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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-2009
APRIL D. HILL, individually and on behalf of all others similarly situated,
Plaintiff - Appellee,
v.
EMPLOYEE RESOURCE GROUP, LLC; WV NEIGHBORHOOD
HOSPITALITY, LLC; NEIGHBORHOOD HOSPITALITY, INC.,
Defendants - Appellants.
Appeal from the United States District Court for the Southern District of West Virginia, at
Beckley. Irene C. Berger, District Judge. (5:16-cv-11507)
Argued: March 31, 2020 Decided: June 9, 2020
Before DIAZ and FLOYD, Circuit Judges, and ALSTON, Rossie D., United States District
Judge for the Eastern District of Virginia.
Affirmed by unpublished per curiam opinion.
ARGUED: Bradley K. Shafer, MINTZER SAROWITZ ZERIS LEDVA & MEYERS,
LLP, Wheeling, West Virginia, for Appellants. Patricia Mulvoy Kipnis, BAILEY &
GLASSER LLP, Cherry Hill, New Jersey, for Appellee. ON BRIEF: Elizabeth Ryan,
Boston, Massachusetts, Jonathan R. Marshall, BAILEY & GLASSER LLP, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant-Appellants, Employee Resource Group LLC, Neighborhood Hospitality
Inc., and WV Neighborhood Hospitality LLC (collectively, “ERG”), appeal the district
court’s order granting in part and denying in part ERG’s Motion to Enforce Arbitration
Agreement. ERG sought arbitration of the federal and state claims alleged by Plaintiff-
Appellee, April Hill, on behalf of herself and a class of similarly situated plaintiffs. The
district court denied ERG’s motion with respect to Hill and other opt-in class members for
whom ERG could produce no signed arbitration agreement. For the reasons explained
below, we affirm the order of the district court.
I.
ERG owns and operates Applebee’s Neighborhood Bar & Grill restaurants in West
Virginia, Kentucky, Ohio, Virginia, and Tennessee. Hill is a former employee of ERG’s
Applebee’s in Beckley, West Virginia.
On November 30, 2016, Hill filed suit individually and on behalf of a class of
similarly situated employees against ERG. On May 30, 2017, Hill filed a Third Amended
Complaint—the operative complaint. Hill alleges that ERG failed to pay employees the
minimum wage in violation of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et
seq., and that ERG failed to pay wages within the time required following voluntary
separation in violation of the West Virginia Wage Payment Collection Act (WVCPA), W.
Va. Code § 21-51-1 et seq.. On July 11, 2017, the district court conditionally certified the
FLSA class.
2
On March 18, 2018, ERG filed a “Motion to Enforce Arbitration Agreement” with
respect to Hill, the FLSA opt-in plaintiffs, and all members of the putative WVPCA class.
J.A. 343–44. ERG did not attach any signed arbitration agreements to its motion. Instead,
ERG attached, among other exhibits: (1) a copy of its Dispute Resolution Program booklet
containing an arbitration agreement; (2) a copy of a class action opt-in list filed by Hill
with annotated “check marks” identifying FLSA opt-in plaintiffs for whom ERG
purportedly found arbitration agreements, along with a notation that it did not have
arbitration agreements for at least 60 FLSA opt-in plaintiffs; and (3) an affidavit from
ERG’s Director of Human Resources, David Bates, attesting that all ERG employees were
expected to sign arbitration agreements before starting their employment, regardless of
location and relevant time period, and that the lack of some arbitration agreements must
have been due to recordkeeping errors.
Hill opposed ERG’s motion, arguing that ERG was unable to establish the existence
and terms of the agreements for at least 60 FLSA opt-in plaintiffs, including herself, and
that Mr. Bates’s general testimony did not establish the existence of the arbitration
agreements. 1
Shortly thereafter, ERG filed two separate notices—one attaching 21 files
purporting to contain 780 arbitration agreements, another attaching six different versions
of ERG’s Dispute Resolution Program booklets, which contained arbitration agreements.
1
In support of her opposition, Hill attached relevant portions of her deposition
testimony in which she stated that she never signed an arbitration agreement.
3
On April 6, 2018, ERG filed its reply and argued that the documents attached to its
notices provided sufficient parol evidence that every employee who worked at ERG, from
2005 to present, was bound by an arbitration agreement regardless of whether it produced
the agreement.
On August 7, 2018, the district court granted ERG’s motion to compel arbitration
only “as to potential class members for whom signed agreements have been produced.”
J.A. 2452. The district court, however, denied ERG’s motion as to class members for
whom ERG produced no signed agreements. The district court stated that “[w]ithout
testimony from those directly involved in the asserted formation of the contract or a written,
signed copy of the contract, there is little evidence to support a finding that the contract
exists.” J.A. 2451. Thus, ERG had not met its burden of demonstrating that arbitration
agreements existed for those potential class members for whom they were unable to
produce such agreements. J.A. 2451. The district court’s order instructed the parties to
supply the court with “lists of opt-in plaintiffs for whom arbitration agreements have and
have not been produced, as well as any specific employees for whom there is a dispute
regarding the existence or enforceability of an arbitration agreement.” J.A. 2452.
Per the district court’s order, on September 7, 2018, the parties reported that there
were: (1) 71 FLSA opt-in plaintiffs for whom no arbitration agreements were produced;
(2) 61 FLSA opt-in plaintiffs for whom arbitration agreements were produced; and (3) 177
FLSA opt-in plaintiffs for whom the parties disputed whether the arbitration agreements
4
were produced, because only a portion of the employment or arbitration agreement was
produced. 2
ERG timely appealed to this Court. On appeal, ERG argues that the district court
erred in not compelling arbitration for Hill and the 71 FLSA opt-in plaintiffs for whom
no arbitration agreements have been produced.
II.
On appeal, we review de novo the district court’s denial of ERG’s motion to compel
arbitration under the Federal Arbitration Act (FAA), 9 U.S.C. § 1 et seq.; see Minnieland
Private Day Sch., Inc. v. Applied Underwriters Captive Risk Assurance Co., 913 F.3d 409,
415 (4th Cir. 2019).
A.
Section 4 of the FAA authorizes a “party aggrieved by the alleged failure, neglect,
or refusal of another to arbitrate under a written agreement for arbitration [to] petition [a]
United States district court . . . for an order directing that such arbitration proceed in the
manner provided for in such agreement.” 9 U.S.C. § 4. Whether parties have formed an
agreement to arbitrate is for a district court, rather than an arbitrator, to decide. Berkeley
Cty. Sch. Dist. v. Hub Int’l Ltd., 944 F.3d 225, 234 (4th Cir. 2019).
2
In the September 7, 2018 filing, Ms. Hill reported that as to the WVPCA class, she
had identified 1,359 potential class members but that ERG had only produced 18 arbitration
agreements as to those putative class members. In the same filing, ERG asked for an
opportunity to review its records and produce documentation once the class was finalized.
This appeal does not concern any members of the WVPCA class.
5
Section 4 provides that if the “making of the arbitration agreement” is in issue, then
“the court shall proceed summarily to the trial thereof.” 9 U.S.C § 4. “[T]he court is
obliged to conduct a trial . . . when a party unequivocally denies ‘that an arbitration
agreement exists,’ and ‘show[s] sufficient facts in support’ thereof.” Berkeley, 944 F.3d at
234 (alteration in original) (quoting Chorley Enters., Inc. v. Dickey’s Barbecue Rests., Inc.,
807 F.3d 553, 564 (4th Cir. 2015)).
In deciding whether “sufficient facts” support a party’s denial of an agreement to
arbitrate, “the district court is obliged to employ a standard such as the summary judgment
test.” Id.; see also Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 978 (10th Cir. 2014)
(Gorsuch, J.) (“[T]he [FAA’s] summary trial can look a lot like summary judgment.”). If
the record reveals a genuine dispute of material fact regarding the existence of an
agreement to arbitrate, then “the ‘court shall proceed summarily’ and conduct a trial on the
motion to compel arbitration.” Berkeley, 944 F.3d at 234 (quoting 9 U.S.C. § 4.). “In other
words, to obtain a jury trial, the parties must show genuine issues of material fact regarding
the existence of an agreement to arbitrate.” Chorley Enters., 803 F.3d at 564; cf. Howard,
748 F.3d at 978 (“When it’s apparent from a quick look at the case that no material disputes
of fact exist it may be permissible and efficient for a district court to decide the arbitration
question as a matter of law through motions practice . . . .”). A factual dispute is material
if the resolution thereof “might affect the outcome of the [motion] under the governing
law.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Here, the question is whether an agreement to arbitrate exists between ERG and Hill
and the 71 FLSA opt-in plaintiffs for whom no arbitration agreements can be produced.
6
Because the issue of whether an arbitration agreement has been formed is an issue of
contract law, we “apply ordinary state-law principles that govern the formation of
contracts.” Minnieland Private Day Sch., 913 F.3d at 415 (internal quotation mark
omitted). Here, the dispute concerns putative arbitration agreements formed in West
Virginia (where Hill was employed), as well as Kentucky, Ohio, and Virginia. 3 As a result,
each of those four states’ law as it pertains to lost or missing instruments is relevant in
determining whether an agreement to arbitrate exists between the parties.
Under West Virginia state law, a “high degree of proof from one seeking to establish
a lost instrument is required,” Marshall v. Elmo Greer & Sons, Inc., 456 S.E.2d 554, 556
(W. Va. 1995), with the “proponent of a lost or missing instrument” needing to “prove its
existence and contents with clear and conclusive evidence,” Estate of Bossio v. Bossio, 785
S.E.2d 836, 841 (W. Va. 2016).
Kentucky, Ohio, and Virginia all have similarly heightened standards of proof for
proving the existence of missing or lost instruments through parol evidence. In Kentucky,
the evidence necessary to establish a lost writing must be “clear and convincing.” Alph C.
Kaufman, Inc. v. Cornerstone Indus. Corp., 540 S.W.3d 803, 812 (Ky. Ct. App. 2017)
(quoting Arrington v. Sizemore, 43 S.W.2d 699, 704 (Ky. Ct. App. 1931)). “When a
written contract is to be proved, not by itself but by parol testimony, no vague uncertain
3
Hill’s Third Amended Complaint claims ERG also has Applebee’s restaurants in
Tennessee. However, on appeal neither ERG nor Hill represent that any of the 71 FLSA
opt-in plaintiffs for whom no agreement can be produced worked in Tennessee. Therefore,
we need not address Tennessee state law. However, it is worth noting that Tennessee
appears to also have a heightened standard of proof for proving the existence and contents
of a lost or missing instrument. See Hammer v. Am. United Life Ins., 141 S.W.2d 501, 504
(Tenn. Ct. App. 1940) (requiring “clear, convincing, and cogent evidence”).
7
recollection concerning its stipulations ought to supply the place of the written instrument
itself.” Arrington, 43 S.W.2d at 704 (quoting Tayloe v. Riggs, 26 U.S. (1 Pet.) 591, 600
(1828)). In Ohio, lost or destroyed contracts may be proved “by competent parol proof and
circumstances,” and that the “degree of proof is clear and satisfactory.” Umbenhower v.
Labus, 97 N.E. 832, 833 (Ohio 1912); Gillmore v. Fitzgerald, 26 Ohio St. 171, 175 (Ohio
1875) (holding that the plaintiff failed to prove the loss, contents, or substance of a missing
deed “clearly and satisfactorily”). 4 In Virginia, parol evidence may be used to show the
existence and contents of a lost or destroyed instrument if the proof is “strong and
convincing.” Baber v. Baber, 94 S.E. 209, 213 (Va. 1917).
Given that we apply the summary judgment standard in deciding whether an
arbitration agreement exists, Berkeley, 944 F.3d at 234, we must “view the evidence
presented through the prism of the substantive evidentiary burden,” Anderson, 477 U.S. at
244. Thus, the question is whether the evidence in the record could support a reasonable
4
Despite these decisions by the Supreme Court of Ohio, some more recent cases
have cast a faint shadow of uncertainty as to the standard of proof required for proving the
existence of a lost or missing instrument in Ohio. For example, in Lincoln Elec. Co. v. St.
Paul Fire & Marine Ins., 210 F.3d 672, 688 (6th Cir. 2000), the Sixth Circuit stated that,
based on its “perusal” of cases cited by the parties and the district court, there was no
“dispositive statute or Ohio Supreme Court case” as to the standard of proof for proving
the existence and terms of a lost insurance policy. Id. Therefore, the Sixth Circuit upheld
the district court’s use of the preponderance of the evidence standard as making “practical
sense” as it appeared “to represent the majority rule and can be said to reasonably anticipate
the Ohio Supreme Court’s position.” Id.; see also William Powell Co. v. Onebeacon Ins.,
75 N.E.3d 909, 919 (Ohio Ct. App. 2016) (agreeing with Lincoln that the appropriate
standard of proof is preponderance of the evidence). We make two points. First, ERG’s
counsel conceded at oral argument that a heightened standard of proof is applicable. Oral
Arg. 8:43–9:03. Thus, any argument that a lower standard of proof is applicable has been
waived. Second, we need not definitively resolve what the appropriate burden of proof is
in Ohio because we are convinced that ERG has failed to carry its burden even under the
lower preponderance of evidence standard.
8
jury finding that ERG has proven by “clear and conclusive evidence,” Bossio, 785 S.E.2d
at 841 (or “clear and convincing,” Arrington, 43 S.W.2d at 704, “clear and satisfactory,”
Umbenhower, 97 N.E. at 833, or “strong and convincing,” Baber, 94 S.E. at 213, evidence)
that an agreement to arbitrate exists between the parties. See Anderson, 477 U.S. at 255–
56.
B.
Turning to the record before us, we are satisfied that, as a matter of law, ERG has
failed to establish the existence of an arbitration agreement between itself and Hill or the
71 FLSA opt-in plaintiffs for whom no arbitration agreements were produced. On appeal,
ERG primarily relies on two pieces of evidence in arguing it has demonstrated, as a matter
of law, that an arbitration agreement exists: Mr. Bates’s affidavit and the 780 arbitration
agreements that ERG produced. However, for the reasons explained below, such evidence
falls far short of reaching the heightened standard for proving the existence of lost contracts
under West Virginia, Kentucky, Ohio, and Virginia state law.
First, we turn to Mr. Bates’s affidavit. Mr. Bates is ERG’s Director of Human
Resources. In his affidavit, Mr. Bates attests that all employees of ERG were required to
review, agree to, and sign the arbitration acknowledgement form and that there were no
exceptions to this policy. Mr. Bates attested to the training given to various managers who
conduct the onboarding process for new employees and the fact they were given a checklist
to complete, including ensuring that each employee had signed off on all company policies
and procedures. Despite this evidence from Mr. Bates as to corporate policy, there is no
9
record evidence from any ERG employee who personally oversaw the onboarding process
for Hill or the other 71 FLSA opt-in plaintiffs. Almost all businesses and corporations
have human resources policies. And many of them would wish to believe that those
policies are being strictly enforced. However, without testimony from those individuals
that had first-hand knowledge of the onboarding process of Hill and the other 71 FLSA
opt-in plaintiffs, Mr. Bates’s evidence does little to prove the existence of an arbitration
agreement between Hill and the 71 opt-in plaintiffs. Like the district court, we find that
“[a] human resource official’s expectations or assumptions about what happened during a
hiring process conducted by individual managers on many dates, in many locations,” is of
little probative value. J.A. 2451.
Moreover, although ERG states that the 780 arbitration agreements between itself
and current and former ERG employees that it produced is strong evidence of an agreement
to arbitrate, we are not so persuaded. Notably, ERG has failed to explain the relevance of
these agreements other than to make general assertions that the agreements suggested
general compliance with ERG’s corporate policy. Yet there is no evidence in the record
that contextualizes these 780 arbitration agreements, such as the total number of employees
ERG had for the relevant period or how compliant particular Applebee’s restaurants were.
When pressed on this point at oral argument before this Court, ERG’s counsel could not
point to any record evidence or provide the Court the total number of employees and
therefore the estimated rate of compliance (i.e., the number of signed arbitration
agreements versus the number of employees onboarded for the relevant period). Oral Arg.
6:28–45. It should go without saying that a numerator is of scant value without a
10
denominator. Therefore, without more contextualizing evidence, the 780 arbitration
agreements are of little probative value as to whether an agreement to arbitrate exists
between ERG and Hill and the other 71 FLSA opt-in plaintiffs.
In arguing that it has produced sufficient evidence, ERG principally relies on Banks
v. Mitsubishi Motors Credit of America, Inc., 435 F.3d 538 (5th Cir. 2005). There, the
plaintiff-appellants brought various claims arising from the purchase of automobiles (and
the obtaining of finance) from the defendant-appellees. The defendants sought to compel
arbitration but could not provide signed arbitration agreements for several plaintiffs.
Instead, the defendants primarily relied upon an affidavit from the auto dealership’s
president that stated that all customers were required to execute an arbitration agreement
and could not have purchased automobiles without signing such an agreement. Id. at 539–
40. The district court dismissed the motion to compel arbitration for those plaintiffs for
which no signed arbitration agreement could be produced. On appeal, the Fifth Circuit
reversed and held that the auto dealership president’s affidavit was sufficient to prove, by
a preponderance of the evidence, that an agreement to arbitrate existed between the parties.
Id. at 540–41.
The decision in Banks is distinguishable from the current case for two reasons. First,
the court in Banks was applying Mississippi’s lower burden of proof for lost or destroyed
instruments (preponderance of the evidence). West Virginia, Kentucky, Ohio, and Virginia
have a higher burden of proof for lost or destroyed instruments, namely requiring clear and
conclusive (or clear and convincing, clear and satisfactory, or strong and convincing) parol
evidence. See supra Part II.A. Secondly, in Banks, the auto dealership president provided
11
an affidavit explaining that every customer was required to sign an arbitration agreement
before purchasing a motor vehicle. Here, Mr. Bates, the Director of Human Resources at
ERG, provided an affidavit of similar effect, stating that all new employees at ERG’s many
restaurants were required to sign the arbitration agreements as a condition of their
employment with “no exceptions.” J.A. 359. But unlike the president of the auto
dealership in Banks, Mr. Bates was a corporate official removed from the day-to-day
operations and the onboarding processes of the various Applebee’s restaurants in West
Virginia, Kentucky, Ohio, and Virginia. Therefore, Mr. Bates’s “expectations or
assumptions” as to the onboarding processes at individual Applebee’s stores is insufficient
to prove the existence of the arbitration agreements under those states’ heightened standard.
J.A. 2451.
C.
Applying the summary judgment standard to the record in this case, we find there
is no genuine issue of material fact; in other words, no reasonable jury could find that ERG
has proven by clear and conclusive (or clear and convincing, clear and satisfactory, or
strong and convincing evidence) evidence that an agreement to arbitrate exists between
ERG and Hill and the 71 FLSA opt-in plaintiffs. As a result, we conclude that the district
court did not err in holding that no agreement to arbitrate exists. 5
5
Even if we were to find there is a genuine issue of material fact, it is worth noting
that ERG has never sought (either in the district court or on appeal) a trial on the question
of whether an arbitration agreement exists. Instead, ERG has consistently maintained that
an agreement to arbitrate exists as a matter of law. Given that we have concluded, as a
matter of law, that no agreement to arbitrate exists, we need not address the question of
12
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
whether it is possible to waive the right to a trial under section 4 and, if so, whether ERG
in fact did so. However, it is worth noting that the wording of section 4 suggests that if a
genuine issue of material fact does exist as to whether an arbitration agreement was made,
a district court is obliged to conduct a trial on the issue regardless of whether the movant
sought a trial. 9 U.S.C. § 4 (“If the making of the arbitration agreement . . . be in issue, the
court shall proceed summarily to the trial thereof” (emphasis added)); see also Berkeley,
944 F.3d at 235 (“[A]lthough no party requested a trial on the Arbitration Motion, we are
satisfied that the court was obliged to conduct one . . . .” (emphasis added)); Howard, 748
F.3d at 978 (“One thing the district court may never do is find a material dispute of
fact does exist and then proceed to deny any trial to resolve that dispute of fact.”).
13
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MARTHA AKERS,
Appellant,
v. Case No. 17-cv-1776 (CRC)
1368 H STREET LLC,
Appellee.
MEMORANDUM OPINION
Pro se appellant Martha Akers noticed appeals from orders issued in two adversary
proceedings in the Bankruptcy Court against 1368 H Street, LLC.1 Pursuant to Federal Rule of
Bankruptcy Procedure 8018(a), her opening brief was initially due October 16, 2017, 30 days
after the docketing of the record. That day, Akers filed a motion for an extension of time. The
Court granted her motion, extended the deadline for her opening brief two weeks until November
3, 2017, and warned that no further extensions would be granted. See Minute Order (Oct. 20,
2017). Nonetheless, Akers filed a second request for an emergency stay because of medical
issues on November 3, 2017. The Court granted her another five-week extension—the period of
time the documentation for her motion stated she would need—moving her due date to
December 11, 2017, and again warned that this would be the last extension granted. See Minute
Order (Nov, 27, 2017).
When Akers failed to timely file her opening brief, the Court issued an order on January
2, 2018, directing Akers to show cause in writing by January 19, 2018 as to why her case should
1
While the target of the appeals is not precisely clear from the rather inscrutable appeals
notice in the record, in this case it appears to challenge the Bankruptcy Court’s remand of an
eviction proceeding against appellee to the D.C. Superior Court.
not be dismissed. See Minute Order to Show Cause (Jan. 2, 2018). It reiterated this deadline to
Akers once more in a minute order issued on January 4, 2018 regarding an unrelated motion.
Akers has failed to either file her opening brief or otherwise respond to the Court’s order to show
cause.
Under Bankruptcy Rule 8018(a)(4), if an appellant “fails to file a brief on time or within
an extended time authorized by the district court . . . the district court . . . after notice, may
dismiss the appeal on its own motion.” Prior to doing so, the Court must generally “provide
notice of the potential dismissal and an opportunity for the errant litigant to explain its conduct.”
English-Speaking Union v. Johnson, 353 F.3d 1013, 1022 (D.C. Cir. 2004).
Pursuant to its authority under Rule 8018(a)(4), the Court will dismiss the appeals filed
by Akers of her adversary proceedings. Akers’ opening brief was due nearly two months ago, on
December 11, 2017, following two extensions by the Court. As required, the Court warned
Akers that the failure to file her opening brief or respond to the Court’s order—the deadline for
which to do so passed over a week ago—could result in dismissal. Akers neither filed her
opening brief nor otherwise responded to the Court’s order. Finally, the Court concludes that it
is in the interests of justice to dismiss this case. Akers’ failure to file her opening brief is part of
a larger pattern of failure to meet deadlines spanning several months rather than a slight delay or
basic procedural error.
2
For the foregoing reasons, the Court will dismiss Akers’ case for failure to file any
opening brief, pursuant to Bankruptcy Rule 8018(a)(4). A separate Order will accompany this
memorandum opinion.
CHRISTOPHER R. COOPER
United States District Judge
Date: January 31, 2018
3
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 19-2122
_______________
UNITED STATES OF AMERICA
v.
ERIC HARDING,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 4:16-cr-00019-022)
District Judge: Honorable Matthew W. Brann
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
On January 30, 2020
Before: CHAGARES, RESTREPO, and BIBAS, Circuit Judges
(Filed: February 3, 2020)
_______________
OPINION*
_______________
BIBAS, Circuit Judge.
Eric Harding pleaded guilty to conspiring to distribute heroin and waived his right to
appeal unless his sentence exceeded ten years in prison. The District Court sentenced him
to nine years. Still, he appealed pro se. His court-appointed counsel has filed an Anders
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
brief and moved to withdraw, arguing that any appeal would be frivolous. See 3d Cir.
L.A.R. 109.2(a) (citing Anders v. California, 386 U.S. 738 (1967)). After reviewing the
briefs and the record, we agree. So we will affirm Harding’s judgment of conviction and
grant counsel’s motion to withdraw.
* * * * *
The Anders brief shows that counsel thoroughly reviewed the record for arguably ap-
pealable issues and explained why each would be frivolous. So it is “adequate on its face.”
United States v. Youla, 241 F.3d 296, 301 (3d Cir. 2001). We must still review the record
ourselves, but the facially adequate brief guides us. Id. Our review confirms that each of
the four issues identified in the Anders brief is frivolous.
First, there is no question of jurisdiction. The District Court had jurisdiction over this
federal drug crime under 18 U.S.C. § 3231.
Second, Harding’s guilty plea was knowing and voluntary. See Brady v. United States,
397 U.S. 742, 748 (1970). After questioning and observing Harding, the District Court
found him competent to plead. Its colloquy then tracked Federal Rule of Criminal Proce-
dure 11(b), which requires judges to warn defendants of the rights they will forfeit and the
risks they will take by pleading guilty. In doing so, the Court told Harding the statutory
minimum and maximum sentences that he faced. See Fed. R. Crim. P. 11(b)(1)(H)–(I). The
Court also warned Harding that he was waiving his right to appeal if he received a sentence
of ten years or less. The Government then summarized the plea agreement and recited in
detail the facts that it would prove at trial. Harding admitted the key facts, establishing an
2
adequate factual basis for his plea. Both in his plea agreement and at his colloquy, Harding
was represented by counsel and said he was satisfied with counsel’s performance.
The only wrinkle is that a later-enacted statute lowered the sentencing range for Har-
ding’s crime. After Harding pleaded guilty but before he was sentenced, the First Step Act
of 2018 went into effect. Pub. L. No. 115-391, 132 Stat. 5194. Because Harding had re-
ceived only probation for a prior state drug conviction, the Act provided that a recidivist-
drug-offender enhancement no longer applied to him. See id. § 401(a)(1), (2)(B), 132 Stat.
at 5220–21 (codified at 21 U.S.C. §§ 802(57), 841(b)(1)(B)); see also id. § 401(c), 132 Stat.
at 5221 (applying the Act’s changes retroactively “if a sentence for the offense has not been
imposed as of [the] date of enactment”). So the Act lowered his mandatory-minimum
prison sentence from ten to five years and his mandatory supervised-release term from
eight to four years. 21 U.S.C. § 841(b)(1)(B) (as amended). It also lowered his maximum
prison sentence from life to forty years. Id.
But the Act did not invalidate Harding’s guilty plea. A defendant’s plea need only be
knowing, not prophetic. It “is not subject to later attack” when the defendant is “correctly
advised . . . with respect to the then existing law as to possible penalties,” but later changes
in the law lower the “penalty for the crime in question [below what] was reasonably as-
sumed at the time the plea was entered.” Brady, 397 U.S. at 757.
Third, the appeal waiver is enforceable. The Court explained it to Harding at his plea
colloquy, and he responded that he knew he was waiving his right to appeal. Nothing in
the record casts doubt on Harding’s knowing, voluntary decision to enter the plea agree-
ment and accept its appeal waiver. So the waiver is valid. See United States v. Khattak, 273
3
F.3d 557, 563 (3d Cir. 2001). Enforcing it would not work a miscarriage of justice. See id.
And because his sentence fell below the waiver’s ten-year ceiling, the waiver bars any
challenge to his conviction or sentence.
Fourth, even if we could review Harding’s sentence, it was procedurally and substan-
tively proper and not an abuse of discretion. See United States v. Handerhan, 739 F.3d 114,
119 (3d Cir. 2014). The Court properly computed the Guidelines range, considered Har-
ding’s motion for a departure, weighed the statutory sentencing factors, ruled on objections
in line with the parties’ stipulation, and heard from counsel and Harding himself. And the
Court followed the procedures required by Federal Rule of Criminal Procedure 32. So the
sentence was procedurally proper. See United States v. Gunter, 462 F.3d 237, 247 (3d Cir.
2006). The sentence was also substantively reasonable, reflecting Harding’s criminal his-
tory, the severity of the crime, and the other factors required by 18 U.S.C. § 3553(a). Plus,
the sentence fell within the range to which Harding had stipulated.
* * * * *
After double-checking the record for ourselves, we are satisfied that counsel has exam-
ined the record conscientiously for appealable issues. And we agree that any appeal would
be frivolous. So we will affirm Harding’s conviction and sentence, grant counsel’s motion
to withdraw, and excuse counsel from petitioning for rehearing or for a writ of certiorari.
See 3d Cir. L.A.R. 35.4, 109.2(a)–(b).
4
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 20, 2006
No. 05-14187 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00050-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVARO DELGADO-AGUILAR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 20, 2006)
Before ANDERSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Alvaro Delgado-Aguilar, who pled guilty to illegally reentering the United
States in violation of 8 U.S.C. § 1326(a) and (b)(2), appeals his 41-month
sentence. He contends that, because the characterization of his prior conviction for
aggravated assault as a “crime of violence” was not charged in the indictment or
proven to a jury, the 16-level sentencing enhancement applied by the district court
pursuant to United States Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii)
violates United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621
(2005). Although we review Delgado-Aguilar’s constitutional objection de novo,
and will reverse only for harmful error, see United States v. Paz, 405 F.3d 946, 948
(11th Cir. 2005) (per curiam), his argument is clearly foreclosed by our circuit
precedent interpreting Almendarez-Torres v. United States, 523 U.S. 224, 118 S.
Ct. 1219, 140 L. Ed. 2d 350 (1998), Apprendi v. New Jersey, 530 U.S. 466, 120 S.
Ct. 2348, 147 L. Ed. 2d 435 (2000), and Apprendi’s progeny. See, e.g., United
States v. Orduno-Mireles, 405 F.3d 960, 962-63 (11th Cir.) (Booker did not disturb
Almendarez-Torres’s holding that “recidivism is not a separate element of an
offense that the government is required to prove beyond a reasonable doubt.”),
cert. denied, __ U.S. __, 126 S. Ct. 223, 163 L. Ed. 2d 191 (2005); United States v.
Glover, 431 F.3d 744, 749 (11th Cir. 2005) (per curiam) (“[W]hether a previous
conviction is a ‘crime of violence’ is a question of law, not of fact . . . .”).
Therefore, the district court did not violate Booker when it enhanced
Delgado-Aguilar’s sentence under the Sentencing Guidelines based on its finding
that his prior conviction was for a “crime of violence.” Even so, Delgado-Aguilar
2
was sentenced under an advisory guidelines scheme, so the district court did not
commit constitutional error in sentencing him.
Thus, we affirm Delgado-Aguilar’s sentence.
AFFIRMED.
3
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2017 Term
FILED
_______________
June 15, 2017
released at 3:00 p.m.
Nos. 16-0181 & 16-0614 RORY L. PERRY II, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
LAWYER DISCIPLINARY BOARD,
Petitioner
v.
KEVIN C. DUFFY,
a suspended member of The West Virginia State Bar,
Respondent
____________________________________________________________
Lawyer Disciplinary Proceeding
Nos. 16-0181 & 16-0614
LAW LICENSE SUSPENDED AND OTHER SANCTIONS
____________________________________________________________
Submitted: April 18, 2017
Filed: June 15, 2017
Renée V. Frymyer, Esq. Kevin C. Duffy
Lawyer Disciplinary Counsel Pro Se
Office of Disciplinary Counsel Clay, West Virginia
Charleston, West Virginia Counsel for the Respondent
Counsel for the Petitioner
JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A de novo standard applies to a review of the adjudicatory record
made before the [Lawyer Disciplinary Board] as to questions of law, questions of
application of the law to the facts, and questions of appropriate sanctions; this Court
gives respectful consideration to the [Board’s] recommendations while ultimately
exercising its own independent judgment. On the other hand, substantial deference is
given to the [Board’s] findings of fact, unless such findings are not supported by reliable,
probative, and substantial evidence on the whole record.” Syllabus Point 3, Committee on
Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377 (1994).
2. “This Court is the final arbiter of legal ethics problems and must
make the ultimate decisions about public reprimands, suspensions or annulments of
attorneys’ licenses to practice law.” Syllabus Point 3, Committee on Legal Ethics v.
Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
3. “In deciding on the appropriate disciplinary action for ethical
violations, this Court must consider not only what steps would appropriately punish the
respondent attorney, but also whether the discipline imposed is adequate to serve as an
effective deterrent to other members of the Bar and at the same time restore public
confidence in the ethical standards of the legal profession.” Syllabus Point 3, Committee
on Legal Ethics v. Walker, 178 W. Va. 150, 358 S.E.2d 234 (1987).
i
4. “‘Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective
July 1, 1994, requires the Office of Disciplinary Counsel to prove the allegations of the
formal charge by clear and convincing evidence.’ Syl. Pt. 1, in part, Lawyer Disciplinary
Bd. v. McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995).” Syllabus Point 3, Lawyer
Disciplinary Bd. v. Nessel, 234 W. Va. 695, 769 S.E.2d 484 (2015).
5. “Rule 3.16 of the West Virginia Rules of Lawyer Disciplinary
Procedure enumerates factors to be considered in imposing sanctions and provides as
follows: ‘In imposing a sanction after a finding of lawyer misconduct, unless otherwise
provided in these rules, the [West Virginia Supreme Court of Appeals] or [Lawyer
Disciplinary Board] shall consider the following factors: (1) whether the lawyer has
violated a duty owed to a client, to the public, to the legal system, or to the profession; (2)
whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the
actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of any
aggravating or mitigating factors.’” Syllabus Point 4, Office of Disciplinary Counsel v.
Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998).
6. “In disciplinary proceedings, this Court, rather than endeavoring to
establish a uniform standard of disciplinary action, will consider the facts and
circumstances in each case, including mitigating facts and circumstances, in determining
what disciplinary action, if any, is appropriate, and when the [Lawyer Disciplinary
Board] initiates proceedings before this Court, it has a duty to advise this Court of all
ii
pertinent facts with reference to the charges and the recommended disciplinary action.”
Syllabus Point 2, Committee on Legal Ethics of the West Virginia State Bar v. Mullins,
159 W. Va. 647, 226 S.E.2d 427 (1976), overruled on other grounds by Committee on
Legal Ethics v. Cometti, 189 W. Va. 262, 430 S.E.2d 320 (1993).
7. “Mitigating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify a reduction in the degree of discipline to be
imposed.” Syllabus Point 2, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
8. “Mitigating factors which may be considered in determining the
appropriate sanction to be imposed against a lawyer for violating the Rules of
Professional Conduct include: (1) absence of a prior disciplinary record; (2) absence of a
dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith
effort to make restitution or to rectify consequences of misconduct; (5) full and free
disclosure to disciplinary board or cooperative attitude toward proceedings; (6)
inexperience in the practice of law; (7) character or reputation; (8) physical or mental
disability or impairment; (9) delay in disciplinary proceedings; (10) interim
rehabilitation; (11) imposition of other penalties or sanctions; (12) remorse; and (13)
remoteness of prior offenses.” Syllabus Point 3, Lawyer Disciplinary Bd. v. Scott, 213 W.
Va. 209, 579 S.E.2d 550 (2003).
iii
9. “Aggravating factors in a lawyer disciplinary proceeding are any
considerations or factors that may justify an increase in the degree of discipline to be
imposed.” Syllabus Point 4, Lawyer Disciplinary Bd. v. Scott, 213 W. Va. 209, 579
S.E.2d 550 (2003).
iv
Walker, Justice:
This lawyer disciplinary proceeding arises from charges filed by the
Petitioner, the Lawyer Disciplinary Board (“Board”) against the Respondent, Kevin C.
Duffy (“Mr. Duffy”), a lawyer currently suspended, pursuant to two consolidated
statements of charges. The charges relate to Mr. Duffy’s representation of clients in
sexual assault and sexual abuse and child abuse and neglect proceedings, unprofessional
and inappropriate interaction with persons involved in his lengthy and contentious
divorce proceedings, and misdemeanor theft and drunken driving charges in Ohio.
The Board’s Hearing Panel Subcommittee (“HPS”) recommended that this
Court adopt the jointly proposed findings of fact and conclusions of law by the Office of
Disciplinary Counsel (“ODC”) and Mr. Duffy as to the numerous violations of the West
Virginia Rules of Professional Conduct, which will be discussed in detail below. The
HPS also recommended adoption of the jointly proposed recommendations as to
discipline with two modifications. The jointly proposed sanctions included 1) a three-
month suspension served retroactively from the date of Mr. Duffy’s current temporary
suspension, 2) an automatic reinstatement followed by two years of supervised practice,
1
3) regular attendance at 12-step program1 meetings with written proof provided to the
ODC, and 4) payment of costs.
The HPS’s suggested modifications to the joint recommendations were that
Mr. Duffy be required to apply for reinstatement and that the ODC and Mr. Duffy work
with the West Virginia Lawyer Assistance Program (“LAP”) to develop a detailed plan
and accountability schedule so that he may receive the full spectrum of support, which
the HPS concluded he needed to avoid recidivism.
The ODC filed a consent letter with this Court agreeing to the suggested
modifications to the joint recommendations as to discipline. Mr. Duffy did not file an
objection. In our order dated January 4, 2017, we notified the parties that the Court did
not concur with the recommendations of the HPS and scheduled the matters for oral
argument.
Upon consideration of the parties’ briefs and arguments, the submitted
record and pertinent authorities, this Court finds that there is clear and convincing
evidence to support the HPS’s recommendations regarding the violations of the West
1
Most generally used in treatment programs such as Alcoholics Anonymous and
Narcotics Anonymous, Twelve-Step Programs are a commonly recommended treatment
modality that outlines a course of action for coping with alcohol and drug addiction as
well as other behavioral issues.
2
Virginia Rules of Professional Conduct. We concur with the recommended sanctions of
1) petition for reinstatement, 2) referral to the LAP and 3) payments of costs. However,
for the reasons explained below, we suspend Mr. Duffy’s license to practice law for
twelve months retroactively to June 2, 2016, the date of Mr. Duffy’s temporary
suspension pursuant to this Court’s order in ODC v. Duffy, 237 W. Va. 295, 787 S.E.2d
566 (2016).
I. FACTUAL AND PROCEDURAL BACKGROUND
Mr. Duffy is a suspended lawyer who practices in Clay County, West
Virginia. Mr. Duffy was admitted to the West Virginia State Bar on November 20, 1996.
The matters before us involve two disciplinary proceedings that have been consolidated
for purposes of disposition.
A. Matter No. 16-0181
Count I relates to Mr. Duffy’s representation of Charles R. Emerson who
was convicted of first-degree sexual assault and first-degree sexual abuse. Mr. Duffy
appealed his client’s convictions, which this Court affirmed in State v. Emerson, No. 13
0571, 2014 WL 1672953 (W. Va. April 25, 2014) (memorandum decision). Thereafter,
Mr. Emerson filed a complaint with the ODC alleging that Mr. Duffy failed to forward
his case file so that he could petition for a writ of habeas corpus. In response to the
complaint, the ODC directed Mr. Duffy by letter dated August 28, 2014, to provide a
3
copy of the complete file to Mr. Emerson within twenty days and to provide the ODC
with verification that he had complied with the directive. Nearly one month later, Mr.
Emerson again notified the ODC that he never received his file. Mr. Duffy also never
provided the ODC with verification that he had followed through with its directive of
August 28, 2014.
The ODC opened the complaint and sent Mr. Duffy a letter dated October
15, 2014, providing him with a copy of Mr. Emerson’s complaint and requesting a
response within twenty days. Again, Mr. Duffy did not respond. On December 18, 2014,
the ODC sent another letter, this time sent certified mail with return receipt requested,
directing Mr. Duffy to file a response by January 5, 2015, and advising him that failing to
do so could result in the ODC issuing a subpoena requiring Mr. Duffy to appear for a
sworn statement. Mr. Duffy signed for the certified letter on December 23, 2014.
Once again, Mr. Duffy did not file a verified response to the complaint of
Mr. Emerson. Therefore, the ODC issued a subpoena on March 4, 2015, for Mr. Duffy to
appear on April 21, 2015 to give a sworn statement. Mr. Duffy appeared and provided a
verified, written response to Mr. Emerson’s complaint, over five months past its original
due date, explaining that he had provided a copy of the complete file to Mr. Emerson’s
current counsel and that Mr. Emerson instructed numerous times that while he was
incarcerated, Mr. Duffy was not to send him any items related to his conviction out of
4
fear for his safety. Mr. Duffy also stated that the handwriting in the complaint was not
Mr. Emerson’s handwriting.
When asked why he did not just file a verified response to the October 15,
2014, letter, Mr. Duffy answered under oath, “I just can’t stand your office and [I was]
just being obnoxious to you. That’s my reason.” Mr. Duffy explained that he was angry
that his malpractice insurance had increased because of other pending ethics complaints
docketed by the ODC that he felt were frivolous. With respect to resolution of the
complaint, Mr. Emerson later admitted that his current attorney had his case file and that,
at one point, he had instructed Mr. Duffy not to send his case file to him in prison.
However, because of his repeated failure to respond to numerous lawful
requests for information by the ODC, the Investigative Panel (“IP”) charged Mr. Duffy
with violating Rule 8.1(b)2 of the West Virginia Rules of Professional Conduct.
Count II arises from Mr. Duffy’s representation of Glen W. Tanner in a
child abuse and neglect case that resulted in the termination of Mr. Tanner’s parental
2
Rule 8.1(b) provides “[a] lawyer in connection with . . . a disciplinary matter
shall not . . . knowingly fail to respond to a lawful demand for information from . . .
disciplinary authority, except that this rule does not require disclosure of information
otherwise protected by Rule 1.6.”
5
rights in July 2014. After the appeal period passed, Mr. Tanner filed a complaint on
October 9, 2014, alleging that Mr. Duffy failed to appeal the decision to terminate his
parental rights as Mr. Tanner requested.
Exhibiting the same pattern of conduct as in the complaint of Mr. Emerson,
Mr. Duffy received a letter from the ODC directing him to contact Mr. Tanner and
provide a detailed update as to the status of his case within ten days and then follow up
with written verification to the ODC that he had complied with the directive. On
November 12, 2014, Mr. Tanner complained that he had not had any further contact with
Mr. Duffy. Similarly, the ODC had not received verification from Mr. Duffy that he had
complied with its directive. The ODC opened a complaint, and on December 12, 2014,
the ODC sent a letter to Mr. Duffy with a copy of Mr. Tanner’s complaint and asked him
to file a response within twenty days. Mr. Duffy did not respond.
The ODC sent a second letter on January 15, 2015, this time sent certified
mail with return receipt requested, advising Mr. Duffy to file a response within seven
days or receive a subpoena to appear in person and give a sworn statement. Mr. Duffy
signed for the certified letter on January 22, 2015. However, he did not file a response to
the complaint. As in the Emerson complaint, the ODC issued the subpoena commanding
Mr. Duffy to appear on April 21, 2015. In his sworn statement, Mr. Duffy said he failed
to respond because he thought he was getting information about a different complaint,
6
and he did not read the correspondence from the ODC. As he had previously stated, “I
just can’t stand your office and [I was] just being obnoxious to you,” when asked to
explain his failure to respond.
Mr. Duffy defended his representation of Mr. Tanner asserting that Mr.
Tanner lost his parental rights because of his own failure to pass multiple drug screens,
his repeated failure to attend hearings, and his prior criminal convictions for
manslaughter, grand larceny and multiple misdemeanors. Mr. Duffy did not believe there
was any good faith basis for an appeal, but he did not communicate that to Mr. Tanner
and did not attempt to withdraw as counsel. Moreover, he did not seek informal advice
from the ODC regarding his obligation to file an appeal on behalf of a client in an abuse
and neglect matter.
The IP charged Mr. Duffy with four violations of the West Virginia Rules
of Professional Conduct3 as a result of this complaint. The first was a violation of Rule
1.2(a) (scope of representation)4 because Mr. Duffy failed to abide by Mr. Tanner’s
3
The Rules of Professional Conduct were amended and took effect in January
2015. All references herein to the Rules of Professional Conduct are made to those in
effect at the time of the violation.
4
Rule 1.2(a) provides “[a] lawyer shall abide by a client’s decisions concerning
the objectives of representation, subject to paragraphs (c), (d) and (e), and shall consult
with the client as to the means by which they are to be pursued. A lawyer shall abide by
(continued . . .)
7
decisions concerning the objectives of the representations relating to filing the appeal that
raised arguable points of error. Second, the IP charged Mr. Duffy with a violation of
Rule 1.3(diligence)5 because he failed to file the appeal on behalf of Mr. Tanner or
withdraw as his lawyer. The third violation was of Rule 1.4 (communication)6 because
Mr. Duffy failed to respond to Mr. Tanner’s requests for information and failed to explain
to Mr. Tanner the reason that he did not file Mr. Tanner’s appeal. Fourth, the IP charged
that Mr. Duffy violated Rule 8.1(b)7 for failing to respond to the ODC’s lawful request
for information. 8
a client’s decision whether to accept an offer of settlement of a matter. In a criminal
case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as
to a plea to be entered, whether to waive jury trial and whether the client will testify.”
5
Rule 1.3 provides “[a] lawyer shall act with reasonable diligence and promptness
in representing a client.”
6
Rule 1.4 provides:
“(a) A lawyer shall keep a client reasonably informed about the status of a
matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit
the client to make informed decisions regarding the representation.”
7
See supra, n.2.
8
This disciplinary matter originally included four counts in the Statement of
Charges filed on February 22, 2016. In its “Stipulations Regarding Findings of Fact,
Conclusions of Law and Recommendation as to Discipline,” the ODC declined to pursue
the violations as charged in Counts III and IV. Both of these counts related to complaints
of vulgar and inappropriate telephone calls and emails in 2015 with health care
professionals involved in Mr. Duffy’s lengthy and contentious divorce proceeding.
8
B. Matter No. 16-0614.
Mr. Duffy was arrested for theft and driving under the influence of alcohol
or drugs in the state of Ohio on February 5, 2016. On that day, he attempted to purchase
beer at a convenience store, but the clerk refused to let him make the purchase. Rather
than leave, he took the beer and other merchandise and drove off. The convenience store
employee called the police and reported the theft by an intoxicated man. The police
stopped Mr. Duffy at a traffic light down the road and identified him as the person
reported by the convenience store employee. The police took Mr. Duffy to the hospital
and released him on his own recognizance for medical treatment. However, the police
issued him a citation that included a summons to appear in municipal court for a hearing
on February 9, 2016. The summons also included an order suspending Mr. Duffy’s right
to drive. When Mr. Duffy failed to appear, a Capias with Bond Order was issued on
February 11, 2016, commanding any police official or sheriff to immediately take Mr.
Duffy to answer for the charges against him. The next day, Mr. Duffy voluntarily
appeared in the municipal court. He pled guilty to the misdemeanor offenses of operating
a vehicle while intoxicated and disorderly conduct. As a result, Mr. Duffy was fined,
sentenced to one year of probation and assessed court costs.
In a letter dated February 17, 2016, Circuit Judge Alsop reported to the
ODC that Mr. Duffy represented two clients in separate felony cases in Clay County and
9
that between January 19, 2016, and February 8, 2016, he failed to appear for every
hearing, seven in total, scheduled in those two cases. Judge Alsop also reported that Mr.
Duffy initially said he failed to appear because he was ill, and then later said that his
vehicle had broken down. Mr. Duffy failed to mention to Judge Alsop that he was
arrested on February 5, 2016, for theft and driving under the influence of alcohol and that
he failed to appear before the municipal court on February 9, 2016 in violation of a
lawfully issued summons. Judge Alsop subsequently removed Mr. Duffy from these two
felony cases. Further, on March 1, 2016, Judge Alsop entered an Order Removing
Attorney From Appointed Counsel Panel, which removed Mr. Duffy from the approved
list of court-appointed panel counsel for indigent defendants until further order of the
court.
The ODC then filed a petition pursuant to Rule 3.27 of the West Virginia
Rules of Disciplinary Procedure. In its petition, the ODC alleged that Mr. Duffy’s
unethical conduct posed a substantial threat of irreparable harm to the public. After a
hearing, this Court suspended Mr. Duffy’s license pending the outcome of formal
charges.
Based upon the delay of the felony cases in Clay County and the criminal
behavior in Ohio, the IP charged Mr. Duffy with the violation of five of the West
10
Virginia Rules of Professional Conduct. They include Rule 1.1 (competence),9 Rule 1.3
(diligence),10 Rule 3.2 (expediting litigation),11 Rule 8.4(b) (criminal act),12 and Rule
8.4(d) (prejudice to administration of justice).13 The ODC declined to pursue a charge
that Mr. Duffy violated Rule 8.4(c) (dishonesty).
C. HPS Hearing
The HPS held a hearing on the charges in the consolidated matters on
August 30, 2016. Mr. Duffy was the only witness who testified. The ODC and Mr.
Duffy submitted a Joint Exhibit entitled “Stipulations Regarding Findings of Fact,
Conclusions of Law14 and Recommendation as to Discipline,” (“Joint Stipulations”)
9
Rule 1.1 provides “[a] lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”
10
See supra, n.5.
11
Rule 3.2 provides “[a] lawyer shall make reasonable efforts to expedite litigation
consistent with the interest of the client.”
12
Rule 8.4(b) provides “[i]t is professional misconduct for a lawyer to: . . . commit
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as
a lawyer in other respects [.]”
13
Rule 8.4(d) provides “[i]t is professional misconduct for a lawyer to: . . . engage
in conduct that is prejudicial to the administration of justice.”
14
The findings of fact and conclusions of law recite the factual allegations and the
violations of the rules set forth in the Statement of Charges for the consolidated matters.
11
which the HPS admitted into evidence without objection. Specifically, the joint
recommendations as to discipline were:
1) That Mr. Duffy’s law license be suspended for a period of
three months, served retroactively based upon the Supreme Court’s
Order of June 2, 2016, which immediately suspended Mr. Duffy’s
license to practice law pending the outcome of formal disciplinary
charges;
2) That upon automatic reinstatement pursuant to 3.31 of the
Rules of Lawyer Disciplinary Procedure, Mr. Duffy’s practice be
supervised for a period of two years by an attorney agreed upon by
the ODC and Mr. Duffy;
3) That Mr. Duffy be required to regularly attend twelve-step
program meetings and provide the ODC with proof of the attendance
in writing; and
4) That Mr. Duffy be required to pay the costs of the
disciplinary proceedings pursuant to Rule 3.15 of the Rules of
Lawyer Disciplinary Procedure.
On October 31, 2016, the Board filed its recommendations to this Court as
set forth in the “Report of the Hearing Panel Subcommittee” (“Report”). In the Report,
the HPS adopted the findings of fact and conclusions of law in the Joint Stipulation
without modification. Thus, the HPS recommended that this Court also adopt the facts
relating to the complaints and the criminal conduct of Mr. Duffy and the conclusions
regarding the resulting violations of the West Virginia Rules of Professional Conduct.
12
The HPS undertook a review of Mr. Duffy’s misconduct pursuant to Rule
3.16 of the Rules of Lawyer Disciplinary Procedure and concluded that Mr. Duffy had
breached a duty to clients, the public, the legal system, and the profession by virtue of his
conduct and had acted intentionally and knowingly in doing so. Further, the HPS found
that his misconduct caused harm to his clients due to his lack of diligent representation
and also to the legal system in relation to his lack of cooperation with the ODC.
Likewise, the HPS identified the following mitigating factors: (1) absence of a dishonest
or selfish motive; (2) personal or emotional problems connected to Respondent’s divorce;
(3) full and free disclosure to disciplinary board; (4) interim rehabilitation by way of
outpatient therapy and alcohol education classes; and (5) remorse. On the other hand, the
HPS also noted that his prior discipline as recently as October 26, 2013 under Rules 1.3
and 1.4 of the Rules of Professional Conduct was an aggravating factor.
After considering the mitigating and aggravating factors and reviewing the
joint stipulations regarding the recommendation as to discipline, the HPS suggested two
modifications. The HPS suggested that Mr. Duffy seek reinstatement of his license
pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure instead of automatic
reinstatement since his temporary suspension had already exceeded the three-month
maximum suspension permitted for automatic reinstatement under Rule 3.31 of those
rules. Next, the HPS suggested that Mr. Duffy be referred to the LAP since the
availability of 12-step meetings or other services in his rural county was very limited.
13
The HPS felt strongly that Mr. Duffy could benefit from working with the LAP to
“develop a detailed plan and accountability schedule so [Mr. Duffy] can receive the full
spectrum of support which we think he clearly needs to avoid recidivism.” The HPS
acknowledged that this suggestion is broader than what the ODC recommended but noted
that it “consider[ed] it necessary for [Mr. Duffy] in continuing to deal with his family and
child custody issues, his practice and with the public.”
Although the ODC filed its consent to the modifications by letter dated
November 4, 2016, and Mr. Duffy did not file an objection to the Report, this Court does
not concur with all recommendations made by the HPS. We will address our objections
to the recommendations in turn.
II. STANDARD OF REVIEW
We review the recommendations of the HPS in lawyer disciplinary
proceedings under the following standards:
A de novo standard applies to a review of the adjudicatory
record made before the [Lawyer Disciplinary Board] as to questions
of law, questions of application of the law to the facts, and questions
of appropriate sanctions; this Court gives respectful consideration to
the [Board’s] recommendations while ultimately exercising its own
independent judgment. On the other hand, substantial deference is
given to the [Board’s] findings of fact, unless such findings are not
supported by reliable, probative, and substantial evidence on the
whole record.
14
Syl. Pt. 3, Committee on Legal Ethics v. McCorkle, 192 W. Va. 286, 452 S.E.2d 377
(1994).
With respect to any disciplinary action to be taken for violations of the
West Virginia Rules of Professional Conduct, “[t]his Court is the final arbiter of legal
ethics problems and must make the ultimate decisions about public reprimands,
suspensions or annulments of attorneys’ licenses to practice law.” Syl. Pt. 3, Committee
on Legal Ethics v. Blair, 174 W. Va. 494, 327 S.E.2d 671 (1984).
In exercising this authority, we remain aware that “this Court must consider
not only what steps would appropriately punish the respondent attorney, but also whether
the discipline imposed is adequate to serve as an effective deterrent to other members of
the Bar and at the same time restore public confidence in the ethical standards of the legal
profession.” Syl. Pt. 3, Committee on Legal Ethics v. Walker, 178 W. Va. 150, 358
S.E.2d 234 (1987). Mindful of these standards, we turn to the case before us.
III. DISCUSSION
“‘Rule 3.7 of the Rules of Lawyer Disciplinary Procedure, effective July 1,
1994, requires the Office of Disciplinary Counsel to prove the allegations of the formal
charge by clear and convincing evidence.’ Syl. Pt. 1, in part, Lawyer Disciplinary Bd. v.
15
McGraw, 194 W. Va. 788, 461 S.E.2d 850 (1995).” Syl. Pt. 3, Lawyer Disciplinary Bd.
v. Nessel, 234 W. Va. 695, 769 S.E.2d 484 (2015).
In this case, this standard is easily met because Mr. Duffy does not contest
that he violated the provisions as found by the HPS. He acknowledges that the findings
of fact and conclusions of law are correct, sound, and fully supported by reliable,
probative and substantial evidence and has accepted the HPS recommendations.15 We
have discussed that “[i]n the absence of arguments contrary to the HPS’s findings, this
Court will not disturb the underlying determination that [the attorney] violated various
provisions of the West Virginia Rules of Professional Conduct.” Lawyer Disciplinary Bd.
v. Conner, 234 W. Va. 648, 655, 769 S.E.2d 25, 33 (2015); Lawyer Disciplinary Bd. v.
Cunningham, 195 W. Va. 27, 34–35, 464 S.E.2d 181, 188–89 (1995) (“The burden is on
the attorney at law to show that the factual findings are not supported by reliable,
probative, and substantial evidence on the whole adjudicatory record made before the
Board.”) (internal citation omitted). Thus, our analysis is limited to the propriety of the
recommended sanctions.
A. Suspension of Mr. Duffy’s License to Practice Law
15
Mr. Duffy does, however, contest the HPS recommendation that he be required
to apply for reinstatement.
16
The HPS recommended that Mr. Duffy’s license be suspended for a period of
three months, to be applied retroactively to include his period of suspension from the date
of our order temporarily suspending his license pursuant to Rule 3.27 of the Rules of
Lawyer Disciplinary Procedure. In determining whether a particular sanction is
appropriately tailored to an attorney’s misconduct, we rely upon Syllabus Point 4 of
Office of Disciplinary Counsel v. Jordan, 204 W. Va. 495, 513 S.E.2d 722 (1998):
Rule 3.16 of the West Virginia Rules of Lawyer
Disciplinary Procedure enumerates factors to be considered in
imposing sanctions and provides as follows: “In imposing a
sanction after a finding of lawyer misconduct, unless
otherwise provided in these rules, the [West Virginia
Supreme Court of Appeals] or [Lawyer Disciplinary Board]
shall consider the following factors: (1) whether the lawyer
has violated a duty owed to a client, to the public, to the legal
system, or to the profession; (2) whether the lawyer acted
intentionally, knowingly, or negligently; (3) the amount of the
actual or potential injury caused by the lawyer’s misconduct;
and (4) the existence of any aggravating or mitigating
factors.”
Syl. Pt. 4, Jordan. Our analysis of these factors is grounded in the notion that “attorney
disciplinary proceedings are primarily designed to protect the public, to reassure it as to
the reliability and integrity of attorneys and to safeguard its interest in the administration
of justice[.]” Committee on Legal Ethics v. Keenan, 192 W. Va. 90, 94, 450 S.E.2d 787,
791 (1994). This Court considers these factors on a case-by-case basis in determining
appropriate sanctions:
17
In disciplinary proceedings, this Court, rather than
endeavoring to establish a uniform standard of disciplinary
action, will consider the facts and circumstances in each case,
including mitigating facts and circumstances, in determining
what disciplinary action, if any, is appropriate, and when the
[Lawyer Disciplinary Board] initiates proceedings before this
Court, it has a duty to advise this Court of all pertinent facts
with reference to the charges and the recommended
disciplinary action.
Syl. Pt. 2, Committee on Legal Ethics of the West Virginia State Bar v. Mullins, 159 W.
Va. 647, 226 S.E.2d 427, 428 (1976), overruled on other grounds by Committee on Legal
Ethics v. Cometti, 189 W. Va. 262, 430 S.E.2d 320 (1993).
After a thorough review of the record, we find that Mr. Duffy’s conduct,
considered under the Jordan factors, warrants a suspension of twelve months rather than
three months as recommended by the HPS. Relating to the first Jordan factor, Mr. Duffy
stipulated that he had breached duties owed to his clients, to the public, and to the legal
profession. He owed his clients duties of diligence, communication and loyalty, and
breached those duties by failing to promptly address a client’s right to appeal and by
failing to attend his clients’ hearings. Mr. Duffy likewise breached duties owed to the
public and to the legal profession by engaging in criminal conduct and in his refusal to
cooperate with the ODC. Second, the parties stipulated that Mr. Duffy’s conduct was
knowing and intentional – the most culpable mental states. See In re Hernandez, 46
So.3d 1244 (La. 2010) (stating attorney knowingly and intentionally violated duties owed
to public, legal system, and legal profession by failing to appear in court on several
occasions and failing to cooperate with ODC). Third, we find there is ample basis to
18
support the ODC’s finding that Mr. Duffy’s conduct caused harm. Mr. Duffy adversely
affected his clients by failing to attend hearings on their behalf and failing to respond to
his client relating to an appeal. Likewise, Mr. Duffy’s conduct toward the ODC and his
criminal conduct are harmful to the public and to the legal profession. See In re Baer, 21
So.3d 941, 943 (La. 2009) (recognizing “serious harm results when members of the legal
profession engage in criminal acts, which give rise to a lack of confidence by members of
the public in those who are officers of the court.”).
Regarding the fourth Jordan factor, we have explained that “[m]itigating
factors in a lawyer disciplinary proceeding are any considerations or factors that may
justify a reduction in the degree of discipline to be imposed.” Syl. Pt. 2, Lawyer
Disciplinary Board v. Scott, 213 W. Va. 209, 579 S.E.2d 550 (2003). We have
expounded on relevant mitigating factors as follows:
Mitigating factors which may be considered in
determining the appropriate sanction to be imposed against a
lawyer for violating the Rules of Professional Conduct
include: (1) absence of a prior disciplinary record; (2) absence
of a dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith effort to make restitution or to
rectify consequences of misconduct; (5) full and free
disclosure to disciplinary board or cooperative attitude toward
proceedings; (6) inexperience in the practice of law; (7)
character or reputation; (8) physical or mental disability or
impairment; (9) delay in disciplinary proceedings; (10)
interim rehabilitation; (11) imposition of other penalties or
sanctions; (12) remorse; and (13) remoteness of prior
offenses.
19
Id. at Syl. Pt. 3.16 On the other hand, “[a]ggravating factors in a lawyer disciplinary
proceeding are any considerations or factors that may justify an increase in the degree of
discipline to be imposed.” Id. at Syl. Pt. 4.
The HPS and the parties concurred that the following mitigating factors
were present: (1) absence of a dishonest or selfish motive; (2) personal or emotional
problems connected to Respondent’s divorce; (3) full and free disclosure to disciplinary
board; (4) interim rehabilitation by way of outpatient therapy and alcohol education
classes; and (5) remorse. We find that the ODC properly identified several mitigating
factors, not the least of which is Mr. Duffy’s willingness to participate in substance abuse
treatment.
As to aggravating factors, the HPS acknowledged only that Mr. Duffy had
previously been subject to prior discipline for violating Rules 1.3 and 1.4 of the Rules of
Professional Conduct as recently as October 26, 2013. However, we believe there are
additional aggravating factors that warrant an increase in suspension from three months
to twelve months. We are particularly troubled by Mr. Duffy’s statements relating to his
16
These mitigating factors are not to the exclusion of others that may be present in
a particular case. Lawyer Disciplinary Bd. v. Scott, 213 W. Va. at 214 n.33, 579 S.E.2d at
555 n.33.
20
disdain for the ODC as the source of his refusal to respond to disciplinary complaints.
His conduct in this regard was intentional, knowing, and egregious. Further, his conduct
relating to the ODC was harmful to the ODC’s ability to meaningfully review and timely
address complaints of clients. See Syl. Pt. 1, Committee on Legal Ethics v. Martin, 187
W. Va. 340, 419 S.E.2d 4 (1992) (attorney violates West Virginia Rule of Professional
Conduct 8.1(b) by failing to respond to requests for information in connection with an
investigation of an ethics complaint). As a self-regulated profession, lack of respect for
the administration of our ethical rules and procedures is not to be taken lightly.
Likewise, we emphasize that Mr. Duffy engaged in serious criminal
conduct. Failure to abide by the law epitomizes a lack of respect for the law and thereby
diminishes public confidence in the legal profession. We acknowledge, however, that
often such illegal conduct stems from alcohol, drug or other addictions. Where an
attorney is committed to recovery from those addictions, the sanction levied may be
moderated to reflect that commitment. See In re Tribert, 540 S.E.2d 467 (S.C. 2000)
(noting attorney’s commitment to sobriety and participation in substance abuse treatment
program relevant to sanctions).
We find that a twelve-month suspension retroactive to the initial order of
suspension entered on June 2, 2016 adequately accounts for the seriousness of Mr.
Duffy’s conduct while also taking into consideration the emotional turmoil of his divorce
21
and his alcohol addiction. We consider the facts and circumstances of each individual
case rather than attempting to establish uniform disciplinary action. See Lawyer
Disciplinary Bd. v. Veneri, 206 W. Va. 384, 524 S.E.2d 900 (1999). Still, a twelve
month suspension and the other recommended sanctions are consistent with our previous
decisions in which attorneys engaged in illegal conduct, failed to adequately represent
their clients or declined to cooperate with the ODC. See Lawyer Disciplinary Bd. v.
Sturm, 237 W. Va. 115, 785 S.E.3d 821 (2016) (concurrent ninety-day suspensions and
two-year period of supervisory practice for rule violations relating to failure to file an
appeal and habeas petition on behalf of clients, and failure to comply with the ODC’s
requests for information); Lawyer Disciplinary Bd. v. Conner, 234 W. Va. 648, 769
S.E.2d 25 (2015) (ninety-day suspension and two-year period of supervisory practice for
failure to communicate with clients, file an appeal or otherwise take action in cases, and
to comply with the ODC’s requests for information); Office of Disciplinary Counsel v.
Alderman, 229 W. Va. 656, 734 S.E.2d 737 (2012) (one year retroactive suspension and
one-year suspension held in abeyance pending two years of supervised practice for two
misdemeanor criminal convictions relating to drug charges); Lawyer Disciplinary Bd. v.
Roberts, 217 W. Va. 189, 617 S.E.2d 539 (2005); (public reprimand and supervised
practice for two years stemming from misconduct in representing clients while
undergoing medical treatment for pain); Office of Lawyer Disciplinary Counsel v. Albers,
214 W. Va. 11, 585 S.E.2d 11 (2003) (five-month suspension for assault, larceny, and
harassment).
22
Based on the totality of the circumstances, we believe a twelve-month
suspension served retroactively, in conjunction with the other sanctions discussed herein,
will best ensure that Mr. Duffy’s misconduct will not recur. We have previously
permitted suspensions to be applied retroactively. In Committee on Legal Ethics v.
White, 189 W. Va. 135, 428 S.E.2d 556 (1993), we discussed that retroactive application
of a suspension may be appropriate in certain circumstances because it “accounts for both
the seriousness of [the] crimes . . . and the mitigating facts and circumstances of . . . later
behavior.” White, 189 W. Va. at 140, 428 S.E.2d at 561. Likewise, in Office of
Disciplinary Counsel v. Alderman, 229 W. Va. 656, 734 S.E.2d 737 (2012), we permitted
a suspension to apply retroactively where the attorney voluntarily ceased the practice of
law and entered into an addiction program. Here, we find that Mr. Duffy has
demonstrated a willingness to participate meaningfully in rehabilitation services and the
time he has already served on suspension should be applied to the twelve-month
suspension. Further, because we find that a twelve-month suspension is a more
appropriate sanction under the circumstances, Mr. Duffy will be required to apply for
reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary Procedure; this
rule requires a person whose license has been suspended for more than three months to
petition the Court for reinstatement.
23
B. Referral to the Lawyer Assistance Program
The HPS recommended that Mr. Duffy work with the LAP to develop a
detailed plan and accountability schedule so that he can receive the necessary support to
avoid relapse and Mr. Duffy expressed his willingness to participate with the LAP. Use
of this program furthers our goal of providing attorneys with personal and professional
support to combat impairing addictions. Where professional misconduct arises from such
addictions, utilization of the LAP promotes and monitors the attorney’s recovery from
drug and alcohol addictions and thereby serves to prevent recidivism.
Accordingly, Mr. Duffy will enter into a contractual agreement with the
LAP detailing a plan for treatment and an accountability schedule as a means to reduce
the risk of relapse. As part of this agreement, the ODC will periodically confirm with the
LAP that Mr. Duffy is in compliance with his contractual agreement. Details relating to
Mr. Duffy’s treatment plan and progress will remain confidential pursuant to Rule 7 of
the Rules of the West Virginia Lawyer Assistance Program17 unless and until he petitions
for reinstatement, at which time such information may be filed under seal for the sole
purpose of considering his petition.18 See In re Alexander, 984 So.2d (La. 2008)
17
We note that this Court has proposed revisions to the rules governing the
Lawyer Assistance Program. The proposed rule revisions opened for public comment to
conclude on May 11, 2017, but are not yet effective as of the date of this Opinion.
18
Rule 10(b) of the Rules of the Lawyer Assistance Program provides:
(continued . . .)
24
(suspending attorney from practice of law for one year and one day and directing attorney
to execute a five-year recovery agreement with LAP); Bd. of Professional Responsibility
v. Love, 256 S.W.3d 644 (Tenn. 2008) (re-instating suspended attorney’s five-year
contract with LAP); Disciplinary Counsel v. Ault, 852 N.E.2d 727 (Ohio 2006)
(suspending attorney from practice of law for twelve months stayed on condition that he
complete a contract with LAP).
IV. CONCLUSION
This Court has conducted a thorough review of the record and concludes
that the findings of fact and conclusion of law of the HPS are supported by reliable,
probative, and substantial evidence. For those reasons, we adopt the recommendations of
the HPS with the exception that Mr. Duffy be suspended for twelve months, rather than
the recommended three-month suspension. Accordingly, this Court orders the following:
(1) Mr. Duffy is suspended from the practice of law for twelve months, to be served
retroactively based upon this Court’s June 2, 2016 order; (2) Mr. Duffy will be required
Any diversion or other program which requires
involvement of WVLAP in rehabilitative efforts on the part of
the lawyer that is a result of an agreement with the Office of
Disciplinary Counsel or otherwise imposed by order of the
Supreme Court of Appeals, shall govern the extent and scope
of confidentiality which may be asserted by the lawyer. To
the extent such agreement and/or order may require WVLAP
to violate a confidentiality protection granted under these
rules, the order or agreement shall control and any disclosure
made pursuant thereto shall not be deemed a breach of
confidentiality otherwise imposed by these rules.
25
to apply for reinstatement pursuant to Rule 3.32 of the Rules of Lawyer Disciplinary
Procedure; (3) if reinstated, Mr. Duffy’s practice will be supervised for a period of two
years by an attorney agreed upon by the ODC and Mr. Duffy; (4) Mr. Duffy will
immediately enter into a contractual agreement with the LAP; and (5) Mr. Duffy will be
required to reimburse the Lawyer Disciplinary Board the costs of this disciplinary
proceeding pursuant to Rule 3.15 of the Rules of Lawyer Disciplinary Procedure.
