary hearing. For the most part, the determination will be based on an examination of the record before the trial court. Bush v. Wainwright, 505 So.2d 409 (Fla.), cert. denied, ___ U.S. ___, 108 S.Ct. 209, 98 L.Ed.2d 160 (1987); James v. State, 489 So.2d 737 (Fla.), cert. denied, 477 U.S. 909, 106 S.Ct. 3285, 91 L.Ed.2d 574 (1986); DeFriest v. State, 448 So.2d 1157 (Fla. 1st DCA 1984); State v. Williams, 447 So.2d 356 (Fla. 1st DCA 1984). Nevertheless, the court will also consider evidence subsequent to the plea or trial, when it appears the record does not satisfactorily resolve the allegations of incompetency. Blanco v. Wainwright, 507 So.2d 1377 (Fla. 1987); Campbell v. State, 488 So.2d 592 (Fla. 2d DCA 1986); Livingston v. State, 383 So.2d 947 (Fla. 2d DCA 1980).
In circumstances somewhat analogous to those present in the instant case, in Campbell v. State, supra, the court found an evidentiary hearing was required. In Campbell, the prisoner alleged his guilty plea was not entered with full understanding of the consequences, because he was under the influence of medication at the time of the plea. The trial court attached a transcript of the plea colloquy to the order denying relief. This transcript indicated that prior to accepting the plea, the trial court conducted a brief competency hearing, during which counsel asked the court to rule on the fact that Campbell was under medication. Although the trial court's questioning was thorough, Campbell only replied affirmatively to most of the questions posed. When the trial court asked Campbell if his medication hampered his understanding, Campbell at first said he did not know, then answered, "yeah," when asked if he understood. The court recognized that the trial court was in the best position to observe Campbell's demeanor and level of awareness, but concluded, nevertheless, that the record did not sufficiently overcome Campbell's allegations to permit summary denial of the motion. Therefore, the case was reversed and remanded for further proceedings.
Similarly, in Livingston v. State, the prisoner alleged that (1) he was found insane in 1961 and there had been no subsequent showing that his sanity had returned, and (2) his court-appointed counsel was ineffective in that counsel failed to request a sanity hearing after having been informed that Livingston had been declared insane and committed to the state hospital *1079 during 1961-1962. The court noted that the transcript of the plea hearing contained Livingston's statement that he had not been threatened or promised anything in exchange for his guilty plea, and that Livingston expressed satisfaction with the services of his attorney. Then the court noted
However, nothing in the plea hearing transcript, which is the only portion of the record before us, refutes appellant's insanity allegation. Appellant's mental condition was not mentioned at any point in the plea hearing. This allegation, if true, would entitle appellant to relief. One who has been adjudged insane is presumed to continue so until it is shown that his sanity has returned, (citations omitted), and an accused cannot be tried or sentenced while insane. (citations omitted).
383 So.2d 947. Thus, as in Campbell, the court reversed and remanded with directions to hold an evidentiary hearing on the insanity allegation.
We disagree with the state's suggestion that our decision should be controlled by DeFriest v. State, 448 So.2d 1157 (Fla. 1st DCA 1984). In DeFriest, this court affirmed a summary denial of a rule 3.850 motion, because the plea colloquy and the record in that case refuted DeFriest's argument that he was incompetent to plead guilty. The record in DeFriest demonstrated that both DeFriest and his attorney stated under oath that they were not aware that DeFriest had suffered any mental illness, either in the present or the past. Unlike DeFriest, the plea hearing transcript in this case contains no reference to Savage's mental competence. Moreover, the transcript reveals that Savage's participation in the plea colloquy was limited almost entirely to affirmative responses to the questions posed to him by the trial court. We conclude, as did the second district in Campbell and Livingston, that these responses are insufficient to demonstrate that Savage was competent when he entered his plea.
Accordingly, the order denying the motion for post-conviction relief is reversed, and the cause remanded with directions to hold an evidentiary hearing on Savage's incompetency allegation.
SMITH, C.J., and ZEHMER, J., concur.
| {
"pile_set_name": "FreeLaw"
} |
446 N.E.2d 332 (1983)
SIEBERT OXIDERMO, INC., Appellant,
v.
Hershell David SHIELDS, Appellee.
No. 1282S471.
Supreme Court of Indiana.
March 16, 1983.
*333 John R. Berger, Angola, David B. Keller, Paul D. Mathias, Parker, Hoover, Keller & Waterman, Fort Wayne, for appellant.
Grant Van Horne, Van Horne & Turner, Auburn, for appellee.
PETITION FOR REHEARING
GIVAN, Chief Justice.
Appellant Siebert Oxidermo (hereinafter "Oxidermo") petitions for rehearing in this case. On December 7, 1982, this Court handed down an opinion in this case dismissing the appeal initiated earlier by Oxidermo.
Oxidermo had originally appealed the case, in which the trial court granted a default judgment against Oxidermo, to the Court of Appeals. That Court issued a memorandum decision which affirmed the trial court's entry of default and grant of judgment thereon against Oxidermo. Then on rehearing the Court of Appeals reaffirmed the trial court's refusal to set aside the entry of default but reversed the trial court on the damages issue and remanded the case for rehearing or retrial on the issue of damages alone. See, Siebert Oxidermo, Inc. v. Shields, (1982) Ind. App., 430 N.E.2d 401.
Following the Court of Appeals' opinion on rehearing, both parties petitioned for transfer to this Court. We granted appellee Hershell David Shields (hereinafter "Shields") Petition to Transfer but denied that of Oxidermo. We issued an opinion, No. 1282 S 471, handed down December 7, 1982, holding Oxidermo had altogether forfeited its right to appeal for failure to comply with Ind.R.App.P. 2(A) requiring a party to file a praecipe with the trial court within thirty [30] days of the trial court's ruling on the Motion to Correct Error. We reached such result on the finding the trial court's ruling on the first of three Motions to Correct Error filed by Oxidermo was made February 14, 1980, and Oxidermo's praecipe was not filed until May 14, 1980, well beyond the thirty [30] day limit of Appellate Rule 2(A).
*334 Oxidermo in its Petition for Rehearing pointed out we made an error in reading the record in this case. A correct reading of the record shows Oxidermo filed its praecipe with the trial court on February 21, 1980, obviously well within the time limit of Appellate Rule 2(A).
Therefore, our holding that the appeal was dismissed for failure to comply with Appellate Rule 2(A) was erroneous. Oxidermo did not on this or any other basis forfeit its right to appeal in this case. We accordingly withdraw our previously issued opinion in this case and grant the Petition for Rehearing of appellant Oxidermo. For reasons we shall show, we believe the remand of the case to the trial court for rehearing and retrial on damages was an erroneous disposition. We, therefore, grant Shields' Petition to Transfer which addresses this issue. We deny appellant Oxidermo's Petition to Transfer. It addresses the decision of the Court of Appeals insofar as the trial court's refusal to set aside the entry of default and grant of judgment thereon are concerned, which we believe to be correct.
FACTS
Litigation in this case began on April 25, 1979, with the filing of a complaint in DeKalb Superior Court by Shields against Oxidermo. Plaintiff sought damages in the amount of $760,000.00. Shields alleged he suffered permanent physical disabilities as a result of a heart attack he alleged was caused by inhaling paint fumes from the paint manufactured by Oxidermo.
Service was effected on Oxidermo on April 30, 1979, by certified mail. Accordingly, May 23, 1979, was the last date on which Oxidermo could file its answers. See, Ind.R.Tr.P. 6(C), (E). When no such responsive pleading was filed, Shields moved for a default judgment. The trial court entered a default and granted the default judgment against Oxidermo on May 24, 1979.
An attorney for Oxidermo entered an appearance shortly thereafter. On June 28, 1979, Oxidermo filed a "Motion to Set Aside Default and Default Judgment." In that motion, which Oxidermo specified as filed in accordance with Indiana Rules of Trial Procedure 55(C) and 60(B), Oxidermo alleged its failure to appear in the instant case was due to "excusable neglect." The essence of this claim was that Oxidermo forwarded the "suit papers" to its insurance agent, who then failed to get them to the proper insurance carrier on time. On September 6, 1979, a hearing was held on Oxidermo's motion. On October 9, 1979, the trial court denied the motion and entered Findings of Fact and Conclusions of Law with respect to that ruling.
The record in this case from this point on, insofar as procedural events are concerned, is to say the least tortured and confusing. These events are best understood if set forth as follows:
November 15, 1979 Second "Motion to Set Aside Default and Default Judgment," filed by Oxidermo.
December 4, 1979 First "Motion to Correct Errors," responding to denial of first motion to set aside, filed by Oxidermo.
January 23, 1980 Second motion to set aside (filed November 15, 1979) denied.
February 1, 1980 Second "Motion to Correct Errors," responding to denial of second motion to set aside, filed by Oxidermo.
February 13, 1980 Third "Motion to Set Aside Default and Default Judgment," filed by Oxidermo.
February 14, 1980 First and Second motions to correct error (filed December 4, 1979, and February 1, 1980) denied.
February 21, 1980 Praecipe for record filed in trial court by Oxidermo
March 28, 1980 Third motion to set Aside (filed February 13, 1980) denied.
May 13, 1980 Third "Motion to Correct Error," responding to denial of third motion to set aside, filed by Oxidermo. Denied this date.
May 14, 1980 Record filed with Clerk of Supreme Court and Court of Appeals.
*335 One of Shields' arguments is that appellate jurisdiction in this case was never properly established and therefore the Court of Appeals erred in deciding the appeal at all. We rejected Shields' arguments in this regard in our original opinion and sua sponte (and erroneously) found appellate jurisdiction in this case was never established on another basis. Our grant of Shields' petition necessitates we again address the argument raised by Shields in this regard. The argument is premised on some recent decisions of the Court of Appeals in which that Court has reached some divergent holdings as to the proper procedure to be followed for challenging an entry of default and grant of judgment thereon.
Shields' argument focuses on Oxidermo's first Motion to Set Aside Default and Default Judgment, filed June 28, 1979, and denied October 9, 1979. It is Shields' contention this motion, allegedly brought on the authority of Ind.R.Tr.P. 60(B), must be treated as a Rule 59 Motion to Correct Error. Shields argues since it must be so treated, Oxidermo's time for perfecting an appeal from its denial began to run on the date it was denied, October 9. Therefore, Shields argues, Oxidermo had thirty [30] days from October 9 in which to file its praecipe for the record and ninety [90] days from October 9 in which to file the record with the Court of Appeals. See, Ind.R. App.P. 2(A) and 3(B). Obviously Oxidermo did not meet these requirements. The praecipe was not filed until February 21, 1980, one hundred thirty-five [135] days after October 9, and the record was not filed until May 14, 1980, two hundred seventeen [217] days after October 9, 1979. Thus, Shields concludes the Court of Appeals never had appellate jurisdiction in this case due to Oxidermo's failure to comply with Appellate Rules 2(A) and 3(B) requiring the praecipe and the record to be filed within thirty [30] days and ninety [90] days, respectively, of the ruling on the Motion to Correct Error. As stated, Shields' argument is dependent upon construing the Motion to Set Aside Default and Default Judgment, denied October 9, 1979, as a Rule 59 Motion to Correct Error.
In support of his argument the June 28 motion is to be treated as a motion to correct error, Shields cites In Re Marriage of Robbins, (1976) 171 Ind. App. 509, 358 N.E.2d 153. In that case the Third District of the Court of Appeals pointed out Rules 59 and 60 have some of the same basic inherent purposes, one of which is to call to the attention of the trial court errors in equity or in law. The Court read Ind.R. Tr.P. 59(A)(9), as encompassing all the equitable purposes in Ind.R.Tr.P. 60(B) during the sixty [60] day period after the entry of a final judgment. The Court concluded: "Therefore, a TR. 60 purpose stated in a motion, regardless of its denomination, should be treated as a TR. 59 motion if it is filed within the sixty day period after judgment." Id. at 513, 358 N.E.2d at 155.
Subsequently, in Sowers v. Sowers, (1981) Ind. App., 428 N.E.2d 245, the Third District cited In Re Marriage of Robbins, supra, and reaffirmed its holding.
However, in Pre-Finished Moulding v. Ins. Guidance Corp., (1982) Ind. App., 438 N.E.2d 16, the Third District seemingly relaxed the rule established in In Re Marriage of Robbins, supra, and reaffirmed in Sowers, supra. In Pre-Finished Moulding, supra, the plaintiff-appellant suffered a dismissal for failure to prosecute, such order being entered on August 12, 1980. The plaintiff-appellant filed a Rule 60(B) motion to reinstate on September 12, which was denied on October 3. Then on December 2 he filed a Rule 59 motion alleging error in the denial of the motion to reinstate. The trial court, apparently following the rule in the Robbins case, held the motion to reinstate was in reality the motion to correct error and the December 2 motion was therefore not timely filed, as it was filed well after the entry of the final judgment in the case, which was the August 12 order of dismissal. The Court of Appeals stated:
"[U]ntil such time as our Supreme Court establishes by rule or decision that no motion to correct errors will be permitted to be addressed to the ruling on a TR 60 motion, we believe the interests of justice *336 and fair play dictate that a party should not forfeit consideration of his appeal because his attorney understandably believed the filing of such a motion to correct errors was a necessary prerequisite to his ability to perfect an appeal. We therefore hold that although the plaintiff could have appealed directly from the court's decision denying reinstatement of the claim, it did not forfeit the right to appeal by filing a timely motion to correct errors following that ruling and then awaiting the ruling upon the motion to correct errors before filing the praecipe for an appeal. We emphasize that in so holding we do not intend to subvert the principle ... that TR 60 is not intended as a substitute for a prompt appeal. Plaintiff here filed its TR 60(B) motion within sixty [60] days of the order of dismissal and then filed its motion to correct errors in order to appeal the denial of that motion." Pre-Finished Moulding, supra, 438 N.E.2d at 20.
The Second District of the Court of Appeals has taken a less liberal view than that taken by the Third District in Pre-Finished Moulding, supra. In Mathis v. Morehouse, (1982) Ind. App., 433 N.E.2d 814, it held the filing of a Rule 60(B) motion within sixty [60] days of the grant of a default judgment must be treated as a Rule 59 Motion to Correct Error, citing the Robbins case. Therefore a later motion denominated as a Motion to Correct Error, allegedly appealing the denial of an earlier motion to set the default aside, was of no effect because it was untimely. Accordingly, the merits of the appellant's appeal were not considered by the Court of Appeals because there was no appellate jurisdiction in the case. The Second District was apparently not influenced by any consideration that moved the Third District in Pre-Finished Moulding, supra, to relax the rule of the Robbins case and consider the merits of the appeal. Judge Sullivan dissented, observing Rules 59 and 60 "constitute in many respects a morass and mixture of overlap, insufficiency, inconsistency, and incomprehensibility." Mathis, supra, 433 N.E.2d at 817.
Still another approach to the problem was reflected in the case of Dawson v. St. Vincent Hosp. and Health Care Center, (1981) Ind. App., 426 N.E.2d 1328, decided by the Fourth District of the Court of Appeals. There the Court held whether a motion filed within sixty [60] days of the entry of a default denominated as a Rule 60(B) motion was to be construed as a Rule 59 or 60 motion was to be determined by looking at the motion to see if it was a "plea for equity." Id., 426 N.E.2d 1333. If such a motion sought to invoke the discretionary equitable powers of the court, the Fourth District held, it is not to be treated as a Rule 59 motion. But if the motion functioned as a motion to correct error, by serving the purposes listed in P-M Gas Company, Inc. v. Smith, (1978) 268 Ind. 297, 375 N.E.2d 592, then it is to be so construed. Accordingly, the time limits under Ind.R. App.P. 2(A) and 3(B) for filing a praecipe and record begin to run on the day it is denied or overruled. Thus, a subsequent motion denominated as a "Motion to Correct Error" is of no effect unless it too is filed within sixty [60] days of the entry of the default.
It may be noted at this point that all these decisions of the Court of Appeals represent a departure from the rule established in an earlier decision of that Court, Yerkes v. Washington Manufacturing Company, (1975) 163 Ind. App. 692, 326 N.E.2d 629. In that case the Court held the proper way to appeal from the grant of a default judgment was to file a Rule 60(B) motion first, and then file a Rule 59 Motion to Correct Error if the prior motion was denied. As Dean Harvey succinctly observed, the Robbins case and others following it have "hopelessly obscured the already murky requirements for post judgment relief... . [T]hese cases create potential problems for the trial counsel who files what he thinks is a Trial Rule 60 motion within the sixty-day time limit controlling Trial Rule 59 motions." (Emphasis in original.) 4 Harvey & Townsend, Indiana Practice, 1982 Pocket Supp., p. 76.
Under Rule 55(C), titled "Setting aside default," we find: "A judgment by default *337 which has been entered may be set aside by the court for the grounds and in accordance with the provisions of Rule 60(B)."
Rule 60(B) states in relevant part:
"Mistake Excusable neglect Newly discovered evidence Fraud, etc. On motion and upon such terms as are just the court may relieve a party or his legal representative from an entry of default, final order, or final judgment, including a judgment by default, for the following reasons: (1) mistake, surprise, or excusable neglect; (2) any ground for a motion to correct error, including without limitation newly discovered evidence, which by due diligence could not have been discovered in time to move for a motion to correct error under Rule 59; ... .
* * * * * *
"The motion shall be filed within a reasonable time for reasons (5), (6), (7), and (8), and not more than one year after the judgment, order, or proceeding was entered or taken for reasons (1), (2), (3), or (4)."
Looking at the part of Rule 60(B) set forth above, we are led to disagree with the holding in In Re Marriage of Robbins, supra, that a motion brought under Rule 60(B) to set aside a default would be regarded as a Rule 59 Motion to Correct Error. There is clear language in the Rule specifying the motion must be brought within one year after the entry of default or grant of judgment thereon, if brought for any of the first four reasons listed. But there is no reason for a party to believe a further distinction is drawn between Rule 60(B) motions filed from one to sixty days after the final order or judgment is entered and those brought from sixty-one days to one year thereafter. We construe Rule 60(B) to provide that all such motions brought within one year after the entry of default or grant of default judgment will be treated the same. We hold that in no event should such a motion be treated as a Rule 59 motion.
We overrule Mathis, supra; Sowers, supra; Dawson, supra; and In Re Marriage of Robbins, supra. We also overrule that portion of Pre-Finished Moulding, supra, that holds an appeal may be taken directly from the ruling on a Rule 60(B) motion. Any other cases following the overruled cases cited above are also hereby overruled. We hold the proper procedure in the Indiana Rules of Trial Procedure for setting aside an entry of default or grant of default judgment thereon is to first file a Rule 60(B) motion to have the default or default judgment set aside. Upon ruling on that motion by the trial court the aggrieved party may then file a Rule 59 Motion to Correct Error alleging error in the trial court's ruling on the previously filed Rule 60(B) motion. Appeal may then be taken from the court's ruling on the Motion to Correct Error.
We point out the holding we reach today does nothing to modify the rule that a Rule 60(B) motion may not be used as a substitute for a direct appeal based upon a timely Rule 59 Motion to Correct Error. See, Snider v. Gaddis, (1981) Ind. App., 413 N.E.2d 322, and cases there cited. That rule still applies to judgments after a trial on the merits. But where a judgment has been granted after an entry of default, Rule 55(C) and 60(B), when read together, clearly allow a Rule 60(B) motion to be filed to begin the attempt to set aside the default judgment at any time within one year after that judgment has been granted, including during the first sixty [60] days thereafter.
Thus, we conclude there is no lack of appellate jurisdiction in this case due to Oxidermo's failure to file a praecipe and the record of proceedings within thirty [30] days and ninety [90] days of the denial of the first Rule 60(B) motion.
Shields argues the Court of Appeals erred in not addressing a question raised by the parties arising on the record. He contends the Court of Appeals failed to address his arguments that Oxidermo's repetitive filing of Rule 60(B) motions in this case and the filing of separate Rule 59 Motions to Correct Error in response to the denial of each was improper. Therefore, he argues, the only issues to be considered upon appeal *338 were those raised in the first Rule 60(B) motion and the Rule 59 motion associated with it. He concludes the Court of Appeals erred in remanding the case to the trial court for rehearing or retrial on damages. His reasoning is since there was no allegation of error by Oxidermo as to damages in the first Rule 60(B) motion and the Rule 59 motion related to it, the Court of Appeals could not address any damages issue at all in its opinion on rehearing. In the opinion on rehearing the Court of Appeals held:
"[T]he award entered was the result of prejudice....
* * * * * *
"It appears clear to us that the trial court did not require Shields to prove the amount of his damages, as it was required by law to do. Instead the court required Shields to establish that he had suffered damages. It then, apparently based upon the preconception that the amount of damages was controlled by the default, entered judgment for the amount of the prayer. This was error." (Emphasis in original). Siebert Oxidermo v. Shields, supra, 430 N.E.2d at 404.
Looking at the procedural record in this case, it seems Oxidermo's strategy was to keep filing Rule 60(B) motions, each time reasserting the "excusable neglect" argument plus adding new grounds as well with each motion.
Shields cites the case of Carvey v. Indiana National Bank, (1978) 176 Ind. App. 152, 374 N.E.2d 1173, in support of his argument. In that case the Court of Appeals said: "A party may not file repeated TR 60 motions until he either offers a meritorious ground for relief or exhausts himself and the trial court in an effort to do so. Id. at 159, 374 N.E.2d 1177.
Oxidermo points to other language in the Carvey case indicating error alleged in a second Rule 60(B) motion may be considered in an appeal if the grounds for that additional error were unknown and unknowable to the movant at the time he made the first Rule 60(B) motion. Oxidermo asserts that is the case with the second and third Rule 60(B) motions it made in this case.
We see nothing in Oxidermo's second and third Motions to Set Aside Default Judgment that would permit an application of the exception set forth in Carvey, supra. The additional grounds for relief alleged by Oxidermo in the second and third motions were either discoverable at the time the first Rule 60(B) motion was filed or related to an alleged substantive defense available to Oxidermo, that there was no proof Shields' injuries were caused by use of Oxidermo's defective product. Substantive defenses as to causation are no longer an issue between parties after there has been an entry of default against the defendant. See, e.g., Stewart v. Hicks, (1979) Ind. App., 395 N.E.2d 308. Thus, the question of a lack of causation between plaintiff Shields' injuries and defendant Oxidermo's conduct would not have been a proper subject for consideration even in Oxidermo's first Rule 60(B) motion.
The issue of excessiveness of damages was not raised until the second Rule 60(B) motion was filed. We see no reason why it could not have been raised in the first Rule 60(B) motion. Rule 60(B)(2) provides the motion to set aside a default judgment may be based on "any ground for a motion to correct error... ." Rule 59(A)(3) states one basis for a motion to correct error is "[e]xcessive or inadequate damages... .". Thus Oxidermo could have alleged the damages awarded were excessive in the June 28 Rule 60(B) motion. We conclude the Court of Appeals erred in addressing the issue of damages at all in its opinion in this case when the only errors saved for appeal were those raised in the first Rule 60(B) motion and the accompanying Rule 59 motion.
We must also observe that to sanction the repetitive filing of Rule 60(B) motions by a party suffering a default judgment is to encourage defaulted defendants to drag their feet and be dilatory in discovering grounds for setting aside a default judgment. Where the grounds for the Rule 60(B) motion are covered in subparagraphs (1) through (4) of Rule 60(B), the party has *339 up to one year from the date of the entry of default or grant of default judgment to make such motion. Ind.R.Tr.P. 60. We do not wish to encourage defendants to hastily file a Rule 60(B) motion as soon as they discover one ground for relief under the Rule and then take their time about discovering and raising other Rule 60(B) grounds and bombarding the court with more such motions.
We hold there was no lack of appellate jurisdiction in this case. However, we also hold the issue of excessiveness of damages was not appealable by Oxidermo due to its failure to have raised the issue in the June 28, 1979, Motion to Set Aside Default Judgment.
This brings us to consideration of the trial court's refusal to grant the first Rule 60(B) motion of Oxidermo. As we have already noted only those arguments raised in that motion were available for consideration by the trial court via the Rule 59 motion filed in response to the denial of the Rule 60(B) motion.
We find the disposition of this issue by the Court of Appeals in its unpublished memorandum decision is a sufficient and correct treatment of the question of whether or not the trial court erred in refusing to set aside the default entry and grant of judgment thereon on grounds of "excusable neglect." Accordingly, we adopt the language of the Court of Appeals in that opinion, including its statement of facts, as our own.
"Shields brought suit alleging he suffered a heart attack as a result of inhaling the paint fumes during a test which was conducted at International Harvester, Shields' place of employment, in 1977. Summons and complaint were properly served upon Siebert Oxidermo's president, Donald Hurst, on April 30, 1979. In March 1979, Siebert Oxidermo had changed insurance agents from the Petricca Company to R.L. Jones & Associates. R.L. Jones had not issued the American States insurance policy applicable to Shields' injuries as the incident occurred prior to their having taken over the Siebert Oxidermo account. However, on May 1st, at Hurst's request, the suit papers were sent to William Elders, an account executive at the R.L. Jones agency. The evidence is conflicting as to whether Elders was to contact American States on Siebert Oxidermo's behalf.
"At the hearing to set aside the default judgment Hurst testified he asked his secretary to forward the legal documents to Elders, whom he wished to handle the matter. Hurst did not communicate directly with Elders regarding Shields' claim with the exception of one occasion when he asked Elders to follow through on the request which had been sent, and Elders said he would do so. Margaret Weaver, Hurst's secretary, testified she mailed the papers to Elders. When Elders called saying he was not the agent on their policy, Mrs. Weaver stated she advised him they wanted him to handle the matter. At Elder's request, on May 10th Mrs. Weaver forwarded the policies to him, along with an agent of record letter recognizing Elders as Siebert Oxidermo's agent under the policy. An affidavit submitted by Elders was admitted at the hearing in which he stated he had not told Hurst or Mrs. Weaver that he would handle the matter, but rather advised Weaver to send the suit papers to their former agent. He thought he was being sent the policies merely in order to determine the extent of coverage. Elders did not contact American States until May 25th. American States asked Elders to send him the summons and complaint, which he did on May 31st. Default judgment had been entered on May 24, 1979, one day after the return date on the summons.
"[Oxidermo's first Rule 60(B) motion was filed on June 28, 1979.] The trial court denied Siebert Oxidermo's request, and refused to reconsider its decision. In its conclusions of law, the court found Siebert Oxidermo was bound by the acts of its agent, R.L. Jones & Associates, and that the record is devoid of any evidence of probative value as to what occurred between May 1st and June 1st at the R.L. Jones agency. As such, the court concluded Siebert Oxidermo failed to sustain its burden of proving *340 excusable neglect, surprise, or mistake pursuant to TR 60(B)(1).
"We initially note that our standard of review in the area of default judgments is a limited one. The decision whether or not to set aside a default judgment is committed to the sound discretion of the trial court. Thus, our review is limited to determining whether there has been an abuse of discretion. Henderson v. American Optical Co. (1981), Ind. App., 418 N.E.2d 549.
"Siebert Oxidermo urges the court abused its discretion in denying its motion to set aside under TR 60(B)(1) for excusable neglect, mistake or suprise. The trial court's discretion is necessarily broad in this area as any determination of excusable neglect must turn upon the unique factual background of each case. No fixed rules or standards have been established as the circumstances of no two cases are alike. Grecco v. Campbell (1979), Ind. App., 386 N.E.2d 960.
"The trial court's refusal to set the default aside was premised upon a finding that R.L. Jones and its account executive Elders could give no reason as to why the suit papers remained in their office for a month without any action having been taken. While the testimony was conflicting on this point, and the court could have based a finding of excusable neglect or mistake upon the apparent misunderstanding between Siebert Oxidermo officials and Elder as to the latter's role in handling the matter, it did not choose to do so. More significantly, under the evidence it was not compelled to do so.
"It is not our function to reweigh the evidence in arriving at our own conclusion. The evidence was such that the trial court could properly refuse to set aside the default. In Henline, Inc. v. Martin (1976), 169 Ind. App. 260, 348 N.E.2d 416, the court affirmed the trial court's refusal to set a default judgment aside where the defendant's insurance adjuster had failed because of the press of business to act promptly upon receipt of legal documents. In so holding, the court stated:
"`Considering the role of defendants' insurance company as the entity in charge of defendants' defense, it would not be unreasonable for the trial court to analogize the status of the company's claims adjuster with that of an attorney acting on defendants' behalf so as to apply the "general rule .. . that the negligence of the attorney is the negligence of the client... ." Moe v. Koe (2d Dist. 1975), Ind. App. [165 Ind. App. 98]. 330 N.E.2d 761, 765.'
348 N.E.2d at 420-21. Further, as noted by the concurring opinion in Continental Assurance Co. v. Sickels (1969), 145 Ind. App. 671, 252 N.E.2d 439, and quoted by the court in Henline:
"`[T]his case should not be construed to always relieve an insurance corporation of the acts of its authorized employees and agents in mislaying or mishandling suit papers. Insurance corporations are in the business of handling claims and must necessarily handle suit papers and other legal process in the ordinary course of their business. They certainly should not be encouraged by the result in this case to lower their standards of care and caution in the handling of such papers. The burden must always be on such corporate party to show that the facts of each particular case constitute excusable neglect.'
252 N.E.2d at 444. We cannot say the trial court erred, as a matter of law, in refusing to excuse Siebert Oxidermo from the neglect of its insurance agent."
We last consider the appealability of an issue raised by Oxidermo in the December 4 Rule 59 Motion to Correct Error but not raised in the preceding Rule 60(B) Motion to Set Aside Default Judgment of June 28. As we have indicated, on the strength of the Carvey case, the appealable issues in this case were established in the June 28 Rule 60(B) motion. We have considered the issue of the trial court's refusal to grant the Rule 60(B) motion insofar as its allegation of entitlement to relief under Rule 60(B)(1) grounds of "excusable neglect" is concerned. However, in examining the December *341 4 Rule 59 motion we find an additional allegation of entitlement to relief from the judgment on a basis not suggested in the Rule 60(B) motion filed earlier.
This allegation of entitlement to relief is actually a dual claim, both parts of which are premised on Rule 60(B)(3). That subparagraph of the Rule sets forth as a reason for setting aside a default judgment "fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party... ." Ind. R.Tr.P. 60(B)(3). Both claims for relief are factually related to the conduct of attorneys in the case: Oxidermo's first attorney of record in the case, and Shields' attorney.
The allegation regarding Oxidermo's attorney is premised on the fact this attorney was actually in the employ of American States Insurance Company, the carrier responsible for defending Oxidermo and paying judgments against Oxidermo that were based on accidents occurring at the time Shields alleged his injuries occurred.
Oxidermo theorized since the attorney's employer was actually the insurance carrier, and because the carrier would not be responsible for paying the award if the default was not set aside, due to failure of Oxidermo to notify the carrier of the existence of the suit, the attorney did not really want to get the default set aside. In the Rule 59 motion Oxidermo asserted, "The record is replete with examples of [the attorney] carefully bringing out or volunteering information and evidence that would be detrimental to the interests of Oxidermo and favorable to American States Insurance Company's contemplated denial of liability." The only specific "evidence" further alluded to is the attorney's failure to cite a case in a brief to the trial court allegedly relevant and favorable to Oxidermo's position.
First, we observe Rule 60(B)(3) speaks of authorizing the setting aside of a default judgment for misconduct of an adverse party. Oxidermo's first attorney cannot be so characterized, and thus indeed if such misconduct occurred we do not see how relief from judgment was authorized under this part of Rule 60(B).
We also subscribe to the point of view of the Court of Appeals on this issue. The Court addressed this issue in its opinion on rehearing and said:
"[W]e point out that on a daily basis defense attorneys employed by insurance carriers on behalf of policyholders are called upon to deal with matters in litigation where the interests of the policyholder and the carrier do not fully coincide. Under such circumstances the attorney's duty is, of course, to the insured whom he has been employed to represent. In response the defense bar has exhibited no inability to fully comply with both the letter and the spirit of Canon 5 of the Code of Professional Responsibility. If it were otherwise we suspect the desirability of requiring carriers to supply defense counsel would have long since disappeared as a term of the policy." Siebert Oxidermo v. Shields, supra, 430 N.E.2d at 403.
Finally, we would add we do not see in this case a record "replete with examples" of the attorney's attempts to lose the case, subtle or otherwise. To the contrary the attorney was a zealous, though ultimately unsuccessful, advocate on Oxidermo's behalf.
The second claim of entitlement to relief due to misconduct of an adverse party that is raised in the Rule 59 motion that does not appear in the Rule 60(B) motion preceding it relates to the conduct of Shields' attorney. Oxidermo claimed Shields' attorney misrepresented facts regarding the service of process on Oxidermo at the May 25 hearing on his Motion for Default.
The issue that first presents itself is whether or not Oxidermo might raise such claim for the first time in the Rule 59 motion without having raised it in the preceding Rule 60(B) motion.
Ordinarily, a claim of error may not be raised for the first time in a Motion to Correct Error. See, Bradburn v. State, (1971) 256 Ind. 453, 269 N.E.2d 539; Macauley v. Funk, (1977) 172 Ind. App. 66, 359 N.E.2d 611.
*342 The misconduct of Shields' attorney, if it occurred at all, was certainly discoverable by Oxidermo when the June 28 Rule 60(B) motion was filed. We do not believe Oxidermo should be permitted to appeal the denial of the Rule 60(B) motion on grounds that were available to it when that motion was filed but were not raised until a later time when the Rule 59 motion was filed. To do so would run counter to the Carvey case prohibition against the repetitive filing of Rule 60(B) motions. The trial court ruled properly in overruling the first Rule 59 motion insofar as it alleged entitlement to relief on Rule 60(B)(3) grounds due to alleged misconduct on the part of either attorney.
The unpublished memorandum decision of the Court of Appeals and the opinion on rehearing of that Court, published at 430 N.E.2d 401, are hereby vacated. The opinion of this Court, filed on December 7, 1982, is hereby withdrawn. Oxidermo's Petition for Rehearing is granted. The Petition to Transfer of appellee Hershell David Shields is granted; the Petition to Transfer of appellant Siebert Oxidermo is denied.
The trial court is in all things affirmed.
All Justices concur.
| {
"pile_set_name": "FreeLaw"
} |
785 So.2d 589 (2001)
FIRST UNION NATIONAL BANK OF FLORIDA, Appellant,
v.
Nancy RUIZ, Appellee.
No. 5D00-698.
District Court of Appeal of Florida, Fifth District.
April 12, 2001.
Rehearing Denied May 30, 2001.
J. Thomas Kilpatrick and Christine M. MacIver of Alston & Bird LLP, Atlanta, Meredith W. Holler of Alston & Bird LLP, Charlotte, and Christopher J. Coleman of Schillinger & Coleman, P.A., Melbourne, for Appellant.
Wayne L. Allen and Adrienne E. Trent of Wayne L. Allen & Associates, P.A., Melbourne, for Appellee.
*590 ON MOTION FOR REHEARING
COBB, J.
We grant the appellee's motion for rehearing, vacate our prior opinion in this cause filed on January 12, 2001, and substitute therefor the following opinion:
First Union National Bank of Florida (First Union) appeals a final judgment in favor of Nancy Ruiz (Ruiz), a former employee of First Union, in an age discrimination suit. After the jury found willful discrimination and awarded Ruiz the sum of $123,939.04 in damages, final judgment was entered for that amount, and for another $123,939.04 in liquidated damages, for a total award of $247,878.08, bearing interest at the rate of 10% per annum.
The facts adduced below show that Ruiz commenced employment in 1968 with Florida National Bank, which merged with First Union on January 29, 1990. She was terminated by First Union on November 5, 1991, ostensibly for failure to meet performance standards. At that time she was 44 years of age. First Union kept her on the payroll through December 31, 1991. Ruiz claimed age discrimination under the Florida Civil Rights Act (FCRA), section 760.10, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623(a)(1); 29 U.S.C. § 626(b) & (c); 29 U.S.C. §§ 217, 216(b).
On May 30, 1992, Ruiz submitted a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging she was terminated based on age discrimination. The EEOC sent a letter of determination to Ruiz finding that the evidence obtained during the investigation did not establish a violation of the statute. The letter notified Ruiz she had 90 days to file a civil rights action under the ADEA. Ruiz filed her complaint based upon FCRA on November 1, 1993. Two years after filing her initial complaint, which was based only on an FCRA claim, she amended it to include the ADEA claim.
On appeal First Union raises numerous arguments. The primary ones are based upon its affirmative defenses relating to applicable statutes of limitations.[1] First Union phrases these points as follows:
1. THE CIRCUIT COURT JUDGE ERRED IN DENYING FIRST UNION'S MOTIONS FOR SUMMARY JUDGMENT AND DIRECTED VERDICT BASED ON THE FACT THAT RUIZ'S CLAIMS ARE BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS.
A. THE CIRCUIT COURT JUDGE ERRED IN DENYING FIRST UNION'S MOTIONS BASED ON THE FACT THAT RUIZ FAILED TO FILE HER COMPLAINT WITHIN 90 DAYS OF RECEIPT OF HER RIGHT TO SUE NOTICE AND THUS, HER ADEA CLAIM IS TIME BARRED.
B. THE CIRCUIT COURT JUDGE ERRED IN DENYING FIRST UNION'S MOTIONS BASED ON THE FACT THAT RUIZ FAILED TO FILE A CHARGE WITHIN 180 DAYS OF THE ALLEGED VIOLATION AND THUS HER FCRA CLAIM IS TIME BARRED.
*591 The critical issue on appeal is that posed by the trial court's denial of First Union's motion for summary judgment based upon the latter's argument that Ruiz's ADEA claim was barred by her failure to file it within the 90 day period prescribed by 29 U.S.C., section 626(e).[2] Although conceding that Ruiz's ADEA claim could relate back to the time she filed her FCRA claim on November 1, 1993, First Union contends that there was still a 145 day lapse between that date and the date shown on the face of the EEOC letter, which was June 9, 1993. First Union argues that it is presumed that Ruiz received the letter within three days of that date, citing to Baldwin County Welcome Center v. Brown, 466 U.S. 147, 149 150, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984). It would therefore appear, argues First Union, that the statute of limitations for filing the ADEA action began to run on June 12, 1993. This would mean more than 90 days elapsed before she filed her action on November 1, 1993. Although the ADEA claim could relate back to the filing of the action, it still would be some 52 days too late. Therefore, argues First Union, it was also entitled to a summary judgment in regard to the limitations defense to the ADEA action.
We could agree with First Union except for one crucial omission: It failed to properly establish the date that EEOC actually sent the letter to Ruiz, thereby incepting the three day presumption of receipt and the running of the 90 day period. All that First Union did for purposes of the summary judgment hearing was attach the EEOC letter to its motion for summary judgment. It did not submit an affidavit of mailing from EEOC or obtain an admission of record (via deposition, interrogatory, or request) from Ruiz as to the date, or even approximate date, that she received it. Although the brief filed by Ruiz's attorney in opposition to the motion for summary judgment admitted that she did receive it, that did not establish when she received it. Moreover, we note that merely attaching an unsworn document, in this case the EEOC letter, to a motion for summary judgment does not, without more, satisfy the procedural strictures inherent in Florida Rule of Civil Procedure 1.510(e). See Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 708 (Fla. 4th DCA 1997). Ruiz is correct that First Union failed to properly submit the EEOC letter for purposes of the summary judgment hearing, and it did not establish the date of receipt by Ruiz, as was its burden as the proponent of an affirmative defense.
It may be, as suggested by First Union, that the trial judge based his denial of the summary judgment upon his misconception that the applicable period was two years, as contended by Ruiz, rather than 90 days. But even if his ruling was for the wrong reason, the trial judge was correct in denying First Union's motion for summary judgment in respect to the ADEA limitation period. See Dade County School Bd. v. Radio Station WQBA, 731 So.2d 638, 644-645, n. 8 (Fla.1999).
Since the ADEA claim was properly *592 submitted to the jury,[3] any error by the trial court in respect to the FCRA claim was harmless, and Ruiz prevails pursuant to the two-issue rule. See Colonial Stores, Inc. v. Scarbrough, 355 So.2d 1181 (Fla. 1977). We find no error in regard to the other issues raised by First Union.
AFFIRMED.
W. SHARP, J., and ORFINGER, M., Senior Judge, concur.
NOTES
[1] The issue of the limitation period, contrary to the disingenuous argument of Ruiz in her motion for rehearing, was preserved for appellate review by the trial court's denial of First Union's motion for summary judgment. See Rule 9.130(g), Fla.R.App.P.; Sunrise Gift & Souvenir, Inc. v. Marcotte, 698 So.2d 345 (Fla. 5th DCA 1997). Ruiz, the appellee, never challenged the preservation of the limitation issue in her brief or even at oral argument.
[2] The applicability of the 90 day time period in this case is clearly established by the opinion of the Eleventh Circuit in Browning v. AT & T Paradyne, 120 F.3d 222 (11th Cir.1997). The unequivocal holding in that case is that where the alleged discriminatory conduct which is the subject of an ADEA complaint occurred prior to the enactment of the Civil Rights Act of 1991, but the EEOC's termination of the administrative proceedings occurred after the enactment, the 90-day limitations period controls. Accord St. Louis v. Texas Worker's Compensation Comm'n, 65 F.3d 43 (5th Cir.1995); Garfield v. J.C. Nichols Real Estate, 57 F.3d 662 (8th Cir.1995).
[3] First Union does not argue that this evidentiary deficiency was in any way cured at trial and therefore the trial court correctly denied the bank's motion for directed verdict on the statute of limitations issue as it pertains to the ADEA claim.
| {
"pile_set_name": "FreeLaw"
} |
711 S.E.2d 339 (2011)
309 Ga. App. 749
CLARK
v.
The STATE.
No. A11A0643.
Court of Appeals of Georgia.
June 2, 2011.
*340 Scott Joseph Forster, Calhoun, for appellant.
Thomas Joseph Campbell, District Attorney, Elizabeth Marian York, Assistant District Attorney, for appellee.
ADAMS, Judge.
Timothy Clark was tried and convicted of aggravated child molestation, child molestation, and cruelty to children on charges involving three children, ages twelve, ten and four at the time. Clark does not contest the sufficiency of the evidence as presented, which included his confession and testimony from the children, investigators who interviewed them, and family members, all of which was consistent with his confession. On appeal, he asserts that five reversible errors occurred at trial.
1. Clark first contends the trial court erred by attempting to rehabilitate several jurors who responded in the affirmative to the following question:
Now, you know, as Judge Smith has told you, what the charges are . . . and we're going to talk about some delicate subject matter. You know why you're here. How many of you just can't do it? You can't be fair one way or the other because of the subject matter that we're talking about? Anybody?
One juror responded, "I don't know if I could." Clark's counsel continued, "Fair enough. That's what I'm saying, and if you're not sure, raise your hand." (Emphasis *341 supplied.) Five prospective jurors responded in the affirmative, and Clark's counsel moved to strike them for cause without asking any follow-up questions.
The court then spoke to the jurors at length about the difficulty of being fair given the subject matter; about how they were not being asked to say whether child molestation is bad or whether someone likes it; about the duty of a juror to sit in judgment of the State's evidence and to determine whether it proves a person guilty beyond a reasonable doubt; about the duty to acquit if the evidence does not meet that standard; about the duty of citizens to protect each other from being wrongly accused; and, ultimately, about how the real issue is whether the person could "sit in this box as a citizen, as a juror, and listen to the evidence in this case and to determine whether or not the State can prove these charges beyond a reasonable doubt. That is your duty." The court added that "you have to be able ... to put [your personal feelings] aside in light of the overriding duty to be fair and impartial and to listen to this evidence and to make a determination based upon the evidence presented in this courtroom." The court then asked each of the five whether they could fulfill that duty, and each replied that they could. The court therefore declined to strike them for cause.
We review the court's decision for abuse of discretion keeping in mind the broad general principle that "each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial." Park v. State, 260 Ga.App. 879, 880-881(1), 581 S.E.2d 393 (2003).
Given that the voir dire does not show that the jurors "formed an opinion on the guilt or innocence of appellant that was so fixed and definite that [they] would be unable to set the opinion aside and decide the case based upon the evidence or the court's charge upon the evidence," Clark has not shown any abuse of discretion in the court's rehabilitation or in the manner in which the voir dire was conducted. Ros v. State, 279 Ga. 604, 606(4), 619 S.E.2d 644 (2005).
2. Clark contends the court erred by closing the courtroom during the testimony of the child victims. The Sixth Amendment and the Constitution of Georgia guarantee the right to a public trial:
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The Sixth Amendment rights are applicable to the states. Kesler v. State, 249 Ga. 462, 471 fn. 5, 291 S.E.2d 497 (1982). The Constitution of Georgia also provides for a public trial for criminal defendants. Const. of Ga. 1983, Art. I, Sec. I, Par. XI(a).
Purvis v. State, 288 Ga. 865, 866, 708 S.E.2d 283 (2011). That right "`may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. [Cit.]' (Punctuation omitted.) Presley v. Georgia, [558 U.S. ___, ___, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010)]." Id. 288 Ga. at 869(1), 708 S.E.2d 283. In this State, because "there is a compelling state interest in protecting children while they are testifying concerning a sex offense," Delgado v. State, 287 Ga.App. 273, 279, 651 S.E.2d 201 (2007), when a child under age 16 testifies concerning any sex offense, the court may clear the court "of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters." OCGA § 17-8-54.
Here, before the youngest sexual abuse victim testified, the State requested that the court clear the courtroom "of nonessential personnel for [the child's] testimony." The court then announced that persons "who are not associated with this case or who are not otherwise an officer of this court will need to step out of the courtroom ..."; the court also said, "if you are not an officer of the court or a bailiff, you will need to step out...." The record states that "the spectators exited the courtroom." Clark's counsel objected on the ground that "[Clark] is entitled to an open and public trial. I object to the Court closing the courtroom"; he later renewed the same objection. The court explained its ruling: "[T]he Court finds that public policy outweighs the previous concern *342 weighed by you on the protection of the identity of the juvenile witness. ..." After the two sexual abuse victims testified, the court opened the courtroom.
Neither at trial nor on appeal, has Clark identified any specific people or category of people who he contends were wrongly excluded. Therefore, Clark has not shown that the trial court violated OCGA § 17-8-54 in any specific manner. And because "the partial closure permitted under [that] statute does not violate a defendant's Sixth Amendment right to a public trial," Delgado v. State, 287 Ga.App. at 279(2), 651 S.E.2d 201, citing Hunt v. State, 268 Ga.App. 568, 571(1), 602 S.E.2d 312 (2004), Clark has not shown that the trial court violated his constitutional rights.
3. Clark contends the court erred by admitting his in-custody statement. At a Jackson-Denno hearing, the trial court examines the totality of the circumstances to determine whether a preponderance of the evidence shows that the confession was voluntary. Bell v. State, 280 Ga. 562, 564, 629 S.E.2d 213 (2006). "Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal." Id.
(a) Clark first contends the State violated the rule that "[a]n interrogating officer cannot induce a confession by offering hope of a lighter sentence." Burdette v. State, 251 Ga.App. 30, 31(1), 553 S.E.2d 340 (2001). See also Caffo v. State, 247 Ga. 751, 757, 279 S.E.2d 678 (1981). He argues that the officer's testimony that she offered "help in the court proceedings" showed that she made improper promises of a benefit in exchange for Clark's confession.
The hearing transcript shows that Clark, who was one day shy of his 18th birthday at the time of his arrest, was read Miranda warnings twice; he then signed a waiver of those rights. When asked if he knew why he was being questioned, Clark began speaking so quickly that the officer had to stop him in order to turn on the recording equipment. On tape, the officer again reviewed Clark's rights and the waiver form.
It was Clark who first raised the topic of getting help. Right after the Miranda warnings and before the tape was turned on, he commented "that he needed help for what he had done." Clark then told about burning the oldest child and about a sexual encounter with the ten-year-old. Clark initially denied anything improper with the four-year-old, even after questioning. The officer said, "there is a problem ... [if] you think that is normal behavior[;] obviously due to the fact that is not normal behavior you obviously need some sort of help...." Later, Clark asked "Any way I can get help[?]" The officer replied,
Yeah I am sure there is, Timothy I am sure there is. Like I said you are going to need a lot of help, but there is no denying, you are going to need help. But the best thing to do right now ... have you told me the truth about everything?
(Punctuation supplied.)
Eventually, when Clark appeared to have nothing more to say, the tape was turned off; it was at that point that Clark began to sob at length. The officers let Clark sit there and sob, and eventually Clark again said that he wanted help. He then began to tell what happened with the youngest child. Again, the officer had to stop him while she turned on the recorder. Also, at one point the officer testified, "Now, he had advised me before that he wanted help and I had told him while the tape was on that the only way to get help is you have to tell the truth, you have to admit what you've done wrong...."
During the Jackson-Denno hearing, when asked "now, when we're talking about help, what kind of help are we talking about?", the officer replied:
Well, apparently any kind of help that he would be able to get in, you know, in the court system, whether it be some kind of counseling. I mean, I don't know. There was nothing in my mind. I couldn't help him, of course.... Just help for his problem basically ... he had mentioned he had urges and these are things he needed help with.
On cross-examination, when again asked about the nature of the help being discussed, *343 the officer said, "Well, it was obvious it was help in the court proceedings." And that to get that help, Clark needed to tell the truth about what he needed help with. On further cross, the officer clarified, "[m]ental health is what he meant through the court system." And she also denied that the help meant incentives or leniency in sentencing. The officer also testified that she did not threaten Clark, make promises to him, or comment about any kind of lesser sentence.
"The promise of a [hope or] benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect." White v. State, 266 Ga. 134(3), 465 S.E.2d 277 (1996). Here, the evidence presented at the Jackson-Denno hearing was certainly sufficient for the trial court to have concluded by a preponderance of the evidence that the officer did not make a promise or offer of a special benefit or a lighter sentence in exchange for his testimony, but rather only an offer for help addressing his psychological issues. Compare Askea v. State, 153 Ga.App. 849, 851(3), 267 S.E.2d 279 (1980) ("interrogating officer's remark that `it (i.e., telling the truth) would probably help him in court' holds out at least some hope for reward by special consideration if the suspect cooperates."). Furthermore, like the defendant in Leigh v. State, 223 Ga.App. 726, 728, 478 S.E.2d 905 (1996), Clark "signed a form which acknowledged that he had not been promised anything.... In light of the above, the trial court's denial of [Clark's] motion to suppress the statement was not clearly erroneous."
(b) Clark next contends the court erred by admitting the portion of the confession related to aggravated child molestation because, before the questioning began, the officer only told him that she was investigating child molestation. The Miranda waiver form refers to cruelty to children in the first degree, child molestation, and contributing to the delinquency of a minor. Clark argues that he was therefore tricked into confessing to aggravated child molestation, which carries a 25-year, mandatory minimum sentence. Clark's argument is without merit. See Bazansilva v. State, 251 Ga.App. 608, 610, 554 S.E.2d 794 (2001) (confession admissible even though officer did not inform suspect of charges against him so long as juvenile suspect had knowledge of the "substance of the charge").
(c) Clark also contends that he invoked his right to remain silent. But the record shows otherwise. "If the [person in custody] indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda v. Arizona, 384 U.S. 436, 473-474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The relevant portion of the interview went as follows:
Q: You realize that [the relationship with the youngest child] is over[?]
A: What with [the child]? Why? I didn't do anything to him.
Q: Well he don't see it that way
A: Oh God.
Q: And ain't no one else going to see it that way[,] you have anything else to add to the interview, anything else to help yourself.
A: No.[1]
Q: Well if you do[,] speak[,] if not I am going to conclude the interview.
A: Any way I can get help[?]
In this dialogue, we fail to see how Clark's statement that he did not have anything else to add to the interview constitutes an indication that he wishes to remain silent or that he was attempting to cut off questioning. At most, it was ambiguous, which is not enough. See Davis v. United States, 512 U.S. 452, 461-462(II), 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ("If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him."). See also Perez v. State, 283 Ga. 196, 199, 657 S.E.2d 846 (2008) ("`We see no reason to apply a different rule to equivocal invocations of the right to cut off questioning.' [Cit.]"). Rather, it would appear that Clark simply indicated that he had nothing else to add on the topic of the youngest child victim. The officer then indicated *344 that he might conclude the interview, and Clark asked another question which continued the interview.
4. Clark contends the trial court improperly restricted the scope of cross-examination of the investigating officer. Clark's counsel wanted to ask the officer about why she failed to tell Clark before the interrogation began about the allegation of aggravated child molestation, which has a mandatory minimum sentence. Clark's counsel explained to the court that he wanted to show that the officer intentionally omitted mention of aggravated child molestation in order to attempt to get Clark to confess to a crime that had a 25-year, mandatory minimum sentence. He claimed that it was misleading to tell Clark only that he was being investigated for the other lesser crimes, and that therefore, he did not know what rights he was waiving and his confession was not voluntary.
But counsel admitted the officer did not have a duty to go over the potential punishments prior to questioning Clark. And counsel did not show that Clark would have known that aggravated child molestation carried a mandatory minimum sentence. The court added that, accordingly, had the officer mentioned she was investigating aggravated child molestation, Clark could not show he would have chosen not to speak. The court did allow Clark to argue to the jury that the higher charge was not included on the Miranda waiver form. But the court would not allow the jury to hear about the mandatory minimum sentencing because evidence of punishment is not proper for the jury. Accordingly, the trial court disallowed this line of questioning.
We find no error. Possible punishment evidence is not admissible because it may "divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict." (Citations and punctuation omitted.) Rivers v. State, 265 Ga. 694, 697(6), 461 S.E.2d 205 (1995).
5. Finally, Clark contends the trial court erred by refusing to admit defense exhibit 3 in unredacted form. The exhibit was a report prepared by an officer who had been assigned to the case but who was subsequently killed in Iraq during military service; consequently the exhibit was admitted under the necessity exception. Upon an objection by the State, the court required that one paragraph of the report be redacted. The paragraph in question stated the following:
This family had made four allegations of child molestation all with different offenders in the past four years. The subject children have been examined several times without any evidence of sexual abuse (see attachments).
The trial court determined that this portion of the officer's report was double hearsay.
Documents are admissible under the necessity exception if two requirements are met: "the unavailability of the declarant and a circumstantial guaranty of trustworthiness." Herrera v. State, 288 Ga. 231, 235(5), 702 S.E.2d 854 (2010). "In determining whether an out-of-court statement bears sufficient indicia of trustworthiness, we look at the totality of the circumstances. [Cit.] Whether a statement is trustworthy is a matter for the trial court's discretion. [Cit.]" Id.
Here, we cannot say the trial court abused its discretion in determining the statement was not admissible. The statement was made by the deceased officer and it was based on statements made by "the family" and whoever performed the sexual abuse examinations. Thus, it was double hearsay, which, in general, is inadmissible. See Harper v. State, 152 Ga.App. 689, 690(1), 263 S.E.2d 547 (1979). Moreover, the redacted material shows that there were "attachments" that might shed further light on the trustworthiness of the statement about the examinations. But those documents were not tendered and are therefore not available to show any possible trustworthiness. And no other evidence was presented to show that these statements had a sufficient indicia of trustworthiness.
Judgment affirmed.
BARNES, P.J., and BLACKWELL, J., concur.
NOTES
[1] The transcript states that Clark responded "Hugh Ugh"; after listening to the recording of the statement, the trial judge determined that Clark said "no."
| {
"pile_set_name": "FreeLaw"
} |
402 P.2d 199 (1965)
Casimir SANUITA and Donald W. Holton, Appellants,
v.
COMMON LABORER'S AND HOD CARRIERS UNION OF AMERICA, LOCAL 341, Appellee.
No. 502.
Supreme Court of Alaska.
May 21, 1965.
*200 Casimir Sanuita and Donald W. Holton, in pro. per.
Ronald G. Benkert, of Groh & Benkert, Anchorage, for appellee.
Before NESBETT, C.J., and DIMOND and RABINOWITZ, JJ.
NESBETT, Chief Justice.
The complaint requesting injunctive relief in this case was not signed by appellee's attorney, contrary to the requirements of Civil Rule 11.[1]
Appellants' first point on appeal is that failure to sign the complaint deprived the court of jurisdiction.
The record discloses that a complaint, praying for a temporary restraining order and injunctive relief against the appellants for creating disturbances in the union hall maintained by appellee, was filed on July 18, 1962. The complaint was signed immediately after the prayer for relief by R.E. McFarland as secretary-treasurer of appellee union. Following McFarland's signature was a typewritten verification prepared for his signature. This verification was signed as required and was followed by a notarization duly executed.
Below and to the left of the notarization there was typed:
"HARTLIEB and RADER
Attorneys for Plaintiff
BY: ___________________
Gordon W. Hartlieb"
No signature had been affixed on the line provided.
Likewise filed on July 18, 1962, and apparently concurrently with the filing of the complaint, was a Notice and a Motion For Preliminary Injunction, both of which were signed by Gordon W. Hartlieb of Hartlieb and Rader, Attorneys for Plaintiff. Also filed on the same date were a number of affidavits in support of the motion, including one by R.E. McFarland.
The requirements of Alaska's Civil Rule 11 have been embodied in Rule 11 of the Federal Rules of Civil Procedure since adoption of those rules and prior to that in Federal Equity Rules 21 and 24.[2]
In requiring the signature of counsel, the overlying purpose of the rule has been to insure the good faith of counsel by holding them strictly accountable for all allegations contained in the complaint.[3] This purpose seems to be fully and plainly set out in the present wording of the rule.
For the failure of counsel to sign a pleading, the rule provides that, "it may be stricken as sham and false and the action *201 may proceed as though the pleading had not been served." [Emphasis ours.] It will be noted that the above wording leaves the application of any sanction for failure to sign a pleading to the discretion of the judge.
In Holley Coal Co. v. Globe Indemnity Co.[4] the court held that striking the pleading was within the sound discretion of the court, but since no reason other than oversight appeared for the failure of the defendant to sign its original answer, the court did not abuse its discretion in refusing to strike the first amended answer.
In the case before us the complaint recounted in some detail a series of incidents in which appellants purportedly acted to disrupt union meetings, destroy union property, destroy the effectiveness of appellee local union and commit libel and slander against officials of appellee local. Although the complaint was not signed by counsel, a Motion For Preliminary Injunction, filed on the same date as the complaint, recounting the incidents mentioned in the complaint in abstract form, was signed by counsel.
It is not contended that counsel's failure to sign the complaint was willful or anything other than an oversight. A place was prepared for such signature. Appellants did not draw the trial court's attention to the failure of counsel to sign the complaint nor did they move that the complaint be stricken for failure to comply with the rule. Since the trial court had no opportunity to pass on the matter, we shall not consider it for the first time on appeal.[5]
Appellants' next point is that, although the complaint was signed by R.E. McFarland as secretary-treasurer of Appellee Common Laborer's and Hod Carriers Union of America, Local 341, there was no allegation that McFarland had authority to so act for that appellee.
The answer is that in the absence of a contradiction by appellants of McFarland's authority to sign the complaint, his signature in his capacity as an officer of the union was a sufficient allegation of authority under the circumstances.[6] Our attention has not been invited to any evidence produced at the trial which would show that McFarland did not have authority to sign the complaint.
Appellants cite Kassly Undertaking Co. v. Flexible Co.[7] for the proposition that the suit would be dismissed for failure of a plaintiff affiant to set out the facts of his authority as an agent. The fact is that this case held the opposite of appellants' representation that the suit would "not" be dismissed on the ground advanced.
Appellants next argue that the court erred in granting injunctive relief.
As has been stated the complaint alleged numerous acts of appellants, which it was claimed caused harm to appellee union, such as: committing acts of violence within the union hall, disrupting union meetings, creating trouble and confusion during work *202 calls, filing numerous lawsuits against the local union, and attempting to physically harm an officer of the union, in addition to those acts mentioned earlier in this opinion. In addition to the verified complaint these allegations were supported by six affidavits.
Under this heading appellants argue first that since the complaint did not allege that the acts asserted were causing irreparable injury, it was error to grant injunctive relief.
In paragraph XXIV the complaint alleged: "That irreputable harm, damage and injury will follow and be done to plaintiff unless the acts and conduct of the defendants above complained of are enjoined."
Appellants argue that there is no such word as "irreputable" and that the court is not at liberty to place upon it an interpretation not known to the law. We believe that the wording of this paragraph makes it plain enough that the pleader intended to allege and would be understood by the average reader to be alleging "irreparable harm, damage and injury", and that the error in transcribing "irreparable" as "irreputable" was not sufficient to obscure the pleader's true meaning.
It is next argued that injunctive relief was improper because there was an adequate remedy at law. Argument in support of this claim is that on two prior occasions appellee had availed itself of an existing adequate remedy at law and had caused appellants to be punished for similar acts.
Appellants' argument falls of its own weight. The allegations contained in the verified complaint and affidavits were sufficient to support injunctive relief if established to the satisfaction of the court and belied the effectiveness of any previous attempts to obtain adequate relief from appellants' acts.
Appellants next contend that the judgment herein is void because service of the proposed Findings of Fact, Conclusions of Law and Judgment was not made on appellants. As a result they claim to have been illegally deprived of their right under Civil Rule 78(b) to a five day period within which to "serve a written detailed statement of objections."[8]
The fact is that appellants were not served with copies of the proposed Findings, Conclusions and Judgment and apparently did not learn of the judgment until after it had been signed.
On the other hand, appellants have not made a showing of how they have been prejudiced by the terms of the judgment as it read and how they would have moved to modify it if they had been served according to the rule.
In its main provisions the judgment enjoins appellants from being on the local union premises except during work calls; requires that while on the premises they not create any disturbance; that they be enjoined from using obscene and other offensive language on the premises and that they conduct themselves in an orderly manner and refrain from acts of physical violence toward any person on the premises.
There appears to be nothing unreasonable about the judgment on its face and appellants have not shown prejudice resulting from failure of appellee to comply with Civil Rule 78(a). In a similar fact situation in Briggs v. Kelly[9] we said:
"Non-compliance with subdivisions (a) and (b) of Rule 78 does not in itself require us to reverse the judgment below and order it to be set aside. The *203 appellant must first show that she has been prejudiced in some substantial way. * * *"[10] [Footnote omitted.]
We have declined to attempt to consider and decide the matters concerning free speech mentioned by our colleague in a dissenting opinion for the reason that those matters were not made issues on appeal by appellants' Statement of Points on Appeal as required by Supreme Court Rule 9(e),[11] nor were they set out in the Specifications of Error or covered by the Questions Presented for Review and Summary of Argument as required by Supreme Court Rule 11 (a) (5), (6) and (7). They were mentioned only casually or not at all in appellants' main argument and were not briefed by appellee.
The judgment below is affirmed.
RABINOWITZ, Justice (dissenting in part).
I dissent from the majority's refusal to decide the only issues of substance that appellants, without the benefit of counsel, have managed to raise.[1]
The majority's conception of the issues raised in this appeal has resulted in avoidance of decision upon substantial free speech issues. I am of the opinion that appellants are correct in their assertion that portions of the lower court's permanent injunction infringe upon their rights of free speech under Article I, Section 5 of the Alaska Constitution and the First and Fourteenth Amendments to the United States Constitution.[2]
The record reflects a protracted history of acrimonious relations between appellants and appellee while appellants were members of appellee union and subsequently during the period in which appellants were attempting to organize a separate rival union. Appellants' activities culminated in appellee's filing this injunction action and the lower court's granting, on April 8, 1964, of a permanent injunction against appellants.
In granting appellee a permanent injunction the lower court in part enjoined appellants, while upon appellee's premises during work call periods,[3] from:
"using loud, boisterous, obscene, lewd, inflammatory, slanderous, vulgar language. * * *
* * * * * *
"[And] from * * * heckling or interrupting any person making a work call on behalf of said organization."
These portions of the lower court's permanent injunction are repugnant to appellants' rights of free speech under Article I, Section 5 of the Alaska Constitution, and under the First and Fourteenth Amendments to the United States Constitution. See National Ass'n for the Advancement of Colored People v. Button, 371 U.S. 415, 437-38, 83 S.Ct. 328, 9 L.Ed.2d 405, 420-21 (1963); Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931); Parker v. Columbia Broadcasting *204 Sys., 320 F.2d 937, 939 (2d Cir.1963), aff'd, 331 F.2d 297 (2d Cir.1964); Crosby v. Bradstreet Co., 312 F.2d 483, 485 (2d Cir.), cert. denied, 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412 (1963). See also Rosicrucian Fellowship v. Rosicrucian Fellowship Non-Sectarian Church, 39 Cal.2d 121, 245 P.2d 481, at page 495 (1952), cert. denied, 345 U.S. 938, 73 S.Ct. 828, 97 L.Ed. 1365 (1953) where the court said:
"It is established that an injunction will not be granted where the restraint interferes with freedom of speech. See * * * Dailey v. Superior Court, 112 Cal. 94, 44 P. 458, 32 L.R.A. 273; Magill Bros. v. Building Service etc. Union, 20 Cal.2d 506, 127 P.2d 542; In re Wood, 194 Cal. 49, 227 P. 908; Orloff v. Los Angeles Turf Club, 30 Cal.2d 110, 117, 180 P.2d 321, 171 A.L.R. 913."[4]
Under the above portions of the lower court's permanent injunction, appellants now, at the peril of further judicial sanctions, must on their own determine whether their speech is "loud", "boisterous", "obscene", "lewd", "inflammatory", "slanderous", "vulgar", "heckling", "interrupting" or choose to remain silent. It is precisely such a judicially imposed prior restraint upon freedom of speech which is prohibited by both the Alaska and Federal Constitutions. The quoted portions of the permanent injunction should be stricken by this court.
Appellants additionally attack that part of the permanent injunction which purports to enjoin their use of "slanderous" language upon the somewhat related ground that equity will not enjoin the publication of a slander. There is considerable authority to the effect that an injunction is an improper remedy against the publication of a slander or libel. See Dayton v. McGranery, 92 U.S.App.D.C. 24, 201 F.2d 711, 713 (D.C. Cir.1953); American Malting Co. v. Keitel, 209 F. 351, 357 (2d Cir.1913); Birnbaum v. Wilcox-Gay Corp., 17 F.R.D. 133, 139-40 (N.D.Ill. 1953); Marlin Firearms Co. v. Shields, 171 N.Y. 384, 64 N.E. 163, 165-66, 59 L.R.A. 310 (1902). The case of Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees[5] is typical of the authorities in this area. At page 48 of its opinion in 79 N.E. 2d, the court said:
"The first general principle is that equity does not have jurisdiction to enjoin the commission of crimes and libels; and the second general principle is that the constitutional guaranty of free speech as a general rule prohibits both the courts and the legislature from putting previous restraints on publications. That there are exceptions to these general principles is recognized, but the plaintiff in bringing its suit for such relief must take upon itself the burden of showing facts which bring it within these exceptions.