Law license suspended and other sanctions imposed.
26
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} |
418 So.2d 214 (1982)
Donald Lewis OWEN
v.
STATE.
1 Div. 311.
Court of Criminal Appeals of Alabama.
June 8, 1982.
Rehearing Denied June 29, 1982.
Certiorari Denied, August 20, 1982.
*216 Thomas M. Haas and James M. Byrd, Mobile, for appellant.
Charles A. Graddick, Atty. Gen., and Ed Carnes, and J. Thomas Leverette, Asst. Attys. Gen., for appellee.
Alabama Supreme Court 81-873.
BOWEN, Judge.
In the early morning of April 8, 1980, two shotgun blasts took the life of Chickasaw Police Officer John Dotson, who was issuing a traffic citation to the defendant.
The defendant was indicted and convicted for the capital offense of murdering a police officer while the officer was on duty. Alabama Code, Section 13A-5-31(a)(5) (Amended 1977). Sentence was fixed at life imprisonment without parole.
I
The statute under which the defendant was indicted and convicted, as construed by our Supreme Court in Beck v. State, 396 So.2d 645 (Ala.1981), is constitutional. Willie Clisby, Jr. v. State, (Ala. Cr.App., 6 Div. 576, Ms. March 2, 1982); Jody Lynn Potts v. State, (Ala.Cr.App., 4 Div. 948, Ms. March 2, 1982). We find no error in the defendant's prosecution under Section 13A-5-31(a)(5) as modified by Beck, supra. The trial and sentencing procedures outlined in Beck were followed by the trial court and no error in this regard is apparent from the record.
II
Contrary to the defendant's contention that he was only charged with the common law crime of second degree murder, the indictment clearly tracks the statutory language of the offense codified in Section 13A-5-31(a)(5). The gravamen of this capital offense, as well as the thirteen other capital offenses found in Section 13A-5-31(a), is an "intentional killing." "Without an `intentional killing' there could be no death penalty." Kyzer v. State, 399 So.2d 330, 335 (Ala.1981).
"Without question, the legislature has spelled out specifically what offenses it considers to be capital offenses. The Alabama legislature has substantially followed the Model Penal Code in describing with specificity those offenses which are deemed capital offenses. Code 1975, Section 13A-5-31. Each of the fourteen crimes specified requires an intentional killing with aggravation, and not some crime other than homicide under aggravated circumstances."
Beck, 396 So.2d, at 661-662.
The indictment in this case clearly charges that the defendant committed an intentional killing by alleging that the defendant "unlawfully, intentionally, and with malice aforethought, but without premeditation or deliberation, killed John Dotson."
*217 The defendant's sentence of life imprisonment without parole does not constitute cruel and unusual punishment in violation of the Eighth Amendment. Certainly, for the capital offense that was committed in this case the defendant's punishment could have been fixed at death. See George Daniel v. State, (Ala.Cr.App., 4 Div. 987, Ms. April 20, 1982). Life imprisonment without parole is a constitutionally permissible sentence even for offenses which do not involve homicide. Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980); Britton v. Rogers, 631 F.2d 572, 578 (8th Cir. 1980), cert. denied, 451 U.S. 939, 101 S.Ct. 2021, 68 L.Ed.2d 327 (1981).
III
The defendant argues that his warrantless arrest and the warrantless search of his home were unconstitutional. He also contends that his confession should not have been admitted into evidence because it was adduced in violation of his Sixth Amendment right to counsel.
At approximately 2:14 on the morning of April 8, 1980, Officer Marvin T. Booker of the Chickasaw Police Department testified that he received a radio dispatch to "backup" Officer Dotson at the intersection of Highway 43 and Saw Mill Road. Officer Booker heard Officer Dotson radio that he was stopping a traffic violator "for speeding and possibly DWI." Approximately three minutes later and before Officer Booker arrived at the intersection, Officer Dotson radioed that no backup was needed. Officer Booker resumed patrolling and a few minutes later received a third radio dispatch that Officer Dotson was "in trouble". Officer Booker arrived at the scene at approximately 2:27 A.M. and found Officer Dotson lying "in a pool of blood" at the rear of his patrol car. Officer Booker radioed for help and within two minutes other police officers began to arrive. Officer Dotson had sustained two shotgun blasts, one to the head and the other to the abdomen. An autopsy revealed that either of the two shotgun wounds would have been fatal.
Officer R. G. Jones of the Chickasaw Police Department arrived at the scene shortly after Officer Booker and found two spent shotgun shells near the victim's body. Officer Jones discovered a "ticket book" used by the Chickasaw Police Department lying on the victim. A ticket for a speeding violation made out to the defendant had been "all but completed" by the victim. The ticket contained the defendant's name, address, date of birth and tag number of his automobile. The defendant's driver's license was also located at the scene. The driver's license was current and had the defendant's photograph, address and "everything on it." Officer Jones also saw the victim's service revolver lying on the ground near the victim. The weapon was cocked but had not been fired.
Lieutenant G. E. Robinson of the Criminal Investigation Detective Division of the Prichard Police Department was dispatched to the murder scene around 2:30 A.M. With the defendant's driver's license in hand and tag number written on a slip of paper, Lieutenant Robinson dispatched four of his units along with Sergeant Bradford of the Saraland Police Department and Chief Barlowe of the Satsuma Police Department to the intersection of Highway 45 and McLeod Road where they were joined by two deputy sheriffs. From there the law enforcement officers proceeded to the defendant's home on Ulysses Drive where they arrived at approximately 3:00 A.M. Lieutenant Robinson parked his patrol car approximately twenty feet from the defendant's home, leaving the headlights on the front of the house. Robinson positioned two men at the rear of the defendant's home, one man on each side and "three or four of us in the front."
At this point in the proceedings the trial court conducted two hearings, out of the presence of the jury, to determine the legality of the warrantless search of the defendant's house and the admissibility of his confession. The substance of these hearings reveals the following.
*218 Lieutenant Robinson verified that the tag number of the defendant's automobile, which had been backed in the carport, matched the tag number Officer Dotson had written on the defendant's traffic citation. One of the officers stationed to the rear of the defendant's house radioed Lieutenant Robinson that "he saw movement in the rear of the house." Approximately thirty seconds later, Lieutenant Robinson also observed a curtain in the front of the house open and close.
Lieutenant Robinson used a bull horn and called for the defendant to "come out". After three to five minutes the defendant came out the front door, waving and calling for the officers to "come on in." Robinson told the defendant, "No, I would rather you come on out." According to Lieutenant Robinson, as the defendant began walking towards the officers:
"I let him get approximately ten to fifteen feet from the front of the house, and I walked up to him and I advised him `Mr. Owens, you are under arrest for investigation of murder. You have the right to remain silent and not make any statements at all. You have the right to an attorney. If you can't afford one, one will be afforded for you.' At that point, he says `I know my damn rights. Put me in the car.' And I obliged him."
The defendant was placed in the custody of two officers. Lieutenant Robinson, Sergeant Bradford and Chief Barlowe next proceeded to go inside the house because they had "no idea or no knowledge of how many people were involved in the shooting." As the officers approached the front door a white male named Mahan appeared in the doorway. Mahan rented a room from the defendant. When Mahan was asked if the officers could go in and look around, he gestured that it made no difference to him. Lieutenant Robinson testified that "We were looking for anybody else that may have been in the house" in order to secure "the premises for the safety of my people."
Inside a closet in a rear bedroom a .12 gauge pump shotgun was discovered. The closet did not have a door but "had a curtain on a string across the front." The curtain was "pulled back" so that Robinson was "able to look into that closet and see what was there." Lieutenant Robinson determined that the weapon had been recently fired. Robinson also saw a box of green, .12 gauge shotgun shells in plain view on a bedroom dresser. These shells were the same type as those found at the scene. Ballistics tests later demonstrated that the shells found at the scene had been fired from the shotgun found in the closet.
Sergeant Jack Creekmore of the Saraland Police Department first saw the defendant at the Saraland Police Station around 4:30 A.M. on the morning of the shooting. Through Sergeant Creekmore's testimony the proper voluntariness predicate for the defendant's confession was established. Prior to questioning the defendant, Sergeant Creekmore advised him of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Sergeant Creekmore stated that when he was giving the defendant his Miranda warnings and had gotten to the point "If you cannot afford a lawyer, one will be appointed for you before any questioning", the defendant told him, "I think I'll let ya'll appoint me one." Sergeant Creekmore then continued reading the remainder of the Miranda warnings to the defendant and ascertained that the defendant understood his constitutional rights. The defendant refused to sign the waiver of rights form.
"I asked him if he understood his rights. He replied, `Yes, I do, but I'm not signing anything.' I told him `that's all right, just as long as you understand your rights.' He then stated, `I know my rights. I know that you are just doing your job. I know because I was a police officer for four years.'"
Sergeant Creekmore then began questioning the defendant concerning the events which had transpired earlier that morning. Sergeant Creekmore related the defendant's incriminating statement as follows:
"Q. What was that statement?
*219 "A. He told me about being stopped by the Chickasaw Police Officer, and what took place after the officer stopped him.
"Q. What did he tell you took place?
"A. Said the officer told him he was speeding, and that he thought he was going to give him a warning and they talked a little. The officer went back and sat down in his car a minute or so and then got out and came back and told him he was doing sixty-five and he was going to give him a ticket. The defendant said he couldn't reason with him and that's when they had words. He said `I told him this is the end of life for myself. You are going to give me a ticket you son-of-a-bitch. Well, you are going to kill me or I'm going to kill you.' I went crazy. That was it.
"Q. Did he admit to you, or did he tell you whether or not he did or did not shoot John Dotson?
"A. Yes, sir. From that point I asked the defendant where was his gun. He told me in the trunk. I asked him what did Officer Dotson do while he was getting the shotgun out of the trunk. He replied, `It seemed like I saw him go for his gun. I kept waiting for to get hit. I shot twice and pumped the gun and clicked it. It wouldn't shoot no more. There was just two shells in the gun, that's all. I don't know what kind of shells were in the gun. I just shot twice. If I had a thousand in there I would have shot a thousand. Maybe this will teach them a lesson. They ought to know better than to have just one man in a car on patrol. Now, maybe they will hire some more. I was in law enforcement for four years, you know.'"
The defendant did not request a lawyer at any time during the interrogation. Sergeant Creekmore testified that later that morning, around 7:30 or 8:00 A.M., the defendant informed the district attorney, "I want my lawyer now", and that the district attorney "stopped talking with him."
The trial court determined that the search of the defendant's house and subsequent seizure of the murder weapon and shotgun shells were lawful and that the defendant's confession to Sergeant Creekmore was admissible. On the issue of whether or not the defendant had invoked his right to counsel, the trial judge stated:
"I'm going to take the position that here is a man that said he was a police officer, knew his rights, didn't need to be advised of them. That, as I understood it, that when he got a lawyer he expected the State to furnish it, but that if he didn't want to answer questions he would say `I don't want to answer questions until I have a lawyer here and until you get me a lawyer.' I don't take the position and don't think that he took the position that he had to have a lawyer before he would talk further. And for that reason, I'm going to overrule your objection and admit the statement."
The facts pertaining to the defendant's arrest, the search of his house and subsequent seizure of the shotgun and shotgun shells, and the confession the defendant made to Sergeant Creekmore were then presented to the jury.
A
THE WARRANTLESS ARREST
The defendant contends for the first time on appeal that his warrantless arrest was unconstitutional. He maintains that the arresting officers acted on a "mere suspicion" as justification for his arrest. There is no merit to this argument. Initially, it must be noted that objections to evidence cannot be raised for the first time on appeal. Nichols v. State, 267 Ala. 217, 100 So.2d 750 (1958); Thornton v. State, 390 So.2d 1093 (Ala.Cr.App.), cert. denied, 390 So.2d 1098 (Ala.1980). We have carefully searched the entire record and fail to see where the defendant questioned[1] the legality of his arrest. Even constitutional rights can be waived on appeal if they are not *220 seasonably raised in the trial court. Fuller v. State, 269 Ala. 312, 113 So.2d 153 (1959); Harris v. State, 347 So.2d 1363 (Ala.Cr. App.), cert. denied, 347 So.2d 1368 (Ala. 1977).
The defendant did call the trial court's attention to Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), but only in reference to the search and seizure aspects of that case. There was no claim that Payton had any application to the defendant's warrantless arrest. Indeed, there would have been no validity to such claim, had it been made, because Payton was decided by the Supreme Court on April 15, 1980, seven days after the defendant's arrest. Payton does not have retroactive applicability. Clements v. State, 390 So.2d 1131, 1135 (Ala.Cr.App.), cert. denied, 390 So.2d 1136 (Ala.1980).
However, even if Payton were applied retroactively, the principles announced in that case would not in any way invalidate the defendant's arrest. There were "exigent circumstances" in this case which would have justified a warrantless entry into his house for the purpose of arrest. 100 S.Ct. at 1378. The defendant's felony arrest in this case was anything but "routine". Some forty minutes before the arrest a police officer had been murdered and all the evidence pointed to the defendant. Clearly, the arresting officers were in "hot pursuit" of the defendant at the time of his early morning arrest. Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Taylor v. State, 399 So.2d 881, 891 (Ala.1981). Even Payton recognized the "hot pursuit" exception. 100 S.Ct. at 1386.
Here, the arresting officers were acting on much more than a "mere suspicion". Without question, the arresting officers had probable cause (or "reasonable cause", as that term is used in Alabama Code, Section 15-10-3(3) (1975)) to arrest the defendant without a warrant. The evidence found at the murder scene implicating the defendant in the crime was overwhelming. As this Court stated in Tice v. State, 386 So.2d 1180, 1183 (Ala.Cr.App.), cert. denied, 386 So.2d 1187 (Ala.1980):
"An officer may arrest without a warrant when `a felony has been committed and he has reasonable cause to believe that the person arrested committed it.' Section 15-10-3, Code of Alabama 1975. The rule of reasonable or probable cause is a `practical, nontechnical conception.' Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949). As defined in Draper v. United States, 358 U.S. 307, 313, 79 S.Ct. 329, 333, 3 L.Ed.2d 327 (1959):
"`Probable cause exists where "the facts and circumstances within their (the arresting officers') knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that" an offense has been or is being committed....' (Citations omitted)
"In determining whether there is probable cause to arrest, it is not necessary that the officer have before him evidence that would support a conviction for the offense. He need only have facts and circumstances within his knowledge which are reasonably trustworthy and which would lead a prudent man to believe that the accused had committed or was committing an offense."
Another appropriate factor to take into consideration in determining the existence of probable cause is the "gravity of the offense." People v. Sirhan, 7 Cal.3d 710, 102 Cal.Rptr. 385, 497 P.2d 1121 (1972).
In applying the above principles of law to the facts and circumstances in this case, we hold that the defendant's warrantless arrest was lawful in all respects.
B
THE WARRANTLESS SEARCH
The warrantless search of the defendant's house after he had been taken into custody and the seizure of the shotgun and shotgun shells were constitutionally permissible due to "the exigencies of the situation." Warden v. Hayden, supra. Even in Payton, the Supreme Court indicated that the result in *221 that case might have been different if exigent circumstances had been present. 100 S.Ct. at 1378.
In Warden v. Hayden, the police entered Hayden's house a short time after Hayden had committed an armed robbery and placed him under arrest. After his warrantless arrest it was reported by officers in the house "that no other man was in the house." In the meanwhile, however, a police officer discovered a shotgun and pistol in the flush tank of a bathroom. A clip of ammunition for the pistol was found under Hayden's mattress and shells for the shotgun were found in a bureau drawer in Hayden's room. The Supreme Court held that these items, as well as items of Hayden's clothing, were properly introduced at Hayden's trial.
"(N)either the entry without warrant to search for the robber, nor the search for him without warrant was invalid. Under the circumstances of this case, `the exigencies of the situation made that course imperative.' McDonald v. United States, 335 U.S. 451, 456 [69 S.Ct. 191, 193, 93 L.Ed. 153]. The police were informed that an armed robbery had taken place, and that the suspect had entered 2111 Cocoa Lane less than five minutes before they reached it. They acted reasonably when they entered the house and began to search for a man of the description they had been given and for weapons which he had used in the robbery or might use against them. The Fourth Amendment does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others. Speed here was essential, and only a thorough search of the house for persons and weapons could have insured that Hayden was the only man present and that the police had control of all weapons which could be used against them or to effect an escape."
87 S.Ct. at 1645-46 (emphasis added).
We find the above rationale applicable in this case. Lieutenant Robinson's testimony made it abundantly clear that at the time the shotgun and shotgun shells were discovered he was attempting to secure the premises for the safety of his men, that "we were looking for anybody else that may have been in the house." At the time the defendant's house was searched, the law enforcement officers did not know how many persons were involved in the murder or if Mahan was the only other occupant of the house. It has been recognized that "the police may need to check the entire premises for safety reasons." Payton, supra, 100 S.Ct. at 1381. And, where the initial intrusion that brings the police within plain view of an incriminating article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is legitimate. Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971).
On the basis of information acquired prior to entry and prior to the defendant's arrest, the police had probable cause to believe that there were at least two people inside the house because of movements inside the residence which they had observed. Because the defendant had been arrested, it was not unreasonable for them to walk through the house to see if others were there. Indeed, under the circumstances of this case, "(i)t was not only prudent to check the house for additional confederates, it would have been careless not to do so. While in the house, the officers had no duty to shut their eyes." United States v. Spanier, 597 F.2d 139, 140 (9th Cir. 1977). Generally, see W. LaFave, 2 Search and Seizure Section 6.4(b) (1978).
In addition to being justified as a search for potential accomplices, the entry into the house was justified under the "protective sweep" doctrine.
"In some situations, the `potentiality for danger surrounding the arrest' may be so high that entry of premises to make a `protective sweep' will be permissible even though the arrest itself was achieved without entry. Typically, the reason no entry was made to arrest is because the police perceived the situation as a very dangerous one and thus took steps to cause the prospective arrestee to *222 exit the premises and submit to arrest outside. Even with that person now in custody, the police may have good reason to doubt whether they can withdraw from the area with their prisoner without being fired upon, in which case an entry and `protective sweep' is justified. Such entries have been upheld when a weapon used in a recent crime by the arrestee or a weapon used by someone in firing at the police from those premises is as yet unaccounted for, and also when police have information the defendant was traveling with armed associates or that the defendant was armed and accompanied by another."
2 LaFave 431 (emphasis added).
C
THE CONFESSION
We have carefully examined the surrounding facts and circumstances attending the confession the defendant made to Sergeant Creekmore in light of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and find no error.
The critical issue is whether the remark the defendant made while being advised of his constitutional rights, "I think I'll let ya'll appoint me one", meant that he wanted a lawyer before answering any questions. We think not. The entire context of this remark is set out above.
The standards for determining whether an accused has waived his right to counsel during interrogation are stated as follows in Edwards, supra:
"(W)aivers of counsel must not only be voluntary, but constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case `upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.'"
101 S.Ct. at 1883-1884.
Here, the defendant stated unequivocally on several occasions following his arrest that he knew his rights and understood them. He repeatedly emphasized the fact that he had been a police officer for four years. Further, he specifically invoked his right to counsel when questioned by the district attorney later in the morning when he said, "I want my lawyer now." This fact demonstrates that he was well aware that he didn't have to answer questions without a lawyer.
In Edwards, it is clear that the accused wanted an attorney "before making a deal" or before answering any further questions. Here, the defendant did not make any definite request for a lawyer before he was questioned. The defendant simply stated, "I think I'll let ya'll appoint me one." In our opinion this statement, at most, indicates that the defendant wanted appointed counsel, as opposed to retained counsel, to represent him. It does not indicate that the defendant was unwilling, or that he even hesitated, to answer Sergeant Creekmore's questions. At no time before or during Sergeant Creekmore's questioning did the defendant specifically request a lawyer to be present even though he was apprised of that right. Under the circumstances of this case, Officer Creekmore was not required to initiate some form of inquiry designed to clarify the defendant's intentions. Williams v. State, 387 So.2d 295, 297 (Ala.Cr. App.1980).
We find that based upon the particular facts and circumstances surrounding this case, including the background, experience and conduct of the defendant, the defendant made a voluntary, knowing and intelligent waiver of counsel before giving his confession.
IV
Upon review of the defendant's refused charges 7, 9, 10 and 11, we find that these instructions were either covered in other requested charges that were given or were substantially covered in the trial court's oral charge. Thus, their refusal was without error. Lambeth v. State, 380 So.2d 923 (Ala.1979); Walker v. State, 265 Ala. 233, 90 So.2d 221 (1956).
*223 V
Finally, it is contended that the trial court committed reversible error in its oral charge by incorrectly placing the burden of proof on the defendant to establish self-defense. That portion of the oral charge to which the defendant duly excepted reads as follows:
"Now, if you believe beyond a reasonable doubt and to a moral certainty that the defendant acted in what he thought was self-defense and that he actually committed this act because he felt that his life was in danger and that he could not get away from there without increasing that danger, then the defendant would be entitled to a verdict of not guilty at your hands."
There can be no question, and it is conceded by the State, that this portion of the oral charge states an incorrect proposition of law. See Lester v. State, 270 Ala. 631, 121 So.2d 110 (1960); Howard v. State, 390 So.2d 1070 (Ala.Cr.App.), cert. denied, 390 So.2d 1077 (Ala.1980). However, this error was harmless under Rule 45, ARAP. It appears from a review of the oral charge that the trial judge decided to instruct on self-defense because he felt there was "the possibility that there might have been evidence of self-defense" and because defense counsel had argued self-defense in closing argument. The undisputed evidence shows that the defendant was not free from fault in bringing on the difficulty and that he was, in fact, the aggressor. He could not, therefore, set up the plea of self-defense. The error in the oral charge placing too great a burden on the defendant to establish self-defense was harmless. Ragsdale v. State, 134 Ala. 24, 32 So. 674 (1901); C. Gamble, McElroy's Alabama Evidence, Section 457.02(5)(a) (3rd Ed. 1977).
At trial, the defense was insanity. The defendant, through the testimony of others, admitted that he shot Officer Dotson but maintained that he suffered from a mental disease or defect. In our opinion, the fact that the jury did not sentence the defendant to death is due solely to the strength of this evidence.
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur.
NOTES
[1] Our review of this case is not governed by Rule 45A, Alabama Rules of Appellate Procedure, the "plain error" rule, because there was no imposition of the death penalty. Graham v. State, 403 So.2d 275 (Ala.Cr.App.1980), cert. denied, 403 So.2d 286 (Ala.1981).
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951 F.2d 354
Chambers (James)v.Bramhall (Dr.)
NO. 91-1225
United States Court of Appeals,Eighth Circuit.
July 02, 1991
1
Appeal From: E.D.Mo.
2
REMANDED.
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 96-2105
___________
Duane Donaldson, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
United States of America, *
* [UNPUBLISHED]
Appellee. *
___________
Submitted: February 18, 1997
Filed: February 28, 1997
___________
Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
___________
PER CURIAM.
Duane D. Donaldson appeals the district court's1 dismissal of
his 28 U.S.C. § 2255 motion challenging his 18 U.S.C. § 924(c)
conviction. Having reviewed the record and the parties' briefs on
appeal, we conclude that the district court properly denied relief
and that no further discussion is warranted. See Bousley v.
Brooks, 97 F.3d 284, 287-88 (8th Cir. 1996). Accordingly, we
affirm. See 8th Cir. R. 47B.
1
The HONORABLE WILLIAM G. CAMBRIDGE, Chief Judge, United
States District Court for the District of Nebraska.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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714 So.2d 698 (1998)
STATE of Louisiana
v.
Raymond NARCISSE.
No. 97-K-3161.
Supreme Court of Louisiana.
June 26, 1998.
*699 PER CURIAM.[*]
Granted. Relator's sentence is vacated and this case is remanded to the district court for resentencing.
A trial court may not require restitution to the victim "unless the imposition or execution of sentencing is suspended." State v. Clark, 93-1470 (La.App. 3 Cir.1994), 643 So.2d 463, 467, writ denied, 94-2715 (La.2/9/95), 649 So.2d 418; State v. Matthews, 572 So.2d 250, 254 (La.App. 1 Cir. 1990), writ denied, 575 So.2d 387 (La.1991). In addition, a trial judge lacks authority under La.R.S. 15:573.1(C) to deny a defendant eligibility for good time credits against his sentence, because that statute is "directed to the Department of Corrections exclusively." State ex rel. Simmons v. Stalder, 93-1852 (La.1/26/96), 666 So.2d 661. Moreover, even the Department of Corrections lacks that authority under La.R.S. 15:571.3(C) in a case in which the trial court has not formally adjudicated and sentenced the defendant as a multiple offender under the provisions of La. R.S. 15:529.1. When the sentencing court is of the opinion that a denial of diminution of sentence is warranted under the specific circumstances of the case, the trial judge's discretion should be exercised under La.C.Cr.P. 890.1(B).
NOTES
[*] Victory, J., not on panel. Rule IV, part 2, § 3.
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144 Conn. 295 (1957)
STATE OF CONNECTICUT
v.
PRESTON HOLLOWAY
Supreme Court of Connecticut.
Argued February 6, 1957.
Decided March 5, 1957.
INGLIS, C. J., BALDWIN, O'SULLIVAN, WYNNE and DALY, JS.
*296 Douglass B. Wright, assistant state's attorney, with whom, on the brief, was Albert S. Bill, state's attorney, for the state.
James D. Cosgrove, public defender, for the defendant.
INGLIS, C. J.
The defendant is charged with a violation of the Uniform State Narcotic Drug Act, third offense, and this reservation seeks the advice of this court on various questions which are certain to enter into the decision of the case in the Superior Court. See Practice Book § 469.
*297 On October 24, 1956, the defendant was arraigned on an information charging him with violation of the narcotics law, third offense. The information was in separate parts. After he had been notified outside the courtroom that one part of the information alleged that he had been twice before convicted of violation of the narcotics law, he pleaded not guilty to the part of the information charging the principal offense and elected a trial before a jury of twelve. On December 12, 1956, he was arraigned on a substituted information which was substantially the same as the one to which he had pleaded on October 24, and he again pleaded not guilty to the principal offense charged and elected trial by jury. Counsel then began to examine prospective jurors on the voir dire. Before the jury were sworn, however, and of course before any evidence was taken, the court ruled that inasmuch as the law provides that the penalty for the crime with which the defendant was charged is life imprisonment, his trial could be had only upon an indictment by a grand jury. Accordingly, the court did not impanel a jury at that time but ordered a grand jury to be summoned for December 18. On that day the grand jury returned a true bill on an indictment against the defendant. This indictment was in two parts. In the first part, denominated "Part A," it was charged that the defendant, at Hartford, on or about July 7, 1956, possessed, had under his control, administered or dispensed narcotic drugs, heroin or morphine, in violation of § 3962 of the General Statutes. Part B of the indictment alleged that the defendant was a third offender under §§ 2103d and 2104d of the 1955 Cumulative Supplement. One of the two prior convictions alleged was a conviction in the United States District Court for the southern district of New York on May 29, 1947, and *298 the other was in the same court on March 26, 1952.
To this indictment the defendant filed a demurrer and a motion to quash. The ground stated in both is that "the previous convictions alleged in Part B of the indictment occurred prior to the effective date of the passage of Sections 2103d and 2104d of the 1955 Supplement." At this stage of the proceedings the parties stipulated for this reservation. The questions propounded are set forth in the footnote.[1]
As regards the first of these questions, the parties are now agreed that the proceedings looking to the selection of a jury to try the defendant on the information but stopping short of the administration of the oath to the jury will not constitute former jeopardy when the defendant is arraigned on the indictment. *299 There can be no doubt that this is the law. State v. Lee, 65 Conn. 265, 273, 30 A. 1110; State v. Garvey, 42 Conn. 232, 233; State v. Benham, 7 Conn. 414, 418; 1 Wharton, Criminal Law (12th Ed.) § 395.
The remaining questions depend for their answer on the interpretation and constitutionality of §§ 2103d and 2104d of the 1955 Cumulative Supplement.[2] These sections went into effect on June 30, 1955.
The contention of the defendant in connection with question 3 is that these sections must be interpreted in such a way that the prior offenses referred to in them must be offenses which were committed after the effective date of the sections. To support this contention he relies on State v. Sanford, 67 Conn. 286, 289, 34 A. 1045. In that case we had before us for interpretation § 1 of chapter 331 of the Public Acts of 1895. This section read: "Every person convicted for a first violation of any of the provisions of the laws relating to the sale of spirituous and intoxicating liquors shall be punished by a fine of not less than ten nor more than two hundred dollars; for a second and all subsequent convictions such person *300 shall be punished by said fine, or by imprisonment not less than ten days nor more than six months, or by such fine and imprisonment both." We held that under this statute a conviction had prior to the effective date of the statute would not count as a first conviction so as to authorize the imposition of the penalty provided for a second or subsequent violation. The rationale of this decision was that the wording of the statute clearly expressed a legislative intent that the only conviction which could qualify as a first conviction would be one had under this particular act. It followed that a conviction which had antedated the act would not qualify, not so much because it was had prior to the effective date of the act in point of time, but rather because, not having been had for a violation of the act of 1895 itself, it was not the sort of violation which was intended by the act to be a prior conviction.
If § 2103d stood alone, we might be compelled to construe it in the same way as the act of 1895 was construed in State v. Sanford, supra, and hold that convictions of violation of the narcotics laws antedating the effective date of § 2103d could not be counted as prior convictions in determining the penalty to be imposed. Section 2103d does not, however, stand alone. It is accompanied by § 2104d, which also went into effect on June 30, 1955. Section 2104d makes it plain that in enacting § 2103d the legislature did not intend to limit the prior convictions which would increase the penalties for subsequent convictions to convictions had under § 2103d. Section 2104d provides that a conviction of violation of the narcotics laws of the United States or of any other state should be deemed a first or second offense for the purposes of § 2103d. Because of this provision, the reasoning which led to the conclusion in *301 the Sanford case, supra, does not apply in the construction of § 2103d. In fact, the prior convictions charged in the indictment in the present case, since they are convictions of violation of the narcotics laws of the United States, are, by the express terms of § 2104d, such convictions as are deemed to be first and second offenses under § 2103d. Section 2103d is to be so construed that convictions of violation of the narcotics laws prior to the effective date of that section may be treated as previous offenses within the meaning of the act.
This construction of the act raises the question whether it is unconstitutional on the ground that it operates ex post facto. In resolving that question, the crucial fact is that § 2103d does not undertake to provide punishment for any crime committed prior to the date when it went into effect. The punishment provided is for a violation of the narcotics law which occurs subsequent to the effective date of the section. The only effect that a conviction antedating the statute has is to enhance the penalty to be imposed for a violation of the narcotics law. The theory of § 2103d is not that a person shall be punished a second time for an earlier offense but that the principal offense for which the person is being prosecuted under the statute is made more serious by reason of its being a repetition of an earlier offense or earlier offenses. State v. Mead, 130 Conn. 106,108, 32 A.2d 273; State v. Reilly, 94 Conn. 698, 702,110 A. 550. Consequently, in no sense does the statute operate ex post facto. 16A C.J.S. 161, § 450.
The fifth question propounded in the reservation is whether the procedure adopted in this case with reference to the form of the indictment was correct. The indictment was in two parts. On one page was part A, charging the principal offense, and on a *302 separate page was part B, alleging the former convictions. Each page was indorsed "A True Bill" by the grand jury. Preparatory to arraignment on part A of the indictment, the accused was informed, in the absence of the court, that he was being charged as a third offender. There can be no question that this was the correct procedure. Practice Book § 340; State v. Ferrone, 96 Conn. 160,175,113 A. 452; State v. Delmonto, 110 Conn. 298, 301,147 A. 825. On the strength of the same authorities, trial should first be had on part A of the indictment and then, if a verdict of guilty is returned, the defendant should be put to plea and, if necessary, to trial on part B of the indictment.
Question two propounded by the stipulation is whether it was proper procedure to procure an indictment in this case. The statute provides that the penalty for any offense subsequent to the second shall be imprisonment for life. Both article first, § 9, of the state constitution and § 8747 of the General Statutes require an indictment by a grand jury in all cases in which the penalty to be imposed may be life imprisonment. It was, therefore, necessary to base the prosecution of this case upon an indictment rather than an information.
From the fact that the defendant will be open to the hazard of life imprisonment, it follows that he is entitled to eighteen peremptory challenges in the course of selecting the jury for his trial on part A of the indictment. Cum. Sup. 1955, § 3163d.[3]
We answer questions 2, 3, 5, 6 and 7 in the affirmative, and questions 1 and 4 in the negative.
*303 No costs in this court will be taxed in favor of either party.
In this opinion the other judges concurred.
NOTES
[1] "1. Did the selection of twelve jurors on the voir dire, which took place on December 12, 1956, constitute a placing of Holloway in jeopardy so that he could not be subjected to a trial upon the Indictment rendered by the Grand Jury?
"2. Was the procedure of proceeding by an Indictment before a Grand Jury the proper procedure in this case?
"3. Do the provisions of Sections 2103d and 2104d of the 1955 Supplement to the Connecticut General Statutes apply where an accused has been convicted of an earlier offense prior to October 1, 1955?
"4. If Sections 2103d and 2104d of the 1955 Supplement to the Connecticut General Statutes do apply to earlier offenses committed prior to October 1, 1955, do they make the possible penalty of life imprisonment ex post facto under our law?
"5. Is the procedure of separating the Indictment into two parts consistent with Section 340 of the Connecticut Practice Book which requires that a second offender or subsequent offender shall be informed of the second part of the Information in the absence of the Court?
"6. If the answer to Question 5 is yes, should trial before the petit jury be commenced on Part A alone; and should Part B of the Indictment be kept away from the knowledge of the petit jury?
"7. In the trial of Part A of the Indictment, is the accused entitled to eighteen challenges as provided in Section 3163d of the 1955 Supplement to the Connecticut General Statutes, Revision of 1949, where the offense is punishable by life imprisonment?"
[2] "Sec. 2103d. PENALTY. Any person who violates any provision of this chapter, for the first offense, shall be fined not less than five hundred dollars nor more than three thousand dollars and imprisoned not less than five years nor more than ten years, or be both fined and imprisoned; and for a second offense, shall be fined not less than two thousand dollars nor more than five thousand dollars and imprisoned in the State Prison not less than ten nor more than fifteen years, or be both fined and imprisoned; and for any subsequent offense shall be imprisoned in the State Prison for life.
"Sec. 2104d. CONVICTION IN OTHER JURISDICTION. In the case of any person charged with a violation of any of the provisions of this chapter who has been previously convicted of a violation of the laws of the United States or of any other state, territory or the District of Columbia, relating to narcotics, drugs or marihuana, such previous conviction shall, for the purpose of section 2103d or 2105d, be deemed a first or second offense, as the case may be."
[3] The question and answer on this phase of the case assumed that there would be alternate jurors. Where there are to be no alternate jurors, one accused of an offense punishable by life imprisonment is entitled to fifteen peremptory challenges. § 3327d.
Reporter
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1265
GERALD HENNEGHAN,
Plaintiff - Appellant,
versus
SIGNET CONSTRUCTION COMPANY, LLC; SIGNET
REALTY CONSTRUCTION COMPANY, LLC; SIGNET
REALTY - BEALMONT 8&9, LLC; CH BUILDERS LLC;
LOUIS J. CLEMENTE; MARK A. HIGGS; JOHNNY D.
MOSELEY; MARK A. BLANCHIETTI HOLLANDER,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:06-cv-01443-LMB)
Submitted: July 20, 2007 Decided: August 8, 2007
Before MICHAEL and DUNCAN, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Dismissed by unpublished per curiam opinion.
Gerald Henneghan, Appellant Pro Se. Lauri Elizabeth Cleary, LERCH,
EARLY & BREWER, CHARTERED, Bethesda, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Gerald Henneghan seeks to appeal the district court’s
order dismissing his civil complaint with respect to some
Defendants and granting Henneghan ten days to amend his complaint
with respect to the remaining Defendant. This court may exercise
jurisdiction only over final orders, 28 U.S.C. § 1291 (2000), and
certain interlocutory and collateral orders, 28 U.S.C. § 1292
(2000); Fed. R. Civ. P. 54(b); Cohen v. Beneficial Indus. Loan
Corp., 337 U.S. 541 (1949). The order Henneghan seeks to appeal is
neither a final order nor an appealable interlocutory or collateral
order. Accordingly, we dismiss the appeal for lack of
jurisdiction. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
DISMISSED
- 2 -
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540 U.S. 972
NELSONv.BERGHUIS, WARDEN.
No. 03-6137.
Supreme Court of United States.
October 20, 2003.
1
Appeal from the C. A. 6th Cir.
2
Certiorari denied.
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447 S.E.2d 887 (1994)
191 W.Va. 686
STATE of West Virginia ex rel. Darrell E. HOLMES, Clerk of the Senate of West Virginia, and Donald L. Kopp, Clerk of the House of Delegates of West Virginia, Relators,
v.
Glen B. GAINER III, Auditor of the State of West Virginia, Respondent, and
The Honorable Herman Canady, Judge of the Circuit Court of Kanawha County, West Virginia, Respondent,
Donna J. Boley and Robert P. Pulliam, M.D., Intervenors.
No. 22226.
Supreme Court of Appeals of West Virginia.
Submitted June 7, 1994.
Decided July 20, 1994.
*889 Joseph R. Goodwin, Debra C. Price, Goodwin & Goodwin, Charleston, for relators.
Silas B. Taylor, Sr. Deputy Atty. Gen., Charleston, for respondent.
James B. Lees, Jr., Hunt, Lees, Farrell & Kessler, Charleston, for intervenors.
*888 MILLER, Justice:
The relators, Darrell E. Holmes, Clerk of the Senate of West Virginia, and Donald L. Kopp, Clerk of the House of Delegates of West Virginia, on April 5, 1994, filed this original petition for a writ of mandamus against the respondent, Glen B. Gainer III, Auditor of the State of West Virginia, and for a writ of prohibition against the respondent, the Honorable Herman Canady, Judge of the Circuit Court of Kanawha County. Subsequently, we permitted Donna J. Boley and Robert P. Pulliam, M.D., to appear as intervenors and gave them the right to take depositions and to file interrogatories. This matter was set for a full hearing on June 7, 1994.
The relators seek a writ of mandamus to compel the State Auditor to perform his statutory duty to issue warrants for the payment of salaries and expenses for the members of the Legislature and others pursuant to House Bill 4031 (Bill). This Bill was passed by the West Virginia Legislature during the 1994 session. The State Auditor is authorized to issue warrants for the payment of legislative compensation and expense allowances pursuant to W.Va.Code, 12-3-1 (1990), and W.Va.Code, 12-3-5 (1923). At issue is the validity of the legislative pay raise contained in the Bill. The Auditor contends that the procedures used in adopting the Bill did not conform to the requirements of Section 33 of Article VI of the West Virginia Constitution relating to pay raises for members of the West Virginia Legislature.
The relators also sought a writ of prohibition ordering Judge Canady to refrain from hearing a declaratory judgment action currently pending in the circuit court which basically involves the same matters at issue in this case. In the alternative, they asked that the circuit court proceeding be stayed pending resolution of this petition.[1]
Section 33 of Article VI of the West Virginia Constitution established a Citizens Legislative Compensation Commission (Commission) and vested the Commission with the authority to submit to the West Virginia Legislature its resolution determining compensation *890 and expense allowances for members of the Legislature.[2] On March 3, 1994, the Commission endorsed a "Resolution Submitting Recommendations with Respect to Compensation and Expense Allowances." The resolution was submitted to the West Virginia Legislature at its regular session on March 3, 1994, the same date it was adopted by the Commission.
After submission of the resolution to the Legislature, it was enacted into the Bill, which amended W.Va.Code, 4-2A-1, et seq., to increase the compensation and expense allowances of the legislators. The Bill also increased the salaries of other State officials and the judiciary.[3] On March 19, 1994, the Honorable Gaston Caperton, Governor of the State of West Virginia, signed the Bill into law.
The issues before this Court are simply (1) whether the requirements for setting legislative compensation and expense allowances under Section 33 of Article VI of our Constitution were followed properly, and (2) whether contact by members of the Legislature with members of the Commission violated due process such that the increased compensation and expense allowances for the Legislature should be held invalid.
I.
We first address the question of the constitutionality of the Commission's resolution that resulted from its meeting on March 3, 1994. A review of the history of Section 33 of Article VI of the West Virginia Constitution is of some value to gain insight into the adoption of this 1970 amendment. Prior to *891 the adoption of Section 33 of Article VI in its current form, which was ratified by the voters on November 3, 1970, passage of a separate constitutional amendment was required to increase the compensation and expense allowances of members of the Legislature.[4] This constitutional requirement made it extremely difficult to get a legislative compensation constitutional amendment to increase legislative salaries passed with any frequency by the voters. This difficulty, undoubtedly, was the chief impetus behind the 1970 amendment which was designed to liberalize the ability to increase legislative compensation and expense allowances. Many states have more liberal procedures that allow the members of their legislatures to increase their pay without voter approval at any time. In some states, the raise does not take effect in the session in which it was voted,[5] while in other states, the raise does not take effect during the term of the legislators voting on it.[6]
The relators argue that the resolution on compensation and expense allowances submitted by the Commission and reduced to the Bill complies with the mandate of Section 33 of Article VI. They point to the ten words at the beginning of the third paragraph of Section 33: "The commission shall meet as often as may be necessary[.]" They claim that this language provides that the Commission can meet as many times as desired and also can offer a resolution on compensation and expense allowances each time. Consequently, the relators contend that the Legislature can reduce the resolution to a Bill any time after the resolution is submitted.
On the other hand, the intervenors argue that the relators' interpretation of Section 33 of Article VI of the West Virginia Constitution completely ignores the remaining language of the third paragraph relating to submission of a resolution on compensation and expense allowances by the Commission to the Legislature every four years.[7] They contend that under this language, the Commission can submit a resolution on compensation and expense allowances only once every four years based on a quadrennial cycle starting with the 1971 regular legislative session. They also state that such submission must be made within fifteen days after the beginning of the regular session, which was not done in this case.
We have not had occasion to interpret this provision. There are two Attorney General opinions that have touched on this question. The first opinion was issued on March 1, 1977, by the Honorable Chauncey H. Browning, Jr., Attorney General, to William C. Campbell, the Chairman of the Commission. Mr. Campbell had inquired whether the *892 Commission could send its resolution on compensation and expense allowances to the Legislature at intervals of less than four years. Attorney General Browning, after quoting the third paragraph of Section 33 of Article VI, concluded that a resolution must be submitted at least every four years, but one could be submitted more often. See 57 Atty.Gen.Op. 115 (March 1, 1977).[8] Much the same reasoning was used by the Honorable Darrell V. McGraw, Jr., Attorney General, in his opinion dated March 9, 1994, addressed to the Honorable Keith Burdette, President of the Senate.
We recognized in Walter v. Ritchie, 156 W.Va. 98, 109, 191 S.E.2d 275, 282 (1972), that: "Although an opinion of the attorney general is not binding upon this Court it is persuasive when it is issued rather contemporaneous with the adoption of the statute in question. See State ex rel. Battle v. Baltimore and Ohio Railroad Company, 149 W.Va. 810, 837, 838, 143 S.E.2d 331[, 347, 348] (1965)." However, in this case, we believe the Attorney General opinions failed to take into account the historical background surrounding the adoption of Section 33 of Article VI.
We also find there is an ambiguity in the third paragraph of Section 33. This ambiguity in the third paragraph arises because there is no mandatory language clearly stating that the Commission's resolution on compensation and expense allowances can be submitted only once every four years. Moreover, it is difficult to imply such a meaning as it would tend to negate the language that allows the Commission to meet as often as possible. When an ambiguity occurs, we apply the rule set out in Syllabus Point 1 of Winkler v. State School Building Authority, 189 W.Va. 748, 434 S.E.2d 420 (1993):
"Questions of constitutional construction are in the main governed by the same general rules applied in statutory construction."
See also State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973).
It was this ambiguity which caused the two Attorney General opinions to hold that the Commission could submit a resolution more often than every four years. However, such an interpretation allowing the Commission to meet more frequently than every four years does not necessarily simply that it can submit a resolution at any time after it meets. This type of construction would emasculate the language in the latter portion of the third paragraph which sets out the four-year cycle beginning after the 1971 regular session of the Legislature, which would be contrary to our normal rule requiring us to consider all parts of a constitutional or statutory provision. As we set out in Syllabus Point 3 of Jeffrey v. Jeffrey, 188 W.Va. 476, 425 S.E.2d 152 (1992):
"`"In ascertaining legislative intent, effect must be given to each part of the statute and the statute as a whole so as to accomplish the general purpose of the legislation." Syl. Pt. 2, Smith v. State Workmen's Compensation Comm'r, 159 W.Va. 108, 219 S.E.2d 361 (1975).' Syl. Pt. 3, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984)."
It is our view that this ambiguity can best be resolved by holding that what was intended was to allow the Commission to have considerable latitude in the frequency of its meetings. However, its resolution on compensation and expense allowances must be submitted to the Legislature at sessions occurring at four-year cycles calculated from the 1971 regular session of the Legislature. Such an interpretation gives meaning to both *893 parts of the third paragraph of Section 33. Moreover, it comports with the historical analysis of the reasoning behind Section 33 of Article VI, which was designed to loosen the extremely restrictive constitutional limitation that precluded any increase in legislative compensation and expense allowances unless it was voted on by the citizens.
From an historical standpoint, we do not believe that the Legislature in 1970, when it adopted the amendment of Section 33 of Article VI creating the Commission, which was ratified by the voters, contemplated that it would receive a resolution for compensation and expense allowances from the Commission more often than every four years. Nor do we believe that, in view of past history, the voters who approved the amendment thought otherwise.
We also conclude that Section 33 of Article VI, which allows the Commission to meet as often as necessary, is designed to give the Commission ample opportunity to examine legislation from other states and determine what would be a reasonable increase in legislative compensation and expense allowances. Moreover, because the Commission's resolution must be submitted within fifteen days after the beginning of the legislative session, the Commission needs the opportunity to meet as often as necessary in advance of the legislative session to permit input from interested citizens.
Consequently, we hold that Section 33 of Article VI allows the Commission to meet as often as necessary. However, Section 33 restricts the Commission from submitting to the Legislature its resolution on compensation and expense allowances except on a quadrennial basis calculated from the 1971 legislative session. There is nothing in this section that requires the Legislature to act on the resolution at the legislative session when it is first submitted. Once the Commission's resolution is properly submitted, the Legislature may act on it at any time during the four-year cycle before the next resolution is required to be submitted.
Although we conclude that the Commission and the Legislature failed to follow the provisions of Section 33 of Article VI, as we now construe them, we decline to strike the increase in legislative compensation and expense allowances. As we have indicated, there has been no authoritative interpretation of Section 33 of Article VI before this case. Indeed, as we earlier observed, the two Attorney General opinions would point to an interpretation that would justify the actions taken by the Commission and the Legislature.
In Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979), we discussed at some length the question of what effect our judicial opinion should have as to a pending case and to past events under what is termed the concept of retroactivity. In Bradley, we made this general summary in Syllabus Point 5:
"In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater the need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions."
See also Syllabus Point 2, Devrnja v. West Virginia Bd. of Medicine, 185 W.Va. 594, 408 S.E.2d 346 (1991); Geibel v. Clark, 185 W.Va. *894 505, 510, 408 S.E.2d 84, 89 (1991); Syllabus Point 2, Ashland Oil, Inc. v. Rose, 177 W.Va. 20, 350 S.E.2d 531 (1986); Daily Gazette Co., Inc. v. Committee on Legal Ethics, 176 W.Va. 550, 551-52, 346 S.E.2d 341, 342-43 (1985); Bond v. City of Huntington, 166 W.Va. 581, 600, 276 S.E.2d 539, 549 (1981); Syllabus Point 3, Ables v. Mooney, 164 W.Va. 19, 264 S.E.2d 424 (1979).
More recently in Winkler, supra, we considered the retroactivity of an opinion in which we held that a proposed issuance of bonds to finance school improvements was unconstitutional because it violated the debt restriction provision contained in Section 4 of Article X of the West Virginia Constitution. We refused to invalidate similar bonds that were issued prior to the date of the opinion, as summarized in Syllabus Point 9 of Winkler: "Based upon our general principles of retroactivity of judicial decisions, revenue bonds issued by the State of West Virginia School Building Authority pursuant to W.Va.Code, 18-9D-1, et seq., prior to the date of this opinion are not invalid."
As we noted in Syllabus Point 5 of Bradley, supra, we generally will make an opinion prospective only where "substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent." Here, although there is no judicial precedent construing Section 33 of Article VI, there are two opinions from two different Attorney Generals indicating that the resolution on compensation and expense allowances could be filed and acted upon within the four-year cycle. Certainly, the questions in this case involve a substantial public issue as they challenge the entire procedure for obtaining increases in legislative compensation and expense allowances. These are matters in which the public, as taxpayers, have a vital interest. Consequently, we hold that based upon our general principles of retroactivity of judicial opinions, the legislative compensation and expense allowances contained in the Bill are not invalid. Thus, under Bradley, supra, we give only prospective operation to this opinion. However, in the future, both the Commission and the Legislature will be bound by the dictates of this opinion.
II.
A subsidiary attack is made on the Bill because the Commission failed to file its resolution within fifteen days from the opening of the legislative session, as required by Section 33 of Article VI. This late filing was occasioned by the fact that there were four vacancies on the seven-member Commission before the beginning of the 1994 legislative session. These vacancies were not filled by the Governor until February 7 and 11, 1994, after the Legislature was in session. These appointments were made after the fifteen-day deadline for filing the Commission's resolution.
We are not cited nor have we found a case that discusses what effect a governor's failure to appoint members of an administrative agency will have on the agency's ability to meet a statutory or constitutional deadline. However, in the past, we have attempted to solve situations that arise because of the lack of executive appointments to an administrative agency by fashioning some reasonable relief. It is apparent that an executive official could through a statutory appointment authority virtually paralyze the operation of an administrative agency by failing to exercise this power of appointment. Thus, in State ex rel. Brotherton v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976), we held that a writ of mandamus would lie to compel the Governor to exercise his power of appointment.[9]
In Serian v. State By and Through West Virginia Board of Optometry, 171 W.Va. 114, 297 S.E.2d 889 (1982), we held that the Governor's failure to appoint a lay member to the Board of Optometry, as required by statute, would not deprive the Board of its jurisdiction to hear a license revocation case. More recently in Francis O. Day Co. v. West Virginia Reclamation Board of Review, 188 *895 W.Va. 418, 424 S.E.2d 763 (1992), the Board of Review lacked the four votes required by statute from a seven-member board because of the absence of a member. The Board split three to three, and it then took no action on the administrative appeal because there were not the statutory four votes. We held that the Board must enter an order allowing an appeal to the next higher tribunal rather than delay the entire administrative decision.[10]
These cases demonstrate this Court's concern that an administrative agency or a commission should not be crippled by actions that are entirely beyond its control, which would destroy the reasonable expectations of the parties who are the beneficiaries of its jurisdiction. Consequently, we conclude that the late filing by the Commission of its resolution beyond the fifteen-day period set in Section 33 of Article VI of the Constitution will not defeat the resolution where it was occasioned by the lack of a quorum by reason of executive delay in making the appointments.
III.
Finally, we address the intervenors' due process claims which are predicated on the fact that some members of the Legislature contacted members of the Commission regarding their views as to the amount of legislative compensation and expense allowances that the Commission should recommend. This issue was not raised by the respondent Auditor Gainer. The intervenors cited no law to support this issue in their brief filed on June 3, 1994, four days before the scheduled final arguments. During the course of oral arguments, the intervenors cited two casesHome Box Office, Inc. v. Federal Communications Commission, 567 F.2d 9 (D.C.Cir.1977), and Portland Audubon Society v. The Endangered Species Committee, 984 F.2d 1534 (9th Cir.1993). Portland Audubon involves provisions of the Federal Administrative Procedure Act, which specifically ban ex parte communications under 5 U.S.C. § 557(d)(1) and (2) (1976). We, of course, are not controlled by the Federal Administrative Procedures Act nor does our Administrative Procedures Act, W.Va.Code, 29A-1-1, et seq., contain similar language.[11] The issue in Home Box Office involved federal rulemaking by the Federal Communications Commission where there appears to be some restriction on ex parte communications under 5 U.S.C. § 553(c) (1966).
Whatever due process force Home Box Office, supra, may be said to have outside the restrictions contained in the Federal Administrative Procedures Act was not recognized by the same court in its later opinion in Sierra Club v. Costle, 657 F.2d 298 (D.C.Cir.1981).[12] In Sierra Club, the court, after footnoting a variety of commentators' views regarding ex parte communications involving informal rulemaking of a policymaking sort, came to this conclusion:
"Under our system of government, the very legitimacy of general policymaking performed by unelected administrators depends in no small part upon the openness, accessibility, and amenability of these officials to the needs and ideas of the public from whom their ultimate authority derives, and upon whom their commands must fall. As judges we are insulated from these pressures because of the nature *896 of the judicial process in which we participate; but we must refrain from the easy temptation to look askance at all face-to-face lobbying efforts, regardless of the forum in which they occur, merely because we see them as inappropriate in the judicial context. Furthermore, the importance to effective regulation of continuing contact with a regulated industry, other affected groups, and the public cannot be underestimated. Informal contacts may enable the agency to win needed support for its program, reduce future enforcement requirements by helping those regulated to anticipate and shape their plans for the future, and spur the provision of information which the agency needs." 657 F.2d at 400-01. (Footnotes omitted).
In this case, we view the Commission, at best, as a limited administrative agency empowered to act on the very narrow issue of legislative compensation and expense allowances. Its resolution may be considered as policymaking of a sort, but we agree with the foregoing statement from Sierra Club and its conclusion that it would not impose a judicial prohibition fashioned under a due process rubric on ex parte communications to informal administrative proceedings. Based on the above, we find no merit in the intervenors' due process argument.
IV.
In conclusion and for the reasons stated in this opinion, we issue a writ of mandamus directing Auditor Gainer to process the legislative compensation and expense allowances in accordance with the terms contained in the Bill. Moreover, we issue a writ of prohibition against Judge Canady directing that he proceed no further with the declaratory judgment action involving the issues resolved by this opinion.
Writs granted.
NEELY, Justice, dissenting in part:
I dissent to the court's holding that W.Va.Const. Art. VI, § 33 prohibits the commission from submitting a proposal for a pay increase other than once every four years. The majority uses phrases such as "[i]t is our view" and "we do not believe"; however, our "view" and our "belief" have nothing to do with the matter. The plain wording of W.Va. Const. Art. VI, § 33 permits the commission "to meet as often as may be necessary and shall within fifteen days after the beginning of the regular session of the legislature in the year one thousand nine hundred seventy-one and within fifteen days after the beginning of the regular session in each fourth year thereafter submit by resolution to the legislature its determination of compensation and expense allowances, which resolution must be concurred in by at least four members of the commission."
The plain words of § 33 allows the commission to meet as often as it wishes, but it must submit a resolution every four years. There is nothing contradictory or ambiguous in these provisions, since as the facts of this case demonstrate, governors may be surpassingly reluctant to appoint commissions disposed to adjust legislative pay in an equitable way.
At the heart of this case is a loathing of all politicians in general and a peculiar distaste for legislators in particular. I take time to dissent in part because I believe that someone should point out that the Legislature are the heros and not the villains of the democratic process.
It was in the Legislature, over twenty-two years ago, that I held my first elective office, and those years were a far greater education than I had ever received at Dartmouth College or Yale Law School. I remember that the senators and delegates with whom I served during those years were among the highest quality people with whom I was ever associatedthen or nowand the process of striking the right balance among competing interests was, perhaps, the greatest challenge and most compelling experience of my life.
But the problems that confronted us in those halcyon days of economic boom and federal revenue sharing were as child's play compared to the problems that confront our Legislature today. Thus, it is the Legislaturenot this court, not the governor, and not the host of indifferent, merit-selection, colorless, odorless and tasteless, coffee-sucking *897 bureaucratswho must undertake the demanding and unenviable task of rescuing a suffering West Virginia from the succession of tragedies and reversals that have daunted our progress for the last fourteen years.
The reason that all legislators are unpopular and thought deserving of economic penalties is that the legislature is the great crucible of democracya monument to humane and gentle government, characterized by accommodation and measured straining in opposite directions. Had I not served in the House of Delegates, I would never have understood the full dimensions of the Founding Fathers' towering vision, nor would I have appreciated the complaints that the leaders in recently freed Eastern European countries have voiced that their societies hang in the balance simply because of their own lack of experience in democratic institutions.
Although the legislature is regularly taken for granted here, it is interesting to reflect what a contribution to the peace, order and prosperity of the world would attend the peppering of Eastern Europe with just two hundred alumni and alumnae of either house of the West Virginia Legislature. How much would a citizens' compensation commission in Ukraine, Hungary, or Belarus pay our legislators to sort things out in a peaceful way that would save thousands of lives and billions of dollars in property?
The reason for the Legislature's generally low esteem is that any legislature worth its salt is essentially in the business of allocating scarce resources among competing ends. Regretfully, a legislature is seldom called upon to decide between right and wrong; rather, legislatures are called upon to decide between right and right, and that always leaves everyone who doesn't get everything he or she wants dissatisfied. Perennial legislative fights involve rich versus poor, developer versus environmentalist, capital versus labor, minorities versus majorities, women versus men, pro-choice advocates versus right-to-life advocates, industry versus agriculture, recipients of social services versus taxpayers, parents and children versus teachers and school boards, landlords versus tenants, and creditors versus debtors.
There are some legislators who are lazy, incompetent and generally despicable, just as there are such judges, plumbers, doctors, garage mechanics, and internal revenue agents. But the great majority of legislators work far beyond the hours demanded by the sixty day regular session. Part-time legislators must work as hard to get elected as officeholders who win full time jobs, and many legislators work as hard at being legislators as those holding full time jobs when all the hours of constituent telephone calls, town meetings, reading and answering correspondence, and campaigning (which essentially involves the useful work of meeting constituents and listening to their concerns) are taken into account.
All this returns me, then, to an analysis of what was behind the wording of W.Va. Const. Art. VI, § 33. Given the pervasive hostility to legislators, it was thought necessary to require the commission to meet at least once every four years and to issue a report. However, to the extent the commission was disposed to do so, it could meet more frequently and report as often as it wished.
Now all of this makes perfectly good sense if we realize that the Legislature has not raised its pay every four years or even come close. This is only the third pay raise the legislature has afforded itself since 1971! In years when money is tight for teachers, public employees, judges, and the state police, the Legislature can hardly give itself a raise even if such a year falls upon the majority's magic fourth year. Occasionally it is politically possible to include the Legislature in a general raise, as occurred in 1994, and when that happens the Legislature shouldlike every other public employee, teacher, judge, and cophave the benefit of having their salaries based on the fair value of their services in the year the raise is passed.
BROTHERTON, Chief Justice, Dissenting:
I dissent to the majority opinion.
I concede that this is a masterfully drafted opinion, because only an opinion which has been so carefully crafted could lull the reader into believing that it is proper to hold that a constitutional provision means one thing today, *898 but another tomorrow. In upholding House Bill 4031, the majority uses enough smoke and mirrors to put the modern-day illusionist David Copperfield to shame. Just as Copperfield made the Statue of Liberty disappear and later reappear, so the majority makes the Constitution disappear in 1994 and reappear in 1995.
The majority upholds the validity of House Bill 4031 on the flimsy basis of two Attorney General opinions, the failure of the Governor of this State to perform a discretionary duty, and the doctrine of retroactivity.
Quite frankly, I have never known this Court to use the opinion of an Attorney General as a crutch to declare an act of the Legislature valid.[1] In fact, the majority cited two cases as standing for the proposition that opinions of the Attorney General are merely persuasive, not binding. The majority then concluded: "However, in this case we believe the Attorney General opinions failed to take into account the historical background surrounding the adoption of § 33 of Article VI." Therefore, the majority implies that these opinions were wrong. Yet, these opinions are considered justification for holding House Bill 4031 valid.
The majority correctly states that the Attorney General opinions are incorrect. However, they essentially conclude that because they believe Article VI, § 33 to be ambiguous, the Legislature should not be penalized for relying on what the majority determined to be the incorrect interpretation.[2] I disagree. Just because the Attorney Generals couldn't read and understand the plain meaning of the section doesn't mean that the section is ambiguous. The majority even admits that in the future the Commission's recommendation must be submitted in the first fifteen days of a regular session in four-year cycles which began in 1971. Yet, this resolution was submitted long after the first fifteen days of the 1994 regular session and not in the fourth year of the cycle. It is clearly the "obvious" interpretation of § 33and the majority opinion so holds for the futurethat compensation resolutions can only be submitted in four-year cycles which began in 1971. However, the majority dances around the maypole and declares the obvious ambiguous.
The second illusion used in the majority opinion concerns the Governor's failure to perform his duty to appoint a sufficient number of citizens to the Commission to create a quorum in order that the Commission could meet. Is that a valid reason to declare an unconstitutional act of the Legislature valid? As a matter of fact, the Governor cannot be faulted for reading Article VI, § 33 of the Constitution (as the majority interprets it beginning in 1995) as stating that a resolution must be submitted within the first fifteen days of a regular legislative session in the fourth year, calculated from 1971. That being true, when he was pressured by the Legislaturenot by citizens, but by the Legislatureto fill the vacancies on the Commission with their recommendations, he certainly had a right to believe that the fifteen-day period had passed and that 1994 was not the fourth year, as calculated from the 1971 regular session. The majority admits, in discussing the Governor's failure to fill the vacancies on the Commission, that they cannot find any case law that would govern the effect of the Governor's failure to appoint members to the Commission. To put part of the blame for the passage of House Bill 4031 on the Governor is simply unconscionable.
One of the fallacies in the majority's reasoning is that they treat the Citizens Legislative Compensation Commission as an administrative agency in theory, if not in actual fact. It is not. It is a constitutional commission created by the citizens of the State when they approved the constitutional amendment in Article VI, § 33. The majority cites a number of cases, such as State ex rel. Brotherton *899 v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976) and Serian v. State by and through the West Virginia Board of Optometry, 171 W.Va. 114, 297 S.E.2d 889 (1982), for the proposition that failure of the executive to appoint people to statutory boards paralyzes the operation of administrative agencies. Those cases involved administrative agencies performing necessary functions in order for the agency to operate properly. That is not true in this case. Regardless of whether the Commission ever met, the Legislature could still operate. The compensation and expenses the legislators receive as a result of the Commission's recommendations have nothing to do with the general operation of the legislative branch of government.
I also find that applying the principle of retroactivity is unnecessary in this case. According to Article VI, § 33, and the majority opinion, the year 1995 will be the proper year in which a compensation resolution should be submitted to the Legislature. Rather than tortuously attempt to hold House Bill 4031 valid, the majority should have held House Bill 4031 unconstitutional and pointed out that, in accordance with their opinion as to the proper interpretation of Article VI, § 33, a similar resolution could properly be submitted in the first fifteen days of the regular session in January, 1995. That simple solution does not require this Court to manipulate precedent to stand as authority for their decision to make improper actions valid.
That being said, I also dissent because the petitioners, intervenors, and the majority miss the heart of the issue: The deprivation of the citizens' rights through the abuse of legislative power.[3] This has become all too prevalent in this day and age.
As the majority points out, prior to the adoption of Article VI, § 33 of the West Virginia Constitution, as amended in 1970, the Legislature had to go to the citizens of this State with a constitutional amendment requesting a pay raise. To have even a hope of obtaining approval of such a request, the Legislature had to include additional duties in order to justify the increased compensation. In the general election of 1970, the citizens were persuaded to give up their constitutional right to control the compensation of legislators by delegating that power to a Citizens Legislative Compensation Commission, which is a constitutional citizens commission, not a government or statutory commission. For the first time, this amendment allowed the Citizens Commission to set compensation, allowances, and expenses. The citizens did not relinquish this power lightly.
In reading the amendment, you realize, as the legislature did in 1970, that in order to approve the amendment, the citizens had to be assured that the Legislature would have nothing to do with setting their own compensation. That was accomplished by the following provisions of § 33: (1) The Commission shall be composed of seven members who have been residents of this State for at least ten years prior to the date of appointment; (2) members are to be appointed by the Governor of this State without the need of confirmation of the Senate; (3) the members shall be broadly representative of the public at large; and (4) members of the Legislature and officers and employees of the State or of any county, municipality, or other governmental unit of the State shall not be eligible for appointment to or serve as a member of the Commission. How much clearer can it be? The Legislature should have no control over the determination of their own compensation, allowances, or expenses.
But did that happen in the passage of House Bill 4031? Clearly not. In the closing weeks of the 1994 regular session of the Legislature, the Governor was coerced by legislatorsnot citizens, legislators into making appointments to the Commission of people recommended by the legislators. Why do I say coerced? Because the Governor's legislative program was stalled in the Legislature, and if he was to get any of his programs passed, the demand was to fill the vacancies on the Commission with legislative recommendations. The President of the West Virginia Senate, not a member of the Commission with whom the power to call meetings was vested, wrote a letter to the *900 Attorney General requesting an opinion as to when the Commission could meet. Legislators contacted the proposed chairman of the Commission prior to the Governor's appointment about his feelings on a legislative pay raise, including the amount, and got an agreement as to how certain travel expenses would be handled in the future.
So, it was no surprise at all that a typed compensation and expense resolution, with fill-in blanks as to amount, was sent to the Commission members, including the new ones, as the agenda for the only Commission meeting held prior to submission of the resolution on March 3, 1994. The resolution included intricate details about payment of compensation for extra duties performed by legislators and even delegated to certain legislative leaders the Commission's power to set extra compensation for some members. The record of the meeting is devoid of any discussion by the Commission about these matters. Nor was there any discussion about any of the matters contained in the typed resolution, by the Chairman concerning his private conversations with legislators or by any member of the Legislature appearing before the Commission, to explain the need for the proposed items in the resolution. Nor did the Commission attempt to call any legislator or legislative staff to explore the need for a pay raise, as you would think a duly independent Citizens Commission would do, before recommending an increase in compensation from $6,500.00 to $20,000.00.
Can anyone believe that this was not a legislative preemption of the authority of the Citizens Legislative Compensation Commission to achieve their own desires? The Citizens Commission was transformed into an arm of the Legislature and turned its back on the citizens they were appointed to represent. The blame lies not so much with the Commission as it does with those legislators who participated in the takeover of the Citizens Commission.
The last issue which the majority touches on, but quickly forgets, is the question of due process. "No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers." W.Va. Const. Art. III, § 10. The intervenors argue that due process was a sham.
What exactly is required by due process generally depends upon the facts of each case. More than anything else, however, due process means "fundamental fairness." Pinkerton v. Farr, 159 W.Va. 223, 220 S.E.2d 682 (1975). Inherent in our form of government is the concept that due process insures that the citizens of this State receive the benefit of all legislative enactments. Hodge v. Ginsberg, 172 W.Va. 17, 303 S.E.2d 245 (1983). See also Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).
The record in this case reveals a process that is fundamentally unfair to the people of West Virginia. By refusing to take issue with the Legislature's actions, the majority condones undisclosed ex parte communications and knuckles under to legislative pressure.[4] The citizens of West Virginia are entitled to an unbiased Commission and a fair recommendation before being deprived of their tax dollars.
The only way that government officials can re-establish the trust of the citizens they are elected or appointed to represent is to be completely open with the people of West Virginia. Circumvention of the Constitution or the statutes, even to achieve an important goal, serves only to weaken our government. Government officials must go beyond the procedure that is required to instill confidence in the citizens.
The only people who got any due process in this instance were the legislators. Are we *901 not entitled to more from our elected officials? Apparently not.
NOTES
[1] On March 23, 1994, Senator Donna J. Boley and Delegate Robert P. Pulliam, M.D., filed a declaratory judgment action in the Circuit Court of Kanawha County against the Honorable Larrie Bailey, Treasurer of the State of West Virginia (Civil Action No. 94-C-529). In the declaratory judgment action, the plaintiffs requested that the circuit court declare W.Va.Code, 4-2A-1, et seq., as amended by the Bill, unconstitutional or void as to the legislative pay raises. By letter dated April 4, 1994, the State Auditor informed the relators that he would refuse to issue warrants for payments to be made pursuant to the Bill, pending a final judicial determination of the constitutionality of the legislative pay raises. Judge Canady voluntarily stayed proceedings in his court pending resolution of the issues by this Court.
[2] Section 33 of Article VI of the West Virginia Constitution provides:
"Members of the legislature shall receive such compensation in connection with the performance of their respective duties as members of the legislature and such allowances for travel and other expenses in connection therewith as shall be (1) established in a resolution submitted to the legislature by the citizens legislative compensation commission hereinafter created, and (2) thereafter enacted into general law by the legislature at a regular session thereof, subject to such requirements and conditions as shall be prescribed in such general law. The legislature may in any such general law reduce but shall not increase any item of compensation or expense allowance established in such resolution. All voting on the floor of both houses on the question of passage of any such general law shall be by yeas and nays to be entered on the journals.
"The citizens legislative compensation commission is hereby created. It shall be composed of seven members who have been residents of this State for at least ten years prior to the date of appointment, to be appointed by the governor within twenty days after ratification of this amendment, no more than four of whom shall be members of the same political party. The members shall be broadly representative of the public at large. Members of the legislature and officers and employees of the State or of any county, municipality or other governmental unit of the State shall not be eligible for appointment to or to serve as members of the commission. Each member of the commission shall serve for a term of seven years, except of the members first appointed, one member shall be appointed for a term of one year, and one each for terms ending two, three, four, five, six and seven years after the date of appointment. As the term of each member first appointed expires, a successor shall be appointed for a seven-year term. Any member may be reappointed for any number of terms, and any vacancy shall be filled by the governor for the unexpired term. Any member of the commission may be removed by the governor prior to the expiration of such member's term for official misconduct, incompetency or neglect of duty. The governor shall designate one member of the commission as chairman. The members of the commission shall serve without compensation, but shall be entitled to be reimbursed for all reasonable and necessary expenses actually incurred in the performance of their duties as such members.
"The commission shall meet as often as may be necessary and shall within fifteen days after the beginning of the regular session of the legislature in the year one thousand nine hundred seventy-one and within fifteen days after the beginning of the regular session in each fourth year thereafter submit by resolution to the legislature its determination of compensation and expense allowances, which resolution must be concurred in by at least four members of the commission.
"Notwithstanding any other provision of this Constitution, such compensation and expense allowances as may be provided for by any such general law shall be paid on and after the effective date of such general law. Until the first such general law becomes effective, the provisions of this section in effect immediately prior to the ratification of this amendment shall continue to govern."
[3] The relators make no challenge in this proceeding to the pay raises granted to other State officials and to the judiciary.
[4] For example, Section 33 of Article VI, contained in the 1931 Revised Code, set these salaries:
"The members of the Legislature shall each receive for their services the sum of five hundred dollars per annum and ten cents for each mile traveled in going to and returning from the seat of government by the most direct route. The Speaker of the House of Delegates and the President of the Senate, shall each receive an additional compensation of two dollars per day for each day they shall act as presiding officers."
The editor's notes to the current provision trace the history of the various amendments to Section 33 of Article VI. These notes indicate that prior to 1970 the members of the Legislature only had two raises. The first raise came from an amendment ratified by the voters in November, 1920, which increased their salaries from four dollars a day to five hundred dollars per annum. The second amendment ratified in November, 1954, increased their salaries to fifteen hundred dollars per annum.
[5] See Ky. Const. § 42 (1979); Miss. Const. Art. 4, § 46 (1972); Mo. Const. Art. 3, § 16 (1970); N.C. Const. Art. 2, § 16 (1970).
[6] See Ga. Const. Art. 3, § 4, ¶ 6 (1983); Ill. Const. Art. 4, § 11 (1970); Me. Const. Art. 4, Pt. 3, § 7 (1983); N.Y. Const. Art. 3, § 6 (1964); Ohio Const. Art. 2, § 31 (1979).
[7] The third paragraph of Section 33 of Article VI states:
"The commission shall meet as often as may be necessary and shall within fifteen days after the beginning of the regular session of the legislature in the year one thousand nine hundred seventy-one and within fifteen days after the beginning of the regular session in each fourth year thereafter submit by resolution to the legislature its determination of compensation and expense allowances, which resolution must be concurred in by at least four members of the commission."
For the entire text of Section 33 of Article VI, see note 2, supra.
[8] The conclusion of Attorney General Browning's opinion states as follows:
"The interpretation of the above constitutional section which most readily presents itself is that the Commission must submit by resolution `to the legislature its determination of compensation and expense allowances' every four years, which is mandatory. However, it is the opinion of this office that the provision in no way restricts the Commission in presenting such a resolution more often than every four years after the year 1971. Otherwise, there would be no need for the above provision requiring the Commission to meet as often as may be necessary. What purpose would be served for the Commission to have meetings `as often as may be necessary,' when it could take no action in accordance with the constitutional provision?" 57 Atty.Gen.Op. at 116.
[9] Syllabus Point 3 of State ex rel. Brotherton v. Moore, supra, states: "Mandamus lies to compel the governor to exercise his power of appointment under Section 9 of Article VI of the Constitution of West Virginia when the governor declines or fails to exercise his power for an unreasonable period of time."
[10] Syllabus Point 2 of Francis O. Day Co., supra, states:
"When an administrative agency or board is unable to act because it lacks a statutory quorum or is unable to muster enough votes to meet a statutory requirement of a minimum number of votes necessary for a decision, the agency or board must enter an order allowing the litigants in the case before it to proceed to the next higherjudicial or administrativetribunal."
[11] In making this observation, it should not be inferred that we find the Commission to be under our Administrative Procedures Act.
[12] In Sierra Club, 657 F.2d at 402, this statement is made:
"Lacking a statutory basis for its position, [Environmental Defense Fund] would have us extend our decision in Home Box Office, Inc. v. FCC to cover all meetings with individuals outside EPA during the post-comment period. Later decisions of this court, however, have declined to apply Home Box Office to informal rulemaking of the general policymaking sort involved here[.]" (Footnotes omitted).
[1] It is noteworthy to point out that the majority never finds that House Bill 4031 is constitutional, but simply holds it to be valid.
[2] The majority found that allowing a compensation resolution to be submitted more often than every four years would emasculate the language in the latter portion of the third paragraph, which sets out the four-year cycle beginning after the 1971 regular session of the Legislature. Further, they felt that such an interpretation would be contrary to the Court's normal rule of interpretation requiring the Court to consider all parts of a constitutional or statutory provision.
[3] I also take issue with the dissent authored by Justice Neely. It certainly should be recognized as the ultimate treatise on how to deprive citizens of their constitutional rights.
[4] Like the E.P.A. regulation in Sierra Club v. Costle, 657 F.2d 298, 401 (D.C.Cir.1981), discussed in the majority opinion, nothing in Article VI, § 33 forbids ex parte communication with the Commission. Likewise, I do not believe such communication should be forbidden, absent a constitutional provision to the contrary. What should be required, however, is that any ex parte communication between the Commission and legislators be reported at the public meeting. The balance between individual communication and public reporting of the contact can only be maintained if the Commission members are truly independent and not members appointed at the legislature's request.
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NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
BRETT BAKKER, et al., Plaintiffs/Appellants,
v.
BANNER HEALTH SYSTEM, et al., Defendants/Appellees.
No. 1 CA-CV 18-0614
FILED 10-22-2019
Appeal from the Superior Court in Maricopa County
No. CV2016-094316
The Honorable David J. Palmer, Judge
AFFIRMED
COUNSEL
Keith M. Knowlton, L.L.C., Tempe
By Keith M. Knowlton
Counsel for Plaintiffs/Appellants
Campbell, Yost, Clare & Norell, P.C., Phoenix
By Margaret F. Dean, Rachel Anne DaPena
Counsel for Defendants/Appellees
BAKKER, et al. v. BANNER HEALTH, et al.
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge David D. Weinzweig joined.
C R U Z, Judge:
¶1 Brett Bakker and Rebecca Bakker (“Appellants”) appeal a
judgment in favor of Banner Health System (“Banner”) and Banner social
worker Shayla Paap (“Paap”) (collectively “Appellees”). Appellants assert
in particular that the superior court erred by granting a pre-verdict motion
for partial summary judgment on claims of negligence and intrusion upon
seclusion on the basis that (1) Paap had reasonable grounds to report child
abuse, and (2) Appellants were required to proffer a medical standard of
care expert on claims of negligence arising from Paap’s conduct. We affirm
the superior court’s grant of partial summary judgment.
FACTUAL AND PROCEDURAL HISTORY
¶2 M.B. was born on August 1, 2014. Mr. Bakker is the biological
father of M.B., but Mrs. Bakker is not her biological or adoptive mother.
¶3 Doctor Emilia Gomez (“Dr. Gomez”) is a pediatrician and
owner of Pediatrics of Queen Creek. Dr. Gomez began seeing M.B. for
primary care treatment soon after M.B. was born. As part of the admission
process of a new client, Dr. Gomez asked Mrs. Bakker about the
circumstances surrounding M.B.’s conception. Mrs. Bakker informed Dr.
Gomez that she and Mr. Baker used a surrogate to conceive.
¶4 Dr. Gomez saw M.B. when she was about ten months old to
address concerns Mrs. Bakker raised about M.B.’s purported seizures. At
that time, Mrs. Bakker told Dr. Gomez about treatment recommendations
made by Doctor Amy Calhoun (“Dr. Calhoun”), a Minnesota geneticist. Dr.
Gomez requested that Mrs. Bakker provide documentation confirming
what Dr. Calhoun had recommended.
¶5 After Mrs. Bakker failed to provide the requested documents,
Dr. Gomez called Dr. Calhoun. Dr. Calhoun reported that she did not make
the recommendations represented by Mrs. Bakker and expressed a concern
about the reasons for M.B.’s seizures. Pointing to her low blood sugar, Dr.
Calhoun feared that M.B. was suffering seizures because of lack of feeding.
2
BAKKER, et al. v. BANNER HEALTH, et al.
Decision of the Court
Dr. Calhoun then told Dr. Gomez that “she was feeling red flags for possible
foul play[]” because M.B. was the issue of Mr. Bakker’s affair and therefore
M.B. may be susceptible to mistreatment by Mrs. Bakker. Dr. Gomez noted
this account of M.B.’s conception was inconsistent with the surrogacy
narrative offered by Mrs. Bakker to Dr. Gomez, and that Mrs. Bakker had
made other inconsistent statements. Dr. Gomez reflected on the
circumstances and thought she should make a report to the Department of
Child Safety (“DCS”). Dr. Gomez asked for Dr. Calhoun’s input on whether
to make a report. In her June 26, 2015 patient chart note, Dr. Gomez wrote
“I asked at that moment if I needed to call [DCS] but [Dr. Calhoun]
suggested [immediate] admission for observation under a controlled
environment to see how [M.B.] acted/fed/get controlled labs.”
¶6 Dr. Gomez then moved to immediately hospitalize M.B. as
Dr. Calhoun recommended. Mrs. Bakker informed Dr. Gomez that M.B.
had already been admitted in the Pediatric Intensive Care Unit (“PICU”) at
Banner for increased seizure activity.
¶7 Dr. Gomez then called the PICU to ensure additional testing
was done, as discussed with Dr. Calhoun. Dr. Gomez spoke to Doctor Jose
A. Gutierrez (“Dr. Gutierrez”), an intensivist in the PICU. Dr. Gomez stated
she was concerned about Mrs. Bakker, that she had talked to M.B.’s
geneticist, Dr. Calhoun, and that there were discrepancies in M.B.’s care.
Dr. Gutierrez referred Dr. Gomez to Paap, Banner’s Suspected Child Abuse
and Neglect Program Coordinator. Paap is a master’s level social worker,
who also trains on topics of child maltreatment.
¶8 Dr. Gutierrez asked Paap to follow up with Dr. Gomez and
decide whether a report to DCS should be filed. Dr. Gutierrez asked Paap
to do this because doctors typically do not file a report themselves, but
rather request a social worker to do so. Paap is familiar with DCS as she
previously worked for the department as a child abuse investigator. In
addition to her education in social work, Paap was also trained by DCS in
the investigation of abuse and neglect.
¶9 As part of her evaluation, Paap contacted Dr. Gomez, who
stated that the instructions and recommendations represented by Mrs.
Bakker were “very different” than the ones actually given by Dr. Calhoun.
Dr. Gomez also explained that Mrs. Bakker’s concerns about M.B.’s
condition did not always line up with the medical information. Specifically,
Dr. Gomez was concerned that M.B. was facing unnecessary testing and
medication. For example, Mrs. Bakker appeared to be overstating the
frequency of M.B.’s seizures, because M.B.’s test results were normal and
3
BAKKER, et al. v. BANNER HEALTH, et al.
Decision of the Court
M.B. only had one seizure in the presence of medical personnel. Dr. Gomez
also expressed concern that M.B.’s seizures could be induced by
maltreatment, as discussed with Dr. Calhoun. After talking to Dr. Gomez,
Paap met with Mrs. Bakker in M.B.’s hospital room and briefly discussed
M.B.’s medical history. When Paap offered to obtain records from the
various medical facilities to ensure continuity of care, Mrs. Bakker refused
to sign the necessary authorizations. According to Dr. Calhoun, when in
Minnesota, Mrs. Bakker had also failed to provide any documentation
regarding the genetics workup done in Arizona, which was in direct
contradiction to Mrs. Bakker’s statements to Dr. Gomez that she had
provided documentation to Dr. Calhoun.
¶10 Based upon Paap’s discussion with Dr. Gomez, Paap decided
to report to DCS that M.B. may be facing unnecessary treatment and
seizures induced by maltreatment at the hands of a parent. DCS
documented the report and initiated an investigation.
¶11 Appellants then sued Banner and Paap for defamation,
negligence, and intrusion upon seclusion, asserting that Paap did not have
the reasonable belief required by Arizona Revised Statutes (“A.R.S.”)
section 13-3620 to file a report of abuse.
¶12 On Appellees’ motion, the court ordered Appellants to
proffer a standard of care expert, as required by A.R.S. § 12-2603. Later, the
court granted Appellees’ motion to strike Appellants’ standard of care
expert because she did not meet the qualifications required under A.R.S.
§ 12-2604.
¶13 The court granted partial summary judgment in favor of
Banner and Paap on claims of negligence and intrusion upon seclusion, but
denied Appellees’ motion for summary judgment on claims of defamation
resulting from malice and any damages therefrom, reasoning that there
were genuine issues of material fact as to what Paap reported to DCS and
whether Paap knowingly made false statements in connection with making
that report. The jury rejected the remaining claims.
DISCUSSION
¶14 Summary judgment is appropriate when “the facts produced
in support of the claim or defense have so little probative value, given the
quantum of evidence required, that reasonable people could not agree with
the conclusion advanced by the proponent of the claim or defense.” Orme
Sch. v. Reeves, 166 Ariz. 301, 309 (1990). “We review the grant of summary
judgment on the basis of the record made in the trial court, but determine
4
BAKKER, et al. v. BANNER HEALTH, et al.
Decision of the Court
whether the entry of judgment was proper de novo.” Phoenix Baptist Hosp.
& Med. Ctr., Inc. v. Aiken, 179 Ariz. 289, 292 (App. 1994) (citation omitted).
I. Immunity from Suit
¶15 Appellants argue that the court erred when it granted
Appellees’ motion for partial summary judgment, because a question of fact
exists as to whether Paap had a reasonable belief of child abuse.
¶16 A person who has a reasonable belief that a child is a victim
of abuse may report that abuse, A.R.S. § 13-3620(A), (F), and may receive
immunity from suit related to that report:
A person who furnishes a report, information or records
required or authorized under this section, or a person who
participates in a judicial or administrative proceeding or
investigation resulting from a report, information or records
required or authorized under this section, is immune from
any civil or criminal liability by reason of that action unless
the person acted with malice . . . .
A.R.S § 13-3620(J).
¶17 Here, the court found “there were facts of which Paap was
aware from which one could reasonably conclude that [M.B.] had been
abused.”
¶18 According to Appellants, as a matter of law, only a medical
doctor can form reasonable belief of medical child abuse and, because Paap
is not a medical doctor, Paap could not form the requisite reasonable belief
and, therefore, cannot be afforded A.R.S. § 13-3620(J) immunity.
¶19 The Arizona Legislature enacted A.R.S. § 13-3620 to
encourage the reporting of child abuse. L.A.R. v. Ludwig, 170 Ariz. 24, 27
(App. 1991). Section 13-3620 specifically provides that a social worker “who
reasonably believes that a minor is or has been the victim of physical injury,
abuse, child abuse, a reportable offense or neglect . . . shall immediately
report or cause reports to be made . . . to the department of child safety.”
A.R.S. § 13-3620(A).
¶20 The requirement of a reasonable belief as a prerequisite is a
“low standard,” one that mandates a report “if there are any facts from
which one could reasonably conclude that a child had been abused.”
Ludwig, 170 Ariz. at 27. Indeed, that low standard is intended to mandate
5
BAKKER, et al. v. BANNER HEALTH, et al.
Decision of the Court
reports to DCS for the protection of children who may be suffering from
abuse. Id. Once the person has a reasonable belief of abuse, a report must
be made even if there has not been a medical doctor’s diagnosis. See id. at
27-28 (noting that the reporter does not need to gather facts to establish that
abuse actually exists). And any person, who so believes, even one who is
not a mandatory reporter, may file a report and receive immunity. A.R.S.
§ 13-3620(F), (J).
¶21 Contrary to Appellants’ argument that as a matter of law only
a doctor can form a reasonable belief of medical child abuse, the statute
allows persons to report any type of abuse or neglect without exception.
The legislature could easily have imposed special requirements or
limitations on reports of medical child abuse, but it did not. See Callender v.
Transpacific Hotel Corp., 179 Ariz. 557, 561 (App. 1993).
¶22 Moreover, under the provisions of A.R.S. § 13-3620(F), even if
Paap had not been a mandatory reporter, she would have been permitted
to make the report to DCS because she had information, among other
things, that:
(i) M.B.’s long-time pediatrician, Dr. Gomez, was sufficiently
concerned about the likelihood that Mrs. Bakker may have
been harming M.B. that she contacted Dr. Gutierrez;
(ii) when Dr. Calhoun was contacted by Dr. Gomez, Dr.
Calhoun also expressed “feeling red flags for possible foul
play[],” regarding M.B.’s care at the hands of Mrs. Bakker;
(iii) Dr. Calhoun was concerned that M.B.’s seizures could
have been induced by lack of feeding;
(iv) Mrs. Bakker refused to release M.B.’s medical records to
Paap when confusion arose about Dr. Calhoun’s
recommendations;
(v) Mrs. Bakker gave inconsistent information regarding the
circumstances of M.B.’s conception, which gave rise to
suspicion regarding potential animus from Mrs. Bakker
towards M.B.; and
(vi) as a result of the irregularities in Mrs. Bakker’s reports of
seizures and given M.B.’s medical test results as
overwhelmingly normal, Dr. Calhoun recommended M.B. be
hospitalized for observation in a controlled environment.
6
BAKKER, et al. v. BANNER HEALTH, et al.
Decision of the Court
¶23 Thus, at least three medical doctors were concerned about
potential abuse and those concerns resulted in the involvement of Paap,
Banner’s Suspected Child Abuse and Neglect Program Coordinator.
Accordingly, the court did not err in finding that Paap had received
sufficient information from which she could form a reasonable belief
justifying the report to DCS.
¶24 Appellants also argue the court’s determination of whether
Paap had a reasonable belief of abuse was erroneous because the findings
should have been based solely on the information contained in the hotline
report made to DCS and should not have included consideration of Paap’s
report prepared for Banner or Dr. Gomez’s patient chart note. Appellants
argue that “[t]he immunity provided by A.R.S. § 13-3620 does not apply to
what you could have reported and did not.” However, all the information
available to Paap at the time of the report aided her in forming her belief of
the situation and in deciding whether to make a report. In determining
whether Paap’s belief of abuse was reasonable it was necessary for the court
to consider what information Paap knew at the time of the report. The court
did not err in doing so.
II. Negligence
¶25 Appellants maintain that A.R.S. § 13-3620 creates a duty not
to file a report unless there is a reasonable belief of abuse. They propose
that Paap breached the duty1 when she made a report of abuse without
reasonable belief of abuse and that she did so with malice. The court found
that, as a matter of law, there is no duty of care owed to Appellants.
¶26 To prove their claim of negligence, Appellants had to prove
four elements: (1) Appellees’ duty to conform to a certain standard of care,
(2) a breach of that duty, (3) a causal connection between the Appellees’
conduct and resulting injury, and (4) actual damages suffered. Sanders v.
Alger, 242 Ariz. 246, 247, ¶ 7 (2017). Whether a duty exists is a matter of law
for the court to decide. Markowitz v. Ariz. Parks Bd., 146 Ariz. 352, 356 (1985).
¶27 In Ramsey v. Yavapai Family Advocacy Center, 225 Ariz. 132, 142,
¶ 36 (App. 2010), we held that “in treating an alleged victim of abuse, a
health care professional owes no duty of care to an alleged third-party
1 Because we affirm the court’s grant of summary judgment on all
negligence claims asserted, the issue of the motion to strike the standard of
care expert for the negligence claims is now moot. See Bd. of Supervisors v.
Robinson, 105 Ariz. 280, 281 (1970) (courts do not decide moot issues).
7
BAKKER, et al. v. BANNER HEALTH, et al.
Decision of the Court
abuser.” Here, recognizing that Paap was not a treating physician or
counselor, the court reasoned that, because Paap’s work was taking place
within a similar context and implicated the same significant policy
considerations, the principles in Ramsey applied and “weighed against
recognizing a duty relative to treating health care professionals and
counselors.” Correctly relying on Ramsey, the court found that Appellees
owed no duty of care to Appellants and granted summary judgment as to
all negligence claims insofar as they were based on a theory of breach of
duty. We affirm the court’s grant of summary judgment on this basis.
III. Intrusion Upon Seclusion
¶28 Lastly, Appellants argue that, absent reasonable belief of
abuse, the court erred in granting summary judgment in favor of Appellees
as to their intrusion upon seclusion claim because, as M.B.’s parents, under
A.R.S. §§ 12-2291 to -2292, -2294, they had a reasonable expectation of
privacy in M.B.’s medical records and in any personal information obtained
in the course of providing her with medical care and treatment. However,
Appellants acknowledge that if Paap had a reasonable belief of abuse to file
a report, the intrusion upon seclusion claim cannot stand.
¶29 The immunity afforded by A.R.S. § 13-3620 also precludes
claims of invasion of privacy. Because we have affirmed the court’s finding
that Paap had a reasonable belief of abuse prior to filing her report with
DCS, see supra at ¶¶ 15-23, and is entitled to immunity, we find no error in
the court’s grant of summary judgment as to the intrusion upon seclusion
claim.
CONCLUSION
¶30 Accordingly, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
8
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71 Wis.2d 757 (1976)
239 N.W.2d 86
IN RE ESTATE OF KERSTEN, a/k/a Lester C. Kersten, deceased: WISCONSIN DEPARTMENT OF REVENUE, Appellant,
v.
KERSTEN, Respondent.[*]
No. 74 (1974).
Supreme Court of Wisconsin.
Submitted on briefs February 2, 1976.
Decided March 2, 1976.
*760 For the appellant the cause was submitted on the briefs of Bronson C. La Follette, attorney general and E. Weston Wood, assistant attorney general.
For the respondent the cause was submitted on the brief of Tinkham, Smith, Bliss, Patterson & Richards of Wausau.
ROBERT W. HANSEN, J.
The sole issue here is: Did the trial court err in concluding that one-half of the jointly owned property should be excluded from the state for inheritance tax purposes?
The answering of such single question involves the interpretation and application of sec. 72.12 (6), Stats., which controls and governs the taxation of survivorship interests for inheritance tax purposes. That section provides:
"(6) SURVIVORSHIP INTERESTS. (a) Rule. When property is held in the names of 2 or more persons with the right of survivorship, upon the death of one of the persons. Transfer of the full clear market value of the entire property is subject to this subchapter.
*761 "(b) Exceptions. If the property or the consideration with which it was acquired, or any part of either, is shown to have originally belonged to the survivor and never to have been received or acquired by him from the decedent for less than adequate and full consideration in money or money's worth, the transfer of the property or the part originally furnished by the survivor is not taxed. If the property was acquired by gift, bequest, devise or inheritance by the decedent and any other person, the taxable portion is determined by dividing the clear market value of the property by the number of owners, unless the instrument creating this ownership creates interests in a different proportion." (Emphasis supplied.)
Prior to the enactment of this statute in its present form,[1] an inheritance tax in this state was automatically assessed on one-half the value of property held by a person in joint tenancy at the time of his death.[2] Under the older version of the statute, now replaced, the joint tenants' respective contributions to the acquisition of the subject property was immaterial.[3] Only where the survivor could show that the joint title came into being under a transaction clearly indicating a trust relation or the existence of an agency involving the deceased joint tenant was an exception to the statute recognized.[4]
The new survivorship statute, enacted in 1971, clearly changes the manner in which survivorship interests are to be taxed for inheritance tax purposes.[5] The new general rule, as stated in the newer sec. 72.12 (6) (a), Stats., is that, when one owner of property held under *762 right of survivorship dies, the entire value of the jointly held property is subject to the inheritance tax. Only two exceptions to such taxation of the whole property are recognized. One deals with property acquired by gift or bequest, and is not here applicable. The other is the source of the controversy here. It excludes from taxation that part of the joint property which is shown to have originally belonged to the survivor and never to have been "... acquired by him from the decedent for less than adequate and full consideration in money or money's worth...."[6] So the issue in this case narrows to whether Doris Kersten's personal services on the family-operated farm constituted "consideration in money or money's worth" in return for her interest in the property jointly held by her and her husband.
The exception to tax liability as to property that originally belonged to or was acquired for consideration in money or money's worth comes to the revised sub. (6) from sec. 2040 of the Federal Internal Revenue Code. As there worded it reads as follows:
"SEC. 2040. JOINT INTERESTS.
"The value of the gross estate shall include the value of all property to the extent of the interest therein held as joint tenants by the decedent and any other person ... Provided, that where such property or any part thereof, or part of the consideration with which such property was acquired, is shown to have been at any time acquired by such other person from the decedent for less than an adequate and full consideration in money or money's worth, there shall be excepted only such part of the value of such property as is proportionate to the consideration furnished by such other person...."
The obvious patterning of the revised sub. (6) of the state statute after sec. 2040 in the Federal Code reflects an evident legislative intent on the part of our legislature *763 "... to tax the transfer of jointly held property in the same manner as the federal method."[7] With such the legislative intentto have no dissimilarity between state and federal rules as to jointly held propertyconstruction by the federal courts of the parallel federal provision here sec. 2040ought be given considerable weight.[8] Under the federal court construction of the Federal Code provision, in order to establish excludability, it must be proved that the part to be excluded was originally the survivor's or, if acquired from the decedent, was purchased for an adequate and full consideration in money or money's worth.[9] "Consideration in money or money's worth" is defined to be such consideration as is reduceable to a money value or is capable of being valued in terms of money.[10] It appears that, under the federal exemption provision, personal services can serve as consideration "in money's worth" in return for an acquisition of an interest in jointly held property.
Exactly such construction of the Federal Code provisions as to consideration in money or money's worth was given to sec. 2040 by the federal tax court in the Estate of Everett Otte Case.[11] In that case the evidence showed that through thirty-five years of marriage Lura and Everett Otte had worked as a "husband and wife team" in the management and operation of the family farming enterprise. With jointly held property acquired during the marriage having been paid for from farm earnings, the tax court held that the contributions in personal *764 service of the wife who kept the farm records and took an active part in the day-to-day operation of the farm "... fairly justifies a division of the property accumulated during her marriage to decedent for estate tax purposes within the purview of sec. 2040, supra."[12] We agree with appellant department that this construction of the code provision by the tax court is not controlling, but we find it both plausible and persuasive. We follow it here. We agree with the trial court holding that the continuing contribution of Doris Kersten in services, industry and skills to operation of the farm enterprise constituted contribution "in money's worth" in the production of the joint income used to acquire the jointly held assets involved in the trial court's order. We further agree with the trial court and affirm its holding that Doris Kersten was entitled to credit for inheritance tax purposes for such contributions on her part to the jointly held property owned by her and her husband at the time of his death.
In urging a contrary construction of sec. 72.12 (6), Stats., the state department of revenue relies heavily upon two recent cases dealing with liability for state income taxes. The first is Skaar v. Department of Revenue,[13] finding no bona fide partnership in the husband-wife operation of a farm enterprise for income tax purposes.[14] The second is Stern v. Department of Revenue,[15] finding no partnership for income tax purposes in the operation by a married couple of an interior decorating business.[16] In both cases the test as to the existence of a bona fide partnership for income tax purposes was taken from the *765 Uniform Partnership Act.[17] We hold that this test applied for income tax purposes does not apply to contributions to jointly held property by a survivor for inheritance tax purposes. The Skaar decision made clear that "the personal income tax treatment of married individuals under the federal and Wisconsin tax provisions is dissimilar."[18] As to liability under sec. 72.12 (6) for inheritance tax purposes, we have held the legislative intent and result to be that the transfer of jointly held property is to be taxed in this state in the same manner as it is taxed under the federal code. Therefore, cases involving income tax liability do not control or apply to a surviving spouse seeking a determination of inheritance taxes due on property jointly held with the husband or wife who has passed away.
In its written decision the trial court found that Doris Kersten had "contributed substantially to the management and work and carrying out the duties of operating a farm." The trial court did not make a finding as to actual monetary value to be placed on the wife's services. The trial court's decision and order, in our opinion, do constitute a holding that the services of the wife constitute "adequate and full consideration in money or money's worth" for her interest in the jointly held property. We hold that to be sufficient, for once the initial determination of adequate contribution has been made, *766 the value of the jointly held property to be taxed can be reduced to the extent of the survivor's interest or "share," here one-half of the jointly acquired and jointly held property involved in the trial court decision. We find this to be the approach used by federal courts in applying the similar provisions of sec. 2040, Federal Code.[19] We also find this an appropriate and proper approach to the application of the comparable state statute. We adopt it as to the application of sec. 72.12 (6), Stats., here. As it was for the trial court here, the threshold question for a trial court should be whether the services or contributions of the surviving spouse, taking into consideration their nature and extent, constitute adequate and full consideration in money or money's worth for such survivor's interest in the jointly held property. If they do, the value of the property for purposes of inheritance tax is to be reduced by one-half, assuming that there is, as here, the usual husband-wife joint tenancy involved. Given such threshold finding and such reduction in value taxable under sec. 72.12 (6), it is not necessary to place a monetary value on such services or contributions. In the case before us, we find the trial court determination that the wife had contributed substantially to the acquiring of the joint property acquired to be supported by the evidence. It is an affirmative answer to the question to be asked and it warranted the trial court in concluding, as it did, that "one-half of the assets owned jointly by the decedent and petitioner at the time of decedent's death originally belonged to the survivor and never were received or acquired by her from the decedent for less than adequate and full consideration in money or money's *767 worth within the meaning of sec. 72.12 (6) (b), except a certain parcel of real estate approximately 39.77 acres in size ... and except a joint savings account at the Franklin Savings & Loan Association...." The order of the trial court that the correct taxable estate is $60,326.07 and that the correct inheritance tax due from the petitioner, Doris Kersten, is $774.45 and that petitioner, Doris Kersten, is entitled to a refund of $2,911.01 is affirmed.
By the Court.Order affirmed.
NOTES
[*] Motion for rehearing denied, without costs, on May 4, 1976.
[1] Ch. 310, Laws of 1971.
[2] See: Sec. 72.01 (6), Stats. 1969, replaced and replaced in 1971.
[3] See: Estate of Atkinson (1952), 261 Wis. 481, 53 N. W. 2d 185, 54 N. W. 2d 52; Estate of Simonson (1960), 11 Wis. 2d 84, 104 N. W. 2d 134.
[4] See: Estate of Hounsell (1948), 252 Wis. 138, 31 N. W. 2d 203.
[5] See: Sheedy and Sullivan, Nature of Cotenancies and their TaxationDeath and Gift, 56 Marq. L. Rev. 3, 33-36 (1972).
[6] Sec. 72.12 (6) (b), Stats.
[7] Ch. 310, Laws of 1971, at page 1246.
[8] See: In re Adams Machinery, Inc. (1963), 20 Wis. 2d 607, 123 N. W. 2d 558.
[9] See: Phillips v. Dime Trust & Safe Deposit Co. (1931), 284 U. S. 160, 167, 52 Sup. Ct. 46, 76 L. Ed. 220; Tuck v. United States (9th Cir. 1960), 282 Fed. 2d 405.
[10] See: Lowndes & Kramer, Federal Estate and Gift Taxes (2d ed. 1962), p. 300.
[11] (1972), 31 T. C. M. 301 (C. C. H. Dec. 31, 319 (M)).
[12] Id. at page 307.
[13] (1973), 61 Wis. 2d 93, 211 N. W. 2d 642.
[14] Id. at page 99.
[15] (1974), 63 Wis. 2d 506, 217 N. W. 2d 326.
[16] Id. at page 510.
[17] Skaar v. Department of Revenue, supra, footnote 13, at page 98, stating: "Since Wisconsin has adopted the Uniform Partnership Act, we must initially look there for guidance." (Referring to Ch. 178, Stats.)
[18] Id. at page 97, this court adding: "Under the federal system, married individuals are permitted to file a joint return and effectively split their income even though all income and deductions belong to only one spouse. Wisconsin, on the other hand, while permitting married individuals to file jointly, taxes each spouse individually on his income and deductions and income splitting is not allowed."
[19] See: Estate of Everett Otte, supra, footnote 11; Rogan v. Kammerdiner (9th Cir. 1944), 140 Fed. 2d 569; Richardson v. Helvering (D. C. Cir. 1935), 80 Fed. 2d 548; Berkowitz v. Commissioner of Internal Revenue (3d Cir. 1939), 108 Fed. 2d 319; Singer v. Shaughnessy (2d Cir. 1952), 198 Fed. 2d 178.
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22 B.R. 644 (1982)
In re David Larry DAVIS, Debtor.
Charles A. GOWER, Trustee, Plaintiff,
v.
FORD MOTOR CREDIT COMPANY, and Maxwell Ford Tractor, Inc., Defendants.
Bankruptcy No. 81-60100-THOM, Adv. No. 82-6003-THOM.
United States Bankruptcy Court, M.D. Georgia, Thomasville Division.
August 19, 1982.
*645 Charles A. Gower, Trustee, Columbus, Ga., for plaintiff.
Charles T. Staples, Columbus, Ga., for Ford Motor Credit Co. Frank C. Vann, Camilla, Ga., for Maxwell Ford Tractor, Inc.
COMPLAINT OF TRUSTEE TO AVOID PREFERENCE
ALGIE M. MOSELEY, Jr., Bankruptcy Judge.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Herein, the Trustee seeks to avoid a transfer under 11 U.S.C. § 547, Preferences. The stipulated facts show such preference, but Defendants rely upon 11 U.S.C. § 547(c)(1) as a defense. Herein, the Court finds that this defense is not available to the Defendants, and the transfer is avoided.
FINDINGS OF FACT
The parties have stipulated facts, and upon those facts have submitted this adversary proceeding to the Court for decision. Facts as stipulated are as follows:
1.
On Friday, August 6, 1981, David Larry Davis (hereinafter referred to as the "Debtor") entered into a Retail Instalment Contract with Maxwell Ford Tractor. Inc., one of the Defendants herein (hereinafter referred to as "Maxwell Ford"), in Camilla, Georgia, for the purchase of a new 1981 Ford tractor, MC318M, Serial No. C649428, and a new 1981 Bush Hog Harrow, Model 1445-115, Serial No. 0751815, for a cash price of $49,300.00 (hereinafter collectively referred to as the "Collateral"). [Debtor received the collateral on August 6, 1981]. Pursuant to the terms of said Contract, Debtor was to pay to Maxwell Ford a cash down payment of $14,792.50, and the unpaid balance of the cash price in the amount of $34,507.50 was to be financed under the terms of said Retail Instalment Contract (hereinafter referred to as the "Contract"). Under the terms of said Contract, said unpaid balance, together with the finance charges and related filing fees, was to be paid in four (4) seasonable payments of $13,330.52 each, with the first such payment being due on August 6, 1982. The Collateral was made subject to a security interest in favor of Maxwell Ford under the Uniform Commercial Code in order to secure the payment of the obligations of the Debtor under said Contract.
2.
The Contract was mailed, together with the accompanying paperwork, to the Ford Motor Credit Company Branch office in Albany, Georgia. The Contract was purchased from Maxwell Ford by Ford Motor Credit Company, the other Defendant herein (hereinafter referred to as "FMCC"), on Tuesday, August 11, 1981 at its Albany Branch. As a result of said transfer and assignment by Maxwell Ford to FMCC, FMCC obtained a security interest in the collateral.
3.
It was the intent of the Debtor, Maxwell Ford and FMCC that the purchase of the Collateral and the creation of the security interest by the Debtor be a contemporaneous exchange for new value, including the extension of credit for the financing of the balance of the purchase price in the amount of $34,507.50 under the terms of the Contract through FMCC.
*646 4.
FMCC filed a financing statement with respect to its security interest in the Collateral on August 26, 1981 in the Office of the Clerk of the Superior Court of Grady County, Georgia, which was designated as No. 81-772. Grady County, Georgia is the county of residence of the Debtor and is the appropriate place for the filing of said financing statement under the Uniform Commercial Code as adopted in Georgia.
5.
The Clerk in the FMCC Albany Branch who was in charge of handling the recording of all financing statements on retail instalment contracts purchased by FMCC at its Albany Branch went on vacation on Friday, August 14, 1981. She returned from her vacation on Monday, August 24, 1981. The check for recording the financing statement was obtained by her on Tuesday, August 25, 1981 and transmitted by mail to the Clerk of the Superior Court of Grady County, Georgia, who received the financing statement and recorded it on Wednesday, August 26, 1981.
6.
The Debtor did not pay and has not paid to Maxwell Ford the cash down payment provided for in said Contract of $14,792.50. The Collateral was returned by the Debtor to Maxwell Ford prior to the filing of the Debtor's Petition in Bankruptcy and has remained in the possession of Maxwell Ford.
7.
On November 16, 1981, the Debtor filed his Petition in Bankruptcy with this Court. Under date of December 2, 1981, Charles A. Gower was appointed Trustee of the estate of the Debtor (hereinafter referred to as "Trustee"). On January 28, 1982, the Trustee filed an Adversary Proceeding seeking to avoid the lien of FMCC and Maxwell Ford in the Collateral as a preference under 11 U.S.C. § 545 [should be § 547]. The day on which the financing statement was filed was less than ninety (90) days from the date the bankruptcy petition was filed by the Debtor.
8.
The parties to this action have entered into an agreement to allow Maxwell Ford to sell the Collateral with the proceeds to be held jointly by Maxwell Ford and FMCC pending the outcome of this proceeding and subject thereto. However, to date, no sale has been obtained.
9.
This Court has jurisdiction over this proceeding.
CONCLUSIONS OF LAW
1.
11 U.S.C. § 547(e)(2) provides:
(2) For the purposes of this section, except as provided in paragraph (3) of this subsection, a transfer is made
(A) at the time such transfer takes effect between the transferor and the transferee, if such transfer is perfected at, or within 10 days after, such time;
(B) at the time such transfer is perfected, if such transfer is perfected after such 10 days; or
Pursuant to this Code section, the transfer took place on August 26, 1981.
2.
The transfer having fulfilled all of the elements of 11 U.S.C. § 547(b) must be avoided, as it falls under none of the exceptions to avoidability prescribed by 11 U.S.C. § 547(c).
DISCUSSION
The purpose behind 11 U.S.C. § 547(b) allowing the trustee to avoid a preferential transfer is, among other things, to facilitate in bankruptcy a "policy of equality of distribution among creditors of the debtor." H.R.Rep.95-595, 95th Cong., 1st Sess., 177-178 (1977), U.S.Code Cong. & Admin.News 1978, pp. 5963, 6138. The "transfer" was the creation of the security interest given by the Debtor to Defendants. The security interest was perfected more than 10 days after the date upon which it was created. Accordingly, the transfer is *647 deemed to have occurred on the date of perfection, that is, August 26, 1981. 11 U.S.C. § 547(e)(2)(B).
One of the exceptions to the trustee's avoidance powers, 11 U.S.C. § 547(c)(3), is specifically designed to meet the situation of creation of a security interest to secure a debt for value used to acquire the collateral. H.R.Rep.95-595, 95th Cong., 1st Sess. 373 (1977); Levin, Introduction to Trustee's Avoiding Powers, 53 Am.Bankr.L.J. 173, 187 (1979). This exception is designed to cover the so called "enabling loan" through which money lent is used to acquire collateral which is used to secure the debt. Id. 11 U.S.C. § 547(c)(3) provides:
(c) The trustee may not avoid under this section a transfer
(1) . . .
(2) . . .
(3) of a security interest in property acquired by the debtor
(A) to the extent such security interest secures new value that was
(i) given at or after the signing of a security agreement that contains a description of such property as collateral;
(ii) given by or on behalf of the secured party under such agreement;
(iii) given to enable the debtor to acquire such property; and
(iv) in fact used by the debtor to acquire such property; and
(B) that is perfected before 10 days after such security interest attaches;
As is readily apparent from the above, this exception cannot apply in the case at bar. The lien in Defendants was perfected more than 10 days after its creation. Avoidance cannot be excepted under this subsection.
Defendants have asserted that the "transfer" of the lien falls under 11 U.S.C. § 547(c)(1). This subsection provides:
(c) The trustee may not avoid under this section a transfer
(1) to the extent that such transfer was
(A) intended by the debtor and the creditor to or for whose benefit such transfer was made to be a contemporaneous exchange for new value given to the debtor; and
(B) in fact a substantially contemporaneous exchange;
Defendants assert that by reason of this exception the transfer to them of the security interest on August 26, 1981 cannot be avoided by the Trustee.
However, preliminary to the determination as to whether or not the facts of this proceeding fall within the defined exception of 11 U.S.C. § 547(c)(1) is the determination of whether a transfer of a security interest, as opposed to cash or something in the nature of cash, can ever be excepted from avoidance under this subsection. Courts are not in accord on this issue.
One line of cases holds, as is maintained by Defendants, that § 547(c)(1) is cumulative with § 547(c)(3), so that if transfer of lien securing an indebtedness on a cash advance is made "substantially contemporaneous[ly]" with the cash advance, the transfer is not avoidable even though the transfer does not fall within the exception stated in § 547(c)(3). In re Burnette, 14 B.R. 795, 8 BCD 255 (Bkrtcy.E.D.Tenn.1981); In re Arnett, 13 B.R. 267, 7 BCD 1222, 4 C.B.C.2d 1365 (Bkrtcy.E.D.Tenn.1981), aff'd sub nom. Ray v. Security Mutual Fin. Corp., 17 B.R. 912, Bankr.L.R. ¶ 68,644 (E.D.Tenn.1982). As stated in In re Burnette, supra,
In a prior decision the court pointed out that there might be some conflict between this exception [11 U.S.C. § 547(c)(1)] and the enabling loan exception [11 U.S.C. § 547(c)(3)]. . . . Though the contemporaneous exchange exception was not meant to apply to this situation, it is broad enough to apply. It should not be held inapplicable on the ground that it cannot overlap with the enabling loan exception. The enabling loan exception can be viewed as defining one kind of "contemporaneous exchange," in the broad sense of those words. The enabling loan exception requires proof of specific facts that should be easily proved or disproved, whereas the contemporaneous exchange exception is vague as to what facts will satisfy it. The enabling *648 loan exception is not rendered useless by holding that the contemporaneous exchange exception can apply to the same facts. Id., 14 B.R. at 803.
The effect of this approach is to give the preferred creditor two bites at the apple. If he has promptly perfected his security interest within the ten days[1] specified by 11 U.S.C. § 547(c)(3), he is automatically protected. However, if he has not promptly perfected, he may still maintain that, the delay notwithstanding, creation of the security interest was meant to be and was "substantially contemporaneous" with parting of value to debtor and he should be protected by 11 U.S.C. § 547(c)(1).
Other Courts have refused to give the preferred creditor the extra bite at the apple. See In re Enlow, 20 B.R. 480, 9 BCD 200, Bankr.L.R. ¶ 68,719 (Bkrtcy.Ind.1982); In re Christian, 8 B.R. 816 (Bkrtcy.M.D.Fla. 1981); In re Meritt, 7 B.R. 876, 7 BCD 28, Bankr.L.R. ¶ 67,883 (Bkrtcy.W.D.Mo.1980). As stated in In re Enlow, supra:
The explicit reference by Congress in Section 547(c)(3) to enabling loans lends further support to the conclusion that Section 547(c)(1) is not applicable to the instant transaction. Through its enactment of section 547(c)(3) Congress intended to make that section not Section 547(c)(1) applicable to an enabling loan situation. To conclude otherwise would render the provisions of Section 547(c) "redundant and unnecessary." Id. 20 B.R. at 483, 9 B.C.D. at 201-202.
The effect of this approach is to require the preferred creditor to fit his situation into either of the two exceptions depending on whether the transfer assailed is one involving a lien or cash. If the creditor has retained a lien to secure an enabling loan (a purchase money lien), then he must fit his case into 11 U.S.C. § 547(c)(3) or face avoidance.
The issue then is really one of statutory construction. When a statute is clear on its face, its "plain meaning" must control, and there is no need to look beyond the statute itself to determine what it means. Bread Political Action Comm. v. Fed. Election Commission, ___ U.S. ___, 102 S.Ct. 1235, 1237, 71 L.Ed.2d 432 (1982); U.S. v. Oregon, 366 U.S. 643, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575 (1961); Glenn v. U.S., 571 F.2d 270, 271 (5th Cir. 1978); U.S. v. Second Nat. Bank of North Miami, 502 F.2d 535, 539 (5th Cir. 1974); Arkansas Valley Industries, Inc. v. Freeman, 415 F.2d 713, 717 (8th Cir. 1969). But when the statute is not clear on its face, resort may and must be had to its legislative history so that the statute may be construed in conformity with the drafters' intent. Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 2186-2187, 45 L.Ed.2d 319 (1975). Likewise, resort may be had to the several principles and maxims of statutory construction. See, e.g., National Railroad Passenger Corp. v. National Association of Railroad Passengers, 414 U.S. 453, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). Such principles and maxims are guides to determining legislative intent, and must yield in the face of clear contrary evidence of legislative intent. Id.
It is abundantly clear, from the legislative history, that the drafters of 11 U.S.C. § 547(c)(1) did not design it to cover such a situation as is presented under the facts of this proceeding. This subsection was designed to fit in the situation of a contemporaneous exchange of cash or the equivalent of cash by the debtor for something of value, e.g., the situation where the debtor acquires new property and pays for it at or about the same time, with cash or the equivalent of cash. See H.R.Rep.No. 95-595, 95th Cong., 1st Sess. 373 (1977); Levin, Introduction to Trustee's Avoiding *649 Powers, 53 Am.Bankr.L.J. 186 (1979). The legislative history states at H.R.Rep.No.95-595, U.S.Code Cong. & Admin.News, 1978, p. 6329:
The first exception is for a transfer that was intended by all parties to be a contemporaneous exchange for new value, and was in fact substantially contemporaneous. Normally, a check is a credit transaction. However, for the purposes of the paragraph, a transfer involving a check is considered to be "intended to be contemporaneous," and if the check is presented for payment in the normal course of affairs, which the Uniform Commercial Code specifies as 30 days, U.C.C. § 3-503(2)(a), that will amount to a transfer that is "in fact substantially contemporaneous."
From this it is clear that the intent of the drafters was that the only type of credit transaction which would result in a transfer under this exception would be a transaction by which a payment is made by check, which, as is noted, is for all practical intents and purposes really a cash transaction.
Plainly, the drafters meant for 11 U.S.C. § 547(c)(1) to be an exception protecting transfers of cash or quasi-cash arising out of transactions for new value to the debtor. To permit situations such as presented in this adversary proceeding to be "squeezed" into this exception would frustrate the expressed intent of Congress.
The traditional rules of statutory construction lead to the same result. It is an ancient maxim of statutory construction that where a statute provides for a remedy or for a thing to be done in a particular way then it negates all other similar remedies or alternative ways that the same thing might be done. National Railroad Passenger Corp. v. National Association of Railroad Passengers, supra; Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1085 (5th Cir. 1980). This maxim is stated expressio unius est exclusio alterius. Id. 11 U.S.C. § 547(c)(3) provides a mechanism by which liens to secure enabling loans might be excepted from avoidance. In so doing it negates the applicability of other means of exception. 11 U.S.C. § 547(c)(1) is in general; 11 U.S.C. § 547(c)(3) is specific; it refers to "a security interest" such as in this adversary proceeding.
Similarly, another rule of construction is that each part of a statute should be construed as having a meaning, if a reasonable construction of the whole statute will so permit. In re Enlow, supra, 20 B.R. at 483, 9 B.C.D. at 202. If 11 U.S.C. § 547(c)(1) is given a construction which would permit it, as is argued by the Defendants, to be applied to transfers of liens to secure enabling loans, then 11 U.S.C. § 547(c)(3) becomes redundant and unnecessary. Id., 20 B.R. at 483, 9 B.C.D. at 201-202. There is a reasonable construction available to 11 U.S.C. § 547(c) which would prevent this. This construction is that 11 U.S.C. § 547(c)(1) only applies to "substantially contemporaneous exchanges" of cash or the equivalent of cash.
For these reasons, 11 U.S.C. § 547(c)(1) cannot apply as an exception to the avoidance of transfers of liens to secure enabling loans. Such liens, if they are at all to be excepted from avoidance, must fall within 11 U.S.C. § 547(c)(3). The lien herein assailed as avoidable cannot fall within that exception since perfection was accomplished more than 10 days after creation of the security interest.
NOTES
[1] The spirit of the preference section is to provide a creditor to whom is transferred a purchase money security interest (e.g., security interest securing an enabling loan) an exception to avoidance if he is promptly perfected. It is clear that the section anticipates "prompt perfection" to be perfection within ten days. See 11 U.S.C. § 547(c)(3)(B); 11 U.S.C. § 547(e)(2)(A). This ten day time limit is taken from U.C.C. 9-301, which provides for a ten day "continuous perfection" period for purchase money liens, e.g., a purchase money lien perfected within ten days of its creation is treated as perfected from date of creation. H.R.Rep.95-595, 95th Cong., 1st Sess., 212 (1982).
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FILED
NOT FOR PUBLICATION JUN 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50294
Plaintiff - Appellee, D.C. No. 2:10-cr-00138-ODW
v.
MEMORANDUM *
MARTIN CARRILLO-CASTANEDA,
a.k.a. Martin Carillo, a.k.a. Marty Carrillo,
a.k.a. Spanky, a.k.a Rodolfo Valdez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Martin Carrillo-Castaneda appeals from his guilty-plea conviction and 21-
month sentence for being an illegal alien found in the United States following
deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
386 U.S. 738 (1967), Carrillo-Castaneda’s counsel has filed a brief stating there are
no grounds for relief, along with a motion to withdraw as counsel of record. We
have provided the appellant with the opportunity to file a pro se supplemental
brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S.
75, 80-81 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district
court’s judgment is AFFIRMED.
2 10-50294
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No. 04-00-00752-CV
IN THE INTEREST OF B.S., et al., Minor Children
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 1999-PA-01650
Honorable John D. Gabriel, Jr., Judge Presiding
Per Curiam
Sitting: Tom Rickhoff, Justice
Alma L. López, Justice
Catherine Stone, Justice
Delivered and Filed: February 28, 2001
DISMISSED
Counsel for appellants has filed an agreed motion to dismiss this appeal. Therefore, we grant
the motion and dismiss the appeal. See Tex. R. App. P. 42.1(a)(2).
PER CURIAM
DO NOT PUBLISH
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593 P.2d 1191 (1979)
39 Or.App. 647
In the matter of the Marriage of Barbara G. SELLERS, Respondent, AND
John C. Sellers, Appellant.
No. D7702-02246; CA 11425.
Court of Appeals of Oregon.
Argued and Submitted January 15, 1979.
Decided April 23, 1979.
Clarified on Motion July 2, 1979.
*1192 Paul J. Kelly, Jr., Portland, argued the cause and filed the brief for appellant.
Eric Young, Gresham, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and THORNTON, LEE and GILLETTE, JJ.
THORNTON, Judge.
Husband appeals from the decree in a dissolution proceeding. He challenges the court's division of assets, award of spousal and child support, and failure to award attorney fees.
Husband, 46, and wife, 43, were married 23 years. They have four children. Two of the children are still minors; custody was awarded to wife.
Husband provided most of the support during the marriage until shortly before the separation. He has a degree in radio and television broadcasting. He has worked in sales and broadcasting. He worked for the state for ten years, attaining a salary of $15,717, before quitting on his physician's advice. After a year of unemployment, husband worked at one job for two weeks and then was unemployed for two more months, during which period the separation occurred. He was then employed by the City of Portland in a six-month CETA position at $1,480 a month, but resigned that position when he was involved in an auto accident. A year later, husband obtained another six-month CETA position paying $822 a month. Wife, who attended college but has no degree, worked only part-time during most of the marriage. However, she has recently become successful in real estate sales, grossing an average of $22,000 a year in the three years prior to divorce.
Husband has had physical and psychological problems. His psychologist testified that husband would be employable within 30 to 60 days. Husband's physician opined that husband should avoid heavy lifting, repeated bending, extended driving, and jobs requiring sitting in one position for long periods.
*1193 Wife was awarded net assets of approximately $29,000,[1] and husband, net assets of approximately $23,000. Wife was awarded the family home, in which the parties had an equity of approximately $28,000, subject to a $12,500 noninterest bearing lien. The lien is payable to the husband upon various contingencies. The house was obtained at less than market, according to the wife, from her parents, and the parties have added onto it with much help from wife's father. The parties also owned a rental property, in which their equity is approximately $11,000, and another parcel, a gift from wife's parents, worth $2,000. Husband is to receive $6,500 or half the proceeds from the sale of the rental property and the small parcel. The wife was awarded most of the furniture and furnishings. The court ordered the $7,762 settlement from husband's accident, any tax refunds, and any judgment on husband's civil rights action, to be divided equally between the parties. Husband specifically challenges the award to wife of one-half of his accident settlement.[2]
We are to examine the decree of dissolution in its entirety, rather than evaluating property divisions and child and spousal support entirely as separate items. Grove and Grove, 280 Or. 341, 571 P.2d 477, 280 Or. 769, 572 P.2d 1320 (1977). Furthermore, we do not disturb the trial court's disposition of property unless it appears that a mistake was made. McCoy v. McCoy, 28 Or. App. 919, 562 P.2d 207, 29 Or. App. 287, 563 P.2d 738 (1977). Relevant considerations in reviewing property divisions and support payment orders are the source of the assets, and the age, earning capacity and health of the parties. See Laird and Laird, 27 Or. App. 161, 555 P.2d 814 (1976), rev. den. (1977). Hence, although generally an equal division of the property is preferred, various considerations may support a different result. Ray and Ray, 32 Or. App. 527, 574 P.2d 687, rev. den. 282 Or. 537 (1978).
Although wife should perhaps be somewhat preferred because she has custody of the children, husband's impaired health suggests that he should perhaps be favored, although the long-term effect of his disability on his earning power is uncertain. Furthermore, amounts received for post-separation injuries should generally be awarded to the injured spouse. Hammond and Hammond, 23 Or. App. 739, 543 P.2d 1076 (1975). Overall, it appears that a more equal balance should be struck; hence, the entire net settlement for husband's injury should be awarded to husband.
Husband further assigns as error the court's failure to require interest on husband's $12,500 lien on the parties' home. The lien is payable upon certain contingencies, that which could occur last being the youngest child's attaining the age of 21, if he attends college. Even at the modest statutory rate of 6 percent which husband requests, the present value of the lien is much less than its face amount if the lien does not become payable until the youngest child is 21. In such event the division of assets is even more disproportionate than it appears to be.
We have refused to impose an interest obligation on a lien payable within two years, where the obligor was awarded only nonliquid assets and did not have the amount of the lien as a fund to use for her own purposes. Griffin and Griffin, 34 Or. App. 765, 579 P.2d 885 (1978). Lack of spousal support may be a consideration in awarding interest, see Warren and Warren, 31 Or. App. 213, 570 P.2d 104 (1977), and here spousal support was awarded. Although *1194 it is not clear that wife may be able to pay the lien fairly promptly, McCoy and McCoy, supra, the lien is potentially of long duration, and spousal support payments are minimal. We conclude that husband is entitled to six percent per annum on the lien.
Husband further argues that his financial condition is such that the award of child support, $75 per child per month, was too large and the award of spousal support,[3] $10 per month, payable semi-annually, too small. At the time of the final hearing, husband was earning $822 per month before taxes while wife was earning approximately $1,600 per month after business expenses and before taxes. Husband's estimated monthly expenses total approximately $675, of which $135 is for repayment of debts, although husband estimated payments on only some of his debts.
Wife's nonbusiness expenses approximate $1,100 per month, but are lower if expenditures for food, clothing and medicine for her parents are eliminated. (The trial court stated that it would not consider wife's contributions to her church of $100 per month or to her parents, including $250 per month payment on the motor home bought for their use, and wife does not challenge this decision.) Her estimated federal tax payments are $1,700 per quarter. The estimate does not include expenses on the rental lot, which was ordered to be sold. That is not a substantial disparity given progressive income tax rates and the fact that wife has custody and the major financial responsibility for support of two children.
It is not clear that husband's disability will eventually cause him to suffer a substantially disproportionate standard of living, and both parties must reduce their standards of living when modest incomes are no longer pooled. See Grove and Grove, supra. Therefore, the trial court's decision to award nominal spousal support was appropriate.
As to child support, we acknowledge that public policy generally requires that the noncustodial parent pay some amount, even though that parent's financial situation requires that the payment be small, and even though the custodial parent can adequately support the children without the help of the noncustodial parent. Westby and Westby, 30 Or. App. 431, 567 P.2d 145 (1977). The award of interest on husband's lien against the residence amounts to $62.50 per month, which will offset to a considerable extent the $75 per child per month support ordered by the trial court. In light of the interest on the lien, the property division, and the differences in the parties' incomes, we will not disturb the trial court's award of support.
Husband also assigns as error the court's decision to impose on each party his or her own costs and attorney fees. There is no evidence concerning the amount or reasonableness of attorney fees. Fery and Fery, 20 Or. App. 581, 532 P.2d 1131 (1975).
Affirmed as modified. No costs to either party.
SCHWAB, Chief Judge, dissenting.
I would affirm the decree in all respects.
On Motion for Clarification
THORNTON, J.
The husband moves for clarification of our former opinion in which we modified the trial court decree by requiring that the wife pay interest on the $12,500 lien award to the husband. We did not state the date from which interest would run or how payment was to be made.
Interest shall run from the date of mandate and shall be payable semiannually with the first payment due six months from that date. Subsequent payments shall be due every six months thereafter or fraction thereof until the lien is discharged.
NOTES
[1] Wife was awarded a motor home, purchased by her after the separation jointly with her father, for which the indebtedness apparently exceeds the estimated fair market value by approximately $1,000. Although she testified that she was involved in the purchase merely to obtain financing, she has made all but the initial payment. The motor home was purchased for her parents to use.
[2] Wife claims that husband's payment of half of the settlement to her forecloses husband from appealing the award as to the settlement. Complying with a decree precludes appeal only if "it satisfactorily appears that the payment or compliance was voluntary, not coerced, and made with the view of settlement." (Citations omitted.) Diesel Service Unit v. Bonbright, 276 Or. 417, 555 P.2d 452 (1976). Here, it is not clear that husband intended to settle.
[3] Husband also was required to maintain his Veteran's Administration insurance for the benefit of the children. The cost, however, is de minimis as dividends almost equal premiums.
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176 Cal.App.2d 521 (1959)
COUNTY OF LOS ANGELES, Respondent,
v.
SENNA MAE BEAN et al., Defendants; GUY N. STAFFORD, Appellant.
Civ. No. 23976.
California Court of Appeals. Second Dist., Div. One.
Dec. 22, 1959.
Guy N. Stafford, in pro. per., for Appellant.
Harold W. Kennedy, County Counsel, and Richard A. Del Guercio, Deputy County Counsel, for Respondent.
FOURT, J.
This is an appeal from a judgment in a condemnation action and from an order denying appellant's motion for a new trial.
The respondent in a proceeding sought to widen El Segundo Boulevard, and as a part thereof, sought to acquire among others certain property belonging to the appellant. The lot which appellant owned was located in an unincorporated area of the county and was zoned R 15000 and was 59.66 feet wide at El Segundo Boulevard, 78.70 feet at the rear and about 163 feet in depth. The county sought to acquire from appellant as Parcel 27-2 a 20- foot strip in fee off the front of the lot and an additional 5-foot strip as Parcel 27-2s for a slope easement.
The cause was heard without a jury and after viewing the property and hearing the testimony of the various witnesses, the court found the value of Parcel 27-2 to be $655 and the value of Parcel 27-2s to be $50. The court also found that the remaining property of appellant had not been damaged as a *524 result of the taking and the construction of the improvement in the manner proposed.
Appellant has not complied with the Rules on Appeal in his briefs and as a consequence it is difficult to follow his various contentions. Appellant claimed at the trial that within Parcel 27-2 and/or 27-2s there was located an oil well and that such well was capable of production. Later he claimed that even if the well was not located on the property taken that the remaining property was damaged because he could not, after the taking, legally operate the well. He also claimed that the remaining property was damaged because of a claimed necessity for regrading the property after the taking and the construction of the improvement.
In effect the appellant asserts, among other things, that the evidence is insufficient to support the judgment. The record clearly indicates that there was ample evidence to establish that the well was not located on the property taken and further, that because of the zoning ordinance the property could not legally be used as an oil well site.
Numerous special errors are assigned to the trial court's determination. The first of these deals with an alleged misconstruction of certain stipulations made by the parties. The first stipulation was the pretrial statement. It stated:
"It Is Hereby Stipulated by and between the parties hereto that the issues to be determined at the trial as to the above designated parcel are:"
"1. The value of the part taken."
"2. Severance damages, if any, to the remaining parcel."
"3. Special benefits, if any, to the remaining parcel."
"It is further stipulated by and between the parties hereto:"
"1. That the defendant Guy N. Stafford is the owner of parcel 27-2 and 2s."
"2. That Henry G. Harris and Maude H. Harris are beneficiaries under certain deeds of trust recorded in Official Records Book 32832, page 135, and in Official Records Book 42529, page 259, and any award to be made shall first be applied to any balance remaining due on said trust deed."
"3. That the date of valuation is November 8, 1957."
"4. That the defendant Guy N. Stafford claims damages to that certain oil well located on Parcel 27-2 and 2s, and that the defendant also claims damages to the remaining parcel caused by the necessity for regrading of the remaining property."
"Dated: September 29, 1958. ..." *525
[1] By virtue of the above stipulation, appellant argues that the respondent admitted the existence of the oil well on that portion of the land taken. Without resorting to any interpretative gymnastics, it is clear that at most the stipulation means that appellant Stafford claims that there is an oil well located on Parcel 27-2 and 2s and that it was damaged by the taking. The record clearly indicates that there is no well located upon that portion of the land taken.
[2] But, even if appellant is correct that the parties agreed that the well was within the portion taken, the fact remains that the well is not capable of production.
The second stipulation was made in court at the commencement of the trial. It provides:
"Los Angeles, California, November 5, 1958, 9:45 A.M. * * *"
"(The following proceedings were had in chambers.)"
"The Court: Mr. Del Guercio, will you be good enough to state again the stipulation that we talked about here? Listen to it carefully, Mr. Stafford, to make sure that you understand it."
"Mr. Del Guercio: It is stipulated by and between the County of Los Angeles, by and through its attorney Harold W. Kennedy by Richard A. Del Guercio and the defendant Guy N. Stafford appearing in pro per, that a jury trial as to the fair market value of the Parcels 27-2 and 2-S and any damage to the remaining property as a result of the taking and the construction of the improvement in the manner proposed is waived, it being understood and further agreed that Guy N. Stafford agrees to limit any recovery to which he is entitled to the cost of redrilling a well, an oil well, on the remaining property; provided further that Guy N. Stafford as the defendant property owner shall be required to prove by legal and competent evidence all damages to which he is legally entitled and all compensation to which he is legally entitled."
"Mr. Stafford: Yes."
(Discussion off the record.)
"Mr. Del Guercio: That the damages referred to previously to be measured by the cost of drilling a well on the remaining property to a depth comparable to the existing well located on the entire parcel."
"Mr. Stafford: That is right."
"The Court: Now, do you understand that?"
"Mr. Stafford: I do, although I think it is a little ambiguous as to the recovery for the surface value of the property. *526 In other words, that property has a value from a residential and other standpoints and that taking of it, they have offered me $750, he says, for that, and I think I am entitled to a couple hundred dollars more at least."
"And then there is the grading down to level. The front part is three and a half feet; it is a hundred and eighty feet deep. I don't want to go clear back there. Those are independent of the oil well."
"Mr. Del Guercio: What I propose is that you are entitled to recover all of the compensation and damages to which you are legally entitled as a result of our taking."
"Mr. Stafford: That is right. That ought to cover everything, don't you think so, your Honor?"
"The Court: I would think so, but I want to make sure you understand it before I let this panel of jurors go."
"Mr. Stafford: I can't understand any language being any more explicit than that."
The appellant has in effect asked this court to decide that his alleged oil well had value in spite of the record to the contrary. [3] It was appropriately stated in City of Los Angeles v. Harper, 8 Cal.App.2d 552, 555 [48 P.2d 75]:
"... The responsibility of awarding public money for property taken for public uses is that of the court, and it is for the court to say what evidence of values or damages should be presented for the court's consideration and guidance in giving judgment. Neither the responsibility nor the duty of the court to render a just judgment should be shifted to counsel in the case. [4] While it is entirely proper for the court to accept stipulations of counsel which appear to have been made advisedly, and after due consideration of the facts, the court cannot surrender its duty to see that the judgment to be entered is a just one, nor is the court to act as a mere puppet in the matter. ... As a result of the testimony taken upon this issue the court found that no damage would be caused by the condemnation. Appellant was given full opportunity to prove its ... damage and failed in that attempt. It therefore appears that if the finding that no damage was sustained is supported by the evidence, appellant would have been unjustly enriched ... if the court had acted in reliance upon the stipulation."
[5a] Appellant's next claim of error is that the trial court failed to strike the testimony of one of respondent's expert witnesses on the ground that such testimony was irrelevant, immaterial and represented hearsay. Although appellant's *527 brief indicates that the basis for the motion to strike was predicated upon the fact that the testimony of the expert constituted hearsay, was immaterial and irrelevant, the record discloses that these were not the grounds asserted to the trial court.
The motion was in fact to strike the whole testimony of Mr. Hughes (respondent's expert witness) on the ground that he had not shown any knowledge of the area and was not competent to express an opinion.
[6] The propriety of proving value through a properly qualified witness by eliciting facts relating to his examination of the land and area, and any facts showing knowledge of the subject and capacity to express an opinion is well established. (Estate of Ross, 171 Cal. 64 [151 P. 1138]; DeFreitas v. Town of Suisun City, 170 Cal. 263 [149 P. 553].) [7] Evidence of the geology, uses and physical characteristics of the land are pertinent in a condemnation action. (City of Los Angeles v. Cole, 28 Cal.2d 509 [170 P.2d 928].) [8] As was pointed out by the court in McElligott v. Freeland, 139 Cal.App. 143, 157 [33 P.2d 430]:
"... it is established that a witness who is called to testify regarding the value of property should, so far as is practicable, detail the facts upon which his conclusion or judgment is based even though the facts upon which he relies would be incompetent to affect value in the particular case and even though the facts which form the basis of his conclusion may have been derived from inquiries made of others or from correspondence. (22 C.J., p. 575). This principle is exemplified in cases where an expert is permitted to give an opinion as to value which is based entirely on knowledge gained from inadmissible sources."
[5b] Therefore, even assuming that some inadmissible matters were testified to by the witness, the motion made by appellant was general and embraced all the testimony of the witness. [9] A similar problem was presented in Rose v. State, 19 Cal.2d 713, 742 [123 P.2d 505], wherein the court stated:
"... Defendants cannot predicate error on the denial of a general motion to strike all of (the witnesses) testimony, when only portions thereof were inadmissible. A motion to strike must be directed with precision to the matter sought to be stricken. (Dietlin v. General American Life Insurance Co., 4 Cal.2d 336 [49 P.2d 590].) A motion to strike out inadmissible evidence may be properly denied where it is general *528 and embraces evidence which is admissible as well as that which is inadmissible."
[10] Appellant's next basis of error is that the trial court failed to make findings that the property in question had been damaged. The simple answer to this contention is that the trial court found no damage and in its findings and judgment so stated.