"The rule long in force was that in the absence of the showing of a violation of some property right, or some breach of trust or of a contract, an injunction was not available to prevent actual or threatened publications of a defamatory character."[6]
*205 Since the record does not disclose any exceptions which would permit the enjoining of slanderous language, the lower court's prohibiting "slanderous" language was also improper in light of these authorities.[7]
Now to return to the question of the majority's construction of this court's appellate rules. There are prior decisions of this court in which it has evinced a willingness to apply the provisions of Supreme Court Rule 52. Rule 52 provides that:
"These rules are designed to facilitate business and advance justice. They may be relaxed or dispensed with by this court where a strict adherence to them will work surprise or injustice."
Perhaps the outstanding example of this court's prior willingness to dispense with strict compliance in regard to its appellate rules is the case of Lapham v. Town of Haines[8] where it is stated at page 377:
"Appellants have filed no statement of points in connection with this appeal as required by Supreme Court Rule 9 (e), nor does their specification of errors comply with Rule 11(a) (6).
"We are disposing of this appeal on what we consider to be the main issue recognized by both parties in their briefs, namely, whether the shutting off of appellants' water supply by appellee was a wrongful act."
Adopting a similar approach this court in Bailey v. Fairbanks Independent School Dist.[9] stated at page 529:
"Although the questions before this court are not clear because the appellants failed to comply with Supreme Court Rule 11(a) (5), we will decide the case upon the issues we believe to have been raised by appellant * * *."
More recently in the case of In re Mackay[10] this court stated at page one of its opinion:
"[R]espondent * * * has petitioned for a rehearing on nine separate grounds. The respondent's brief does not deal with these grounds in any detail and ignores some of them entirely. However, we shall discuss the six grounds which we deem to have sufficient merit to warrant our consideration."
There are other instances in which this court has relaxed the necessity for strict adherence to its appellate rules: Steward v. City of Anchorage, 391 P.2d 730, 732 (Alaska 1964); Clay v. Sandal, 369 P.2d 890, 893 (Alaska 1962); Dickerson v. Geiermann, 368 P.2d 217, 218 (Alaska 1962); Edwards v. Franke, 364 P.2d 60, 62 (Alaska 1961).
Also pertinent is the language of this court appearing in Orbeck v. Wheeler Construction *206 Co.[11] where at pages 782-83 it is stated that:
"This court is not inclined to cut off rights of appellate review because of some failure on the part of a litigant to comply with the rules, if to do so would work surprise or injustice or would result in countenancing plain error apparent on the face of the record."[12] [Footnote omitted.]
Although I am of the opinion that appellants have adequately raised the issues I have alluded to in this opinion (see appendix), I am also of the view that under the approach of the above authorities this court had ample precedent to conclude that these same issues were adequately presented and contained sufficient merit to warrant adjudication upon their merits.[13] The above decisions of this court are particularly appropriate where appellants are without counsel and are attempting to obtain this court's decision upon free speech issues.[14]
For the reasons stated herein, I dissent from the majority's failure to adjudicate the issues discussed in this separate opinion and would modify the permanent injunction as previously indicated. In all other respects I concur with the majority opinion.
APPENDIX
The issues which I consider to be properly before this court and which the majority has declined to decide will be treated separately with reference primarily to the parties' briefs.
I. AS TO JURISDICTION
Under their specification of errors appellants assert the following:
"The court erred in failing to dismiss the complaint in the face of the fact that:
"(a) The sole prayer of the complaint is for relief in a matter which has been pre-empted by the Federal Government through enactment of the Taft Hartley and National Labor Relations Acts;
"(b) There exists in the court no jurisdiction, by either statute or Rule, to grant the relief prayed;
* * * * * *
The court ignored the fact that it has no jurisdiction to restrain the defendants from entering the union hall * * *."
Under their summary of argument, as well as in their argument, appellants contend that:
"The COMPLAINT prays for relief which the trial court was estopped to grant, by reason of the fact that the National Labor Relations Board has pre-empted authority over the question as to who may be barred from union halls. The trial court had no authority.
* * * * * *
The court is estopped from consideration of an action which embraces the relief prayed herein, by reason of the *207 fact that in enacting the Taft Hartley, N.L.R.A. and L.M.R.D.A. acts the Federal Government pre-empted the field of decisions concerning who may, and who may not, enter a union hall, thereby leaving the State courts without jurisdiction."
Subsequently at pages 25 and 26 of their brief, appellants again reiterate their contention that the trial court had no jurisdiction by virtue of the federal enactments. Appellee answers appellants' assertion as to lack of jurisdiction in the following manner:
"Appellant also contends that our state courts have no power to enjoin activity of a disruptive nature which is taking place on union premises. It is well to note at this point that the defendants are not members of Local 341 * * *. Certainly defendants are not suggesting that their activity in using profane language, smashing private property, and threatening the physical well-being of others is federally protected under the NLRB." See Youngdahl v. Rainfair, Inc., 355 U.S. 131, 138, 78 S.Ct. 206, 2 L.Ed.2d 151 (1957).
II. AS TO THE ENJOINING OF SLANDER
In their points on appeal, appellants state:
"The court erred in failing to give recognition to the fact that at all of the times herein there was available to the plaintiffs a speedy and adequate remedy at law, and, such being the case, injunction is not a proper remedy."
Appellants, after repeating this point in their specification of errors, assert the following in their argument:
"It appears obvious that injunction is not the proper remedy in the case before us. * * *
* * * * * *
"`Equity does not have jurisdiction to act for the sole purpose of restraining utterances of libel and slander, regardless of whether the defamation is personal or relates to property rights.'"
In support of this general proposition appellants cite the following authorities:
"Oil Conservation Eng'r Co. v. Brooks Eng'r Co., 52 F.2d 783, 785, 786 (6th Cir.1931); Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees, 400 Ill. 38, 79 N.E.2d 46, 49 (1948); Marlin Firearms Co. v. Shields, 171 N.Y. 384, 64 N.E. 163, 59 L.R.A. 310 (1902); Moore v. City Dry Cleaners & Laundry, 41 So.2d 865, 873 (Fla. 1949); Voltube Corp. v. B. & C. Insulation Products, 20 N.J. Super., 250, 89 A.2d 713, 716 (1951); Esskay Art Galleries v. Gibbs, 205 Ark. 1157, 172 S.W.2d 924, 927 (1943); 28 Am.Jur. Injunctions §§ 132, 134 (1959)."
Appellants' contentions in regards to the issue of enjoining libel or slander are not answered by appellee in its brief. Counsel for appellee make the following statement:
"In aid of the court, and for the sake of clarity in this brief, counsel will attempt to set out what they believe to be the pertinent questions presented for review."
Admittedly counsel for appellee was faced with the formidable task of analyzing appellants' brief which was prepared without the assistance of counsel. On the other hand, I am of the opinion that this court is not limited to counsel's conception of what are the pertinent questions presented to this court for review.
III. AS TO ENJOINING THE COMMISSION OF CRIMES
In their points on appeal appellants state:
"The court erred in failing to give recognition to the fact that at all of the times herein there was available to the plaintiffs a speedy and adequate remedy at law, and, such being the case, injunction is not a proper remedy."
Under their specification of errors appellants assert that:
"The court lacked jurisdiction in the matter of the actions taken:
* * * * * *
*208 "2. Because injunction is an improper remedy where there exists a speedy and adequate remedy at law * * *."
Under their summary of argument and argument appellants contend as follows:
"That the acts complained were criminal offenses under both municipal and state law, and, therefore the plaintiff had available at all times a speedy and adequate remedy at law.
* * * * * *
"`Equitable jurisdiction to enjoin and restrain assaults, batterys, insults and molestation of the person is generally refused.'"
In support of this general proposition appellants cite the following authorities:
Kwass v. Kersey, 139 W. Va. 497, 81 S.E. 2d 237, 47 A.L.R.2d 695 (1954); 28 Am.Jur. Injunctions §§ 131, 157 (1959); Orloff v. Los Angeles Turf Club, 30 Cal.2d 110, 180 P.2d 321, 171 A.L.R. 913 (1947); City of New Orleans v. Liberty Shop, 157 La. 26, 101 So. 798, 799, 40 A.L.R. 1136 (1924).
Appellee in its brief answers appellants' contentions in regards to the issue of enjoining the commission of crimes, arguing in part:
"Furthermore, even if some of the defendants' acts were of a criminal nature, that would not prevent an injunction, for to prosecute each of these violations would entail a multiplicity of lawsuits."
In support of the above appellee cites Alper v. Las Vegas Motel Ass'n, 74 Nev. 135, 325 P.2d 767, 769-70 (1958); State v. Robertson, 63 N.M. 74, 313 P.2d 342, 345 (1957).
IV. AS TO THE ENJOINING OF FREE SPEECH
In their specification of errors appellants assert that:
"The court lacked jurisdiction in the matter of the actions taken:
* * * * * *
"7. Because the court acted in violation of the rights of the defendants under the DUE PROCESS and EQUAL PROTECTION OF THE LAW clauses of both State and Federal Constitutions."
In their argument appellants state the following in regards to the Labor-Management Reporting and Disclosure Act of 1959:
"It provided that there shall be freedom of speech and assembly, without restraint by the union.
* * * * * *
"It seems obvious that the granting of an injunction herein infringes the appellants' Constitutional right of free speech, and abridges their right of trial by jury."
In support of the above quoted language appellants cite Orloff v. Los Angeles Turf Club, 30 Cal.2d 110, 180 P.2d 321, 171 A.L.R. 913 (1947). Note also that immediately above the quoted language appellants cite Montgomery Ward & Co. v. United Retail, Wholesale & Department Store Employees, 400 Ill. 38, 79 N.E.2d 46, 49 (1948), which case deals extensively with the question of injunctions and infringement of free speech.
Subsequently appellants state:
"It is clear that the granting of an injunction herein infringes appellants' right of free speech and abridges their right of trial by jury."
In support of the above appellants again cite the Orloff case. (Note: Appellants also cite Salzhandler v. Caputo, 316 F.2d 445 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963), which case deals with the right of speech under the LMRDA of 1959.)
Appellee makes no reference to this issue of free speech in its brief.
Upon the basis of the foregoing I concluded that appellants had adequately presented these issues for review upon their merits.
NOTES
[1] Civ.R. 11 states in pertinent part:
"Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. * * * The signature of an attorney constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed or is signed with the intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading had not been served. For a wilful violation of this rule an attorney may be subjected to appropriate disciplinary action. Similar action may be taken if scandalous or indecent matter is inserted."
[2] 2 Moore, Federal Practice para. 11.01 [2] (2d ed. 1964).
[3] Goodwin Film & Camera Co. v. Eastman Kodak Co., 222 F. 249, 250-51 (2d Cir.1915); United States ex rel. Foster Wheeler Corp. v. American Sur. Co., 25 F. Supp. 225, 226 (E.D.N.Y. 1938).
[4] 186 F.2d 291, 295 (4th Cir.1950). See also In re Legon, 85 F. Supp. 946 (S.D.N.Y. 1949).
[5] Merl F. Thomas Sons, Inc. v. State, 396 P.2d 76, 79-80 (Alaska 1964); Schenderline v. Robertson, 394 P.2d 395, 397 (Alaska 1964); Lumbermens Mut. Cas. Co. v. Continental Cas. Co., 387 P.2d 104, 109 (Alaska 1963); Pollastrine v. Severance, 375 P.2d 528, 531 (Alaska 1962).
[6] Civ.R. 9(a) states:
"(a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge."
See Brown v. Music Inc., 359 P.2d 295, 301 (Alaska 1961).
[7] 313 Ill. App. 653, 40 N.E.2d 621 (1942).
[8] Civ.R. 78(b) states:
"(b) Objections. Within 5 days after service of any of the documents mentioned in subdivision (a), a party may serve a written detailed statement of objections to any such document and the reasons therefor. If objections are served within the time specified herein, the court may thereafter require the attorneys interested to appear before it, or it may sign the document as prepared by counsel for the successful party or as modified by the court."
[9] 376 P.2d 715 (Alaska 1962).
[10] Id. at 717.
[11] Supreme Ct.R. 9(e) states:
"Statement of Points. If the appellant does not designate for inclusion the complete record and all the proceedings and evidence in the action, he shall serve and file with his designation a concise statement of the points on which he intends to rely on the appeal. Otherwise such statement of points shall be served and filed prior to the time that the preparation of the record on appeal is to be completed. The court will consider nothing but the points so stated."
[1] Subsequently in this opinion and appendix there will be set forth the reasons why I have concluded that appellants have properly raised the following issues having sufficient merit for adjudication by this court, namely, the infringement of appellants' rights of free speech; the propriety of enjoining slander; the lower court's jurisdiction; and the propriety of enjoining the commission of crimes.
[2] Alaska Const. art. I, § 5 provides:
"Freedom of Speech. Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right."
[3] The record discloses that appellee's premises are used as a hiring hall for both its own members and nonmembers as well.
[4] Our superior court in this case was prohibited from imposing the above quoted portions of the permanent injunction by virtue of the First Amendment which is made applicable to state courts under the Fourteenth Amendment. See New York Times Co. v. Sullivan, 376 U.S. 254, 265, 84 S.Ct. 710, 11 L.Ed.2d 686, 697 (1964); Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 9 L.Ed.2d 697, 702 (1963); Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).
[5] 400 Ill. 38, 79 N.E.2d 46 (1948).
[6] See also Annot., 47 A.L.R.2d 715 (1956), where at pages 726-27 it is stated that:
"The most formidable obstacle to the grant of injunctive relief against personal defamation in this country has been the feeling of the courts that to allow such relief would infringe the constitutionally guaranteed freedoms of speech and of the press by setting up what would be, at least potentially, a system of judicial censorship. * * *
* * * * * *
"The fact that if equity interfered to enjoin threatened defamatory publications the defendant would be deprived of the right to trial by jury which would be available to him in a legal action has frequently been referred to as a ground for refusing the equitable relief."
[7] Appellants also assert that the lower court lacked jurisdiction to enjoin them contending that its jurisdiction has been pre-empted by virtue of the provisions of the Labor-Management Reporting and Disclosure Act of 1959 and the Labor Management Relations Act of 1947. The record discloses that appellants at the time in question were not members of appellee union and it appears, therefore, that the LMRDA of 1959, is not applicable. See 29 U.S.C.A. §§ 402(o), 411(a) (2), 412 (Cum.Supp. 1964). Assuming appellants were members of appellee union, there is nothing in the provisions of the act to indicate that Congress intended to vest exclusive jurisdiction thereunder in the federal courts, see Charles Dowd Box Co. v. Courtney, 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483 (1962). Therefore the lower court had jurisdiction over the subject matter of this action.
[8] 372 P.2d 376 (Alaska 1962).
[9] 370 P.2d 526 (Alaska 1962).
[10] Opinion No. 279 (Alaska, January 30, 1965).
[11] 394 P.2d 781 (Alaska 1964).
[12] Also of interest is Apex Concrete Co. v. Bray, 395 P.2d 514 (Alaska 1964), where this court indicated that it would look beyond the statement of points on appeal to determine whether an issue has been raised. More particularly at page 517, the court stated:
"This issue was not raised in the statement of points on appeal, nor is it mentioned in the specification of errors; therefore, we need not consider it."
[13] The majority has also declined the suggestion to request additional briefs on any of the issues I consider to have been raised by appellants. Therefore, I have refrained from commenting upon the issue of the propriety of enjoining the commission of crimes. On this point (as well as the other three mentioned herein), I would have preferred additional briefing and, therefore, have concluded to omit discussion of this issue until a more appropriate occasion.
[14] Contra, Watts v. Seward School Bd., 395 P.2d 372, 376 (Alaska 1964), cert. granted and case remanded, 381 U.S. 126, 85 S.Ct. 1321, 14 L.Ed.2d 261 (May 3, 1965), where this court refused to consider constitutional issues involving free speech on the grounds that the issues were not adequately treated in appellants' brief.
| {
"pile_set_name": "FreeLaw"
} |
United States Court of Appeals
For the Eighth Circuit
___________________________
No. 13-3264
___________________________
Brandon Kittle-Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe
lllllllllllllllllllll Plaintiffs - Appellees
v.
Donald M. Claycomb, in his official capacity as President of Linn State Technical
College; Toni R. Schwartz, in her official capacity as member of the Linn State
Technical College Board of Regents; John Klebba, in his official capacity as
member of the Linn State Technical College Board of Regents
lllllllllllllllllllll Defendants - Appellants
Christopher T. Davidson
lllllllllllllllllllll Defendant
Diane Benetz, in her official capacity as member of the Linn State Technical
College Board of Regents; Mark J. Collom, in his official capacity as member of
the Linn State Technical College Board of Regents; Erick V. Kern, in his official
capacity as member of the Linn State Technical College Board of Regents; J. Scott
Christianson, in his official capacity as member of the Linn State Technical
College Board of Regents
lllllllllllllllllllll Defendants - Appellants
Member, in his/her official capacity as member of the Linn State Technical
College Board of Regents,
lllllllllllllllllllll Defendant
___________________________
No. 14-1145
___________________________
Brandon Kittle-Aikeley; Michael Barrett, IV; Jacob Curliss; John Doe
lllllllllllllllllllll Plaintiffs - Appellees
v.
Donald M. Claycomb, in his official capacity as President of Linn State Technical
College; Toni R. Schwartz, in her official capacity as member of the Linn State
Technical College Board of Regents; John Klebba, in his official capacity as
member of the Linn State Technical College Board of Regents
lllllllllllllllllllll Defendants - Appellants
Christopher T. Davidson
lllllllllllllllllllll Defendant
Diane Benetz, in her official capacity as member of the Linn State Technical
College Board of Regents; Mark J. Collom, in his official capacity as member of
the Linn State Technical College Board of Regents; Erick V. Kern, in his official
capacity as member of the Linn State Technical College Board of Regents; J. Scott
Christianson, in his official capacity as member of the Linn State Technical
College Board of Regents
lllllllllllllllllllll Defendants - Appellants
Member, in his/her official capacity as member of the Linn State Technical
College Board of Regents,
lllllllllllllllllllll Defendant
____________
Appeals from United States District Court
for the Western District of Missouri - Jefferson City
-2-
____________
Submitted: April 13, 2015
Filed: December 7, 2015
____________
Before BYE, BEAM, and SMITH, Circuit Judges.
____________
BEAM, Circuit Judge.
Appellants, members of the Linn State Technical College1 Board of Regents
acting in their official capacities, and Donald M. Claycomb, President of Linn State
Technical College ("Linn State" or "the College"), appeal the district court's grant of
a permanent injunction and subsequent grant of attorneys' fees in favor of Appellees.
We reverse.
I. BACKGROUND
This matter is before us a second time. In Barrett v. Claycomb, 705 F.3d 315
(8th Cir. 2013) ("Barrett") a panel of this court reviewed an interlocutory appeal,
discussing, and ultimately reversing, the grant of a preliminary injunction in favor of
Michael Barrett, IV, and other named individuals (collectively, Appellees) on their
facial challenge to the drug-testing policy at issue. Id. at 325. Upon remand,
Appellees clarified their claims to assert an "as-applied" challenge to the very same
policy. Reviewing the as-applied challenge, the district court, in part, permanently
enjoined Appellants from conducting any further collection, testing, or reporting the
results of any testing of urine specimens from any plaintiffs who were not, are not,
or will not be enrolled in five enumerated programs at Linn State, discussed in more
1
Since the inception of this case, the College has been statutorily renamed and
is now State Technical College of Missouri. Mo. Stat. Ann. § 178.631.
-3-
detail herein. This resolution of the as-applied challenge is now at issue. Because the
factual recitation from Barrett is brief, and because its reiteration is necessary to lay
out the background and especially the drug-testing policy at issue once again, we
liberally adopt the facts of this case as previously explicated. Id. at 318-20.
Linn State is a two-year, technical college located in Linn, Missouri. Linn
State offers approximately thirty programs for a relatively small student body
comprised of roughly 1150 to 1200 students. On average, 500 new students begin
programs at Linn State each year seeking certificates, diplomas, and applied science
associate degrees, or a combination thereof. Mo. Ann. Stat. § 178.636(2). Linn State
does not offer associate of arts or baccalaureate or higher degrees. Id. Established
by statute, Linn State is unique in that its purpose is to "make available to students
from all areas of the state exceptional educational opportunities through highly
specialized and advanced technical education and training at the certificate and
associate degree level in both emerging and traditional technologies with particular
emphasis on technical and vocational programs not commonly offered by community
colleges or area vocational technical schools." Id. at § 178.636(1).
The programs Linn State offers can be divided into four primary categories:
mechanical, electrical, civil, and computer. Each of these primary categories has
further specialty areas. Most programs offered at Linn State involve manual
exercises. The goal of the institution as stated in its admissions materials is to
provide 75% of the class work in the field chosen by the student. For example,
students in the Aviation Maintenance program spend roughly 62% of their time doing
hands-on training, where students work in close proximity to active propeller blades.
These students are also required to taxi airplanes. Students seeking accreditation in
the Heavy Equipment Operations program spend between 51% and 72% of their time
engaged in hands-on training, involving operation of Caterpillar D6R bulldozers and
other heavy equipment weighing up to twenty-five tons. Students in the Industrial
Electricity program spend about half their time engaged in hands-on functions,
-4-
receiving training with live electricity and, at times, performing electrical services for
members of the community.
On June 17, 2011, Linn State's Board of Regents adopted a mandatory drug-
screening policy. The policy states:
Linn State Technical College will begin a drug screening program in the
fall semester of 2011 for students who are newly classified as degree or
certificate seeking and degree or certificate seeking students returning
after one or more semesters of non-enrollment at the Linn State
Technical College campus or any Linn State Technical College location.
The testing policy indicates that "[t]he purpose of the program is to provide a safe,
healthy and productive environment for everyone who learns and works at Linn State
Technical College by detecting, preventing and deterring drug use and abuse among
students." The testing procedures provide that the test results do not serve law
enforcement purposes and will not be revealed to law enforcement personnel.
As a condition of admission to Linn State in the fall 2011 semester, students
were required to sign a form acknowledging the new drug-testing policy and also
acknowledging that refusing to screen would result in administrative or student-
initiated withdrawal. The condition of admission also explained to students that if a
test returned positive, the student would have 45 days "to rescreen and test negative
to remain enrolled." Approximately 550 students paid a $50 fee for the drug test that
fall and were tested.
In conjunction with the new policy, on September 6, 2011, Linn State issued
a series of procedures by which it would conduct the drug screening. The written
procedures provided that students could "petition the Office of the President for a
waiver of the general requirement to participate in the Drug Screening Program."
According to the procedures, "[t]he student may advance any justification for the
-5-
request." If a student filed a petition, President Claycomb testified that he would
consider the student's reason and consult other personnel at the College, and possibly
legal counsel, before he rendered a decision. There was also a full appeal and hearing
process available for students wishing to challenge the initial determination. On
September 7, 2011, Linn State began drug testing students.
On September 14, after providing urine samples in accordance with the drug-
testing policy, Appellees commenced action on behalf of an enumerated class2 against
members of the Board of Regents and President Claycomb. The complaint alleged
that Linn State's drug-testing policy constituted a search that violated the Fourth
Amendment.3 Appellees sought a declaration that the drug-testing policy was facially
unconstitutional and further sought injunctive relief. The district court issued a
preliminary injunction and we reversed, because we were unable to hold that the
drug-testing policy is unconstitutional on its face in every conceivable circumstance.
Barrett, 705 F.3d at 320-21, 321 n.4, and 324-25 (reiterating that in order to receive
2
The district court certified as a class "current, and future, students of Linn
State Technical College who are, or will be, seeking degrees or certificates at the
main campus of the College in Linn, Missouri, or any other Linn State Technical
College location." Citing Gonzales v. Carhart, 550 U.S. 124 (2007), Barrett indicated
that if Appellees wanted to challenge the drug-testing policy focusing only on those
current students whose studies did not involve a safety-sensitive program, they could
have lodged an as-applied challenge. 705 F.3d at 324-25. Appellees now pursue an
as-applied challenge but the class continues to include future, yet unknown, students.
Gonzales implies that an as-applied challenge is best in instances where the party can
show "discrete and well-defined instances" where the policy can be quantified and
discussed. 550 U.S. at 167; see also Doe ex rel. Doe v. Little Rock Sch. Dist., 380
F.3d 349, 357-58 (8th Cir. 2004) (Beam, J., concurring and dissenting). We thus
question the validity of the class as defined but because we determine herein that the
challenged drug-testing policy at Linn State is constitutional, we need not determine
whether future enrolled students are appropriate members of the current class.
3
The Fourth Amendment applies to the states through the Fourteenth
Amendment. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
-6-
injunctive relief, no matter whether the court applied a "likelihood of success on the
merits" or a "fair chance of prevailing" standard, the appellees could not satisfy their
ultimate burden in mounting a facial challenge under the Fourth Amendment that no
set of circumstances existed under which the policy would be valid.).
Upon remand, Appellees clarified that they sought as-applied relief and the
district court analyzed that claim. When analyzing Appellees' as-applied challenge,
the district court conducted a program-by-program analysis to "ensure that the
category of students subject to the drug-testing policy has not been defined more
broadly than necessary to meet the policy's purposes." In doing so, the court stated
it balanced the special need advanced by Linn State (which the court limited to safety
concerns for others) with the privacy expectations intruded on, to discern whether
Linn State's drug testing (i.e., the search) was reasonable in each instance. The
district court adjusted the level of the students' expectation of privacy in each
balancing analysis depending upon whether or not the student would be entering
professions in heavily regulated industries or industries where drug testing was the
norm in the future. If the students were, the court took into account a diminished
privacy expectation. If they were not, the district court conducted its balancing
analysis assuming the students had full privacy expectations common to all adults.
Conducting its analysis, the district court determined that Linn State could
reasonably conduct drug testing in the following program areas: Aviation
Maintenance, Industrial Electricity, Electrical Distribution Systems, Power Sports,
and CAT Dealer Service Technician. However, the court held that it was
unconstitutional for Linn State to drug test students participating in the following
programs: Auto Body; Auto Mechanics; Heavy Equipment Technology;
Medium/Heavy Truck Technology; Electronics Engineering Technology; Electrical
Power Generation; Heating, Ventilation and Air Conditioning; Commercial Turf and
Grounds Management, Machine Tool Technology; Computer Programming;
Construction and Civil Technology; Networking Systems Technology; Design
-7-
Drafting and the remainder of Linn State's approximate twenty-eight distinct
academic programs. The drug testing in the Heavy Equipment Operations and
Commercial Driver's License programs is not at issue in this case, as those students
are subject to a separate drug-testing requirement, which the district court's ruling did
not affect. Linn State appeals.
II. DISCUSSION
A. Standard of Review
We review the district court's issuance of a permanent injunction for an abuse
of discretion, Capitol Records, Inc. v. Thomas-Rasset, 692 F.3d 899, 906 (8th Cir.
2012), but where, as here, "the determinative question is purely legal, our review is
more accurately characterized as de novo." Qwest Corp. v. Scott, 380 F.3d 367, 370
(8th Cir. 2004). "Abuse of discretion occurs if the district court reaches its
conclusion by applying erroneous legal principles or relying on clearly erroneous
factual findings." Fogie v. THORN Americas, Inc., 95 F.3d 645, 649 (8th Cir. 1996).
B. Legal Standard
In Barrett, we clearly delineated that the suspicionless drug testing at issue in
this case constitutes a search subject to the demands of the Fourth Amendment.4
Barrett, 705 F.3d at 321-22. "As the text of the Fourth Amendment indicates, the
ultimate measure of the constitutionality of a governmental search is
'reasonableness.'" Veronica Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).
Ultimately, "whether a particular search meets the reasonableness standard is judged
4
The Fourth Amendment to the United States Constitution provides that the
Federal Government shall not violate "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures."
U.S. Const. Amend. IV.
-8-
by balancing its intrusion on the individual's Fourth Amendment interests against its
promotion of legitimate governmental interests." Id. 515 U.S. at 652-53 (internal
quotation omitted). Relevant here, a search unsupported by probable cause can be
constitutional where the intrusion serves special governmental needs, beyond the
normal need for law enforcement. Nat'l Treasury Emps. Union v. Von Raab, 489 U.S.
656, 665 (1989). Once a special need is identified sufficient to depart from the usual
warrant and probable-cause requirements that so often subsume the Fourth
Amendment analyses, the requisite analysis involves the balancing of that need, with
the students' privacy interest. Barrett, 705 F.3d at 321-22; see also Chandler v.
Miller, 520 U.S. 305, 314 (1997); Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602,
619 (1989).
In general, to accomplish this balancing, courts weigh the interference with
individual liberty that results from the particular search, against the special need or
interest advanced by the government in support of such action. Barrett, 705 F.3d at
321-22. In all instances, three factors guide a court's analysis:
(1) the nature of the privacy interest allegedly compromised by the drug
testing; (2) the character of the intrusion imposed by the Policy; and (3)
the nature and immediacy of the government's concerns and the efficacy
of the Policy in meeting them.
Id. at 322 (internal quotations omitted); see also Bd. of Educ. of Indep. Sch. Dist. No.
92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 830, 832, 834 (2002); Veronica, 515
U.S. at 654-64.
-9-
C. Analysis
Suspicionless drug testing falls into a "closely guarded category of
constitutionally permissible suspicionless searches." Chandler, 520 U.S. at 309.
Broadly speaking there are two, relevant, interrelated lines of Supreme Court cases
addressing suspicionless drug testing that inform our analysis: (1) those addressing
suspicionless testing of adults participating in closely regulated industries or working
in "safety-sensitive" positions, see, e.g., Skinner, 489 U.S. at 620 (railroad
employees); Von Raab, 489 U.S. at 668-70 (customs officials);5 and (2) suspicionless
drug testing of students in the educational setting, Veronica, 515 U.S. at 648-56
(determining that suspicionless testing of athletes was constitutional); Earls, 536 U.S.
at 826-28 (same for testing of students who participated in competitive extracurricular
activities). The current matter is a hybrid of the two lines of cases, so while they are
informative they are not wholly dispositive and ultimately do not alter the analysis
that must be conducted–in each and every instance, these queries are conducted on
a case-by-case, context-specific basis. Chandler, 520 U.S. at 314; see also Earls, 536
U.S. at 830 (reiterating that courts must conduct a fact-specific balancing on a case-
by-case basis).
5
In Skinner, the Court concluded that surpassing safety interests warranted
testing of rail employees involved in train accidents as well as those who violated
safety rules because drug testing could deter rail workers who might "cause great
human loss before any signs of impairment become noticeable to supervisors." 489
U.S. at 628 ("[E]ven a momentary lapse of attention [could] have disastrous
consequences."). In Von Raab, the Court sustained drug testing of customs
employees in positions directly involving drug interdiction or requiring the employee
to carry a firearm given the grave and inherent safety threat to employees in those
positions as well as the public at large. 489 U.S. at 668-72 ("In light of the
extraordinary safety and national security hazards that would attend the promotion
of drug users to [such positions,] the Service's policy of deterring drug users from
seeking such promotions cannot be deemed unreasonable.") Id. at 674.
-10-
In Barrett, based on the evidence presented in support of Appellees' motion for
a preliminary injunction on their facial challenge, we determined many points that
remain relevant and buttress our instant analysis: (1) the public has a valid interest
in deterring drug use among students engaged in programs posing significant safety
risks to others, 705 F.3d at 322; (2) "some college students that attend Linn State
have a diminished expectation of privacy because they are seeking accreditation in
heavily regulated industries and industries where drug testing, in practice, is the
norm," id. at 323; (3) Linn State's testing procedures significantly minimize the
intrusiveness of Linn State's drug-screening program and are relatively noninvasive,
thus the invasion of students' privacy is not significant, id.; and (4) the need to
prevent and deter the substantial harm that can arise from a student under the
influence of drugs while engaging in a safety-sensitive program provides the
necessary immediacy for Linn State's testing policy, id.
In analyzing Appellees' as-applied challenge, the district court interpreted
Barrett rigidly and conducted an exhaustive program-by-program analysis,
permanently enjoining Linn State from administering its drug-testing program to
students in specific, enumerated programs. In doing so, the district court erred on
several fronts.
1. Special Need
The district court accurately held that Linn State bears the burden of
demonstrating a special need sufficient to withstand the Fourth Amendment balancing
test. It is well established that there are some searches, unsupported by probable
cause that may be reasonable when special needs, beyond the need for law
enforcement, make the warrant and probable cause requirement impracticable. Earls,
536 U.S. at 829. Yet, the district court erred by taking its analysis further, embedding
in Linn State's burden the requirement that it produce specific evidence, program by
program, of a special need. In doing so, the court erroneously crafted a multi-part
-11-
standard, or "parameters" as the district court stated, that the court gleaned from prior
case law, addressing "indispensable" factors Linn State must identify and meet in
order to advance a special need sufficient to conduct suspicionless drug testing of
students in each program. We do not quibble with the district court's recitation of the
various standards utilized by the Supreme Court in addressing the interests and needs
advanced by the government in prior cases of this sort, but rather point out that the
court unnecessarily pulled language from the prior analyses, applying each as
cumulative and absolute standards that Linn State must meet. The court expended too
much analytical energy pigeon-holing Linn State's interest into a nonexistent, one-
size-fits-all legal rubric.
Citing this court's analysis in Barrett, the district court took pains to note that
the only special need it would evaluate in its analysis was Linn State's interest in
deterring drug use among students in programs posing significant safety risks to
others. The court held that indulging any other need would promote the advancement
of illusory safety concerns to mask unconstitutional purposes. We disagree.
Barrett did not so limit Linn State's special need as only an interest in deterring
drug use among students in programs posing significant safety risks to others. This
court discussed the risk to others as part of the special need analysis in the discussion
of the public safety interest at play because harm to others necessarily is the most
relevant factor in that particular consideration. Barrett, 705 F.3d at 322 (relying on
Skinner's and Von Raab's consideration of the public's surpassing safety interest as
a part of the special needs analysis). However, deterring harm to oneself is innate in
all of the analyses of special governmental needs in similar circumstances when
individuals are engaged in dangerous or safety-sensitive activities–and our discussion
regarding harm to others did not limit that additional risk in any way. Id. at 323
(validating harm to oneself as part of Linn State's primary concern arising from
students under the influence while engaging in a safety-sensitive program when
addressing the nature and immediacy prong of the balancing analysis). For example,
-12-
in Skinner, the Court acknowledged the axiomatic nature of the governmental interest
in ensuring the safety of the public "and of the employees themselves." Skinner, 489
U.S. at 621; see also Von Raab, 489 U.S. at 669-71 (recognizing that not only is the
physical safety of border employees themselves–those involved in drug interdiction
and those who otherwise are required to carry firearms–threatened in that line of work
but also the safety of others at large should those employees carry out their duties in
an impaired state). Accordingly, the court erred in declining to include "harm to
oneself" in its special need analysis.
As presented to the Board of Regents and as argued to the district court and on
appeal, the purpose behind Linn State's drug-testing policy is to "provide a safe,
healthy, and productive environment for everyone who learns and works at LSTC by
detecting, preventing, and deterring drug use and abuse among students." This policy
simultaneously advances the educational purpose served by fostering a drug-free
environment at a technical school preparing students for the realities of the workplace
environments they will soon be entering. These purposes–safety concerns juxtaposed
with educational concerns–are not analytically distinct and establish a special need
sufficient to support the balancing of interests necessary in these circumstances.
Using drugs while attending classes at a technical school uniquely limited to
instruction and training in technical and vocational programs, where a large
percentage of the students on campus are performing hands-on work in their
respective, industrial programs on a daily basis, poses a unique safety risk that does
not necessarily exist on other college campuses, or even at other, more similar,
community colleges. The very nature of these programs and the unique vocational
focus of the college itself involves dangerous aspects and creates safety risks for
students under the influence of drugs or alcohol, as well as others.
The district court extensively evaluated many programs (although not all
programs) to evaluate the level of safety risk. We see no justification, however, for
-13-
the district court's decision to embark on such a tightly focused and burdensome trek
in this case, even acknowledging the very critical constitutional right at play, given
the very unique circumstances at this particular technical college. Even the
differentiating nuances of risk between certain programs belabored by the district
court were so slight. For example, on the one hand the district court found drug
testing acceptable for students participating in the Power Sports program where
students are exposed to on-road and off-road vehicles as well as hydraulic and air-
type lifts, while it concurrently stated with certainty that the curriculum and risk
exposure in the Commercial Turf and Grounds Management program was not enough
to warrant testing even though those students used forklifts, large commercial
mowers, flammable materials, propane torches and concrete saws. Unlike the district
court, we do not find that expert testimony or a specific level of substantiating
evidence is required to determine whether students under the influence operating, say,
a forklift or a propane torch, pose a safety risk to themselves and others. They do.
At bottom, on these facts and given the nature and inherent risks involved with the
majority of Linn State's offerings, we need not go past the stated safety risks
obviously at play in Linn State's programs and become curriculum and student-
management experts.
Just as in the Title VII employment litigation context where we caution parties
that this court does not sit as a super-personnel department in place of employers,
Bone v. G4S Youth Servs., LLC, 686 F.3d 948, 955 (8th Cir. 2012), we likewise
cannot and do not operate as course-of-study-content experts discerning the relative
safety issues in various programs offered at a technical school where significant
safety risks abound. Courts are not, nor do we need to be, admissions and curriculum
experts to conduct the requisite balancing of these matters in this case. What we do
know, however, is that Linn State is a unique technical college, offering vocational
programs to a relatively small student body, within a reasonably centralized location.
By its very nature, this technical school offers a hands-on, in-the-field approach for
a vast majority of its students seeking degrees in various traditional vocations. This
-14-
is not to suggest that the evidentiary standard is immeasurable by any means.
Certainly the government cannot rely upon a general, amorphous articulation of a
special need to support a privacy invasion with immediate Fourth Amendment
implications. Chandler, 520 U.S. at 320-21. But the evidence does not support such
shortcomings in this case. Linn State demonstrated that its students are primarily
involved in vocational programs fraught with risks such that anyone participating in
these programs who is under the influence, with impaired perception and judgment,
creates an unnecessary and dangerous risk to themselves and others. Linn State
admitted affidavits, witness testimony, early documents discussing the purpose
behind the policy, and even onsite photographs of student work areas to better explain
the nature of the course work in various programs as well as the numerous, potential
risks created given the general tools and class work necessary to advance in each
program. With this evidence, and because of the unique circumstance presented by
this educational endeavor, we see no need to parse the information so finely.
In light of the particular programming taking place on Linn State's campus,
Linn State has a justified interest in providing a safe, healthy, and productive
environment for its relatively small student body and faculty population, while
simultaneously preparing students for the realities of the workplace environments
they are entering. This is a special need significant enough to conduct a balancing
test of competing constitutional interests.
2. Balancing
a. Nature of Privacy Interest
As before, we must consider the nature of the privacy interest compromised by
the drug-testing policy. Earls, 536 U.S. at 830. In Barrett, addressing only whether
Appellees were able to sustain a facial challenge to the policy at issue, we held that
"some college students that attend Linn State have a diminished expectation of
-15-
privacy because they are seeking accreditation in heavily regulated industries and
industries where drug testing, in practice, is the norm," and thus held Appellees could
not maintain a facial challenge. 705 F.3d at 323. Based on this statement, the district
court held that only those students in programs for which specific evidence and expert
testimony were presented at trial showing that industry testing was the norm or that
the industry involved was heavily regulated, would be considered to have a
diminished expectation of privacy. Outside of that limited context, the court found
no diminished privacy interest whatsoever for the Linn State students, thus granting
all remaining students with full, substantial privacy expectations common to all
adults. The court erred in so limiting its analysis.
While the determination in Barrett remains relevant in the instant analysis
because those students engaged in, or who will soon be working in, heavily regulated
industries where drug testing is the norm, have diminished privacy expectations, our
review today requires additional considerations. The Supreme Court has recognized
circumstances in the educational system (outside the context of employees in
especially hazardous occupations or safety-sensitive positions) that give rise to a
substantial need that justifies suspicionless drug testing. See Veronica, 515 U.S. 646;
Earls, 536 U.S. 822. In the educational setting, specifically in the public school
setting where the schools have a custodial and tutelary responsibility for the children
they are educating, the Supreme Court has acknowledged an important interest in
deterring drug use among student athletes and those students participating in
competitive extracurricular activities. Earls, 536 U.S. at 831, 834; Veronica, 515 U.S.
at 661-63. This court has likewise sanctioned random drug testing of an entire high
school student body, applying a similar analysis. Miller v. Wilkes, 172 F.3d 574, 581
(8th Cir. 1999).
That this case involves students is a key component of the privacy interest at
stake although not determinative on its own. We fully recognize that the privacy
interests discussed in cases such as Earls, Veronica, and Miller, rely heavily on the
-16-
tutelary aspect of our nation's public schools, "permitting a degree of supervision and
control that could not be exercised over free adults." Veronica, 515 U.S. at 655. We
additionally recognize that the privacy interests of college students in a public
technical school are more akin to those we bestow upon individual adults. But, the
evidence establishes that Linn State certainly maintains a level of supervision
appropriate for students in this particular college setting. Previously mentioned, the
privacy interest here is a unique combination of that discussed for those adults
subjected to suspicionless testing due to their participation in closely regulated
industries or working in safety-sensitive positions, and students in more protected
educational settings. Accordingly, the expectation of privacy for all Linn State
students is somewhat diminished as they are either entering into areas of instruction
and future fields of employment in highly regulated and safety-sensitive positions;
or they are juxtaposed with students who are doing so; or they are attending classes
in such areas on an intermittent basis due to the actuality of or potential of cross
enrollment.
The district court found unpersuasive Linn State's argument that the possibility
of cross enrollment renders this drug testing reasonable under the Fourth Amendment
because students enrolled in non-dangerous programs could, according to Linn State,
elect to take courses in programs that include tasks that pose a significant safety risk.
The district court held this possibility was "abstract and unsubstantiated." We
disagree, as the evidence supports a contrary conclusion. There is evidence that cross
enrollment does, and can, occur. In any event, while there are certainly some
programs that pose little safety risk relative to other programs where the risk is more
prominent, the environment at Linn State on whole is the critical consideration
because the student body does not participate in their respective disciplines in a
vacuum. Indeed, by way of example and applying the district court's analysis, there
is nothing prohibiting a student from enrolling in a program without testing, and then
later taking classes in, or even transferring to, a program that requires testing–a
-17-
scenario difficult to address in the current circumstances even from a logistical and
bookkeeping standpoint.
The district court's refusal to acknowledge Linn State's unique role in this
educational setting is error. In its exhaustive risk analysis of specific programs
offered at Linn State, the court often mitigated the safety risks in programs based
upon the supervision of Linn State staff in the classroom. Yet, by doing so, the court
emphasized the important role of the instructors in the educational setting where
students need supervision, and quite clearly acknowledged the somewhat diminished
expectation of privacy of all Linn State students. Many of the Linn State students are
performing dangerous work for the first time. If this technical college is to shoulder
the obligation to educate its students in these vocational fields, that responsibility
requires at least a concomitant obligation from its students to participate drug and
alcohol free. Thus, this unique environment requires a heightened level of
supervision and somewhat diminished expectation of privacy.
b. Character of the Intrusion
The analysis maintained in Barrett regarding the character of the privacy
intrusion remains unchanged in Appellees' as-applied challenge. Barrett, 705 F.3d
at 323. The procedures in place significantly minimize the intrusiveness of Linn
State's drug-testing policy and the invasion of students' privacy is not significant. Id.;
see also Chandler, 520 U.S. at 318 (determining that the testing method employed by
the state was relatively noninvasive and that the state could not be faulted for
excessive intrusion).6
6
Too, the procedural protections in place, including a student's right to petition
for exclusion with an appellate process thereafter, aid in characterizing this intrusion
in light of the remaining factors under consideration, as it is probable that some
students might not be tested at all.
-18-
c. Nature and Immediacy of Concerns and Efficacy of the
Policy
Here, we start with the premise established in Barrett: the need to prevent and
deter the substantial harm that can arise from a student under the influence of drugs
while engaging in a safety-sensitive program provides the necessary immediacy for
Linn State's testing policy. 705 F.3d at 322. In support of the new policy, the
proponents noted research that "[d]rug use has been found linked to . . . injuries and
deaths," and emphasized that the incidence of drug abuse and addiction on college
campuses is steadily rising, which is particularly acute in a vocational setting where
the programs involved have dangerous and safety-sensitive components. This current
state is a surprise to no one–the rampant problem with drugs and alcohol was readily
apparent even in 1989. Even then the Court reiterated that there is no doubt "that
drug abuse is one of the most serious problems confronting our society today," and
that this social problem permeates indiscriminately. Von Raab, 489 U.S. at 674; see
also Earls, 536 U.S. at 834-35 and Miller, 172 F.3d at 580-81.
The problem remains serious today. See generally 1 National Institute
on Drug Abuse, National Institutes of Health, Monitoring the Future:
National Survey Results on Drug Use, 1975-2005, Secondary School
Students (2006). About half of American 12th graders have used an
illicit drug, as have more than a third of 10th graders and about one-fifth
of 8th graders. Id., at 99. Nearly one in four 12th graders has used an
illicit drug in the past month. Id., at 101. Some 25% of high schoolers
say that they have been offered, sold, or given an illegal drug on school
property within the past year. Dept. of Health and Human Services,
Centers for Disease Control and Prevention, Youth Risk Behavior
Surveillance–United States, 2005, 55 Morbidity and Mortality Weekly
Report, Surveillance Summaries, No. SS-5, p.19 (June 9, 2006).
Morse v. Frederick, 551 U.S. 393, 407 (2007). While Morse surely limited its
discussion to the pervasive drug use and abuse epidemic among our Nation's young
people, we do not suppose that the problem abates the day after high school
-19-
graduation and thus the data is certainly relevant to the instant discussion. In light
of the massive problem in today's society, and given the previous discussion,
articulating in detail the importance of Linn State's concern in preventing drug use
by its enrolled students, Linn State's real and immediate interest in administering this
policy is undeniable.
Additionally, as already noted in Barrett, "[w]hile it is true that random testing
may be a more effective deterrent," Linn State's alleged failure to adopt the most
effective drug-testing policy is not reason enough to override Linn State's substantial
interest and pursuit in this matter. 705 F.3d at 323-24. In Von Raab, the Court
addressed similar arguments from those challenging the efficacy of the chosen drug-
testing policy, ultimately rejecting them because the Court held that focusing on ways
to, say, manipulate a test too easily "overstates the case." 489 U.S. at 676. At
bottom, as in Von Raab, the policy here holds a "close and substantial relation" to
Linn State's goal of advancing safety and educational interests on campus, given the
unique vocational focus of this college. Id.
III. CONCLUSION
Linn State's student population comprised of roughly 1200 students are
primarily engaged in safety-sensitive and potentially dangerous curriculum due to the
unique nature of this particular vocational and technical college and its limited focus.
On balance, testing the entire student population entering Linn State is reasonable and
hence constitutional and an effective means of addressing Linn State's interest in
providing "a safe, healthy, and productive environment for everyone who learns and
works at LSTC by detecting, preventing, and deterring drug use and abuse among
students."
For the reasons stated herein, we reverse the district court's permanent
injunction and remand for dismissal of the case. Because we reverse this matter, we
-20-
also necessarily reverse the district court's award of fees in favor of Appellees and,
accordingly, remand the consolidated matter for dismissal as well.
BYE, Circuit Judge, dissenting.
I would affirm the district court's order granting the Appellees (hereinafter
“students”) a permanent injunction from Appellants’ (hereinafter “Linn State”)
suspicionless drug-testing policy for all but five of Linn State's academic programs
because the district court's program-by-program analysis is correct and Linn State
failed to present sufficient evidence demonstrating a special need for drug testing.
Based on the evidence presented, the district court did not abuse its discretion. I
therefore respectfully dissent.
I
The district court did not abuse its discretion by conducting a program-by-
program analysis because this approach is consistent with our instructions in Barrett
v. Claycomb, 705 F.3d 315 (8th Cir. 2013). In Barrett we held “some college students
that attend Linn State have a diminished expectation of privacy.” Id. at 323
(emphasis added). This Court’s use of the words “some college students” can only
be interpreted as meaning not all of Linn State’s students have a diminished
expectation of privacy. Therefore, this Court tasked the district court with sifting
through Linn State’s twenty-eight distinct academic programs to determine which
programs “pos[ed] significant safety risks to others.” Id. By closely analyzing Linn
State’s academic curriculum program by program, the district court followed our
instructions in Barrett.
The district court’s approach is also consistent with the nature of an as-applied
constitutional challenge. In Barrett this Court held Linn State’s suspicionless drug
testing policy was facially constitutional. The question presented to us today is
-21-
fundamentally different as we must determine the constitutionality of Linn State’s
suspicionless drug testing policy as-applied. This distinction is significant – we
analyze facial challenges broadly to determine whether a statute or policy as written
is constitutional under most circumstances whereas we evaluate as-applied challenges
by applying the statute or policy to the particular person in their particular
circumstance to determine constitutionality. See, e.g., Wash. State Grange v. Wash.
State Republican Party, 552 U.S. 442, 449 (2008) (“[A] plaintiff can only succeed in
a facial challenge by establish[ing] that no set of circumstances exists under which
the Act would be valid.”) (internal quotations omitted); United States v. Stephens,
594 F.3d 1033, 1039-40 (8th Cir. 2010) (holding the record did not contain enough
facts to determine whether the statute was constitutional as applied to the particular
facts and circumstances of the case).
The facts of this case exemplify why the district court’s program-by-program
analysis was required for this as-applied constitutional challenge. This Court’s facial
analysis in Barrett makes clear that not all Linn State programs warrant drug testing.
Subsequently, the purpose of the district court’s analysis was to reveal which specific
Linn State programs required drug testing. The district court correctly performed this
exact analysis by applying Linn State’s drug-testing policy to the individual settings
of the twenty-eight distinct programs and ultimately determined only five programs
justified drug testing. In contrast, the majority applies Linn State’s drug testing
policy to the entire 1100-1200 student body as one homogenous mass to assess
overall constitutionality. In this all-or-nothing analysis, the majority concludes drug
testing is warranted for all students. The majority’s broad approach is misplaced: it
is more akin to a facial analysis, and it ignores this Court’s findings in Barrett.
For the reasons stated above, I agree with the district court’s program-by-
program approach.
-22-
II
I think it is inappropriate to analyze Linn State’s policy at a campus-wide level,
but because the majority does so, and because I disagree with their analysis, I will
analyze the campus-wide policy under governing Fourth Amendment law.
Accordingly, to determine whether Linn State's drug-testing policy is constitutional,
it is undisputed the Fourth Amendment two-step balancing test applies. Linn State
is first required to establish a special need for its policy. Barrett, 705 F.3d at 324.
Once a special need is proffered it is balanced against three factors: (1) the nature of
the privacy interest; (2) the character of intrusion; and (3) the nature and immediacy
of the governmental concern and efficacy of the policy. Id. (citing Bd. of Educ. of
Indep. Sch. Dist. No. 92 of Pottawatomie Cty v. Earls, 536 U.S. 822, 830, 832, 834
(2002)).
A. Special Need
Operating under the framework discussed in Part I, Linn State has only met its
burden of demonstrating a drug-related public safety concern for five academic
programs. The Supreme Court cautioned when “public safety is not genuinely in
jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how
conveniently arranged.” Chandler v. Miller, 520 U.S. 305, 323 (1997). Accordingly,
Linn State had the burden of establishing its academic programs posed a genuine
public safety risk. Linn State met this burden for five academic programs because it
demonstrated the particular program presented a concrete risk of injury to others in
the vicinity or simply that drug testing was the industry norm. Linn State failed to
prove how the remaining twenty-three programs placed public safety genuinely in
jeopardy.
Further, we must be prudent in analyzing a generalized drug-related public
safety justification for an exception to the Fourth Amendment. In reviewing the
-23-
record, it is clear “public safety” is just one of several reasons the Board cited for
enacting the drug-testing policy. For example, the six “Program Goals” adopted by
the Board, the advisory committee minutes, and testimony from Board members all
reveal non-safety motivations for Linn State implementing the drug-testing policy,
including: to improve retention and graduation rates, to “up enrollment numbers,”
to appeal to students’ parents because “parents want their kids to attend a school that
enforces a drug-free environment,” and to prepare students for employment in fields
in which drug screening might be required. While these rationales may be valid from
a business perspective, they do not provide permissible exceptions to the Fourth
Amendment. In light of these additional motivations, I view Linn State’s public
safety proclamation with skepticism and ultimately do not believe it provided
sufficient evidence to demonstrate public safety is genuinely in jeopardy to justify
constitutional infringement.
For those reasons, I believe the evidence presented is insufficient to support
Linn State’s proffered generalized special need of public safety.
B. Balancing Test
Although I believe we need not reach the balancing test, the majority does.
Even assuming Linn State met its burden of demonstrating a special need, the drug-
testing program cannot withstand the three-prong balancing test. See Barrett, 705
F.3d at 324.
1. Nature of the Privacy Interest
We start from the position that adults have a strong Fourth Amendment privacy
interest in being free from warrantless search and seizure. The majority discounts this
position by attempting to analogize the privacy interests of high school students as
-24-
being consistent with the privacy interests of adult college students.7 Second, the
majority erodes Fourth Amendment protections even further by rendering the mere
possibility of cross enrollment between programs as being enough evidence to justify
drug testing for all students.
First, the majority seems to argue Earls, 536 U.S. 822, Vernonia Sch. Dist. 47
J v. Acton, 515 U.S. 646 (1995), and Miller v. Wilkes, 172 F.3d 574 (8th Cir. 1999)
can be interpreted as standing for the proposition that students, regardless of age and
level of education, have a diminished expectation of privacy given the tutelary nature
of being a student. I strongly disagree. Drug testing was found to be constitutional
in Earls, Vernonia, and Miller because the individuals affected were children that
happen to be high school students. See Earls, 356 U.S. at 824 (“The need to prevent
and deter the substantial harm of childhood drug use provides the necessary
immediacy for a school [drug] testing policy.” (emphasis added)); Vernonia, 515 U.S.
at 649 (holding drug testing high school student athletes was constitutional); Miller,
172 F.3d at 582 (holding random drug testing of students between grades seven and
twelve was constitutional). Here, Linn State’s suspicionless drug-testing policy
affects adults who happen to be college students. This is a distinction with a
difference because adults are entitled to greater protections of their privacy interests
than are children. The majority is extending the scope of the holdings in Earls,
Vernonia, and Miller to assert the dispositive factor in determining the
constitutionality of drug testing is whether the individuals have student status as
opposed to whether the student is an adult or child. I believe such an extension is
erroneous and overreaching.
7
For the sake of simplicity and because there was no evidence presented to the
contrary, I am presuming the students enrolled at Linn State are mostly adults because
Linn State is a technical college. This case does not address the issue of minor
students enrolled in college courses or adult students enrolled in high school courses.
-25-
Second, Linn State did not meet its burden of demonstrating students’ cross
enrollment across Linn State’s academic programs presents a safety concern
justifying a Fourth Amendment exception. The majority accepts Linn State’s
assertion that because some programs require a diminished expectation of privacy and
students may freely cross enroll into any Linn State program then all students must
have a diminished expectation of privacy for the safety concerns associated with cross
enrollment. It is undisputed Linn States carries the burden of demonstrating a
recognized exception to the Fourth Amendment including that cross enrollment
establishes enough of a safety concern to permit exception. See Der v. Connolly, 666
F.3d 1120, 1127-29 (8th Cir. 2012); see also Chandler, 520 U.S. at 319. Here, not
only did Linn State fail to present any evidence of students engaged in cross
enrollment but, more egregiously, Linn State submitted it did not even have to.
Appellants’ Br. at 32-33 (“[S]urely the school is in a position to know whether cross
enrollment actually happens, without having to present student-specific occasions of
it.” (emphasis added)). Accordingly, it is clear Linn State did not meet its burden of
proof and the mere possibility of cross enrollment is insufficient to justify a Fourth
Amendment exception.
For those reasons, I find the majority is incorrect in determining adult college
students have a diminished expectation of privacy just because they have student
status and may cross enroll in programs requiring drug testing.
2. Character of Intrusion
In Barrett, this Court found relevant, “Linn State’s written procedures inform
the students that the testing will be conducted in accordance with federal drug-testing
procedures outlined in 49 C.F.R. Part 40, which ‘significantly minimize the
program’s intrusion on privacy interests.’” Barrett, 705 F.3d at 323 (quoting Nat'l
Treasure Emps. Union v. Von Raab, 489 U.S. 656, 672 n.2 (1989)). The majority
relies on Barrett in concluding the analysis remains unchanged in this as-applied
-26-
challenge because “[t]he procedures in place significantly minimize the intrusiveness
of Linn State’s drug-testing policy.” However, Linn State’s drug-testing policy does
not comport with federal drug-testing procedures and therefore the majority errs in
holding the federal procedures in place significantly minimize the intrusiveness of the
drug-testing policy.
Linn State’s testing procedures differ from federal testing procedures in a
number of ways but most egregious is Linn State’s parental notification clause which
permits a student’s drug-test results to be shared with a third party – namely parents.
This is unlike federal drug-testing procedures which require strict confidentiality of
test results. There is a greater invasion of privacy when drug test results are capable
of being shared with a third party. See Ferguson v. City of Charleston, 532 U.S. 67,
68 (2001); Lebron v. Wilkins, 820 F. Supp. 2d 1273, 1283 (M.D. Fla. 2011) (finding
a “far more substantial” invasion of privacy when positive drug tests resulting from
the collection of urine samples are shared with third parties). Although Linn State
asserts its drug-testing policy remains non-invasive because there is no evidence to
demonstrate it has notified a parent, this argument is without merit. Regardless of
whether Linn State has previously notified a third party, the ability to do so remains.
Therefore, Linn State’s mere ability to notify a third party automatically results in a
greater invasion of privacy than what was found acceptable by this Court in Barrett.
I therefore believe the majority erred in relying on our facial analysis in Barrett
to conclude the character of intrusion remains unchanged in this as-applied challenge.
In actuality, Linn State’s drug-testing policy as-applied is more invasive than the
federal procedures with which it claims to comply. Accordingly, Linn State’s drug-
testing policy is a substantial invasion of privacy.
-27-
3. Nature and Immediacy of the Governmental Concern and
Efficacy of the Policy
The majority concludes, “Linn State’s real and immediate interest in
administering this [drug-testing] policy is undeniable” in light of the “massive [drug]
problem in today’s society.” I find the majority’s fear-ridden rationale to be
troubling. Founded in 1961, Linn State successfully operated for fifty years before
deciding in 2011 that a drug-testing policy was essential for safeguarding its students.
Despite asserting the immediate necessity of the drug-testing policy, neither Linn
State nor the majority cites any specific events or studies applicable to Linn State in
particular to substantiate this assertion. Rather, the majority relies on a generalized
concern over drug use based on the Supreme Court’s comment in Morse v. Frederick,
551 U.S. 393, 407 (2007), where it listed statistics regarding drug use amongst
secondary school students and concluded drug abuse problem “remains serious
today.” I find the majority’s reference to a case decided in 2007 providing drug-use
statistics of secondary school students to be unpersuasive. While I certainly
acknowledge drug and alcohol abuse are very serious problems, the majority’s
reference to Morse does not explain why there is a real and immediate risk present at
Linn State today. In the absence of empirical evidence to bolster Linn State’s special
needs argument requiring suspicionless drug testing, I remain unconvinced Linn
State’s “real and immediate interest in administering the [drug-testing] policy” is even
plausible, let alone “undeniable.”
In light of the undiminished privacy interest and invasive drug-testing
procedures, I find Linn State’s campus-wide program fails the three-prong balancing
test.
-28-
III
For the above stated reasons, the district court did not abuse its discretion. I
would affirm the district court’s order granting the students a permanent injunction
from drug testing in all but the five academic programs identified.
______________________________
-29-
| {
"pile_set_name": "FreeLaw"
} |
693 S.E.2d 70 (2010)
Dianna Brekke STORRIE, Petitioner Below, Appellant
v.
Christopher Michael SIMMONS, Respondent Below, Appellee and
Charles D. Kittle, Petitioner Below, Appellee
v.
Susan R. Burke, Respondent Below, Appellant.
Nos. 35289, 35445.
Supreme Court of Appeals of West Virginia.
Submitted March 2, 2010.
Decided April 2, 2010.
*72 Cinda L. Scales, Esq., Martinsburg, WV, for Appellant Dianna Brekke Storrie.
Robert D. Aitcheson, Esq., Charles Town, WV, for Appellee Christopher Michael Simmons.
Elgine Heceta McArdle, Wheeling, WV, for Appellant Susan R. Burke.
Teresa Clark Toriseva, Wheeling, WV, for Appellee Charles D. Kittle.
David B. Cross, Wellsburg, WV, Guardian Ad Litem for Docket No. 35445.
PER CURIAM:
In these consolidated actions, Appellants Dianna Brekke Storrie ("Storrie") and Susan R. Burke ("Burke") each appeal the denial of their respective petitions for modification of custody arrangements based on relocation under West Virginia Code § 48-9-403 (2009). Both Storrie and Burke filed motions seeking to relocate their children to other states, and in both actions the biological fathers of the children, Appellees Christopher Michael Simmons ("Simmons") and Charles D. Kittle ("Kittle") respectively, opposed the relocations. For the reasons set forth herein, in Storrie v. Simmons, the Court reverses the final Order of the Circuit Court of Berkeley County, West Virginia, and remands for entry of an order granting Storrie's Motion for Modification and establishing a new parenting plan. In Kittle v. Burke, the Court affirms the final Order of the Circuit Court of Ohio County, West Virginia, denying Burke's Petition for Modification, but remands the case for reconsideration of the parenting plan now in effect, to ensure that the terms of the plan are in accordance with the children's best interests.
I.
FACTS AND PROCEDURAL HISTORY
Because each of the two actions consolidated for the purposes of this appeal has a distinct set of facts, the factual and procedural history of each is addressed separately.
A. Storrie v. Simmons
Storrie and Simmons were married in 2000, and their union produced two sons, A.S., born in 2001, and J.S., born in 2003.[1] The couple divorced in July 2007 and Storrie was awarded primary custodial responsibility of the children. The custody agreement gave Simmons visitation with the children on Wednesday nights from 5 p.m. to 7 p.m. during the school year, as well as three weekends a month, every other week during the summer, and fifty percent of any school vacation time at holidays. Storrie was designated the "custodial parent" for state and *73 federal law purposes, but each parent was permitted to claim one child on their taxes. They shared decision-making responsibility.
In 2007, Simmons moved from Berkeley County, West Virginia, where Storrie lives with the children, to Waynesboro, Pennsylvania, with his girlfriend, Anne Clark. Waynesboro is approximately forty-five minutes from Storrie's residence in Berkeley County, so Simmons continued to see the children at the regularly-scheduled times.
In July 2008, Storrie filed a Notice of Relocation and Motion to Modify the custody arrangement with the Family Court of Berkeley County, West Virginia. She had remarried in 2007 and her new husband, Robert Ricks, an active duty member of the U.S. Marines, had been reassigned to Camp Lejeune in North Carolina. Accordingly, Storrie sought the family court's permission to move with the two children to Topsail Island, North Carolina, which is next to Camp Lejeune. She submitted a proposed parenting plan in which the children would reside with her in North Carolina during the school year, but would spend half of their summer vacation, a week at Christmas, half of their Thanksgiving and spring breaks, as well as "any other times agreed on by parties," with their father. Notably, while not documented in the record on appeal, Storrie asserts in her appellate brief that, after submitting her original proposed parenting plan, she further agreed that, in addition to half of all holidays, the children could stay with their father for eight weeks in the summer, as well as one weekend a month. She contends that she agreed to drive the children from North Carolina to West Virginia for those monthly visits. She further asserts that, under this proposed plan, Simmons would have essentially the same amount of time with the children as he does under the current parenting plan.[2] Simmons objected to Storrie's motion for modification.
Despite finding that Storrie had exercised the significant majority of custodial responsibility and that her proposed relocation was in good faith, for a legitimate purpose, and to a reasonable location in light of that purpose, the Family Court of Berkeley County, West Virginia, denied Storrie's Motion for Modification in a final Order issued on November 21, 2008. It noted that the relocation would significantly impair Simmons's ability to exercise his custodial time under the current parenting plan, and found that it is not practical to revise the parenting plan to accommodate the relocation and maintain the same proportion of time between the parents. After reviewing reports from Bernard Lewis, PhD, a clinical psychologist who interviewed the children, and Susan Lohman, a custody evaluator whom the court appointed to complete a custody investigation pursuant to West Virginia Code § 48-9-301 (2009),[3] the family court noted that the children were strongly bonded with their father, and found that the move would harm their relationship with him, as well as their relationship with *74 their paternal grandparents and their father's girlfriend. The family court ultimately concluded that the relocation was not in the children's best interest and, thus, denied the motion.
Storrie filed a Petition for Appeal of the family court's Order with the Circuit Court of Berkeley County, West Virginia. On January 23, 2009, the circuit court summarily denied, without a hearing, Storrie's petition. It is from this denial that Storrie appeals.
B. Kittle v. Burke
Burke and Kittle divorced in October, 2002, and Burke was awarded primary custody of their two daughters, K.K., born in 1996, and H.K., born in 1999. Under the original parenting plan, Burke and Kittle shared decision making responsibility, Burke retained physical custody of the children, and Kittle was granted visitation "at such reasonable and convenient times as the parties may agree on." For federal and state statutory purposes, the custodial split was designated as seventy percent of time with mother, thirty percent with father.