The appellant next complains of numerous other so-called "special material errors" and "material errors in general." We have heretofore mentioned and disposed of some of the claimed errors. Appellant also asserts that the trial judge was arbitrary and disregarded the evidence of appellant. The record belies any such contention. [11] Appellant insists that he should have been entitled to show what he intended to do with the property (namely to produce oil therefrom). A proper objection was sustained. [12] It is settled that the use intended by the owner does not enhance the market value of property. (Redwood City Elementary School District v. Gregoire, 128 Cal.App.2d 766, 773 [276 P.2d 78].) [13] Actual market value is the measure, and not its value in use to the owner. (Central Pacific Railway Co. v. Feldman, 152 Cal. 303, 309 [92 P. 849].) [14] The rule governing the admissibility of sales prices of other property on direct examination vests discretion in the trial court. [15] In County of Los Angeles v. Faus, 48 Cal.2d 672, 678 [312 P.2d 680], the court states the standards of comparability to be:
"... The sales of other tracts must have been sufficiently near in time, and the other land must be located sufficiently near the land to be valued, and must be sufficiently alike in respect to character, situation, usability, and improvements, to make it clear that the two tracts are comparable in value and that the price realized for the other land may fairly be considered as shedding light on the value of the land in question. Manifestly, the trial judge in applying so vague a standard must be granted a wide discretion."
The record in this case discloses no comparability. To the contrary, the dissimilarity is manifest. Other properties referred to by appellant contained producing wells with full equipment. Appellant's well had not produced for over 20 years and had no producing equipment.
[16] Under the circumstances of this case there was no prejudicial error in requiring appellant to testify as to the price he paid for the property as appellant testified that "I bought the lease off of George F. Getty." His objection was *529 predicated on lack of materiality without specifying wherein it was immaterial. Here, the price paid has independent relevancy and materiality to explain and perhaps contradict appellant's previous testimony.
The record clearly indicates that the other allegations of error are without merit.
The order and judgment are and each is affirmed.
Wood, P. J., and Lillie, J., concurred.
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933 So.2d 533 (2006)
HAUCK v. UNION PLANTERS BANK, N.A.
Nos. 3D06-766, 3D06-593.
District Court of Appeal of Florida, Third District.
July 12, 2006.
Decision without published opinion. App. dismissed.
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356 F.2d 706
Claire Irene FISHER, Administratrix of the Estate of VirgilFranklin Fisher, Deceased, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 16404.
United States Court of Appeals Sixth Circuit.
Feb. 21, 1966.
Donald P. Traci, Cleveland, Ohio, for appellant, Spangenberg, Hasenflue & Shibley, Cleveland, Ohio, on the brief.
Morton Hollander, Atty., Dept. of Justice, Washington, D.C., for appellee, John W. Douglas, Asst. Atty. Gen., Michael W. Werth, Atty., Dept. of Justice, Washington, D.C., Joseph P. Kinneary, U.S. Atty., Robert A. Bell, Asst. U.S. Atty., Columbus, Ohio, on the brief.
Before WEICK, Chief Judge, EDWARDS, Circuit Judge, and CECIL, Senior Circuit Judge.
PER CURIAM.
1
Claire Irene Fisher, plaintiff-appellant, brought this action in the United States District Court for the Southern District of Ohio, Eastern Division, against the United States, under the Federal Tort Claims Act. (Sections 1346(b),1 2671,2 et seq., Title 28 U.S.C.) The plaintiff-appellant is the duly qualified and acting administratrix of the estate of her husband, Virgil Franklin Fisher. She brought the action for the wrongful death of her husband alleged to have been caused by the negligence of an employee of the United States. Ohio Rev.Stat. ch. 2125 (1964).
2
The deceased met his death as a result of injuries sustained in a collision between an automobile in which he was riding and an automobile being driven by one Albert A. Heskett. Heskett was driving a 1961 Ford Econoline truck for Walter C. Thompson who had a star route contract with the United States Post Office for the transportation of mail between Zanesville, Ohio, and Coshocton, Ohio. The truck was being driven by Heskett in the performance of Thompson's contract at the time the accident happened.
3
The question presented on this appeal is whether Heskett was an employee of the United States within the meaning of the Federal Tort Claims Act. On a motion for summary judgment (Rule 56, Federal Rules Civil Procedure) the district judge held that Thompson was an independent contractor and that Heskett was not an employee of the United States. He sustained the motion for summary judgment and the plaintiff-appellant appealed.
4
There are no disputed facts material to the issue before us and the question presented is one of law. The general rule to determine whether a relationship is that of employer and employee or independent contractor may be stated as follows:
5
'If the right to control the manner or means of performing the work is in the person for whom the work is performed, the relationship is that of employer and employee or master and servant; but if the control of the manner or means of performing the work is delegated to the person performing the work, the relationship is that of independent contractor.' Bhner v. Indus. Comm., 154 Ohio St. 433, 437, 96 N.E.2d 403, 405.
6
The principle is substantially the same under either Ohio or Federal law. Commercial Motor Freight v. Ebright, 143 Ohio St. 127, 135, 54 N.E.2d 297, 151 A.L.R. 1321; Bobik v. Indus. Comm., 146 Ohio St. 187, 64 N.E.2d 829; Standard Oil Co. v. Anderson, 212 U.S. 215, 221, 29 S.Ct 252, 53 L.Ed. 480; Strangi v. United States, C.A.5, 211 F.2d 305, 307. The question of who is a federal employee for the purposes of the Tort Claims Act is governed by federal law. Courtney v. United States, 230 F.2d 112, 114, C.A. 2; Blackwell v. United States, 321 F.2d 96, 98, C.A. 5; Brucker v. United States, 338 F.2d 427, 428 (footnote 2), C.A. 9, cert. den. 381 U.S. 937, 85 S.Ct. 1769, 14 L.Ed.2d 701; Pattno v. United States, 311 F.2d 604, 605, C.A. 10, cert. den. 373 U.S. 911, 83 S.Ct. 1300, 10 L.Ed.2d 412.
7
We conclude from our examination and analysis of the star route contract here in question that the relationship is that of independent contractor. Heskett was not an employee of the United States. See Smick v. United States, D.C., 181 F.Supp. 149; Thomas v. United States, D.C., 204 F.Supp. 896.
8
We find no merit to plaintiffappellant's contention that the letting of this contract by the Post Office was a non-delegable duty. Pierce v. United States, D.C., 142 F.Supp. 721,3 cited by plaintiff-appellant in support of her theory of non-delegable duty is not analogous to the case at bar. This case involved the doctrine of non-delegable duty under Tennessee law. As the court said at p. 729:
9
'In the first instance the government was guilty of negligence in erecting and maintaining the substation in a condition hazardous to workmen.'
10
Also, the government was in control and possession of the premises where the accident happened.
11
Non-delegable duty was well defined by the court at p. 734, as follows:
12
'As the doctrine of nondelegable duty is applied in this state it is not a rule of strict liability regardless of fault. Negligence is required, the sole effect of the doctrine being to preclude the owner-employer from escaping liability for negligence which was a proximate cause of injury on the ground that others may have been guilty of negligence, which was also a proximate cause of injury. As in any other case the basis of liability is negligence.'
13
See also, Mahoney v. United States, D.C., 220 F.Supp. 823, 826.
14
In Covington and Cincinnati Bridge Co. v. Steinbrock & Patrick, 61 Ohio St. 215, 55 N.Ed. 618, also cited by plaintiffappellant, the owner was responsible for maintaining a hazardous condition. He left standing the walls of a building destroyed by fire. This was held to be a menace to the public and the property of others in the vicinity.
15
There was nothing unusually hazardous about letting a contract to someone for carrying mail in a truck over the highways of the state. Nor was the United States negligent in letting such a contract. Obviously the United States was not in control of the premises at the site of the accident. Clearly the doctrine of non-delegable duty is not applicable to the facts of the case now before us.
16
The United States was not a common carrier under the facts of this case. Neither the argument nor the cases cited relative to liability of common carriers is applicable here.
17
The judgment of the District Court is affirmed.
1
(b) Subject to the provisions of chapter 171 of this title, the district courts, * * * shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred
2
'Federal agency' includes the executive departments and independent establishment of the United States, and corporations primarily acting as, instrumentalities or agencies of the United States but does not include any contractor with the United States
3
Affirmed 235 F.2d 466, C.A. 6
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117 P.3d 1194 (2005)
2005 WY 91
Patrick F. MADIGAN, Appellant (Defendant),
v.
Tammy J. MAAS, Appellee (Plaintiff).
No. 04-173.
Supreme Court of Wyoming.
August 11, 2005.
*1195 Carol A. Serelson, Cheyenne, Wyoming, for Appellant.
Sasha Johnston of Woodard & White, P.C., Cheyenne, Wyoming, for Appellee.
Before HILL, C.J., and GOLDEN, KITE, VOIGT, and BURKE, JJ.
VOIGT, Justice.
[¶ 1] The appellant, Patrick F. Madigan (Madigan) and the appellee, Tammy J. Maas (Maas) married in 1994. They divorced in 2004. In this appeal, Madigan challenges the district court's property division in that divorce. We will affirm.
ISSUES
[¶ 2] Madigan presents the following issues for our review:
1. Whether the decree of divorce should be corrected to conform to the decision letter of the district court?
2. Whether the monetary award of $22,000.00 to Maas must be adjusted because it is contrary to the evidence and clearly erroneous?
FACTS
[¶ 3] Madigan and Maas married in 1994. They adopted one child in 1999, custody of whom is not at issue in this appeal. Both parties owned homes at the time of their marriage. They sold both and purchased a new house. Maas sold her home first and used the $22,833.00 in proceeds as a down payment on the new house (the John Drive house). Madigan's home then sold, yielding $25,344.00. Madigan used part of this money to settle personal debts and he also paid Maas $7,000.00, intended as a contribution toward the down payment on the John Drive house.
[¶ 4] Madigan and Maas lived in the John Drive house until 2002, when Madigan took a new job and moved to Monticello, Utah. Maas and the parties' daughter remained in Cheyenne, and Madigan traveled home on a regular basis to be with the family. As a result of Madigan's relocation, the parties decided to sell the John Drive house, which sale resulted in a $100,000.00 net profit. $54,000.00 of the proceeds were used as a down payment on a new house in Cheyenne (the Belmont house), $16,000.00 went toward the down payment on a house in Monticello (the Monticello house), and the remaining $30,000.00 was set aside to be used in remodeling the Belmont house.
[¶ 5] In August of 2003, Maas filed for divorce. Shortly thereafter, Madigan requested, and was granted, a transfer back to Cheyenne. Madigan purchased a home in Cheyenne (the Crestline house) and listed the Monticello house for sale. The parties agreed out of court on an appropriate custody arrangement for their child, and in March of 2004, a trial was held on the property division issues. At the close of evidence, the district court requested that the parties submit written closing arguments, including a statement of their respective proposals for the property division. After receiving the parties' closing arguments, the district court issued its decision letter on April 12, 2004. The one-page decision letter read as follows:
Dear Counsel:
I've reviewed your written summations. The Court will adopt the distribution and allocation urged in Tammy Maas' submittal including the items incorporated by reference with the exception that Ms. Maas will pay to Mr. Madigan the sum of $22,000.00 to reconcile the interests in the Belmont residence. The ring and bracelet will be sold by Ms. Maas and the proceeds equally divided. So, each will retain the accounts in their respective names.
The parties will each retain their own retirement interests and accounts. It is not the sort of case that would call for any division of these items.
Each party will pay the fees and costs incurred by the party. [Maas' attorney] will please prepare the decree.
On May 3, 2004, Maas submitted a decree of divorce to the district court pursuant to W.R.C.P. 58.[1] Madigan did not object to the *1196 form of the decree, and the decree of divorce was entered on May 19, 2004.
[¶ 6] With respect to the parties' real property, the decree of divorce awarded Maas the Belmont house and awarded Madigan the Monticello house and the Crestline house. Also, each party was awarded his or her separate accounts and personal property, except that Maas was awarded fifty shares of XM Satellite Radio (XMSR) stock that was in Madigan's name. Finally, Maas was ordered to pay Madigan $22,000.00 to settle his share of the equity in the parties' real property.
[¶ 7] On May 25, 2004, Madigan filed a Motion to Correct Decree of Divorce to Conform to Decision Letter and/or to Correct Clerical Error. In this motion, Madigan asserted that the decree of divorce's award of the XMSR stock to Maas was inconsistent with the decision letter's statement that the parties should retain their separate accounts, and that the decree of divorce should be corrected to provide that Madigan receive the stock with no credit to Maas for its value. Madigan filed another motion on June 1, 2004, titled Motion for Court to Reconsider Decision and Clarify Terms as to Sale of Jewelry. In that motion, Madigan claimed, among other things, that the $22,000.00 equity settlement payment should actually be $41,494.34. He asserted that the $22,000.00 figure was based on incorrect numbers. Maas responded to both motions, and on June 29, 2004, the district court entered orders denying both motions. Madigan filed a timely appeal.
STANDARD OF REVIEW
[¶ 8] We have often acknowledged:
"There are few rules more firmly established in our jurisprudence than the proposition that the disposition of marital property is committed to the sound discretion of the district court. Judicial discretion is made up of many things, including conclusions reached from objective criteria, as well as exercising sound judgment with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. We are required to ask ourselves whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious."
Holland v. Holland, 2001 WY 113, ¶ 8, 35 P.3d 409, ¶ 8 (Wyo.2001). . . . [W]e consider the prevailing party's evidence to be true and give every reasonably drawn inference to it while we disregard all conflicting evidence. Hensley v. Hensley, 896 P.2d 115, 115 (Wyo.1995) (per curiam). Further, property divisions are complex and therefore require the trial court, in its discretion, to assess what is right under the circumstances while considering the respective merits and needs of the parties. *1197 McCulloh v. Drake, 2001 WY 56, ¶ 15, 24 P.3d 1162, ¶ 15 (Wyo.2001). "An abuse of discretion occurs when the property disposition shocks the conscience of this court and appears to be so unfair and inequitable that reasonable people cannot abide it." Hall v. Hall, 2002 WY 30, ¶ 12, 40 P.3d 1228, ¶ 12 (Wyo.2002).
Root v. Root, 2003 WY 36, ¶ 8, 65 P.3d 41, 44 (Wyo.2003). The district court's decision in a property division case is afforded considerable deference. Metz v. Metz, 2003 WY 3, ¶ 6, 61 P.3d 383, 385 (Wyo.2003). Therefore, the division of property should not be disturbed except on clear grounds since the district court is usually in a better position than the appellate court to judge the parties' respective merits and needs. Id.
DISCUSSION
The XMSR Stock
[¶ 9] In Madigan's first appellate issue, he asserts that the divorce decree should be corrected to conform to the district court's decision letter. The decision letter provided that "each [party] will retain the accounts in their respective names." However, the divorce decree awarded Madigan the accounts in his name, "except for 50 shares of XMSR stock which shall be awarded to [Maas]." Madigan contends that this inconsistency between the decision letter and the divorce decree is the result of a mistake by the district court and should be corrected. He urges that we remand the case with instructions to conform the divorce decree to the decision letter.
[¶ 10] In support of this contention, Madigan cites Root, 2003 WY 36, ¶ 25, 65 P.3d at 49. There, the district court's decision letter stated that the husband was to receive $25,000.00 from the wife. Id. The divorce decree, however, omitted this award. Id. Neither party raised the omission on appeal. Id. at ¶ 26, 65 P.3d at 49. However, because the district court undeniably intended the husband to receive this amount, we remanded the case with instructions to conform the divorce decree to the decision letter. Id.
[¶ 11] Unlike the omission of $25,000.00 in Root, the record in this case does not indicate that the award of the XMSR stock to Maas resulted from an oversight or mistake. Although the district court's decision letter provided that each party would retain his or her own accounts, it also stated that it would adopt Maas' proposed distribution, which proposal included a request for an accounting of the XMSR stock. The divorce decree specifically addressed the stock and clearly provided for its disposition. The decree of divorce read:
[Madigan] is awarded . . . all personal property, including retirement accounts, investment accounts, bank accounts, vehicles, and notes, and reimbursement payments solely in his name, except for 50 shares of XMSR stock which shall be awarded to [Maas]. If [Madigan] chooses to retain this stock instead of transferring it to [Maas], [Maas] shall receive a credit of $1300 toward satisfaction of the equity payment in paragraph 9 of this decree.
(Emphasis added.) The adoption of Maas' proposed distribution and subsequent award of the XMSR stock does not appear to be a mistake, but rather an exercise of the district court's discretion. We have held the district court may, in its discretion, make changes in the final order from what was indicated in the decision letter.
The trial judge's decision letters, discussing legal principles and expressing his conclusions of law, [do] not constitute a judicial determination which may be considered a final order. We analogize that, if a trial court in exercise of its discretion may modify tentative decisions until entry of the final order, it does not err in rendering a decree with changed provisions.
Broadhead v. Broadhead, 737 P.2d 731, 733 (Wyo.1987).[2]
*1198 [¶ 12] The absence of mistake in awarding the XMSR stock to Maas is further evidenced by the district court's denial of Madigan's post-trial motion to correct the decree of divorce, wherein Madigan asserted that the "Decree of Divorce should be corrected to provide that [he] receive the XMSR stock with no credit to [Maas] for its value." Had the district court erroneously awarded Maas the XMSR stock, surely it would have granted Madigan's motion and corrected the decree of divorce.
[¶ 13] We conclude that the award of the XMSR stock to Maas was not the result of a mistake or omission, but rather an exercise of the district court's discretion in dividing the parties' property. Madigan does not argue that the district court abused its discretion in making that award, and we find nothing in the record indicating such an abuse. Therefore, we affirm the award of the XMSR stock to Maas.
The $22,000.00 Equalization Payment
[¶ 14] In Madigan's second appellate issue, he asserts that the $22,000.00 equalization payment, which the district court ordered Maas to pay to Madigan, is inconsistent with the evidence and improperly calculated. The $22,000.00 figure was based on calculations set out in Maas' written closing statement. After the close of evidence, the district court requested that the parties submit their closing arguments in writing. Maas' proposed distribution included the following figures:
Figure 1: Refund of Investment
$42,000 [Madigan]'s ½ of down payment [on the Belmont house] + remodeling
+ $ 4,000 [Madigan]'s ½ of mortgage payments [on the Belmont house] since
August, 2003
- $23,000 [Maas' down payment on the John Drive house]
+ $ 7,000 [Madigan]'s claimed reimbursement to [Maas]
- $ 8,000 [Maas'] ½ of down payment on [Monticello] house
---------------------------------------------------------------------------------
$22,000 [Madigan]'s net share
The district court adopted Maas' proposed property distribution. On appeal, Madigan takes exception to the district court's use of two of the above figures: the $23,000.00 representing the amount Maas paid as a down payment on the John Drive house, and the $4,000.00 representing the amount Madigan contributed to the Belmont house mortgage after Maas had filed for divorce.
[¶ 15] With regard to the $23,000.00, Madigan asserts that the district court should have used $11,500.00 instead of $23,000.00. In his appellate brief, Madigan articulates his argument as follows:
At the time [Maas] contributed the $23,000.00 to the down payment, she contributed her half of the down payment, which was $11,500.00, plus [Madigan]'s half of the down payment, his $11,500.00. Had [Madigan] repaid her nothing, [Maas] would have overpaid $11,500.00, not $23,000.00 as indicated [above].
Madigan claims that the $23,000.00 figure used by the district court is "against all the weight of the evidence and is based on a mathematical miscalculation." However, he cites no evidence which would mandate a different result, nor does he demonstrate the mathematical error. Rather, Madigan's argument appears to reflect nothing more than his apparent belief that the down payment on the John Drive house should have been allocated equally between him and Maas. We recognize that the use of the $23,000.00 figure may not reflect an exact 50/50 distribution; nevertheless, we have stated that "[a] just and equitable distribution is as likely as not to be unequal." Hoffman v. Hoffman, 2004 WY 68, ¶ 12, 91 P.3d 922, 926 (Wyo.2004); Sweat v. Sweat, 2003 WY 82, ¶ 6, 72 P.3d 276, 278 (Wyo.2003). The record clearly shows that Maas paid the $23,000.00 down payment on the John Drive house and that Madigan later paid Maas $7,000.00 as reimbursement for a portion of that amount. We find nothing in the record indicating that the *1199 district court abused its discretion by allocating Maas and Madigan the amounts they contributed, rather than dividing the down payment equally. Without more, Madigan's conclusory statement that the down payment should have been divided equally falls well short of providing the "clear grounds" necessary for us to disturb the district court's property distribution. Metz, 2004 WY 3, ¶ 6, 61 P.3d at 385.
[¶ 16] Madigan's objection to the $4,000.00 figure stems from his contention that he should receive credit for all mortgage payments he contributed from the time he relocated to Monticello, and not just those made after Maas filed for divorce. Madigan asserts that instead of the $4,000.00, he should be entitled to a $9,900.00 credit. As support of this argument, he points to an in-court statement made by Maas during cross examination:
Q. You're willing to give [Madigan] credit for approximately 500 is it 500 or 550 he was paying toward the [Belmont] house payment?
A. We can say 550.
. . .
Q. So 550 would be an appropriate figure times 18 months, is that what it's been?
A. That would be approximately right.
Q. Whatever we figured to be a number of months, you agree that number . . . times 550, he should be given credit on Belmont?
A. Correct.
Q. So that's approximately 9,900, if we have the numbers correct. You would be willing to give him that credit?
A. Yes.
Maas' statement is the only evidence Madigan cites in support of his argument on this issue. In response, Maas points out that her statement was later clarified and corrected upon redirect, and that she clearly articulated her position in her closing statement, wherein she used the $4,000.00 figure instead of $9,900.00.
[¶ 17] Even if Maas had not clarified her original statement, the district court is not bound to adopt the testimony of either party. In Hoffman, 2004 WY 68, ¶ 11, 91 P.3d at 925, the wife testified that she did not think the husband should be responsible for all the parties' business debts. The district court, nevertheless, allocated those debts to husband. Id. at ¶ 13, 91 P.3d at 926. On appeal, the husband challenged the allocation of corporate debt to him claiming that "because Wife must be considered a reasonable person, and she didn't think it was fair, it must meet our standard for abuse of discretion that no reasonable person could abide by the result." Id. at ¶ 16, 91 P.3d at 926. In affirming the district court's decision we stated:
[I]t is the trial court that decides the equitable distribution of property. The trial court hears all the evidence, judges the credibility of the witnesses on all issues, and makes its determination regarding property distribution of all marital property after considering the statutory factors. Wife's isolated comment is but one piece of the puzzle and is not definitive for any purpose.
Id. Clearly, Madigan's reliance on Maas' isolated and disputed statement is insufficient to establish that the evidence does not support the use of the $4,000.00 figure, or that the district court abused its discretion.
[¶ 18] As a final point, we note that even if we were to find the district court's use of one or both of Maas' figures to be erroneous, we are required to examine the reasonableness of the district court's property division from the perspective of the overall distribution of marital assets and liabilities, rather than from a narrow focus on the effects of any particular disposition. Sweat, 2003 WY 82, ¶ 6, 72 P.3d at 278; Carlton v. Carlton, 997 P.2d 1028, 1032 (Wyo.2000). Madigan does not even attempt to show how the overall distribution is inequitable. The parties were each awarded real property, vehicles, household items, accounts, and retirement interests. To settle the equities in the parties' real property, Madigan was also awarded $22,000.00. This distribution, when viewed as a whole, does not shock the conscience of this Court nor do we find it to be so unfair and inequitable that reasonable people could not abide it.
*1200 CONCLUSION
[¶ 19] The district court's award of the XMSR stock to Maas was not the result of an oversight or mistake by the district court, but was a result of the exercise of discretion. Further, the district court's adoption of Maas' proposed distribution, including use of the $23,000.00 and $4,000.00 figures, was not arbitrary, the result of a miscalculation, or an abuse of discretion.
[¶ 20] Affirmed.
NOTES
[1] 58. Entry of judgment or order
(a) Presentation. Subject to the provisions of Rule 55(b) and unless otherwise ordered by the court, written judgments or orders shall be presented to the court within 20 days after its decision is made known. Before submitting the judgment or order, the party drafting it shall seek to secure the written approval as to form of the other parties. If, within 10 days, approval as to form is not obtained, the party drafting the form of judgment or order may forward the original to the court and serve a copy on the other parties with a notice advising objections must be made within 10 days. If no written objection is timely filed, the court may sign the judgment or order. If objection is filed, the court will resolve the matter with or without a hearing. A party objecting shall submit an alternative form of judgment or order with the objection.
(b) Form of Entry. Subject to the provisions of Rule 54(b), in all cases, the judge shall promptly settle or approve the form of the judgment or order and direct that it be entered by the clerk. Every judgment shall be set forth on a separate document, shall be identified as such, and may include findings of fact and conclusions of law. The names of all parties shall be set out in the caption of all final orders, judgments and decrees. All judgments and orders must be entered on the journal of the court and specify clearly the relief granted or order made in the action.
(c) Time of Entry. A judgment or final order shall be deemed to be entered whenever a form of such judgment or final order, signed by the trial judge, is filed in the office of the clerk of the court in which the case is pending. Entry of the judgment shall not be delayed, nor the time for appeal extended, in order to tax costs or award fees, except that, when a timely motion for attorneys fees is made under Rule 54(d)(2), the court, before the appellate court acquires jurisdiction, may order that the motion have the same effect on the time for appeal for all parties as a timely motion under Rule 59.
[2] If the decree of divorce contains terms different from those contained in the decision letter and a party believes that the difference is the result of a mistake or omission, the proper remedy is to object to the order pursuant to W.R.C.P. 58, so that the discrepancy can be resolved. Root, 2003 WY 36, ¶ 26, 65 P.3d at 49. Although Madigan was provided a copy of the decree of divorce containing the errors he now alleges, he failed to object as allowed in W.R.C.P. 58. While this failure does not preclude him from challenging the order on appeal, the issue might have been more expeditiously resolved by using this procedure.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5023
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LINWOOD EARL JONES, JR., a/k/a Earl Linwood
Jones,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-499)
Submitted: August 31, 2006 Decided: September 21, 2006
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas H. Johnson, Jr., GRAY, JOHNSON, BLACKMON, LEE & LAWSON,
L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Lisa B. Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Linwood Earl Jones, Jr., pled guilty to possession of
marijuana with intent to distribute in violation of 21 U.S.C.A.
§ 841(a), (b)(1)(D) (West 1999 & Supp. 2006) (Counts One and Four);
possession of a firearm in furtherance of a drug trafficking crime,
18 U.S.C.A. § 924(c) (West 2000 & Supp. 2006) (Count Two); and
possession of a firearm by a felon, 18 U.S.C. § 922(g)(1) (2000)
(Count Six). Jones received a sentence of fifty-four months for
Count One, Count Four, and Count Six, and a consecutive ten-year
sentence for Count Two. Jones appeals his sentence, arguing that
the district court erred in denying him a three-level adjustment
for acceptance of responsibility, U.S. Sentencing Guidelines Manual
§ 3E1.1 (2005), and in refusing either to compel the government to
move for a downward departure for substantial assistance, USSG
§ 5K1.1, p.s., or to depart downward under USSG § 5K2.0, p.s. We
affirm in part and dismiss in part.
Jones was initially indicted under the name Earl Lynwood
Jones, an error which his attorney pointed out at his arraignment
in January 2005. On March 28, 2005, a superseding indictment was
filed which charged Jones with the same offenses, but used his
correct name. On March 30, 2005, Jones signed a plea agreement,
and on March 31, 2005, the day scheduled for trial, he entered a
plea of guilty. The probation officer recommended a two-level
adjustment for acceptance of responsibility, see USSG § 3E1.1(a),
- 2 -
but the government declined to move for the additional one-level
reduction under § 3E1.1(b) because Jones’ guilty plea was not
timely. At sentencing, Jones objected to the government’s failure
to move for the additional reduction. The district court overruled
his objection.
A defendant who has earned a two-level adjustment for
acceptance of responsibility may receive an additional one-level
reduction only if the government moves for the additional
reduction. USSG § 3E1.1(b). Application Note 6 to § 3E1.1
explains that the government’s motion is required because the
government “is in the best position to determine whether the
defendant has assisted authorities in a manner that avoids
preparing for trial . . . .” Note 6 also specifies that “the
conduct qualifying for a decrease . . . under subsection (b) will
occur particularly early in the case.”
Because Jones entered his guilty plea on the day
scheduled for trial, after the government had been forced to
prepare fully for trial, and the government consequently declined
to move for a reduction under subsection (b), the district court
did not err in denying Jones the additional one-level adjustment
for acceptance of responsibility.
At sentencing, Jones also challenged the government’s
failure to move for a downward departure, asserting that he had
provided substantial assistance to state authorities and had so
- 3 -
informed the government. The government explained that Jones had
provided no assistance to federal authorities. She stated that she
had contacted the state officer identified by defense counsel and
learned that Jones provided assistance to him. However, after
cooperating, Jones engaged in new criminal conduct which formed the
basis for the charges in Counts Four and Six. She stated that,
under these circumstances, she would not request a § 5K1.1
departure. The district court determined that Jones had not
provided substantial assistance to the federal prosecutor, that the
government was under no obligation to reward him for assistance to
state authorities, and that the government’s motives for not
requesting a departure were not unconstitutional. The court
refused to compel a § 5K1.1 motion and also found no reason to
depart downward under § 5K2.0.
This court reviews for clear error the district court’s
decision not to compel the government to file a § 5K1.1 motion.
United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000); United
States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). Jones’ plea
agreement did not obligate the government to move for a § 5K1.1
departure even if he provided substantial assistance. There was no
evidence that the government refused to make the motion based on
any unconstitutional motive. See Wade v. United States, 504 U.S.
181, 185-86 (1992). Therefore, the district court did not clearly
err in refusing to compel the government to file a § 5K1.1 motion.
- 4 -
A district court’s decision not to depart is not
reviewable on appeal as long as the court recognized its authority
to depart. United States v. Quinn, 359 F.3d 666, 682 (4th Cir.
2004) (citing United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir. 1990)).* Here, the district court expressed no uncertainty
about its authority to depart under USSG § 5K2.0. The court
concluded, however, that under the facts of Jones’ case, a
departure was not warranted. We conclude that this claim is not
reviewable on appeal. See Quinn, 359 F.3d at 682.
We therefore affirm the sentence imposed by the district
court, but dismiss that portion of the appeal which contests the
district court’s decision not to depart. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
*
Courts that have considered this issue since United States v.
Booker, 543 U.S. 220 (2005), was decided have uniformly concluded
that Booker does not change the rule. See, e.g., United States v.
Cooper, 437 F.3d 324, 333 (3d Cir. 2006) (collecting cases from
five circuits).
- 5 -
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375 F.2d 1016
ILLINOIS TERMINAL RAILROAD COMPANYv.The UNITED STATES.
No. 16-64.
United States Court of Claims.
April 14, 1967.
Robert T. Molloy, Washington, D. C., attorney of record, for plaintiff. Gerald J. O'Rourke, Jr., and Robert E. Simpson, Washington, D. C., of counsel.
Edna G. Parker, Washington, D. C., with whom was Asst. Atty. Gen., Mitchell Rogovin, for defendant. Philip R. Miller, Washington, D. C., of counsel.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.
OPINION
PER CURIAM.
1
This case was referred to Chief Trial Commissioner Marion T. Bennett with directions to make findings of fact and recommendation for conclusion of law. The commissioner has done so in a report and opinion filed on April 25, 1966. Exceptions to the commissioner's findings, opinion and recommendation for conclusions of law were filed by plaintiff. The case was submitted to the court on the briefs of the parties and oral argument of counsel. Since the court is in agreement with the opinion, findings and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is, therefore, not entitled to recover and the petition is dismissed.
2
Commissioner Bennett's opinion,* as modified by the court is as follows:
3
At issue in this tax refund case is whether plaintiff corporation shall be denied the benefits of section 163(a) of the Internal Revenue Code of 1954, 26 U.S.C. § 163(a) (1964), which permits a deduction for "all interest paid or accrued within the taxable year on indebtedness" because of the limitation imposed by section 265(2) of the Internal Revenue Code of 1954:
4
No deduction shall be allowed for —
5
(1) * * *
6
(2) Interest.
7
Interest on indebtedness incurred or continued to purchase or carry obligations (other than obligations of the United States issued after September 24, 1917, and originally subscribed for by the taxpayer) the interest on which is wholly exempt from the taxes imposed by this subtitle. * * *
8
Plaintiff was organized under the laws of Delaware and has its principal offices in St. Louis, Missouri. Plaintiff is a common carrier by railroad operating in interstate commerce and subject to the jurisdiction of the Interstate Commerce Commission, hereinafter referred to as the I.C.C. At all times pertinent, it filed its federal income tax returns on the accrual method of accounting and on the basis of the calendar year ending December 31. Plaintiff was incorporated in 1954 by a group of 11 trunkline railroads which had offered to purchase the assets and assume the liabilities of an Illinois corporation (plaintiff's predecessor) for $20,015,635 in cash. On April 2, 1956, the I.C.C. approved the sale, authorized plaintiff to issue 2,000 shares of capital stock to the trunkline railroads and permitted them to endorse plaintiff's note for a sum not to exceed $20,015,635. The sale was consummated on June 15, 1956. Among the assets so acquired was approximately $3,000,000 in cash, some $2,500,000 of which plaintiff used to invest in government securities and commercial notes. Among the physical assets that plaintiff acquired were locomotives, freight and passenger cars, depots, tracks and rights-of-way in Missouri and Illinois. In addition, plaintiff acquired the McKinley Bridge, which spanned the Mississippi River at St. Louis, Missouri, and connected St. Louis with Venice, Illinois.
9
The McKinley Bridge carried railroad tracks and a highway. It was the largest single asset that plaintiff acquired, and at the time of the I.C.C. approval, plaintiff had intended to sell the bridge to the Bi-State Development Agency for $13,500,000 and to obtain an exclusive lease-back of the railroad track and other rail facilities for 40 years or other term to be agreed on by the parties. The sale was to occur contemporaneously with the purchase of assets from plaintiff's predecessor and was intended to finance $13,500,000 of the $20,015,635 purchase price, with the remaining $6,515,635 to be borrowed from the Mercantile Trust Company. But Bi-State, created under a compact between Illinois and Missouri, became embroiled in litigation in the state courts, and the sale was never completed.
10
The full $20,015,635 purchase price of the assets had to be financed by a loan for that amount from the Mercantile Trust Company. The loan was obtained on June 15, 1956, for plaintiff's unsecured, 2-year, 4-percent promissory note, plus the endorsement of the group of railroad company shareholders. The debt was originally intended to provide interim financing until the bridge could be sold. But the bridge was not sold until November 21, 1958, and the note was extended from June 15, 1958, to December 15, 1958.
11
Finally, on November 21, 1958, the bridge, which had been allocated a cost basis of $8,531,370.93 by the Internal Revenue Service, was sold to the city of Venice, Illinois. The city paid plaintiff $9,000,000 in cash and $11,000,000 par value of the city of Venice's Subordinate Bridge Revenue Bonds, Series "B," dated October 1, 1958, and due October 1, 1998, bearing interest at 2 percent from October 1, 1960. The interest on these Series "B" bonds was and still remains excludible from gross income for purposes of the federal income tax. The $9,000,000 in cash was applied by plaintiff to its outstanding debt, causing the debt to be reduced to $11,015,635.
12
The ordinance which authorized the issuance of the Series "B" bonds by the city of Venice provided for their redemption prior to maturity upon certain conditions without the approval of the bondholders. It also permitted the modification of the ordinance with the approval of the City Council and holder or holders of 75 percent —
13
* * * in principal amount of each series of the Bonds then outstanding, * * * provided, however, that no such modification or alteration shall extend the maturity of or reduce the interest rate on, or otherwise alter or impair the obligation to pay the principal or interest or redemption premiums, if any, at the time and place and at the rate and in the currency provided therein of any Bond, without the express consent of the holder or registered owner of such Bond, or reduce the percentage of Bonds required for the affirmative vote or written consent to a modification or alteration, or alter or impair the covenants set forth in Section 5.01 hereof. * * * [Article X, § 10.02.]
14
Plaintiff's present bondholdings represent 70.9 percent of the Series "B" bonds issued.
15
Rail facilities on the bridge were leased back to the plaintiff at the time of the sale under terms which created a 50-year leasehold and options in perpetuity to renew the lease for successive terms of 50 years. The McKinley Bridge is very important in plaintiff's operations, and a substantial part of its revenues are earned by reason of having access to that bridge for transriver shipments.
16
Due to delays in arranging for permanent financing, the maturity date of plaintiff's debt was extended from December 15, 1958, to December 15, 1959, with interest at 4¼ percent. On December 31, 1958, plaintiff sold some of its capital assets and United States Treasury bills for cash and used $515,635 of the proceeds to reduce the balance on its promissory note to $10,500,000. Then, in January of 1959, plaintiff requested offers from two investment firms to purchase $4,000,000 par value of the Series "B" bonds. Both firms had shown an earlier interset in the bonds and both submitted bids. The higher bid of 30.799 percent of par "flat" was submitted by B. J. Van Ingen & Company, Inc., which had previously shown an interest in purchasing all or part of the $11,000,000 par value Series "B" bonds and which reiterated its interest in purchasing any future offerings of the bonds. Plaintiff refused to make any commitments about the prospects for additional sales, but because Van Ingen was the highest bidder for the current offerings, plaintiff sold and Van Ingen purchased $3,200,000 par value of the Series "B" bonds for $985,568. This sale served the additional function of establishing an overall value of $3,387,890 for the $11,000,000 face amount of the Series "B" bonds, which value plaintiff and the Internal Revenue Service used in computing the tax arising from the sale of the bridge in 1958.
17
The sale to Van Ingen was consummated on March 10, 1959. Plaintiff used $500,000 of the proceeds to reduce the balance on its promissory note to $10,000,000. The note was further reduced to $9,000,000 on April 14, 1959, when plaintiff sold certain notes and applied the proceeds against the debt.
18
During 1959, plaintiff received two communications expressing an interest in purchasing a portion of plaintiff's Series "B" bondholdings. One inquiry was from the First Boston Corporation while the other was from McCormick & Company, which made a firm offer. No action was taken on either the inquiry or the offer.
19
After extending the note to December 15, 1960, with interest at 5½ percent, plaintiff reduced it by $500,000 on October 14, 1960, leaving a balance of $8,500,000. Plaintiff was still unable to arrange permanent financing, however, and had to extend the maturity date on the promissory note continually, first to December 15, 1961, with interest at 5 percent, then to December 15, 1962, and finally to December 15, 1963.
20
Early in 1962, plaintiff received an offer from Van Ingen to purchase $1,800,000 par value of the Series "B" bonds for 50 percent of par, plus accrued interest. This offer was considerably more than either the First Boston Corporation suggested or McCormick & Company had offered. Moreover, Van Ingen offered to purchase all or part of the remaining $6,000,000 par value for similar cash terms or substituted securities. The offer was declined. Plaintiff continues to receive inquiries about, and offers to purchase, the Series "B" bonds. No action has been taken with respect to any of these inquiries or offers.
21
In December 1962, plaintiff pledged the remaining $7,800,000 par value of the Series "B" bonds as security with the Mercantile Trust Company for issuance of plaintiff's First Mortgage, Series "A" Bonds. The Series "B" bonds were pledged, and the operation of the sinking fund on behalf of the Series "A" bonds was accelerated, in order to get an "A"-quality rating from Standard & Poor's on the First Mortgage, Series "A" Bonds. The A-quality rating caused the plaintiff's interest cost for the Series "A" bonds to be less than would have been the case if the original "BBB"-quality rating had obtained. The A-quality rating probably also increased the marketability of the Series "A" bonds. Proceeds from the sale of the Series "A" bonds were used to pay off the balance of plaintiff's promissory note.
22
During the calendar year 1959, interest totaling $403,597 accrued against plaintiff and was deducted in plaintiff's 1959 federal income tax return. Upon audit, the Commissioner of Internal Revenue disallowed $111,494.49 of the interest so accrued and deducted on the ground that this portion of the interest related to the tax-exempt Series "B" bonds and was nondeductible under section 265(2) of the Internal Revenue Code of 1954. Plaintiff had claimed a net operating loss for 1959 which was reduced by, among other things, the $111,494.49 disallowance. Consequently, the amount of the net operating loss which would carry back to 1956 was similarly reduced, and the Internal Revenue Service recomputed plaintiff's 1956 federal income tax liability.
23
In March 1963, plaintiff paid into the Treasury of the United States an assessed deficiency in income taxes for 1956 of $94,726.90, together with $17,998.11 in deficiency interest. This deficiency resulted from the disallowance of the interest deduction discussed above, and other adjustments not in issue in this case. Plaintiff made a timely claim for refund and now sues for refund of federal income taxes for the year 1956 on the ground that the Commissioner's disallowance of the interest deduction of $111,494.49 for the year 1959 and the resulting reduction of the net operating loss carryback to the year 1956 were improper and unlawful. The claim here is for $57,977.13, plus deficiency interest paid thereon, and statutory interest as provided by law.
24
It is evident from the facts that the original $20,015,635 loan was not "incurred" to purchase the city of Venice bonds. What is less evident, however, is the underlying reason for the continuing existence in 1959 of a debt ranging in magnitude from $10,500,000 to $9,000,000 during a portion of the period that plaintiff owned the tax-exempt city of Venice bonds, for defendant claimed that the indebtedness was "continued" in order to "carry" the bonds, while plaintiff argued that the bonds were unrelated to the loan and instrumental to the successful long-term financing of its business. Because the proceeds from the sale of the bridge were used in part to reduce the loan by more than the cost basis of the bridge, plaintiff argues, the remaining debt must be identified with the other assets and expenses which were acquired or incurred during the purchase and early operation of the business and the additional consideration in the form of municipal bonds represents appreciation in the value of the bridge, and, hence, is unrelated to the debt.
25
But, plaintiff is in error, for by assuming that funds from the loan in question must be traceable to the cost of the bonds, it fails to distinguish between "incurred * * * to purchase" and "continued * * * to carry." That assumption eviscerates the meaning of the terms "continued" and "carry," which expand the application of section 265(2) beyond the possibly narrow limits of "incurred" and "purchase." In Constance M. Bishop, 41 T.C. 154, 160-161 (1963), affd. 342 F.2d 757 (6th Cir. 1965) where, although the purchase of the tax-exempt securities was traceable to the debt, the Tax Court analyzed the significance of the term "continued":
26
* * * She continued the loan instead of repaying it with the proceeds of the sale of the non-tax-exempt securities, so that she would have the funds to purchase and hold tax-exempt securities. This, we consider to be continuing the loan to purchase and carry the tax-exempt securities.
27
The facts in the case at bar can be distinguished from those in Bishop, supra, but the reasoning by Judge Scott, which was not limited to an identification or tracing of the debt to the purchase of tax-exempt securities, extends logically to this case, supporting the careful distinction between "incurred" and "continued" which plaintiff seeks to ignore. The real issue here is whether the remaining loan, regardless of its size of correlation with the cost basis of other assets, was continued for the purpose of enabling plaintiff to own the Series "B" bonds of the city of Venice. Of course, the resolution of this issue requires a connection-type inquiry, which will be somewhat different from the inquiry into situations where the issue is whether indebtedness was incurred to purchase tax-exempt bonds. It is necessary to establish a sufficiently direct relationship of the continuance of the debt for the purpose of carrying the tax-exempt bonds.
28
If the loan was needed to sustain plaintiff's business operation rather than its ownership of tax-exempt securities, the prohibitory features of section 265(2) will not apply. R. B. George Machinery Co., 26 B.T.A. 594 (1932); Sioux Falls Metal Culvert Co., 26 B.T.A. 1324 (1932). In this vein, counsel for plaintiff has argued that the loan was needed to supply the operating capital for the nascent enterprise, which needed such support until long-term financing could be arranged. There is little doubt that capital had to be found. The loan was one source of funds, and the municipal bonds were another. Although it received one offer to purchase at least $1,800,000 par value of the bonds for cash and the remaining $6,000,000 par value for cash or substituted securities, plus several earlier inquiries which contained tentative, minimum-price suggestions, plaintiff refused to accept the offer or enter into negotiations with the other inquirers. Plaintiff could have sold some or all of the remaining bonds if it had wished to do so. It was within plaintiff's power to liquidate some or all of its bondholdings and use the proceeds to reduce the outstanding debt without withdrawing any capital which was committed to, or held in reserve for, the corporation's activities. Thus, a loan was not the only source of funds and was not required by the dictates of successful corporate finance, but rather it was chosen by plaintiff as a more desirable source of funds than the municipal bonds. Plaintiff's argument fails for lack of purity of purpose in maintaining the loan, because it was continued out of a concern for preserving the bondholdings, which could be accomplished only if the debt financed the plaintiff's operations.
29
Plaintiff has cited R. B. George Machinery Co. and Sioux Falls Metal Culvert Co., supra, as authorities in support of its contention that interest on debts incurred for the purpose of carrying on the business functions of the taxpayer does not come within the aegis of section 265(2). These cases are distinguishable, however, because there the state securities could not be liquidated and, hence, the taxpayers had no alternative for supplying their cash needs but to borrow money. That is not the case at bar, where plaintiff could have liquidated its bondholdings. What plaintiff seeks to do is to receive tax-free income and at the same time deduct the interest expense attributable to obtaining that tax-free income. This is the double benefit prohibited by section 265(2). A business cannot escape taxation of income by the device of purchasing or carrying tax-exempt securities with borrowed money not required to carry on its regular functions. Bishop, supra; Denman v. Slayton, 282 U.S. 514, 519-520, 51 S.Ct. 269, 75 L.Ed. 500 (1931).
30
Plaintiff cannot take refuge behind Rev.Rul. 55-389, 1955-1 CUM.BULL. 276, where a deduction was recognized for interest on outstanding debentures despite the taxpayer's investment of the funds in tax-exempt securities. The ruling emphasized the delays in constructing plant facilities and recognized that the debentures were issued in order to refinance other indebtedness, furnish working capital, and finance contemplated plant expansion, and that the investment in tax-exempt securities was but temporary and pending the delivery of supplies and materials. In the instant case, the Series "B" bonds of the city of Venice have a 40-year life span and plaintiff has not given the slightest indication that it intended to sell any more before they are recalled. This distinguishes the revenue ruling, with its accent on the transitory, from the present case and plaintiff's apparently deep-rooted desire to hold onto the bonds.
31
Nor can plaintiff find succor in the absence of tax-exempt interest payments on the bonds in 1959;1 what matters is the fact that the securities are tax-exempt and not whether the taxpayer actually paid any taxes on the income from those securities. Clyde C. Pierce Corp. v. Commissioner of Internal Revenue, 120 F.2d 206, 208 (5th Cir. 1941).
32
On the other hand, plaintiff has argued that the bonds were pivotal to obtaining an A-quality rating from Standard & Poor's for the proposed Series "A" bond issue, thereby lowering the interest cost and possibly increasing the marketability of the Series "A" bonds. These facts have been established. Plaintiff argues from them that section 265(2) will not apply because the continuing existence of the bonds, vis-a-vis their liquidation, was vital if they were to be pledged as security. In order to finance these tax-exempt bonds, which were unquestionably valuable as security for the Series "A" bond issue, plaintiff reasons that continuation of the debt was the only logical course of action. This argument is wide of the mark, however, because the fact that the bonds were instrumental in getting the higher Standard & Poor's rating is not determinative; the issue is whether the indebtedness was continued in order to carry the bonds and the beneficial use of those bonds (absent a showing of essentiality) says little about this central issue. The bonds, like any recognizable asset, were put to use as security (on the Series "A" bond issue). Any bondholdings, or any asset, including cash, could be put to similar use, and the efficient use of an available asset cannot, of itself, help a taxpayer to avoid the stricture of section 265(2). Also, the character of the longterm financing sprang from the size of the extant debt. Plaintiff's argument here is premised on the existence of the debt, but it is the very enormity of the debt which is being questioned, and to say that a large part of the debt was needed because it enabled an asset to be security for the refinancing of that debt is circular, to say the least.
33
In addition, plaintiff argues that the bonds were valuable because they permitted plaintiff to control any alteration in their terms which might be initiated by the City Council of Venice, and because access to the bridge was important inasmuch as it was a key facility for transriver shipments. This argument is susceptible to the same criticism as pertained earlier to the use of the Series "B" bonds as security for the Series "A" bond issue. What is important here is whether the indebtedness was continued in order to hold the bonds, not the uses to which the bonds might be put. Moreover, the language of the bond ordinance appears to protect plaintiff fully against any adverse modification of the ordinance. In any event, plaintiff has a renewable 50-year lease of the rail facilities on the bridge. There is no indication that plaintiff needs the bonds in order to use the bridge or to protect its interest in the bridge.
34
In oral argument before the court, plaintiff expressed the fear that a decision for defendant in this case would jeopardize the deductibility of interest payments on homeowner mortgage indebtedness for taxpayers whose portfolios include tax-exempt bonds. This is a legitimate concern. Congress has rejected a test which would in all cases deny deductibility of interest to the extent of a taxpayer's tax-exempt holdings. See Comm.R. and Cong.Discussion, pp. 728, 729, Seidmen, Legis.Hist. of Fed. Inc.Tax Laws (1938-1961). A relationship must be shown, and, in the relatively few cases which could not be settled administratively, it has been the task of the courts to define the relationship and apply it to the facts. This is an area of tax law in which it is more difficult to define the legal standard than it is to pass on a particular fact setting. Here, the total impression given by the evidence leads to the conclusion that the taxpayer had the forbidden purpose. In another case, the impression will be different. The impression here, however, is not devoid of standards. There is an obvious relationship between the debt and the tax-exempt bonds and it is apparent that continuation of the indebtedness was not necessary other than for the purpose of continuing to hold the bonds. There were undoubtedly good business reasons for holding the bonds apart from the favorable tax aspects, but the latter dominated. This conclusion need not jeopardize the taxpayer whose dominant reasons for continuing indebtedness are unrelated to carrying tax-exempt bonds.
35
Plaintiff's claim for refund must be denied, and its petition is, accordingly, dismissed.
Notes:
*
The opinion, findings of fact and recommended conclusion of law are submitted under the order of reference and Rule 57(a)
1
The bonds expressly provided that no interest would be paid in the first two years
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164 F.3d 527
79 Fair Empl.Prac.Cas. (BNA) 624,74 Empl. Prac. Dec. P 45,700, 131 Ed. Law Rep. 679,1999 CJ C.A.R. 231
Susan SANCHEZ, Plaintiff-Appellant,v.DENVER PUBLIC SCHOOLS, Defendant-Appellee,andDenver Classroom Teacher's Association, Defendant.
No. 97-1120.
United States Court of Appeals,Tenth Circuit.
Dec. 31, 1998.
Elizabeth Lamb Kearney, Law Offices of Elizabeth Lamb Kearney, Denver, Colorado, for Plaintiff-Appellant.
Martin Semple (Patrick B. Mooney and John A. McNamara, with him on the brief), of Semple & Mooney, P.C., Denver, Colorado, for Defendant-Appellee.
Before SEYMOUR, Chief Judge, BALDOCK and BRISCOE, Circuit Judges.
SEYMOUR, Chief Judge.
1
Susan Sanchez brought this action under Title VII, 42 U.S.C. §§ 2000 et. seq., and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., against her former employer, Denver Public Schools (DPS). The District Court granted DPS's motion for summary judgment on all claims. At issue in this appeal are Ms. Sanchez's allegations that 1) DPS transferred her to a teaching position at Beach Court elementary school in violation of Title VII and ADEA; 2) DPS retaliated against her because she filed a discrimination complaint; 3) DPS failed to place her in a Chapter I van teacher position because of her sex and age, and in retaliation for filing a discrimination complaint; 4) DPS constructively discharged her; and 5) the district court erred in denying her motion under Fed.R.Civ.P. 60(b).1 We affirm for the reasons set forth below.2I.
2
Ms. Sanchez began her employment with DPS in 1979. Prior thereto, she had been a nun, a teacher in Catholic schools for twenty-four years, and a principal for five. In August 1979, she became a teacher at Johnson Elementary, a position she held until the summer of 1993.
3
In the spring of 1993, the administration at Johnson realized that the fourth grade enrollment would be decreasing the following school year and that they would not be able to retain all three of the fourth grade teachers teaching there. Because none of the teachers volunteered to transfer, the Personnel Subcommittee, consisting of three teachers and the principal, interviewed them to decide who would be transferred. After interviewing all three candidates, the Personnel Subcommittee decided to transfer Ms. Sanchez and retain two younger, male teachers. Upset by this decision, Ms. Sanchez filed a complaint with the teacher's union, and then with the EEOC.
4
DPS reassigned Ms. Sanchez to a second grade teacher position at Beach Court Elementary. Ms. Sanchez's displeasure with the transfer only worsened after interacting with Beach Court's principal, Lucia Aandhal. Relations between the two started off poorly and did not improve throughout Ms. Sanchez's tenure at Beach Court. According to Ms. Sanchez, at the beginning of the first faculty meeting Ms. Aandhal introduced all the new teachers except her, and said something like, "it is so nice to have some beginning bright, young teachers in the building." Aplt.App. at 90-91. At the end of the meeting, and after prompting, Ms. Aandhal introduced Ms. Sanchez and mentioned that she was transferred from Johnson, a fact Ms. Sanchez found embarrassing.
5
Ms. Aandhal allegedly made several other ageist comments during the school year. In addition, Ms. Aandhal required Ms. Sanchez to bring in a doctor's note whenever she took sick leave, even though other teachers were not required to do so. Later in the year, Ms. Aandhal threatened to put Ms. Sanchez on a plan for improvement.
6
In April 1994, Ms. Aandhal called Ms. Sanchez into her office to determine whether she would be returning to Beach Court the next year. Although evasive at first, Ms. Sanchez eventually told Ms. Aandhal she was not planning to return. Despite Ms. Aandhal's repeated requests, Ms. Sanchez never put her intentions in writing.
7
During the spring of 1994, Ms. Sanchez's health deteriorated due to stress and her doctor recommended that she take a leave of absence from Beach Court. Ms. Sanchez had the administrative choice of either using her sick leave, of which she had accumulated a great deal, or taking a formal leave of absence. She chose the former.
8
In May 1994, DPS engaged in its annual county-wide process of reassigning teachers within the district. At that time Ms. Sanchez did not ask to be reassigned. She stated she was under the impression that she would be transferred automatically because she thought she had a one-year assignment at Beach Court. Later that summer she requested a transfer, but DPS said it would be unable to grant her one because the reassignment process had already occurred. DPS further told her she would be expected to fulfill her assignment at Beach Court.
9
According to Ms. Sanchez, in mid-August Estelle Urioste contacted her about a new opening as a Chapter I van teacher, a position in which a DPS teacher would drive to parochial schools to assist students with special needs. They met that day and Ms. Urioste asked Ms. Sanchez about her background, showed her one of the vans used in the program, and requested a copy of her driving record. Ms. Sanchez obtained a copy of her driving record for Ms. Urioste. Later that day, Ms. Urioste called her and told her the position would not be available until December. About a month later, Ms. Sanchez found out from a friend who was a Chapter I van teacher that DPS had filled the position with a young man, Andy Lurie. Mr. Lurie was a non-tenured, probationary teacher who had not received his Master's degree at that time.
10
Unable to find a position she considered suitable, Ms. Sanchez continued to take sick leave throughout the fall of 1994. During that time, DPS offered her a position as an English As a Second Language (EASL) teacher, but Ms. Sanchez declined because she had previously applied for a similar job and had been told she was not qualified for it.
11
As Ms. Sanchez's sick leave began to run out, she decided to opt for early retirement. She applied for early retirement in mid-December, effective January 25, 1995. The agreement could not be rescinded less than 30 days before it was to take effect. On December 30, DPS stated that it would have two openings, and that Mrs. Sanchez would have been able to take either one, except her early retirement rendered her ineligible.3
II.
12
We review a grant of summary judgment de novo, "examin[ing] the factual record and reasonable inferences therefrom in the light most favorable to the party opposing summary judgment." Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996) (citations omitted). A grant of summary judgment is appropriate if there is no genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248, 106 S.Ct. 2505.
A. Sex and Age Discrimination Claims
13
The plaintiff in both ADEA and Title VII cases bears the initial burden of setting forth a prima facie case of discrimination. The elements of each closely parallel the other. In either case the plaintiff must show: 1) she is a member of the class protected by the statute; 2) she suffered an adverse employment action; 3) she was qualified for the position at issue; and 4) she was treated less favorably than others not in the protected class. See Thomas v. Denny's Inc., 111 F.3d 1506, 1510 (10th Cir.1997) (race); Corneveaux v. Cuna Mut. Ins. Group, 76 F.3d 1498, 1502 (10th Cir.1996) (age); Jones v. Unisys Corp., 54 F.3d 624, 630 (10th. Cir.1995) (age); Cole v. Ruidoso Municipal Sch., 43 F.3d 1373, 1380 (10th Cir.1994) (sex). Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to articulate a legitimate nondiscriminatory reason for the action. If the defendant does so, the plaintiff must show the defendant's proffered reasons are pretextual. See Jones, 54 F.3d at 630.
14
In the instant case, Ms. Sanchez alleges two counts of sex and age discrimination: one based on the transfer to Beach Court and the other on DPS's failure to place her in the Chapter I van teacher position. We consider each in turn.
1. The Beach Court Transfer
15
Ms. Sanchez argues the district court erred in holding that she did not establish a prima facie case of discrimination regarding her transfer to Beach Court.4 In particular, she disputes the district court's finding that she suffered no adverse employment action.
16
The Tenth Circuit liberally defines the phrase "adverse employment action." See Gunnell v. Utah Valley State College, 152 F.3d 1253, 1264 (10th Cir.1998); Jeffries v. Kansas, 147 F.3d 1220, 1232 (10th Cir.1998). Such actions are not simply limited to monetary losses in the form of wages or benefits. See Berry v. Stevinson Chevrolet, 74 F.3d 980, 986-87 (10th Cir.1996). Instead, we take "a case-by-case approach," examining the unique factors relevant to the situation at hand. Jeffries, 147 F.3d at 1232. Nevertheless, we will not consider "a mere inconvenience or an alteration of job responsibilities" to be an adverse employment action. Crady v. Liberty Nat'l Bank & Trust Co., 993 F.2d 132, 136 (7th Cir.1993); see also Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, ----, 118 S.Ct. 2257, 2268, 141 L.Ed.2d 633 (1998) (conduct is adverse employment action if it "constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits"); Spring v. Sheboygan Area Sch. Dist., 865 F.2d 883, 886 (7th Cir.1989) (principal's change in assignment was not an adverse employment action despite her increased commute and belief that the public perceived the transfer "as a 'nudge towards retirement' ").
17
We agree with the district court that Ms. Sanchez's transfer was not an adverse employment action. Ms. Sanchez points only to the fact that her commute increased from between five and seven minutes to between thirty and forty minutes, and that the other two teachers at Johnson did not volunteer to transfer schools. Ms. Sanchez admits that her salary and benefits remained the same, that she continued to teach at the elementary school level, and that the decreasing student population at Johnson prompted the transfer. Although she claims the Beach Court assignment was only for a year, she knew that after that year she would remain a DPS teacher, and she expected DPS to reassign her. We do not find any special circumstances unique to this case that show this employment action was anything beyond a mere inconvenience or alteration of job responsibilities. Because Ms. Sanchez experienced a purely lateral transfer, we agree with the district court that despite her personal discomfort she failed to establish a prima facie case of discrimination.
2. The Van Teacher Position
18
Ms. Sanchez alleges that by failing to place her as a Chapter I van teacher, DPS discriminated in violation of ADEA and Title VII and unlawfully retaliated against her. The district court addressed only the retaliation claim and did not directly discuss the Title VII or ADEA discrimination claims arising out of DPS's failure. We need not remand, however, because this claim can be resolved on the basis of undisputed facts and for substantially the same reasons applicable to Ms. Sanchez's Beach Court discrimination claim.
19
As set out above, in order to establish a prima facie case of discrimination under either Title VII or ADEA, Ms. Sanchez must establish that the challenged conduct constituted an adverse employment action. The record is undisputed that at the time Ms. Sanchez applied for the position as a Chapter I van teacher, she was employed with DPS.5 It is also undisputed that the van position would have paid the same salary and benefits she was already receiving, and would have involved substantially similar duties. Thus, the position would have been a purely lateral transfer for Ms. Sanchez involving at most an insignificant alteration in job responsibilities. While Ms. Sanchez obviously viewed the change as a positive one, under the law cited above, and in the unique circumstances of this case, her failure to receive the position was not an adverse employment action for the same reasons her transfer to Beach Court was not.6B. Retaliation Claims
20
A plaintiff claiming unlawful retaliation for asserting a Title VII or ADEA claim also bears the initial burden of establishing a prima facie case. To do so she must show: 1) she was engaged in opposition to Title VII or ADEA discrimination; 2) she was subjected to adverse employment action; and 3) a causal connection existed between the protected activity and the adverse employment action. See Gunnell, 152 F.3d at 1262-63; Jeffries, 147 F.3d at 1231; Anderson v. Phillips Petroleum Co., 861 F.2d 631, 634 (10th Cir.1988). A meritorious retaliation claim will stand even if the underlying discrimination claim fails. See Jeffries, 147 F.3d at 1231.
21
Ms. Sanchez contends DPS unlawfully retaliated against her on two occasions for filing a discrimination claim. She alleges first that Ms. Aandhal retaliated against her by subjecting her to a hostile environment, and second that DPS retaliated against her by failing to place her in the Chapter I van teacher position. Again, we consider these claims in turn.
1. Retaliation at Beach Court
22
The district court granted summary judgment on Ms. Sanchez's Beach Court retaliation claim, holding that she did not suffer an adverse employment action because she clearly had a job offer for the following year. We affirm the district court's ruling, albeit under a slightly different analysis.
23
Ms. Sanchez points to several encounters with Ms. Aandhal to support her contention that she was subjected to retaliatory adverse employment action at Beach Court. Ms. Aandhal allegedly made several ageist remarks over the course of the school year, including calling an older substitute teacher "an old fossil" and welcoming "bright young teachers" at the first staff meeting. In addition, Ms. Sanchez believed she was the only teacher required to bring a doctor's note when she was sick. Ms. Aandhal also threatened to write her up for insubordination when Ms. Sanchez walked out of her office in the middle of a meeting to tend to her class. Finally, Ms. Sanchez asserts that Ms. Aandhal threatened to put her on a plan for improvement if she returned to Beach Court.
24
This conduct simply does not rise to the level of a materially adverse employment action sufficient to satisfy the second prong of the prima facie case. Courts considering the issue have held that " 'unsubstantiated oral reprimands' and 'unnecessary derogatory comments' " such as those alleged here are not included within the definition of adverse action absent evidence that they had some impact on the employee's employment status. See, e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286,1301 (3d Cir.1997); see also Sweeney v. West, 149 F.3d 550, 556-57 (7th Cir.1998).
25
Retaliatory conduct other than discharge or refusal to rehire is thus proscribed by Title VII only if it alters the employee's "compensation, terms, conditions, or privileges of employment," or "adversely affect[s] his [or her] status as an employee." It follows that "not everything that makes an employee unhappy" qualifies as retaliation, for "[o]therwise, minor and even trivial employment actions that 'an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.' "
26
Robinson, 120 F.3d at 1300 (alteration in original) (quoting Smart v. Ball State Univ., 89 F.3d 437, 441 (7th Cir.1996)). Although we appreciate Ms. Sanchez's distress over Ms. Aandhal's alleged disagreeable conduct, that conduct did not significantly affect her employment status and therefore did not constitute adverse employment action remediable under Title VII.
27
2. Retaliation by Failure of Placement in Van Teacher Position
28
Ms. Sanchez also asserts that Ms. Urioste unlawfully retaliated against her by failing to place her in the Chapter I van teacher position. The district court denied this motion because it found no evidence of a causal connection between Ms. Sanchez's protected activity and the conduct she asserts was retaliatory.
29
We have already determined that Ms. Sanchez's failure to obtain the position was not adverse action with respect to her discrimination claim. That holding is equally applicable here and is sufficient to defeat her retaliation claim as well. In addition, as the district court noted, Ms. Sanchez did not establish a causal connection between the filing of her discrimination claim and her nonplacement in the van teacher position. Ms. Sanchez claims that Anna Marie Sandoval, an activist involved in DPS and a friend of Ms. Urioste, called her to ask what her age was after Ms. Sanchez did not get the van teacher position. Ms. Sandoval showed no sign of knowing about Ms. Sanchez's discrimination claims, or of having discussed them with Ms. Urioste. Ms. Urioste testified in her deposition that she had no knowledge of Ms. Sanchez's discrimination claim. Moreover, according to Ms. Sanchez, Ms. Sandoval's phone call took place after the decision was already made. Even when all reasonable inferences are drawn in favor of Ms. Sanchez, she has failed to establish a prima facie case of retaliation. We thus affirm the dismissal of this retaliation claim.
C. Constructive Discharge
30
Ms. Sanchez also contends the district court erred by granting summary judgment on her claim that DPS constructively discharged her by forcing her to accept early retirement rather than finding her a suitable transfer. We agree with the district court that DPS's actions do not amount to a constructive discharge.
31
Constructive discharge occurs when "the employer by its illegal discriminatory acts has made working conditions so difficult that a reasonable person in the employee's position would feel compelled to resign." Derr v. Gulf Oil Corp., 796 F.2d 340, 344 (10th Cir.1986). "Essentially, a plaintiff must show that she had 'no other choice but to quit.' " Yearous v. Niobrara County Mem'l Hosp., 128 F.3d 1351, 1356 (10th Cir.1997) (quoting Woodward v. City of Worland, 977 F.2d 1392, 1401 (10th Cir.1992)). The conditions of employment must be objectively intolerable; the "plaintiff's subjective views of the situation are irrelevant." Id.
32
According to Ms. Sanchez, the hostile work environment at Beach Court, in conjunction with DPS's insistence that she return to her placement there and its failure to find her a suitable alternative transfer, resulted in her constructive discharge. As we discussed above, however, the work environment at Beach Court, while unpleasant, was not adverse employment action. Furthermore, it is undisputed that Ms. Sanchez did not apply for a transfer in May when that process occurs for DPS. Later, DPS told her there might be some openings in January, at the semester break. Instead of taking her position at Beach Court temporarily and waiting to see if a more suitable position would open up, she chose to take early retirement. While we have no doubt that Ms. Sanchez found her working conditions extremely difficult, and that the stress exacerbated her health problems, we cannot conclude that objectively DPS's actions left Ms. Sanchez with no choice but to resign. We therefore affirm the district court's dismissal of the constructive discharge claim.
III.
33
In sum, we AFFIRM the district court's grant of summary judgment in favor of defendants in all respects.
1
Ms. Sanchez also alleged that the Denver Classroom Teacher's Association was liable for breach of contract and breach of duty of fair representation. She does not appeal the district court's grant of judgment against her on these claims
2
The exercise of appellate jurisdiction is appropriate here even though Ms. Sanchez filed her notice of appeal prematurely. This court first issued an order requiring Ms. Sanchez to obtain certification under Fed.R.Civ.P. 54(b) or a final judgment, and later issued a show cause order as to why the appeal should not be dismissed. We then issued a notice on August 11, 1997, that failure to respond within ten days could result in dismissal. The next day the district court entered a final judgment dismissing the case in its entirety. On August 19, 1997, Ms. Sanchez submitted a copy of the final judgment to this court, thereby ripening her premature appeal. See Lewis v. B.F. Goodrich 850 F.2d 641, 644 (10th Cir.1988) (en banc). We held in Lewis that "when a district court has adjudicated all remaining outstanding claims before this appellate court acts to dismiss the appeal, we will consider the appeal on its merits rather than dismiss for lack of jurisdiction." Id. In the instant case, we had not yet acted to dismiss the appeal. Appellee's arguments notwithstanding, we see no reason to depart from Lewis
3
In setting out the facts, we do not consider the affidavits Ms. Sanchez submitted with the Fed.R.Civ.P. 60(b) motion she filed after summary judgment was entered against her. That rule allows for relief from judgment for "(1) mistake, inadvertence, surprise, or excusable neglect; [or] (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)...." Nowhere does Ms. Sanchez allege she could not obtain the affidavits prior to the summary judgment hearing; to the contrary, she admits she had the evidence prior to the hearing but felt it "would be cumulative and would not materially assist the Court in its determination." Aplt.App. at 308. The district court declined to consider these affidavits, and did not abuse its discretion in doing so. We decline as well to consider the additional evidence on appeal
4
We note that DPS does not base its administrative transfer decisions solely on seniority; instead, it relies on interviews with the Personnel Subcommittee which is composed of teachers and a principal. Such a system comports with the requirements of the ADEA. See Jones v. Unisys Corp., 54 F.3d 624, 630 n. 6 (10th Cir.1995)
5
This case does not involve an employer's refusal to reassign an employee to a vacant lateral position in the wake of a reduction in force, which refusal to transfer could constitute an adverse action. See Anderson v. Phillips Petroleum Co., 861 F.2d 631, 635 (10th Cir.1988)
6
If a transfer is truly lateral and involves no significant changes in an employee's conditions of employment, the fact that the employee views the transfer either positively or negatively does not of itself render the denial or receipt of the transfer adverse employment action. See, e.g., Doe v. Dekalb County Sch. Dist., 145 F.3d 1441, 1449-50 (11th Cir.1998) (collecting cases)
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COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-131-CR
PATRICK KENDALL HAYES APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM COUNTY CRIMINAL COURT NO. 1 OF
DENTON COUNTY
----------
MEMORANDUM OPINION
(footnote: 1) AND JUDGMENT
----------
We have considered appellant’s “Motion To Dismiss Appeal.” The motion complies with rule 42.2(a) of the rules of appellate procedure.