Immediately following the divorce, Burke moved with the children from Martinsburg, West Virginia, where they had resided with Kittle, to Wheeling, West Virginia. Kittle remained in Martinsburg for several years. In October 2004, Burke remarried and subsequently had two sons with her new husband, Sean Burke. In the fall of 2005, Kittle moved to Wheeling with his new girlfriend, Erin Greenfield, in order to be closer to his daughters. In early 2006, with Kittle now living in the same town as the children, Kittle and Burke agreed to a new parenting plan, splitting custody of K.K. and H.K. evenly. The plan provided that, during the school year, the children would spend Mondays and Tuesdays with their mother, Wednesdays and Thursdays with their father, and alternate between the two parents on the weekends (Friday-Sunday). Summer break and holidays were split between the parents. For child support purposes, Burke was allocated 183 overnights and Kittle 182 overnights.[4]
In October 2007, Burke filed a petition with the Family Court of Ohio County, West Virginia, seeking to modify the parenting plan to allow her to relocate with the girls to Irmo, South Carolina, where her husband had been offered a new job. Sean Burke, a computer programmer, had been recruited for a management position and offered a $13,000 a year pay increase, as well as a starting bonus. In filing her Petition for Modification, Burke proposed a new parenting plan in which Kittle would have custody of the children approximately 94 days a year. Specifically, she proposed that the girls reside with her in South Carolina during the school year, but visit their father one weekend a month during January, February and October. Additionally, she proposed that the children spend nine weeks with their father during the summer, as well as all spring breaks and alternating holidays.
Kittle opposed the Petition for Modification, and both parties made cross-claims of unfitness. Kittle alleged that Burke's new husband had engaged in several incidences of domestic violence, used drugs, and had harbored a fugitive at one time. Burke asserted that Kittle himself engaged in domestic violence when they were married and, while she admitted that her husband had used drugs in the past, she indicated that he had undergone treatment and was now clean. She further asserted that she had been the only source of stability in the children's lives, and argued that, while she is a stay-at-home mother, Kittle's work hours as a police officer are not conducive to being the primary custodian.
The family court appointed a guardian ad litem for the children. After an extensive three-day hearing, including over eighteen hours of testimony and an in camera interview with the children, the family court concluded that both parents are fit, and that both Burke's new husband and Kittle's live-in *75 girlfriend are also appropriate care-givers for the children. The family court noted that, in its in camera interview, the children indicated close bonds with both parents and a desire to continue to split time evenly between the two.[5] The family court concluded that the proposed relocation was in good faith and for a legitimate purpose, however, it determined that the move was not to a "reasonable location" in light of (1) the substantial adverse impact it would have on Kittle's relationship with his children, (2) the substantial travel between households which would be necessary, plus the cost of that travel, (3) the adverse impact on the children's relationships with their extended family, and (4) the adverse impact on the continuity of the girls' schooling.
After denying the Petition for Modification, the family court indicated that, should Burke choose not to relocate in light of the court's ruling, the parenting plan then in effect would remain unchanged. In the event, however, that Burke would choose to relocate without her daughters, the family court ordered that the parenting plan proposed by Kittle in his response to Burke's petition be implemented.
Burke appealed the family court's ruling to the Circuit Court of Ohio County, West Virginia, which affirmed the decision. While that appeal was pending, Burke moved to South Carolina with her new husband and their two sons. As a result, the family court implemented Kittle's proposed parenting plan and, thus, the girls currently reside with Kittle and his girlfriend in Wheeling, West Virginia.
Burke now appeals from the April 8, 2009, final Order of the Circuit Court of Ohio County, West Virginia, affirming the family court's denial of her petition for modification.
II.
STANDARD OF REVIEW
Storrie asks this Court to review the decision by the Circuit Court of Berkeley County, West Virginia, refusing to review the family court's Order denying her Motion for Modification. Similarly, Burke seeks review of the final order of the Circuit Court of Ohio County, West Virginia, affirming the family court's denial of her Petition for Modification.
In reviewing a final order entered by a circuit court judge upon a review of, or upon a refusal to review, a final order of a family court judge, we review the findings of fact made by the family court judge under the clearly erroneous standard, and the application of law to the facts under an abuse of discretion standard. We review questions of law de novo.
Syllabus, Carr v. Hancock, 216 W.Va. 474, 475, 607 S.E.2d 803, 804 (2004).
III.
DISCUSSION
The two actions presented in this consolidated appeal both involve the interpretation and application of West Virginia Code § 48-9-403, which provides for modifications of parenting plans, when one parent seeks to relocate the children. Under that statute, when a parent who has been exercising some amount of custodial responsibility pursuant to a judicially-entered parenting plan decides to relocate, such parent must notify any other parent who has also been accorded custodial responsibility under the plan. Id. at § 48-9-403(b). The notice must provide the date, address and location of the proposed relocation, as well as a proposed modified parenting plan. Id. In the event that the relocation would significantly impair the other parent's ability to exercise his or her custodial responsibilities under the parenting plan, the relocation is considered a "change in circumstances" and the reviewing court must consider several factors in determining whether to permit the relocation of the child. Id. at § 48-9-403(a) & (c).
*76 When the relocation would create a "change in circumstances," the statute directs courts to "if practical, revise the parenting plan so as to both accommodate the relocation and maintain the same proportion of custodial responsibility being exercised by each of the parents." Id. Accordingly, the statute contemplates that a parent seeking to relocate the children should be able to do so, as long as the "proportion" of custodial responsibility allocated between the parents can remain the same, and the revisions to the parenting plan are "practical." In making such revisions, a court may consider additional costs resulting from the relocation, and may allocate them between the parties in an equitable manner. Id.
In the event, however, that the relocation "renders it impractical to maintain the same proportion of custodial responsibility as that being exercised by each parent, the court shall modify the parenting plan in accordance with the child's best interests" and in accordance with several principles set forth thereafter. Id. at § 48-9-403(d). First, a court must determine which parent, if either, "has been exercising a significant majority of the custodial responsibility." Id. at § 48-9-403(d)(1)-(2). "The percentage of custodial responsibility that constitutes a significant majority of custodial responsibility is seventy percent or more." Id. at § 48-9-403(d)(1).
If one parent has been exercising a significant majority of custodial responsibility, that parent "should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose." Id. (emphasis added). "A relocation is for a legitimate purpose if it is ... to be with one's spouse who is established, or who is pursuing a significant employment or educational opportunity, in another location." Id. "A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving or by moving to a location that is substantially less disruptive of the other parent's relationship to the child." Id.
Alternatively, if neither parent has been exercising a significant majority of custodial responsibility, but the proposed relocation is in good faith, for a legitimate purpose and to a location that is reasonable in light of that purpose, "the court shall reallocate custodial responsibility based on the best interest of the child, taking into account all relevant factors including the effects of the relocation on the child." Id. at § 48-9-403(d)(2).
In the event that the court concludes that the proposed relocation is not in good faith, for a legitimate purpose, or to a location that is reasonable in light of that purpose,
the court may modify the parenting plan in accordance with the child's best interests and the effects of the relocation on the child. Among the modifications the court may consider is a reallocation of primary custodial responsibility, effective if and when the relocation occurs, but such a reallocation shall not be ordered if the relocating parent demonstrates that the child's best interests would be served by the relocation.
Id. at § 48-9-403(d)(3). Thus, where neither parent has been exercising a majority of custodial responsibility, or where the parent seeking to relocate is not doing so for a legitimate purpose, the court must modify the parenting plan according to the child's best interests.
In light of this statutory framework, the Court now turns to the specific facts of each of the instant actions to determine whether the respective courts below properly applied the provisions of West Virginia Code § 48-9-403.
A. Storrie v. Simmons
In Storrie v. Simmons, Storrie, the mother seeking to relocate to North Carolina with her two sons, argues that the lower courts' Orders denying her Motion for Modification should be reversed on two alternative grounds. First, she contends that her proposed parenting plan allocates essentially the same proportion of days to Simmons that he is enjoying under the current parenting plan. Thus, she argues that, under West Virginia Code § 48-9-403(c), the family court was obligated to allow her to relocate to North Carolina with the children, because it was "practical" to modify the parenting plan to "both accommodate the relocation and maintain *77 the same proportion of custodial responsibility being exercised by each of the parents." Id.
This argument, however, may be quickly dismissed. Although Storrie contends that she proposed a parenting plan that would continue to provide the "same proportion of custodial responsibility" to each parent, the record contains no documentation by which this Court can review that assertion. In fact, the proposed plan contained in the record does not allocate the same proportion of custodial responsibility to Simmons. Although Storrie may have orally modified her proposal by volunteering to drive the children to West Virginia once a month, no such modification is documented in the record and there are no transcripts of the family court hearing. Moreover, Simmons disputes Storrie's assertion that her proposed parenting plan would have allocated essentially the same proportion of custodial responsibility between the parents that currently exists. Consequently, this Court cannot find that the family court abused its discretion in holding that it was impractical to modify the parenting plan in a manner that continues to allocate the same proportion of custodial responsibility to each parent.
The Court, however, agrees with Storrie's second basis for reversal, specifically that the family court abused its discretion in denying her motion for modification under West Virginia Code § 48-9-403(d). As previously noted, the family court found that, prior to filing her motion, Storrie had been exercising a "significant majority," or at least seventy percent, of the custodial responsibility for the two children. Moreover, the family court concluded that Storrie's proposed relocation was made in good faith, for a legitimate purpose, and to a location that was reasonable in light of that purpose. Indeed, because relocating to join a spouse who is pursuing a significant employment opportunity is, by statute, for a "legitimate purpose," see W. Va.Code § 48-9-403(d)(1), and because Storrie is seeking to relocate close to Camp Lejeune, North Carolina, where her new husband has been stationed as a Marine, there can be no doubt that Storrie's relocation meets the statutory requirements in this regard. See id. Nevertheless, the family court denied Storrie's motion.
In reaching its conclusion, the family court stated that, although Storrie met the statutory criteria under West Virginia Code § 48-9-403(d)(1), "the Court must ultimately look to the children's best interests." It then concluded that the relocation to North Carolina was not in the children's best interests because it would "necessarily and significantly impair the strong bond" between Simmons and the children, as well as impairing the children's relationships with their father's girlfriend and their grandparents. Simmons argues that the family court's decision was proper because this Court has repeatedly held that the children's best interests are the "polar star" by which all custody decisions should be made. See, e.g., In re Ryan B., 224 W.Va. 461, ___, 686 S.E.2d 601, 607 (2009) ("As this Court has frequently emphasized, the best interest of the child is the polar star by which all matters affecting children must be guided.").
While the best interests of the children are always of fundamental importance in determining matters of custody and visitation, the family court in this action abused its discretion in its application of West Virginia Code § 48-9-403. As this Court has previously stated, "[t]he primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syl. Pt. 7, Dan's Carworld, LLC v. Serian, 223 W.Va. 478, 677 S.E.2d 914 (2009). Indeed, where "the legislative intent is clearly expressed in the statute, this Court is not at liberty to construe the statutory provision, but is obligated to apply its plain language." Id. at 484, 677 S.E.2d at 920.
The Legislature has clearly expressed its intent in the statute at issue here. The statute specifically provides that, when a relocation would render it impractical to maintain the same proportion of custodial responsibility,
the court shall modify the parenting plan in accordance with the child's best interests and in accordance with the following principles:
*78 (1) A parent who has been exercising a significant majority of the custodial responsibility for the child should be allowed to relocate with the child so long as that parent shows that the relocation is in good faith for a legitimate purpose and to a location that is reasonable in light of the purpose.
W. Va.Code § 48-9-403(d) (emphasis added). Thus, the plain language of the statute clearly provides that, when the factors set forth in subsection (1) are met, the Court should allow the parent who has been exercising the significant majority of custodial responsibility to relocate with the children, and shall modify the parenting plan accordingly, in a manner that is in the children's best interests. See id.
Notably, this Court has previously admonished the lower courts for failing to adhere to the plain language of this statute. In In re Visitation and Custody of Senturi N.S.V., 221 W.Va. 159, 652 S.E.2d 490 (2007), a mother of a child who had been exercising a substantial majority of the custodial responsibility decided to relocate to Texas in order to return to school and be near her family. Id. at 163, 652 S.E.2d at 494. The father objected and the family court allowed the father's cousins, who had acted as the child's caregivers, to intervene. Id. The family court ultimately denied the mother's petition for relocation, and ordered the mother to share custody of the child with the intervenors, finding that they were the child's "psychological co-parents." Id. The circuit court affirmed this decision. Id.
On appeal, this Court reversed, finding that the cousins had no standing to intervene, and that the family court had focused on the wrong issues when denying the mother's petition and re-allocating custody. Id. at 165, 652 S.E.2d at 496. The Court specifically found that the family court should have focused on "evaluating the legitimacy and reasonableness" of the contemplated relocation, as directed by the statute. Id. at 164, 652 S.E.2d at 495. While the facts of Senturi are significantly different from those presented here, in both cases, the family court ignored the clear statutory directive that permits a parent who has been exercising a substantial majority of custodial responsibility to relocate with the child when the move is legitimate and reasonable.
Accordingly, because the plain language of West Virginia Code § 48-9-403(d) directs that Storrie, as the parent exercising the primary custodial responsibility for her children, should be allowed to relocate with the children, the Court reverses the circuit court's decision, and remands for entry of an order granting Storrie's motion for modification and establishing a new parenting plan that is based on the best interests of the children in light of the relocation.
B. Kittle v. Burke
The facts of Kittle v. Burke differ from those of Storrie v. Simmons in one very important respect. Burke, the mother seeking to relocate with her two daughters to South Carolina, had not been exercising a "significant majority" of the custodial responsibility when she filed her Petition for Modification. Indeed, Burke shared the custodial responsibility for her daughters with her ex-husband, Kittle. Consequently, the applicable statutory provision is West Virginia Code § 48-9-403(d)(2), which provides:
If a relocation of the parent is in good faith for legitimate purpose and to a location that is reasonable in light of the purpose and if neither has been exercising a significant majority of custodial responsibility for the child, the court shall reallocate custodial responsibility based on the best interest of the child, taking into account all relevant factors including the effects of the relocation on the child.
(Emphasis added.) The family court, therefore, had wide discretion to determine whether the girls' best interests would be served by allowing them to relocate with their mother or by reallocating primary custodial responsibility to their father.
Burke contends that the family court abused its discretion by basing its decision regarding the reasonableness of the location on facts not supported in the record and further that the family court improperly emphasized the effects of the relocation on Kittle's rights, rather than focusing on whether relocation was in the children's best interests.[6]*79 While the family court's findings of fact regarding the reasonableness of the proposed location are confusing at best, it properly based its ultimate conclusion on the best interests of the children and, thus, the rulings below denying Burke's petition for modification are affirmed.
Pursuant to West Virginia Code § 48-9-403(d)(2), which applies when neither parent has been exercising a significant majority of custodial responsibility, the family court was first obligated to consider whether Burke's proposed relocation was made in good faith, for a legitimate purpose, and to a location that is reasonable in light of that purpose. Id. The family court clearly found, in its "conclusions of law," that Burke was acting in good faith and that the proposed relocation was for a legitimate purpose. It did not, however, specifically address whether the new location was reasonable. Instead, the family court concluded that
the relocation is not reasonable in light of the substantial adverse impact it will have on the father's parent-child relationship, the effective stripping away of the bond between the father-daughter, the substantial travel between the parties' respective households, the adverse impact upon the children's relationship with extended family, and the adverse impact upon the continuity of the children's schooling.
(Emphasis added.)
During the hearing on the Petition for Modification, both parties presented evidence and testimony relating to the "reasonableness" of the new location. Burke's new husband, Sean Burke, testified that he had tried to find a management position in the Wheeling area, but had been unsuccessful. Similarly, a personnel recruiter who had approached Sean Burke about the new position, submitted an affidavit stating that no comparable job opportunities were available to Sean Burke in the Wheeling-Pittsburgh area. The guardian ad litem interviewed Sean Burke's prior employer and verified that no management positions were available to Sean Burke at that employer at that time. Kittle did not present any evidence to show that similar management positions would be available to Sean Burke at a closer location.
Despite this testimony, the family court stated in its findings of fact that, while no evidence had been presented to indicate that Sean Burke could have found a comparable job closer to Wheeling, Burke had failed to prove that no comparable jobs were available in other nearby locations such as Columbus, Ohio, Akron, Ohio, Cleveland, Ohio, or Cincinnati, Ohio, all of which are within two to four hours of Wheeling. Burke argues that, in so finding, the family court improperly substituted its own findings of fact for the uncontroverted evidence presented at the hearing, and then improperly concluded that her relocation was to an unreasonable location.
While the Court agrees with Burke that the evidence presented at the hearing indicated that the new location was, in fact, reasonable in light of the legitimate purpose, see W. Va.Code § 48-9-403(d)(2), it cannot find that the family court abused its discretion in denying the Petition for Modification. Pursuant to West Virginia Code § 48-9-403(d)(2), even if the family court had clearly found that the relocation was to a reasonable location, it would then be directed to "reallocate custodial responsibility based on the *80 best interest of the child, taking into account all relevant factors including the effects of the relocation on the child." Here, the family court clearly considered the appropriate factors and based its ultimate decision on the best interests of the children. Accordingly, any error that may have occurred in the family court's findings of fact on whether the proposed location was reasonable is harmless. See, e.g., Syl. Pt. 4, Burns v. Goff, 164 W.Va. 301, 262 S.E.2d 772 (1980) ("An error which is not prejudicial to the complaining party is harmless and does not require reversal of the final judgment.").
Burke additionally argues that the family court improperly focused on whether the relocation would be fair to Kittle, instead of focusing on the children's best interests. She contends that the family court should have focused on the factors contained in West Virginia Code § 48-9-102 (2009), which provide that a child's best interests are served by facilitating:
(1) Stability of the child;
(2) Parental planning and agreement about the child's custodial arrangements and upbringing;
(3) Continuity of existing parent-child attachments;
(4) Meaningful contact between a child and each parent;
(5) Caretaking relationships by adults who love the child, know how to provide for the child's needs, and who place a high priority on doing so;
(6) Security from exposure to physical or emotional harm; and
(7) Expeditious, predictable decision-making and avoidance of prolonged uncertainty respecting arrangements for the child's care and control.
Id. at § 48-9-102(a)(1)-(7). Contrary to Burke's assertions, however, the family court did consider the relevant factors under this statute. For example, it considered the first factorthe stability of the childrenand found that their stability would be disrupted by the move, noting that both girls had been in the Ohio County school system for a number of years, and that relocation would interrupt the continuity of their education. Moreover, the family court noted that Burke had failed to present any evidence indicating that the children would have access to better schools or other opportunities in South Carolina.
Similarly, in considering the third and fourth factors, the continuity of existing parent-child relationships and meaningful contact between a child and each parent, the family court correctly noted that the relocation would necessarily interfere with the children's relationships with one of their parents. Given that the girls had been spending over fifty percent of their time with their father, the family court did not err in noting the adverse impact that the relocation would have on that relationship. Finally, the family court also noted that relocation would separate the children from their extended families on both sides, a significant number of whom live in the Wheeling area, and with whom the children are close.
Thus, Burke has failed to present any basis on which this Court can find that the family court abused its discretion in denying the petition for modification. As the family court noted, this is a case in which both parents are fit and the children are strongly bonded to each of them. Under such circumstances, and because neither party had been exercising a significant majority of the custodial responsibility when the petition was filed, the family court had wide discretion in determining whether relocation was in the best interests of the children and, thus, this Court affirms the circuit court's decision in this action.
The Court remands the case, however, for reconsideration of the parenting plan that is currently in effect. When Burke moved to North Carolina, the family court summarily adopted the parenting plan proposed by Kittle in his response to Burke's Petition for Modification. The record reveals no indication that the family court considered whether Kittle's proposed plan actually reallocates custodial responsibility in a manner that is in the children's best interests, as required by West Virginia Code § 48-9-403(d)(2).
*81 A parent's relocation, regardless of whether the children are relocating as well, will necessarily require modification of an existing parenting plan and will often result in significant changes to the division of custodial responsibility. West Virginia Code § 48-9-403(d) clearly provides that such modifications be in accordance with the children's best interests, a directive that courts should not take lightly. Relocation will inevitably result in the children losing time with one parent, and courts should take careful pains to minimize the amount of time lost, while ensuring that the new plan is practical and reasonable. Merely adopting one parent's proposed parenting plan will not necessarily result in a plan that is in the children's best interests.
The strong policy of both the relocation statute and this Court's case law recognizes that children have a right to full relationships with both of their parents and, therefore, courts are required to enter parenting plans that promote and strengthen those relationships.[7]See, e.g., John P.W., on Behalf of Adam and Derek W. v. Dawn D.O., 214 W.Va. 702, 709-10, 591 S.E.2d 260, 267-68 (2003) ("Children need the support, love, and encouragement of both parents when those parents are available, as any child psychologist will readily attest. The parent who has physical custody of children in a divorce setting has the best opportunity and indeed has an obligation as a parent who is supposed to be acting in the best interests of his child to encourage contact and foster visitation with the non-custodial parent, barring reasonable cause to believe that such visitation will put the child in jeopardy of harm. To act otherwise, is clearly to deny that child a critical part of his development and to deny the non-custodial parent her liberty interest in guiding the child to adulthood."). Moreover, this Court has previously recognized that, "[i]n considering visitation issues, the courts must also be mindful of facilitating the right of the non-custodial parent to a full and fair chance to continue to have a close relationship with his children." Syl. Pt. 9, White v. Williamson, 192 W.Va. 683, 453 S.E.2d 666 (1994).
Under the parenting plan proposed by Kittle and adopted by the family court, Kittle has primary custody of the children, while Burke is entitled to parenting time on the second weekend of the month during January, February, and October, nine weeks during the summer, and the following holiday schedule: every other Easter, every other Thanksgiving, three days at Christmas, Mother's Day weekend, the Fourth of July, and five hours on her birthday. Burke is required to provide all transportation between West Virginia and South Carolina for this parenting time.
The parenting plan adopted by the family court places significant travel obligations on Burke while seeming to unnecessarily curtail the amount of parenting time allotted to her during certain school breaks. Of particular concern, Burke is expected to deliver the children to West Virginia for holidays, such as Father's Day, that fall during the time that she would otherwise have the children in South Carolina. In the absence of findings on the record to explain such a requirement, the Court cannot understand how requiring Burke and the children to travel nearly eight hours in both directions for one day of parenting time with their father is in the children's best interests.
Because the family court adopted Kittle's proposed parenting plan without considering whether the terms of the plan are in the children's best interests, and without considering the effect of the plan on Burke's ability to continue to have close relationships with her children, the Court remands the case for reconsideration of the parenting plan now in effect to ensure that is "in accordance with the child[ren]'s best interests." See W. Va. Code § 48-9-403(d).
IV.
CONCLUSION
A. Storrie v. Simmons
For the reasons stated herein, the Court reverses the final Order of the Circuit Court *82 of Berkeley County, West Virginia, entered on January 23, 2009, and remands the action with instructions to enter an order granting Storrie's Motion for Modification and modifying the parenting plan in accordance with the children's best interests in light of the relocation.
Reversed and Remanded with Instructions.
B. Kittle v. Burke
The Court affirms the final Order of the Circuit Court of Ohio County, West Virginia, entered on April 8, 2009, denying Burke's Petition for Modification, but remands the action with instructions to reconsider the existing parenting plan to ensure that the terms of the plan are in accordance with the children's best interests.
Affirmed, in part, and Remanded with Instructions.
NOTES
[1] The Court's "customary practice in cases involving minors is to refer to the parties' children by their initials rather than by their full names." Howell v. Goode, 223 W.Va. 387, 388 n. 2, 674 S.E.2d 248, 249 n. 2 (2009).
[2] Without providing any documentation to support this assertion, Storrie contends that the newly proposed parenting plan would reduce Simmons' total parenting time by only two days.
[3] Both Dr. Lewis and Ms. Lowman's reports indicated that the boys are well-adjusted, well-behaved children who are strongly bonded to both parents. No abuse or neglect is present in either home. The reports further indicate that both boys are also bonded with their step-father, Rick, and with their father's live-in girlfriend, Anne, and that they have a good relationship with their paternal grandmother, who also resides in Berkeley County, West Virginia.
Ms. Lowman's report indicated that each parent is capable and loving and that the boys wish to continue to live with their mother, but have frequent visits with their father. She therefore recommended that Storrie be permitted to relocate the boys to North Carolina and that Simmons be granted visitation with the boys one weekend a month during the school year, as well as alternate holidays and all but two weeks of their summer vacation. Although Simmons requested the custody investigation, the family court split the cost of the evaluation between the parties, with Simmons paying $440.00 and Storrie paying $390.00.
Dr. Lewis's report, on the other hand, which was very favorable to Simmons, recommended that the relocation be denied, finding that the move would interfere with the boys' relationships with their father, their father's girlfriend and their paternal grandmother. In compiling his report, Dr. Lewis interviewed the boys, Simmons, his girlfriend, Anne, and Simmons's mother. Dr. Lewis did not interview Storrie or her husband or any of Storrie's family, however. Moreover, Dr. Lewis's report was requested and paid for by Simmons.
[4] A subsequent Order regarding a Motion to Modify child support issued by the Family Court in September 2007, actually credits Kittle with 191 overnights and Burke with 174 overnights. Kittle explains in his brief that Burke had the girls every second and fourth weekend of a month, while Kittle had the girls on the first, third, and when applicable, fifth weekends of every month. Thus Kittle actually exercised slightly more than fifty percent of the custodial responsibility under that parenting plan.
[5] Citing the children's anxiety and hesitation to testify, the family court sealed the in camera testimony, and did not disclose whether either child had expressed a preference for living with one parent over the other. Because, at the time of the family court hearing, K.K. and H.K. were twelve and nine years old, respectively, they were not yet of the age at which the family court would have been required to accommodate their "firm and reasonable preferences," as required by West Virginia Code § 48-9-206(a)(2).
[6] Burke also argues that family court's ruling should be reversed because the guardian ad litem failed to advocate on behalf of the children, instead advocating for Kittle's interests. She argues that the guardian ad litem, in his testimony before the family court, improperly focused on the "fairness" of the move to Kittle, and that the guardian should have interviewed the children independently.
Whether or not the guardian properly performed his duties in this action, however, is not a basis upon which Burke can seek to overturn the lower court's decision. The family court properly appointed a guardian ad litem to provide "a full and independent investigation of the facts involved in the proceeding," and to make a recommendation to the court. See W. Va. Trial Court Rule 21.03. The family court was not obligated to follow the guardian ad litem's recommendation; rather, it was free to give whatever weight and credibility it chose to the guardian ad litem's report and testimony. That Burke may not have agreed with the guardian ad litem's testimony is irrelevant; this Court will only consider whether the family court's findings of fact were clearly erroneous, or whether it abused its discretion in the application of West Virginia Code § 48-9-403.
[7] For obvious reasons, the promotion of such parent-child relationships is only appropriate in the absence of abuse and neglect.
| {
"pile_set_name": "FreeLaw"
} |
129 P.3d 193 (2006)
204 Or. App. 61
Emil MARICICH Jr., Appellant,
v.
Robert LACOSS, Respondent.
0305-04888; A126427.
Court of Appeals of Oregon.
Argued and Submitted November 23, 2005.
Decided February 1, 2006.
*194 Brooks F. Cooper, Portland, argued the cause for appellant. With him on the briefs were James R. Cartwright and Brooks F. Cooper.
Terrance C. Hunt, Portland, argued the cause and filed the brief for respondent.
Before EDMONDS, Presiding Judge, and BREWER, Chief Judge, and WOLLHEIM, Judge.
EDMONDS, P.J.
Plaintiff appeals a judgment dismissing without prejudice his complaint against defendant on the ground of forum non conveniens. Plaintiff contends that the court acted sua sponte in ordering the dismissal and that there was no legal or factual ground for such a dismissal. Defendant responds that the basis of the trial court's ruling was raised in defendant's answer and addressed in his motion for summary judgment. We reverse and remand.
Plaintiff filed this action against defendant, the current trustee of a trust of which plaintiff is a beneficiary, seeking an accounting, defendant's removal as trustee, and a surcharge for a breach of fiduciary duty in which defendant allegedly appropriated trust assets for his own use. Defendant answered, asserting in part that Oregon lacked jurisdiction over the case because he resides in California, that the trust is administered in California, and that all trust assets are located in California or in states other than Oregon. Defendant then moved for summary judgment, asserting, in part, in a supporting affidavit, that he did not misuse the assets of the trust and that plaintiff had failed to join all necessary parties. The motion also included an assertion that plaintiff's action was properly within the jurisdiction of California courts and that Oregon's "long arm" jurisdiction did not apply. Defendant also argued that the trial court should not exercise jurisdiction because the California courts had "primary" jurisdiction over the entire case, or, if the trial court did exercise jurisdiction, it should apply California law, or exercise jurisdiction only over his conduct that occurred in Oregon. Plaintiff responded, arguing that under Oregon's conflict of laws rule, Oregon law should apply because it is the state with the most significant contacts with the trust. Plaintiff also argued that defendant had contacts with Oregon sufficient to give rise to personal jurisdiction.
At the start of the hearing on the motion for summary judgment, the trial court stated that it could not grant the motion on the grounds advanced by defendant based on the evidentiary record before it. The court then proposed,
"I looked at this thing then as really a motion for this Court to consider itself as a forum non-conveniens, which is really what's going on, and I understand that, if it is not convenient and should be elsewhere in California, that I simply dismiss the case with leave to file the thing in California. And I think that's what you're asking for, [defendant], on that convolutiveness [sic].
"* * * * *
"And, I can, as I understand it, treat your motion that way, even though it's denominated a motion for summary judgment. It's really a motion forum non conveniens."
The court later stated that
"I look at this thing as a forum non conveniens issue. I'm not reaching the merits of anything else, but I have told you that, it seems to me, that if I reach those merits on all if I decided this was the convenient forum, I'd deny all your summary judgment requests because it seems to me there's a question of fact on all that stuff."
*195 Defendant agreed with the court, urging that plaintiff had no legally cognizable interest in the trust until after the settlor died in California, and that the "center of gravity" for plaintiff's claims was in California. Plaintiff objected, arguing in part that he was not prepared to litigate a forum non conveniens issue because it had not been raised in the motion for summary judgment and, in plaintiff's view, was not properly before the court. The trial court disagreed with plaintiff, stating that the forum non conveniens issue had been "extensively briefed" by defendant, and that "I am treating this motion for summary judgment as an addition to a motion for summary judgment on the factual merits, a motion for dismissal, based on forum non conveniens, and that's the motion that I am granting." The trial court later signed an order stating that
"The Court, having reviewed the motion, affidavits, responses and the pleadings and files herein, the Court finds that Defendant's Motion for Summary Judgment should be treated as a motion to dismiss for forum non conveniens.
"NOW, THEREFORE, IT IS HEREBY ORDERED that:
"Defendant's motion to dismiss plaintiff's Amended Complaint for forum non conveniens is granted."
Pursuant to the order, the court later issued a general judgment of dismissal without prejudice.
On appeal, plaintiff argues that the trial court erred in sua sponte dismissing the complaint on a ground not raised in the summary judgment motion, that the doctrine of forum non conveniens is not applicable because it is not recognized in Oregon, and that, if it is recognized, it should not be applied in this case, which had been pending for 16 months before the trial court's order. Defendant responds that the trial court did not act sua sponte because he pleaded lack of jurisdiction as an affirmative defense in his answer and addressed the forum non conveniens issue in his motion for summary judgment, and that, therefore, the trial court could properly consider the issue of forum non conveniens as part of his motion for summary judgment. Defendant also argues that there have been no trust assets in Oregon since 2002, that plaintiff's claims arise from defendant's conduct while the settlor and the trustee resided in California, and that plaintiff's failure to join the other three beneficiaries of the trust are additional reasons to defer jurisdiction to California.
The issue whether a court has jurisdiction and the issue whether a court should defer its jurisdiction in favor of another forum are discrete issues. Here, plaintiff argued that the trial court had jurisdiction over defendant under ORCP 4 E(3), which gives the court jurisdiction over a defendant when the action "[a]rises out of a promise, made anywhere to the plaintiff or to some third party for the plaintiff's benefit, by the defendant to deliver or receive within this state or to send from this state goods, documents of title, or other things of value." ORCP 4 E(3) applies to an out-of-state trustee's explicit or implicit promise to make distributions to a beneficiary within Oregon. Dreher v. Smithson, 162 Or.App. 645, 650, 986 P.2d 721 (1999), rev. den., 329 Or. 589, 994 P.2d 130 (2000). However, an exercise of jurisdiction over an out-of-state trustee must also comport with due process of law. Id. at 650, 986 P.2d 721.
In comparison, the dismissal of a case for forum non conveniens presumes that the trial court has jurisdiction, but defers its jurisdiction in favor of the jurisdiction of another court.[1]See, e.g., Novich v. McClean, 172 Or.App. 241, 251, 18 P.3d 424, rev. den., 332 Or. 137, 27 P.3d 1043 (2001) (under the doctrine of forum non conveniens, a court may dismiss an action when, despite the existence of subject matter jurisdiction, personal jurisdiction, and proper venue, trying the case elsewhere would best serve the convenience of the parties and the ends of justice). See also C.O.W., Inc. v. M.V.D., 37 Or.App. 73, 75 n. 2, 586 P.2d 107 (1978) ("While a court having jurisdiction may decline to exercise it on the basis of forum non conveniens * * *, absent jurisdiction, the issue cannot be reached.").
Defendant's arguments on appeal conflate the issues of jurisdiction and forum non conveniens. Having pleaded a lack of jurisdiction in his answer as an affirmative defense, defendant could properly move for summary *196 judgment on that ground under ORCP 47. However, the trial court expressly refused to grant summary judgment on "the merits," leaving the issue whether the trial court had jurisdiction undetermined and subject to determination at trial. Even if defendant raised the issue of forum non conveniens in his motion for summary judgment (a premise with which we do not necessarily agree), the legal predicate to the exercise of the trial court's discretion to dismiss the complaint on that ground was a finding that the trial court had jurisdiction over defendant, a finding that the trial court expressly refused to make. Absent that finding, the trial court abused its discretion in dismissing the case for forum non conveniens.
Defendant argues in the alternative that the trial court's dismissal of the case is "right for the wrong reason." Under that doctrine, we may in our discretion affirm a ruling of a trial court, even if the trial court's legal reasoning for the ruling was erroneous, if (1) the facts of the record are sufficient to support the proffered alternative basis; (2) the trial court's ruling is consistent with the view of the evidence under the alternative basis; and (3) the record is materially the same as would have been developed had the prevailing party raised the alternative basis for affirmance below. Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634, 659-60, 20 P.3d 180 (2001). Here, defendant's motion for summary judgment requested in part that the case be dismissed without prejudice because plaintiff had failed to join all necessary parties, that is, the other beneficiaries of the trust, two of whom opposed the suit. In the alternative, defendant argued that the missing parties should be joined, although he questioned whether the trial court had personal jurisdiction over them because they resided in California. In his response, plaintiff argued that, as he sought relief only against the trustee personally, the other beneficiaries were unnecessary to the case. He also argued that the two beneficiaries opposed the suit only because one beneficiary was defendant's wife and the other had received loans from the trust made by defendant.
At the hearing on the motion for summary judgment, the trial court stated that it would not address the joinder issue because it was dismissing the case on forum non conveniens grounds. As a result, it is not clear whether the court, if it had determined that it had jurisdiction over the beneficiaries and that they were necessary parties, would have dismissed the case on that issue, or would have allowed a motion to amend the pleadings to join the other beneficiaries, as defendant intimated. Therefore, even if we agreed with defendant's argument that plaintiff failed to join necessary parties, we cannot assume the trial court would have dismissed the case for that reason, and we decline to exercise our discretion to affirm on that ground.
Reversed and remanded.
NOTES
[1] We assume, for purposes of this case, that the doctrine can be applied in Oregon courts.
| {
"pile_set_name": "FreeLaw"
} |
682 So.2d 392 (1996)
Ex parte PHILADELPHIA LIFE INSURANCE COMPANY.
(In re Jerri Lynn HENSLEY, et al. v. PHILADELPHIA LIFE INSURANCE COMPANY and Linda Baird).
1950477.
Supreme Court of Alabama.
August 2, 1996.
*393 Ollie L. Blan, Jr., Thomas M. Eden III and Howard K. Glick of Spain & Gillon, Birmingham, and Thomas H. Young of Rogers, Young & Wollstein, Anniston, for Petitioner.
Frederick T. Kuykendall III, Joe R. Whatley, Jr., Peter H. Burke and Richard P. Rouco of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for Respondents.
INGRAM, Justice.
The defendant Philadelphia Life Insurance Company petitions this Court for a writ of mandamus directing the Calhoun Circuit Court to vacate its order granting the plaintiffs' motion to compel discovery and denying Philadelphia Life's motion for a protective order. Philadelphia Life contends that the trial court abused its discretion in compelling it to fully respond to the plaintiffs' discovery requests rather than limiting the scope of the requests and granting a protective order.
The writ of mandamus is an extraordinary writ available to provide relief for "a party [who] seeks emergency and immediate appellate review of an order that is otherwise interlocutory and not appealable." Rule 21(e)(4), Ala.R.App.P. In order for this Court to issue a writ of mandamus, the petitioner must show: "(1) a clear legal right ... to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So.2d 889, 891 (Ala.1991).
The plaintiffs, Larry Hensley and Jerri Lynn Hensley, allege the following facts: The Hensleys, owners of Riteway Beauty Supply, Inc., were interested in purchasing for themselves and their employees life insurance policies that would provide a source of retirement income. They discussed their needs with Linda Baird, an agent for Philadelphia Life. The Hensleys allege that Baird represented to them that Philadelphia Life had life insurance policies that would provide them with a guaranteed amount of retirement income and with a death benefit. They also allege that Baird told them that Riteway would be entitled to a tax deduction for premiums it paid on behalf of its employees. Based upon this information, the Hensleys purchased the Philadelphia Life policies. The Hensleys were never able to obtain the appropriate tax forms from Baird in order to take the promised tax deductions. The Hensleys later discovered that they could not claim the tax deduction. They also discovered that the policies did not provide the cash values represented by Baird. Finally, they discovered that in regard to the Hensleys and one of the employees Baird had made false representations on the applications regarding whether they were tobacco smokers.[1]
*394 On December 14, 1994, the Hensleys sued Baird and Philadelphia Life. Along with the complaint, the Hensleys served Baird and Philadelphia Life with interrogatories and a request for production of documents. Baird and Philadelphia Life had 45 days to respond to the discovery, their responses being due in late January 1995. However, on January 16, 1995, Philadelphia Life removed the action to a Federal district court. On March 10, 1995, the Federal court, holding that it did not have subject matter jurisdiction, remanded the case to the Calhoun Circuit Court. On April 19, 1995, Philadelphia Life sought review by filing a "petition for extraordinary writ" with the Court of Appeals for the Eleventh Circuit. On April 26, 1995, the Eleventh Circuit denied that petition.
In the meantime, the date for Philadelphia Life's discovery responses had passed, with no responses being filed. In response to a letter from the Hensleys, Philadelphia Life hand delivered draft responses to the discovery requests, with objections to certain requests. Dissatisfied with Philadelphia Life's response, the Hensleys filed a motion to compel discovery. In turn, Philadelphia Life filed for a protective order. Over six months later, on November 14, 1995, the trial court granted the Hensleys' motion to compel and denied Philadelphia Life's motion for a protective order. The trial court also denied Philadelphia Life's "motion to reconsider."
During the six-month interim before the trial court granted the Hensleys' motion to compel, the Hensleys and Philadelphia Life reached a settlement concerning responses to the discovery requests. Philadelphia Life had objected to interrogatories 10, 11, and 13, and requests for production 12 and 13, contending that the information sought by them was irrelevant and not reasonably limited in scope, time, or geographical area. The Hensleys agreed to allow Philadelphia Life to limit its responses to Alabama and the past five years. However, the Hensleys made their settlement agreement contingent upon the trial court's denial of their motion to compel, because the Hensleys contended that Philadelphia Life had waived its right to object to the discovery requests by not objecting within the 45 days. As previously noted, the trial court granted the Hensleys' motion to compel and ordered Philadelphia Life to fully respond to the discovery requests.
The interrogatories and requests for production at issue read as follows:
"[INTERROGATORY] 10. IDENTIFY in complete detail, all complaints PHILADELPHIA LIFE has received from any of its insureds or other PERSONS, regarding or relating to any agent of PHILADELPHIA LIFE falsifying documents, or providing misleading and inaccurate information upon any application of insurance, or misrepresenting the value and terms of a product which PHILADELPHIA LIFE sold.
"[INTERROGATORY] 11. IDENTIFY in complete detail, any and all prior lawsuits against PHILADELPHIA LIFE, or settlements of any prior lawsuits against PHILADELPHIA LIFE, wherein an agent of PHILADELPHIA LIFE had falsified documents, or had provided misleading and inaccurate information upon any application of insurance, or had misrepresented the value and terms of a product which PHILADELPHIA LIFE sold.
". . . .
"[INTERROGATORY] 13. IDENTIFY in complete detail, any and all instances wherein PHILADELPHIA LIFE has declared one of its insurance policies invalid, or denied payment on one of its insurance policies, because the smoking status of the insured had been misrepresented on the application of insurance."
"[REQUEST FOR PRODUCTION] 12. Any and all documents which refer to, relate to, mention, discuss or show, any agent of PHILADELPHIA LIFE falsifying documents, or providing misleading and inaccurate information upon any application of insurance, or misrepresenting the value and terms of a product which PHILADELPHIA LIFE sold.
*395 "[REQUEST FOR PRODUCTION] 13. Any and all documents which refer to, relate to, mention, discuss or show, any prior lawsuits against PHILADELPHIA LIFE, or settlements of any prior lawsuits against PHILADELPHIA LIFE, wherein an agent of PHILADELPHIA LIFE had falsified documents, or provided misleading and inaccurate information upon any application of insurance, or misrepresented the value and terms of a product which PHILADELPHIA LIFE sold."
Philadelphia Life contends that the trial court abused its discretion by not placing what it considered to be reasonable time and area limitations on the discovery requests, given that the Hensleys had previously agreed to accept such limitations, regardless of whether their agreement was contingent upon the trial court's ruling. The Hensleys contend that the trial court did not abuse its discretion in ordering Philadelphia Life to respond, because, they say, Philadelphia Life had waived any objections it might have to the interrogatories and requests for production.
The Alabama Rules of Civil Procedure are construed broadly to allow parties to obtain information needed in the preparation of their case. See Ex parte Asher, Inc., 569 So.2d 733 (Ala.1990); Ex parte Clarke, 582 So.2d 1064 (Ala.1991). The discovery process may lead to information helpful in choosing the strategy of a case. It may also steer a party's attorney to discover that, in fact, there was no actionable conduct and that the case may be dismissed. In its decisions regarding discovery, the trial court is vested with a considerable, although not unlimited, amount of discretion.
In Ex parte Stephens, 676 So.2d 1307 (Ala. 1996), this Court stated that the first step in determining whether a court has abused its discretion is to determine the particularized need for discovery, in light of the nature of the claim. As noted in Stephens, this Court has held that a party alleging fraud is entitled to a broader range of discovery than is usually allowed, because of the greater difficulty in proving fraud. See also Ex parte Rowland, 669 So.2d 125 (Ala.1995).
We cannot say that the trial court abused its discretion in refusing to impose time and area limitations on the discovery requested by the Hensleys. Under Rule 26(b)(1), Ala.R.Civ.P., parties are entitled to discover "any matter, not privileged, which is relevant to the subject matter involved in the pending action." Furthermore, that Rule provides that "[i]t is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." Evidence of similar fraudulent acts is admissible to prove an alleged fraudulent scheme. Ex parte Georgia Casualty & Surety Co., 531 So.2d 838 (Ala.1988). Furthermore, in order for this Court to issue the writ of mandamus, Philadelphia Life must show a clear legal right to the relief sought. See Alfab, supra. It has not made that showing.
The information sought by the Hensleys could lead to the discovery of admissible evidence. The trial court determined that the discovery requested was proper. The broad scope of discovery allowed by our rules necessarily requires that the trial court be vested with considerable discretion in ruling on such matters. Ex parte Georgia Casualty, supra.
Because we find no abuse of discretion, the petition for the writ of mandamus is due to be denied.
WRIT DENIED.
SHORES, HOUSTON, KENNEDY, COOK, and BUTTS, JJ., concur.
HOOPER, C.J., and MADDOX, J., dissent.
HOOPER, Chief Justice (dissenting).
The trial court should have imposed limits on the plaintiffs' discovery requests for information regarding other policyholders of Philadelphia Life. The plaintiffs' request for information as to any past "pattern and practice" on the part of the defendant is extraordinarily broad. According to Rule 26(c), Ala. R. Civ. P., information sought through discovery must be limited to a reasonable geographical area, a reasonable time period, and a reasonable scope of inquiry.
*396 The trial court did not impose any geographic limits on discovery. "Alabama does not have the power ... to punish [a defendant] for conduct that was lawful where it occurred and that had no impact on Alabama or its residents. Nor may Alabama impose sanctions on [a defendant] in order to deter conduct that is lawful in other jurisdictions." BMW of North America, Inc. v. Gore, ___ U.S. ___, ___, 116 S.Ct. 1589, 1597-98, 134 L.Ed.2d 809 (1996). The plaintiffs' discovery request should be limited to events that occurred in the State of Alabama within a certain limited time and should cover only claims and disputes that are similar to those involved in this case. I think this Court should issue a writ of mandamus directing the trial court to enter a protective order to prevent unreasonable discovery.
NOTES
[1] From the limited information provided in the mandamus petition, we cannot tell what harm the Hensleys allegedly suffered because of this alleged misrepresentation.
| {
"pile_set_name": "FreeLaw"
} |
936 F.2d 520
Bobby Jean McKISSICK, Plaintiff-Appellant,v.Donald BUSBY; City of Millbrook, Alabama; James Owens;Arvil Minor; Walter Hubbard, Defendants-Appellees.
No. 90-7013Non-Argument Calendar.
United States Court of Appeals,Eleventh Circuit.
July 22, 1991.
Bobby Jean McKissick, pro se.
Joe C. Carroll, Clark & Scott, Birmingham, Ala., for defendants-appellees.
Appeal from the United States District Court For the Middle District of Alabama.
Before TJOFLAT, Chief Judge, HATCHETT and DUBINA, Circuit Judges.
PER CURIAM:
1
This case is remanded to the district court because the district court erred by holding that the appellant's claim was barred by the statute of limitations.
FACTS AND PROCEDURAL HISTORY
2
On March 24, 1989, Bobby McKissick filed a complaint under 42 U.S.C. Sec. 1983, alleging that officers of the Millbrook, Alabama, police department violated his constitutional rights when they arrested him June 11, 1984, for manufacture of and possession with intent to distribute marijuana. He named as defendants the City of Millbrook; Donald Buzbee (designated as Donald Busby in the complaint), the police chief; and James Owens, Arvil Minor, and Walter Hubbard, police department employees (collectively, the city).
3
McKissick alleged that upon his arrest, police officers brought him to the Millbrook police department where Minor and Busby ordered him to drink wine, and that when he began to feel the effects of the alcohol, all of the individual defendants forced him to sign a consent form allowing police to search his car and home. He also alleged that the city refused to provide him with his heart medication or food during the nine hours that he was in custody, and that this left him feeling ill and in pain. McKissick seeks monetary damages from the city.
4
The city moved for summary judgment on the merits and also argued that the statute of limitations had expired on McKissick's claim. The district court ordered McKissick to respond to the motion, and he filed a document realleging the facts of his complaint. The magistrate judge recommended that the district court grant the city's motion on the ground that the statute of limitations had expired. In the recommendation, the magistrate judge did not construe the document McKissick filed as a response, but based his decision on the complaint and the city's motion. McKissick did not object to the report and recommendation, and the district court adopted it.
DISCUSSION
5
The only issue we discuss is whether the district court erred in granting summary judgment to the city on the ground that the statute of limitations barred McKissick's claim. We independently review the district court's ruling concerning the applicable statute of limitations. See Baker v. Gulf & Western Industries, 850 F.2d 1480 (11th Cir.1988).
6
Although McKissick did not directly address the statute of limitations question on appeal, we assume that he did raise the issue because it was the sole ground for the district court's grant of summary judgment. The city contends that a one-year statute of limitations was in effect on McKissick's claim on the date the alleged incident occurred, and that because McKissick did not file his claim until more than five years after the alleged incident, the claim is time barred.
7
On the date of the alleged incident, no set statute of limitations for section 1983 actions existed; instead, federal courts utilized the state's most analogous common law cause of action, and applied its statute of limitations. See Wilson v. Garcia, 471 U.S. 261, 267-68, 105 S.Ct. 1938, 1942, 85 L.Ed.2d 254 (1985). When McKissick's claim arose, the analogous Alabama statute of limitations was the one-year statute for trespass on the case, found in Alabama Code Sec. 6-2-39(a)(5) (Michie 1977). Before one year had passed on McKissick's claim, the Alabama Legislature repealed Alabama Code Sec. 6-2-39 effective January 9, 1985, and changed the statute for McKissick's cause of action to two years. Ala.Code Sec. 6-2-38(l ) (Michie Supp.1990). The district court failed to note that the one-year statute was repealed.
8
The applicable statute of limitations is generally the one in effect at the time the claim is filed, not at the time the cause of action arose. Tyson v. Johns-Manville Sales Corp., 399 So.2d 263, 269 (Ala.1981). Although courts will not apply this principle to revive a cause of action which is already time barred prior to the effective date of the new statute, McKissick's cause of action was still viable at the time the statute of limitations was extended. See Jones v. Preuit & Mauldin, 876 F.2d 1480, 1484 (11th Cir.1989) (en banc) (Jones II.) Therefore, the new two-year statute would have applied to McKissick's claim.
9
The statute of limitations issue becomes more complicated because on June 21, 1985, before the two-year period created by Alabama Code Sec. 6-2-38(l ) expired, we held that the proper statute of limitations for a section 1983 action arising in Alabama was six years. Jones v. Preuit & Mauldin, 763 F.2d 1250, 1256 (11th Cir.1985) (Jones I ), cert. denied, 474 U.S. 1105, 106 S.Ct. 893, 88 L.Ed.2d 926 (1986). Further complicating the issue, in 1989, two months prior to the date McKissick filed his claim, the Supreme Court indicated in Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), that the holding in Jones I was incorrect, and that the applicable statute of limitations for Alabama section 1983 cases is two years. See Owens, 488 U.S. at 246 n. 9, 109 S.Ct. at 580 n. 9. See also Jones II, 876 F.2d at 1483.
10
Because Owens's two-year statute of limitations was in effect at the time McKissick filed his complaint, McKissick's claim is timely only if the holding in Owens is not applied retroactively to his case, and the Jones I six-year limitation period is applied instead. In determining whether an opinion should be denied retroactive effect, we consider (1) whether the decision establishes a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) whether retroactive application will enhance or inhibit the purpose behind the rule established by the new decision; and (3) whether retroactive application would be inequitable. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971).
11
Applying the Chevron Oil test, it appears that Owens overruled the clear precedent established in Jones I. Additionally, it would be inequitable to apply the holding in Owens to bar McKissick's claim. McKissick did not file his complaint until after Jones I had been decided, and could have relied on the precedent set by Jones I in waiting over five years to do so. We conclude that Owens does not retroactively bar McKissick's claim. See Kimbrough v. Bowman Transportation, Inc., 920 F.2d 1578, 1582-83, vacated on other grounds, 929 F.2d 599 (11th Cir.1991).
12
The city also contends that because McKissick failed to submit sworn testimony in response to its affidavits rebutting his version of the facts, the district court's grant of summary judgment can be upheld on substantive grounds. Because the district court granted summary judgment solely on statute of limitations grounds, it did not address whether any genuine issues of material fact remained. As a general rule, we will not consider issues which the district court did not decide. Clark v. Coats & Clark, Inc., 929 F.2d 604 (11th Cir.1991). Thus, we remand to give the district court an opportunity to determine this issue.
CONCLUSION
13
For the above reasons, we reverse and remand for proceedings consistent with this opinion.
REVERSED and REMANDED
| {
"pile_set_name": "FreeLaw"
} |
272 F.2d 62
UNITED STATES of America, for use and benefit of CONSTRUCTION PRODUCTS CORP., Appellant and Cross-Appellee,v.BRUCE CONSTRUCTION CORPORATION et al., Appellees and Cross-Appellants.BRUCE CONSTRUCTION CORPORATION et al., Appellants and Cross-Appellees,v.UNITED STATES of America, for use and benefit of CONSTRUCTION PRODUCTS CORP., Appellee and Cross-Appellant.
No. 17689.
United States Court of Appeals Fifth Circuit.
November 30, 1959.
Marion E. Sibley, Thomas Barkdull, Jr., Sibley, Grusmark, Barkdull & King, Miami Beach, Fla., for appellant and cross-appellee.
Joseph F. Jennings, H. Reid DeJarnette, Dixon, DeJarnette, Bradford, Williams, McKay & Kimbrell, Miami, Fla., for Bruce Const. Corp., et al., appellees cross-appellants.
Before RIVES, Chief Judge, and TUTTLE and BROWN, Circuit Judges.
JOHN R. BROWN, Circuit Judge.
1
In this Miller Act, 40 U.S.C.A. §§ 270a-270e, suit Construction Products Corp. (Construction), a subcontractor, and Bruce Construction Corporation (Bruce), the prime contractor, asserted claims and cross claims growing out of the building of the Veterans Administration Hospital at Lake City, Florida. Each appeals from a judgment entered after a nonjury trial allowing and denying in part their respective claims.
2
The case as it comes to us has very narrow compass. To the extent that matters are factual, not legal, the Court's findings readily withstand scrutiny under the clearly erroneous concept of F.R.Civ. P. 52(a), 28 U.S.C.A. The heart of the controversy is whether, in the asserted charge-backs by Bruce against Construction allowed by the District Court, Bruce, the prime contractor, complied with the notice requirements of the contract.
3
The disputed charge-backs allowed by the District Court and of which Construction here complains fall in three groups: (1) those itemized in paragraph 6 of the Court's findings totaling $4,622.34 plus 15% administrative overhead (in the amount of $668.28 covered in paragraph 7) making a total of $5,290.62; (2) for replacement of 78 doors as required by the Veterans Administration totaling $6,007.49; and (3) for replacement by the Veterans Administration of defective sash springs totaling $2,728.05. These charge-back credits aggregate $14,026.16.
4
The basic theory of Construction, which we accept for the purposes of this appeal, is that the subcontract between it and Bruce embraced the guaranty provisions of the prime contract between the Veterans Administration and Bruce. Construction then asserts that these provisions were not complied with by Bruce. The prime contract prescribed that with respect to guaranteed work, the Contractor, on notice from the Contracting Officer, was obligated to place in satisfactory condition the guaranteed work and make good all consequential damage; and upon the Contractor's failure to so proceed, the Contracting Officer might either (1) do or have the work done by others at the Contractor's expense or (2) accept the unsatisfactory work and charge the Contractor what would have been expended to put the work in proper condition.1
5
Of course, incorporation of the prime contract into the subcontract cuts both ways. Its obvious purpose commits the subcontractor, as well as the prime contractor, to the typical government clause giving finality to the Contracting Officer's decisions on contract performance, compliance or breach.2 United States v. Moorman, 1950, 338 U.S. 457, 70 S.Ct. 288, 94 L.Ed. 256; United States v. Wunderlich, 1951, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113; 41 U.S.C.A. §§ 321, 322.
6
With respect to Group (1), no real problem arises. The Court on ample evidence found that these items, all listed on a sheet which was the subject of an extended conference in August 1955, were essentially agreed to by both parties at that time. The subsidiary items were in controversy in the conference and if, as found by the Court on disputed testimony, there was this agreement, there was then more than adequate evidence to support the implicit conclusion that if the contract guaranty terms had not been literally complied with, there was either substantial compliance or an intelligent waiver. Indeed, as to most, there was, we think, a literal compliance. For example, included within the total of $4,622.34 were substantial amounts for repainting of sashes and the installation of certain partitions about which there was overwhelming evidence, much of it in writing, notifying Construction of the defects, the necessity for corrective action, and the intention to hold Construction accountable.
7
Concerning Group (2) for replacement of 78 defective doors, the record is equally overwhelming that the Veterans Administration, to Construction's immediate knowledge, complained extensively about noncompliance of the doors with the contract specifications, and that the doors failed to comply with the overall warp allowance after hanging. Whether the guaranty provision contemplates written or oral notice is unimportant. Construction had both. So serious, indeed, was the complaint of the Veterans Administration that a general conference between executive representatives of Bruce, Construction, the Veterans Administration, the manufacturer of the doors and its Florida distributor, was convoked in Washington in 1956. And in 1957 Bruce notified Construction in writing together with the transmission of some reports from the Veterans Administration that the Administration was contending that the doors would have to be replaced, and that Construction should take the necessary steps. Construction was so concerned over this that the local Florida distributor of the doors and the Louisiana manufacturer were each notified and representatives of all three of them made an on-the-spot inspection at the Hospital.
8
It is true that according to them, the inspection was unsatisfactory and inadequate due to bureaucratic interference by the medical director of the Hospital and in fact the doors were not, in their judgment, faulty. But the Court on disputed, but adequate, evidence found the doors in fact defective. And in any case this was a determination left to the Contracting Officer whose decision has not yet been overruled by an administrative appeal. United States v. Moorman, supra; United States v. Wunderlich, supra.3
9
The matter is not quite so clear as to Group (3) for reinstallation of sash springs. But if it is assumed that the guaranty, note 1, requires written notice, the record shows at least one letter of March 27, 1956 (plaintiff's exhibit 19) from Construction to Bruce acknowledging one from Bruce "dated March 23, 1956 which asked us to take care of the spring tension balances which are broken or pulled loose from their fastenings." Construction contended it had a liability only to replace (not install) defective ones and, of course, this letter to Bruce was not an admission, or considered as such, of liability. It was sufficient, together with other evidence, however, to satisfy any notice requirement, leaving legal liability for the item to be ultimately determined. On that there can be no dispute since the subcontract clearly called for Construction to furnish all such frames, sash, spring-balances with the windows "to be delivered * * * all set up and glazed." Since the sash springs were determined to be defective by the Contracting Officer and had to be replaced after installation, the contract imposed on Construction the consequential damages. The notice requirement having been satisfied, and the deficiency being one within the guaranty, Construction must pay not what was originally expended for installation when the windows were not in place, but the amounts spent by the Veterans Administration and characterized as reasonable by competent witnesses.
10
The cross appeals of Bruce and that of its surety take little comment. Bruce in counterclaims sought damages for delay for approximately 50 days occasioned by breaches by Construction principally for furnishing sash frames which failed to comply with specifications, as well as other specified breaches. The Court struck the testimony both as to estimates of time and dollar loss, but received the proffer which appears in the record. Perhaps it might have been the better practice for the Court to have heard it and then rejected it for want of weight, but the result is the same.
11
Executives of Bruce testifying as witnesses on this point acknowledged it to be elusive and vague in nature with no way of telling with any reliability how much completion of the whole contract was really delayed through these breaches. They were equally candid as to the dollar loss which they never attempted to justify except in an averaged daily overhead figure. The testimony in this shape was insufficient on which to base a finding either of delay in point of time or loss in terms of dollars.
12
The surety's appeal is likewise of little merit. The taking by Construction of the promissory note in the amount of $25,000 (renewing an earlier one for $20,000) from Bruce did not, without proof of injury, release the surety. United States Fidelity & Guaranty Co. v. United States, 1903, 191 U.S. 416, 24 S. Ct. 142, 48 L.Ed. 242. The objection that the suit was not timely under the oneyear limitation of 40 U.S.C.A. § 270b(b) is completely without merit. The settlement of the contract was on September 30, 1955. The complaint by Construction was filed November 28, 1955. The fact that the $25,000 promissory note was not brought formally into the case by specific recital in a pleading until after the elapse of the year is of no consequence.
13
It follows that the judgment appealed from was correct and is affirmed and the cause remanded.4
14
Affirmed.
Notes:
1
"Section G * * *
"5. Guaranty:
"* * * Whenever work is required to be guaranteed, the contractor whenever notified by the Contracting Officer, must immediately (1) place in satisfactory condition in every particular any of the guaranteed work, and (2) make good all damage to the buildings and grounds, or the equipment or contents thereof if such unsatisfactory condition or damage develops within the period stipulated by the guaranty and is due to the use of materials or workmanship which are inferior, defective, or not in accordance with this contract, and must make good any work or materials, or the equipment and contents of said buildings or grounds, which are disturbed in fulfilling the requirements of this contract or of any guaranty embraced in or required hereby. * * * Upon the contractor's failure so to proceed promptly to comply with the terms of any guaranty under this contract or still running upon work originally executed by other contractors, the Contracting Officer may (1) either have such work performed as he deems necessary to fulfill such guaranties, or (2) allow such damaged or defective work * * * to remain in such unsatisfactory condition: Provided, That in either event the contractor shall promptly pay the United States such sums as were (in the first instance) expended so as to fulfill such guaranty or as it would have been (in the second instance) necessary to expend to fulfill such guaranty. All guaranties under this contract shall run from the date the work is completed, as established by the Government. * * * Everything done in fulfillment of any guaranty shall be without additional expense to the United States. * * *"
2
The contract, Section G, paragraph 5 Guaranty, note 1, supra, goes on to provide:
"The opinion of the Contracting Officer as to the liability of this contractor under any such guaranty or as to the satisfactory fulfillment or compensation for the non-fulfillment thereof will be final, subject to written appeal by the contractor, within thirty (30) days, to the Administrator, whose decision will be final and conclusive upon the parties hereto."
3
Remaining undetermined as of the date of the submission of this case was Bruce's administrative appeal from the Contracting Officer's decision covering the replacement of the 78 doors and perhaps other specific items involved in these back-charges
4
To the extent that Bruce's administrative appeal from the Contracting Officer's determination has put in issue any one or more or all of the precise items allowed by the District Court as charges-back in groups (1), (2) and (3), affirmed herein, Bruce is a Trustee as to any recoveries or allowances directly made by the final decision in the administrative appeal. Such recoveries or allowances will be held and treated by Bruce as Trustee for the use and benefit of Construction. This shall not, however, suspend or affect the finality of the judgment herein affirmed
| {
"pile_set_name": "FreeLaw"
} |
IN THE COURT OF APPEALS OF IOWA
No. 14-1332
Filed May 20, 2015
IN THE INTEREST OF A.B.,
Minor Child,
A.B., Minor Child,
Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Appanoose County, William S.
Owens, Associate Juvenile Judge.
A.B. appeals the juvenile court’s orders adjudicating him delinquent,
contending the State failed to corroborate his confessions to the acts constituting
the offenses for which he was adjudicated delinquent. AFFIRMED.
James R. Underwood, Centerville, for appellant.
Thomas J. Miller, Attorney General, Bruce Kempkes, Assistant Attorney
General, and Alan Wilson, Acting Appanoose County Attorney, for appellee
State.
Considered by Danilson, C.J., and Vaitheswaran and Doyle, JJ.
2
DOYLE, J.
A.B. appeals the juvenile court’s orders adjudicating him delinquent. He
contends the State failed to corroborate his confessions to the acts constituting
the offenses for which he was adjudicated delinquent. We affirm.
I. Background Facts and Proceedings.
In January 2014, the State filed two delinquency petitions asserting that
A.B., a minor, committed delinquent acts in connection to a fire and a theft that
occurred at A.B.’s school that, had A.B. been an adult, would have constituted
criminal offenses. The first petition alleged A.B. committed first-degree arson
and first-degree criminal mischief for unlawfully and willfully setting a fire at the
school and causing damages thereto. The second petition alleged A.B. stole
another student’s property having value in excess of $100 but not exceeding
$500, with the intent to deprive the student thereof.
A hearing on the petitions was held in March 2014, and law enforcement
and fire officials responding to the fire and theft testified. One of the officers
testified that approximately eight days after the fire occurred, A.B.’s parent spoke
with him and advised him that A.B. had stated he started the fire at the school.
A.B.’s parent agreed to allow A.B. to be interviewed, and an interview was
subsequently conducted. There, A.B. told the officer
that he took two pieces of paper out of a notebook, looked in the
hall to make sure there were no teachers around, he then went into
the lounge, walked over to the couch, set two pieces of paper on
the right side of the couch and lit them on fire.
The officer testified he believed A.B. would “have to know how [the fire] was
started to describe it the way he did.” Additionally, A.B. explained the route he
3
took in the school to avoid detection, and after viewing the school’s surveillance
video on the date of the fire, the officer believed the video corroborated the route
A.B. told him he had taken after starting the fire. There were no cameras right
outside of the teachers’ lounge, and the officer testified he did not see any other
kids in the hallways.
The same officer testified concerning the theft charged against A.B. The
officer stated a student reported someone had taken her school bag. The bag
was later discovered in a bathroom, and $130 belonging to the student was
missing from the bag. The officer watched the school’s surveillance video
corresponding with the time of the theft, and the officer testified he observed A.B.
“enter the bathroom with a bag, and then enter the bathroom with another bag.
So two separate times [A.B.] went in and out.” He testified that one of the bags
A.B. had possessed in the video was the bag that had been reported “stolen and
the money taken out of.” The officer testified he then went to A.B.’s home and
spoke with A.B. and his parent. The officer told A.B. about the video
surveillance, and A.B. “admitted to it and took [the officer] to his room to collect
the money that he’d taken.” All but $9 was recovered from A.B.
Following the hearing, the juvenile court adjudicated A.B. to have
committed delinquent acts that, had he been an adult, would have constituted
(1) reckless use of fire, in violation of Iowa Code section 712.5 (2013), and fifth-
4
degree criminal mischief, in violation of section 716.1 and .6; and (2) fifth-degree
theft, in violation of sections 714.1 and .2(5). A.B. now appeals.1
II. Scope and Standards of Review.
“Delinquency proceedings are special proceedings that serve as an
alternative to the criminal prosecution of a child.” In re A.K., 825 N.W.2d 46, 49
(Iowa 2013). Before a child can be adjudicated delinquent, the State must
overcome the presumption of innocence and prove beyond a reasonable doubt
the child engaged in delinquent conduct. See Iowa Code § 232.47(10); A.K., 825
N.W.2d at 49. Although our review is de novo, we give weight to the juvenile
court’s factual findings, particularly when considering witness credibility;
nevertheless, we are not bound by those findings. A.K., 825 N.W.2d at 49. The
overall “objective of the proceedings is the best interests of the child.” Id.