Tex. R. App. P.
42.2(a). No decision of this court having been delivered before we received this motion, we grant the motion and dismiss the appeal.
See
Tex. R. App. P.
42.2(a), 43.2(f). PER CURIAM
PANEL:
GARDNER
, WALKER
, and
MCCOY
, JJ.
DO NOT PUBLISH
Tex. R. App. P.
47.2(b)
DELIVERED: November 5, 2009
FOOTNOTES
1:See
Tex. R. App. P.
47.4.
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384 F.Supp.2d 1241 (2005)
Wayne T. SMITH, Counter-Plaintiff,
v.
BIOMET, INC., Counter-Defendant.
No. 3:01-CV-753 PS.
United States District Court, N.D. Indiana, South Bend Division.
March 24, 2005.
*1242 *1243 *1244 Barbara Kramer PHV, Mitchell A. Kramer PHV, Kramer & Kramer LLP, Rydal, PA, Edward W. Harris III, Sommer Barnard Ackerson PC, Indianapolis, IN, for Counter-Plaintiff.
Daniel P. Hann, Warsaw, IN, Elizabeth M. Keiley, H. Roderic Heard, Wildman Harrold Allen & Dixon LLP, Chicago, IL, for Counter-Defendant.
OPINION AND ORDER
SIMON, J.
Plaintiff Wayne Smith was terminated from his position as the exclusive distributor of products for defendant Biomet, Inc. in Southwest Texas. He sued claiming principally that Biomet tortiously interfered with his prospective business relationships and then defamed him to boot. The matter proceeded to a jury trial with Smith obtaining a substantial verdict in his favor on all claims. This matter is before the Court on Biomet's renewed motion for judgment as a matter of law pursuant to Rule 50 or, in the alternative, for a new trial pursuant to Rule 59 [Doc. 167]. After a careful review of the record and the applicable legal standards, the Court now grants Biomet's motion for judgment as a matter of law on the tortious interference claim but denies it on all other claims.
BACKGROUND
This case arises out of a long-term business relationship between Wayne Smith and Biomet. Biomet is in the business of manufacturing orthopedic implants such as artificial knees and hips, and is headquartered in Warsaw, Indiana. The evidence at trial established that the orthopedic implant business is largely driven by the relationships that are developed between local distributors like Smith and orthopedic surgeons in the territory. Local distributors are responsible for calling on orthopedic *1245 surgeons and convincing them to use Biomet implants on their patients. Most surgeons get comfortable using a particular manufacturer's implant and that preference develops into a brand loyalty.
Although there is substantial brand loyalty, the business is nonetheless highly competitive, and a distributor must continually service the orthopedic surgeons. Thus, for example, part of a distributor's job, in addition to wooing surgeons to use Biomet products in the first place, is to service the account by being present during surgeries to ensure that the surgeons have the proper types of instruments to actually do the surgery. The instruments are sold to Biomet distributors and are a cost of doing business for the distributors, and it is the distributor's responsibility to ensure that the appropriate instruments are on hand for scheduled surgeries. The instruments are not fungible. Each particular device has a special set of instruments that must be used during the implanting surgery.
Smith's Termination as a Distributor
From October 1994, until July 2001, Smith was Biomet's exclusive distributor of orthopedic products in Southwest Texas. The letter agreement laying out the terms of the relationship between Smith and Biomet provided that Smith was an independent contractor and not an employee of Biomet. (Pl.Ex. 1.) The agreement also provided that either party could terminate the relationship, with or without cause, by giving the other thirty days written notice. (Id.)
Smith employed three sales reps who worked for him Eli Garcia, Dan Cavazos and Anna Rose Arsenian. Each of these sales reps also worked within the office of an orthopedic surgeon and provided personalized service to those surgeons. This was because these surgeons were extremely important to Smith and Biomet due to the large volume of Biomet implants that they used.
Smith was terminated by letter, hand delivered by Biomet's Southwest Area Vice President, Terry Geurink, on July 10, 2001. (See Pl.Ex. 3.) The letter provided for Smith's immediate termination. According to Biomet, Smith was let go because he was not growing the market to Biomet's satisfaction. (Id.) The termination letter provided that Smith was to immediately "cease holding [himself] out as a Biomet distributor." (Id.) That same day, Biomet signed letter agreements with Mike LaGrange and Paul Eichler to become the Biomet distributors for Southwest Texas. LaGrange and Eichler divided up Smith's old territory.
Approximately two hours after delivering the termination letter to Smith, Geurink proceeded to call two of Smith's sales reps Eli Garcia and Dan Cavazos. Geurink informed each of them that Smith had been fired and that new a distributor for each of their respective areas would be contacting them. A few days later, Geurink and Eichler met with the third of Smith's assistants, Anna Rose Arsenian. The meeting took place at the office of Dr. Swan, the surgeon with whom Arsenian was assigned to work with by Smith. Dr. Swan was so upset about Smith's termination, he kicked them out of his office before they could even bring up potential employment opportunities with Arsenian.
On the day of his termination, Wayne Smith faxed a letter to Biomet requesting that an audit of his Biomet inventory be performed that very day because he did not want to lose control over the inventory because he would not be calling on surgeons at hospitals or assisting in any surgeries after that date. (See Pl.Ex. 17.) Biomet chose not to immediately perform the audit.
*1246 On August 24, 2001, Smith received his final commission check from Biomet. The check contained a $13,906.50 deduction for inventory that Biomet claimed it could not locate when it performed the audit. However, one of Biomet's new distributors, Mike LaGrange, testified that surgeries were performed for Smith's former clients on the days immediately following Smith's termination. According to LaGrange, Biomet inventory was present at the hospitals to be used for those surgeries. That was inventory that Smith was likely responsible for, and some of this inventory was used to perform the surgeries.
The Defamation Claim
About a month after Smith's termination, on August 7, 2001, Peter Rockwood a sales representative for Depuy, a Biomet competitor, ran into Smith at a hospital in Corpus Christi, Texas. Smith and Rockwood were business acquaintances. According to Rockwood, Smith told him about his termination from Biomet and the problems he was having in bringing his relationship with Biomet to an end. Smith then said that if he did not get what he wanted from Biomet, he would take a gun to Warsaw and settle it himself. According to Rockwood, Smith was not angry when he made the statement, did not raise his voice and did not appear upset although he was plainly unhappy with Biomet. (Pl.Ex. 46 at 10-11.) Rockwood testified that he did not take the threat seriously; he thought Smith was just blowing off some steam. (Id. at 39.) For his part, Smith adamantly denied ever making any threat to Rockwood about Biomet, whether in a joking manner or otherwise. (Tr. vol. 2, at 128-29.)
Approximately a month later or so, Rockwood spoke with Terry Geurink from Biomet. Geurink resides in San Antonio, Texas. (Pl.Ex. 46 at 37.) Although they were competitors, Rockwood and Geurink were friends. (Id.) According to Rockwood, he and Geurink were talking on the phone about a variety of subjects, and at the end of their conversation, Rockwood mentioned in an off hand way that he had run into Wayne Smith in Corpus Christi. This was a reference to the August 7th meeting at the hospital between Smith and Rockwood. Rockwood then relayed to Geurink what Smith had said to him that if his lawyers could not get things resolved with Biomet, he was going to take his gun and go to Warsaw and settle it himself. (Tr. vol. 4, at 66.). Importantly, at no time did Rockwood allege that Smith said that he was planning to go to the Biomet shareholders' meeting.
Geurink was concerned about what Rockwood had told him and so he called Dave Montgomery, Biomet's Vice President of Sales (who worked at Biomet's Warsaw, Indiana headquarters) and told him what Rockwood had said to him about Smith. (Tr. vol. 4, at 66-67.) Montgomery went immediately to Gary England, Biomet's Chief Operating Officer and told him what Geurink had called and said. (Id. at 141.) England told Montgomery to go directly to Dan Hann, Biomet's General Counsel, which he did, and relayed to him exactly what Geurink had told him. (Id.) Montgomery did not tell Hann anything about Smith coming to the Biomet shareholders' meeting. (Id. at 141-42.)
Another several weeks later, Biomet received a proxy from Smith concerning voting his Biomet shares to himself as Director. Biomet also received a note that indicated that Smith was planning to attend the annual shareholders' meeting on September 29, 2001, in Warsaw, Indiana. The conclusion was drawn by Biomet that Smith's alleged threat concerning settling matters with a gun made some seven weeks earlier was somehow connected to him attending the annual shareholders' meeting. (See Tr. vol. 4, at 178.) There *1247 was absolutely no evidence presented that Smith ever said to Rockwood that he was going to take a gun to the shareholders' meeting. Rather, the threat made by Smith, if one believes Rockwood (remember, Smith denied making any threat), was much less specific. It was Biomet who turned the general threat made by Smith into a much more specific one.
The evidence established that, at some point, Geurink told Mike LaGrange one of Biomet's distributors who replaced Smith about Smith's alleged threat. (Pl.Ex. 42 at 54-55.) LaGrange testified that he passed this information on to Dr. Bassett. (Pl.Ex. 44 at 17-18.) But when it was passed on to Dr. Bassett, the whole tenor of the statement was changed. Suddenly, Biomet, through LaGrange, was claiming that Smith was threatening to come to the Biomet shareholders' meeting with a gun. (Pl.Ex. X at 13-14.) Dr. Bassett was one of the high volume surgeons who used Biomet implants and was one of the doctors who Smith had developed a relationship with. There was also evidence that Dr. Swan, another of Smith's high volume customers, heard about Smith's alleged threat, but Dr. Swan could not identify who he heard the statement from. (Pl.Ex. 48A at 12.)
Bassett's testimony about his conversation with LaGrange was corroborated by Dan Hann, Biomet's General Counsel. Hann spoke with Dr. Bassett who told him that he heard that Smith had threatened to bring a gun to Biomet's annual shareholders' meeting. (Tr. vol. 3, at 175.) As mentioned, Dr. Bassett had heard this from Biomet's distributor, Mike LaGrange. (Ex. 44 at 17-18.)
In sum, Smith (allegedly) made the general threat to Rockwood who made nothing of it. About a month later, Rockwood mentioned the conversation that he had had with Smith to Biomet's Geurink. After the issue bounced around Biomet for awhile, Geurink relayed the threat to Biomet's LaGrange who in turn told it to Dr. Bassett. But the statement as told to Bassett was different. It added the part about Smith specifically saying he was coming to the shareholders' meeting with a gun.
The Filing of the Lawsuit
On September 26, 2001, Biomet instigated this litigation in state court when it filed a petition for protective order seeking to prevent Smith from coming to the shareholders' meeting. Based upon the ex parte request of Biomet, the state court judge issued a restraining order preventing Smith from coming to the shareholders' meeting. On November 7, 2001, Smith filed a counterclaim against Biomet alleging a variety of claims arising out of his termination and Biomet's actions concerning his alleged threat.[1]
Smith's complaint alleged six causes of action: 1) that Biomet breached its contract by terminating him without giving him thirty days notice as required by the parties' original letter agreement; 2) that Biomet breached its contract by refusing to repurchase the instruments that Smith had purchased from Biomet; 3) abuse of process; 4) defamation relating to Biomet's publishing of a statement that Smith had stated that he was going to take a gun to the Biomet annual shareholders' meeting and settle matters with it there; 5) tortious interference with business relations; *1248 and 6) a violation of the Texas Sales Representative Act for failure to pay Smith all commissions due after his termination. The matter was then removed to federal court.
At the close of discovery, Biomet moved for summary judgment on all of Smith's claims. Judge Allen Sharp, the then presiding judge, granted Biomet's motion for summary judgment on the contract claim relating to the thirty days notice and the abuse of process claim. In particular, Judge Sharp found that this breach of the parties' contract was not material because Smith was paid his commissions for his territory for the thirty day period following his termination. See Biomet, Inc. v. Smith, 238 F.Supp.2d 1036, 1050-51 (N.D.Ind.2002). During this thirty day period, Smith was also free to seek a new distributorship from any one of Biomet's competitors. Judge Sharp denied summary judgment on the remaining four claims.
At the close of Smith's case, Biomet moved for judgment as a matter of law as to all of Smith's claims. The Court denied the motion. At the close of all of the evidence and before the case was submitted to the jury, Biomet again moved for judgment as a matter of law as to all of Smith's claims. The Court granted Biomet's motion as to Smith's breach of contract claim for failure to repurchase instruments. (Tr. vol. 5, at 25-40.) On the remaining three claims tortious interference with business relations, defamation, and violation of the Texas Sale Representative Act the Court decided to submit the matter to the jury.
After a week long trial, on April 2, 2004, the jury found for Smith on all three of his claims. The jury awarded Smith the sum of $900,000 on his claim of tortious interference with business relations $400,000 in compensatory damages and $500,000 in punitive damages. On his claim of defamation, the jury awarded Smith the sum of $400,000 $300,000 in compensatory damages and $100,000 in punitive damages. Finally, the jury found that Biomet violated the Texas Sale Representative Act and awarded Smith the sum of $13,906.50. Pursuant to the Texas Sale Representative Act, that amount was trebled by the Court to $41,719.50. (See [Doc. 156].) The total judgment was therefore in favor of Smith in the amount of $1,341,719.50.
Defendant Biomet renewed its motion for judgment as a matter of law following the trial seeking to set aside the jury's verdict, or, alternatively, moving for a new trial. Biomet contends that it is entitled to judgment as a matter of law in its favor and against Smith on all of Smith's claims.
LEGAL STANDARD
When ruling on a motion for judgment as a matter of law following a jury verdict, the court does not re-weigh the evidence presented at trial or make credibility determinations. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Instead, considering the totality of the evidence, the court determines whether the jury was presented with a "legally sufficient amount of evidence from which it could reasonably derive its verdict." Massey v. Blue Cross-Blue Shield of Ill., 226 F.3d 922, 924 (7th Cir.2000). In other words, in this matter the Court must determine whether any rational jury could have found for the Plaintiff in light of the record. Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 707 (7th Cir.2004). The evidentiary record is construed in the prevailing party's favor, drawing all reasonable inferences in that party's favor and resisting any temptation to weigh the evidence or have the court make its own credibility determinations. See Appelbaum v. Milwaukee Metro. Sewerage Dist., *1249 340 F.3d 573, 579 (7th Cir.2003). Simply put, overturning a jury verdict is not something the courts may do lightly. See Massey, 226 F.3d at 925. The Court now turns to whether judgment as a matter of law is appropriate on Smith's tortious interference with business relations claim, defamation claim, and violation of the Texas Sales Representative Act.
I. Tortious Interference with Business Relations
Under Indiana law, the elements of a claim for tortious interference with a business relationship are: (1) the existence of a valid relationship; (2) the defendant's knowledge of the existence of the relationship; (3) the defendant's intentional interference with that relationship; (4) the absence of justification; and (5) damages resulting from defendant's wrongful interference with the relationship. See Levee v. Beeching, 729 N.E.2d 215, 222-23 (Ind.Ct.App.2000). The plaintiff must also prove that the defendant acted illegally in achieving its end. See Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 796 N.E.2d 286, 291 (Ind.2003) (tortious interference requires some independent illegal action); AutoXchange.com, Inc. v. Dreyer & Reinbold, Inc., 816 N.E.2d 40, 51-52 (Ind.Ct.App.2004); Harvest Life Ins. Co. v. Getche, 701 N.E.2d 871, 876-77 (Ind.Ct.App.1998); Watson Rural Water Co., Inc. v. Ind. Cities Water Corp., 540 N.E.2d 131, 139 (Ind.Ct.App.1989).
Biomet's motion for judgment as a matter of law must be granted for two reasons. First, Smith presented no evidence that there was an absence of justification for Biomet's actions, and thus there was no evidence on the fourth element of the claim. Second, Smith failed to establish that Biomet acted illegally in achieving its end.
A. Smith Failed to Prove that Biomet's Actions Were Not Justified
In a tortious interference with business relations claim, Indiana law requires that the plaintiff prove that the defendant acted without justification. See e.g., Harvest Life Ins. Co., 701 N.E.2d at 876. In other words, the plaintiff must show that the defendant acted exclusively to harm the plaintiff's business interest. Morgan Asset Holding Corp. v. CoBank, ACB, 736 N.E.2d 1268, 1272 (Ind.Ct.App.2000) (affirming dismissal of tortious interference claim where plaintiff failed to allege that defendant acted exclusively to harm plaintiff's business interests). Thus, if a legitimate reason exists for the defendant's actions, the necessary justification exists to avoid liability. Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1236 (Ind.1994).[2]
On the issue of whether there is an absence of justification, Indiana courts look to the Restatement of Torts which states that if a defendant's "purpose is at least in part to advance his interest in competing with the other," then there can be no "absence of justification." Restatement (Second) Torts, § 768(1)(d). In Winkler, for example, the Supreme Court of Indiana held that a defendant who is motivated in part by his own legitimate business interest is not acting in the absence of justification. Id. at 1236; see also Harvest Life Ins. Co., 701 N.E.2d at 877 (pursuing a legitimate business interest is *1250 justified); Europlast, Ltd. v. Oak Switch Sys., Inc., 10 F.3d 1266, 1274 (7th Cir.1993) (a competitor may "woo an at-will employee away from his employer" provided he is not inducing the employee to, for example, reveal confidential information of the employer).
The substance of Smith's tortious interference claim is as follows: Throughout Smith's tenure as a Biomet distributor, Smith had three sales reps that worked for him: Eli Garcia, Dan Cavazos, and Anna Rose Arsenian. Smith alleged that Biomet tortiously interfered with his business relationships with his sales reps when it ostensibly hired Garcia and Cavazos away from him after his termination. (See Tr. vol. 2, 167-68.) Smith also alleged that Biomet tortiously interfered with his customers Dr. Swan and Dr. Bassett following his termination.
Importantly, Smith's contract with Biomet did not contain any language that forbid Biomet from contacting Smith's sales representatives, either before or after Smith's termination. (See Pl.Ex. 1.) It also came to light that Smith never had a signed employment agreement with Dan Cavazos. (Tr. vol. 2, at 163-64.) Moreover, Eli Garcia's contract with Smith was signed in 1993, but was only for a one-year term. (Id. at 164; Pl.Ex. 15.) Smith, however, testified that Garcia understood that the agreement automatically renewed year to year, but there was no language in the contract that indicated as such. Because Smith had no up-to-date signed contracts at the time of his termination, he likely had no choice but to sue Biomet for tortious interference with business relations rather than tortious interference with contract.
Proof of Smith's tortious interference claim rested essentially upon the testimony of one individual, Biomet's Terry Geurink. Geurink testified that on July 10, 2001, approximately an hour and half to two hours after hand delivering Smith his termination letter, he made a phone call to Smith's sales rep, Eli Garcia. (Tr. vol. 4, at 59.) Geurink notified Garcia that Smith "was not the distributor for Biomet anymore, and that the new distributor, Mr. Paul Eichler, would like to talk to [him] about future employment." (Id.) During this same conversation, Geurink asked Garcia if he had a contract with Smith, and Garcia informed him that he did not. (Id.) The only thing else Geurink said to Garcia was that Paul Eichler would be calling him. Geurink did not offer Garcia a job. Garcia did in fact go to work for Eichler selling Biomet products. The jury only had Geurink's version of this conversation to consider because Garcia did not testify.
Geurink also testified that at approximately the same time on July 10, 2001, he called Dan Cavazos and explained to him that Smith was not Biomet's distributor anymore and that there would be a new distributor, Mike LaGrange. Geurink explained to Cavazos that Mike LaGrange would be calling him to see if he would be interested in employment with him. (Id. at 60.) (Like Garcia, Cavazos was not called as a witness). Cavazos has since gone to work for LaGrange. Geurink did not play any part in any conversations or negotiations between Eichler and Garcia or between LaGrange and Cavazos. (Id. at 60-61.)
While working for Smith as a sales rep, Dan Cavazos also worked full-time for Dr. Bassett. Dr. Bassett was a design doctor for Biomet and a loyal customer who only used Biomet's total knee products. However, Smith testified that if he had been able to pick up a trauma line or total hip line from a different manufacturer, there was a good chance that Cavazos would have stayed with him as a sales rep for those specific lines of product because Dr. *1251 Bassett did not use Biomet products in those areas.
After Smith's firing, Geurink and Eichler made an appointment with Arsenian and Dr. Swan, the surgeon with whom she worked. Dr. Swan was very upset about Smith's termination, and before Geurink and Eichler could speak to Arsenian about any potential employment opportunities, they were thrown out of his office. (Id. at 61-62.)[3] Geurink never spoke to Arsenian about a position with Biomet, and Arsenian never went to work with either of the new Biomet distributors.
In short, Smith offered no evidence to establish that Biomet acted with an "absence of justification" when it contacted his sales reps. In fact, all of the evidence was to the contrary. When Geurink contacted Smith's sales representatives to tell them about Smith's termination and to inform them about a potential employment opportunity with Biomet's new distributors, he was acting to preserve Biomet's business in Smith's old territory. The same is true for the contacts with Smith's customer's, the surgeons who used the products. Biomet presented evidence that it was motivated by protecting its legitimate business interests when these contacts were made. Smith presented nothing in response on this score. Because there was no evidence, for example, that Biomet "made misrepresentations, applied unfair economic pressure or threatened litigation" during its discussions with Smith's sales reps or the surgeons, Winkler, 638 N.E.2d at 1235, Smith failed to meet his burden on the fourth element of the claim.
Smith argues that he and Biomet were not competitors so the argument based on the Restatement of Torts as discussed above is not on point. But the evidence is clear that after Biomet terminated Smith, they were in competition with one another for the services of the sales reps Garcia, Cavazos and Arsenian. Biomet contacted these three on behalf of the new distributors. Biomet told them that if they were interested in working with the distributors who were replacing Smith, that a position would be available to them. Vying for the services of these sales reps is a legitimate business justification.
Based on this evidence and viewing the evidence in a light most favorable to Smith, the Court concludes that there was not sufficient evidence indeed, there was no evidence that would enable a reasonable jury to determine that Biomet's actions were taken with an absence of justification. Judgment as a matter of law on the claim of tortious interference with business relations is therefore appropriate.
B. Smith Failed to Prove that Biomet's Conduct Satisfied the Illegality Requirement
Smith also failed to prove that Biomet acted illegally when it contacted his sales representatives and former customers. This is a separate and independent reason why judgment as a matter of law is proper on Smith's tortious interference claim. Smith had to prove that Biomet acted illegally when it interfered with his business relations. Brazauskas, 796 N.E.2d at 291. Unfortunately, "Indiana courts have not defined `illegality' nor have they articulated a test for a showing of `illegal conduct.'" Gaskins v. Vencor, Inc., No. IP99-1122-C-T/G, 2001 WL 300517, at *26 (S.D.Ind. Mar.26, 2001) (citing *1252 Bradley v. Hall, 720 N.E.2d 747, 751 n. 3 (Ind.Ct.App.1999) ("Illegality is not a term of art, and no court has defined the meaning of `illegal' as used in this context.")). This leaves the Court in the position of attempting to determine what type of activity actually satisfies the illegality requirement for the tort of interference with business relations.
The Seventh Circuit has explicitly rejected the suggestion that only a criminal act may be "illegal conduct." See Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633, 641 (7th Cir.1999) ("courts interpreting Indiana law have held that non-criminal illegal acts are sufficient"). In Syndicate Sales, the Court held that dilution of a trademark could be "illegal conduct" sufficient to establish the illegality requirement of a tortious interference with business relations claim. In addition, Syndicate Sales cited favorably to two other cases as examples of non-criminal conduct that would establish the illegality requirement. See id. (citing United States ex. rel. Durcholz v. FKW, Inc., 997 F.Supp. 1143, 1153 (S.D.Ind.1998) (violations of the False Claims Act meets "illegality" requirement for a tortious interference with business relations claim); Moffett v. Gene B. Glick Co., Inc., 604 F.Supp. 229, 239 (N.D.Ind.1984), rev'd on other grounds (invasion of privacy and intentional infliction of emotional distress satisfies "illegal conduct" requirement)).
We also have some guidance from the Indiana Court of Appeals as to whether defamation can be considered "illegal conduct" for purposes of a claim for tortious interference with business relations. In Levee, the Court specifically held that defamation is not "illegal conduct" for claims of tortious interference with business relations. See Levee, 729 N.E.2d at 222-23.
Moreover, the Southern District of Indiana, relying on the reasoning of Winkler, 638 N.E.2d at 1235, found that a breach of contract alone is not sufficient "illegal conduct" for purposes of a tortious interference with business relations claim. See HAS, Inc. v. Bridgton, Inc., No IP 98-0167-C H/G, 1999 WL 1893209, at * 16 (S.D.Ind. Sept.20, 1999). We find that reasoning persuasive because the Indiana Supreme Court has long expressed concern that tort remedies should not displace traditional contract remedies. Zemco Mfg., Inc. v. Navistar Int'l Transp. Corp., 186 F.3d 815, 822 (7th Cir.1999). To hold otherwise would be to "transmute the breach into the tort of tortious interference with business relations." Jeppesen v. Rust, 8 F.3d 1235, 1239 (7th Cir.1993). As the Jeppesen court has stated, allowing a breach of contract to be characterized as a tortious interference with business relations would make the tort a sort of "wild card" that would lead to the award of punitive damages for simple breaches of contract. These cases provide at least some guidance for determining whether there was evidence to support the jury finding that Biomet acted illegally.
Biomet argues that Smith failed to prove his tortious interference claim because the only wrongful conduct which Smith identified at trial was Biomet's purported breach of contract. We agree. Indeed, during argument on Biomet's Rule 50 motion at trial, Smith admitted:
With respect to the tortious interference claim, the breach of contract and the fact that he was supposed to have exclusivity is the wrongful is the unjustified act that gives rise to the tort. The contract itself did not preclude Biomet from contacting the sales people, contacting the customers. That is the tort. What makes it wrongful is, of course, the fact that the contract precluded the unnotified termination in an exclusive territory.
*1253 (Tr. vol. 5, at 12.) When pushed harder by the Court to articulate Biomet's unjust i.e. illegal behavior Smith stated, "[t]he unjust behavior was contacting the sales people and the customers during the period of time when Mr. Smith was supposed to have exclusivity in the territory." (Id. at 13.) Smith's argument is without merit because this is simply another way of saying that the illegal or wrongful conduct at issue in this case, was the breach of the contract. But as shown above, breach of contract is not "illegality" for purposes of a claim of tortious interference with business relations. See HAS, Inc., 1999 WL 1893209, at * 16.
There is no evidence that Smith was supposed to have exclusivity in the territory after his termination, and even if there was, Biomet's actions would amount to nothing more than a breach of contract. As Judge Sharp previously ruled in this matter, Biomet's termination of Smith without the required thirty days notice was a breach of contract, but it was not a material breach because Smith was compensated for the commissions from his territory by Biomet for the entire period. See Biomet, Inc., 238 F.Supp.2d at 1050-51. This same behavior the unnotified termination in an exclusive territory cannot be converted into a tort.
Smith's exclusivity in the territory ended on July 10, 2001, the time of his termination. Smith understood this because he did not distribute any Biomet products after that date. Instead, Smith knew that he was free to go look for a new distributorship from any one of Biomet's competitors. To be sure, Smith wanted to retain his sales reps because they made him a more attractive distributor and could help him land a competitor's account. But Biomet's telephone calls informing Garcia and Cavazos that Smith was fired and that there may be other employment opportunities for them is not "illegal" conduct.
Simply put, it was not "unjust" or "illegal" for Biomet to contact Smith's sales reps after it terminated him. There was nothing in the contract that prevented Biomet from doing so. Thus, as a matter of law, this is not "illegal" conduct, and therefore is not evidence of tortious interference with business relations.[4]See HAS, 1999 WL 1893209, at *16.[5]
Moreover, Smith's new conversion argument also cannot save his tortious interference claim. For the first time after trial, Smith contends that Biomet's failure to pay him all of his commissions due after his termination amounted to conversion of his property, and satisfies the illegality requirement of his tortious interference with business relations claim. (See Pl. Opposition at 6-7.) Smith's argument is misplaced. Any alleged conversion took place over a month after Smith was terminated on or about August 24, 2001 when he received his last commission check. It is impossible that Biomet's failure to pay *1254 Smith for all of his commissions in late August, could be the illegal conduct that Biomet engaged in to tortiously interfere with Smith's sales reps and customers in early July. See Harvest Life Ins., 701 N.E.2d at 876-77 (Indiana law requires that the plaintiff prove that the defendant acted illegally in achieving its end). Here, Biomet's withholding of Smith's commissions had nothing to do with its relationship with Smith's sales reps and customers and cannot salvage his claim.
While we do not lightly overturn a jury verdict, Massey, 226 F.3d at 925, after thoroughly reviewing the evidence in this case on the claim of tortious interference with business relations, we are left with the firm view that there was simply no evidence on two crucial elements. We therefore have no choice but to enter judgment as a matter of law in favor of Biomet.
II. Defamation
The jury found that Smith was defamed by Biomet. While the evidence on the defamation claim was certainly not overwhelming, there was enough for a rational jury to have found for the Plaintiff in light of the record. Harvey, 377 F.3d at 707. Biomet's motion for judgment as a matter of law on the defamation claim is therefore denied.
To establish a claim of defamation, a plaintiff must prove the following elements: (1) a communication with defamatory imputation, (2) malice, (3) publication, and (4) damages. Trail v. Boys & Girls Club of Northwest Ind., 811 N.E.2d 830, 841 (Ind.Ct.App.2004); Davidson v. Perron, 716 N.E.2d 29, 37 (Ind.Ct.App.1999), trans. denied. "A statement is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Gatto v. St. Richard Sch., Inc., 774 N.E.2d 914, 923 (Ind.Ct.App.2002). "The publication element requires the plaintiff to show that the defamatory matter was `published,' that is, communicated to a third person or persons." Mart v. Hess, 703 N.E.2d 190, 194 (Ind.Ct.App.1998). The malice element requires the plaintiff to show publication of the statement with knowledge of its falsity or with reckless disregard of its truth or falsity. McQueen v. Fayette County Sch. Corp., 711 N.E.2d 62, 67 n. 2 (Ind.Ct.App.1999), trans. denied.[6]
A. The Defamatory Statement
The defamatory statement at issue in this case is Biomet's representative Mike LaGrange telling Dr. Bassett that Wayne Smith threatened to go to Biomet's annual shareholders' meeting and settle matters with a gun. (See Def. Ex. X at 14-15.) If, as Biomet contends, Wayne Smith made this statement, then Biomet's statement was true and it has a defense. Doe v. Methodist Hosp., 690 N.E.2d 681, 687 (Ind.1997). But the evidence is undisputed that Smith never made that statement.
Biomet's Geurink testified that Peter Rockwood called him and told him that Smith said "that if his lawyers can't resolve this thing with Biomet, he's going to take his gun and go to Warsaw and resolve it." (Tr. vol. 4, at 66.) The evidence showed that Rockwood did not relay this information to Geurink until at least a month after his conversation with Smith. (Id. at 80.) Rockwood testified that he did not take Smith's alleged comment seriously, and that if he had, he would have called *1255 somebody immediately. (Pl.Ex. 46 at 38.) As Rockwood explained it, Smith's comment was simply his way of being "dramatic." (Id. at 37.)
Guerink repeated what Rockwood had told him to Dave Montgomery, who repeated it to Gary England and Dan Hann. After discussions about the threat bounced around Biomet headquarters for awhile, at some point in September 2001, Geurink relayed the threat to LaGrange, who in turn relayed it to Dr. Bassett. But the statement as told to Dr. Bassett was different. It added the part about Smith specifically saying he was coming to the shareholders' meeting with a gun.
Indeed, Biomet's Montgomery candidly admitted that Rockwood never said that Smith threatened to come to the shareholders' meeting with a gun. (Tr. vol. 4, at 146.) This fact was corroborated by Rockwood himself, who testified that he found out about Biomet's annual shareholders' meeting when he was told about it by Biomet President Dane Miller and Dan Hann in September 2001. (See Pl.Ex. 46 at 15, 18.) The evidence was clear that Biomet merely assumed that Smith would come to the annual shareholders' meeting with a gun, and this is what led Biomet to alter the statement. As Dave Montgomery, Biomet's Vice President of Sales, testified:
The assumption was based upon the report we had from Mr. Geurink that Mr. Smith intended to come to Warsaw with a gun to settle his differences. That, coupled with this note that was sent to other distributors, and apparently this note I received voting his shares to himself, the conclusion was drawn that what better time to come to Warsaw than during the shareholder meeting.
(Tr. vol. 4, at 178; see also 147.)
While the statement Smith allegedly uttered to Rockwood may have been threatening in a general sense, it lacked specificity in both time and place. Biomet's alteration of the statement to add that Smith was coming to the annual shareholders' meeting (scheduled to take place on September 29, 2001, in Warsaw, Indiana) with a gun made the threat seem much more specific, both in time and in place, and thus much more imminent. As a matter of law, the Court found that this change adding the information concerning the annual shareholders' meeting to the alleged threat altered the harmful aspect of the statement making the threat seem considerably more serious and imminent. See Biomet, Inc., 238 F.Supp.2d at 1047-48; cf. Vachet v. Cent. Newspapers, Inc., 816 F.2d 313, 313 (7th Cir.1987) (inconsistency in "inoffensive details of secondary importance" e.g., whether someone was arrested pursuant to a warrant or authorized by state statute which do not alter the harmful aspects of the statement do not defeat the truth defense).
Biomet relies on Heeb v. Smith, 613 N.E.2d 416 (Ind.Ct.App.1993), for the proposition that the truth defense is established if the "gist" or "sting" of the statement was true. Biomet claims that the sting of the statement that it uttered that Smith said that he was coming to the shareholders' meeting with a gun was true. But this argument ignores the fact that "The test for determining whether a statement is substantially true is whether any inaccuracies caused the statement to produce a different effect on the audience than would have been produced had the literal truth been spoken." Heeb, 613 N.E.2d at 421. Because there was some evidence that Biomet substantially changed the gist of Smith's alleged statement as told to Rockwood by making the threat more serious and imminent, the truth defense is unavailable to it.
*1256 B. Publication and Malice
There was also evidence that Biomet published the defamatory statement. The plaintiff submitted evidence that Mike LaGrange, Biomet's new distributor, published the defamatory statement to Dr. Bassett, Smith's former customer, in September, 2001. (See Tr. vol. 3, at 175; Pl.Ex. 44 at 17-18.) This was corroborated by the fact that Daniel Hann, Biomet's General Counsel, testified that Dr. Bassett told him during a September 2001, telephone conversation that Smith had threatened to take a firearm to the annual meeting. (Tr. vol. 3, at 175.) There is also evidence that LaGrange told Dan Cavazos, Smith's former employee, about the alleged threat, (Pl.Ex. 42 at 57.) In addition, Dr. Swan testified that he heard about the alleged threat, but he could not identify who he heard it from. (Pl.Ex. 48A at 12.) Thus, at the very least, a rational jury could have readily found that the defamatory statement was communicated to a third party Dr. Basset.
Biomet takes issue with being held liable for a defamatory statement published by its distributor, Mike LaGrange.[7] While LaGrange was an independent contractor, an agency relationship may have nonetheless existed between them. Under Indiana law, whether an agency relationship exists and the scope of the agent's authority is a question of fact for the jury. Coca-Cola Co. v. Babyback's Int'l, Inc., 806 N.E.2d 37, 46 (Ind.Ct.App.2004), trans. denied; Johnson v. Blankenship, 679 N.E.2d 505, 507 (Ind.Ct.App.1997), trans. granted and summarily aff'd, 688 N.E.2d 1250 (Ind.1997). Here, there was a question of fact as to whether LaGrange was or was not an agent of Biomet. The Court refused to make a ruling at trial on the issue, finding that "the matter of his agency is a question for the jury to decide." (Tr. vol. 1, at 56.) Accordingly, the jury was extensively instructed on Indiana agency law, (see [Doc. 150] at Instructions 14-19), and evidently found that LaGrange had at least some authority to speak on behalf of Biomet.
Authority can be either actual or apparent. Actual authority "is created by written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal's account." Gallant Ins. Co. v. Isaac, 751 N.E.2d 672, 675 (Ind.2001) (internal quotes omitted). Apparent authority, on the other hand, "refers to a third party's reasonable belief that the principal has authorized the acts of its agent; it arises from the principal's indirect or direct manifestations to a third party and not from the representations or acts of the agent." Id.
There was evidence introduced that Biomet gave its exclusive distributors actual or apparent authority. To begin with, the parties stipulated to the fact that distributors, like LaGrange, were Biomet's "representatives" in the field to provide assistance about Biomet products to surgeons. (Tr. vol. 2, at 25.) Thus, distributors not only call on surgeons to sell them Biomet products they are available to answer questions about the products and are present during the surgeries to provide technical advice to the surgeons. So for all practical purposes, the exclusive distributor is the face of Biomet in his territory. The only contact that surgeons have *1257 with Biomet is through their exclusive distributor or his sales reps.
According to Biomet's Geurink, the key to Biomet's business is for distributors to develop a close and trusting relationship with surgeons. (Tr. vol. 4, at 27.) To do this, distributors have to represent Biomet and vouch for the quality of the Biomet products. Indeed, Biomet's distributor agreement gives the distributor the "exclusive right to promote the sale of products of Biomet" and to act as a "representative" for Biomet. (Pl.Ex. 1; Tr. vol.4, at 109.) But, to be fair, the distributor agreement also states that Biomet distributors are not "authorized to transact business, incur any obligations in the name or for the account of Biomet, nor on Biomet's behalf to make any promise, warranty or representation with respect to Biomet Products." (Pl.Ex. 1.)
Apart from the distributor letter agreement, additional documentary evidence was introduced of Biomet's distributors authority to act on behalf of Biomet. For example, in Biomet's termination letter to Smith, it specifically stated that: "After July 10, 2001, you must cease holding yourself out as a Biomet distributor and take appropriate action to delete the Biomet name and all Biomet trademarks from your stationery and promotional materials." (Pl.Ex. 3.) Clearly, surgeons interacting with a distributor who communicates with them on Biomet stationery could reasonably believe that Biomet authorized the distributor to act on its behalf.
Considering all of this evidence, a rational jury could have found that by giving LaGrange the exclusive right to promote and "represent" Biomet, Biomet was vesting in him the requisite authority. At bottom, it was for the jury to decide, and Biomet's efforts to divorce itself from LaGrange were obviously unpersuasive to the jury.
Biomet's further argument that it was merely a republisher of the statement that is, that it was simply repeating what Rockwood said is simply not the case as was already discussed. The affidavit signed by Rockwood and prepared by Hann in order to obtain the protective order made no reference to the annual shareholders' meeting. (Def.Ex. K.) Rockwood himself testified that he knew nothing about an annual meeting until he was told about it by Biomet President Dane Miller and Dan Hann. (See Pl.Ex. 46 at 15, 18.) Obviously, Rockwood never told anyone at Biomet that Smith threatened to bring a gun to the annual shareholders' meeting. Biomet simply assumed that and altered the statement. Thus, contrary to Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974), a case relied on by Biomet, the liability assessed to Biomet in this case derived from Biomet's own actions.
Finally, the evidence also supported a finding that Biomet did not take reasonable steps to determine the truth of Rockwood's statement. No one at Biomet seemed to care whether Rockwood took the statement seriously, because no one asked whether he did. Moreover, Biomet never called Smith to find out if he had made the statement or what he meant by it, even though Geurink testified that he did not know Smith to be violent. (Tr. vol. 4 at 81; Pl.Ex. 41 at 74-75.) As mentioned, Smith outright denied making any threat. (Tr. vol. 2, at 128-29.)
Regardless, Biomet changed Rockwood's statement and created a new defamatory statement. Because there was evidence that Biomet published the new defamatory statement, that it knew to be false since it made part of it up malice could easily have been found by a reasonable jury.
*1258 C. Damages
Biomet also argues that Smith did not incur any damages as a result of Biomet's defamatory statement. To begin with, a communication is defamatory per se under well-settled common law rulings if it imputes criminal conduct. Lovings v. Thomas, 805 N.E.2d 442, 446 (Ind.Ct.App.2004); Rambo v. Cohen, 587 N.E.2d 140, 145 (Ind.Ct.App.1992), trans. denied; Restatement (Second) of Torts § 570 (1977). When a communication is defamatory per se, the plaintiff is entitled to presumed damages "as the natural and probable consequence" of the per se defamation. Elliott v. Roach, 409 N.E.2d 661, 683 (Ind.Ct.App.1980). Thus, as the Rambo court put it, "The law presumes the plaintiff's reputation has been damaged, and the jury may award a substantial sum for this presumed harm, even without proof of actual harm." Rambo, 587 N.E.2d at 145. The statement at issue here imputes criminal conduct to Smith and is thus defamatory per se.
In considering whether to grant judgment as a matter of law, the "court must draw all inferences in favor of the nonmoving party." Tart v. Ill. Power Co., 366 F.3d 461, 472 (7th Cir.2004) (citations omitted). It's for this reason that a party attacking a "jury verdict faces an uphill battle, for we will not set aside a jury verdict as a long as a reasonable basis exists in the record to support that verdict." Haschmann v. Time Warner Entm't Co., 151 F.3d 591, 599 (7th Cir.1998). Biomet has not won that battle on Smith's defamation claim.
The jury's verdict awarding Wayne Smith compensatory and punitive damages for defamation should not be disturbed. There was evidence introduced at trial that Biomet materially changed the statement that it had been told by Peter Rockwood and then, for no good reason, communicated the new defamatory statement to Smith's former customers and others. In addition, the evidence clearly permitted the jury to award punitive damages because there was evidence that Biomet knew the statement to be false since it had materially changed it and added information concerning the annual shareholders' meeting that no one, and certainly not Wayne Smith, had ever said. Accordingly, Biomet's renewed motion for judgment as a matter of law on the defamation claim must be denied.
III. Texas Sales Representative Act
Biomet also urges the Court to find that it is entitled to judgment in its favor on Smith's claim under the Texas Sales Representative Act ("TSRA") because Biomet's final commission payment complied with the terms of its letter agreement with Smith. On this claim there can be no doubt that the evidence permitted the jury to find that Biomet improperly deducted commissions from Smith's final commission check. The jury's verdict in favor of Smith was not against the clear weight of the evidence. Accordingly, Biomet is not entitled to judgment as a matter of law.
The TSRA provides:
A principal who fails to comply with a provision of a contract under Section 35.82 relating to payment of a commission or fails to pay a commission as required by Section 35.83 is liable to the sales representative plus reasonable attorney's fees and costs.
Tex. Bus. & Com.Code § 35.84 (2004). The evidence established that on July 10, 2001, Smith contacted Biomet in writing and requested that an inventory of his Biomet products be performed that very day because he did not want to lose control of the inventory. (Tr. vol. 2, at 101; Pl.Ex. 17.) Smith testified, repeatedly, that he could not do an audit of the inventory *1259 himself because once he was terminated he had no authority to access Biomet's inventory. (See Tr. vol. 2, at 158-59.) Biomet chose not to immediately perform an audit. (Id. at 102.)
In fact, the evidence was that one of Biomet's new distributors, Mike LaGrange, acknowledged that surgeries were performed for Smith's former clients on July 11, 2001, and July 13, 2001, using Biomet inventory already present in the hospital. (Pl.Ex. 42 at 38-40.) A reasonable jury could come to the conclusion that this inventory had to have been the Biomet inventory that Smith was responsible for up until July 11, 2001.
Further, Biomet's own Dave Montgomery also testified that a distributor usually has thirty days to reconcile the Biomet inventory against the audit figures, and that usually during that time frame the missing inventory is accounted for. (Tr. vol. 4, at 151-53.) A reasonable jury could conclude that had Smith been given the opportunity to assist with the inventory audit and to look for the missing items (which may have actually been used during surgeries for Biomet customers), the inventory would have been reconciled. But, Smith never had this opportunity.
On August 24, 2001, Smith received his final commission check from Biomet, containing a $13,906.50 deduction for inventory that Biomet said that it couldn't locate. (Id. at 105, 108.) One could reasonably conclude based on the evidence that 1) Smith requested that an immediate audit be completed on Biomet's inventory, but Biomet chose not to do it, 2) Biomet's new distributor who took over for Smith used the Biomet inventory and might have been responsible for the missing items, 3) Smith could not do an independent audit of the inventory because after his termination he did not have authority over Biomet's products, and 4) as a result, Biomet improperly deducted $13,906.50 from Smith's final commission check in violation of the Texas Sales Representative Act. Accordingly, Biomet's renewed motion of judgment as a matter of law on this claim is denied.
IV. Jury Instructions and Verdict Form
Biomet also argues that the Court's instructions to the jury and verdict form were in error and seriously prejudiced Biomet. Many of Biomet's arguments are perplexing; all are without merit for the reasons that follow. To begin with, under Federal Rule of Civil Procedure 51, when considering instructions proposed by the court, a party, in order to preserve the error, must state "distinctly the matter objected to and the grounds of the objection." Fed.R.Civ.P. 51 (emphasis added). As the Seventh Circuit has stated: "The objection must be specific enough that the nature of the error is brought into focus. The party must also explain what is wrong with the proposed instruction; it is not enough to simply to submit an alternative instruction." Schobert v. Ill. Dep't of Transp., 304 F.3d 725, 729 (7th Cir.2002) (internal citations omitted). See also Knox v. Indiana, 93 F.3d 1327, 1333 (7th Cir.1996). The requirement of specificity in objections is not a technical game of "gotcha." Rather, it's a pragmatic rule that allows the judge to "be made aware of the error prior to instructing the jury, so that the judge can fix the problem." Schobert, 304 F.3d at 729-30.
Biomet's Proposed Instruction Nos. 24, 25, 27, and 28
Biomet asserts that the Court's failure to give its proposed instruction Nos. 24, 25, 27, and 28 was plain error. The Court gave Defendant's instruction No. 24 as the Court's Instruction No. 20A in the Court's Final Jury Instructions. (See [Doc. 150].) Moreover, Biomet specifically withdrew its *1260 proffered Instruction No. 28. (Tr. vol. 5, at 74.) Biomet's proposed instruction Nos. 25 and 27 dealt with defenses to the tortious interference with business relations claim, which this Court has now granted Biomet's renewed motion for judgment as a matter of law on, making any further discussion unnecessary.
Instruction No. 22
Instruction No. 22 accurately stated the law of compensatory damages for a tortious interference with business relations claim. See Restatement (Second) of Torts § 774A (damages include "(a) the pecuniary loss of the benefits of the contract or the prospective relation; (b) consequential losses for which the interference is a legal cause; and (c) emotional distress or actual harm to reputation, if they are reasonably to be expected to result from the interference.") Biomet only objected to any reference of emotional distress being included in the jury instruction, and the Court actually sustained Biomet's objection. (See Tr. vol. 5, at 50, 79.)
Instruction No. 31
Instruction No. 31 correctly stated that the defamatory statement at issue, which implicated criminal conduct, was defamatory as a matter of law. Smith, 238 F.Supp.2d at 1046. This instruction is in accordance with the Indiana Pattern Jury Instructions. In fact, the Court got this language from Biomet's proposed instruction No. 54. Instruction No. 30 instructed the jury that in order to find Biomet liable for defamation, Smith had to prove the required four elements by a preponderance of the evidence. Taking the instructions as a whole, it is clear that Instruction No. 31 did not "usurp" the role of the jury by directing a verdict against Biomet.
Instruction No. 32
Biomet's beef with Instruction No. 32 is that the Court failed to identify the specific defamatory statement at issue in the case. Biomet waived any objection to Instruction No. 32 because it did not object at trial to it. (See Tr. vol. 5, at 69.) Biomet is wrong in any event. Instruction No. 30 clearly and explicitly identified the defamatory statement at issue, stating in relevant part, "To recover on his claim of defamation, Mr. Smith must prove the following elements by a preponderance of the evidence: (1) that Biomet made the following statement: that Wayne Smith had said that he was going to go to Biomet's annual shareholders' meeting in Warsaw and settle matters with a gun." See Instruction No. 30.
Instruction No. 27
Biomet claims that Instruction No. 27 was "plainly erroneous" and did not "accurately reflect the law." (Biomet's Mem. at 31). Yet Biomet never objected to the instruction during trial. (Tr. vol. 5, at 80.) Instruction No. 27 is an accurate statement of the law in any event.
Instruction Nos. 23, 24, 33, and 34
The only objection that Biomet voiced at trial to Instruction No. 23 was that "it refers to human failing with the Defendant, who is a corporation." (Tr. vol. 5, at 52.) Read in conjunction with earlier instructions the Court found that it would be clear to the jury that corporations act through their agents and overruled Biomet's objection. Any newly raised objection is therefore waived. As to Instruction No. 24, the Court sustained the only objection raised by Biomet. (See id. at 52). Accordingly, any additional objections were waived. Instruction No. 33 is a proper statement of the law and was Biomet's proposed instruction No. 11. It is taken directly from Indiana Pattern Jury Instruction No. 35.17. Not surprisingly, inasmuch as it was Biomet's proposed instruction, it did not object to Instruction No. 33 at trial. (See id. at 69.) Finally, Instruction No. 34 as given represented an altered instruction that incorporated *1261 changes made after the Court sustained the objection of Biomet to proposed instruction No. 34. (See id. at 69-71.)
Verdict Form
Lastly, the Court's decision not to use the 10-page, 46-question special verdict form proposed by the Defendant was not error. A general verdict form where the jury simply makes a finding as to liability on each claim, and additional damage findings if applicable, suffices. See Fed.R.Civ.P. 49(a) (the Court "may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate") and 49(b) (the Court may use a general verdict); see also Perzinski v. Chevron Chem. Co., 503 F.2d 654, 660 (7th Cir.1974) ("A district court has considerable discretion as to the nature and scope of the issues to be submitted to the jury in the form of special verdict questions under Rule 49(a)").
V. Evidentiary Errors
Biomet also seeks a new trial based on the Court's purported erroneous evidentiary rulings. All of Biomet's evidentiary arguments were considered and ruled upon by the Court prior to or during trial. Accordingly, Biomet's motion for a new trial on these evidentiary grounds is denied for the reasons previously set forth by the Court.
CONCLUSION
For the foregoing reasons, Biomet's renewed motion for judgment as a matter of law [Doc. 167] is GRANTED IN PART AND DENIED IN PART. Because there was no legally sufficient evidentiary basis for a reasonable jury to find in favor of Wayne Smith and against Biomet, Inc. on Wayne Smith's claim of tortious interference with business relations, JUDGMENT IS ORDERED in favor of Counter-Defendant Biomet, Inc. and against Counter-Plaintiff Wayne Smith on his tortious interference with business relations claim only. Pursuant to Rule 50(c)(1), because the dispositive facts are uncontroverted and the verdict was against the clear weight of the evidence on the tortious interference with business relations claim, Biomet's alternative request for a new trial on this claim is CONDITIONALLY GRANTED.
Biomet's renewed motion for judgment as a matter of law on Smith's defamation claim and Texas Sales Representative Act claim is hereby DENIED. Biomet's alternative request for a new trial on each of these claims is also hereby DENIED.
Furthermore, Wayne Smith's Motion for a New Trial [Doc. 160] is DENIED for the reasons previously stated in this order. Finally, in light of this Order, Biomet's Motion to Review the Clerk's Notice of Taxation of Costs [Doc. 170] is hereby GRANTED.
SO ORDERED.
NOTES
[1] Biomet dismissed its original claim relating to the protective order after the parties entered into a consent decree. (See [Doc. 144].) That left the counterclaims brought by Smith against Biomet. For simplicity sake, instead of referring to Smith as the "Counter-Plaintiff" and Biomet as the "Counter-Defendant," they are referred to in this Order as simply Plaintiff and Defendant, respectively.
[2] Although Winkler involved a tortious interference with contract claim and not a claim for tortious interference with business relations, both torts have "absence of justification" as an element. There is no reason to suppose that the Indiana Supreme Court would treat the "absence of justification" element differently in a tortious interference with business relations claim than how it treated that same element in Winkler.
[3] Apart from speaking with Dr. Bassett, a Biomet product designer who had weekly phone conversations with Biomet, (Tr. vol. 4, at 64), Geurink's brief conversation with Dr. Swan was the only evidence introduced at trial regarding Biomet's alleged tortious interference with Smith's customers. These communications were not unjustified and Biomet's interactions with Smith's customers does not rise to the level of tortious interference.
[4] At trial, the jury found that Biomet defamed Smith. However, as previously discussed, defamation is not "illegal conduct" for a tortious interference with business relations claim, and does not salvage Smith's claim. See Levee, 729 N.E.2d at 222-23.
[5] Likely anticipating this result, Smith urges the Court to allow Smith a "new" trial on Smith's claim for breach of contract (for improper termination) if any part of the jury verdict awarding Smith damages for tortious interference with business relations is set aside. (See [Doc. 160].) Such relief is unwarranted, and is hereby denied. While Judge Sharp previously granted summary judgment to Biomet on Smith's breach of contract claim for Biomet's failure to provide Smith with 30 days' notice of termination, Smith never alleged breach of contract based upon Biomet's violation of the exclusivity provisions of his contract. Any absence of a contractual remedy, therefore, resulted from Smith's failure to plead such a claim.
[6] Judge Sharp questioned in his summary judgment order whether a showing of malice was required under the circumstances of this case. See Biomet, Inc., 238 F.Supp.2d at 1046. Regardless, the evidence introduced at trial permitted a jury to find that Biomet acted with malice.
[7] Biomet also argues that it cannot be liable for publishing the defamatory statement to LaGrange because Biomet and LaGrange have a common interest. The Court need not address this argument because it is meaningless. The publication at issue is not to LaGrange from Biomet, but from LaGrange to Dr. Bassett. See Biomet, Inc., 238 F.Supp.2d at 1046-47.
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869 N.E.2d 1225 (2007)
TRINITY BAPTIST CHURCH, et al., Appellants-Defendants,
v.
Rev. George M. HOWARD, et al., Appellees-Plaintiffs.
No. 45A05-0605-CV-230.
Court of Appeals of Indiana.
July 17, 2007.
*1226 Kathryn D. Schmidt, Merrillville, IN, Joseph A. Samreta, Munster, IN, Attorneys for Appellants.
Robert L. Lewis, Gary, IN, Attorney for Appellees.
OPINION
HOFFMAN, Senior Judge.
Defendants-Appellants Trinity Baptist Church et al. appeal from a judgment in favor of Plaintiffs-Appellees Reverend George M. Howard et al. We affirm.
Howard raises a jurisdictional issue, which because of its nature, we will address it first. Trinity raises two issues for our review, which restate as Issues II and III below:
I. Whether Trinity timely filed its notice of appeal.
II. Whether the trial court erred in denying Trinity's summary judgment motion.
III. Whether the trial court abused its discretion in denying Trinity's motion for continuance.
In 1994, Trinity recruited Howard to be the pastor of the Trinity Baptist Church in Gary, Indiana, when the former pastor died after fifty-four years of service. Howard left his church in Iowa and served as Trinity's pastor from 1994 through the end of 1996 without a written contract of compensation. On December 29, 1996, Trinity's Board adopted an agreement governing "the full and complete terms and agreement for the employment compensation of [Howard]. . . ." Appellants' App. at 28. On February 3, 1997, this agreement was signed by members of the Trinity Board.
In 2001, the Trinity Board terminated Howard's employment after a no confidence vote by the church's membership. Howard subsequently filed a complaint alleging, among other things, that the termination of his employment constituted a breach of the compensation agreement. Prior to trial, Trinity filed a summary judgment motion arguing, among other *1227 things, that the agreement between the parties was merely a compensation agreement and that the terms of employment were controlled by the church's by-laws. The motion was denied on March 10, 2004; subsequently, the case went to trial. On March 31, 2006, a jury found for Howard and awarded him $205,000 in damages.[1] Final judgment was entered on the same day. On May 1, 2006, Trinity filed a notice of appeal stating its intention to appeal the final judgment and requesting preparation of the trial transcript. On August 10, 2006, Trinity supplemented its notice of appeal and requested the preparation of the transcript for the summary judgment hearing.
I.
Howard contends that Trinity failed to timely file its notice of appeal as it pertains to the trial court's denial of Trinity's summary judgment motion. Specifically, Howard contends that by not announcing its intention to appeal from the denial of its summary judgment motion and by not requesting the transcript for the summary judgment hearing in its original notice of appeal, Trinity waived its right to appeal the trial court's denial of summary judgment. In support of his contention, Howard cites WW Extended Care, Inc. v. Swinkunas et al., 764 N.E.2d 787 (Ind.Ct.App.2002).
An appeal of a final judgment is initiated by the timely filing of a notice of appeal within thirty days after the entry of judgment or the denial of a motion to correct error. Indiana Rule of Appellate Procedure 9(A)(1). The timely filing of a notice of appeal is a jurisdictional prerequisite, and failure to conform to the applicable time limits results in forfeiture of an appeal. App.R. 9(A)(5).
In Swinkunas, the appellant filed two motions to correct error, the first of which raised the issue of the trial court's jurisdiction. The appellant did not file a notice of appeal after the denial of the first motion to correct error, instead waiting until after the denial of the second motion to correct error to raise the jurisdictional issue on appeal. 764 N.E.2d at 790. We held that by failing to comply with App.R. 9(A)(1) by filing a notice of appeal within thirty days of the denial of the first motion to correct error, the appellant waived the jurisdiction issue and could not belatedly raise it in the appeal of the trial court's denial of the second motion to correct error. Id. at 791.
In the present case, the propriety of the trial court's denial of summary judgment is an interlocutory matter, not an issue that was foreclosed by a previous motion to correct error. A claimed error in an interlocutory order is not waived for failure to take an interlocutory appeal, and it may be raised on appeal from the final judgment. Bojrab v. Bojrab, 810 N.E.2d 1008, 1014 (Ind.2004). Trinity's timely filed notice of appeal pertaining to the final judgment was also timely as to the interlocutory order denying summary judgment. Its second "notice of appeal" was in substance a supplemental request for transcript as sanctioned by App.R. 9(G).
II.
Trinity contends that the trial court erred in denying its summary judgment motion. Trinity argues that the agreement between the Trinity Board and Howard was a compensation agreement, not an agreement for employment. In the alternative, *1228 Trinity argues that the agreement, through its reference to the church's by-laws, establishes an indefinite term of employment and that it therefore should be interpreted as establishing an employment at will relationship. Trinity points out that an employee at will may be terminated for any reason or no reason at all.
The purpose of summary judgment is to terminate litigation about which there is no factual dispute and which may be determined as a matter of law. Ratcliff v. Barnes, 750 N.E.2d 433, 436 (Ind.Ct.App. 2001), trans. denied. When reviewing the grant or denial of summary judgment, this court applies the same standard as the trial court. Id. Summary judgment is appropriate only if the designated evidentiary material shows there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. Construction of a written contract is a question of law for which summary judgment is particularly appropriate. Merrillville Conservancy District ex rel. Bd. of Directors v. Atlas Excavating, Inc., 764 N.E.2d 718, 724 (Ind.Ct.App.2002).
In reference to Trinity's initial argument, we note that the words or labels of a contract are not conclusive but should be considered in connection with the provisions of the contract. Rogers v. Lockard, 767 N.E.2d 982, 991 (Ind.Ct.App.2002). The interpretation of a contract cannot be controlled by reference to labels, but instead the court must look through form to substance. Atlas, 764 N.E.2d at 724, n. 3. Here, the agreement between Trinity and Howard is entitled "Compensation for Pastoral Services between Trinity Baptist Church and Reverend George M. Howard, Sr." The agreement provides in Article I ("Introduction") that it contains the "full and complete terms and agreement for [Howard's] employment compensation" and that Howard's compensation could be "terminated or reassigned by [Howard] with a 60 day notice." Appellant's App. at 355. The agreement also provides that "employment shall be in accordance with the by-laws of the church." Id. It is apparent from the language of the agreement that although it is primarily a compensation agreement, it also covers terms of employment by incorporation of the church's by-laws. Thus, we cannot agree with Trinity's initial contention.
In reference to Trinity's alternative argument, we note that Article IX, Section 1 of the church's by-laws state that "[t]he pastor is called for life and removable only by death."[2] Trinity argues that Howard's term of employment, as defined by the by-laws, was so indefinite that the relationship between the parties should be characterized as at will employment. Trinity cites Griffin v. Elkhart General Hospital, Inc., 585 N.E.2d 723 (Ind.Ct.App.1992) and Pepsi-Cola General Bottlers, Inc. v. Woods, 440 N.E.2d 696 (Ind.Ct.App.1982) in support of its alternative argument.
In Griffin, this court noted that the employment at will doctrine states "that where the tenure of service of an employee is indefinite or cannot be determined by the terms of the employment contract, employment is presumptively terminable at the will of either party." 585 N.E.2d at 724-25. The court further noted that an employee at will "may be discharged by his employer for any cause whatsoever, or for no cause, without giving rise to an *1229 action for damages." Id. The agreement at issue in Griffin, a memorandum signed by the employer, stated that employment was projected to last approximately three years and that the employer was "unable to guarantee a specific timeframe for the position, nor predict a precise termination point." Id. at 724. The memorandum also provided that the employee's "ability to maintain this position will, as with all positions at [the employer], be predicated on your performance in this new capacity." Id. The employee, however, argued that the memorandum was not the complete agreement between the parties. Id. The employee relied on his deposition testimony that he understood the memorandum to guarantee employment for three years. Id. at 725.
In determining that the contract created an employment at will relationship, the Griffin court cited Aberman v. Malden Mills Industries, Inc., 414 N.W.2d 769 (Minn.App.1987) for the proposition that expressions such as "permanent employment," "life employment," and "as long as the employee chooses" indicate an at will contract. Id. at 726. The employment "contract" in Aberman consisted of oral representations allegedly made by the employer. The court held that Aberman was required to show objective evidence of the employer's intent and that he could not rely "on his own subjective belief that they had a lifetime employment contract." 414 N.W.2d at 771. The court further held that "[c]ourts are reluctant to find a lifetime employment contract because such alleged contracts are often `oral, uncorroborated, vague in important details and highly improbable.'" Id. It was within this context that the Minnesota court held that the aforementioned phrases are insufficient to show a contract for a definite term. Indeed, Griffin and Aberman (along with the Pepsi-Cola Bottlers case cited by Trinity) are representative of a line of cases which do not contain definite statements of intention within the employment agreements between the parties.
In determining whether the church's by-laws in the present case create an employment relationship outside the employment at will doctrine, we note that Indiana has recognized two basic forms of employmentemployment for a definite or ascertainable term and employment at will. See Eck & Associates, Inc. v. Alusuisse Flexible Packaging, Inc., 700 N.E.2d 1163, 1167 (Ind.Ct.App.1998), trans. denied. If there is an employment contract for a definite or ascertainable term, and the employer has not reserved the right to terminate the employment before the conclusion of the contract, the employer "generally may not terminate the employment relationship before the end of the specified term except for cause or by mutual agreement." Id. If there is no definite or ascertainable term of employment, then the employment is at will, and is "presumptively terminable at any time, with or without cause or by mutual agreement." Id.
The employment at will doctrine is a rule of contract construction, not a rule imposing substantive limitation on the parties' freedom to contract. Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind.1997). If the parties include a clear provision in an employment contract, the presumption that employment is at will may be negated. Id.
Here, the church's by-laws, which were drafted by Trinity and were incorporated into the agreement between Trinity and Howard, clearly state that a pastor is "removable only by death." This provision is unequivocal and it negates the presumption that Howard was an at will employee who could be terminated without cause.
Trinity argues that the provision is not sufficiently definite to take this case outside *1230 of the at will presumption. Although no Indiana case has decided this issue, we note that such a provision has been deemed "clear and unequivocal." See Wesson v. Huntsman Corp., 206 F.3d 1150, 1155 (11th Cir.2000). It is this clear and unequivocal character that restrains us from construing the contract between Trinity and Howard.
Trinity implies that a lifetime employment provision needs independent consideration to rebut the at will employment presumption. We note that the cases that have so held are primarily interpreting "agreements" which are fraught with equivocal oral or written statements of intent, not clear statements such as the one at issue. See Eck, 700 N.E.2d at 1169-70 (citing Streckfus v. Gardenside Terrace Co-op., Inc., 504 N.E.2d 273, 275 (Ind. 1987)).
The trial court did not err in refusing to find as a matter of law that the employment agreement between Trinity and Howard creates an at will employment relationship. Accordingly, the trial court did not err in denying Trinity's summary judgment motion.
III.
Howard filed his proposed pre-trial order, including his witness and exhibits list, on the day of trial. Trinity pointed out that the pre-trial order was not timely, and it objected and asked for a continuance or a change of venue. In response to Trinity's objection, the trial court stated "[T]hey're not of any substance, they're just a list. The discovery would show whether they've been disclosed to the defense before, and if they have not then that's subject to an objection when the witness or the exhibit is called or offered." Appellant's App. at 203.
Trinity contends that the trial court should have granted his motion for continuance because it was prejudiced by Howard's late filing. In resolving this issue, we initially note that granting or denying a party's motion for continuance is left to the sound discretion of the trial court. We will only overturn the trial court's decision for an abuse of discretion. Litherland v. McDonnell, 796 N.E.2d 1237, 1240 (Ind.Ct.App.2003), trans. denied. An abuse of discretion occurs where the trial court reaches a conclusion that is clearly against the logic and effect of the facts of the case. Id. In the context of a motion for continuance, the moving party must show that its rights are likely to be prejudiced by the denial. Id.
Here, the trial court recognized the potential for prejudice to Trinity and provided instruction as to how Trinity could avoid such prejudice. On appeal, Howard claims that Trinity did not make any objections based upon prejudice at trial, and Trinity does not now claim to have done so. Furthermore, even though Trinity has renewed its claim of prejudice on appeal, it has not shown how it was prejudiced. Under the circumstances of this case, the trial court did not abuse its discretion in denying Trinity's motion.
Affirmed.
RILEY, J., concurs.
FRIEDLANDER, J., dissenting with separate opinion.
FRIEDLANDER, Judge, dissenting.
I believe Trinity's motion for summary judgment should have been granted, and therefore respectfully dissent from affirming its denial.
The law in this case is straightforward and uncontroversial. In a nutshell, Indiana recognizes two basic forms of employment, i.e., employment for a definite or ascertainable term, and employment at-will. *1231 Orr v. Westminster Village North, Inc., 689 N.E.2d 712 (Ind. 1997). "`If there is an employment contract for a definite term, and the employer has not reserved the right to terminate the employment before the conclusion of the contract, the employer generally may not terminate the employment relationship before the end of the specified term except for cause or by mutual agreement.'" Id. at 717 (quoting Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind. 1997)). If, however, "there is no definite or ascertainable term of employment, then the employment is at-will, and is presumptively terminable at any time, with or without cause, by either party." Id. Put more simply, except for exceptions clearly not applicable here, an at-will employee may be discharged by the employer at any time for any reason. Tony v. Elkhart County, 851 N.E.2d 1032 (Ind.Ct.App.2006). Those employed under a contract for a stated period may not be discharged unless it is consistent with the employment contract. In this case, that means that Trinity was entitled to summary judgment if Howard was an at-will employee, but was not so entitled if Howard's employment was for a definite term. The critical question, then, is what was the term of Howard's employmentor was there one?
The source of the answer to that question lies in a particular portion of Trinity's by-laws that were incorporated into Howard's employment contract. The passage in question states, "The pastor is called for life and removable only by death." Op. at 1228. Howard claims, and the Majority agrees, that this created a contract for a definite termand that term is as long as Howard is alive. Trinity counters that Griffin v. Elkhart Gen. Hosp., Inc., 585 N.E.2d 723 (Ind.Ct.App.1992), supports the opposite result, i.e., that the stated term is too indefinite to take this case outside of the at-will employment doctrine. I agree with Trinity.
I note in particular a case cited with approval in Griffin that reached this conclusion based on language similar to that before us in this case, i.e., Aberman v. Malden Mills Indus., Inc., 414 N.W.2d 769 (Minn.Ct.App.1987) "`[p]ermanent employment', `life employment', and `as long as the employee chooses' indicate an at-will contract; general statements as to job security create nothing more than at-will employment". Griffin v. Elkhart Gen. Hosp., Inc., 585 N.E.2d at 726 (internal quotations unattributed). I cannot subscribe to the rationale adopted by the Majority to distinguish Griffin. In my view, a contract provides a definite term only if it states a specific period of time or identifies a date certain that the contract term expires. Consistent with Griffin, references to future, uncertain events and indefinite time periods are too vague to constitute the required definiteness. I can find no meaningful distinction between a promise of "permanent employment," "life employment," and "as long as the employee chooses,"all of which the Griffin court rejected as stating no definite term, and the language in the instant case that called for "employment for life and removable only by death." In fact, I find Griffin squarely on point and dispositive of this controversy.
I would reverse the trial court and remand with instructions to grant Trinity's motion for summary judgment.
NOTES
[1] The jury also found in favor of Julia Howard and Educational Daycare Ministry in the amount of $37,500.
[2] There are other provisions under Article IX of the by-laws; however, Trinity's general designation of the by-laws is not sufficient to comply with the specificity requirements of Indiana Trial Rule 56, and we cannot consider these provisions on appeal. See National Examiners for Osteopathic Physicians and Surgeons, Inc. v. American Osteopathic Association, 645 N.E.2d 608, 615 (Ind.Ct.App.1994).
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346 F.Supp. 897 (1972)
Bernard B. LEVY et al., Plaintiffs,
v.
Honorable Mrs. Mary Evelyn PARKER, Treasurer of the State of Louisiana, et al., Defendants.
Civ. A. No. 70-243.
United States District Court, E. D. Louisiana, Baton Rouge Division.
June 28, 1972.
*898 Blake G. Arata, Beuker F. Amann, Ernest L. Salatich, David S. Cressy, J. B. Kiefer, New Orleans, La., for plaintiffs.
William Guste, Atty. Gen. of La., Thomas W. McFerrin, Melvin L. Bellar, Kenneth C. DeJean, Asst. Attys. Gen., for defendants.
Before WISDOM, Circuit Judge, and WEST and RUBIN, District Judges.
RUBIN, District Judge.
This taxpayer suit asserts the unconstitutionality of a Louisiana statute and of provisions of the Louisiana constitution that, in conjunction with the assessment practices of Louisiana officials, regulate the distribution of state funds to the various Louisiana parishes for the purpose of reimbursing those parishes for revenues lost as a result of the state *899 exemption of homesteads from ad valorem taxation. The petitioners contend that the distribution with respect to taxpayers owning homes and paying income and alcoholic beverage taxes in Orleans parish is unequal compared to that made with respect to taxpayers owning like property and paying like taxes in other parishes, that the inequality of appropriation lacks any rational basis, and hence denies the plaintiffs equal protection and due process of law. The plaintiffs, suing not only as homeowners but also as taxpayers contributing to the Property Tax Relief Fund from which appropriations are made, seek a declaratory judgment and, in addition, an injunction to prevent the distribution of disproportionately greater sums to those parishes allegedly receiving them.
The suit does not seek to enjoin the assessment or collection of any state tax. It assumes the constitutionality and validity of the Louisiana Homestead Exemption, La.Const. Art. X, § 4, ¶ 9, relieving homes from a portion of the burden of ad valorem property taxes. The challenge relates solely to the Louisiana constitutional provisions, statutes and practices that determine the manner of distributing state funds. Jurisdiction of this suit is conferred by the Civil Rights Act. 28 U.S.C. § 1343(3).
It has been abundantly demonstrated that Louisiana's present plan for distributing the Property Tax Relief Fund denies the plaintiffs the equal protection of the laws. Therefore, we declare unconstitutional the formula by which the state presently disburses PTR funds. Because the plaintiffs are entitled to relief under the Equal Protection Clause, we do not consider the alleged lack of due process.
I. FACTUAL BACKGROUND
The suit arises out of a pattern that has developed over a period of 37 years. During the depression of the thirties the ad valorem property tax imposed hardship on property owners, and unemployed working men who owned their own homes were in a particularly serious predicament: unable to find jobs, they could not even raise money to pay property taxes. Many had lost their homes at tax sales, and many more faced this threat.
Pursuant to proposals made by Governor Huey P. Long, the Louisiana Constitution was amended to provide an exemption from state, parish and special ad valorem property taxes for the bona fide homestead of each head of a family, up to an assessment of $2,000. The amendment authorized the legislature to create a fund (the Property Tax Relief Fund) with revenues derived from other state taxes, and to use this fund to reimburse the parochial governments for the sums they lost by reason of the homestead exemption. In 1946 an additional Constitutional Amendment, La. Const. Art. X, § 4, ¶ 9(b), increased the exemption for veterans of World War II to $5,000. The same benefits were later accorded veterans of the Korean War.
At the same time that it proposed the constitutional amendment, the legislature created the PTR Fund, La. Act 54 of 1934, now LSA-R.S. 39:251 et seq., so that the constitutional amendment would be implemented immediately upon its ratification by the voters. The money in the PTR Fund was derived from three taxes: (1) the state income tax, La. Act 21 of 1934, now LSA-R.S. 47:21; (2) the public utility tax, La. Act 13 of 1934, LSA-R.S. 47:1001; and (3) the alcoholic beverage tax, La. Act 15 of 1934, LSA-R.S. 26:241.
Thus, Louisiana adopted a plan of revenue sharing whereby the state collected income and excise taxes at uniform statewide rates and used them to assist local governments. The constitutional provision and the implementing legislation purported to base the measure of revenue sharing on the amount of revenue each local government unit lost by virtue of the homestead exemption.
The Parish of Orleans and the City of New Orleans were treated differently from other local government units in one significant regard: since that City *900 and Parish were coterminous, the reimbursement to Orleans was for losses from both city and parish ad valorem taxes.
There are constitutional or statutory limitations on the total taxes that may be levied by each local government body. The limitations with respect to the Parish of Orleans and the City of New Orleans are set by the Louisiana Constitution. The total millage that may be collected by that City and Parish and any governmental agency providing direct service to it is 40.5 mills.[1] In all other parishes, while the general alimony and other general parochial taxes are limited, the tax rate on particular properties can be increased considerably by creating special districts for special governmental purposes, such as schools, roads, drainage, or sewerage. Thus the tax rate is not uniform parishwide in any of Louisiana's other 63 parishes, but a fair idea of the differing parochial rate structures can be gained by examining data compiled in a report made by the nonpartisan Louisiana Public Affairs Research Council, Property Tax Inequities, October, 1971, p. 12, which was received as evidence, pursuant to stipulation. This study shows rates in representative districts in four other parishes to be as follows:
Caddo 42 mills
East Baton Rouge 49 mills
Jefferson 109 mills
Rapides 87 mills
Because the existing tax rates in each parish were unequal when the PTR Fund was created, the amount of reimbursement to each parish was unequal. But each parish could substantially eliminate these differences because it had the right to levy new taxes, and, in actual practice, to increase the ratio of assessment to fair market value, thus increasing its reimbursement from the PTR Fund. As time passed, the inequities were, however, magnified rather than reduced because some parishes with already high tax rates created even more special districts and imposed even higher tax burdens while, at the same time, manipulating assessments on homestead properties.
To prevent further aggravation of the situation, the Louisiana Legislature adopted Act 465 of 1956, which limited use of the PTR Fund to reimbursement for revenues lost by virtue of the exemption of property from taxes authorized on a parishwide basis, taxes on a district basis for certain restricted purposes, and to other taxes only if they had been authorized prior to the effective date of that statute, August 1, 1956. Other limitations were placed on the kinds of taxes enacted after the statute became effective that would be eligible for reimbursement from the Fund.
Inequality exists not only with respect to tax rates. As everyone knows and the state readily admits, property is assessed on different standards in the various parishes.
Louisiana does not have an effective statewide assessment procedure. Property is assessed by parochially elected assessors (save in New Orleans where *901 assessors are elected by districts). There is some review by the Louisiana State Tax Commission, La.Const. Art. X, § 2, La.R.S. 47:1988-90, of the assessment of other types of property but there appears to be no real effort to equalize local assessments of homesteads.
Thus, although Louisiana law requires property to be assessed at its actual cash value, La.R.S. 47:1957, the departure of practice from law is demonstrated by the PAR Study. It revealed that in 1970 parishwide average assessments ranged from 5.7% of market value to 24.5% of market value.[2]
The homestead exemption program disposes some assessors to assess all homes at approximately the exemption level, be it $2,000 or $5,000, thus creating a high assessment ratio for low priced homes and a lower assessment ratio for high priced homes. Once homeowners in a given parish are satisfied that few homes will be assessed at much above the exemption level, there is a further impetus for the locality to impose a high millage rate because these property taxes will be substantially subsidized by the state at little or no cost to the homeowner.
The combined action of these factors produces an inequitable distribution of state funds. In Jefferson Parish in 1969 urban residential property was assessed on the average at 8.1% of its retail sale value, and the parish as a whole had only 6.4% of the state's total residential assessments. But it received 17.3% of the total PTR Fund in that year. Caddo Parish, with a residential assessment ratio of 25.3%, received only 7.9% of the PTR Fund.
The 1956 statute reduced the likelihood of the creation of further disparities, but it also prevented the parishes that had not created certain types of special tax districts from doing so.
The result of the pattern thus created is that the PTR Fund reimburses Orleans Parish by paying it $96.67 per homestead exemption while, for each such exemption, it pays Jefferson Parish $179.76, East Feliciana $35.15, and St. Bernard Parish $198.20. The distribution to these four parishes illustrates an inequality that applies to almost every parish.
II. LEGAL PRINCIPLES
There are no precedents applying the guarantee of equal protection to state revenue sharing plans. But the proscription of discriminatory state action is sweeping in its terms: "No State . . . shall deny to any person within its jurisdiction the equal protection of the laws." The clause reaches the exercise of state power, however manifested, whether exerted directly or through political subdivisions. Avery v. Midland County, 1968, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45. It forbids not only designed discrimination but all government action that has arbitrary impact even though the result may not originally have been intended by the governmental plan. Norwalk CORE v. Norwalk Redevelopment Agency, 2 Cir. 1968, 395 F.2d 920.
The presumption of reasonableness is of course with the state. Metropolitan Casualty Ins. Co. v. Brownell, 1935, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070. Unless it can be shown that the state's failure to treat all alike has no rational basis, the state's action must be sustained. Id., McGowan v. Maryland, 1961, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393. (We leave to one side situations involving a state restriction on the exercise of a constitutional right; and the requirement that, in such cases, the state must show a compelling interest to justify its action. Shapiro v. *902 Thompson, 1969, 394 U.S. 618, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600.)
Fifty years ago, in holding valid another early type of state revenue sharing, the Supreme Court, in Dane v. Jackson, 1921, 256 U.S. 589, 599, 41 S.Ct. 566, 568, 65 L.Ed. 1107, said:
[A] state tax law will be held to conflict with the Fourteenth Amendment only where it proposes, or clearly results in, such flagrant and palpable inequality between the burden imposed and the benefit received, as to amount to the arbitrary taking of property without compensation`to spoliation under the guise of exerting the power of taxing.'
A system of state taxation is valid if there is "any conceivable state of facts which would support it." Carmichael v. Southern Coal & Coke Co., 1937, 301 U.S. 495, 509, 57 S.Ct. 868, 872, 81 L.Ed. 1245.
"The Equal Protection Clause relates to equality between persons as such rather than between areas." Salsburg v. State of Maryland, 1953, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281. It does not mandate geographic uniformity. Thus, it has been held that a state may prescribe one rule of law for one urban county or parish and another for the rest of the state. See Missouri v. Lewis, 1879, 101 U.S. 22, 31, 25 L.Ed. 989. See also Griffin v. County School Board of Prince Edward County, 1964, 377 U.S. 218, 230, 84 S.Ct. 1226, 12 L.Ed. 2d 256.
If, however, arbitrary discrimination is demonstrated, the mandate of the Equal Protection Clause is applicable without regard to the manner by which the discrimination is achieved or the nature of the interest affected. Thus the Equal Protection Clause has been applied to state action dealing with aliens,[3] birth control,[4] crimes,[5] failure to provide equal municipal services,[6] housing and rent acts,[7] illegitimates,[8] insanity,[9] minors,[10] revenue payments,[11] sex,[12] sterilization,[13] voting rights,[14] and welfare payments.[15]
"While distinctions based on geographical areas are not, in and of themselves, violative of the Fourteenth Amendment, . . ., a state must demonstrate, if it wishes to establish different classes of property [for tax purposes] based upon different geographical localitiese. g., rural areas as opposed to urban areasthat the classification is neither capricious nor arbitrary but rests upon some reasonable consideration of difference or policy. State Board of Tax Comm'rs of Indiana v. Jackson, 283 U.S. 527, 537, 51 S.Ct. 540, 75 L.Ed. 1248 (1931)." Weissinger v. Boswell, M.D.Ala.1971, 330 F.Supp. *903 615; compare Griffin v. County School Board of Prince Edward County, supra.
The Equal Protection Clause, therefore, reaches all state actions. Cooper v. Aaron, 1958, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, 19. It assures equality not only in the imposition but also in the distribution of state revenues. Hess v. Mullaney, 1954, 213 F.2d 635, 15 Alaska 40. Even largesse must be dispensed with an even hand. Shapiro v. Thompson, 1969, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600. Tax relief funds, designed to assist localities by making funds raised by state taxes available to local governmental agencies, must be administered by statute and in practice so as to avoid that governmental favoritism to one person over another that the Fourteenth Amendment was designed to proscribe. The failure to accord equal protection to all persons may not be justified by the sophistry that the receipt of funds from the legislature is a "privilege" and not a "right." See Sherbert v. Verner, 1963, 374 U.S. 398, 404, 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965.
III. WHEREIN THE DENIAL OF EQUAL PROTECTION LIES
The purpose of the PTR Fund, when enacted, was to reimburse local governmental authorities for tax revenues they would have collected but for the existence of the Louisiana homestead exemption. Were statewide assessment on an equal basis the rule, it would be accurate to assume that a state law exempting homesteads would cause a parish to lose revenue equal to its millage multiplied by the amount of assessed value of the homestead exempt from taxation. In such a situation, the state would merely be repaying what it had caused each parish to lose by enacting the homestead exemption.
Before the enactment of the PTR Fund legislation, the vagaries of local tax practices were largely a matter of local concern; a parish that assessed properties at a low ratio of value merely affected its own revenues and the amount that the state collected on the state ad valorem tax. After creation of the PTR Fund, the fact that state taxes were levied on the same assessment was of even less concern to local homeowners so long as the state's own homestead exemption applied. However, the redistribution of state revenues through the PTR Fund, based only on the actual homestead assessment in each parish multiplied by that parish's millage rate, magnified the importance of the varying level of assessment from parish to parish in determining what each received from the state.
It was possible to increase the parish share of PTR Fund payments, without simultaneously increasing the tax burden on local homeowners, by raising the millage rate on all property while lowering the assessments on property not occupied as a homestead and raising the assessments of homesteads to approach the allowable homestead exemption. The evidence indicates that this was in fact done.
The millage rate in a parish does not now necessarily reflect the severity of that locality's tax burden. At least in some parishes it reflects the degree to which the local authorities have manipulated the several variables determining the tax burden imposed on its residents. The millage-times-assessment-any-basis-you-choose formula for distributing state funds is, in a word, arbitrary. It establishes a rule for distributing state funds that is no rule at all.
The state did nothing to prevent this until 1956. When it acted then, it did not relieve inequality. Instead it became further responsible for the disparate treatment of the residents of different parishes by imposing limitations on the ability of those parishes in a less favorable position to improve their situation.
No reason has been advanced, nor any governmental policy argued, that would support the reimbursement of each Louisiana parish on the basis now in effect. It has not been suggested that the amounts now being paid to any parish *904 are based on its real loss of revenue resulting from the homestead exemption, or on state policy based on any rational geographical or demographic classification, or on any other basis that might constitute coherent governmental policy. Louisiana's appropriations from its PTR Fund are based on no discernible attempt either to classify parishes or even to deal with them on an ad hoc basis one by one.
Louisiana's pattern denies to the homestead owners in Orleans Parish and to those who there pay taxes on income and on alcoholic beverages the same treatment the state accords to similarly situated taxpayers and homestead owners in other parishes; the pattern thus affects adversely the benefits Orleans' parochial and municipal government can afford these citizens. The taxpayers thus discriminated against have standing to sue. Fuller v. Volk, 3 Cir. 1965, 351 F.2d 323; Poindexter v. Louisiana Financial Assistance Com., D.C.La.1966, 258 F.Supp. 158; Reynolds v. Wade, 1957, 249 F.2d 73, 17 Alaska 401. See also Everson v. Board of Education, 1947, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711. Compare the cases concerning the standing of federal taxpayers to challenge federal appropriations. Frothingham v. Mellon, 1923, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; Flast v. Cohen, 1968, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947. The Louisiana courts have recognized the standing of a Louisiana taxpayer to challenge a state appropriation or expenditure on the basis that it is unconstitutional. Carso v. Board of Liquidation, 1944, 205 La. 368, 17 So.2d 358; Graham v. Jones, 1941, 198 La. 507, 3 So.2d 761. See also Parish of Jefferson v. La. Dept. of Corrections, 1971, 259 La. 1063, 254 So.2d 582, Justice Tate concurring.
We express no opinion concerning the validity of a legislative plan basing appropriations on standards employing geographic, population, or other systematic classifications. It should be unnecessary to distinguish the inequality arising in this situation from the disparity that might result from annual or biennial legislative appropriations to local areas. Such appropriations are not based on a continuing formula. The legislature perforce reviews its action with each appropriation; further, appropriations generally do not continue in effect from one session to another. Those entities receiving less can make a special legislative appeal, and they are afforded access to the legislative process every session to seek change.
In the area now under challenge, the cumulative thrust of Louisiana's trident of constitution, statute and practice imposes and preserves inequality. The fact that the 1956 statute can be repealed does not shield the present pattern of inequality; every unconstitutional law can be repealed and every unconstitutional state practice altered by state action. When a state's existing law or practice is properly challenged, it is the duty of the federal courts to measure that action against the Fourteenth Amendment.
Louisiana's practice is not a matter of variation in state taxation, the manner by which the state raises its funds. The discrimination lies in the arbitrary inequality of the distribution of state funds. 28 U.S.C. § 1341 is inapplicable here because the suit does not seek to enjoin the collection of taxes; it challenges only the unequal distribution of state funds. Nor is the question merely how assessments are made; adequate remedy to challenge assessment procedure is available in state courts. Bussie v. Long, 5 Cir. 1967, 383 F.2d 766. Assessment practices contribute to the inequality but they do not alone create it. Were Louisiana to equalize all assessments statewide tomorrow, the discrimination would merely be reduced, not eliminated.
The PTR Fund discrimination against Orleans Parish results from the interaction between a wholly arbitrary albeit not on its face discriminatory method of distributing state funds, and other state policies that may be based on solid constitutional foundation. *905 We consider here only the combination of unequal assessments, limitations on the taxing power of a local government, and facially non-discriminatory payment of state revenues to localities based upon prevailing local millage rates, and we conclude that this scheme of payment is constitutionally infirm as it is applied in fact. We do not rule today upon the validity of the 1956 Act or the 40.5 mill limitation upon the Parish of Orleans when either of those measures is viewed in isolation. There are many formulas that the state may adopt to provide a rational basis for distributing PTR Funds. It is for the Legislature of Louisiana to determine what Louisiana's policy should be. If the program it adopts should require amendment of Louisiana's constitution, it is for the legislature to propose such amendments as may be necessary, for submission to Louisiana's voters. Federal courts may, and should, intervene only if the state violates the federal constitution.
For these reasons this court declares unconstitutional the use of a formula for distributions from the PTR Fund based upon millage while the conditions stipulated by the parties and the 1956 statute prevail.
The scheduled payments from the PTR Fund for October 15, 1972 are enjoined. The defendants are to submit to the court by September 1, 1972 a PTR Fund distribution plan that will not violate the Equal Protection Clause.
The decision in this case will apply only prospectively. Of course it will not affect the validity of any securities that may have been sold or issued prior to this decision. The parties will consider this in connection with the proposed distribution plan.
When submitted, the plan will be noticed for hearing at an appropriate date.
E. Gordon West, J., dissents, for reasons set forth in dissenting opinion.
E. GORDON WEST, District Judge (dissenting):
The majority opinion concludes that the manner in which the State of Louisiana distributes the money in its Property Tax Relief Fund to its political subdivisions (parishes) violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. I disagree, for the specific reason that I do not believe the State of Louisiana is governed by the Fourteenth Amendment in the manner in which it distributes funds to its political subdivisions. It must be remembered that none of the money in question is distributed to individuals. All individuals in the State are treated equally insofar as receiving the $2,000 or $5,000 homestead exemption is concerned. No one contests this fact. But when the State reimburses the political subdivisions (not the individuals) for the income the parish has lost because of the homestead exemption pursuant to a formula duly passed and approved by the Louisiana Legislature, the majority opinion concludes that somehow the equal protection clause of the Fourteenth Amendment has been violated. It is interesting to note that the majority opinion does not conclude that the Louisiana constitutional limitation on the taxing power of Orleans Parish is unconstitutional, nor does it conclude that the legislative formula by which the funds are disbursed is necessarily unconstitutional. It simply says that the "scheme of payment is constitutionally infirm as it is applied in fact." But the majority cites no authority in law for saddling the State with the equal protection clause of the Fourteenth Amendment when it distributes funds to its political subdivisions. Indeed they cite ample authority to the contrary. For example, the majority opinion cites the case of Hess v. Mullaney, 213 F.2d 635, 15 Alaska 40 (1954) as authority for their statement that "it [the Fourteenth Amendment] assures equality not only in the imposition but also in the distribution of state revenues." But Hess was dealing with tax levies assessed against individuals at different rates according to whether they lived inside or outside of certain municipalities. The *906 Court, in fact, upheld that taxing procedure and said:
"It is not unusual for states after collecting taxes on a state-wide basis to make distribution of revenues to municipal corporations, particularly in the case of school districts. No requirements of uniformity or of equal protection of the law limit the power of a legislature in respect to allocation and distribution of public funds." (See Gen. Amer. Tank Car Corp. v. Day, 270 U.S. 367, 372, 46 S.Ct. 234, 70 L.Ed. 635; Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 521, 522, 57 S.Ct. 868, 81 L.Ed. 1245.)
The majority opinion next cites State Board of Tax Commissioners of Indiana v. Jackson, 283 U.S. 527, 51 S.Ct. 540, 75 L.Ed. 1248. But in that case, the Supreme Court said:
"The principles which govern the decision of this cause are well settled. The power of taxation is fundamental to the very existence of the government of the states. The restriction that it shall not be so exercised as to deny to any the equal protection of the laws does not compel the adoption of an iron rule of equal taxation, nor prevent variety or differences in taxation, or discretion in the selection of subjects, or the classification for taxation of properties, businesses, trades, callings, or occupations. * * * The fact that a statute discriminates in favor of a certain class does not make it arbitrary, if the discrimination is founded upon a reasonable distinction, * * * or if any state of facts reasonably can be conceived to sustain it. * * * As was said in Brown-Forman Co. v. Kentucky, supra, at page 573 of 217 U.S. [563], 30 S.Ct. 578, 580 [, 54 L.Ed. 883]:
"`A very wide discretion must be conceded to the legislative power of the state in the classification of trades, callings, businesses, or occupations which may be subjected to special forms of regulation or taxation through an excise or license tax. If the selection or classification is neither capricious nor arbitrary, and rests upon some reasonable consideration of difference or policy, there is no denial of equal protection of the law.'"
Certainly there was nothing before the Court in this case to show that the formula by which the funds are distributed is either capricious or arbitrary, and there was certainly nothing to show that the State in any way abused its "very wide discretion."
And in Salsburg v. State of Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281, as stated in the majority opinion, the Supreme Court of the United States said:
"The Equal Protection Clause relates to equality between persons as such rather than between areas." (Emphasis added.)
Also, in Missouri (Bowman) v. Lewis, 101 U.S. 22, 25 L.Ed. 989, the Supreme Court, recognizing the fact that the Fourteenth Amendment does not require equal protection as between geographical areas, said:
"The 14th Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies. Great diversities in these respects may exist in two States separated only by an imaginary line. On one side of this line there may be a right of trial by jury, and on the other side no such right. Each State prescribes its own modes of judicial proceeding. If diversities of laws and judicial proceedings may exist in the several States without violating the equality clause of the 14th Amendment, there is no solid reason why there may not be such diversities in different parts of the same State. A uniformity which is not essential as regards different States cannot be essential as regards different parts of a State, * * *"
The majority opinion does not cite a single case wherein it was held that the equal protection clause of the Fourteenth Amendment was applicable to a situation even remotely the same as that involved *907 here. The cases they cite simply have no application to a situation involving distribution of funds by a state to its political subdivisions as distinguished from a distribution to individuals. For example, the case of Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45, cited in the majority opinion, involved reapportionment where the thing at issue was the power of each individual's vote. Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920 (CA 2-1968), deals with an urban renewal projectinvolving individual rights. But even in that case the Court said:
"The courts will not, it is clear, entertain a suit by one who does not have some personal stake in the outcome of the litigation."
The Court, in Norwalk, then cited Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, wherein the Supreme Court refused to allow a taxpayer to challenge the constitutionality of a statute where plaintiff's claimed interest in the outcome was simply that "the effect of the appropriation complained of will be to increase the burden of future taxation and thereby take her property without due process of law." The burden of future taxation was held to be essentially a matter of public not individual concern.
The majority opinion states that the equal protection clause reaches all state action and then cites several cases in support of that assertion. But that assertion is not correct, and it is not supported by the cited cases. Every case cited deals with action of the state aimed directly at individuals. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5, dealt with integration of public schools and simply said that where individual agents of the state acted, their actions would be considered state action. It had nothing to do with whether or not action by the state in connection with its political subdivisions, as distinguished from actions directed only at individuals, was subject to proscription of the Fourteenth Amendment. The majority opinion then states that "Even largesse must be dispensed with an even hand" and they cite Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600, as authority. But Shapiro dealt only with the question of dispensing welfare directly to individuals. It had nothing to do with the distribution of funds by a state to its political subdivisions. Finally, the majority says that "the failure to accord equal protection to all persons may not be justified by the sophistry that the receipt of funds from the legislature is a `privilege' and not a `right.'" And they cite Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965. But Sherbert dealt with the individual right to religious belief, and did not address itself to the question of whether or not a state is constitutionally required to distribute funds equally to all of its political subdivisions.
The majority simply begins with the assumption that if one parish somehow ends up with a larger share of the Property Tax Relief Fund than another parish, there is bound to be something constitutionally wrong, and then they proceed to bend and twist the jurisprudence to fit the conclusion that a Fourteenth Amendment prohibition has been violated. It seems to me that it would be more logical, more equitable, and more legally correct to simply cite the Tenth Amendment to the United States Constitution, which says:
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"
and then conclude, as you must after an examination of the jurisprudence, that no where has the Federal Government nor the Federal Courts been given the authority to dictate to the States how they will distribute their tax resources among their various political subdivisions. On the contrary, a fair conclusion would be that the law and the jurisprudence require exactly the opposite. The Louisiana Legislature meets every year. Under current apportionment the people are represented as nearly as possible on a one man one vote basis. The *908 question of distribution of state funds to the parishes may be brought up for review and change whenever the duly elected representatives of the people wish to do so. The matter of distribution of state funds to political subdivisions is simply one for the states to resolve as they see fit and not a matter to be interfered with by the Federal Courts.
And finally, I must note that the majority is not satisfied with holding the present plan of distribution invalid. They now take it upon themselves to order the state to submit a plan for distribution of the funds in the Property Tax Relief Fund for approval by this Court. I suggest that even if the Court finds the present plan of distribution to be invalid, it has no right to do anything but so hold. It has no authority in law to order the defendants to prepare or submit any plan whatsoever. At most it can enjoin the defendants from using the present plan and that is all.
For these reasons I respectfully dissent and would hold that there is no constitutional infirmity in the present plan of distribution of the Louisiana Property Tax Relief Fund.
NOTES
[1] As to the City of New Orleans, the taxing authority is limited as follows:
Constitutional or Maximum
Tax Statutory Provision Rate
City general alimony tax, Art. XXIV, § 24 and § 25.1 7 mills
City bond redemption, Act 110 of 1890 10 mills
Sewage & Water Board, Art. XXIV, § 23.1 2 mills
Sewage & Water Board, Art. XXIV, § 23.2 3 mills
Police and Fire, Art. XXIV, § 25 2 mills
School Board, Art. XII, § 16 13 mills
Levee Board, Act 4, 1916, as amended, Act 575 of 1966:
Art. XIV, § 24 2½ mills
Police & Fire, Art. XXIV, § 25 1 mill
___________
Total 40.5 mills
[2] Within the parishes themselves the range of assessments was from 1.0% of actual value to 550.0% in Red River Parish, and from 0.8 to 14.6% in Allen Parish. This resulted in part from the fact that, within the parishes themselves, improved urban real estate and homesteads less valuable are both usually assessed at a higher proportion of market value than is rural or unimproved property.
[3] Graham v. Richardson, 1971, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534.
[4] Eisenstadt v. Baird, 1972, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274.
[5] Tate v. Short, 1971, 401 U.S. 395, 91 S. Ct. 668, 28 L.Ed.2d 130; Mayer v. City of Chicago, 1971, 404 U.S. 189, 92 S.Ct. 410, 30 L.Ed.2d 372; Roberts v. LaVallee, 1967, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed. 2d 41.
[6] Hawkins v. Town of Shaw, 5 Cir. 1971, 437 F.2d 1286.
[7] Reitman v. Mulkey, 1967, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830.
[8] Levy v. Louisiana, 1968, 391 U.S. 68, 88 S.Ct. 1509, 20 L.Ed.2d 436.
[9] Specht v. Patterson, 1967, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326.
[10] In re Gault, 1967, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527.
[11] Cipriano v. City of Houma, 1969, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647; City of Phoenix v. Kolodziejski, 1970, 399 U.S. 204, 90 S.Ct. 1990, 26 L.Ed.2d 523.
[12] Reed v. Reed, 1971, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225.
[13] Skinner v. Oklahoma, 1942, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655.
[14] Williams v. Rhodes, 1968, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24, Hadley v. Jr. College Dist. of Metro. Kansas, 1967, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45.
[15] Shapiro v. Thompson, 1969, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600; Sailer v. Leger, 1971, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534.
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235 P.3d 800 (2010)
Ronald and Lana RENFRO, a marital community, and Ronald and Lana Renfro, in their capacities as Trustees of the Renfro Family Trust; and the Renfro Family Trust, a Washington Trust, Appellants,
v.
Paraminder KAUR and Jane Doe Kaur; Mehar Singh Sandhu and Jane Doe Sandhu; Sukdev Singh Hothi and Jane Doe Hothi; Respondents.
Santokh Ram and Jane Doe Ram, Defendants.
No. 64935-3-I.
Court of Appeals of Washington, Division 1.
May 17, 2010.
Publication Ordered August 16, 2010.
*801 Kenneth Wendell Masters, Wiggins & Masters PLLC, Bainbridge Island, WA, for Appellants.
Carmen R. Rowe-Hoogkamer, Jay A. Goldstein Law Office PLLC, Olympia, WA, for Respondents.
LAU, J.
¶ 1 In a transaction for the sale of residential real property, RCW 64.06.020 requires the seller to deliver to the buyer a completed seller statement that discloses the property's condition. The seller's failure to comply, unless the buyer expressly waives the right, entitles the buyer to rescind the contract. After Sukdev Hothi, Mehar Sandhu, and Paraminder Kaur (buyers) and Ronald and Lana Renfro (sellers) signed a real estate purchase and sale agreement, the buyers rescinded the contract due to the sellers' failure to deliver the disclosure statement. The sellers sued to enforce the contract. We affirm the trial court's order granting summary judgment to the buyers and awarding attorney fees. And we remand to the trial court to determine the buyers' fees and costs incurred on appeal.
FACTS AND PROCEDURAL HISTORY
¶ 2 Our review of the record shows the following undisputed facts. On September 5, 2006, Sukdev Hothi, Mehar Sandhu, and Paraminder Kaur (buyers) entered into a real estate purchase and sale agreement (the contract) with Ronald Renfro and Lana Renfro (the sellers)[1] for residential property located in Pierce County. The contract required the buyers to make three earnest money payments.
*802 Earnest Money. As earnest money, Purchasers shall deliver to Seller the following amounts at specified milestones: TWENTY FIVE THOUSAND DOLLARS ($25,000.00) upon signing of this document; ONE HUNDRED SEVENTY FIVE THOUSAND DOLLARS ($175,000.00) no later than thirty (30) days after signing this document; and FIFTY THOUSAND ($50,000.00) on or before six (6) months after the signing of this document. THIS EARNEST MONEY IS NON-REFUNDABLE
While the contract does not specifically mention the chapter 64.06 RCW seller disclosure statement, it contained the following provision:
Other Conditions:
This Agreement does not include such other and further documentation and disclosure forms as may be required under law for the purchase and sale of real estate in the state of Washington.
By executing this Agreement, Purchasers and Sellers accept all of its terms and conditions.
¶ 3 Sometime after the buyers made the first and second earnest payments due under the contract, they claimed the sellers had misrepresented the lot size and requested to renegotiate the purchase price. Then on November 7, 2006, the buyers gave the sellers written notice of their intent to rescind the contract based on the sellers' lot size misrepresentation and failure to provide the statutory disclosure statement. This notice also reiterated that the buyers were "still open to purchasing the property if the Sellers are willing to reduce the price by twenty-five percent." On February 7, 2007, the buyers' counsel wrote to the sellers that they were rescinding the contract and demanded the return of their earnest money payments.
My clients therefore hereby exercise their right, in their sole discretion, to rescind the purchase and sale contract under RCW 64.06.030 for the persistent failure to provide the requested and required property disclosures. This requires an "immediate return" of all deposits, namely the $200,000.
On February 22, 2007, the sellers provided the buyers with the statutory disclosure statement. When the third earnest money installment came due on March 5, the buyers did not make the payment.
¶ 4 Consequently, on May 14, 2007, the sellers filed a complaint alleging breach of contract and anticipatory breach of contract. They also recorded the purchase and sale agreement with the Pierce County auditor on the same day. Following discovery, the buyers moved for summary judgment on June 13, 2008, and noted the motion hearing for July 11, 2008. Due to schedule conflicts, the hearing was continued twice and finally scheduled for September 26, 2008. In the meantime, the sellers deposed the buyers the week before the summary judgment hearing. As a result, the deposition transcripts were unavailable by the hearing date and the sellers moved unsuccessfully for another continuance. Despite the buyers' motion to strike, the trial court considered an affidavit by the sellers' counsel summarizing the deposition testimony. The court granted summary judgment in the buyers' favor and denied the sellers' reconsideration motion, which included the previously unavailable deposition transcripts. And it entered a judgment against the sellers for the earnest money amount paid, interest accrued, attorney fees, and costs. This appeal followed.
ANALYSIS
Standard of Review
¶ 5 When reviewing an order granting summary judgment, we engage in the same inquiry as the trial court, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wash.2d 493, 501, 115 P.3d 262 (2005). Summary judgment is appropriate only where there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c); Hearst, 154 Wash.2d at 501, 115 P.3d 262. "In the contract interpretation context, `[s]ummary judgment is not proper if the parties' written contract, viewed in light of the parties' other objective manifestations, has two "or more" reasonable but competing *803 meanings.'" Go2Net, Inc. v. C I Host, Inc., 115 Wash.App. 73, 83, 60 P.3d 1245 (2003) (quoting Hall v. Custom Craft Fixtures, Inc., 87 Wash.App. 1, 9, 937 P.2d 1143 (1997)). Interpreting the provisions of a contract is a question of law when the interpretation does not depend on the use of extrinsic evidence or there is only one reasonable inference from the extrinsic evidence. Lynott v. Nat'l Union Fire Ins. Co., 123 Wash.2d 678, 684, 871 P.2d 146 (1994). Similarly, "[w]hether a waiver has occurred is a question of fact, unless reasonable minds could reach but one conclusion." Harmony at Madrona Park Owners Ass'n v. Madison Harmony Dev., Inc., 143 Wash.App. 345, 361, 177 P.3d 755, review denied, 164 Wash.2d 1032, 196 P.3d 139 (2008).
Waiver of Statutory Disclosures
¶ 6 Although the sellers raise several challenges to the trial court's summary judgment order, the dispositive issue is whether the buyers "expressly waived the right to receive the disclosure statement." RCW 64.06.020.[2] According to the sellers, the contract's "Other Conditions" provision, together with extrinsic evidence of the parties' intent, raises disputed fact issues about whether the buyers waived their disclosure right. The buyers respond that the contract contains no express waiver term and the sellers' extrinsic evidence impermissibly modifies an unambiguous clause.
¶ 7 "`The touchstone of contract interpretation is the parties' intent.'" Go2Net, 115 Wash.App. at 83-84, 60 P.3d 1245 (quoting Tanner Elec. Coop. v. Puget Sound Power & Light Co., 128 Wash.2d 656, 674, 911 P.2d 1301 (1996)). Washington courts follow the objective manifestation theory of contracts, looking for the parties' intent as objectively manifested rather than their unexpressed subjective intent. Hearst, 154 Wash.2d at 503, 115 P.3d 262. Thus, we consider only what the parties wrote, giving words in a contract their ordinary, usual, and popular meaning unless the agreement as a whole clearly demonstrates a contrary intent. Hearst, 154 Wash.2d at 504, 115 P.3d 262.
¶ 8 "[E]xtrinsic evidence is admissible to aid in ascertaining the parties' intent `where the evidence gives meaning to words used in the contract.'" In re Marriage of McCausland, 129 Wash.App. 390, 402, 118 P.3d 944 (2005) (quoting Hollis v. Garwall, Inc., 137 Wash.2d 683, 695, 974 P.2d 836 (1999)), rev'd on other grounds, 159 Wash.2d 607, 152 P.3d 1013 (2007). And we recently reiterated, "[e]xtrinsic evidence may be considered regardless of whether the contract terms are ambiguous." King v. Rice, 146 Wash.App. 662, 671, 191 P.3d 946 (2008). But extrinsic evidence may not be used "`(1) to establish a party's unilateral or subjective intent as to the meaning of a contract word or term; (2) to show an intention independent of the instrument; or (3) to vary, contradict, or modify the written word.'" McCausland, 129 Wash.App. at 402, 118 P.3d 944 (quoting W. Wash. Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 102 Wash.App. 488, 495, 7 P.3d 861 (2000)).
¶ 9 In 1994, the Washington legislature adopted chapter 64.06 RCW. It requires sellers of improved residential real property to deliver to buyers a completed seller disclosure statement unless the buyer has expressly waived that right.
In a transaction for the sale of improved residential real property, the seller shall, unless the buyer has expressly waived the right to receive the disclosure statement under RCW 64.06.010, or unless the transfer is otherwise exempt under RCW 64.06.010, deliver to the buyer a completed seller disclosure statement in the following *804 format and that contains, at a minimum, the following information: ....
RCW 64.06.020(1) (emphasis added). And "[u]nless the buyer has expressly waived the right to receive the disclosure statement," a seller of improved residential property must deliver to the buyer a statement containing disclosures prescribed by the statute within five days of the purchase and sale agreement. RCW 64.06.030. "Upon receipt of the disclosure statement, the buyer has a three day period within which to exercise the right to rescind the agreement and obtain immediate return of earnest money." Almanza v. Bowen, 155 Wash.App. 16, 20, 230 P.3d 177 (2010); RCW 64.06.030. If the buyer fails to timely deliver the disclosure statement, the period for the buyers right of rescission is extended.
If the seller in a residential real property transfer fails or refuses to provide to the prospective buyer a real property transfer disclosure statement as required under this chapter, the prospective buyer's right of rescission under this section shall apply until the earlier of three business days after receipt of the real property transfer disclosure statement or the date the transfer has closed, unless the buyer has otherwise waived the right of rescission in writing. Closing is deemed to occur when the buyer has paid the purchase price, or down payment, and the conveyance document, including a deed or real estate contract, from the seller has been delivered and recorded. After closing, the seller's obligation to deliver the real property transfer disclosure statement and the buyer's rights and remedies under this chapter shall terminate.
RCW 64.06.040(3) (emphasis added).
¶ 10 The sellers first argue that language in paragraph 21 of the contract establishes the buyers' express waiver of the disclosure statement requirement.
21. Other Conditions:
This Agreement does not include such other and further documentation and disclosure forms as may be required under law for the purchase and sale of real estate in the state of Washington.
"Waiver is the intentional abandonment or relinquishment of a known right, and intent to waive must be shown by unequivocal acts or conduct which are inconsistent with any intention other than to waive." Madison, 143 Wash.App. at 361, 177 P.3d 755. Under this well-accepted principle, paragraph 21 does not establish express waiver. It contains neither express or implied waiver language nor any reference to chapter 64.06 RCW. Rather, it unambiguously states, "This Agreement does not include such other and further documentation and disclosure forms as may be required under law," thus underscoring that disclosures are both required and not waived. (Emphasis added.) Because RCW 64.06.020(3) provides, "The seller disclosure statement ... shall not be considered part of any written agreement between the buyer and seller of residential property," it is not surprising that the contract contained no disclosure statement.
¶ 11 Nevertheless, the sellers assert that defendant Hothi's deposition testimony establishes the parties' intent that paragraph 21 constitute a disclosure waiver. Hothi testified that he understood paragraph 21 to "mean there's no need [for] any other papers.... This mean[s] both parties accept this agreement." But there is no evidence (and the sellers point to none) that Hothi ever communicated this understanding to the sellers or that they understood paragraph 21 to constitute a disclosure waiver. As such, Hothi's testimony impermissibly expresses a unilateral, subjective view of one party's intent that cannot be considered when interpreting paragraph 21. See Hearst, 154 Wash.2d at 503-04, 115 P.3d 262; Ferrellgas, 102 Wash.App. at 495, 7 P.3d 861 (2000) (extrinsic evidence cannot be used "to establish a party's unilateral or subjective intent as to the meaning of a contract word or term"). But even if considered, Hothi's subjective belief about the meaning of paragraph 21 falls well short of demonstrating an "intentional abandonment or relinquishment of a known right." Madison, 143 Wash.App. at 361, 177 P.3d 755.
¶ 12 Finally, the sellers argue that the buyers orally waived their right to receive the disclosure statement. According to Ronald Renfro's affidavit,
*805 [d]efendants verbally told me, while physically inspecting the property, that they would not need a disclosure statement, that they were willing to take the property "as is" .... Defendants insisted on including language in the agreement waiving any and all disclosure documents for the closing of this transaction.
But the sellers cite no authority or offer any rationale to support the proposition that oral statements satisfy the "express waiver" requirement of chapter 64.06 RCW. And if the seller has not provided a disclosure statement, the buyer may rescind "unless the buyer has otherwise waived the right of rescission in writing." RCW 64.06.040(3) (emphasis added). Furthermore, whether the "Defendants insisted on including language in the agreement waiving ... disclosure documents" is immaterial as the contract includes no waiver term and extrinsic evidence may not be used "to show an intention independent of the instrument." Ferrellgas, 102 Wash.App. at 495, 7 P.3d 861.
¶ 13 We conclude that the trial court properly granted the buyers' summary judgment motion because no material fact issues exist and the buyers are entitled to judgment as a matter of law on the express waiver question.
Depositions
¶ 14 The sellers next argue that the trial court erred by refusing to postpone the summary judgment hearing to consider the buyers' depositions and to consider these depositions on reconsideration. Specifically, they argue, "[T]he trial court's Order Denying Reconsideration unequivocally refused to reconsider and left the prior summary judgment ruling `unchanged.' Thus, the trial court improperly refused to consider the transcripts." Reply Br. of Appellants at 17 (citation omitted). We review evidentiary rulings made in connection with a summary judgment ruling de novo. Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998); Ross v. Bennett, 148 Wash.App. 40, 45, 203 P.3d 383 (2008).
¶ 15 The undisputed record shows that the deposition transcripts were not available by the summary judgment hearing date.[3] Yet the court not only considered an affidavit by the sellers' counsel summarizing the deposition testimony, it later considered the actual deposition transcripts on the sellers' reconsideration motion"I read through the depositions, again, since they were submitted to me. There is nothing in the record that changes my mind." RP (Oct. 24, 2008) at 11. And because the deposition testimony consists of impermissible unexpressed subjective intent evidence, it fails to establish a genuine fact issue. Accordingly, the sellers' deposition claims fail.
Attorney Fees
¶ 16 The sellers next challenge the trial court's attorney fees award to the buyers, and both parties request fees on appeal. A party may be awarded attorney fees based on a contractual fee provision at the trial and appellate level. Kaintz v. PLG, Inc., 147 Wash.App. 782, 785, 197 P.3d 710 (2008); Mike's Painting, Inc. v. Carter Welsh, Inc., 95 Wash.App. 64, 71, 975 P.2d 532 (1999); RAP 18.1. Whether a contractual provision authorizes the award of attorney fees is a question of law reviewed de novo. Kaintz, 147 Wash.App. at 785-86, 197 P.3d 710. Paragraph 10 of the contract provides, "In any action to enforce this Agreement or for damages resulting from a breach thereof, the prevailing party shall be entitled to their reasonable attorney's fees."
¶ 17 Because the buyers prevailed below and on appeal, they are entitled to attorney fees and costs based on the contract's fees and costs provision. We affirm and remand for an award of fees and costs incurred on appeal pursuant to RAP 18.1(i).
WE CONCUR: APPELWICK and COX, JJ.
NOTES
[1] The Renfros are trustees of the Renfro Family Trust and together appeal the summary judgment order.
[2] The parties acknowledge that waiver is the critical question in this appeal.
"The central issue in this summary judgment is whether the purchasers' oral disclaimers, together with the `Other Conditions' provision in the [Real Estate Purchase and Sale Agreement], constitute an express waiver of residential real property disclosures required under RCW 64.06, et seq." Br. of Appellant at 21.
"The sole relevant issue in this appeal is this: did the trial court error [sic] when it found ... that no reasonable person could conclude that the contract clause at issue constituted an express waiver of the statutory disclosure requirements.... This is the only relevant question on appeal: whether or not there was waiver." Amended Br. of Respondent at 8, 23.
[3] While the sellers complain about the decision not to grant additional time, they do not assign error to it.
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STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Robert McFarland, FILED
June 24, 2013
Petitioner Below, Petitioner RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 12-1105 (Ohio County 10-C-241) OF WEST VIRGINIA
David Ballard, Warden,
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Robert McFarland, by counsel Mark D. Panepinto, appeals the Circuit Court of
Ohio County’s order entered on August 8, 2012, denying habeas relief. Respondent Warden, by
counsel Andrew Mendelson, filed a response.
This Court has considered the parties= briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.
Petitioner and his co-defendant broke into a home after punching the owner to gain entry
in an attempt to steal pain medication. A female co-defendant stayed behind in the car. Petitioner
was carrying a loaded sixteen gauge shotgun, which he later used to hit one of the victims.
During the robbery, there were two adults in the house, one male and one female, and two
children. The male adult was severely beaten. Petitioner hit him with the butt of the shotgun and
the co-defendant beat him with his fists. Petitioner fled the home on foot when police arrived,
later swam across the Ohio River and eventually was apprehended by police in Ohio. Petitioner
pled guilty to first degree robbery on April 1, 2009, after a jury was selected, and filed a petition
for treatment under the Youthful Offender Act on May 4, 2009, alleging that he was eighteen
years old at the time of the crime and had no prior felony convictions.
On June 6, 2009, the circuit court rejected petitioner’s petition for treatment as a youthful
offender. Petitioner was sentenced to seventy years of incarceration on July 9, 2009. Petitioner’s
co-defendant received seventy-five years of incarceration, and the female co-defendant received
one to five years of incarceration. The judge noted at sentencing that “in all my years of being a
judge, this, and possibly some murder cases and sexual assault of infants, this is one of the worst
factual crimes that I’ve heard, and it calls for the most serious of punishments.” Petitioner’s
direct appeal was refused on November 18, 2009. On June 7, 2010, petitioner filed a motion for
reconsideration of sentence pursuant to Rule 35 of the West Virginia Rules of Criminal
Procedure, which was denied.
1
Petitioner then filed a petition for a writ of habeas corpus along with amendments. The
petition was denied by orders entered on September 9, 2011, and August 8, 2012. The order
dated September 9, 2011, concluded that petitioner had received the effective assistance of
counsel, as the circuit court found that the record was replete with evidence showing that
petitioner was fully informed of the consequences of pleading guilty in this action. Moreover, the
court noted that petitioner’s counsel had specifically informed him in writing that he expected
petitioner’s sentence to be between forty and eighty years of incarceration. An amended order
denying habeas relief was entered on August 8, 2012, because the prior order had not addressed
all issues presented in the habeas petition.1 The circuit court reiterated the prior order’s findings
on ineffective assistance of counsel relating to the plea agreement and sentencing. Moreover, the
court found that the sentence was not disproportionate. Finally, the court found that petitioner
failed to meet his burden of proof that the court abused its discretion in failing to sentence
petitioner as a youthful offender.
This Court reviews appeals of circuit court orders denying habeas corpus relief under the
following standard:
“In reviewing challenges to the findings and conclusions of the circuit court in a
habeas corpus action, we apply a three-prong standard of review. We review the
final order and the ultimate disposition under an abuse of discretion standard; the
underlying factual findings under a clearly erroneous standard; and questions of
law are subject to a de novo review.” Syllabus point 1, Mathena v. Haines, 219
W.Va. 417, 633 S.E.2d 771 (2006).
Syl. Pt. 1, State ex rel. Franklin v. McBride, 226 W.Va. 375, 701 S.E.2d 97 (2009).
First, petitioner argues that although use of the Youthful Offender Act is within the
court’s discretion as per State v. Allen, 208 W.Va. 144, 157, 539 S.E.2d 87, 100 (1999), the court
abused its discretion herein by not sentencing him under the Act. However, this Court has stated
as follows:
Just as a trial court's decision to grant or deny probation is subject to the
discretion of the sentencing tribunal, so too is the decision whether to sentence an
individual pursuant to the Youthful Offenders Act. The determinative language of
West Virginia Code § 25–4–6 is stated indisputably in discretionary terms: “[T]he
judge of any court . . . may suspend the imposition of sentence . . . and commit the
young adult to the custody of the West Virginia commissioner of corrections to be
assigned to a center.” Id. (emphasis supplied). Since the dispositive statutory term
is “may,” there can be no question that the decision whether to invoke the
provisions of the Youthful Offenders Act is within the sole discretion of the
sentencing judge. See State v. Allen, 208 W.Va. 144, [157], 539 S.E.2d 87, [100]
(1999) (recognizing that “[c]lassification of an individual as a youthful offender
rests within the sound discretion of the circuit court”); accord State v. Richards,
1
A different circuit court judge entered the amended order.
2
206 W.Va. 573, 575, 526 S.E.2d 539, 541 (1999) (stating that Youthful Offenders
Act “grants discretionary authority to the circuit courts to suspend imposition of
sentence, and place a qualifying defendant in a program of rehabilitation at a
youthful-offender center”) (citation omitted).
State v. Shaw, 208 W.Va. 426, 430, 541 S.E.2d 21, 25 (2000). This Court finds no abuse of
discretion. The record shows that when sentencing petitioner, the circuit court considered the
violent manner in which this crime was committed, finding that this was one of the most violent
crimes to ever come before him. The choice of whether to sentence petitioner under this Act was
within the circuit court’s discretion and this Court finds no reason to disturb the decision.
Petitioner’s next assignments of error both deal with the sentence imposed. Petitioner
argues that a sentence of seventy years is excessive and disproportional to the character and
degree of the offense in violation of Article III, Section 5 of the West Virginia Constitution and
the Eighth Amendment to the United States Constitution. He also argues that he was denied
equal protection of the law given the trial court’s improper consideration that petitioner was a
resident of Ohio in imposing sentence.
This Court has held that, “‘[s]entences imposed by the trial court, if within statutory
limits and if not based on some [im]permissible factor, are not subject to appellate review.’
Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982).” Syl. Pt. 6, State v.
Slater, 222 W.Va. 499, 665 S.E.2d 674 (2008). However, this Court has held as follows:
Punishment may be constitutionally impermissible, although not cruel or unusual
in its method, if it is so disproportionate to the crime for which it is inflicted that it
shocks the conscience and offends fundamental notions of human dignity, thereby
violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty
that is not proportionate to the character and degree of an offense.
Syl. Pt. 5, State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983). Upon review of the record,
the circuit court sentenced petitioner within the statutory limit and the sentence was not based
upon any impermissible factor. Petitioner’s argument that he was sentenced more harshly as a
non-resident of West Virginia is also without merit. The circuit court simply stated his hope for a
deterrent effect to put others on notice of the consequences of violating the citizens of Ohio
County’s expectation of safety in their home. Finally, the punishment herein is not
disproportionate. One of petitioner’s co-defendants was sentenced to greater incarceration than
petitioner. In addition, petitioner will be parole-eligible after serving a quarter of his sentence
rather than one-third, making him eligible for parole after seventeen and one-half years and able
to discharge his sentence after thirty-five years if he receives good time credit.
For the foregoing reasons, we affirm.
Affirmed.
3
ISSUED: June 24, 2013
CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
4
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450 So.2d 1207 (1984)
Sara Jane MARELL, Lawrence Abramson, and Palm Beach County Commissioners, Appellants,
v.
Signe HARDY, et al., Appellees.
No. 82-1756.
District Court of Appeal of Florida, Fourth District.
May 16, 1984.
Rehearing Denied June 14, 1984.
*1208 George H. Bailey of Jones & Foster, P.A., West Palm Beach, for appellants, Marell and Abramson.
Charles F. Schoech, West Palm Beach, for appellant, Palm Beach County Com'rs.
Tracy R. Sharpe of Farish, Farish & Romani, West Palm Beach, for appellees.
BERANEK, Judge.
Petitioners seek review of a circuit court order which granted respondents' petition for writ of certiorari and quashed certain *1209 portions of resolutions of the Palm Beach County Board of County Commissioners. An appeal has also been filed, but we treat this matter as a petition for certiorari, quash the order of the circuit court, and reinstate the Board resolutions in their entirety.
In 1969, petitioner, Stephen Abramson, the owner of undeveloped property (now owned by Abramson and others), filed an application with Palm Beach County seeking permission to develop a mobile home park site. Specifically, Abramson petitioned for the conditional use of an eighty-acre parcel of property for a mobile home park. At the public hearings before the Commission, Abramson indicated that he intended to develop a golf course on a portion of the property. Only one person from the public addressed Abramson's petition. He stated that he was not speaking against the petition but that he would like the 25 acres which Abramson had indicated that he intended to develop as a golf course to be zoned for that purpose. Abramson had no objection to that request. Indeed, the original petition on file included the golf course. As all the interested parties were in agreement, the Commission granted Abramson's petition upon the following motion:
That the petition as modified to include the golf course as a conditional use be granted and that a minimum of 25 acres is to be utilized for the golf course, that a maximum of 55 acres is to be utilized for a mobile home park.
Thereafter, Mr. Abramson constructed the mobile home park and golf course. He later constructed single family homes and condominiums on other surrounding property which he owned.
Approximately 12 years later, on April 9, 1981, Abramson and other property owners petitioned the Palm Beach County Planning Commission to rezone the golf course parcel from AG-Agricultural District to RS-Residential Single Family District. The petition further sought a special exception to permit the operation of a mobile home rental park on the parcel. The petition also sought modification of the conditional use agreed upon by Abramson and the County Commissioners in 1969. After considering a number of factors pertinent to the petition, the Planning Commission voted unanimously to grant it. Thereafter, the Board of County Commissioners considered the petition at three separate meetings before it concluded on a 4-1 vote that the application should be granted. The Board adopted two resolutions: Resolution No. R-81-1195 rezoned the parcel from AG-Agricultural District to RS-Residential Single Family District, and Resolution No. R-81-1196 granted a special exception to allow a mobile home rental park thereon and modified the 1969 conditional use.
On September 28, 1981, respondents (property owners in the area) filed a petition for writ of certiorari against the County Commission asserting that there was no relationship between the rezoning adopted by the Commission and the promotion of the public health, safety, morals, and general welfare of the community. The petition alleged that the determination to grant the property owners' petition was arbitrary, discriminatory, and unreasonable, was not fairly debatable, and constituted a gross abuse of discretion by the Commission. After preliminary proceedings, on February 24, 1982, the trial court remanded the case to the County Commissioners for the stated purpose of clarifying Resolution No. 81-1196 asking: "Did they intend by that Resolution to terminate the 1969 condition which petitioner claims required that in order to use the 55 acres as a mobile home rental park, the property north thereof be utilized as a golf course?" The County Commission met pursuant to the court's remand order and adopted Resolution No. R-82-550 which read:
Be it resolved by the Board of County Commissioners of Palm Beach County, Florida, that its Resolutions No. R-81-1195 and R-81-1196 be, and they hereby are, clarified pursuant to said Order of said court to make clear that it was the intent of the Board of County Commissioners to eliminate, completely, the requirement of the golf course, thus allowing *1210 the golf course area to be developed as a mobile home park.
On June 30, 1982, the trial court recommended proceedings in the matter. Respondents again argue that the 1969 resolution provided that the use of the existing mobile home park was conditioned upon the continued use of the parcel as a golf course. Respondents further claimed that petitioners did not present substantial competent evidence to show a change in the character of the community that would be conducive to allowing a mobile home park to justify the Commissioner's adoption of the resolutions. Petitioners argued that the County Commission had acted within its power and that the adoption of the resolutions was supported by substantial competent evidence as would make the matter at least "fairly debatable."
The trial court entered an order leaving intact Resolution No. 81-1195, but quashing those portions of Resolution No. 81-1196 and Resolution No. R-82-550 which purported to grant a special exception allowing a mobile home park. In its order, the trial court stated: "[T]he action of the County Commission is clothed with a presumption of correctness and should be set aside only on a showing that the action was not fairly debatable, or otherwise contrary to law." It then went on to rule in favor of respondents on a theory of administrative res judicata. Petitioners are now before us challenging this order.
The trial court enunciated two doctrines in its order, one being the "fairly debatable" rule and the other being the doctrine of res judicata. As the trial court was persuaded by the latter, we will address it first. Citing to Burger King Corporation v. Metropolitan Dade County, 349 So.2d 210 (Fla. 3d DCA 1977), and Metropolitan Dade County Board of County Commissioners v. Rockmatt Corporation, 231 So.2d 41 (Fla. 3d DCA 1970), the trial court correctly stated that the doctrine of administrative res judicata "is applicable to rulings or decisions of administrative bodies and to rulings of such bodies dealing with zoning regulations unless it can be shown that since the earlier ruling thereon, there has been a substantial change of circumstances relating to the subject matter of the ruling sufficient to prompt a different or contrary determination." The trial court found this doctrine applicable and then determined that the evidence was insufficient to show a substantial change of circumstance. The trial court erred in both respects.
Initially, we determine that the doctrine of administrative res judicata is inapplicable here. The seminal case of City of Miami Beach v. Prevatt, 97 So.2d 473 (Fla. 1957), holds that the doctrine should be applied in zoning cases with great caution pointing to the requirements of identity of parties and of causes of action. Here, we have neither. The issue of whether the golf course parcel could be used as a mobile home park was actually litigated for the first time at the hearing on the petition for writ of certiorari before the circuit court. In 1969, Abramson himself wanted to use the parcel as a golf course and certainly no one opposed it. Thus, there was no prior action to which the doctrine could apply. Furthermore, since there was no prior action, there was no identity of parties. The case before us is easily distinguishable from Burger King, supra. In that case, a property owner went before the Dade County Commission three times in a short span of time in an attempt to obtain a use variance. Twice the Third District was called upon to rule on the propriety of the Commission's decision to deny the variance. It is clear that the requirements of the theory of administrative res judicata were present and that the court properly applied the doctrine in that case.
We further note that even if the doctrine were applicable in the case before us, we believe that sufficient evidence of a substantial change of circumstances was present to overcome the effect of administrative res judicata. The intervening 12-year period was one of great development and change in Palm Beach County. The Board, as the elected representatives of the *1211 county, was directly involved in this development and was presented with specifics during these proceedings regarding other new recreational development in the area and other new mobile home park development in the area. These were all matters which the Board of County Commissioners appropriately relied upon despite the conclusion of the circuit court to the contrary.
We now address the "fairly debatable" rule mentioned by the trial court. All zoning must meet the constitutional test of being within the police power, i.e., it must bear a substantial relationship to the public health, welfare, safety, and morals of the community. It is the function of the legislative body charged with responsibility for protecting and enhancing the health, welfare, and safety of the public to weigh the advantages and disadvantages of rezoning property. Jones v. First Virginia Mortgage and Real Estate Investment Trust, 399 So.2d 1068 (Fla. 2d DCA 1981). The courts are not super zoning boards substituting their judgment for that of the legislative and administrative bodies exercising legitimate objectives. S.A. Healy Company v. Town of Highland Beach, 355 So.2d 813 (Fla. 4th DCA 1978). Zoning resolutions are presumed valid and should not be disturbed by the courts unless they are arbitrarily and unreasonably applied to a particular piece of property. Dade County v. United Resources, Inc., 374 So.2d 1046 (Fla. 3d DCA 1979). A clear showing of an abuse of discretion by the Commission is required. Jones, supra.
The test to be used in determining whether a zoning resolution is arbitrary and unreasonable as applied to a particular piece of property is whether the particular resolution is "fairly debatable." The court's function is to determine whether the zoning resolution meets the constitutional test of being within the police power, i.e., serving the health, safety, morals, or general welfare of the public. If this question is open to dispute or controversy on grounds that make sense and are fairly debatable then the court should not substitute its judgment for that of the zoning authority (legislative body). See Dade County v. United Resources, Inc., supra, at 1049 and 1050. One can analogize the scope of review which the trial court has under the "fairly debatable" rule to our scope of review in divorce cases under the "reasonable man" theory enunciated in Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). In such cases, if reasonable men can differ as to the propriety of the action taken by the trial court, we cannot say that the trial court abused its discretion nor can we substitute our judgment for that of the trial court. By the same token, the trial court under the "fairly debatable" rule is limited to a determination of whether a legitimate controversy existed before the zoning body. If the court so determines, then the Commission's action must be upheld.
The burden is upon the party seeking relief from the resolution to show that the resolution was not a fairly debatable issue before the legislative authority, here, the County Commission. Even though there may be competent evidence and argument against the zoning change, the resolution need only be supported by competent substantial evidence to show that the matter was fairly debatable.[1]Dade County v. United Resources, Inc., supra. We hold that both sides presented competent evidence of the reasonableness of their positions to the Commission, thus making the issue fairly debatable. We therefore hold that the trial court departed from the essential requirements of law in quashing those portions of the resolutions granting a special exception to allow a mobile home park. We quash the order of the circuit court and remand this matter for reinstatement of the Board resolutions in their entirety.
*1212 CERTIORARI GRANTED; ORDER QUASHED; REMANDED.
ANSTEAD, C.J., and COCALIS, PATRICIA W., Associate Judge, concur.
NOTES
[1] We note that under the theory of administrative res judicata, there had to be sufficient evidence of a substantial change of circumstances while under the "fairly debatable" rule, a petitioner need only show the existence of a legitimate, i.e., fairly debatable controversy.
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786 N.E.2d 613 (2003)
337 Ill. App.3d 556
272 Ill.Dec. 74
SPARTAN MOTORS, INC., Plaintiff-Appellee,
v.
LUBE POWER, INC., Defendant-Appellant (Monarch Hydraulics, Inc., Defendant).
No. 2-01-1015.
Appellate Court of Illinois, Second District.
March 10, 2003.
*615 Jon P. Malartsik, Harvey A. Paulsen, Paulsen & Malec, Ltd., Wheaton, for Lube Power, Inc.
James F. Best, Kimberly A. Carr, Best, Vanderlaan & Harrington, Wheaton, for Spartan Motors, Inc.
Justice BYRNE delivered the opinion of the court:
Defendant Lube Power, Inc. (defendant or Lube Power), appeals from the circuit *616 court's order that denied its motion to dismiss for lack of personal jurisdiction a complaint filed against it by plaintiff, Spartan Motors, Inc. (plaintiff or Spartan). Defendant contends that it is not subject to personal jurisdiction in Illinois under the Illinois long-arm statute, section 2-209 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-209 (West 2000)) and federal due process standards.
The facts are not disputed. Plaintiff and defendant are Michigan corporations with their principal places of business in Michigan. Defendant sold plaintiff hydraulic pump assemblies. It manufactured the pump assemblies at its facility in Michigan and delivered them to plaintiff at its facility in Michigan. Plaintiff incorporated the pump assemblies into, among other things, fire truck chassis that it sold to customers throughout the United States and abroad.
In 1995, a fire engine chassis that plaintiff had sold to the Elgin fire department malfunctioned, injuring firefighter Wayne Sabatino. Sabatino sued Spartan and another defendant that was apparently Spartan's local distributor. Spartan, in turn, filed third-party actions against other parties, including Lube Power. Sabatino v. Spartan Motors, Inc., No. 97-L-221 (Cir. Ct. Kane County).
After investigating the Elgin incident, Spartan decided that the cause of the accident was a defective solenoid in the pump assembly that Lube Power sold. Spartan believed that the same defect was present in other products Lube Power provided and initiated a recall to replace the allegedly defective parts. The recall was not limited to Spartan customers in Illinois.
Spartan then filed the present action against Lube Power in the circuit court of Kane County. On Spartan's motion, the trial court consolidated the action with cause No. 97-L-221 (Sabatino). That case was later settled. In the present case, Lube Power filed a special and limited appearance and moved to dismiss the action for lack of personal jurisdiction. Spartan responded and the trial court denied the motion to dismiss without conducting an evidentiary hearing. Lube Power filed a petition for leave to appeal, which this court granted. See 166 Ill.2d R. 306(a)(3).
On appeal, Lube Power argues that it has done nothing to submit itself to the jurisdiction of Illinois courts in connection with this case and that requiring it to litigate in Illinois violates federal due process standards. Spartan responds that Lube Power (1) transacted business, (2) committed two tortious acts, and (3) is "doing business" in Illinois, thus subjecting itself to personal jurisdiction here.
A plaintiff asking a court to assert jurisdiction over a nonresident defendant must demonstrate a prima facie case for jurisdiction. Zazove v. Pelikan, Inc., 326 Ill.App.3d 798, 801-02, 260 Ill.Dec. 412, 761 N.E.2d 256 (2001); Kalata v. Healy, 312 Ill.App.3d 761, 765, 245 Ill.Dec. 566, 728 N.E.2d 648 (2000). Where, as here, the trial court decides the jurisdictional issue solely on the basis of documentary evidence, appellate review is de novo. See Khan v. Van Remmen, Inc., 325 Ill.App.3d 49, 53, 258 Ill.Dec. 628, 756 N.E.2d 902 (2001); Hendry v. Ornda Health Corp., 318 Ill.App.3d 851, 852, 252 Ill.Dec. 208, 742 N.E.2d 746 (2000). In deciding whether jurisdiction may be asserted over a nonresident defendant, courts evaluate whether jurisdiction is proper under the Illinois long-arm statute and whether jurisdiction would comport with constitutional due process standards. Khan, 325 Ill. App.3d at 53-54, 258 Ill.Dec. 628, 756 N.E.2d 902.
*617 The long-arm statute permits an Illinois court to assert jurisdiction over a nonresident defendant who performs one of several enumerated acts in Illinois. 735 ILCS 5/2-209 (West 2000). Section 2-209 provides, in relevant part:
"(a) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits such person, and, if an individual, his or her personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any such acts:
(1) The transaction of any business within this State;
(2) The commission of a tortious act within this State;
* * *
(b) A court may exercise jurisdiction in any action arising within or without this State against any person who:
* * *
(4) Is a natural person or corporation doing business within this State.
(c) A court may also exercise jurisdiction on any other basis now or hereafter permitted by the Illinois Constitution and the Constitution of the United States.
* * *
(f) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him or her is based upon subsection (a)." (Emphasis added.) 735 ILCS 5/2-209 (West 2000).
Federal due process requires that, for a nonresident defendant to be subject to personal jurisdiction, the defendant must have certain "minimum contacts" with the forum state such that maintaining the suit there does not offend "`traditional notions of fair play and substantial justice.'" International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945), quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278, 283 (1940). Those minimum contacts must be based on "`some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.'" Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 109, 107 S.Ct. 1026, 1030, 94 L.Ed.2d 92, 102 (1987), quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475, 105 S.Ct. 2174, 2183, 85 L.Ed.2d 528, 542 (1985). This requirement ensures that an alien defendant will not be forced to litigate in a distant or inconvenient forum solely as a result of random, fortuitous, or attenuated contacts or the unilateral act of a consumer or some other third person. Burger King Corp., 471 U.S. at 475, 105 S.Ct. at 2183, 85 L.Ed.2d at 542.
A court conducting a federal due process analysis must consider whether (1) the nonresident defendant had "minimum contacts" with the forum state such that there was "fair warning" that the nonresident defendant may be hailed into court there; (2) the action arose out of or related to the defendant's contacts with the forum state; and (3) it is reasonable to require the defendant to litigate in the forum state. Burger King Corp., 471 U.S. at 471-77, 105 S.Ct. at 2181-84, 85 L.Ed.2d at 540-44; Kalata, 312 Ill.App.3d at 768-69, 245 Ill.Dec. 566, 728 N.E.2d 648.
The "minimum contacts" and "fair warning" requirements are satisfied if the defendant has purposefully directed its activities at Illinois residents, reached out beyond one state to create continuing relationships *618 with citizens of another state, or purposefully derived benefits from its activities within the forum state. Alderson v. Southern Co., 321 Ill.App.3d 832, 857, 254 Ill.Dec. 514, 747 N.E.2d 926 (2001); see Pilipauskas v. Yakel, 258 Ill.App.3d 47, 56, 196 Ill.Dec. 188, 629 N.E.2d 733 (1994).