III. Discussion.
On appeal, A.B. does not dispute that he confessed to both crimes.
Rather, he contends the State failed to corroborate his confessions and prove
beyond a reasonable doubt each element of those crimes. The State argues he
failed to preserve error as to whether certain criminal procedural rules applied to
1
We observe that witness names were not placed at the top of each page where
transcript testimony appears in the parties’ appendix. See Iowa R. App. P. 6.905(7)(c)
(“The name of each witness whose testimony is included in the appendix shall be
inserted on the top of each appendix page where the witness’s testimony appears.”
(emphasis added)). By this note, we do not single out these parties or their attorneys,
for we have made similar observations in countless appeals. Our comment is directed to
the appellate bar. While the noted infraction may seem trivial, the violated rule is not just
some rigmarole designed to create more work for the appellate lawyer. Having the
name at the top of each page makes it much easier for us to navigate an appendix.
Compliance with the rule saves time, reduces frustration, and assists this court in
meeting its mandate to achieve maximum productivity in deciding a high volume of
cases. See Iowa Ct. R. 21.11.
5
his juvenile hearing, but in any event, it sufficiently corroborated his confessions
with evidence testimony at the hearing. We address their arguments in turn.
A. Error Preservation.
Under the common law rule of corpus delicti, which means “the body or
substance of the crime charged,” “an accused cannot be convicted on his or her
own uncorroborated confession without proof that a crime has been committed
by someone.” See 29 Am. Jur. 2d Evidence § 765 (2015); see also United
States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir. 2000); Gov’t of Virgin
Islands v. Harris, 938 F.2d 401, 408 (3d Cir. 1991). This rule is essentially
embodied in Iowa Rule of Criminal Procedure 2.21(4), which provides that a
defendant’s confession alone is not enough to warrant a conviction unless the
confession is either made in open court or “accompanied with other proof that the
defendant committed the offense.” See also State v. Polly, 657 N.W.2d 462, 467
(Iowa 2003). Thus, for the confession to serve as a basis for a defendant’s
conviction, “[t]he State must prove sufficient ‘other proof’ to corroborate [the
defendant’s] confession.” Polly, 657 N.W.2d at 467. However:
Corroboration need not be strong nor need it go to the whole case
so long as it confirms some material fact connecting the defendant
with the crime. The State must offer evidence to show the crime
has been committed and which as a whole proves [the defendant]
is guilty beyond a reasonable doubt. However, the “other proof”
itself does not have to prove the offense beyond a reasonable
doubt or even by a preponderance. Other independent evidence
merely fortifies the truth of the confession, without independently
establishing the crime charged. “Other proof” must support the
essential facts admitted sufficiently to justify [an] inference of their
truth.
Id. (internal citations, quotation marks, and alterations omitted). Moreover, the
“other proof” required “may be established by circumstantial evidence.” State v.
6
Stamper, 195 N.W.2d 110, 113 (Iowa 1972). “It is the court’s duty to determine
the existence of corroborative evidence and the [fact-finder’s] obligation to
determine the sufficiency of such evidence.” Polly, 657 N.W.2d at 467.
The State points out that Rule 2.21(4) does not expressly apply to juvenile
delinquency proceedings, and it argues A.B. failed to preserve for our review that
it applies here. However, the State admits that before the district court, A.B.
sought dismissal of the proceedings, asserting the State failed to supplement his
confessions with other proof. Though A.B. did not make an express argument
that the rule should apply in his delinquency proceedings, we believe his
argument was sufficient to preserve the issue for our review.
B. Reckless Use of Fire.
Iowa Code section 712.5, “Reckless use of fire or explosives,”
provides: “Any person who shall so use fire . . . as to recklessly endanger the
property or safety of another shall be guilty of a serious misdemeanor.” A.B.
argues the district court “failed to realize that [he] was never seen on the first
floor of the [school] or near the teacher’s lounge,” nor was he “seen on video until
he was on the second floor.” On our de novo review, we expressly realize these
facts. Still, there was substantial “other proof” corroborating A.B.’s confession.
The officer that interviewed A.B. testified that A.B.’s confession was
corroborated with the physical evidence—the couch was burned in the way and
location stated by A.B., and the officer did not believe someone who did not set
the fire would have known this information. Additionally, the officer testified that
A.B.’s confession was further corroborated by the video recording showing A.B.’s
exit after the fire in the manner stated by A.B. The testimony, along with the
7
photos of the couch and the video, provide other independent evidence fortifying
the truth of A.B.’s confession that he started the fire, and a factfinder would be
substantially justified in believing the evidence. Accordingly, we agree with the
district court that the State proved beyond a reasonable doubt that A.B.
recklessly used fire in violation of Iowa Code section 712.5.
C. Criminal Mischief.
Iowa Code section 716.1 defines criminal mischief as “[a]ny damage,
defacing, alteration, or destruction of property is criminal mischief when done
intentionally by one who has no right to so act.” Criminal mischief in the fifth
degree is committed if the cost of replacing, repairing, or restoring the property
that is damaged, defaced, altered, or destroyed is less than $200. See Iowa
Code §§ 716.3-.6.
Again, A.B. asserts the State failed to corroborate his confession, arguing
that the “video does not show [him] with paper and a lighter going into the
teacher’s lounge.” Nevertheless, for the reasons stated above, we find the
officer’s testimony, along with the photos of the couch and the video, provide
other independent evidence fortifying the truth of A.B.’s confession that he
started the fire, and a factfinder would be substantially justified in believing the
evidence. Accordingly, we agree with the district court that the State proved
beyond a reasonable doubt that A.B. committed the offense of fifth-degree
criminal mischief in violation of Iowa Code sections 712.1 and .6.
D. Theft.
Finally, A.B. argues the State failed to corroborate his confession that he
stole another student’s bag and $130 from that bag. A person commits a theft
8
when a person “[t]akes possession or control of the property of another, or
property in the possession of another, with the intent to deprive the other
thereof.” Id. § 714.1(1). Theft in the fifth degree is the theft of property not
exceeding $200 in value. Id. § 714.2(5).
Again, the same officer testified a student had reported a bag stolen that
contained $130, and the officer’s review of the surveillance video showed A.B. in
possession of that bag. Moreover, A.B. gave him all but $9 back after confronted
with the crime. The officer’s testimony, along with the video and money, provide
other independent evidence fortifying the truth of A.B.’s confession that he took
the bag and the cash therein, and a factfinder would be substantially justified in
believing the evidence. Accordingly, we agree with the district court that the
State proved beyond a reasonable doubt that A.B. committed fifth-degree theft in
violation of Iowa Code sections 714.1(1) and .2(5).
IV. Conclusion.
Here, A.B. confessed to starting the fire and taking another student’s bag
and the cash within that bag, and the other independent evidence presented by
the State fortified the truth of A.B.’s confessions. A factfinder would be
substantially justified in believing the evidence, and the evidence was therefore
sufficiently reliable to support the district court’s finding that A.B. committed those
delinquent acts beyond a reasonable doubt. Accordingly, we affirm the juvenile
court’s orders adjudicating A.B. as delinquent.
AFFIRMED.
| {
"pile_set_name": "FreeLaw"
} |
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 6, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee, No. 06-3423
v. (D. Kansas)
GEORGE EARL BURKS, JR., (D.C. No. 00-CR-40115-SAC)
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, A ND ER SO N and BROR BY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant/appellant George E. Burks appeals the sentence imposed
following his violation of the terms of his supervised release. W e affirm.
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
BACKGROUND
Burks pled guilty in 2001 to five counts of distributing crack cocaine and
was sentenced to sixty months’ imprisonment, followed by four years of
supervised release. The district court then revoked Burks’ initial term of
supervised release and sentenced him to three months’ custody, followed by 120
days in a half-way house. Accordingly, in M arch 7, 2006, Burks was released
from prison and entered the half-way house. On April 10, 2006, Burks left the
half-way house without permission and remained away without authorization.
As a result, on April 11, 2006, Burks’ probation officer filed a petition with
the district court, which was amended in November 2006, alleging that Burks had
violated his supervised release by (1) leaving the half-way house without
permission on April 10 and thereafter absconding from supervision, and (2) being
convicted of driving without a license and speeding in Osage County, Kansas, on
September 7, 2006.
At Burks’ revocation hearing on November 21, 2006, Burks stipulated to
the violations and the district court accordingly revoked his supervised release.
The court noted that the highest grade of violation was a Grade C under the
United States Sentencing Commission, Guidelines M anual (“USSG”), that his
criminal history was category I, and that it was imposing a tentative sentence of
twenty-one months. The court explained the sentence as follow s:
-2-
As to justification, the Court has considered the nature and
circumstances of these violations, the characteristics of the
defendant, and the sentencing objectives by statute. The Court has
also considered the advisory, non binding Chapter 7 statements
issued by the Sentencing Commission.
Tr. of H r’g at 5, R. Vol. II.
Burks then requested a sentence of twelve months and one day, even
though he acknowledged that the advisory Guideline range for the violations was
three to nine months. His counsel further conceded that “Burks admittedly just
dropped his obligations to the Court and fled to Oklahoma.” Id. at 8. Defense
counsel also admitted that “w e do recognize that M r. Burks’ conduct is
qualitatively somewhat more severe than that guideline range may generally
contemplate, which is why we aren’t opposing a sentence above” the Guideline
range. Id. at 12.
Burks’ counsel then argued for the sentence of twelve months and one day
on the ground that Burks was “somebody who hasn’t been in his entire life in any
real trouble except for the crack cocaine conviction” and further that, after
absconding from the half-way house, Burks had been in Oklahoma operating an
audio stereo business. Id. at 11-12. Burks’ counsel finally argued that Burks had
not returned to any criminal behavior.
After listening to those arguments, as well as a personal plea from Burks,
the court stated that “the defense has not convinced the Court that there should be
a different sentence than the Court has indicated originally.” Id. at 14.
-3-
Accordingly, the court sentenced Burks to twenty-one months’ imprisonment,
followed by no further supervised release.
Burks appeals, arguing that the twenty-one-month sentence, which he
characterizes as “a substantial departure from the guideline range of 3-9 months,”
was erroneously imposed because the court “failed to articulate why it imposed
this particular sentence.” Appellant’s Br. at 5.
D ISC USSIO N
“Because [Burks] did not object to the procedure by which his sentence was
determined and explained, we may reverse the district court’s judgment only in
the presence of plain error.” United States v. Ruiz-Terrazas, 477 F.3d 1196, 1199
(10th Cir. 2007). “Plain error occurs when there is (i) error, (ii) that is plain,
which (iii) affects the defendant’s substantial rights, and which (iv) seriously
affects the fairness, integrity, or public reputation of judicial proceedings.” Id.
Accordingly, we consider first whether there was error in the court’s
determination of Burks’ sentence. “In imposing a sentence following revocation
of supervised release, a district court is required to consider both Chapter 7’s
policy statements, as well as a number of the factors provided in 18 U.S.C.
§ 3553(a).” United States v. Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006)
(internal citation omitted); see also 18 U.S.C. § 3583(e). The § 3553(a) factors
include:
-4-
[T]he nature and circumstances of the offense; the history and
characteristics of the defendant; the need for the sentence imposed to
afford adequate deterrence, protect the public, and provide the
defendant with needed educational or vocational training, medical
care or other correctional treatment in the most effective manner;
pertinent guidelines; pertinent policy statements; the need to avoid
unwarranted sentencing disparities; and the need to provide
restitution.
United States v. Contreras-M artinez, 409 F.3d 1236, 1242 n.3 (10th Cir. 2005).
See 18 U.S.C. § 3553(a). The court, however, “is not required to consider
individually each factor listed in § 3553(a),” nor must it “recite any magic words
to show us that it fulfilled its responsibility to be mindful of the factors that
Congress has instructed it to consider.” United States v. Rodriguez-Quintanilla,
442 F.3d 1254, 1258-59 (10th Cir. 2006) (internal quotations omitted). Further,
we have stated that “imposition of a sentence in excess of that recommended by
the Chapter 7 policy statements of the Sentencing Guidelines w ill be upheld ‘if it
can be determined from the record to have been reasoned and reasonable.’”
United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005) (quoting United
States v. Tsosie, 376 F.3d 1210, 1218 (10th Cir. 2004)).
As the above factual recitation indicates, the district court’s explanation,
while certainly not expansive, was sufficient under our precedents. The court
explained it had considered the “nature and circumstances of the[] violations,”
“the characteristics of” Burks, the “sentencing objectives” of the statute, as w ell
as the advisory, non-binding statements of the Sentencing Commission in Chapter
-5-
7. Further, the court listened to Burks’ specific arguments why his sentence
should be different and expressly rejected them. No more specificity is required
in our circuit, as w e presume the district court has considered the appropriate
factors the court has stated it has considered. Finally, the sentence imposed was
reasoned and reasonable.
C ON CLU SIO N
For the foregoing reasons, we AFFIRM the sentence in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
-6-
| {
"pile_set_name": "FreeLaw"
} |
571 S.E.2d 810 (2002)
257 Ga. App. 157
MOORE
v.
The STATE.
No. A02A0962.
Court of Appeals of Georgia.
August 23, 2002.
Sharon L. Hopkins, Lawrenceville, for appellant.
Paul L. Howard, Jr., Dist. Atty., Amira S. AbuBakr, Asst. Dist. Atty., for appellee.
MILLER, Judge.
Following a jury trial, Jonathan Moore was convicted of possession of cocaine with intent to distribute. On appeal he contends that the trial court erred by (1) failing to grant him a directed verdict of acquittal, (2) excusing an allegedly biased juror for cause, and (3) allowing lab report evidence to go out with the jury during deliberations. We discern no error and affirm.
Viewed in the light most favorable to the verdict, the evidence reveals that a police officer was patrolling an area of Atlanta to investigate possible drug activity. The officer saw Moore speaking to two other people and approached them from behind. The officer observed Moore showing the two people some small bags of what the officer suspected was cocaine. When Moore turned around and saw the officer approaching, he tossed to the ground 15 small bags of what the officer believed to be crack cocaine. The officer arrested Moore and recovered the 15 bags of suspected crack cocaine that Moore had dropped. The substance in one of the bags was later tested and determined to be cocaine.
When the State asked during voir dire whether any of the potential jurors had been the victim of a crime, juror no. 33 responded *811 that she had been the victim of discrimination at the hands of the police. Juror no. 33 also indicated that her experience with the police had been so negative that she would have difficulty being an impartial juror at trial. Even when defense counsel attempted to rehabilitate the juror through follow-up questions, juror no. 33 indicated that, although she could follow the judge's instructions, she held a "serious bias" against police officers. The State moved to strike this juror for cause, and the court excused her. Although defense counsel argued that the juror should not be excused, he raised no objection to the court's ruling to exclude the juror, and even affirmed to the court that he was satisfied with the method through which the final jury had been selected.
In addition to the arresting officer testifying at trial regarding the events surrounding Moore's arrest, the officer who transported the seized drugs to the crime lab testified regarding his experience in making hundreds of drug arrests during his career with the police department. This officer also testified as to his experience in buying drugs in an undercover capacity and his familiarity with the street value of a bag of drugs packaged in the manner that the drugs obtained from Moore were packaged. In addition, the officer testified that, in his experience, drug transactions often take place with a pair or team of individuals conducting the sale, and that it is not unusual for a person who is arrested for possessing drugs with intent to distribute them to not be carrying a large amount of cash.
The lab report indicating that one of the seized bags contained cocaine was admitted at trial. The lab report went to the jury room during deliberations, and defense counsel stated affirmatively that he had no objection to the report going out with the jury.
Moore moved for a directed verdict, which was denied. The jury found Moore guilty of possession of cocaine with intent to distribute, and Moore now appeals.
1. Moore contends that the trial court erred in denying his motion for a directed verdict of acquittal, because there was insufficient evidence to show that he had any intent to distribute any cocaine that he allegedly possessed. We disagree.
The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. Hash v. State, 248 Ga.App. 456, 457(1), 546 S.E.2d 833 (2001). We view the evidence in the light most favorable to the jury's verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga.App. 633, 634(1), 507 S.E.2d 514 (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
"To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession." (Citations and punctuation omitted.) Sims v. State, 213 Ga.App. 151, 153(3), 444 S.E.2d 121 (1994). Intent can be inferred where the evidence establishes that the manner in which the cocaine was packaged is commonly associated with the sale or distribution of the contraband. Id. Here, based on the officer's testimony, the amount and the packaging of the cocaine were consistent with an intent to distribute. Also, these circumstances were consistent with the manner in which drug sales involving multiple parties were conducted. Viewed in the light most favorable to the jury's verdict, the evidence was sufficient to sustain the conviction. Id.
2. Moore argues that the trial court erred by excusing juror no. 33 for cause. However, Moore did not object to the trial court's ruling that the juror should be excused at the time that the ruling was made (and in fact agreed with the selection process), and has therefore presented nothing for this court to review. See Blankenship v. *812 State, 258 Ga. 43-44(2), 365 S.E.2d 265 (1988); see also Cheeks v. State, 234 Ga.App. 446, 448(2), 507 S.E.2d 204 (1998).
3. Moore also stated that he had no objection to the lab report evidence going out with the jury, thereby waiving any error relating to this issue on appeal. See Smart v. State, 253 Ga.App. 649, 654-655(8), 560 S.E.2d 92 (2002).
Judgment affirmed.
BLACKBURN, C.J., and JOHNSON, P.J., concur.
| {
"pile_set_name": "FreeLaw"
} |
835 F.2d 878
Unpublished DispositionNOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Darwin GRAVITT, Plaintiff-Appellant,v.Earl LANGLOIS, Defendant-Appellee.
No. 86-1742.
United States Court of Appeals, Sixth Circuit.
Dec. 7, 1987.
Before LIVELY, Chief Judge, CORNELIA G. KENNEDY, Circuit Judge and JOHN W. PECK, Senior Circuit Judge.
ORDER
1
This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the appellant's briefs which seek appointment of counsel, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Gravitt filed a civil rights complaint alleging that a hearing on three misconduct reports was belatedly held and that the hearing officer misused his office by imposing various sanctions against him. The district court dismissed the case as frivolous pursuant to 28 U.S.C. Sec. 1915(d).
3
Although the misconduct hearing may have been belatedly held, it did not violate appellant's rights. Mich.Adm.Code R. 791.5501(3) provides that a hearing on a misconduct report be held within 10 business days after notice of the charge unless good cause for the delay is contained in the written decision. In the instant case, the hearing was held 11 business days after the date of the misconduct reports; however, it is unknown what date the notice of the charge was given and whether the decision stated good cause for the one-day delay. The one-day delay in holding the misconduct hearing did not rise to the level of a constitutional violation. See Naegele Outdoor Advertising Co. v. Moulton, 773 F.2d 692 (6th Cir.1985), cert. denied, --- U.S. ----, 106 S.Ct. 1639 (1986).
4
The sanctions imposed by the hearing officer against the appellant did not violate his rights. The sanctions were imposed in compliance with Mich.Adm.Code R. 791.5505.
5
It is ORDERED that appointment of counsel is denied and the judgment of the district court is affirmed. Rule 9(b)(4), Rules of the Sixth Circuit.
| {
"pile_set_name": "FreeLaw"
} |
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/09/2018 08:15 AM CST
- 944 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
T. Louise Ewers, personally and as Personal
R epresentative of the Estate of Mickley
(Michael) Lynn Ellis, appellant, v.
Saunders County, Nebraska, a political
subdivision, et al., appellees.
___ N.W.2d ___
Filed February 9, 2018. No. S-17-251.
1. Pretrial Procedure: Appeal and Error. Decisions regarding discovery
are directed to the discretion of the trial court, and will be upheld in the
absence of an abuse of discretion.
2. Pretrial Procedure: Proof: Appeal and Error. The party asserting
error in a discovery ruling bears the burden of showing that the ruling
was an abuse of discretion.
3. Summary Judgment: Appeal and Error. In reviewing a summary
judgment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment was granted and
gives that party the benefit of all reasonable inferences deducible from
the evidence.
4. Pretrial Procedure: Evidence. A party’s failure to make a timely
and appropriate response to a request for admission constitutes an
admission of the subject matter of the request, which matter is conclu-
sively established unless, on motion, the court permits withdrawal of
the admission.
5. Rules of the Supreme Court: Pretrial Procedure. Neb. Ct. R. Disc.
§ 6-336 is self-enforcing, without the necessity of judicial action to
effect an admission which results from a party’s failure to answer or
object to a request for admission.
6. Rules of the Supreme Court: Pretrial Procedure: Evidence: Proof.
Neb. Ct. R. Disc. § 6-336 is not self-executing. Thus, a party that seeks
to claim another party’s admission, as a result of that party’s failure
to respond properly to a request for admission, must prove service
of the request for admission and the served party’s failure to answer
- 945 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
or object to the request and must also offer the request for admission
as evidence.
7. Rules of the Supreme Court: Pretrial Procedure. If the necessary
foundational requirements are met and no motion is sustained to with-
draw an admission, a trial court is obligated to give effect to the pro-
visions of Neb. Ct. R. Disc. § 6-336 which require that the matter be
deemed admitted.
8. Malpractice: Physician and Patient: Proof: Proximate Cause. In
a malpractice action involving professional negligence, the burden of
proof is upon the plaintiff to demonstrate the generally recognized
medical standard of care, that there was a deviation from that standard
by the defendant, and that the deviation was a proximate cause of the
plaintiff’s alleged injuries.
9. Malpractice: Physicians and Surgeons: Proximate Cause: Damages.
In the medical malpractice context, the element of proximate causation
requires proof that the physician’s deviation from the standard of care
caused or contributed to the injury or damage to the plaintiff.
10. Negligence: Proximate Cause. A defendant’s negligence is not action-
able unless it is a proximate cause of the plaintiff’s injuries or is a cause
that proximately contributed to them.
11. Negligence: Proximate Cause: Words and Phrases. A proximate cause
is a cause that produces a result in a natural and continuous sequence
and without which the result would not have occurred.
12. Proximate Cause: Words and Phrases. A defendant’s conduct is a
proximate cause of an event if the event would not have occurred but
for that conduct, but it is not a proximate cause if the event would have
occurred without that conduct.
13. Expert Witnesses: Proximate Cause. Expert testimony is almost
always required to prove proximate causation.
Appeal from the District Court for Saunders County: James
C. Stecker, Judge. Affirmed.
Larry R. Demerath, of Demerath Law Office, and Justin B.
Demerath, of O’Hanlon, McCollom & Demerath Law Firm,
for appellant.
Joseph S. Daly and Mary M. Schott, of Sodoro, Daly,
Shomaker & Selde, P.C., L.L.O., and J. Scott Paul, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., for appellees Advanced
Correctional Health Care, Inc., et al.
- 946 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
Heavican, C.J., Miller-Lerman, Cassel, Stacy, K elch, and
Funke, JJ.
K elch, J.
INTRODUCTION
This appeal arises from the in-custody death of Mickley
(Michael) Lynn Ellis. T. Louise Ewers, personally and as per-
sonal representative of Ellis’ estate, brought a wrongful death
action alleging medical malpractice by Advanced Correctional
Healthcare, Inc. (ACH), and its agents in their individual and
official capacities (collectively Appellees). Ewers also filed
suit against Saunders County, the Saunders County sher-
iff’s office, Saunders County Corrections, Saunders Medical
Center, and Dan Scott, but those causes of action are not
relevant to this appeal. Ewers now appeals from the orders
of the district court for Saunders County that denied her dis-
covery motions and granted Appellees’ motion for summary
judgment. We conclude that the district court did not err, and
we affirm.
BACKGROUND
Ellis was incarcerated in the Saunders County jail on May
27, 2010. During the morning of June 22, he spoke with
Mallory Reeves, a licensed practical nurse employed by ACH,
the medical contractor hired by Saunders County. In her notes,
Reeves stated that Ellis wanted to talk to a counselor about
nightmares he was having and that she told him to fill out a
“sick call,” which is how an inmate reports medical issues.
Instead of filling out a “sick call,” Ellis filled out a “kite”
form, which is how an inmate relays reports or requests to
jail personnel. In the form, he requested help with his night-
mares. He mentioned that he was having chest pain and “hard”
breathing when he awoke from the nightmares and that he was
waiting to find the right medication to help him. Ellis had a
history of chest pain and shortness of breath after nightmares
and, about 3 weeks prior, had been taken to a hospital for men-
tal health issues.
- 947 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
After receiving the “kite” form, jail personnel completed
an incident narrative. According to the incident narrative, jail
personnel informed Reeves of the physical complaints Ellis
described on the “kite” form, and she responded that it was not
a medical issue, as Ellis was requesting to speak with some-
one, and that there was not anything she could do for him.
At her deposition, Reeves did not recall that conversation but
admitted that chest pain was a serious complaint that could be
life-threatening. As a result of the “kite” form, an appointment
was made for Ellis to speak with a pastor.
Ellis made no further complaints until 3:40 a.m. on June
25, 2010. He told jail personnel that he was having trouble
breathing and that his back hurt. At 4 a.m., jail personnel
contacted Mary Scherling, a nurse practitioner employed by
ACH. She suggested that Ellis breathe into a bag, believing
he was having a panic attack. At 4:08 a.m., jail personnel
called Scherling back and reported that breathing into the bag
was not helping and that Ellis was now complaining of chest
pain. Scherling instructed jail personnel to take Ellis to the
hospital. At the Saunders Medical Center, Ellis was treated
for a heart attack, but he died at 6:20 a.m. from a bilateral
pulmonary embolism.
Ewers, who is Ellis’ sister, filed suit, alleging that Ellis’
death and associated damages resulted from the negligence of
Reeves and Scherling. Ewers sought damages from Reeves and
Scherling in their individual capacities and from ACH. In part,
Ewers specifically averred that as a result of the negligence of
Appellees, Ellis experienced damages and injuries, including
chest pain, trouble breathing, and nightmares.
Summary Judgment
On January 6, 2017, Appellees filed a motion for summary
judgment. The district court conducted a hearing and received
evidence. For purposes of the appeal of the summary judgment,
only the evidence relating to Reeves’ conduct is relevant.
Victoria Halstead, a registered nurse, reviewed the autopsy
report and medical records for Ellis and depositions by Reeves,
- 948 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
Scherling, the sheriff, and jail personnel. She explained in
a deposition that any person who complains of chest pain
or shortness of breath requires a face-to-face assessment.
Therefore, she opined that Reeves should have conducted an
in-person assessment of Ellis’ condition on June 22, 2010.
Further, in Halstead’s opinion, Ellis should have been taken to
a hospital to be examined by a physician that day.
Halstead conceded that other than the “kite” form that Ellis
filled out on June 22, 2010, he made no further reports of chest
pain, shortness of breath, or other issues on June 22, 23, or 24.
She stated that she could not predict whether the results of a
complete medical assessment on June 22 would have yielded
normal or abnormal results, but she suspected that the results
would have been abnormal. But she testified that she did not
have an opinion as to what a medical “workup” on June 22
would have shown.
The district court received the deposition testimony of Joyce
Black, a registered nurse with a Ph.D. in nursing who both par-
ties used as an expert witness. Ewers’ counsel conducted direct
examination for Black’s deposition, and Appellees’ counsel
cross-examined her.
Black testified that she instructs graduate students on the
subject of pulmonary embolism. To prepare for her testi-
mony, Black reviewed records from the Saunders County jail;
records of Ellis’ emergency room visits, autopsy and forensic
toxicology report, and death certificate; narratives of events
from jail personnel; and the Nebraska State Patrol investiga-
tive report.
Black explained that a blood clot, or embolus, can form,
perhaps in the leg, and that a piece of the clot can break
off and travel through the body until it becomes lodged in a
lung (a pulmonary embolism). As a result, the clot will then
block the flow of blood and oxygen to the tissue beyond
the clot, and that tissue stops functioning. She testified that
“[e]arly diagnosis is better in all cases because you want to
stop the extension and additional clots from forming, and
you do that with anti-coagulation.” But Black also stated
- 949 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
that even with early treatment, not all pulmonary embolisms
are survivable.
Black further explained that the body mounts an inflamma-
tory response to a pulmonary embolism. According to Black,
the pain is “exquisite” or “excruciating” and does not go away.
Black testified that the pain continues during the entire inflam-
matory response, which lasts about 72 hours. Black testified
that in addition to excruciating pain, someone dying of a pul-
monary embolism would experience the sensation of difficulty
breathing and possibly the feeling of impending doom. She
testified that once blood flow is completely blocked, a patient
would remain conscious for less than 1 minute.
Black testified that surgeons would remove saddle emboli,
the type that Ellis suffered, only when such emboli are posi-
tioned a certain way and that even then, there was a risk
that the clot would break during surgery and kill the patient.
She described having a patient’s family say goodbye prior to
surgery because “that’s how uniformly fatal that particular
embolus is.”
Based on Ellis’ history; his complaint on June 22, 2010;
and the absence of additional complaints until June 25, Black
offered her opinion that there was no pulmonary embolus on
June 22. Black testified with “reasonable medical certainty”
that an examination on June 22 would not have shown that
Ellis was having a medical issue or a pulmonary embolism.
She stated that if Ellis had experienced a pulmonary embo-
lism on June 22, his condition would have worsened on June
22, 23, and 24. According to Black, based on Ellis’ history of
anxiety, it was not problematic for Reeves not to examine him
on June 22.
Upon examination by Ewers’ counsel, Black agreed that if,
hypothetically, Ellis had a pulmonary embolism on June 22,
2010, then Reeves, hypothetically, should have examined him.
She also agreed that if Ellis had a pulmonary embolism on
June 22 and had been treated for it, his chances of recovery
would have been higher. Black emphasized, however, that in
- 950 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
her opinion, Ellis did not suffer a pulmonary embolism on
June 22.
The district court granted the motion for summary judg-
ment, finding no material issue of fact as to causation. It
found that there was no expert testimony establishing a causal
link between the acts of Reeves and Scherling and injuries or
damages suffered by Ellis or Ewers. Specifically, the district
court discerned no evidence that Ellis suffered a pulmonary
embolism on June 22, 2010, or that an examination of Ellis
on June 22 would have identified the presence of a pulmonary
embolism on that date. It expressly rejected Ewers’ argument
that Black’s response to a hypothetical question, that early
detection of a pulmonary embolism on June 22 could have
helped Ellis if he suffered from such condition on that day,
was sufficient to show causation, because Black did not sub-
scribe to the version of the facts presented in the hypotheti-
cal question.
Ewers now appeals the order granting summary judgment.
Discovery
In addition to challenging the summary judgment, Ewers
assigns errors pertaining to the discovery process and Appellees’
alleged failure to timely and properly respond to requests for
admission, requests for production, and interrogatories.
On April 8, 2014, Ewers filed a motion to compel discovery,
which alleged that Appellees had provided “[i]mproper and/
or inadequate” responses to certain requests for admission,
requests for production, and interrogatories, purportedly “Sent
11-20-13.”
On April 21, 2014, the district court sustained the motion
and gave Appellees another opportunity to answer Ewers’ “11-
20-13” discovery. Ewers claims that the district court allowed
Appellees 2 weeks to provide its answers.
On July 16, 2014, Ewers filed a motion to deem requests for
admission admitted and to dismiss Appellees’ answer, regard-
ing “11-20-13” discovery. Ewers contended that Appellees
had not provided the answers required by the district court’s
- 951 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
previous order. On August 18, 2014, the district court ordered
that supplemental answers and admissions be provided by
August 25 or be deemed admitted.
On September 16, 2014, Ewers filed an amended motion
to deem requests for admission admitted and to dismiss
Appellees’ answers, regarding the discovery for ACH, Reeves,
and Scherling on November 13, 2013, and March 27 and April
9, 2014. She alleged that Appellees failed to comply with the
district court’s previous order because they had not submitted
their responses to the requests for admission by August 25,
2014, and alleged such responses were improper. Further, she
alleged that Appellees had provided untimely and insufficient
responses to other requests for admission and no response to
her other requests for documents and interrogatories. Following
a hearing on September 16, 2014, the district court found that
there was not sufficient evidence to ascertain the degree to
which the requests were incomplete or had been or not been
complied with. Given this, the district court made no ruling on
the timeliness of the admissions.
On September 25, 2014, Ewers filed a motion to deem
requests for admission admitted and to dismiss Appellees’
answer, regarding the same discovery as the previous motion.
Following a hearing, Ewers filed an “Explanation of Discovery
Responses From Defendants,” which alleged that Appellees
had failed to comply with previous court orders to provide
discovery responses and Black’s expert report, or allow Ewers
to depose Jessica Young, an attorney for ACH. On October 27,
the district court’s pretrial order stated, “Rule 37 request to be
responded to within 30 days. Court will address the issue of
imposition of costs as the result of the delay in discovery at
time of trial.”