The meaning of the "minimum contacts" standard depends upon whether the forum asserts "general" or "specific" jurisdiction. General jurisdiction refers to suits neither arising out of nor related to the defendant's contacts, and it is permitted only where the defendant has carried on its activities in the forum state with "a fair measure of permanence and continuity, not occasionally or casually." Hendry, 318 Ill.App.3d at 853, 252 Ill.Dec. 208, 742 N.E.2d 746. Once a defendant is determined to be "doing business" in Illinois under section 2-209(b)(4) of the Code, the defendant is deemed to be a resident who is subject to the circuit court's general jurisdiction and may be sued on causes of action both related and unrelated to its Illinois activities. Alderson, 321 Ill.App.3d at 849, 254 Ill.Dec. 514, 747 N.E.2d 926.
Specific jurisdiction refers to jurisdiction over a defendant in a suit "arising out of or related to the defendant's contacts with the forum." Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 n. 8, 104 S.Ct. 1868, 1872 n. 8, 80 L.Ed.2d 404, 411 n. 8 (1984). In specific jurisdiction cases, the action must directly arise out of the contacts between the defendant and the forum. Alderson, 321 Ill.App.3d at 857, 254 Ill. Dec. 514, 747 N.E.2d 926. Section 2-209(a) of the Code enumerates several acts that confer specific jurisdiction over defendants in these cases. 735 ILCS 5/2-209(a), (f) (West 2000).
We note that the Helicopteros Court used the alternative terms "related to" and "arising out of" to describe a party's contacts with the forum, and one could argue that these terms suggest a two-part test for finding specific jurisdiction. However, the majority in Helicopteros avoided determining "whether the terms `arising out of' and `related to' describe different connections between a cause of action and a defendant's contacts with a forum" because the parties had not raised the issue. Helicopteros, 466 U.S. at 415 n. 10, 104 S.Ct. at 1872 n. 10, 80 L.Ed.2d at 411 n. 10. Like the Court in Helicopteros, we decline to address whether the phrases "related to" and "arising out of" describe different standards because Spartan does not argue the point.
We now turn to Spartan's contention that the circuit court had general jurisdiction over Lube Power because Lube Power was "doing business" in Illinois under section 2-209(b)(4) of the Code. Lube Power answered several interrogatories focused on its contacts with Illinois as they relate to the jurisdictional issue. It is undisputed that Lube Power is a Michigan corporation that has never had an office or permanent agent in Illinois. At all relevant times, Lube Power was in the business of (1) manufacturing oil lubrication systems and (2) distributing power units that were manufactured by another Michigan corporation and similar to the units identified in Spartan's complaint. In the 21 years Lube Power has been in business, Don Coppins, Lube Power's president, has attended two trade shows in Chicago, and Lube Power has sold products to Illinois customers 12 times. Nine of these sales were to BP-Amoco of Tulsa, Oklahoma, which directed Lube Power to ship the items directly to its facility in Joliet. Coppins went to Naperville four times in March 1995 for consulting purposes only. None of Coppins's trips involved the solicitation of any business from Illinois residents. *619 From 1980 to 1985, Lube Power issued two or three catalog mailings to equipment manufacturers, but none were directed to companies in Illinois.
"Transient contact, such as attendance at trade shows, advertising, or mere solicitation, has been rejected as a jurisdictional basis under section 2-209(b)(4)." Alderson, 321 Ill.App.3d at 853, 254 Ill.Dec. 514, 747 N.E.2d 926. In this case, Coppins's trade show visits and consulting trips were few and sporadic. Furthermore, the nine BP Amoco sales, which Spartan emphasizes, totaled only $5,742. Spartan's claim for contract damages exceeding $50,000 dwarfs the total BP Amoco sales, which appear to be a small portion of Lube Power's total business. We conclude that Lube Power's transient contact with Illinois is not the "permanence and continuity" required for general jurisdiction.
Next, we quickly dispose of Spartan's claim that its transaction with Lube Power gave the circuit court specific jurisdiction under section 2-209(a)(1) of the Code. It is undisputed that the negotiations, execution, and performance of the parties' contract occurred entirely in Michigan and had no connection to Illinois. Therefore, Spartan's present cause of action did not arise from the transaction of "any business within this State." 735 ILCS 5/2-209(a)(1) (West 2000).
Spartan also argues that the circuit court had specific jurisdiction under section 2-209(a)(2) because Lube Power committed two tortious acts: (1) a breach of its warranty and (2) the personal injury of Sabatino. It is clear that section 2-209(a)(2) does not apply to Spartan's warranty claim, which seeks a contractual remedy and does not allege that Lube Power committed a tort in Illinois. Therefore, we are left to consider whether Sabatino's alleged personal injury in Illinois could create specific jurisdiction over Lube Power.
Spartan contends that Lube Power established minimum contacts with Illinois when (1) Lube Power placed the allegedly defective pump assembly into the stream of commerce by selling it to Spartan and (2) it was foreseeable that the product might be used by a consumer in another state. Spartan invokes the "stream of commerce" theory of specific jurisdiction that our supreme court adopted in Gray v. American Radiator & Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961). There, Titan Valve Company (Titan) sold a part that was incorporated into a water heater that American Radiator sold to a consumer in Illinois. When the water heater exploded and injured the plaintiff, she sued Titan and American Radiator, which filed a counterclaim against Titan. In upholding jurisdiction over Titan, the supreme court stated, "As a general proposition, if a corporation elects to sell its products for ultimate use in another State, it is not unjust to hold it answerable there for any damage caused by defects in those products." Gray, 22 Ill.2d at 442, 176 N.E.2d 761.
Since Gray, the Supreme Court has addressed the viability and scope of the "stream of commerce" theory of specific jurisdiction. In World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), a car purchased in New York was involved in an accident in Oklahoma. The purchaser sued the car dealer and the regional distributor in Oklahoma. In deciding that jurisdiction in Oklahoma was improper, the Court rejected the argument that, because the car's inherent mobility made its presence in another state foreseeable, the nonresident defendants had minimum contacts with Oklahoma. The Court held that foreseeability alone is not the benchmark for *620 personal jurisdiction under the due process clause. World-Wide Volkswagen, 444 U.S. at 295, 100 S.Ct. at 566, 62 L.Ed.2d at 500. If this were not so, "[e]very seller of chattels would in effect appoint the chattel his agent for service of process. His amenability to suit would travel with the chattel." World-Wide Volkswagen, 444 U.S. at 296, 100 S.Ct. at 566, 62 L.Ed.2d at 501.
World-Wide Volkswagen reiterated that personal jurisdiction must be based on the defendant's conscious acts, rather than the unilateral activity of the purchaser or some third party. World-Wide Volkswagen, 444 U.S. at 298, 100 S.Ct. at 567, 62 L.Ed.2d at 502. The Court stated in dicta that a state would not exceed its powers under the due process clause by asserting jurisdiction over a defendant that "delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State." World-Wide Volkswagen, 444 U.S. at 297-98, 100 S.Ct. at 567, 62 L.Ed.2d at 501-02, citing, e.g., Gray, 22 Ill.2d 432, 176 N.E.2d 761.
Later, in Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987), the Court again confronted the issue of personal jurisdiction over a nonresident defendant based on the stream of commerce theory. A majority of the Court held that jurisdiction over Asahi Metal Industry Company, a Japanese manufacturer that supplied an allegedly defective component part, was improper under the facts of the case. A portion of the lead opinion authored by Justice O'Connor and joined by three other justices stated that "a defendant's awareness that the stream of commerce may or will sweep the product into the forum State does not convert the mere act of placing the product into the stream into an act purposefully directed toward the forum State." Asahi Metal, 480 U.S. at 112, 107 S.Ct. at 1032, 94 L.Ed.2d at 104. The opinion noted that the only remaining claim in the case was one for indemnification by a Taiwanese distributor against the Japanese manufacturer and, therefore, California had little interest in resolving the dispute. Because the only remaining claim concerned indemnification, not safety standards, the Court rejected as "overly broad" the contention that the case implicated the California courts' legitimate interest in protecting California consumers. Asahi Metal, 480 U.S. at 114-15, 107 S.Ct. at 1033, 94 L.Ed.2d at 106. A separate opinion, authored by Justice Brennan and joined by three other justices, concluded that the stream of commerce theory was an adequate basis for personal jurisdiction consistent with due process. Asahi Metal, 480 U.S. at 119-20, 107 S.Ct. at 1036, 94 L.Ed.2d at 109 (Brennan, J., concurring, joined by White, Marshall, and Blackmun, JJ.). The two opinions authored by O'Connor and Brennan reveal that the Asahi Metal Court left undecided the scope of the stream of commerce theory.
Nevertheless, in light of World-Wide Volkswagen and Asahi Metal, we conclude that Gray is distinguishable from this case. As Lube Power points out, the plaintiff in Gray was the actual purchaser of the defective product. Thus, there was no question that the cause of action arose out of the defendant's contacts with Illinois.
Here, the plaintiff is not an Illinois resident who was injured by the defendant's product. The plaintiff, Spartan, is another Michigan corporation suing Lube Power for breach of warranty.[1] If a breach of *621 warranty occurred in this case, it occurred when Lube Power delivered the products to Spartan at its Michigan headquarters. Spartan concedes that its recall program covered purchasers of its products in many states and several foreign countries, not just Illinois. As in Asahi Metal, the present case involves a plaintiff attempting to recoup its economic losses rather than protect consumers in the forum state. If Spartan ultimately wins, the benefit will be received at Spartan's Michigan headquarters, not in Illinois.
This case would be analogous to Gray if Lube Power had been sued by an injured consumer. In fact, Lube Power filed a general appearance in the Sabatino litigation and did not contest jurisdiction.[2] If the Sabatino litigation were still pending, it would qualify as the type of minimum contacts necessary for establishing specific jurisdiction over Lube Power in the current matter. However, once the personal injury case was settled, the only remaining connection this case had with Illinois was Spartan's discovery of the solenoid problem in Illinois. This is the type of random, fortuitous contact that the Supreme Court has rejected as a basis for personal jurisdiction. Accordingly, the circuit court should have granted Lube Power's motion to dismiss for lack of personal jurisdiction.
The judgment of the circuit court of Kane County is reversed.
Reversed.
GROMETER and KAPALA, JJ., concur.
NOTES
[1] Spartan's complaint contains a count for negligence. It is clear, however, that the only negligence alleged is the manufacture and delivery of a defective product. It is doubtful that such a claim is viable under Moorman Manufacturing Co. v. National Tank Co., 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443 (1982).
[2] Spartan does not contend that defendant's entry of a general appearance in the Sabatino case submitted it to the court's jurisdiction for purposes of this case. Such a theory would surely be inconsistent with due process.
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513 So.2d 958 (1987)
Kerri M. MARTIN, Ricky J. Martin, and April Kelli Hazelrig
v.
Richard P. WATTS and Huntsville Jaycees, Inc.
84-1007.
Supreme Court of Alabama.
April 10, 1987.
Rehearing Denied May 8, 1987.
Charles C. King and Charles A. Sullins, Huntsville, and Francis H. Hare, Jr., and D. Leon Ashford of Hare, Wynn, Newell & Newton, Birmingham, for appellants.
E. Cutter Hughes, Jr., and H. Harold Stephens of Lanier, Shaver & Herring, Huntsville, for appellee Richard P. Watts.
Don G. DeCoudres, Birmingham, for appellee Huntsville Jaycees, Inc.
PER CURIAM.
This is an appeal from a summary judgment made final pursuant to Rule 54(b), A.R.Civ.P. Defendants, Richard Watts, David Worley, and Huntsville Jaycees, Inc. ("Jaycees"), were alleged to have participated in sponsoring or to have assisted in sponsoring a party at which alcoholic beverages were provided to minors.
Two of the minors became intoxicated and caused an automobile accident in which plaintiffs were injured and another person was killed. The plaintiffs brought an action for damages against these defendants and others. Settlements have been reached with some of the original defendants, while others have been dismissed.
Defendants Watts and Jaycees filed motions to dismiss and motions for summary judgment. The lower court denied the motions to dismiss. In considering the motions for summary judgment, the trial court addressed two issues: First, whether an action for damages under the Alabama Dram Shop Act could be brought against either the Huntsville Jaycees or Watts, and second, whether an action founded upon common law negligence principles would lie against either defendant? Judge Smith, in a lengthy and scholarly order which traces *959 the history of legislation affecting alcoholic beverages in this state, held that an action will not lie on either theory and granted summary judgment for Watts and the Jaycees.
FACTS
The following facts are taken from Judge Smith's order.
The Huntsville Jaycees, Inc.
The Huntsville Jaycees, Inc., is a service organization created to benefit and improve the city of Huntsville. According to 11 World Book Encyclopedia 51 (1976),
"Jaycees are organizations that stress individual development through leadership training and civic involvement.... Jaycees learn to be leaders by working in community improvement programs. They sponsor programs on youth development, government affairs, health, safety, and international relations."
Included among the many community programs which the Huntsville Jaycees conducted was its sponsorship of the Huntsville High School Junior Jaycees.
The Huntsville High School Junior Jaycees
The Huntsville High School Junior Jaycees ("HHS Jr. Jaycees") is a high school service and social club. The members must be enrolled in Huntsville High School, have completed their sophomore year, and be at least sixteen years old. The following boys were officers of the HHS Jr. Jaycees during the 1981-82 school year: President: John Watts (son of defendant Richard Watts); Vice President: Drew Crow; Secretary: David Vest; and Treasurer: Wes Neighbors (son of William W. "Billy" Neighbors, Jr.). These boys were responsible for planning and preparing the party where the alcoholic beverages were consumed.
Mrs. Sandra Norton was the school faculty sponsor; however, she took no part in the affairs of the club. According to testimony, she was "just a name used by the club to comply with the stated school policy."
David Worley
David Worley is an attorney. He is associated with the Huntsville Jaycees, Inc., and served as "sponsor" for the HHS Jr. Jaycees chapter. In that capacity, he served as liaison between the two organizations and coordinator of their joint activities. To perform those duties, Worley attended meetings of both clubs.
Richard Watts
Richard Watts is the father of John Watts, the president of the HHS Jr. Jaycees. He and his wife, Jean Watts, are part owners of a lake cabin where this party was held.
The Party
Each year for a number of years, the HHS Jr. Jaycees had held "a big social event" for the club members and their invited friends. Thus, at one of the last club meetings during the 1980-81 school year, the members discussed party plans. Someone suggested a place where the beer might be purchased, but Worley, who was present, stated that he could get the club "a special deal." According to deposition testimony of Wes Neighbors,
"[Worley] said we could get it for nine dollars a case, so we decided on thirty cases of beer."
On Friday, May 15, 1981, following the end of classes for the day, Neighbors drove with David Vest to the law office of Worley with a check drawn on the "Huntsville High School Imprest Account" and made payable to Wes Neighbors. Neighbors endorsed the check and gave it to Worley. He and David Vest then followed Worley to Turner Beverage Company. Worley also endorsed the check, and handed it to Tully Turner, owner of the beverage company. Half-cases of beer were loaded by the boys and employees of the beverage company into the trunks of Vest's and Worley's automobiles. Next, they proceeded to the residence of Worley, where they stored the beer on Worley's back porch.
The following morning, Saturday, May 16, 1981, Neighbors and Vest returned to Worley's home. They loaded the beer into a pick-up truck and covered it with tarpaulins. *960 After meeting fellow club members John Watts and George Mahoney, they transported the beer from Huntsville to the cabin on Guntersville Lake in Marshall County.
When the four boys arrived at the Watts cabin, around noon, they iced the beer down in six coolers. John Watts had obtained these coolers from a building owned by the Jaycees.[1] Soon other HHS Jr. Jaycees and their guests began to arrive. During the early part of the afternoon, there was little or no control over access to the beer. Anyone could walk up to the coolers and help himself to as much as he desired. According to Neighbors, just about everybody who attended the party "was pretty much intoxicated." He described the party as "wild, a melee." Four young people passed out totally and had to be placed on beds in the Watts cabin. Many more were not capable of safely operating a motor vehicle.
Adults present during the party were: Billy Neighbors, the father of Wes Neighbors; Richard Watts, owner of the cabin and father of club president John Watts; and David Worley, who attended the party in his capacity as club "sponsor." Around 3:30 p.m., Billy Neighbors decided that things were getting out of hand; he and Richard Watts called a halt to the party. Richard Watts told the boys to load the beer back into the pick-up truck. Warren Bradford, age 18, was one of the boys who became intoxicated. Billy Neighbors told John Watts to remove the ignition keys from Bradford's vehicle. The keys were given to Bradford's companion, Mark Pullen, age 17. Pullen was told that he was to drive the vehicle back to Huntsville.
Pullen and Bradford left around 4 or 4:30 p.m., with Pullen driving. After they left, Bradford demanded forcefully that Pullen let him drive the car. Pullen stopped the vehicle and the boys changed positions.
Just after they had crested Monte Sano Mountain, and were on their way down into the city proper, "moving to the [beat of the] music" playing on the car's stereo, laughing, and "in a good mood," Bradford lost control of the vehicle. It skidded across his two lanes, across a wide, grassy median separating the lanes of traffic, and into the path of plaintiffs' on-coming vehicle.
Neither Pullen nor Bradford was injured very badly. However, the driver of the other car, Georgia L. Hazelrig, was killed. Her two daughters, Kerri Martin and April Hazelrig, were gravely injured.
DISCUSSION
Appellants argue that the appellees should be amenable to suit because appellees created and controlled a dangerous and foreseeable risk of harm. They contend that Judge Smith erred in holding as a matter of law that there was no cause of action which would lie against these defendants for their part in promoting a party at which alcoholic beverages were served to minors.
The essential element underpinning Judge Smith's order is an assumption that there can be no right of action against a noncommercial supplier of alcoholic beverages. Appellees go one step further and argue that to hold otherwise would amount to a social host liability. At the outset, a very important distinction should be made. The facts of this case do not require us to consider social host liability. Here we are concerned only with the providing of alcoholic beverages by adults to minor school children, which is a clear violation of law.
DRAM SHOP ACTION
Appellants contend that they should have been allowed to proceed under Code 1975, ง 6-5-71(a), Alabama's Dram Shop Act. Appellees contend that this section does not pertain to dispensing outside of the commercial setting.
The relevant portion of the Dram Shop Act provides:
*961 "Every wife, child, parent or other person who shall be injured in person, property or means of support by an intoxicated person or in consequence of the intoxication of any person shall have a right of action against any person who shall by selling, giving or otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person for all damages actually sustained, as well as exemplary damages."
Code 1975, ง 6-5-71(a). Whether an action will lie under this section depends upon a statutory construction of two of the operative terms of the Act. We must determine the effect of the phrases "selling, giving or otherwise disposing of" and "contrary to the provisions of law". Section (a) of the statute contains a compound subject, modified by a dependent clause, and a predicate, modified by a series of prepositional phrases and a dependent clause. Stripped of their modifiers the subject is "every wife, child, parent, or other person," and the predicate is "shall have a right of action." Thus it can be seen that the overall purpose of this sentence is to create a cause of action.
We are concerned here with the effect of the modifiers of the predicate. The right of action is granted "against any person who shall ... cause the intoxication" of the intoxicated person referred to in the dependent clause which modifies the subject. The language represented by the ellipsis in the preceeding quotation consists of a compound prepositional phrase. The gerunds "selling," "giving," and "disposing of" form the compound object of the preposition "by". These gerunds are modified by the phrases "to another" and "contrary to the provisions of law," and take the compound object "any liquors or beverages." By analyzing the sentence grammatically we are able to arrive at the cause of action which has been created. The gerundial phrases act as modifiers of the verb of the dependent clause in the predicate, "who shall ... cause intoxication." The effect of these modifiers is to identify who may be sued and under what circumstances. That is, the right of action is granted "against any person who shall ... cause the intoxication of [the] person [injuring the plaintiff]," (1) "by selling ... to another, contrary to the provisions of law, any liquors or beverages," (2) "by giving ... to another, contrary to the provisions of law, any liquors or beverages," or (3) "by otherwise disposing of to another, contrary to the provisions of law, any liquors or beverages."
Our responsibility is to apply the statute according to the intent of the legislature. In discerning the intent of the legislature the Court looks solely to the language of the act, unless it appears that the wording is ambiguous or leads to a result which the Legislature could not have intended. Alabama Industrial Bank v. State Ex rel. Avinger, 286 Ala. 59, 237 So.2d 108 (1970).
We note that the legislature, in describing the conduct which will trigger the application of ง 6-5-71, has employed words and phrases which have or suggest a general application: "any person who shall, by selling, giving or otherwise disposing of to another, contrary to the provisions of law." Had the legislature intended to limit the class of persons against whom an action could be brought, the draftsmen could certainly have employed words much better suited to an expression of such an intent. If it was the intention to create a right of action against only that narrowly defined class of persons, i.e., "commercial dispensers," the draftsmen could have incorporated that term into the act. Or, they could have stopped with the words "by selling." They did not do that. Instead, they included the terms "giving" and "otherwise disposing of." It is hard to imagine a phrase more expansive than "otherwise disposing of."
However, these gerunds are further modified by the phrase "contrary to the provisions of law." Appellees argue that this is evidence of a legislative purpose to regulate those in the business of selling alcoholic beverages. Here also, the choice of words is significant. Elsewhere in the Code, under Title 28, the legislature has enacted an elaborate scheme for regulating the manufacture, dispensing, and consumption *962 of alcoholic beverages. If the purpose was to tie the causes of action allowed under ง 6-5-71 to the legislature's regulation of the industry, that purpose could have been clearly expressed by a specific reference to the provisions under Title 28; the drafters could have provided "in violation of the regulations of Title 28." Such is not the case. Rather, we find the words "contrary to the provisions of law." Again, it is difficult to imagine a compilation of words suggesting a broader application.
Much attention has been devoted to a historical discussion of the Dram Shop Act. Section 6-5-71 is virtually a word-for-word codification of the language of ง 8 of the 1909 Act which first created the cause of action. Act No. 191, ง 8, 1909 Ala. Acts, p. 65. To determine whether the draftsmen of the 1909 Act intended to restrict its application to the commercial setting, we turn to the definitional section of that Act. Section 31 of the 1909 Act defines the term "otherwise dispose of":
"when employed in any warrant, process, affidavit, indictment, information or complaint, or in any bill in equity or other pleading in any judicial proceeding or in any judgment or decree [the term] shall include and be deemed to include barter, exchange, giving away, furnishing, or any manner of disposition by which said liquors and beverages may pass unlawfully from one person to another."
Id. at p. 96 (emphasis supplied).
It is important to observe that the 1909 Act, of which the civil remedy was but one small part, was a very broad enactment intended to "suppress the evils of intemperance," p. 63. A perusal of the entire Act, which spans 33 pages, reveals that much of the current law regulating alcoholic beverages may also be traced to the 1909 Act. The fact is, the Act of 1909, just like the current provisions affecting "dry counties," prohibits virtually all use of alcoholic beverages, without regard to their source. But see Code 1975, ง 28-4-200.
Appellees go beyond the specific wording of the statute in search of support for their position. They present three additional factors which they contend provide such support: (1) the fact that the section is listed under the heading "ARTICLE 6. ILLEGAL LIQUOR SALES"; (2) the fact of frequent reference by this Court in prior cases to ง 6-5-71 as the "Dram Shop Act"; and (3) that prior opinions of this Court imply that a commercial sale is a prerequisite to an action under ง 6-5-71. The latter two factors are readily dismissed. The specific question not having been before the court, the prior case law "implying" such an intent of the legislature provides no guidance and amounts to little more than dicta. Likewise, there is no precedential value in the past references by the Court to ง 6-5-71 as the "Dram Shop Act" when that limited question was not being considered. See Ward v. Rhodes, Hammonds & Beck, 511 So.2d 159 (Ala.1987) (Jones, J., concurring, n. 1) (stating that the label "Dram Shop Act" is a misnomer).
Appellees assert that the legislature's designation "ARTICLE SIX. ILLEGAL LIQUOR SALES" is evidence of an express intent of the legislature to regulate illegal liquor sales. Certainly, if the reader looked at nothing more, the designation would alert in the reader an expectation that Article Six deals with illegal liquor sales. But, appellees attach too much significance to the name given to Article Six. As has already been pointed out, Article Six comes under Chapter 5, "ACTIONS," of Title Six, "CIVIL PRACTICE." Its purpose is to provide a civil remedy for a civil wrong arising out of a violation of law. The designation given by the legislature does no more than alert the reader to the general subject matter covered by the provisions of the Article. See Alabama Constitution 1901, Art. IV, ง 45. The designation is not accorded greater dignity than the substantive provisions of the Article. It is to be read consistent with those provisions, not vice versa, and should not impute a meaning different from that provided by the language of the statute. Where most acquisitions of alcoholic beverages originate from a commercial transaction, *963 it would not be unreasonable to anticipate that most acts giving rise to a civil remedy under ง 6-5-71 would also originate from a commercial transaction. Nor would it be unusual for the draftsmen to reflect that fact by designating the Article "ILLEGAL LIQUOR SALES." We think that the legislature did no more than seize upon a label which would succinctly state the general nature of the causes of action covered under Article Six.
Section 6-5-71 creates a civil remedy against persons who, contrary to law, cause the intoxication of another by providing the other person with alcoholic beverages, when the plaintiff is injured because of the intoxication. The term which most narrowly limits this cause of action is the requirement that the providing of the alcoholic beverages be contrary to law.
The legislature has prohibited all use of alcoholic beverages by minors. Code 1975, ง 28-3A-25(a)(19). Pullen and Bradford were both minors when the lake party was held. See Code 1975, ง 28-3A-2(18); cf. Acts 1986, No. 86-212, ง 2, effective April 1, 1986. It was the clearly stated intent of the legislature that these minors not have access to alcoholic beverages. It has long been recognized that "The sale or furnishing of prohibited alcoholic beverages to a minor is ... unlawful whether made by a licensee in a wet county, or by a nonlicensee in any territory in this State." Phillips v. Derrick, 36 Ala.App. 244, 54 So.2d 320 (1951).
The trend in recent decisions of other jurisdictions is to allow causes of action where adults have assisted in furnishing alcoholic beverages to minors. See the appendix to this opinion.
There are no facts to support an allegation that Watts provided any of the alcoholic beverages consumed by the minors. One of the elements of the cause of action under the Dram Shop Act is that the defendant provide alcoholic beverages to the intoxicated person who caused the injury to the plaintiff. Appellee Watts states in his brief that his only connection to the HHS Jr. Jaycees lake party was his ownership interest in the cabin and his presence during the party; that he took no part in providing the minors with alcoholic beverages. This has not been contested by Appellants in their brief. Therefore, summary judgment was properly granted for Watts.
COMMON LAW NEGLIGENCE
We hold that a common law cause of action does not lie in this case, notwithstanding the case of Buchanan v. Merger Enterprises, Inc., 463 So.2d 121 (Ala.1984). See Ward v. Rhodes, Hammonds, & Beck, Inc., 511 So.2d 159 (Ala.1987).
Therefore, the judgment for Watts is affirmed. The judgment for Huntsville Jaycees, Inc., is reversed, and the cause is remanded for trial.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
TORBERT, C.J., and MADDOX, JONES, ALMON, SHORES, BEATTY and STEAGALL, JJ., concur.
HOUSTON, J., concurs in the result insofar as it affirms the summary judgment for defendant Watts, and insofar as it holds there is no liability under common law negligence, but otherwise dissents.
APPENDIX
Cause of Action Allowed
Fassett v. Delta Kappa Epsilon, 807 F.2d 1150 (3d Cir.1986). (Applying Pennsylvania law, Court of Appeals held that questions of material fact existed as to whether persons helped organize party for purposes of serving alcoholic beverages to minors, and whether they provided substantial assistance to minor in his consumption of alcoholic beverage, thus precluding summary judgment.)
Sutter v. Hutchings, 254 Ga. 194, 327 S.E.2d 716 (1985). (Analogizing to the rule that an owner of an automobile is liable when he entrusts it to an intoxicated individual, the court held that a person who encouraged an intoxicated minor to have *964 more drinks, knowing the minor would be driving an automobile, could be liable to a third person injured by the negligence of the intoxicated minor.)
Brattain v. Herron, 159 Ind.App. 663, 309 N.E.2d 150 (1974). (Violation of statute providing "No alcoholic beverages shall be sold, bartered, exchanged, given, provided or furnished, to any person [under age]" is negligence per se. Cause of action existed where adult acquiesced in minors' helping themselves to liquor from her refrigerator.)
Williams v. Klemsrud, 197 N.W.2d 614 (Iowa 1972). (Court found right of action under Dram Shop Act, against person "not engaged in liquor traffic" for having provided liquor to minor.) See also, Lewis v. State, 256 N.W.2d 181 (Iowa 1977).
Longstreth v. Gensel, 423 Mich. 675, 377 N.W.2d 804 (1985). (Violation of sections of liquor statute prohibiting furnishing of liquor to minor gave rise to action in favor of minor who was served and later injured himself.)
Reinert v. Dolezel, 147 Mich.App. 149, 383 N.W.2d 148 (1985). (Cause of action lies against defendants who furnished alcoholic beverages to persons under the legal drinking age.)
Lover v. Sampson, 44 Mich.App. 173, 205 N.W.2d 69 (1972). (Though the Dram Shop Act applied only to commercial vendors, nevertheless an action can be brought by an injured party against a non-commercial supplier who provides alcoholic beverages to a minor.)
Ross v. Ross, 294 Minn. 115, 200 N.W.2d 149 (1972). (Court found liability against individuals who purchased liquor for 19-year-old and held that Dram Shop Act, though never before applied in a non-commercial setting, imposed liability on all violations.)
Linn v. Rand, 140 N.J.Super. 212, 356 A.2d 15 (1976). (Without reference to any statute, Court held that furnishing of alcoholic beverages to minors in a social setting may give rise to a suit for injuries to third parties.)
Walker v. Key, 101 N.M. 631, 686 P.2d 973 (Ct.App.1984). (Violation of statute prohibiting dispensing of alcoholic beverages to minors gave rise to action by third parties injured by intoxicated minor.)
Huyler v. Rose, 88 App.Div. 755, 451 N.Y. S.2d 478 (1982). (Court found no cause of action under Dram Shop Act, but a common law duty to control the conduct of minor who was intoxicated, argumentative, and combative.)
Wiener v. Gamma Phi Chapter of Alpha Tau Omega Fraternity, 258 Or. 632, 485 P.2d 18 (1971). (Cause of action lies against fraternity that hosted party and served alcoholic beverages to minors and knew, or should have known, that minors were being served.)
Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). (Though court held in companion case that ordinarily there exists no liability on the part of a social host, an action does lie where the server provides alcohol to a minor.)
Douglas v. Schwenk, 330 Pa.Super. 392, 479 A.2d 608 (1984). (Following Congini, court held that "Defendants were more than mere social hosts furnishing liquor, they were knowledgeable persons providing alcohol to a minor....")
Koback v. Crook, 123 Wis.2d 259, 366 N.W.2d 857 (1985). (In action against hosts of high school graduation party, it was negligence per se to furnish liquor to a minor.)
No Cause of Action
United Services Automobile Ass'n v. Butler, 359 So.2d 498 (Fla.Dist.Ct.App.1978). (Deferring to the State legislature, the Court noted that historically there has not been a common law action against the dispenser and that Florida has no Dram Shop Act.)
Cory v. Shierloh, 29 Cal.3d 430, 174 Cal. Rptr. 500, 629 P.2d 8 (1981). (California statute explicitly bars suit against all dispensers.)
Holmquist v. Miller, 367 N.W.2d 468 (Minn.1985). (Civil Damage Act preempts a cause of action against non-commercial *965 dispenser, whether recipient was an adult or a minor.)
Runge v. Watts, 180 Mont. 91, 589 P.2d 145 (1979). (Citing public policy grounds, the court distinguished between the justifications supporting imposition of liability on the commercial vendor and on the non-commercial dispenser and held that the justifications were not sufficient to warrant extension of liability to the non-commercial vendor. Overruled in Nehring v. LaCounte, 712 P.2d 1329 (Mont.1986) (not involving a minor or a non-commercial dispenser), insofar as Runge holds that "the drinking of the intoxicating beverage, not the furnishing thereof, is the proximate cause of any subsequent injury.")
ON APPLICATION FOR REHEARING
HOUSTON, Justice (concurring in part and dissenting in part).
I withdraw my original opinion (concurring in part and dissenting in part, issued May 1, 1987) and in its place substitute the following:
Dram Shop Act actions brought under ง 6-5-71(a), Code 1975, are recognized in Alabama against licensed vendors and purveyors of alcoholic beverages. Certainly there was a scintilla of evidence that Turner Beverage sold beer to minors who were members of the Junior Jaycees; that Turner Beverage accepted a check drawn on the Huntsville High School Imprest Account for this beer; that the check contained the notation "For Jr. JC'sโLake Party Expenses"; and that the beer was removed from Turner Beverage's warehouse by these minors and Turner's employees. Turner Beverage was a licensed vendor and purveyor of alcoholic beverages. Clearly, an action under the Alabama Dram Shop Act against Turner Beverage would have withstood a motion for summary judgment. Buchanan v. Merger Enterprises, Inc., 463 So.2d 121 (Ala.1984). However, that is not the case before this Court. Here the plaintiffs sought to extend the Dram Shop Act to reach the Huntsville Jaycees, Inc., a service organization, which is neither a licensed vendor nor purveyor of alcoholic beverages, and as such in my opinion had no liability under the Alabama Dram Shop Act. The majority opinion permits this.
The majority opinion extends the Alabama Dram Shop Act to social hosts if minors are involved. The Jaycees neither sold nor gave the beer to the minors. In some way, without any evidence of authorization or ratification that I can find in the record, an honorary member, not an active dues paying member served as sponsor of the Junior Jaycees and otherwise disposed of beer to minors by assisting the minors to purchase the beer. How an illegal act of an honorary member of a service organization which is not authorized or ratified becomes the act of the service organization is not addressed by the majority opinion.
I am persuaded that Judge Lynwood Smith's "Memorandum of Opinion and Order on Motions for Summary Judgment" is correct and should be affirmed. Judge Smith presented, in complete and masterful fashion, the reasons for his decision. To the extent that I dissent, I adopt Judge Smith's opinion as my own. It is as follows (omitting citations to the relevant pages of the trial record):
"MEMORANDUM OF OPINION AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT
"These consolidated actions are before the Court on the motions for summary judgment filed by defendants Huntsville Jaycees, Inc., and Richard P. Watts. Upon consideration of the pleadings, affidavits, depositions, and briefs of counsel, the Court renders the following memorandum of opinion and order.
"I. SUMMARY OF FACTS RELEVANT TO THE ISSUES PRESENTED
"On May 16, 1981, the Huntsville High School Junior Jaycees club hosted a party at the lake cabin of defendant Richard P. Watts. The cabin is situated on Guntersville Lake in Marshall County, Alabama, a `dry county.' All but a handful of the persons who attended the party were minors. Nonetheless, a large quantity of iced *966 beer was freely available to all who desired to consume it. The beer had been purchased for the Junior Jaycees by an adult, defendant David E. Worley, with funds provided him by the Junior Jaycees club. David E. Worley was a non-voting, semi-retired, `honorary member' of defendant Huntsville Jaycees, Inc., but he had been approved by that organization as `sponsor' of (or liaison to) the Huntsville High School Junior Jaycees club. Mr. Worley was present at the lake party for a portion of the afternoon it was held, but he personally made no effort to restrict the consumption of beer by the minors present. Moreover, even though defendant Richard P. Watts was present for all but thirty minutes of the party, he also made no effort to restrict the consumption of beer until it became obvious that matters were getting out of hand. As subsequent events proved, however, it was by then too late. One of the young persons present, who had consumed beer to the point of intoxication (former defendant Warren Lee Bradford) was involved in an automobile collision while driving back to Huntsville. The driver of the vehicle he struck was killed, and her two daughtes were seriously injured. Hence, these consolidated actions.
"II. THE ISSUES PRESENTED
"The motions raise a number of troublesome questions. In the main, however, there are two, overwhelming questions. One, does an action for damages under the Alabama dram shop act lie against either the organization that established and sponsored the Huntsville High School Junior Jaycees club, or the property owner who permitted the party to be held on his premises? Two, if not, does an action founded upon common law principles lie against either defendant?
"Surprisingly, neither question has been squarely answered by the appellate courts of this State. There is no decision on all fours. Consequently, close attention must be paid to those appellate decisions and other authorities which may be found, in order to glean a direction for reasoning. Hence the following detailed analysis of the facts and law applicable to these actions.
"III. FULL STATEMENT OF THE FACTS RELEVANT TO THE ISSUES PRESENTED
"A. THE HUNTSVILLE JAYCEES, INC.
"`The Huntsville Jaycees, Inc. is a service organization created to benefit and improve the City of Huntsville.' It is affiliated with a national organization founded in 1920, and then known as the `Junior Chamber of Commerce.' (The name was changed in 1965 to the `United States Jaycees.')
Jaycees are organizations that stress individual development through leadership training and civic involvement. * * Jaycees learn to be leaders by working in community improvement programs. They sponsor programs on youth development, government affairs, health, safety, and international relations.
11 World Book Encyclopedia 51 (1976). Jaycees believe, as a creed ...:
[That] faith in God gives meaning and purpose to human life. That the brotherhood of man transcends the sovereignty of nations. That ... economic justice can be best won by free men through free enterprise. That government should be of laws rather than of men.
"Ernest C. Kaufmann II was President of the Huntsville Jaycees, Inc., from June 1, 1980, through May 31, 1981. That year, the local Jaycees had `a minimum' of 300 members. The general membership met twice each month, as did the Board of Directors (but on dates different from the general membership meeting).
"The Huntsville Jaycees, Inc., conducted a number of community programs during 1980-1981. At least one of those programs (the Northeast Alabama State Fair) generated a large cash flow. Nonetheless, the `corporation' was loosely structured. Minutes of meetings were kept only on a `sporadic basis.' There was neither a central depository for, nor any member designated to preserve, corporate documents on a `permanent basis.' Rather, all organizational *967 records were `kept ... loose,' in the home or garage of the individual who was secretary during any particular organizational year.
"B. THE HUNTSVILLE HIGH SCHOOL JUNIOR JAYCEES
"The Huntsville High School Junior Jaycees (HHS Jr. Jaycees) is a high school service and social club. The members must be enrolled in Huntsville High School, have completed their sophomore year, and be at least sixteen years old. All general meetings of the club (with the exception of the year-end Awards Banquet and Lake Party) are held in Huntsville High classrooms. Election of new members to the club and of officers for the succeeding year, occurs near the end of each school year. Thus, in late April or early May of 1981 the following young men were elected officers of the HHS Jr. Jaycees for the forthcoming 1981-1982 school year:
"PRESIDENT: John Watts (son of Richard P. Watts);
"VICE-PRESIDENT: Drew Crow;
"SECRETARY: David Vest; and,
"TREASURER: Wes Neighbors (son of Wm. W. `Billy' Neighbors, Jr.). This new slate of officers was responsible for planning and preparing both the 1980-81 year-end Awards Banquet and [the] Lake Party.
"C. DISTINCTIONS BETWEEN THE TWO ORGANIZATIONS
"The defendant Jaycees did not control the day-to-day activities of the HHS Jr. Jaycees. There really is no question about that. Rather, as David Vest (Secretary of the HHS club) testified, the Junior Jaycees did not seek the `input' or `permission' of the Huntsville Jaycees, Inc., for every club activity. `It was our club to run as we saw fit in an orderly and respectful manner.' Thus, the HHS Jr. Jaycees engaged in school activities, and, conducted community service projectsโsuch as helping at `an old folks' home'โindependent of the defendant Jaycees.
"Moreover, the Huntsville Jaycees, Inc., did not provide any financial assistance to the HHS Jr. Jaycees. The high school organization was `self-sustaining.' Each school year, the club would raise its own funds by means of such things as `a talent... or gong show,' or firewood sale. The proceeds from those projects were deposited to the `Imprest Account' maintained by the administration of Huntsville High School, and drawn on as necessary to meet club expenses. The expenditures occasioned by the year-end Awards Banquet and Lake Party, for example, were paid by means of checks drawn on that account.
"Nonetheless, there were seven significant connections between the defendant Jaycees and the HHS Jr. Jaycees during 1980-1981. And it is those connections that now shall be discussed.
"D. CONNECTIONS BETWEEN THE ORGANIZATIONS
"First among such connections, of course, is ... the fact that both organizations share the name of `Jaycees.' The implications of that shared title are obvious, in spite of the many ways in which the defendant Jaycees have sought to disavow any relationship. Nevertheless, it is undisputed that the Huntsville Jaycees, Inc., `established' and `organized' the Junior Jaycee chapters in area high schools. [Testimony of Randy Morris.][1] Moreover, it is not disputed that the parent organization appointed individuals to `stay in touch with' the high school chapters for the purposes of coordinating common community activities (discussed infra), determining whether the junior clubs needed assistance from the senior club, and also ensuring that the high school chapters `keep [to] that purpose' for which they were established.
"Second, the HHS Jr. Jaycees assisted each year in the `March of Dimes Walkathon' *968 sponsored by the Huntsville Jaycees, Inc. In that activity, the Huntsville Jaycees solicit area elected officials, personalities, dignitaries, and other `residents [to] walk 15 miles and get money donated per mile' for the benefit of the March of Dimes. Members of the HHS Jr. Jaycees were stationed at each of the fifteen-mile checkpoints, and stamped each participant's card for verification of the distance walked.
"Third, the HHS Jr. Jaycees assisted every year in the conduct of the `Northeast Alabama State Fair' by:
picking up garbage, taking up tickets at the gates, patrolling the fences, helping park cars, directing traffic onto the parking areas. * * * Whatever ... needed to be done.
In other words, from Monday through Saturday night of each Fair week, the HHS Jr. Jaycees performed many of the same functions as members of the Huntsville Jaycees, Inc., `[w]ith the exception of handling money.'
"Fourth, each organizational year the Huntsville Jaycees, Inc., designated one general membership meeting as `Junior Jaycee Night.' The officers of Junior Jaycee chapters were invited to attend, and were recognized at that meeting.
"Fifth, in return for the assistance they rendered the parent Jaycee organization during the March of Dimes Walkathon and the Northeast Alabama State Fair,
the Huntsville High Junior Jaycees were allowed to use the Bonn Building on the fairgrounds to hold their annual banquet. Nothing other than the building was provided by us for their banquet. A request was made by them for us to let them use the building for a party, but this request was refused. ...
[Emphasis added by Judge Smith.][2]
"The sixth connection is an ironic one. The defendant Jaycees took credit for sponsoring and promoting the laudable community service projects of the HHS Jr. Jaycees. In award competitions among State and National Jaycee organizations, the defendant Jaycees, on at least three occasions, listed the HHS Jr. Jaycees program as an example of their youth development programs in this City. `We won a state award and a national award for the Huntsville High chapter.' David E. Worley contends that prior to 1980-81, he, personally, was given an award by the defendant Jaycees in his capacity as sponsor of the high school chapter, `for having one of the better projects, or the best project' during the year.
"The seventh, and possibly the most significant, connection is that David E. Worley served as `sponsor' for the HHS Jr. Jaycee chapter. In that capacity, he served as liaison between the two organizations, and coordinator of their joint activities. To perform those duties, Worley periodically attended meetings of both clubs.
"Of course, for summary judgment purposes the question of whether David E. Worley was the principal link in the chain connecting the defendant Jaycees to the high school chapter is a `material fact.' And in that regard, the defendant Jaycees have gingerly attempted to imply there is a `genuine issue' about that fact, without *969 flatly stating such.[3] But, in spite of the understandably cautious manner in which they approach the question, in the final analysis they do not deny that Worley was the club's sponsor.[4] Indeed, as the following summary of the evidence should make clear, they really can not deny that connection.
"(1) Worley, himself, asserts that he was the sponsor of the club, practically from its inception. While admitting that he had passed the age of 36 by the year 1981, and thus could no longer vote or hold elected office in the Huntsville Jaycees, Inc., Worley insisted that he continued to attend the meetings, and to participate in the activities of that organization as `an honorary member.' Furthermore, Worley asserts that, during the `first three or four years' of the club's existence, he was asked by either the President or the `external Vice-President' of the defendant Jaycees to serve as sponsor for the HHS Jr. Jaycees. But, `in the last couple, two, three years that I was [sponsor], it was at the request of the Junior Jaycees, and okayed by the Jaycees.' [Emphasis supplied by Judge Smith.]
"(2) All members of the HHS Jr. Jaycees who have been deposed state, unanimously, that David E. Worley was their sponsor.
"(3) Joe L. Anglin, Jr., the Principal of Huntsville High School, has stated that Worley was the club's sponsor.
The Huntsville Jaycees, Inc. ... sponsors a club at Huntsville High School called the Junior Jaycees. School policies require that the sponsoring organization furnish a sponsor for the club to assist in its functions and to coordinate the club's on-and-off campus activities. The clubs also have a school faculty member sponsor who assists the clubs in [their] school-related activities. The sponsor assigned to the Huntsville High Junior Jaycees by the Huntsville Jaycees, Inc. from the time the club was organized up through the 1980-81 school year was David E. Worley. Beginning with the 1981-82 school year the Huntsville Jaycees, Inc. replaced David E. Worley as the school club sponsor by designating John Zachary in place of Mr. Worley as the club sponsor. Mr. John Zachary was also the club sponsor for the 1982-83 school year.
It should be noted, at least in passing, that the `school faculty member sponsor,' to whom Mr. Anglin makes reference above, was Mrs. Sandra Norton during the 1980-81 school year. However, as the boys have testified: `She was just a name,' used by the club to comply with the stated school policy.
She didn't go to any of the meetings. She didn't do anything. Like when we needed something signed by our sponsor at school she would sign it and that was it.
"(4) Finally, counsel for defendant Huntsville Jaycees, Inc. stipulated during pre-trial conference that David E. Worley `was one of the sponsors of the Junior Jaycees.'
"Thus, when all of the evidence is summarized, the links in the organizational chain connecting the defendant Jaycees with the HHS Jr. Jaycees may be depicted *970 by the diagram shown [at a later point in this opinion.]
"E. PREPARATIONS FOR THE HHS JR. JAYCEES LAKE PARTY
"Each year for a number of years, the HHS Jr. Jaycees had held `a big social event' for club members and their invited friends. [The year] 1981 was no different. Thus, at one of the last club meetings during the 1980-1981 school year, the members discussed party plans. Someone suggested that beer be purchased `from Ragland's place,' but David E. Worley, who admits he was present, allegedly stated he could get the club `a special deal.'
He said we could get it for nine dollars a case, so we decided on thirty cases of beer, voted on thirty cases of beer, [and] that's the reason for the two hundred seventy dollar check.
"On Friday, May 15, 1981, Wes Neighbors obtained from `Mrs. Pukl' in the main office a check drawn on the `Huntsville High School Imprest Account' in the amount of $270, and drawn payable to the order of `Wes Neighbors.' The check shows that it was `FOR Jr. JC'sโLake Party Expenses.'
"Later that same afternoon, following the end of classes for the day,[5] Wes drove with David Vest to the law office of David E. Worley. Wes endorsed the back of the check and gave it to Worley. Wes and David Vest then followed Worley to Turner Beverage Company. They arrived late in the day, just as the business was closing. Worley also endorsed the back of the check, and handed it to `Tully' Turner, owner of the beverage company. Half-cases of Budweiser beer were loaded by the boys and employees of the beverage company into the trunks of Vest's and Worley's automobiles. That done, the boys followed Worley to his residence. The beer was stored on Worley's screened, back porch.[6] When unloading the beer, the two boys were surprised to learn they had purchased not 30 full cases, but 51.
"The following morning of Saturday, May 16, 1981, Wes Neighbors and David Vest returned to Worley's home. They loaded 31 to 35 cases of the beer into the bed of George Mahoney's black Ford pick-up truck, which they had borrowed for the purpose, and covered it with tarpaulins. Wes and David Vest, after meeting John Watts and George Mahoney at another location, then drove the beer from Huntsville to the cabin of Richard P. Watts on Guntersville Lake, in Marshall County.
"Richard P. Watts is the father of John Watts, the newly elected President of the HHS Jr. Jaycees. He and his wife, Jean Cummings Watts, own an undivided one-third interest in the lake home where this party was to be held. The other two-thirds interest is owned by Jean Watts' two sisters and their husbands. The cabin is situated in a `dry' county. But, Richard Watts was under the impression that it was permissibleโeven for minorsโto consume beer in a dry county, `if it was on private property.' Moreover, Richard Watts asserts that he was not asked, nor did he give his son permission, to hold the HHS Jr. Jaycee party at the cabin. Rather, he contends, his wife (and John's mother) was the one who gave permission, and he did not learn of the plans until two days before. In any event, the party was held at that cabin, and Richard P. Watts was present throughout most of the day.
"When the four boys arrived at the Watts cabin around noon, they iced the beer down in `long legged' metal Coca-Cola coolers. John Watts had, apparently surreptitiously, obtained those coolers from the Bonn Building at the Jaycees' fairgrounds. `I don't think they knew we had them ...' [said Wes Neighbors]. They then spread out barbecued pork and other edibles left over from the annual Awards *971 Banquet, held the previous week, and waited for everyone else to arrive.
"F. THE PARTY ITSELF
"And arrive they did. Estimates of the number who attended vary from a low of forty to a high of 110. During the early part of the afternoon, there was little or no control over access to the beer. Anyone could walk up to the coolers and help him or herself to as much as desired.
It was available to anybody that wanted it. At the first ... we were handing it out and I guess people got tired of handing it. We were going to take hours [i.e., shifts] at a time, [and] I had the first two hours to make sure nobody came up and took a whole bunch off ... in a boat or something, but after a while it was just out in the open and nobody was watching it.
[Wes Neighbors.] Consequently, things began to get out of hand, as Wes Neighbors later implied by his choice of the words `wild' and `melee' to describe the scene.
"According to Wes Neighbors, just about `everybody' who attended the party `was pretty much intoxicated, except for Mark Pullen and John [Watts]....' Four young people `passed out totally,' and had to be placed on beds in the Watts cabin. Many more were not capable of safely operating a motor vehicle. Warren Lee Bradford was among those.
"`Late in the morning, maybe ten-thirty, eleven' o'clock on May 16, 1981, Warren Lee Bradford (son of Dr. Ivan B. Bradford) called at the home of Dr. Joe R. Pullen for his son, Mark. The two boys then drove from the Pullen residence to Guntersville Lake in Dr. Ivan Bradford's 1978 International `Scout,' a four-wheel drive vehicle. Lee Bradford, the driver, was eighteen years old. His friend, Mark Pullen, was 17. They arrived at the Watts cabin around noon. From then until 3:30 that afternoon, the boys admittedly consumed some beer. Pullen said he drank four cans of Budweiser. Lee Bradford estimated he drank five or six cans, in conjunction with `three or more' barbecued pork sandwiches. Whatever the true facts may be, Lee Bradford became noticeably intoxicated. According to Wes Neighbors, Bradford's speech was slurred, he staggered, he kissed a girl that `wasn't his girlfriend,' and `he couldn't run a race.'
"Former [University of] Alabama All-American (and NFL All-Pro) football player Billy Neighbors also drove to the Watts cabin that afternoon. He went to check on his son, Wes, and arrived about 1:30. For a while he talked with Richard Watts and David E. Worley, who attended the party in his capacity of club `sponsor' and father of Jonnie Worley, the `Sweetheart' of the HHS Jr. Jaycees. By 3:30, however, Billy Neighbors decided that enough was enough. He and Richard Watts stopped the flow of beer. According to Wes Neighbors, his father `laid down the law.... [A]nd my dad got a lot of respect from everybody, to say the least.' Richard Watts told the boys to load the beer back into the bed of the pick-up truck. And Billy Neighbors told John Watts to remove the ignition keys from Warren Lee Bradford's Scout. The keys were given to Mark Pullen with instructions that he was to drive the vehicle back to Huntsville. Billy Neighbors told Bradford that he would `kick his tail' if he tried to drive home.
"The two boys followed those instructions, after a fashion. Pullen and Bradford remained at the cabin for possibly as much as another hour, drinking no more beer. They left `around four [or] four-thirty,' with Mark Pullen behind the wheel. At the point where U.S. Highway 431 changes from a two-lane to a four-lane roadway, however, Lee Bradford `demanded,' `forcefully,' that Pullen let him drive the car. Mark pulled onto the shoulder of the road, and the boys changed positions.
"The boys almost made it safely home. Just after they had crested Monte Sano Mountain, and were on their way down into the city proper, `moving to the [beat of the] music' playing on the car's stereo/radio, laughing, and `in a good mood,' Bradford lost control of the vehicle. It skidded across his two lanes, across a wide, grassy median separating the lanes of traffic, and *972 into the path of plaintiffs' oncoming vehicle.
"Neither Mark Pullen nor Lee Bradford was injured very badly. It was another story with the plaintiffs, however. The driver, Georgia L. Hazelrig, died. Her two daughters, Kerri M. Martin and April Kelli Hazelrig, were horribly injured.
"Warren Lee Bradford was subsequently indicted and prosecuted for manslaughter. He was convicted by a jury of criminally negligent homicide. And, of course, these civil actions were brought against those defendants listed in paragraph 1 of this Court's Order on Pre-Trial Hearing. Since then, however, a substantial out-of-court settlement was reached with certain defendants. And the claims against Warren Lee Bradford, Ivan B. Bradford, and Mark Edward Pullen have been dismissed, by stipulation, with prejudice. This Court also granted Billy Neighbors's motion for summary judgment. Which brings us, then, to the instant motions.
"G. HUNTSVILLE JAYCEES, INC. AND HHS JR. JAYCEES ORGANIZATIONAL DIAGRAM
*973
"IV. DISCUSSION OF ISSUES PRESENTED
"A. DOES THE DRAM SHOP ACTION LIE?
"The Alabama legislature first enacted a dram shop act in 1909. It came into being as section 8 of Act Number 191, passed during the 1909 Special Session. It read as follows:
8. That every wife, child, parent or other person who shall be injured in person, or property or means of support by any intoxicated person, or in consequence of the intoxication of any person, shall have a right of action against any person who shall by selling, giving or otherwise disposing of to another contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person, for all damage actually sustained, as well as exemplary damages; upon the death of any party the action, or right of action will survive to or against his executor or *974 administrator. The party injured, or his legal representatives, may bring a joint or separate action against the person intoxicated, or who furnished the liquor; and all such suits shall be by civil action in any court having jurisdiction thereof.
1909 Acts of Alabama, Act No. 191, ง 8 at 65-66 (Aug. 25, 1909) (emphasis supplied).
"The troublesome phrase in the statute is emphasized: i.e., `selling, giving or otherwise disposing of....' (the same language now is found at Ala.Code, ง 6-5-71(a) (1975)). The moving defendants contend they did not sell, give, furnish, or otherwise dispose of the intoxicating beverages consumed by Warren Lee Bradford, or any other member of the HHS Jr. Jaycee Club. Plaintiffs contend the statutory language is un ambiguous, and clearly applicable to the facts of this controversy. These conflicting positions raise the question of what the Alabama Legislature intended when it employed the disputed language. Surprisingly, the answer to that question requires a more intensive inquiry into the history of our dram shop act than this Court initially surmised.
"1. The Historical Common Law Position
"At common law, no action to recover damages for injuries caused by intoxication could be brought against the person who furnished liquor to another, whether by sale, by gift, or by other means. The reason generally given for the common law rule was simple. The voluntary consumption (and not the dispensing) of liquor was deemed the proximate cause of injuries sustained as a result of intoxication. See, 45 Am.Jur.2d, Intoxicating Liquors งง 553, 554 (1969). `The rule was based on the obvious fact that one cannot be intoxicated by reason of liquor being furnished him if he does not drink it.' Nolan v. Morelli, 154 Conn. 432, 226 A.2d 383 (1967).
"The common law rule was enunciated in Alabama in King v. Henkie, 80 Ala. 505 (1876). Mrs. King, the widow of a man who died as a result of excessive consumption of alcohol, brought suit under the wrongful death statute against the owners of a Tuscumbia saloon. She alleged that her husband had stumbled into the bar one day `in a hopeless state of intoxication' and, while `in this condition of helplessness and mental darkness,' the proprietors ...
in violation of law, furnished, gave and sold to the plaintiff's intestate a large quantity of intoxicating liquors which he drank, and which caused the death of plaintiff's intestate before he left said saloon....
Id., at 506. The `violation of law' to which plaintiff referred in her complaint was a provision of the 1876 Code of Alabama which made it a misdemeanor to furnish any quantity of liquor to `persons of known intemperate habits except upon the requisition of a physician for medicinal purposes....' Id., at 508. In affirming the trial court's dismissal of the action, the Supreme Court said:
The death of the deceased was not `caused' so much by the wrongful act of the defendants in selling him whiskey, as by his own act in drinking it after being sold to him. The only wrongful act imputed to the defendants was the selling, or giving, as the case may be, of intoxicating liquors to the deceased while he was in a stupidly drunken condition, knowing that he was a man of intemperate habits. * * * The act ... was a statutory misdemeanor. But this was only the remote, not the proximate or intermediate, cause of the death of plaintiff's intestate. * * * Had it not been for the drinking of the liquor, after the sale, which was a secondary or intervening cause co-operating to produce the fatal result, and was the act of deceased, not of defendants, the sale itself would have proved entirely harmless. Hence it can not be said that the wrongful act of the defendants, in making sale of the liquor, caused the death of King; but rather his own act in drinking it.
King v. Henkie, supra, at 510.
"2. Remedial Legislation
"The common law rule expounded by such cases as King v. Henkie eventually was overthrown by legislative enactments *975 in a number of states.[7] But such remedial legislation was not generated as much by a legislative rejection of the courts' rationale,[8] as it was encouraged by both the temperance and prohibitionist movements.[9]
"Referred to as either `civil damage acts' or, more commonly, `dram shop acts,' such statutes create a cause of action against the suppliers of liquors under specified circumstances, and in favor of specified persons. The language of such statutes varies from state to state. See, generally, the authorities cited in note 7, supra. Consequently, each act must be closely studied to determine who is entitled to sue, who may be sued, under what circumstances suit may be brought, and for what damages. Generally speaking, however:
One thing that must be constantly borne in mind when considering such acts is that the right and remedy created by them are exclusive; no right of action exists except as expressly given by the statutes, and the remedy prescribed cannot be enlarged except by further legislative enactment.
45 Am.Jr.2d Intoxicating Liquors ง 561 (1969) (emphasis supplied). See also footnote 16, infra.
"In addition, there is one other principle upon which the authorities are generally consistent: liability under such dram shop acts extends only to those engaged in the business of manufacturing, distributing, or selling intoxicating liquors.
Although dram shop or civil damage acts usually provide for the recovery of damages from `any person' giving or selling intoxicating liquor, the general rule appears to be well established that such statutes were not intended to and do not create a right of action against one who gives another the beverage as a mere act of hospitality or social courtesy and without pecuniary gain, but instead provide a right of action only against those in the business of selling liquor.
Annot., 8 A.L.R.3d 1412, 1413 (1966) (emphasis supplied). An instructive case on this point is Miller v. Owens-Illinois Glass Co., 48 Ill.App.2d 412, 199 N.E.2d 300, 8 A.L.R.3d 1402 (App.Ct.1964).[10]
*976 "3. The Alabama Dram Shop Act: Its Judicial Interpretation
"Unfortunately, the appellate courts of Alabama have not squarely addressed the question of whether our dram shop act provides an action against persons (such as defendants herein) who are not engaged in the business of manufacturing, distributing, or selling liquor. Even so, the case of DeLoach v. Mayer Electric Supply Co., 378 So.2d 733 (Ala.1979), supports (at least inferentially) the argument that the question would be answered negatively.
"In DeLoach, defendant Mayer Electric hosted an `open house' and `New Products Show' on its premises. Food, soft drinks, and beer were gratuitously provided for consumption by those who attended. Mayer Electric's employees were among the invited guests. One such employee became intoxicated. After leaving the function, he drove his automobile onto the wrong side of Interstate 59, and into the motorcycle of a uniformed policeman. The policeman was seriously injured, and brought suit against both Mayer Electric and the business entity (Britling's) which had catered the function. Id., at 733-34. He contended the Alabama dram shop act applied because those defendants had `sold' liquor without being licensed to do so. See Ala. Code งง 28-3-260(10), 28-3-1(16) (1975). In an opinion affirming the trial court's entry of summary judgment in favor of defendants, the Supreme Court did not write expansively. Rather, in speaking for the Court, Mr. Justice Bloodworth said only that `there was no "sale" within the meaning of' the Code sections referred to above and, therefore, `the Dram Shop Act is not applicable.' Id., at 734-35.
"Admittedly, the DeLoach opinion is susceptible to conflicting interpretations. On one hand, it may be argued that the decision should be limited to its facts, and to its specific holding of no `sale,' because no compensation changed hands between the drunk and the supplier of the liquor. On the other hand, it also may be persuasively argued that DeLoach should be read more broadly, and as holding that the Alabama dram shop act normally does not apply in the absence of a sale (e.g., when the liquor is furnished gratuitously, in a social setting).
"In choosing between these conflicting interpretations, this Court is persuaded by the following authorities that the latter is the correct one.
"The broader holding suggested by DeLoach is supported by Phillips v. Derrick, 36 Ala.App. 244, 54 So.2d 320 (1951). In that case, the Alabama Court of Appeals stated that Alabama's dram shop act:
evidences a policy on the part of the law-making body to discourage the illegal sale of alcoholic beverages.
Id. at 246, 54 So.2d at 321 (emphasis supplied). The Phillips court emphasized the commercial focus of the Act by utilizing the words `sale,' `sell,' and `sold' no less than thirteen times in the course of two pages.
"In like manner, an early Supreme Court decision construing the dram shop act indicated that the action lay only against one in the businessโalbeit, the illegal business โof selling liquor. Thus, in Webb v. French, 228 Ala. 43, 152 So. 215 (1934), after first noting that the Act had come into existence as part of a sweeping `prohibition enforcement measure,' the Alabama Supreme Court held that the dram shop act:
creates a cause of action against the bootlegger (to use a modern term) for personal injuries to third persons at the *977 hands of one to whom the bootlegger has furnished prohibited liquor and the injury is the proximate consequence of intoxication from such liquor.
Id. at 44, 152 So. at 216 (emphasis supplied).
"Moreover, Alabama Pattern Jury InstructionsโCivil 36.92 begins with the following language: `Because public policy discourages [the] illegal sale of alcoholic beverages....' (Emphasis supplied.)
"Finally, the most recent pronouncement of our Supreme Court on the dram shop act contains this statement: `Alabama's dram shop statute creates a civil action against a purveyor of alcoholic beverages....' Buchanan v. Merger Enterprises, Inc., 463 So.2d 121, 122 (Ala.1984) (emphasis supplied). Webster's Third New International Dictionary (1971 unabridged ed.) defines `purveyor' as `one who provides victuals or whose business is to make provisions for the table,' at 1848 (emphasis supplied).
"However, the keys which unlock the statutory scope intended by the Alabama Legislature when it inserted the phrase `selling, giving or otherwise disposing of' into the dram shop act will not be found in the foregoing authorities. Rather, those interpretive keys are found in the history of the temperance and prohibitionist movements in Alabama, and in the statutory changes which those movements impressed upon public policy (of which the dram shop act is but one).
"4. The Alabama Dram Shop Act in Historical Context
"The question of liquor regulation pre-dates statehood. It was an important issue of government from the time settlers first moved into the region which eventually became the State of Alabama. `[E]ach colonial government ... found it necessary to devise ways and means of handling the problem of liquor control.' J.B. Sellers, The Prohibition Movement in Alabama 1702-1943, at 1 (1943) (hereinafter Sellers). From then until now, the questions of whether, and how, to control liquor have been persistent issues of our political history.
"But, the prohibition issue virtually dominated State politics during the first two decades of the twentieth century. The explanations for that political phenomenon are varied, and interesting.[11] Even so, an exploration of the socio-economic bases of the temperance and prohibitionist movements ultimately would prove a non-productive, ambiguous digression.[12] On the other hand, an examination of legislative action on the issue (and judicial construction of such acts) provides important information for interpreting the intended scope of our present dram shop act.
"(a) The Vanguard of Temperance: Late 19th Century Prohibition Acts & Their Judicial Interpretation
"As the last Federal troop trains crossed Alabama's northern border at the end of Reconstruction, the temperance and prohibitionist forces began to stir. See, Sellers 40-51. From then until 1909, the movements steadily grew, both in the number of their adherents and in the intensity of their demands. Id., at 52-100.
"Initially, the efforts of the prohibitionist forces to impress their ostensible, moralistic *978 views[13] upon public policy met with only limited success. During the 1880s and 1890s, the movements succeeded only in the enactment of sporadic special acts of legislation prohibiting the `manufacture, or sale, or other disposition of ... intoxicating liquors within the limits of' particular counties, or particular areas of a county.[14]
"Nonetheless, for two reasons, those early efforts at prohibition on a local level provide important precedents for construing the scope of our present dram shop act.[15] First, some of those local prohibition acts contained statutory phrases identical, or strikingly similar to the phrase that is so troublesome in the present case: i.e., `selling, giving or otherwise disposing of....' And second, a number of cases arising under those acts, and requiring a construction of such language, were appealed to the Supreme Court of Alabama. A review of those decisions furnishes helpful interpretive insights.
"The first significant decision is Reynolds v. State, 73 Ala. 3 (1882). In Reynolds, the defendant was indicted and convicted for violating a local act of the legislature which made it a crime to `make, sell, or otherwise dispose of any spirituous or malt liquors' in Dale or Henry Counties. The evidence against him showed that the defendant `gave' two drinks of whiskey to the prosecution's witness at his home. There had been no sale, in the sense of compensation changing hands. On appeal, the Supreme Court reversed, saying:
To dispose of, ... when used in reference to property, means to part with the right to, or ownership of it; in other words, a change of property. If this does not take place, it would scarcely be said that the property is disposed of. ... In this (possibly injurious) act of hospitality, we apprehend no one would entertain the thought of a change of property, or ownershipโthat he was thereby `disposing of' the article thus used and consumed. Quite as appropriate would it be to affirm that the host had disposed of the viands his friend consumed, while enjoying a hospitable dinner with him.
We would not be understood as affirming that no disposition can be made, under the statute we are construing, except by bargain and sale. A gift, consummated by delivery, works as complete a change of property or ownership, as does a sale on valuable consideration. What we declare is, that the act, shown in the evidence in this case, was not a disposing of the liquor, within the contemplation of the legislature.
During the same session of the legislature at which the statute in question was enacted, several other statutes of kindred character received the approval of that body. In some of them we find the same words, `sell, or otherwise dispose of.' Sometimes the language is more express, and inhibits the `giving away' of intoxicating liquors. We do not know that this variance in phraseology changes the meaning, or imposes the duty of a changed interpretation. That question is not now before us.
Reynolds v. State, supra, at 4.
"Three aspects of the Reynolds opinion are worthy of note. First, the Supreme *979 Court did not liberally construe the language of a statute in derogation of the common law.[16] Second, the Court applied the `ejusdem generis rule' when holding that the phrase `otherwise dispose of' meant only a disposition in the nature of a sale.[17] And third, the court reserved for later decision the construction of the phrase `sell, give, or otherwise dispose of.' The opportunity to construe that phrase was presented the Court within a year.
"In Amos v. State, 73 Ala. 498 (1883), the defendant had been indicted and convicted of violating a local act of the legislature which made it a crime to `sell, give away, or otherwise dispose of spirituous, vinous or malt liquors' in Conecuh County. At trial, the prosecution had shown that defendant's father owned a store in Conecuh County, and that the father had ordered five gallons of whiskey for a man named `Bethea.' When the whiskey arrived, Bethea `had no way to take it all away,' so he persuaded the defendant's father to store it for him in a small building the storekeeper used to keep `other things incident to his business.' From time to time, Bethea would come to the store and defendant, or defendant's father, would draw off a portion of the stored whiskey, and give it to Bethea. The evidence further disclosed that defendant, though frequently about his father's store, `was not connected with his father's business in any capacity....' `Id., at 499-500.' On appeal, the Supreme Court reversed, holding that on the foregoing state of the evidence the defendant could not be said to have violated the statute. The defendant had not sold the whiskey to Bethea; his father had.
"Moreover, the defendant had not given the whiskey to Bethea (in the sense of parting with the ownership of property) because Bethea already owned it. And finally, it could not be said that the defendant had `otherwise disposed of' the whiskey because, under the principle of ejusdem generis, that phrase had to be construed as applying only to transactions that fell within the classification of a sale or gift.