On December 5, 2014, Ewers filed a motion to deem
requests for admission admitted and to dismiss defendant’s
answer, again regarding the same discovery as the previous
motion. On December 17, the district court noted that the
record had become “voluminous and confusing” and that “it
is difficult, if not impossible for the court to ascertain what
- 952 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
has and has not been requested and what has and what has not
been appropriately answered.” It ordered the parties to submit
all discovery disputes to the district court in a specific outline
format and to meet and discuss the outline in advance of the
next hearing. The district court attached an outline form for
the parties to fill in and provided explicit instructions on how
to do so.
On February 11, 2015, Ewers filed a motion to compel “B”
discovery or, in the alternative, dismissal of Appellees’ answer,
which concerned Appellees’ responses to requests for admis-
sion and interrogatories. A hearing was held on February 23.
Ewers used a paragraph format to summarize the litigation and
did not comply with the outline format required by the district
court’s previous order, claiming at the hearing that the issues
were too complex for an outline format. On February 25, the
district court ruled that all discovery matters not presented in
the format it had ordered were waived. However, the district
court did order that all interrogatories must be signed under
oath within 10 days.
Appellees subsequently submitted responses to interrogato-
ries signed under oath by Sherri Miller, not Young, who had
previously signed the responses, but not under oath.
On April 3, 2015, Ewers filed an “Amended Motion to
Compel ‘B’ Discovery or . . . Dismissal of Defendants’
Answers and/or . . . Hold Defendants in Contempt and/or . . .
Disqualify Defendants’ Counsel for a Conflict of Interests.”
The motion stated that Appellees’ counsel had committed
repeated and intentional violations of court and ethical rules.
On April 14, the district court denied all relief requested by
Ewers’ motion.
On November 30, 2016, following the sua sponte recusal of
the initial judge, Ewers filed a motion to dismiss Appellees’
answers or, in the alternative, to deem requests for admission
admitted. The motion alleged that Appellees had repeatedly
refused to answer discovery requests, comply with orders of
the court regarding discovery, and timely answer requests for
admission. On December 30, with a new judge presiding, the
- 953 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
district court overruled the motion, finding the district court’s
previous orders were the law of the case. Regarding discovery
documents now addressed on appeal, it observed that Ewers
had refused to use the outline format ordered by the previous
judge. The district court further noted that all prior motions to
deem requests for admission admitted or dismiss Appellees’
answers were denied by the district court and that Ewers
had failed to show a fundamental change or that the earlier
orders were erroneous. In addition to denying Ewers’ latest
motion, the district court ruled that it was frivolous and granted
Appellees attorney fees of $500.
On January 27, 2017, the district court made a journal entry
memorializing that Ewers had been given 10 days to pay
the $500 attorney fees pursuant to the December 30, 2016,
order.
Ewers now appeals the order dated December 30, 2016, and
the journal entry dated January 27, 2017.
ASSIGNMENTS OF ERROR
Ewers assigns, renumbered and restated, that the district
court erred in (1) failing to correctly apply the law by not
deeming the request for admission as admitted, failing to
impose Neb. Ct. R. Disc. § 6-337 sanctions on Appellees for
failure to follow Nebraska Court Rules of Discovery in Civil
Cases, such as dismissing the answer of Appellees; (2) failing
to find there is a genuine issue of material fact in this case
and granting Appellees’ motion for summary judgment; and
(3) failing to find that Reeves was also the proximate cause of
Ellis’ pain and suffering.
STANDARD OF REVIEW
[1,2] Decisions regarding discovery are directed to the dis-
cretion of the trial court, and will be upheld in the absence of
an abuse of discretion. Moreno v. City of Gering, 293 Neb.
320, 878 N.W.2d 529 (2016). The party asserting error in a
discovery ruling bears the burden of showing that the ruling
was an abuse of discretion. Id.
- 954 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
[3] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
against whom the judgment was granted and gives that party
the benefit of all reasonable inferences deducible from the
evidence. White v. Busboom, 297 Neb. 717, 901 N.W.2d
294 (2017).
ANALYSIS
Discovery
Over the course of the litigation, Ewers filed several
motions to compel discovery, to impose sanctions, to deem
her requests for admission admitted, and to dismiss Appellees’
answers, all of which the district court denied. Now on appeal,
Ewers claims that the district court erroneously applied the
law by not deeming her requests for admission admitted
and by declining to impose § 6-337 sanctions on Appellees
for failure to follow Nebraska Court Rules of Discovery in
Civil Cases.
[4,5] Ewers correctly notes that the Nebraska Supreme
Court rules relating to discovery provide that a party may
serve on another party written requests for admission and that
unless answered, objected to within 30 days after service, or
requested to be withdrawn, the requests are deemed admitted.
See Neb. Ct. R. Disc. § 6-336. We have held that a party’s
failure to make a timely and appropriate response to a request
for admission constitutes an admission of the subject mat-
ter of the request, which matter is conclusively established
unless, on motion, the court permits withdrawal of the admis-
sion. Tymar v. Two Men and a Truck, 282 Neb. 692, 805
N.W.2d 648 (2011). We have recognized that § 6-336 is self-
enforcing, without the necessity of judicial action to effect an
admission which results from a party’s failure to answer or
object to a request for admission. Tymar v. Two Men and a
Truck, supra.
[6,7] We have noted, however, that § 6-336 is not self-
executing. Tymar v. Two Men and a Truck, supra. Thus, a party
- 955 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
that seeks to claim another party’s admission, as a result of
that party’s failure to respond properly to a request for admis-
sion, must prove service of the request for admission and the
served party’s failure to answer or object to the request and
must also offer the request for admission as evidence. Id. If the
necessary foundational requirements are met and no motion is
sustained to withdraw an admission, a trial court is obligated
to give effect to the provisions of § 6-336 which require that
the matter be deemed admitted. Tymar v. Two Men and a
Truck, supra.
In her reply brief, Ewers points to several exhibits and
argues that the record reflects compliance with the prereq-
uisites to deem requests for admission admitted pursuant to
§ 6-336. One exhibit cited is an affidavit from counsel for
Ewers verifying the accuracy of several exhibits and purport-
ing to verify delivery of discovery. The affidavit states in part,
“Exhibit 73, Delivery to ACH, 11/20/13.” Exhibit 73 itself
was not attached to the affidavit. Exhibit 73, along with other
exhibits in the record referenced by Ewers, contains the front
page of Ewers’ request for admission and the responses from
ACH. These exhibits do not contain, as required, a complete
copy of the request for admission or a copy of any certificate
of service (notice of service) that would have been completed
in conjunction with the admissions. As the district court spe-
cifically pointed out, this lack of evidence prevented it from
ruling on Ewers’ motions, and it ultimately resulted in the
district court’s requesting that Ewers set forth her requested
discovery and any alleged failure to respond in a format that
the district court could use in its determination. Ewers, how-
ever, failed to comply with the order. Consequently, we find no
abuse of discretion by the district court in declining to impose
sanctions or to deem Ewers’ requests for admission admitted
by Appellees.
Summary Judgment
Ewers assigns that the district court erred in granting
Appellees’ motion for summary judgment. As the parties
- 956 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
moving for summary judgment, Appellees had the burden
to show that no genuine issue of material fact exists and to
produce sufficient evidence to demonstrate that they were
entitled to judgment as a matter of law. See Barnes v. American
Standard Ins. Co. of Wis., 297 Neb. 331, 900 N.W.2d 22
(2017). In reviewing a summary judgment, we view the evi-
dence in the light most favorable to the party against whom
the judgment was granted and give that party the benefit of all
reasonable inferences deducible from the evidence. White v.
Busboom, 297 Neb. 717, 901 N.W.2d 294 (2017).
[8,9] Here, the substantive issue is whether there is a
genuine issue of material fact that Appellees committed medi-
cal malpractice when treating Ellis at the jail. Currently, in
Nebraska, in a malpractice action involving professional negli-
gence, the burden of proof is upon the plaintiff to demonstrate
the generally recognized medical standard of care, that there
was a deviation from that standard by the defendant, and that
the deviation was a proximate cause of the plaintiff’s alleged
injuries. Cohan v. Medical Imaging Consultants, 297 Neb. 111,
900 N.W.2d 732 (2017). In the medical malpractice context,
the element of proximate causation requires proof that the
physician’s deviation from the standard of care caused or con-
tributed to the injury or damage to the plaintiff. Id.
Ewers claims that Halstead’s expert opinion, that a medi-
cal examination should occur when someone is complaining
of chest pain or shortness of breath, is sufficient proof of
the standard of care. Therefore, Ewers contends that Reeves
should have examined Ellis in person on June 22, 2010, and
that without such an examination or admission to the hospital
on June 22, a breach of the standard of care occurred. On our
review, we give Ewers the benefit of this inference that the
standard of care had been breached by Appellees. See White v.
Busboom, supra.
[10-12] However, a defendant’s negligence is not action-
able unless it is a proximate cause of the plaintiff’s injuries
or is a cause that proximately contributed to them. Hamilton
- 957 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
v. Bares, 267 Neb. 816, 678 N.W.2d 74 (2004). A proximate
cause is a cause that produces a result in a natural and con-
tinuous sequence and without which the result would not have
occurred. Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d
17 (2010). A defendant’s conduct is a proximate cause of an
event if the event would not have occurred but for that con-
duct, but it is not a proximate cause if the event would have
occurred without that conduct. Worth v. Kolbeck, 273 Neb.
163, 728 N.W.2d 282 (2007). Appellees assert that there was
no expert testimony in this record, from anyone qualified to
render a medical opinion, that the breach of the standard of
care by Reeves on June 22, 2010, was causally connected to
the fatal pulmonary embolism suffered by Ellis on June 25.
We agree.
To support her position, Ewers points to Halstead’s testi-
mony. Although Halstead opined that Reeves breached the
standard of care, she did not causally connect Reeves’ fail-
ure to examine Ellis in person on June 22, 2010, to his fatal
pulmonary embolism on June 25, nor did she opine that
such an examination would have resulted in a different out-
come. In other words, Halstead offered no testimony show-
ing causation.
Ewers also relies on Black’s statement that “[e]arly diagno-
sis is better in all cases because you want to stop the exten-
sion and additional clots from forming, and you do that with
anti-coagulation.” She argues that this evidence translates into
causation pursuant to Richardson v. Children’s Hosp., 280 Neb.
396, 787 N.W.2d 235 (2010). In Richardson, we held that an
expert’s opinion that the outcome would have been different
had a patient, who died of necrotizing hemorrhagic pancreati-
tis, earlier received intravenous fluids was sufficiently akin to
a degree of medical certainty and was sufficient to establish
causation for purposes of a medical malpractice case. In so
holding, we reiterated the principle that expert opinion is to be
judged in view of the entirety of the expert’s opinion and is not
validated or invalidated solely on the basis of the presence or
- 958 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
lack of the magic words “‘reasonable medical certainty.’” Id.
at 405, 787 N.W.2d at 243.
In countering, Appellees note that Black’s statement that
“[e]arly diagnosis is better in all cases . . .” does not prove
causation because it was a general medical opinion taken out
of context. Appellees further assert that Ewers is misguided
in relying on Black’s hypothetical opinion that if Ellis had
been examined on June 22, 2010, and if a nonfatal pulmo-
nary embolus had been discovered on that date, his chances
of recovery would have been higher. As Black emphasized in
her testimony, the facts in Ellis’ case were different from the
facts posed in the hypothetical question. In addition, Black
opined that Ellis did not experience a pulmonary embolus on
June 22, because he did not complain of any pain from June
22 to 25 and had himself advised medical staff of his history
of anxiety-related chest pain. Black stated that if Ewers had
actually suffered a pulmonary embolus on June 22, his con-
dition would have worsened from that point forward to June
25. And the facts here show that after reporting his symp-
toms on June 22, Ellis did not complain of pain again until
June 25.
[13] Expert testimony is almost always required to prove
proximate causation. Thone v. Regional West Med. Ctr., 275
Neb. 238, 745 N.W.2d 898 (2008). In the absence of expert
testimony on causation, the finder of fact would be left to
resort to guess, speculation, or conjecture as to the issue. See
Snyder v. Contemporary Obstetrics & Gyn., 258 Neb. 643, 605
N.W.2d 782 (2000) (burden of proving cause of action is not
sustained by evidence from which jury can arrive at its conclu-
sions only by guess, speculation, conjecture, or choice of pos-
sibilities; there must be something more which would lead a
reasoning mind to one conclusion rather than to another). Our
previous cases discussing the sufficiency of expert opinions
in a medical malpractice case have held that expert medical
testimony based on “could,” “may,” or “possibly” lacks the
definiteness required to meet the claimant’s burden to prove
- 959 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
causation. See, e.g., Paulsen v. State, 249 Neb. 112, 541
N.W.2d 636 (1996). As we have observed:
Our well-known preference for the use of the phrases
“reasonable degree of medical certainty” or “reasonable
degree of probability” is an indication to courts and par-
ties of the necessity that the medical expert opinion must
be stated in terms that the trier of fact is not required to
guess or speculate at the cause of the injury.
Id. at 121, 541 N.W.2d at 643. Here, Black’s answer to a
hypothetical question assuming facts not present does not rise
to the level of certainty required and would invite the trier of
fact to speculate. Therefore, Black’s testimony on early diag-
nosis being beneficial did not establish causation as argued by
Ewers. But whether Black, a registered nurse, could render an
opinion on medical causation was not raised as an issue in this
case, and we make no comment thereon.
Ewers further claims that Appellees withheld an email from
Black which may have affected her opinions. However, Ewers
took Black’s deposition, apparently did not provide her the
email during the deposition, but ultimately named Black as her
expert even though Black had not seen the email. Under these
circumstances, Ewers had the opportunity to question Black
about the email and could have supplemented her deposition or
other discovery. Therefore, this argument has no merit.
In sum, even giving Ewers the benefit of every reason-
able inference, without any expert testimony showing that
Appellees’ actions were the proximate cause of the fatal pul-
monary embolism suffered by Ellis on June 25, 2010, or were
a cause that proximately contributed to it, the district court
correctly found that there was no genuine issue of material fact
as to causation and that Appellees were entitled to judgment as
a matter of law.
Lastly, Ewers claims that the district court erred in failing
to find that Reeves was also the proximate cause of Ellis’
pain and suffering. Ewers argues that Black’s description of
the pain inflicted by an embolus traveling through a patient’s
- 960 -
Nebraska Supreme Court A dvance Sheets
298 Nebraska R eports
EWERS v. SAUNDERS COUNTY
Cite as 298 Neb. 944
lung established proximate cause. However, this argument
also fails due to the absence of expert testimony establishing a
causal connection between Reeve’s conduct on June 22, 2010,
and the pulmonary emboli on June 25. Evidence of the pain
Ellis suffered on June 25 would apply to damages, not causa-
tion. Therefore, this assignment of error is without merit.
CONCLUSION
For the reasons stated above, we conclude that the district
court did not abuse its discretion in declining to deem Ewers’
requests for admission admitted, to dismiss Appellees’ answers
to discovery, and to sanction Appellees. Further, finding no
genuine issue of material fact as to causation, we conclude that
the district court did not err in granting Appellees’ motion for
summary judgment. We affirm.
A ffirmed.
Wright, J., not participating.
| {
"pile_set_name": "FreeLaw"
} |
777 F.2d 699
*Hamamcyv.Palo Pinto Gen. Hosp.
85-1351
United States Court of Appeals,Fifth Circuit.
11/18/85
1
N.D.Tex.
AFFIRMED
2
---------------
* Fed.R.App.P. 34(a); 5th Cir.R. 34.2.
| {
"pile_set_name": "FreeLaw"
} |
In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1675
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KENNETH A. WISCH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99-CR-608--Harry D. Leinenweber, Judge.
Argued September 26, 2001--Decided December 26, 2001
Before FLAUM, Chief Judge, and COFFEY and
MANION, Circuit Judges.
COFFEY, Circuit Judge. Kenneth A. Wisch was
indicted on twenty-two counts of violating the
Brady Handgun Violence Prevention Act, 18
U.S.C. sec. 921 et seq. Wisch pled guilty
to each one of the counts and was
sentenced to thirty-seven months in
prison and a three-year term of
supervised release, with the sentences of
incarceration and parole to run
concurrent on all counts. Wisch also was
fined $6,000. Thereafter, Wisch filed a
motion asking the district court to
correct or modify the sentence, arguing
that the sentencing guidelines had been
misapplied in one or more respects. The
trial judge denied the motion, and Wisch
appeals. We affirm.
I. FACTUAL BACKGROUND
Wisch is a federally-licensed firearms
salesman in south suburban Chicago. Under
federal law, all such dealers must
maintain certain records, known as Form
4473s, which memorialize information
about the weapons sold and the purchasers
of those weapons. Some of this
information includes: (1) the type and
serial number of the weapon; (2) the
address, date and place of birth of the
customer; and (3) the criminal history of
the customer. Furthermore, the purchaser
of a firearm must certify on Form 4473
that he is neither a convicted felon, an
illegal alien, a drug addict, nor a
fugitive from justice. It is unlawful for
a dealer to do business with someone who
refuses to affirmatively attest to these
facts.
In order to ensure that firearms dealers
are following the law and keeping
accurate records, the Bureau of Alcohol,
Tobacco and Firearms ("ATF") routinely
reviews the data submitted by dealers to
the federal government. Through its
normal law enforcement activities, ATF
became aware that some of Wisch’s Form
4473s contained various inconsistencies
and misstatements. A subsequent, more
detailed federal probe coordinated by
several ATF agents led the bureau to
conclude that Wisch was conspiring to
falsify records in order that
unidentified individuals could obtain
guns without revealing their true
identities on the forms that Wisch filed
with the government.
A grand jury returned a true bill
against Wisch in August 1999, and an ATF
agent interviewed him shortly thereafter.
Wisch admitted to the illicit sale of
several guns that the agency had
recovered in connection with several
crimes committed by other individuals in
the Chicago area, including a homicide,
an auto burglary, and a handful of drug-
and gang-related shootings. Wisch also
allowed the agent to review his customer
registry, and the agent concluded that
Wisch had falsely completed more than one
hundred Form 4473s, usually by forging
signatures on the documents. The agency
further concluded that Wisch had sold
more than sixty firearms to straw
purchasers, with full knowledge that
these buyers were providing him with
phony names and government identification
cards to obtain weapons without
subjecting themselves to federal
background checks.
Rather than proceed to trial, Wisch,
with the assistance of counsel, pled
guilty to the twenty-two charges against
him./1 The district judge accepted the
plea, referred the matter to the
probation department for a pre-sentence
report, and continued the matter for a
sentencing hearing. After reviewing the
sentencing guidelines and the client
information as applicable to the offenses
charged in the indictment, a probation
officer recommended the application of a
six-level enhancement authorized by
U.S.S.G. sec. 2K2.1(b)(1)(F) for persons
who illegally traffic in more than fifty
firearms. Because Wisch chose to sell
small, semi-automatic weapons to
customers who were concealing their true
identities and criminal backgrounds, the
officer also recommended the imposition
of a four-level enhancement allowed by
sec. 2K2.1(b)(5) for the possession or
transfer of any firearm "with knowledge,
intent, or reason to believe that it
would be used or possessed in connection
with another felony offense."
At sentencing, Wisch’s attorney attacked
only one aspect of the sentencing report:
the enhancement under sec. 2K2.1(b)(5).
Counsel began with the premise that the
Second Amendment protects the freedom of
law-abiding citizens to receive and
possess handguns within the confines of
the criminal law. Unfortunately, as
counsel acknowledged, handguns are also a
preferred weapon of criminals. Therefore,
due to the nature of demand in the
relevant market, some foreseeable number
of legally-sold guns are bound inevitably
to be resold or transferred to persons
who will use them to commit felonies.
Counsel went on to argue that gun dealers
should not be liable for the subsequent
misconduct of their customers because
such activity is beyond the intent or
control of the dealers.
We interpret counsel’s argument to have
been that weapons vendors should not be
eligible for a sec. 2K2.1(b)(5)
enhancement if the basis for such an
enhancement is activity that is lawful,
i.e., the sale of guns by a federally
licensed dealer. In response, the
district judge reasoned that Wisch pled
guilty to behavior which cannot even
remotely be equated to that of a law-
abiding salesperson. Unlike other gun
dealers who market weapons exclusively to
legitimate patrons with valid state-
issued firearms owner’s permits, and who
fill out the government registration
forms truthfully and accurately, Wisch’s
guilty plea to the charges made in the
indictment established that he: (1)
knowingly recorded false and fraudulent
information about the names of his
customers; and (2) wilfully sold handguns
without recording the proper names, ages,
and places of residence of his customers.
For these reasons and others detailed in
the record, the trial judge concluded
that Wisch had an ample basis to infer
that some of his clients were felons or
straw purchasers for felons and that his
weapons would be used in criminal
activity. The court, therefore, imposed
upon Defendant Wisch a sec. 2K2.1(b)(5)
enhancement. See United States v. Martin,
78 F.3d 808 (2d Cir. 1996) (affirming
similar ruling when dealer falsified Form
4473s in connection with the sale of
multiple low-grade handguns to same group
of customers). The court determined that
Wisch had an overall offense level of
nineteen points, which yields a
sentencing range of thirty to thirty-
seven months. After further review, the
court sentenced Wisch to the maximum
allowable term of imprisonment, a three-
year term of supervised release, and a
fine of $6,000.
II. DISCUSSION
Wisch substituted attorneys shortly
after the sentencing hearing, and his new
counsel, who also is currently
representing him on appeal, filed a
"Motion To Correct Or Modify Sentence By
A Person Who Was Sentenced To Federal
Custody." The motion asked the district
court to reconsider the sentence on the
grounds that: (1) the court had
erroneously applied the sentencing
guidelines; and (2) Wisch’s prior
attorney had rendered ineffective
assistance by failing to oppose the sec.
2K2.1(b)(1)(F) enhancement at the
sentencing hearing. The judge held a
hearing and construed the Motion To
Correct as being filed under Rule 35(c)
of the Federal Rules of Criminal
Procedure. Rule 35(c) provides that the
district court, "acting within 7 days
after the imposition of sentence, may
correct a sentence that was imposed as a
result of arithmetical, technical, or
other clear error." The district judge
focused on Wisch’s first argument and
ruled that he lacked the authority to
grant the motion, stating, "Well, it
appears to me that, clearly, this is not
the type of error that can be corrected,
anyway. So, the motion to modify is
denied." (Tr. at 6 (Mar. 9, 2001)).
In this appeal, defense counsel claims
that the district judge misunderstood the
essence of the Motion To Correct. The
motion, counsel says, was a collateral
petition for habeas relief under 28
U.S.C. sec. 2255, rather than a simple
motion for reconsideration under Rule
35(c). Counsel urges us to issue a
certificate of appealability, delve into
the merits of Wisch’s constitutional
challenge, and also consider the question
of whether the district judge clearly
erred when he applied the sentencing
guidelines. We decline to do so. We
conclude that the motion was properly
construed as having been filed under Rule
35(c), and we hold that the trial court
was without jurisdiction to hear the
motion.
A. Reading Pleadings
In situations like this, when an
appellant who was represented by counsel
argues that his pleadings have been
misconstrued, we review the district
court’s ruling for clear error. On the
one hand, to be sure, the court could
have interpreted the motion as being a
sec. 2255 petition. The motion was styled
as a "Motion To Correct Or Modify
Sentence By A Person Who Was Sentenced To
Federal Custody," and it set forth facts
and legal arguments in the format and
order suggested by Rule 2(b) of the Rules
Governing Section 2255 Proceedings. But
on the other hand, the motion neither
invoked nor even referred to sec. 2255 or
any other procedural rule. Allegations
that the district judge misapplied the
sentencing guidelines are not reviewable
under sec. 2255. Scott v. United States,
997 F.2d 340 (7th Cir. 1993).
Furthermore, Wisch’s appellate counsel
has not supplied us with any extrinsic
evidence, much less case law, that would
tend to support his ineffective
assistance claim, despite our repeated
statements that such challenges almost
always depend on the production of
evidence outside the initial record, such
as an explanation from trial counsel
about the reasons for his decisions. See,
e.g., United States v. Kellum, 42 F.3d
1087, 1095 (7th Cir. 1994) (citing Guinan
v. United States, 6 F.3d 468, 471 (7th
Cir. 1993)); see also United States v.
Bradford, 78 F.3d 1216, 1225 (7th Cir.
1996) (finding no ineffective assistance
when counsel failed to argue for downward
departure for which defendant was
ineligible).
Moreover, when Wisch’s attorney argued
this motion at the trial court level, he
gave no indication that the request was
brought pursuant to anything other than
Rule 35(c). The Government believed Wisch
was proceeding under this rule; it filed
a brief in opposition arguing that the
court could not consider the motion
because the rule’s seven-day period for
correcting sentences had expired. The
Government again raised this objection in
open court. At that time, the trial judge
proceeded to read aloud the text of Rule
35(c), thereby inviting defense counsel
either to dispute the Government’s
interpretation of the rule or to inform
the court that the Government’s argument
was irrelevant to the instant proceedings
because, in fact, the pleading was a
habeas petition rather than a motion to
reconsider. Instead of stating that he
was proceeding under sec. 2255, defense
counsel tried to convince the district
judge that his motion was timely filed.
Why argue 35(c)’s statute of limitations
if you are not bringing a 35(c) motion?
Finally, when asked about the basis of
his motion, counsel responded that he was
requesting the court to "reconsider how
the Government computed the defendant’s
sentence." (Tr. at 5 (Mar. 9, 2001)). A
request of this nature can come only
under Rule 35(c), Scott, 997 F.2d at 341,
and even then must be limited to a claim
of "arithmetical, technical, or other
clear error," Fed. R. Crim. P. 35(c),
rather than a quarrel with the court’s
discretionary application of the
guidelines to the facts of the offense.
See United States v. Porretta, 116 F.3d
296, 300 (7th Cir. 1997); United States
v. Dumont, 936 F.2d 292, 296-97 (7th Cir.
1991).
Dozens of pleadings cross the desks of
our district judges every day. When a
motion fails to invoke any
specificprocedural rule, and the district
court refuses to grant a hearing, the
court "must look to the motion’s
substance, including the relief
requested, in order to properly
characterize it." United States v.
Morillo, 8 F.3d 864, 867 (1st Cir. 1993).
If the court affords the parties an
opportunity to be heard, the moving party
has an obligation to make clear the
precise nature and procedural basis of
his motion. In this case, the district
court clearly indicated its intent to
construe Wisch’s filing as a 35(c)
petition, and defense counsel went along
with the court without objection. Such a
construction decidedly works to Wisch’s
benefit, given AEDPA’s limits on post-
conviction proceedings. We are not
convinced that the trial judge committed
clear error. See id. at 868 (finding a
"motion to correct sentence" to be "the
functional equivalent" of a Rule 35(c)
motion). Cf. Henderson v. United States,
264 F.3d 709 (7th Cir. 2001) (discussing
procedural safeguards required prior to
conversion of mislabeled Rule 33 motion
into sec. 2255 petition); Fed. R. Civ. P.
12(c).
B. 7-Day Jurisdictional Window
Having concluded that Wisch’s Motion To
Correct was brought under Rule 35(c), we
thus review de novo the legal question of
whether the district court had
jurisdiction, under the rule, to grant
Wisch’s request for relief. United States
v. Blackwell, 81 F.3d 945, 947 (10th Cir.
1996). Excluding weekends and legal
holidays, the district judge has "7 days
after the imposition of sentence" to
correct its alleged error. Fed. R. Crim. P.
45(a), 35(c). The time limit is
jurisdictional, United States v. Vega,
241 F.3d 910, 911-12 (7th Cir. 2001) (per
curiam), and, furthermore, the motion
must be ruled on by the district court
within seven days, not simply filed with
the clerk of court during that time. What
this means is that a court’s failure to
rule is functionally equivalent to an
outright denial on the merits, thus
"making the judgment final on the date
the district judge’s power to alter the
sentence expired." United States v.
Turner, 998 F.2d 534, 536 (7th Cir.
1993).
The First Circuit and we have held that
the imposition of sentence occurs on the
date the judgment is entered by the clerk
of court. United States v. Clay, 37 F.3d
338, 340 (7th Cir. 1994); Turner, 998
F.2d at 536; Morillo, 8 F.3d at 869 n.8.
The Government invites us to overrule
Clay and Turner and join five other
circuits in holding that a sentence
isimposed on the day it is orally
pronounced. See United States v. Aguirre,
214 F.3d 1122, 1125 (9th Cir. 2000);
United States v. Morrison, 204 F.3d 1091,
1093 (11th Cir. 2000); United States v.
Layman, 116 F.3d 105, 108 (4th Cir.
1997); United States v. Abreu-Cabrera, 64
F.3d 67, 73-74 (2d Cir. 1995); United
States v. Townsend, 33 F.3d 1230, 1231
(10th Cir. 1994); see also People v.
Cepeda, 1986 WL 68898 at *3 (D. Guam
1986). This is not the ideal case for
reconsidering the wisdom of our prior
decisions, given that our holding does
not turn on which interpretation of the
statute of limitations is more sound. The
trial judge orally pronounced sentence
February 16, 2001, and the clerk entered
judgment February 22, but Wisch’s motion
was not ruled on until March 9. Thus,
regardless of whether the clock began to
run on February 16 or February 22, the
trial court’s jurisdiction had lapsed
before the date of its ruling. At this
juncture, therefore, it is enough
summarily to reaffirm our belief that the
holdings in Clay and Turner are justified
by the text of the rule, congressional
intent, and compelling pragmatic
considerations. See Andrew P. Rittenberg,
Comment, "Imposing" a Sentence under Rule
35(c), 65 U. Chi. L. Rev. 285 (1998).
By applying the "Entry of Judgment Rule"
consistently with the tolling
requirements of Rule 4(b) of the Federal
Rules of Appellate Procedure, we minimize
any confusion about the appellate statute
of limitations that might lead to the
forfeiture of direct appeals due to
untimely filings./2 See United States
v. Evans, 92 F.3d 540, 545 (7th Cir.
1996). In addition, by granting district
courts several extra days to correct
clearly obvious mistakes--but not, it
must be emphasized, to reimpose sentences
based on a subsequent change of heart,
see Poretta, 116 F.3d at 300 (quoting
advisory committee notes)--we also strike
a proper balance between finality in
judgments and judicial economy. "Given
the absurdity, inefficiency, and cost of
requiring an appeal to correct an obvious
mistake, it makes sense to adopt the more
lenient standard, so long as doing so
does not open the door to abuse."
Rittenberg, supra at 312. We are unaware
of many instances when our district
courts have abused their discretionary
authority under Rule 35(c), and we are
confident that a firm application of the
rule’s narrow "clear error" standard
offers more than ample protection against
the threat of improper alterations
tosentences after they are orally
pronounced. See, e.g., United States v.
Richardson, 1996 U.S. Dist. LEXIS 21887,
1998 WL 59874 at *1 (N.D. Ill. 1998)
(acknowledging yet properly applying
rule’s harsh jurisdictional and
substantive provisions); United States v.
Mosley, 1997 U.S. Dist. LEXIS 12624, 1997
WL 534160 at *5 (N.D. Ill. 1997) (same).
We see no reason to further limit the
time period allowed for such alterations.
In the case before us, the time period
for correcting Wisch’s sentence expired
nearly a full business week prior to the
date when the district court ruled on
Wisch’s pleading. Although the district
judge could have ruled that the motion
was untimely, we also agree that it was
proper for him to have denied the motion
on the basis that he was not authorized
to grant the substantive relief sought.
"Because the district court did not
impose [Wisch’s] sentence as a result of
’arithmetical, technical, or other clear
error,’ the district court correctly held
that it lacked jurisdiction to correct
the sentence under Federal Rule of
Criminal Procedure 35(c)." United States
v. Durham, 178 F.3d 796, 800 (6th Cir.
1999).
The judgment of the district court is
AFFIRMED.
FOOTNOTES
/1 Wisch was charged with three separate crimes
relating to each of seven specific gun sales.
These charges included: (1) knowingly and wilful-
ly falsifying the true identity of the customer;
(2) wilfully selling the firearm without noting
on Form 4473 the customer’s name, age, and resi-
dence; and (3) omitting or wilfully making false
entries on the form. Wisch additionally was
charged with a single count of conspiracy to
defraud the United States by impeding, impairing
or obstructing the lawful functions of the ATF.
/2 A pending Rule 35(c) motion tolls the time for
appealing the judgment entered by the district
court. See Evans, infra at 545. In Dumont, 936
F.2d at 294, we held that a defendant could not
enjoy the benefits of tolling because he filed a
freestanding "motion to reconsider sentence"
rather than a motion which invoked Rule 35(c).
Although we commented that "motions seeking
relief that the district judge no longer is
authorized to provide . . . do not affect the
time for appeal," id., this statement must not be
read out of context. Given that a court cannot
know if it is empowered to grant relief until it
first reviews the substance of the pleading, we
did not mean to imply that a motion expressly
filed under Rule 35(c) will toll the appellate
filing deadline only if it is deemed meritorious
ex post. Any good faith motion expressly relying
on Rule 35(c) will suspend the time limits im-
posed by Federal Rule of Appellate Procedure
4(b). See United States v. Ibarra, 502 U.S. 1, 6-
7 (1991); United States v. Healy, 376 U.S. 75, 80
& n.4 (1964); United States v. Barragan-Mendoza,
174 F.3d 1024, 1026-27 (9th Cir. 1999).
| {
"pile_set_name": "FreeLaw"
} |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.