The manifest purpose of the statute, taking the words in their ordinary signification, is the prohibition of all dealing in the nature of trade or traffic, in the locality specified.... The effective words are `sell, give away, or otherwise dispose of'; all of which, in a general sense, found in this connection, signify some act by which one person parts *980 with, to another, possession or ownership of property. A sale, ex vi termini, imports the transfer of personal property upon a valuable consideration; and a gift imports a like transfer gratuitously, or upon a merely good consideration. The more general words, `or otherwise dispose of,' following the more specific or particular words, `sell, or give away,' upon a settled rule of statutory construction, a larger legislative purpose not being clearly expressed, must be construed as extending only to a disposition ejusdem generis with a sale or a gift; they are not to be extended to any and every act which may be said to be a disposition. The rule is, when general words follow, in a statute, words of particular and special meaning, if there be not a clear manifestation of a different legislative intent, they are construed as applicable to persons or things, or cases of like kind, as are designated by the particular words. ... It would be a departure from the rule, not necessary to give effect to the Legislative intent, and not within it, to give the general words, `or otherwise dispose of,' a meaning so loose and expansive as to include within them any act not akin to a sale or a gift, not intended as, and not having in it any of the properties of, a parting with property by one person to another. A common carrier, transporting the enumerated liquors to the designated locality, and there delivering them to the consignee, or to the true owner, it may be said, in a large and loose sense, disposes of them. A warehouseman, with whom they were stored, delivering them on demand, could also be said to dispose of them; and a destruction of them intentionally could be denominated a disposition; and yet, these acts are not within the proper significance of the general words, nor are they within the objects and purposes of the statute.
Amos v. State, supra, at 501-02 (emphasis supplied).
"The next case of significance is that of Norris v. Town of Oakman, 138 Ala. 411, 35 So. 450 (1903). In Norris, the defendant had been convicted of violating a city ordinance which made it a misdemeanor to `sell, give away, ... or cause to be ... delivered' any liquors on a Sunday. The evidence at trial established that Norris was both an employee of, and a boarder in the house of, a man named Coudan. Mr. Coudan owned a saloon. One Sunday afternoon, Mr. Coudan instructed Norris `to go down to the saloon and bring up some beer for him and the defendant.' Norris did so, and `he and Coudan and son drank the beer as they desired it' for the rest of the afternoon. For these acts, the defendant Norris was convicted. On appeal, however, the Supreme Court reversed. The Court first noted that Norris could not be convicted for having sold the beer because Coudan owned it. For the same reason, Norris did not `give away' the beer, because one cannot give what one does not own. All of which brought the Court to the word `delivered.'
One may, as a physical fact, deliver to another something he is in possession of but in which he has no personal interest, and which belongs to the one to whom it is delivered. Such an act would have in it no element of a sale or a gratuitous giving away. Reynolds v. State, 73 Ala. 3. Such seems to be the character, exactly, of the delivery of the beer by defendant to Coudan in this case. The word `delivered' implies other and more general meaning than the specific or particular words `sell' or `give away,' as employed in the ordinance, and which words it follows, and must, on a settled rule of statutory construction, be held to extend only to a disposition, ejusdem generis, with a sale or gift. Amos v. State, 73 Ala. 498.
Norris v. Town of Oakman, supra, at 414-15, 35 So. at 451 (emphasis supplied).
"The last case to be considered, Maxwell v. State, 140 Ala. 131, 37 So. 266 (1904), arose out of the following facts.
... G.S. Harmon, a witness for the State, testified that ... he went to the mill owned by John H. Maxwell, the father of the defendant, and asked for the defendant's father, and was told that he was away from the mill; that he waited for *981 the return of the said John Maxwell for about two hours and then stated to the defendant that he could wait no longer, and told him that he wanted to get from defendant's father some whiskey for his (witness') wife, who was sick, and asked the defendant to take the bottle which he gave him, and see if he could get the whiskey for him, stating to defendant that it would be all right with his father, and that his father had before given him whiskey for his wife; that the defendant took a quart bottle which the witness gave him, went away, and brought back a quart of whiskey, and put it in the witness' buggy; that thereupon the witness handed to the defendant 25 cents, and said to him, `That is for your trouble'; that a quart of whiskey was worth 50 cents; and that he knew the defendant was under age. ...
Id. (Emphasis supplied.) On these facts, Buck Maxwell, then sixteen years of age, was convicted on an indictment charging that he `sold, gave away, or otherwise disposed of whiskey without a license, and contrary to law.' On appeal, the Supreme Court reversed, citing Amos v. State, supra. The defendant had not sold the whiskey because Harmon had not paid for it. The twenty-five cents given defendant was in the nature of a tip, because the whiskey was worth fifty cents. Furthermore, defendant had neither sold nor given away the whiskey, because he did not own it. His father did. And, therefore, defendant had not parted with `possession or ownership of property.'
"The importance of the Reynolds, Amos, Norris, and Maxwell line of cases lies simply in this. In each, the Supreme Court construed statutory language strikingly similar to the dram shop phrase that is so troublesome in the case before this Court, and, in the context of legislative enactments prohibiting the sale, gift, or other disposition of intoxicating liquors. Moreover, all of these cases were decided long before the legislature enacted the dram shop act. Consequently, when our Supreme Court has repeatedly construed particular statutory language, and the legislature enacts another statute employing that same language, there arises a strong presumption that the legislature has acquiesced in the Court's interpretation of the legislature's intent in the use of such language.
"(b) Temperance in the Ascendancy: Early 20th Century Prohibition Acts
"Alabama temperance forces were strengthened considerably by two events in the first decade of this century: (1) the formation of the Alabama contingent of the Anti-Saloon League of America in 1904, Sellers 102; and (2) the election of Braxton Bragg Comer as Governor of Alabama in 1906.
"Following the end of Reconstruction, `Bourbon Democrats' from the Black Belt counties and the increasingly influential `Big Mule' industrial interests in Birmingham and Mobile tightened their grip upon state government. See, e.g., V.O. Key, Southern Politics in State and Nation, 42, 46 (1949).
Having weathered the flare-up of agrarian revolt in the 1890's, conservative forces within the state consolidated their control over state government (whose taxing powers were increasingly curtailed) with the constitution of 1901. Both Negroes and many poorer whites were effectively disenfranchised. With the electorate increasingly weighted in their favor, the Black Belt leaders with industrial allies dominated state government for much of the twentieth century.
W.D. Barnard, Dixiecrats and Democrats: Alabama Politics 1942-1950, at 10 (1974).
"Once in a long while, however, a `progressive' candidate for Governor would successfully defy that conservative coalition. B.B. Comer was such a man. Although stigmatized by the press as a radical, a self-willed, impetuous, self-seeking, and generally dangerous man' [A.B. Moore, History of Alabama 664 (1934)], Comer handily won the 1906 gubernatorial election. In the process, many men committed to `progressive' programs rode into the legislature on his coattails. `Not since the development of factionalism within the *982 Democratic party had the progressive wing been so victorious.' Id. 666. Both Comer and his legislative lieutenants were dominated by a `passion for reform.' Id. 667.
Comer left his impress on Alabama. He terminated abruptly the regime of laissez faire and enthroned the new philosophy of public welfare. He put the State into social service in various directions, and during his four years as governor the State made more progress in public education than had been made in all of its previous history. He aroused sentiments and established traditions that are still potent influences in the life of the people. In a word, broadly speaking, it may be said that the New Alabama began with the Comer term. [Id. 672.]
Prohibition was among the most important issues (if not the most important issue) used by Comer to achieve his phenomenal political success. That issue tapped the strength of `the aggressive and powerful Anti-Saloon League.' Sellers 102. The focus of the Alabama Anti-Saloon League's opposition to liquor traffic was implicit in its name. League members felt that saloons bred destitution, prostitution, and other deleterious social institutions (e.g., gambling and racial equality).[18]
"Thus, the cry for the end of the `day of the saloonkeeper, gambler, harlot, and pimp domination in government,' Sellers 130, was pregnant with many connotations. But, without question, racism was prominent among the meanings telegraphed by such `code words.' Even so, that despicable truth should not blind the modern observer to the fact that the primary objective of the prohibitionist forces was the abolition of the business of selling alcohol.
"In the first Regular Session of the Legislature following Comer's election, the prohibitionists succeeded in passing the State's first, general local-option law. 1907 Acts of Alabama, Act No. 149, at 200 (Feb. 26, 1907). That act `permitted the temperance legions to force local option elections with petitions signed by one-fourth of the voters in a county.' S. Hackney, Populism to Progressivism in Alabama 303 (1969). Significantly, the Act provided that the issue to be submitted to the voters of a county was whether they approved, or disapproved of the sale of liquor.
The ballot used in such election shall have printed or written on the same `Against the sale of liquors,' `For the sale of liquors,' and the voter in preparing or casting his ballot shall make a cross mark before the phrase `Against the sale of liquor' or before the phrase `For the sale of liquors' as the case may be....
1907 Acts of Alabama, Act No. 149, ง 6 at 202 (Feb. 26, 1907) (emphasis supplied). If a majority cast ballots `against the sale of liquor,' then the act provided that
It shall not be lawful to sell or otherwise dispose of any intoxicating liquors, drinks, or beverages within the bounds of said county ..., nor shall a license be obtained or granted authorizing ... the sale or other disposition of such intoxicating liquors, drinks or beverages after the date of such election within said county, and all licenses issued before such election shall be null and void and shall not authorize the sale or other disposition of such intoxicating liquors ...; provided subsequent elections may be held under the provisions of this act. And if at any subsequent election held in such county a majority of the votes cast are for the sale of liquors ... then on and after the first day of January next succeeding such election, intoxicating liquors may be sold in such county *983 as the same was authorized to be sold on January 1st, 1908.
Id., ง 14, at 204 (emphasis supplied).
"Clearly, therefore, this State's first general local-option law was aimed at the business of selling intoxicating liquors, and the phrase `or other disposition' should be construed in that context. If there is any doubt about that, it is dispelled by the following provision of the Act.
The provisions of this act shall extend to all sales or other dispositions of intoxicating liquors, drinks or beverages, whether by dispensaries, retailers, wholesale dealers, or any separate or isolated sales or dispositions.
Id., ง 16, at 205 (emphasis supplied).
"The 1907 local-option act was more successful than the temperance forces had hoped. Under its auspices, prohibitionists forced, and won, elections in 58 of Alabama's 67 counties. S. Hackney, supra, 304. See also, Sellers 114.
"`Rather than satisfying the urge for temperance, [however,] the new laws stimulated demand for stricter controls.' S. Hackney, supra, 304. During a special session of the legislature commencing November 7, 1907, the Alabama Anti-Saloon League and its allies pressed their advantage. They demanded the passage of a statewide, general prohibition law. Sellers 118-20.
"Such a bill was introduced by the Speaker of the House of Representatives, A.H. Carmichael of Colbert County, and passed both houses in rapid succession. It was signed into law by Governor Comer on November 23, 1907, and provided that:
it shall be unlawful for any person, firm, corporation, or association, within this State to manufacture, sell, barter, exchange, give away to induce trade, furnish at public places or otherwise dispose of any alcoholic ... liquors or beverages by whatever name called, which if drunk to excess will produce intoxication....
1907 Acts of Alabama (Special Session), Act No. 53, ง 1, at 72 (Nov. 23, 1907) (emphasis supplied).
"Without any question, Alabama's first statewide prohibition act was aimed at those engaged in the business of manufacturing, selling, or distributing liquor. It did not attempt `to restrain a man's private indulgence in drink....' Eidge v. City of Bessemer, 164 Ala. 599, 51 So. 246, 247 (1909). Rather, it specifically provided:
That the provisions of this act shall not prohibit the social serving of liquors and beverages mentioned in this act in private residences in ordinary social intercourse.
1907 Acts of Alabama (Special Session), Act No. 53, ง 12, at 76.
"(c) The High-Water Mark of Prohibition: the 1909 Special Session
"For a while, the passage of a statewide prohibition act satiated the prohibitionists' lust for stricter State controls on the business of liquor. By mid-1909, however, it was obvious that the law was not working well, and that remedial enforcement measures were necessary. `Things got so bad' that the Sheriff of Jefferson County begged Governor Comer
to call a special session of the legislature to put the prohibition `dodgers' out of business. He declared that if `the present status of affairs continues there will soon be more whiskey and intoxicants sold in the county without revenue, than were ever sold under the old saloon regime.' In support of his statement he sent along to the governor a list of clubs organized ostensibly `for the advancement of literature and culture' but which had, among their members, a suspicious number of ex-saloonists and liquor men and which were really only a cover for law breaking.
Sellers 126 (emphasis supplied).
"With the accumulation of such evidence indicating the failure of the statewide prohibition law, Governor Comer acted. On July 15, 1909, he called for the legislature to convene in a special session that same month. In his address to both houses at the beginning of the session, the Governor `frankly declared the statutory prohibition *984 law "inadequate of enforcement."' Sellers 132. He urged firm legislative action in two areas: strict enforcement legislation, and, an amendment to the State Constitution prohibiting the manufacture or sale of alcoholic liquors. The history of both proposals provides important information for interpreting the scope of our present dram shop act and, hence, each proposal will be discussed separately.
(i) The Carmichael-Fuller Acts
"In that portion of his speech calling for `more strenuous prohibition' enforcement legislation, Governor Comer told the Legislature that:
violation of your [statewide, general] prohibition law ... has almost come to the point when you must determine for the people whether whiskey shall dominate and control the State, or the State dominate and control whiskey. I assure you that the open, persistent disrespect of any law engenders serious conditions, and you had better never have touched the prohibition question unless you make the penalty for violations prompt and sure.
The Huntsville Weekly Mercury, July 28, 1909, p. 1 at col. 2. See also, Sellers 132.[19] In response to the Governor's call, two of his chief lieutenants in the House (Speaker A.H. Carmichael and Representative J.T. Fuller) introduced companion bills to stanch the flow of liquor. Both bills passed without difficulty.
"Speaker Carmichael's bill passed first, and was signed into law by the Governor on August 9, 1909. 1909 Acts of Alabama (Special Session), Act No. 7, at 8 (Aug. 9, 1909). It declared that
It shall be unlawful for any person, firm, or corporation or association within this State to manufacture, sell, offer for sale, keep or have in possession for sale, barter, exchange, give away, furnish at public place or elsewhere, or otherwise dispose of the prohibited liquors and beverages described in section 1 of this act, or any of them, in any quantity....
Id. ง 3, at 9. The contemporary value of the legislation lay in the fact that it increased both the period of imprisonment and the amount of fines that might be imposed for violation of its provisions, and, the provisions of the first statewide prohibition act which had taken effect on November 23, 1907. It further provided that each day that a business operated a brewery or distillery or `vender of intoxicants' constituted a separate offense.
"For present purposes, however, the chief importance of the Carmichael bill is found in that proviso which stated that
this inhibition does not include, and nothing in this act shall affect the social serving of ... liquors or beverages in private residences in ordinary social intercourse.
Id. Thus, it is beyond dispute that the Carmichael bill was aimed at those engaged in the business of manufacturing, selling, or distributing liquor for a profit.
"Although the Carmichael bill was called `radical,' critics had to get out their dictionaries to find stronger invectives to describe its companion legislation. The Fuller bill was described by the Montgomery Journal as `the most drastic prohibition bill ever brought to the attention of any legislature.' Sellers 133. It was an omnibus, prohibition enforcement measure. It contained 39 sections, spilling ink over 33 pages of the statute book. It outlawed everything from the manufacture of intoxicants to the advertisement of liquor, and covered just about everything in between.[20]
*985 "But, for present purposes, the primary importance of the Fuller bill lies in the fact that section eight created the Alabama dram shop law. 1909 Acts of Alabama (Special Session), Act No. 191, ง 8, at 65-66 (Aug. 25, 1909): quoted herein, supra. That fact, then, leads one back to the question of what the legislature intended when it first said, in section eight of the Fuller bill, that certain plaintiffs injured in their person, property, or means of support by an intoxicated person had a right of action for damages against
any person who shall by selling, giving or otherwise disposing of to another contrary to the provisions of law, any liquors or beverages, cause the intoxication of such person....
Id. Two considerations indicate that the legislature only intended for such action to lie against commercial vendors of liquor.
"The first consideration comes from the fact that the Carmichael and Fuller bills were `companion laws ... to be construed together.' Grace v. State, 1 Ala.App. 211, 56 So. 25, 26 (1911); Priest v. State, 5 Ala.App. 171, 59 So. 318, 319 (1912). Consequently, the express provision of the Carmichael Act stating that it did not apply to `the social serving of ... liquors or beverages in private residences in ordinary social intercourse' must be read in pari materia with the provisions of the Fuller Act.
"The second considerationโfound in the text of the Fuller Act itselfโbuttresses the first. Thus, section four of the Fuller Act provided:
4. That the keeping of liquors or beverages that are prohibited by the law of the State to be manufactured, sold or otherwise disposed of in any building not used exclusively for a dwelling shall be prima facie evidence that they are kept for sale, or with intent to sell the same, contrary to law.
1909 Acts of Alabama (Special Session), Act No. 191, ง 4, at 64 (Aug. 25, 1909) (emphasis supplied). This provision now is codified at Ala.Code ง 28-4-92 (1975). In like manner, section 22(12) of the same Act provided in part that:
The keeping of prohibited liquors in any building not used exclusively for a dwelling shall be prima facie evidence that the same are kept to be sold or otherwise disposed of or delivered or furnished contrary to law....
Act No. 191, ง 22(12), supra, at 81 (emphasis supplied).
"Of course, both provisions created evidentiary presumptions. But, a fair reading of them indicates that the reverse of the presumption also is true: i.e., that the keeping of `prohibited liquors' in any building used exclusively for a dwelling is not prima facie evidence that the liquor was kept for the purpose of selling, or otherwise disposing of the same, `contrary to law.' The Alabama Court of Appeals so held.
[T]he mere possession of prohibited liquors in a building used exclusively for a dwelling is not prima facie evidence that the whiskey was kept for sale.
Strickland v. State, 20 Ala.App. 600, 104 So. 351 (1925). See also, Carmichael v. State, 11 Ala.App. 209, 65 So. 694, 695 (1914); Hauser v. State, 6 Ala.App. 31, 60 So. 549, 552 (1912).
"It follows, therefore, that the Fuller Act (like the companion Carmichael Act) was not aimed at social hosts who dispensed alcohol in the privacy of their own home to guests, as an act of social hospitality. While no appellate decision has been found which expressly holds that such a logical *986 progression is true, two in particular hint that this court's interpretation is correct.
"For example, in Salley v. State, 9 Ala. App. 82, 64 So. 185, 187 (1914), the Alabama Court of Appeals held that the discovery of 55 gallons of whiskey in a building located some 20 to 30 feet from the defendant's residence:
would dispel any reasonable belief that it was kept for personal consumption or for the purpose of dispensing hospitality in ordinary social intercourse at the dwelling of the defendant....
"In another case, the same court held that evidence showing the defendant had delivered whiskey to the prosecution's witness in a shed adjoining a poolroom:
utterly repudiate[d] the idea that the case falls within the exception applying to gifts by one at his private residence, as an act of hospitality in ordinary social intercourse. ... [T]he defendant... can hardly be fancied by the most imaginative as in the role of a host in his private residence, in ordinary social intercourse, dispensing hospitality.
Grace v. State, 1 Ala.App. 211, 213, 56 So. 25 (1911) (emphasis supplied). See also, Toole v. State, 170 Ala. 41, 54 So. 197, 199 (1911).
(ii) The Constitutional Prohibition Election of 1909
"If there was any doubt lingering in the mind of this court over the correctness of the conclusion that the legislature did not intend for the dram shop act to apply to social hosts, or other non-commercial suppliers of liquor, then it was dispelled by the history of the constitutional amendment battle of 1909.
"In his speech to both houses of the legislature at the beginning of the 1909 special session, Governor Comer recommended that an amendment to the Alabama Constitution be submitted to the voters
so as to prohibit the manufacture, sale, and keeping for sale of alcoholic ... liquors and beverages, ... and providing for the designation in the amendment or by the Legislature of places where such liquors and beverages may be stored and kept.
Sellers 130-31 (emphasis supplied). A bill proposing such an amendment passed the legislature in short order, and was signed by the governor on August 18, 1909. In pertinent part it provided that the following question should be submitted to the voters at a special election to be held that year:
`Shall the following be adopted as Article XIX of the Constitution of Alabama: Section 1. The manufacture, sale and keeping for sale of alcoholic and malt liquors and other intoxicating beverages shall be forever prohibited in this State; but alcohol may be sold for medical, scientific and mechanical purposes, and wine for sacramental purposes, under such regulations as the Legislature may have prescribed or may hereafter prescribe. Section 2. Nothing in the constitution of Alabama shall be construed to prevent the legislature under the police power from designating places where such liquors may not be stored or kept. Yes, No.' The choice of the elector shall be indicated by a cross-mark made by him or under his direction opposite the word expressing his desire.
1909 Acts of Alabama (Special Session), Act No. 21, ง 3, at 21 (Aug. 18, 1909) (emphasis supplied).
"Opposition to the proposed amendment centered on the emphasized language. Those opposed to the amendment charged that the language was designed to close the loophole in the Carmichael-Fuller Acts which allowed private individuals to keep liquor in their homes, and to dispense liquor as an act of hospitality in ordinary social intercourse. Emmet O'Neal of Florence, who would be elected Governor of Alabama in 1910, largely as a result of his leadership of the anti-amendment forces,
sounded the keynote of the campaign [to a massive rally in Montgomery on September 15,] and gave his listeners their slogan when he said: `If this amendment is ratified, it means the legislature can invade the home.' `The sanctity of the home must be kept inviolate,' swore the *987 delegates, and they prepared to ring the changes on this theme.
Sellers 135.
"The campaign over the amendment was intense, bitter, and heated. Every major politician in the State was drawn into the fray, and publicly chose sides. Id. 141-42. Many considerations for and against were debated, but the focus of discussion and decision was section two, and the question of whether the legislature should be constitutionally empowered to prevent individuals from keeping liquor in the privacy of their homes. See id. 133-48; A.B. Moore, History of Alabama 673-74 (1934).
Both sides went to the polls [on November 29, 1909] confident of victory. Intense excitement marked the day, but excellent order was maintained on the crowded streets and at the polls. Probably the anti-amendment forces were only a little less surprised than the prohibitionists when the official count of that day's votes showed 72,272 against, and 49,093 for the amendment. No one had foreseen so overwhelming a defeat for the measure.
The amendment lost in all but six counties, and in these six the total favorable majority was only 467. ... All of the large urban centers voted against the amendment. The will of the people seemed clear.
Sellers 147.
"5. Conclusions on the Scope of the Dram Shop Act
"Not only did the `will of the people' seem clear in their rejection of the prohibition amendment, but, with the clarity of hindsight, the intent of the legislature when it passed the Carmichael-Fuller Acts also now seems clear. Even though the dram shop section contains the phrase `giving or otherwise disposing of to another,' those wordsโwhen placed in the context of their legislative and judicial historyโclearly do not have a scope of operation as broad as would first appear. Rather, the words properly were intended to apply only to those who furnished liquor owned by them to another person in return for monetary compensation or other consideration.
"The foregoing conclusion is not weakened by the fact that the Alabama Legislature defined the phrase `otherwise dispose of' in the Fuller Act. Tucked away in section 31 of that Act, one finds the following:
... and the term `otherwise dispose of' following the words, sell, offer for sale or keep for sale, and the term `otherwise disposed of' following the words sold, offered for sale, kept for sale, when employed in any warrant, process, affidavit, indictment, information or complaint, or in any bill in equity or other pleadings in any judicial proceeding or in any judgment or decree shall include and be deemed to include barter, exchange, giving away, furnishing, or any manner of disposition by which said liquors and beverages may pass unlawfully from one person to another;
....
1909 Acts of Alabama (Special Session), Act No. 191, ง 31, at 91. This provision now is codified at Ala.Code, 28-4-1(4) (1975). The words `barter' or `exchange' are just terms which refer to another species of a `sales' transaction. In a sale, the consideration for the transfer is money. In a `barter' or `exchange,' the consideration is either other property, or services, of equivalent value. See, 45 Am.Jur.2d Intoxicating Liquors งง 239-241 (1966). The phrase `giving away,' as noted by the decisions of the Alabama appellate courts discussed earlier ..., would denote the transfer of property owned by one person to another person without consideration that could be measured in terms of money or other indices of value. See, e.g., id. ง 247. See also, Clark v. State, 167 Ala. 101, 52 So. 893 (1910) (Mayfield, J., dissenting). The concluding words of the statutory definition would, in accordance with the ejusdem generis rule of statutory construction, have to be read as applying only to transactions of the same general kind or class as barter, exchange, or gift.
"It follows from all that has been said thus far, therefore, that a dram shop action does not lie against either the Huntsville Jaycees, Inc., or Richard P. Watts, because:
*988 "(1) Neither defendant is a commercial vendor, nor did either sell the beer to the HHS Jr. Jaycees (or Warren Lee Bradford); rather, Turner Beverage Company did.
"(2) They did not give the beer to the HHS Jr. Jaycees (or Warren Lee Bradford) because they had no ownership or property interests in the beer. Rather, Turner Beverage Company owned the beer, and, all monies used to acquire the beverage company's property interest in the beer came from Jr. Jaycee funds.
"(3) They did not otherwise dispose of the beer because, as discussed above, that phrase must be construed [under the ejusdem generis principle] with the words `sell' and `give,' and neither the Jaycees nor Richard Watts disposed of any ownership or property interests in the beer.
"B. DOES A COMMON LAW NEGLIGENCE ACTION LIE?
"Having concluded that a dram shop action does not lie against the Huntsville Jaycees, Inc., and Richard P. Watts, the second question must be addressed: Does an action grounded on common law negligence principles lie against either defendant?[21]
"Until just recently, the answer to that question would have been an easy, unequivocal `no.' For example, it was only a few years ago that the plaintiff in DeLoach urged the Alabama Supreme Court to `recognize an action for common law negligence for [dispensing] alcohol....' He argued that King v. Henkie should be cast onto the scrap heap of history because
social attitudes and public policy have changed since King was decided, and ... this court should change the law to meet society's change.
DeLoach v. Mayer Electric Supply Co., 378 So.2d 733, 735 (Ala.1979). The Supreme Court rejected that plea, saying tersely: `The rule expressed in King is as viable today as when first expressed.' Id. In a prescient phrase, however, Mr. Justice Bloodworth added:
We do not choose, at this time, to depart from the rule expressed in King and followed by a majority of jurisdictions.
Id. (Emphasis added.) Mr. Justice Bloodworth's portentous phrase may now, several years after his death, have come to pass.
"In Buchanan v. Merger Enterprises, Inc., 463 So.2d 121 (Ala.1984), the Alabama Supreme Court partially overruled King v. Henkie, and recognized a common law negligence action against a commercial licensee for the on-premises sale of alcoholic beverages to a visibly intoxicated patron. The facts of the case were summarized by Mr. Justice Faulkner as follows:
[A]bout 5:30 in the morning of July 29, 1981, David Slaughter entered the Checkers Lounge in Dothan after an all-night drive from Florida. He commenced drinking and continued imbibing until around noon, when he left with a waitress. Thirty minutes later he returned and remained at the lounge until around 5:00 P.M. Although Slaughter became visibly intoxicated while in the lounge, the lounge's employees continued to serve him alcoholic beverages up until the time he left. About fifteen minutes after leaving the lounge, the automobile which Slaughter was driving left the road and careened through the yard of the plaintiff's mother, killing her as she worked in her garden.
Id. at 122. The son of the deceased brought suit against the corporation which did business as the `Checkers Lounge.' The action was founded on the dram shop act. Ala.Code ง 6-5-71 (1975).
"However, defendant had clever counsel who discovered that, in 1980, when amending the Alabama Alcoholic Beverage Licensing *989 Code, the Legislature had inadvertently repealed that statute which made it unlawful for an on-premises licensee to `sell, furnish or give any beverages to any person visibly intoxicated....' Ala.Code 23-3-260(2) (1975) (repealed by Act No. 80-529, 1980 Acts of Alabama, effective Sept. 30, 1980). Hence, plaintiff could not prove one of the essential elements of the dram shop action: a sale `contrary to law.' The trial court, accordingly, granted defendant's motion for summary judgment.
"On appeal, therefore, the Alabama Supreme Court was `faced with an anomalous situation,' `id. at 124, in which the facts were egregiously hard, but in which the trial judge had unquestionably ruled correctly. Due to the `emasculation of the dram shop statute by the passage of the new alcohol licensing act' (id. at 123), no action arose under the statute. And yet, the court was convinced that the loophole through which defendant had squiggled was `the result of legislative oversight, not legislative wisdom'; and that the legislature had not intended to
legalize the sale of alcohol to visibly intoxicated persons, to minors, and to insane persons. To the contrary, it appears to us that the legislature was very concerned with the problem of drunken driving. In the same term during which the new alcohol licensing act was passed, the legislature passed a new drunk driving law ... granting trial courts new powers to suspend driving licenses of those convicted of drunk driving upon their first conviction and providing for increased penalties and a mandatory suspension of driving privileges for second and subsequent convictions. ... The stated purpose of the new drunk driving laws was to `do a better job of helping to identify the problem drinking driver and keep him off the highways.' Commentary to ง 32-5A-191. Unless the legislature was afflicted with a collective split personality, it is difficult to believe that it intended to give taverns carte blanche authority to continue serving alcohol to visibly intoxicated patrons, given its concern for drunken driving. If it had intended to do away with the dram shop statute the legislature would have repealed the statute itself, not just its teeth.
Id. at 123-24 (emphasis supplied).
"Toothless though it might be, the Court could not `rewrite the dram shop statute. It exists, regardless of intent, as written.' Id. at 124. Therefore, the Court was forced to consider the question of whether the plaintiff might proceed under a negligence theory. A bare majority of the Court held that he could. (Buchanan is a five-four decision.) The clearest statement of the majority's holding is found in the following extract.
The recognition of a cause of action for the negligent sale of alcohol by a licensee for on-premises consumption to one who is visibly intoxicated will discourage drunk driving by discouraging the sale of alcohol to patrons who lack the self control to cease drinking when they have `had enough.'
Id. at 127 (emphasis supplied).
"In effect, the majority held that the law imposed a duty upon licensees for on-premises consumption to refrain from continuing to sell alcohol to visibly intoxicated patrons, in order to protect a class of third persons which included plaintiff's decedent.
"Thus, King v. Henkie was overruled. But only just enough to allow `this plaintiff to have his day in court.' Id. at 128. The court expressly limited its holding, and its overruling of King v. Henkie, to cases involving the on-premises sale of liquor by licensed, commercial vendors. The limited nature of the majority's holding is demonstrated by the following extracts from the opinion:
We recognize that the rule that there could be no common law cause of action for negligently serving alcohol, which was espoused in King, was reaffirmed in DeLoach, supra. DeLoach is, however, distinguishable from the facts presented here. It did not involve a licensed vendor. Had these facts been alleged in DeLoach, a cause of action would have *990 been stated under the dram shop statute.... [Id. at 127 (emphasis added).]
* * * * * *
Finally, the defendant argues that the recognition of a common law action for negligently dispensing alcohol would allow actions to be brought against social hosts. That result does not necessarily follow. Most of the states which have recognized a common law action for negligently dispensing alcohol have restricted those actions to instances of sales by vendors. Only New Jersey, in Kelly v. Gwinnell, [96 N.J. 538, 476 A.2d 1219 (1984)], has extended liability to social hosts. There is an arguable distinction between licensed vendors and social hosts based on the governmental interest which supports the statutory requirement that commercial vendors of alcohol be licensed. An analogy to that position may be found in products liability law. The rule stated in ง 402A of the Restatement of Torts (Second) does not apply for instance to a `housewife who, on one occasion, sells her neighbor a jar of jam or a pound of sugar.' Comment f to ง 402A. We hasten to point out, however, that the question of a social host's liability is not before us and we specifically decline to decide that issue. ... [Id. at 127-28 (emphasis added).]
"The extremely limited scope of the Buchanan holding also is demonstrated by the majority's choice of supporting authorities.
We find precedent for the proposition that legislatively created principles of dram shop liability, not fully implemented by the acts themselves, can be effectuated by a common law negligence action in the case of Waynick v. Chicago's Last Department Store, 269 F.2d 322 (7th Cir.1959). ...
Id. at 124. Later in the opinion, the majority cites the following decisions as examples of instances in which `other states have ... recognized common law negligence actions under similar facts' (id. at 127): Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200 (1983) (en banc) (allowing negligence action against commercial licensee for sale to visibly intoxicated patron); Kelly v. Gwinnell, 96 N.J. 538, 476 A.2d 1219 (1984) (allowing negligence action against social host who personally and `directly serves' liquor to a visibly intoxicated guest, and `continues to do so even beyond the point at which the host knows that the guest is intoxicated, and does this knowing that the guest will shortly thereafter be operating a motor vehicle'); Hutchens v. Hankins, 63 N.C. App. 1, 303 S.E.2d 584 (1983) (allowing negligence action against commercial licensee for sale to visibly intoxicated patron, with knowledge that patron will drive from the premises); Sorensen v. Jarvis, 119 Wis.2d 627, 350 N.W.2d 108 (1984) (allowing negligence action against a retail establishment for knowing sale to a minor); and, McClellan v. Tottenhoff, 666 P.2d 408 (Wyo.1983) (allowing negligence action against commercial vendor for knowing sale to a minor).
"One must ask, what does the majority's choice of authorities tell us about its decision? What do the six cases have in common? Only one (Kelly) involves social host liability; so that is not the point. Two (Sorensen and McClellan) involve minors; so that might be, but probably is not, significant. Five of the six (i.e., all but Kelly) involve sales of liquor by commercial vendors; so that obviously is a significant common denominator. However, there is one factor which all of the cited cases share, and that is: all arose either in jurisdictions that had no dram shop statute, or under circumstances in which no dram shop act was in force and effect.
"For example, in Waynick, neither the Michigan nor the Illinois dram shop statute applied to the peculiar facts of that case. (See the Buchanan majority's discussion of Waynick at 124-25.) In Sorensen, the Wisconsin dram shop act had been repealed by that state's legislature in 1982 (see 350 N.W.2d at 113 and n. 8). In Ontiveros, Arizona had no dram shop act (see 667 P.2d at 211-12). In McClellan, Wyoming had no dram shop act (see 666 P.2d at 411). At the time of plaintiffs' injuries in Hutchens, North Carolina did not have a dram shop *991 act (see 303 S.E.2d at 588). And New Jersey did not, and does not now, have a dram shop act (see Kelly, 476 A.2d at 1221).
"Moreover, counting the decision of our supreme court in Buchanan, the decision of the Wisconsin Supreme Court in Sorensen, and the decision of the North Carolina Court of Appeals in Hutchens, one finds that a majority of the states (twenty-seven in all) now have allowed a negligence action against commercial vendors of liquors for injuries sustained by third persons as a result of the acts of an intoxicated person. Significantly, however, the overwhelming majority of those states (22 out of 27) did not have a dram shop, or civil damage, act in force on the date the action arose. Compare the list of decisions in the `Appendix' to Sorensen v. Jarvis, 350 N.W.2d at 119-20, with 12 Am.Jr. Trials 729, "Dram Shop Litigation" ง 2 (1966).
"There can be little doubt, therefore, that the absence of a statutory, dram shop remedy has been a substantial factor influencing those courts which have extended negligence liability to commercial vendors of intoxicating liquor. As the New Jersey Supreme Court observed in Kelly:
Whether mentioned or not in these opinions, the very existence of a Dram Shop Act constitutes a substantial argument against expansion of the legislatively-mandated liability. Very simply, when the Legislature has spoken so specifically on the subject and has chosen to make only licensees liable, arguably the Legislature did not intend to impose the same liability on [social] hosts.
Kelly v. Gwinnell, 96 N.J. at 554, 476 A.2d at 1227 (emphasis supplied).
"The statutory vacuum created by legislative inadvertence, in which the Buchanan majority operated, now has been filled by administrative regulations promulgated by the A.B.C. Board. Regulation 20-X-6-.02. Thus, in one sense, the Buchanan decision may be sui generis. We may never see its like again. (At least, in the absence of a similar legislative (or administrative) error.) That also is an argument against expanding the Buchanan negligence action beyond commercial vendors, to encompass defendants such as those before this Court. The majority hinted as much when they said:
Most of the states which have recognized a common law action for negligently dispensing alcohol have restricted those actions to instances of sales by vendors.... There is an arguable distinction between licensed vendors and social hosts based on the governmental interest which supports the statutory requirement that commercial vendors of alcohol be licensed.
Buchanan v. Merger Enterprises, Inc., supra, at 127-28 (emphasis supplied).
"V. CONCLUSIONS OF LAW AND ORDER ON MOTIONS
"Therefore, this Court concludes that an action based upon common law negligence principles does not lie against either of the moving defendants. In view of the clear legislative intent gleaned from the history of the Carmichael-Fuller Acts, and, the carefully limited holding of the Buchanan majority, it is not the province of this court to define a new cause of action against non-commercial entities. That law-making prerogative lies either with the Alabama Supreme Court or, more properly, the Alabama Legislature.
"Accordingly, it is ORDERED, ADJUDGED, and DECREED that the motions for summary judgment of defendant HUNTSVILLE JAYCEES, INC., and, defendant RICHARD P. WATTS be, and the same hereby are, GRANTED.
"In accordance with Rule 54(b), Ala.R. Civ.P., the Court determines there is no just reason for delay, and expressly directs that judgment be entered in favor of the HUNTSVILLE JAYCEES, INC., and RICHARD P. WATTS, and against plaintiffs on all claims.
"In accordance with the foregoing, it also is CONSIDERED, ORDERED, ADJUDGED, and DECREED that plaintiffs have and take nothing of defendants HUNTSVILLE JAYCEES, INC., and RICHARD P. WATTS, and that these consolidated actions be, and the same hereby *992 are, DISMISSED with prejudice as to said defendants. Costs are taxed to plaintiffs, for which execution may issue.
"DONE and ORDERED this 14th day of May, 1985.
"S/Lynwood Smith "Circuit Judge"
NOTES
[1] Permission had been sought to use the building for the party. Though the HHS Jr. Jaycees had been allowed to use the building on at least one prior occasion, permission was denied. The evidence suggests the possibility that the request was denied because the adult organization knew that alcoholic beverages would be served at the party.
[1] Randy Morris, Youth Assistance Director of the defendant Jaycees during the administration of Ernest Kaufmann, testified during deposition that one of his goals that year was that of establishing `a Junior Jaycee Chapter in each of the area high schools, based on the Jaycee Creed.' During the 1980-81 organizational year, only two of the City's five high schools had Junior Jaycee Chapters: S.R. Butler High School and Huntsville High School."
[2] This emphasized language raises the question of `why' the request was refused. Was it because the defendant Jaycees were aware that alcohol beverages were consumed by the Junior Jaycees at their `senior party' and for that reason refused the request? The record on this point is ambiguous.
"Ernest Kaufman testified that some unidentified members of the HHS Jr. Jaycees
came to our Board meeting and made a request that year [i.e., 1981] for two items. One being their annual awards banquet, number two, being able to use our building for an additional party of which they were refused the second request.
Kaufman stated the second request was refused `[b]ecause we wanted to have them one time a year for an annual awards banquet and that was it.'
"On the other hand, Randy Morris (Kaufmann's Youth Assistance Director) acknowledged that the second request for use of the Bonn Building was for the party ultimately held on Guntersville Lake, but he could not `remember' whether the request was refused because the Board had knowledge that beer was dispensed at that party."
[3] See, for example, page 2 of the `Brief in Support of Defendant, Huntsville Jaycees, Inc.'s Motion for Summary Judgment,' where counsel says:
The allegation has been made that at the time of the occurrence, May 16, 1981, David Worley was a Huntsville Jaycees' sponsor for the Huntsville High Junior Jaycees and was the person who arranged for the beer to be purchased for the party. * * * * [Emphasis supplied (by Judge Smith).]"
[4] Ernest Kaufmann does not deny that Worley was the sponsor. Rather, he states that Randy Morris appointed John Zachary `to oversee' the activities of the two high school chapters; and he thus `assumes' that Zachary served as the liaison; but admits he did not `personally know' that to be true.
"In like manner, while Randy Morris began his deposition by denying that David E. Worley was sponsor, he finally admits: (1) that he does not know; and (2) that John Zachary would have been in charge of designating the sponsor for each of the two high school chapters."
[5] On May 15 and 16, 1981, the city schools still were in session for the year."
[6] It should be noted that defendant David E. Worley denies any knowledge of how, or where, the beer was purchased. Without question, that is a material fact. But this Court doubts that a genuine issue has been made of it. In any event, this court will jump over Worley's denial for the moment, in order to reach the questions of law which are raised by the pleadings."
[7] For a list of those states which have Dram Shop Acts, see 12 Am.Jr. Trials ง 2 ["Dram Shop Litigation"]. See also, Note, 9 Cumber.L.Rev. 613, 615 & nn. 16-20 (1978)."
[8] Indeed, another common law principle, closely related to the rationale of cases such as King v. Henkie, was that which held an intoxicated person to the same standard of conduct as if he were sober. See, Prosser, Handbook of the Law of Torts ง 32 (4th ed. 1971).
This rule was premised on the belief that intoxication would be too easy to assert as an excuse for any misconduct. Thus, the inebriate alone was held responsible for his acts causing injury.
Note, 14 Cumber.L.Rev. 411, 413 (1984). The point was referred to by the Alabama Supreme Court in King when it said:
A drunkard, or one in a state of voluntary intoxication, can scarcely claim so much charity from the law ... as imbeciles and lunatics, because he has by his own agency, either wantonly or negligently, brought about his own misfortune. As drunkenness is no excuse for crimes, or for torts, no more should it be a basis for the liability of another in an action brought against him by the victim of such inebriety.
King v. Henkie, supra, at 511. Thus, it is doubtful that the common law courts' position would have been any different, even it it had not occurred to them to lay the `proximate cause' of injury in the cup of the drinker, rather than the bottle of the seller."
[9] For a discussion of the temperance movement and its role in the movement for dram shop acts, see Ogilvie, History and Appraisal of the Illinois Dram Shop Act, 1958 U.Ill.L.F. 175."
[10] The plaintiffs in the Miller case were injured by an automobile driven by a person who became intoxicated while attending a picnic sponsored by a voluntary association of employees of the Owens-Illinois Glass Company at its Madison, Illinois, plant. The picnic was held on premises owned by the employer, with its consent. Suit was brought against the employees' association and the employer under the Illinois dram shop act. In pertinent part, that act provided:
Every person, who shall be injured, in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; * * * *
Miller v. Owens-Illinois Glass Co., supra, at 419, 199 N.E.2d at 304, 8 A.L.R.3d at 1409.
"The defendants filed motions for summary judgment grounded on affidavits asserting that neither was engaged in the business of selling liquor. The motions were granted and plaintiffs appealed. Thus, the Illinois Appellate Court was presented the question of whether that State's dram shop act applied: (1) to a voluntary club or association which holds a social function at which intoxicating liquors are served to the members and guests; or (2) to the owner of property who permits a voluntary club or association to hold a social function on its property, at which intoxicating liquors are served to members and guests. The appellate court responded negatively to each question, and held that the Illinois dram shop act was intended to regulate the business of selling, distributing, manufacturing and wholesaling alcoholic liquors for profit. In other words, it was to regulate those in the business, not the social drinker or the social drinking of a group.
Id. at 423, 199 N.E.2d at 306, 8 A.L.R.3d at 1411 (emphasis supplied)."
[11] See, e.g., W.J. Cash, The Mind of the South 231-233 (1941: Vintage ed.); S. Hackney, Populism to Progressivism in Alabama 302-305, 316 (1969); A.B. Moore, History of Alabama 666-679, 753-757 (1934)."
[12] Prohibition is not presently regarded as a `progressive' measure. But the historic reality of Progressivism [as a political movement] is sometimes at odds with the
value-laden adjective `progressive.' Prohibition sentiment had been strong among the Progressive forces in the South. Prohibition was just one among the many economic, political, and social reforms that constituted the curiously polyglot movement, Progressivism. The strength of its appeal in the South may represent, as Dewey Grantham suggests, an enduring conservatism in matters moral and social, an essentially romantic willingness to be distracted from the hard, real problems of economics and class interest by quixotic crusades for some mystical goal of publicly enforced moral purity.
W.D. Barnard, Dixiecrats and Democrats: Alabama Politics 1942-1950, at 25 (1974). See also, id., at 9-10, 160 & n. 13."
[13] As is so often the case when public figures self-righteously assume the cloak of virtue, one finds they have other vices aplenty. In this case, the prohibitionists' clay feet were molded from the grimy soil of racism. In the name of protecting a `traditional way of life,' they struck at Blacks.
Another [reason for the rapid growth of the prohibition movement] was the will to [master] the Negro [who], when primed with a few drinks of whiskey, was ... lamentably inclined to let his ego a little out of its chains and to relapse into the dangerous manners learned in carpetbag days.... And it seems genuinely to have been believed that to forbid the sale of legal liquor, and so presumably to force up the price of the bootleg product, would be to deprive him of alcohol altogether and so make it easier to keep him in his place.
W.J. Cash, supra, note 11, at 232."
[14] See, e.g., Sellers 67-68 & n. 104; S. Hackney, supra, 302."
[15] A perusal of the general, special and local laws regulating the sale of intoxicating beverages prior to 1907 shows the growth and development of the desire on the part of the people of Alabama to restrict the sale thereof.
`Editor's Note,' The Alabama Code of 1928, at 742 (Michie 1929) (not adopted by Legislature) (emphasis supplied)."
[16] Indeed, the early decisions of the Alabama appellate courts were very restrictive in their interpretation of language found in the prohibition statutes. For example, in Coker v. State, 91 Ala. 92, 8 So. 874 (1891), the Alabama Supreme Court was presented a case in which the defendant had been convicted for `selling or giving' liquor to a minor in violation of a local prohibition act. The evidence at trial showed that the minor had attempted to purchase whiskey from the defendant, but the defendant `told him that he had no whiskey for sale, and refused to sell him any.' The minor testified that he then `borrowed' a pint of whiskey from the defendant; and that several days later, when he happened upon the defendant who was en route to Montgomery in his wagon, he (the minor) told defendant that he did not have:
any whiskey on hand to return the whiskey he had borrowed from the defendant as before stated, [and] he handed the defendant some money, and requested him to buy as much whiskey in Montgomery as the [minor] witness had borrowed from him, and in that way returned the whiskey he, witness, had borrowed from him.
Id. The Supreme Court reversed the conviction because the trial court had erred in charging the jury that the transaction was a `giving' or `selling' contrary to law, rather than a `loan' or `barter.'
The statute is a highly penal one, and cannot be extended beyond its letter by the result, necessarily more or less uncertain, of speculations into the realms of supposed legislative intent, or the supposed evils aimed at by the law-makers. The alleged offender must be tried upon what the law-giving power has said, and not by what it may be inferred, with greater or less assurance of safety, it has intended beyond the language employed.
Coker v. State, supra at 94-95, 8 So. at 875."
[17] On this point, Black's Law Dictionary 464 (5th ed. 1979) says:
In the construction of laws, wills, and other instruments, the `ejusdem generis rule' is, that when general words follow an enumeration of persons or things by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned....
See also, Maples v. Chinese Palace, Inc., 389 So.2d 120, 124 (Ala.1980); Brook v. Cook, 44 Mich. 617, 7 N.W. 216 (1880)."
[18] This attitude is capsulized in the following:
The saloon is a place of rendezvous for all classes of the low and vulgar, a resort for degraded whites and their more degraded negro associates, the lounging place for adulterers, lewd women, the favorite haunt of gamblers, drunkards and criminals. Both blacks and whites mix and mingle together as a mass of degraded humanity in this cess-pool of iniquity. Here we have the worst form of social equality, but I am glad to know that it is altogether among the more worthless of both races.
J.F. Clark, `The Saloon and Racial Equality,' in Alabama Christian Advocate, January 4, 1906: quoted Sellers 101."
[19] In stating that the issue confronting the legislature was `whether whiskey shall dominate and control the State, or the State dominate and control whiskey,' Governor Comer was speaking of the whiskey lobbyists, representing those businesses which profited from the manufacture, sale, and distribution of liquor."
[20] This was a sweeping bill. Buildings should not be let for the sale or making of intoxicants or such violation permitted in them. Tenants violating this act forfeited their leases.... [I]t was made unlawful to advertise liquor in any public place. The keeping of liquors in any place but a residence was prima facie evidence that they were kept for sale, or intended for sale. Delivery of liquor to any public place was an evidence of sale. It was a misdemeanor for any railroad or boat employees to be intoxicated while on duty. In case of injury to any person caused by one who was drunk, damages could be obtained from the man who sold the liquor. Heavy fines were imposed for selling liquor from behind screens or other obstructions. Judges were required to charge, and grand juries which had testimony had no discretion but to indict. Witnesses who refused to testify were in contempt of court, and even servants could not be excused from testifying against principals. Storage of liquor in any public place was a violation of the law. The law prohibited soliciting from without the state. Sheriffs were authorized to procure lists of United States liquor licenses every month and have them published in heavy black type, with the name and location of the business. Prohibited liquors were contraband when they were stored in violation of the law. Search could be made by warrant, and the presence of government license was prima facie evidence of guilt....'
Sellers 133 n. 30 (emphasis supplied."
[21] Plaintiffs have neither pled, nor does the Pre-Trial Order recite, a negligence claim against either defendant. Rather, the clear thrust of plaintiffs' claims against these defendants is the dram shop act. Nevertheless, applying notice pleading principles [Rule 8, Ala.R. Civ.P. (and the committee comments thereto)], this Court believes the question of whether a common law negligence action will lie under the circumstances of this case also should be addressed."
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689 N.W.2d 214 (2004)
John F. DUDER, Appellant,
v.
Randall J. SHANKS, Appellee.
No. 03-1036.
Supreme Court of Iowa.
November 19, 2004.
*215 Theodore Boecker of Sherrets & Boecker, L.L.C., Omaha, Nebraska, for appellant.
John M. French of Peters Law Firm, P.C., Council Bluffs, for appellee.
TERNUS, Justice.
The plaintiff, John Duder, appeals an order confirming the automatic dismissal of his lawsuit against the defendant, Randall Shanks, under Iowa's uniform rule for dismissal for want of prosecution, Iowa Rule of Civil Procedure 1.944 (formerly known as rule 215.1). Duder claims he did not receive a try-or-dismiss notice, and therefore the case was not automatically dismissed under the rule. He also asserts a district court order setting the case for trial and approving the parties' stipulation to remove the case from the clerk's dismissal list effectively avoided dismissal or, alternatively, reinstated the case. Finally, he argues because the defendant's counsel stipulated to have the case removed from the dismissal list, he should be estopped from now claiming that the case has been dismissed. We, like the district court, find no merit in these arguments. Therefore, we affirm the district court judgment.
*216 I. Background Facts and Proceedings.
In August 1998 John Duder brought suit against Randall Shanks, his former attorney, to resolve a fee dispute between them.[1] By late 2000 discovery had been completed, the court had ruled on the parties' motions for summary judgment, and the case was ready for trial. The clerk's court calendar for this case contained a notation that on July 18, 2000, a notice of dismissal under rule 1.944 was sent to the attorneys of record.
In December 2000 counsel for Duder attempted to contact Shanks' attorney to have a pretrial order entered, but did not reach defense counsel until January 2, 2001. At that time both attorneys signed a preprinted form for a pretrial order to be presented to a judge for approval. The plaintiff's counsel had added the following typewritten sentence after the preprinted heading for "Additional Provisions": "This case shall be removed from the Rule 215 dismissal list." This order, which was signed by a district court judge on January 3, 2001, provided that trial would be held on November 27, 2001.
On July 31, 2001, the defendant moved to dismiss the case based upon the contention the matter had been automatically dismissed by operation of law on January 1, 2001. The defendant asserted the parties' January 2, 2001 stipulation did not save the claim, and it was too late to have the matter reinstated because the six-month period for filing an application for reinstatement had expired. The plaintiff resisted, arguing (1) rule 1.944 does not provide for automatic dismissal; (2) the plaintiff's counsel had not received a try-or-dismiss notice or subsequent notification from the clerk that the case had been dismissed as is customary in that county; (3) the plaintiff had complied with rule 1.944 by obtaining the pretrial order setting the case for trial and removing it from the dismissal list; (4) even if the case had been automatically dismissed, defense counsel had stipulated to its reinstatement and should be bound by that stipulation; and (5) the defendant's counsel had acted in bad faith. The district court denied the defendant's motion, finding that the January 3, 2001 pretrial order had taken the case off the clerk's dismissal list, and as a result, the clerk had not sent the customary dismissal notice to the parties. The court further found the clerk and the plaintiff's attorney had both relied on the pretrial order and did not believe that any further action was required to keep the case alive. The court held the defendant was estopped to assert dismissal had occurred in view of the fact that his counsel had stipulated to removing the case from the dismissal list. Finally, the district court held that even if the case had been dismissed by operation of law, the dismissal was set aside by the stipulated pretrial order signed by the court on January 3, 2001. This court subsequently denied the defendant's application for interlocutory appeal.
On February 13, 2003, the defendant filed a renewed motion to dismiss and motion for summary judgment based upon the plaintiff's failure to try the case prior to January 1, 2001. The plaintiff again *217 resisted, but this time the district court granted the motion to dismiss. See generally Hoefer v. Wis. Educ. Ass'n Ins. Trust, 470 N.W.2d 336, 339 (Iowa 1991) ("Iowa adheres to the general rule that a district court judge may review and change a prior interlocutory ruling of another district judge in the same case."). First, although the plaintiff had not reasserted his prior argument that his attorney had not received the try-or-dismiss notice, the court found that it was "unquestionably clear that the plaintiff was aware of the pending dismissal issue by the language of his motion filed January 2, 2001," referring to removal of the case from the dismissal list. The court then held (1) dismissal under rule 1.944 was automatic and no order from the court was necessary; (2) the plaintiff had not substantially complied with requirements for obtaining a continuance to avoid dismissal; and (3) the case was automatically dismissed on January 1, 2001. The court concluded that the filings and order of January 2 and 3, 2001 could not be deemed a reinstatement, and the clerk's failure to send a notice of dismissal was of no consequence. Finally, the court held the plaintiff could not rely on estoppel to excuse his failure to properly seek reinstatement. Because the present case had been dismissed by operation of law and no reinstatement had been sought, the district court concluded it was required to grant the motion to dismiss.
The plaintiff appeals, raising the following issues: (1) the case was not subject to dismissal because the plaintiff's counsel did not receive a try-or-dismiss notice; (2) rule 1.944 does not provide for automatic dismissal; (3) the clerk of court did not issue a dismissal notice in January 2001, as would be customary if the case had been dismissed; (4) the defendant's counsel stipulated to reinstatement in the pretrial order approved by the court and should be estopped from claiming the court had no authority to remove the case from the dismissal list; (5) the case was reinstated by the court on January 3, 2001; and (6) this court's denial of the defendant's application for interlocutory appeal from the first ruling denying dismissal constituted a determination that the initial ruling was correct.
II. Scope of Review.
A district court's ruling on a motion to dismiss is reviewed for correction of errors at law. Bartsch v. Bartsch, 636 N.W.2d 3, 5 (Iowa 2001). If the trial court has made findings of fact, those findings are binding on the reviewing court if they are supported by substantial evidence in the record. Id. The reviewing court is "not bound, however, by the trial court's application of legal principles or its conclusions of law." Id.
III. Was This Case Automatically Dismissed Under Rule 1.944?
Rule 1.944 states in pertinent part:
1.944(2) All cases at law or in equity where the petition has been filed more than one year prior to July 15 of any year shall be for trial at any time prior to January 1 of the next succeeding year. The clerk shall prior to August 15 of each year give notice to counsel of record ... of the docket number, the names of parties, counsel appearing, and date of filing petition. The notice shall state that such case will be for trial and subject to dismissal if not tried prior to January 1 of the next succeeding year pursuant to this rule. All such cases shall be assigned and tried or dismissed without prejudice at plaintiff's costs unless satisfactory reasons for want of prosecution or grounds for continuance be shown by application and ruling thereon after notice and not ex parte.
....
*218 1.944(5) No continuance under this rule shall be by stipulation of parties alone but must be by order of court. Where appropriate the order of continuance shall be to a date certain.
1.944(6) The trial court may, in its discretion, and shall upon a showing that such dismissal was the result of oversight, mistake or other reasonable cause, reinstate the action or actions so dismissed. Application for such reinstatement, setting forth the grounds therefor, shall be filed within six months from the date of dismissal.
Iowa R. Civ. P. 1.944. "The purpose of rule [1.944] is to promote expeditious trial of cases on the merits by clearing the docket of dead cases and assuring `the timely and diligent prosecution of those cases that should be brought to a conclusion.'" O'Brien v. Mullapudi, 405 N.W.2d 815, 816 (Iowa 1987) (citation omitted). The rule sets out the specific manner in which this policy will be accomplished. We have held its terms are positive, definite, and mandatory, and its operation is not discretionary with the court. Talbot v. Talbot, 255 Iowa 337, 340, 122 N.W.2d 456, 458 (1963).
Rule 1.944 provides that a case not tried within the stated timeframe will be dismissed unless the plaintiff establishes "satisfactory reasons for want of prosecution" or shows "grounds for continuance." Iowa R. Civ. P. 1.944(2). The trial court has discretion to grant a continuance for just cause, but there must be a timely application for a continuance; the court has no authority to continue a matter on its own. Talbot, 255 Iowa at 340-41, 122 N.W.2d at 458. Moreover, if the case has not been continued prior to the date set for dismissal, dismissal is automatic, provided the try-or-dismiss notice required by the rule has been served on the parties. See Greif v. K-Mart Corp., 404 N.W.2d 151, 154 (Iowa 1987) (dismissal automatic); Erickson v. Salama, 379 N.W.2d 904, 906 (Iowa 1986) (service of try-or-dismiss notice a prerequisite to dismissal); Greene v. Tri-County Cmty. Sch. Dist., 315 N.W.2d 779, 781 (Iowa 1982) (dismissal automatic). So, we first consider whether the required try-or-dismiss notice was served in this case.
Service of the try-or-dismiss notice must be provided pursuant to the methods set out in Iowa Rule of Civil Procedure 1.442. See Iowa R. Civ. P. 1.944(2). In pertinent part, that rule states: "Service shall be made by delivering, mailing, or transmitting by fax (facsimile) a copy to the attorney or to the party at the attorney's or party's last known address.... Service by mail is complete upon mailing." Iowa R. Civ. P. 1.442(2). Despite the fact that service is accomplished upon mailing and consequently it is not necessary to show receipt, proof that an addressee did not receive a piece of mail is competent evidence that it was not mailed. Liberty Mut. Ins. Co. v. Caterpillar Tractor Co., 353 N.W.2d 854, 858 (Iowa 1984).
The factual record on this issue in the present case includes evidence of a notation in the records of the clerk of court that a try-or-dismiss notice was sent to the plaintiff's counsel on July 18, 2000. The plaintiff's attorney filed an affidavit, however, stating that a search of his firm's office files revealed no try-or-dismiss notice in 2000 referencing this suit. The district court concluded nonetheless that the plaintiff's counsel obviously was aware of the pending dismissal as indicated by his attempts before the end of the year to have the matter continued. Although the court did not make an express finding that the try-or-dismiss notice was served on the parties' attorneys, such a finding is implicit in the court's ruling that the lawsuit was automatically dismissed on January 1, *219 2001. See EnviroGas, L.P. v. Cedar Rapids/Linn County Solid Waste Agency, 641 N.W.2d 776, 782 (Iowa 2002) (presuming "factual matter was resolved so as to support the court's ultimate ruling"); Bankers Trust Co. v. Fidata Trust Co., 452 N.W.2d 411, 413 (Iowa 1990) (same); Brichacek v. Hiskey, 401 N.W.2d 44, 46 (Iowa 1987) (assuming "as fact an unstated finding that is necessary to support the [court's] judgment").
We think the clerk of court's record of mailing the try-or-dismiss notice and the subsequent actions of the plaintiff's counsel consistent with receipt of the notice constitute substantial evidence to support the district court's finding that the notice was served as required by rule 1.944. Therefore, this factual finding is binding on us. It follows then that the case was automatically dismissed on January 1, 2001, as there is no contention the matter was tried or continued prior to that date. The clerk of court's apparent action in removing the case from the clerk's list of dismissed cases had no legal effect. See Greif, 404 N.W.2d at 154 (holding the clerk's "[f]ailure to note the dismissal of record does not save [a] case" that has been automatically dismissed); Baty v. City of West Des Moines, 259 Iowa 1017, 1023, 147 N.W.2d 204, 208 (1966) (same). Accordingly, in January 2001, the only way the plaintiff's suit could have been saved was through reinstatement by the court upon a properly supported application. See Werkmeister v. Kroneberger, 262 N.W.2d 295, 296 (Iowa 1978) (holding trial court was without authority to try a case that had been automatically dismissed "unless it was properly reinstated according to rule [1.944]"). We turn now to the issue of reinstatement.
IV. Was the Case Reinstated After Its Dismissal on January 1, 2001?
Rule 1.944 provides for mandatory or discretionary reinstatement. To qualify for either, however, an application for reinstatement, "setting forth the grounds therefor," must be filed within six months of dismissal. Iowa R. Civ. P. 1.944(6); see Greene, 315 N.W.2d at 781 (holding court has no discretion in the matter in the absence of a timely application). The plaintiff claims that the pretrial order approved by the parties and signed by the court constituted a de facto reinstatement of the case. The district court rejected this argument, noting that the stipulated order was never intended by the plaintiff to be an application for reinstatement because "the plaintiff contended at that time and continues to contend at this time that there has, in fact, been no dismissal of this case at any point in time."
We agree with the district court's view of the situation. The pretrial order did not address the matter of reinstatement; it merely took the case off the clerk's list of dismissed cases. But as we have already noted, the inclusion or exclusion of a case from this list has no legal significance. Cases are dismissed automatically without any action by the clerk of court. Consequently, the parties' agreement to remove the case from the clerk's list did not prevent its dismissal.
For the same reason, the stipulated order did not accomplish reinstatement of the plaintiff's action. No showing was made in January 2001 of any grounds justifying mandatory reinstatement. See Iowa R. Civ. P. 1.944(6) (requiring reinstatement "upon a showing that such dismissal was the result of oversight, mistake or other reasonable cause"). Nor was there any showing at that time to support discretionary reinstatement. The lack of any such showing is attributable to the fact that the plaintiff did not intend to seek reinstatement in January 2001. As the *220 plaintiff acknowledges in his appellate brief, his intent in having the defendant stipulate that the case could be removed from the dismissal list was "to avoid the necessity of filing a formal motion to vacate and/ or to reinstate the case." (Emphasis added.)
The plaintiff's reliance on our decision in Gold Crown Properties, Inc. v. Iowa District Court, 375 N.W.2d 692 (Iowa 1985), is misplaced. In that case, the plaintiff filed an application for continuance after the dismissal date and shortly thereafter filed a resistance to a motion for a formal order of dismissal that had been filed by the defendant. Gold Crown Props., 375 N.W.2d at 699-700. We noted that when read together the plaintiff's filings "substantially met the rule [1.944] requirements of an application for reinstatement." Id. at 700. Not only did the substance of the plaintiff's pleadings evidence an effort to preserve the case for trial, more significantly, the pleadings set forth "compelling grounds" for reinstatement. Id. In contrast, the plaintiff here, as we have pointed out, made no showing of grounds warranting reinstatement. Therefore, we cannot say that he substantially complied with the requirements for reinstatement set forth in rule 1.944(6). Cf. Ray v. Merle Hay Mall, Inc., 621 N.W.2d 696, 698 (Iowa Ct.App.2000) (rejecting argument that parties' stipulation to a trial date beyond dismissal date was in effect a stipulation for a continuance under rule 1.944, distinguishing Gold Crown and noting that setting a trial date was ministerial whereas party was required to set forth reasons for a continuance). For these reasons, the pretrial order did not operate to reinstate the plaintiff's suit. See generally Greene, 315 N.W.2d at 782 ("Because the stakes are high, and the results harsh, the formalities prescribed to implement the rule [1.944] procedure must be strictly observed."). Accordingly, the matter stood dismissed unless there is merit to the plaintiff's estoppel argument, an issue we now address.
V. Is the Defendant Estopped From Contending the Case Was Not Dismissed or Was Reinstated?
Relying on the doctrine of judicial estoppel, the plaintiff contends the defendant's stipulation estops the defendant from taking the position that this suit was automatically dismissed or that it was not reinstated upon the court's approval of the pretrial order.[2] "The doctrine of judicial estoppel `prohibits a party who successfully and unequivocally asserts a position in one proceeding from asserting an inconsistent position in a subsequent proceeding.'" *221 Roach v. Crouch, 524 N.W.2d 400, 403 (Iowa 1994) (citation omitted); accord Wilson v. Liberty Mut. Group, 666 N.W.2d 163, 166 (Iowa 2003). Judicial estoppel also applies when inconsistent positions otherwise meeting the requirements of this doctrine are taken in the same proceeding. See 28 Am.Jur.2d Estoppel and Waiver § 74, at 498-99 (2000).
We think the district court correctly determined this doctrine does not apply. There is no evidence in the record that the defendant ever successfully and unequivocally took the position that this case had not been automatically dismissed. See Graber v. Iowa Dist. Ct., 410 N.W.2d 224, 228 (Iowa 1987) ("[A] fundamental feature of the doctrine of judicial estoppel is the successful assertion of the inconsistent position in a prior action. Absent judicial acceptance of the inconsistent position, application of the rule is unwarranted because no risk of inconsistent, misleading results exists."). As we have previously discussed, the clerk's dismissal list was of no legal effect and the defendant's agreement that the case be removed from this list could not and did not prevent the case from being dismissed. In fact, the case had already been dismissed by operation of law when the parties signed the stipulated pretrial order, and there was nothing the parties or the court could do after the fact to undo the dismissal short of a formal reinstatement of the case. See Koss v. City of Cedar Rapids, 300 N.W.2d 153, 157 (Iowa 1981) ("Absent an application and order for continuance, neither the district court nor the supreme court has power to avoid [dismissal] once the procedure was set in motion by the clerk's [try-or-dismiss] notice."). Therefore, to the extent the defendant can be held to have asserted the case had not been dismissed by virtue of his agreement to the pretrial order, that position was not successful.
Nor does the doctrine of judicial estoppel apply to preclude the defendant from arguing that the case was not reinstated in January 2001. As the district court correctly observed, neither party intended the pretrial order to operate as a reinstatement of the matter. Therefore, the defendant's position that the case was not reinstated by the court's pretrial order is not inconsistent with the parties' earlier stipulation to remove the case from the clerk's dismissal list.
The plaintiff complains that had the clerk sent a notice of dismissal in January 2001, or had the defendant's attorney asserted at that time that the case had already been automatically dismissed, he would have taken action within six months of the dismissal to have the case reinstated. While we do not approve of the defendant's strategic silence, we think the defendant simply agreed to what the plaintiff requested. Unfortunately for the plaintiff, that agreement to remove the case from the clerk's dismissal list had no legal consequence. The plaintiff cannot now blame the defendant because this agreement did not accomplish what the plaintiff thought it would or fault the defendant for not advising the plaintiff that he should instead seek to have the case reinstated. Ultimately the responsibility for ensuring this case was not dismissed for want of prosecution or was properly reinstated rested with the plaintiff, not with the clerk of court or with the defendant. See Greif, 404 N.W.2d at 154 ("The responsibility for keeping a case alive must rest squarely on the shoulders of the party seeking to avoid dismissal."); Baty, 259 Iowa at 1023, 147 N.W.2d at 208 (same). The plaintiff chose to ignore the rules and procedures governing the prompt prosecution of this case and cannot now be saved from the consequences of that conduct under the theory of judicial estoppel. See generally Greene, 315 N.W.2d at 782 ("Because the stakes *222 are high, and the results harsh, the formalities prescribed to implement the rule [1.944] procedure must be strictly observed.").
VI. Was the Supreme Court's Rejection of the Defendant's Application for Interlocutory Appeal an Adjudication of the Correctness of the First Order Ruling the Case Had Not Been Dismissed?
As noted earlier, after the district court's rejection of the defendant's first motion to dismiss, this court denied the defendant's application for interlocutory appeal. The plaintiff claims this court's ruling indicates our agreement with the district court's decision. The reasoning underlying this claim is as follows: If the case had been automatically dismissed, the district court's ruling would have been a final judgment and there would have been no legal basis for this court to reject the appeal. Alternatively, the plaintiff contends this court's decision not to hear the appeal indicates our agreement with the district court's ruling that the case was still pending.
These arguments must fail. The plaintiff's first argument ignores the fact that the district court had ruled the case was not automatically dismissed. Until corrected by the district court or reversed on appeal, that ruling kept the plaintiff's case alive. Therefore, the district court's ruling on the defendant's first motion to dismiss was interlocutory and could be reviewed by an appellate court only if permission to appeal were granted. Therefore, this court's handling of the case when an interlocutory appeal was sought was entirely consistent with the status of the case at that time and did not rest on our independent conclusion that the case had not been automatically dismissed.
Likewise, this court's denial of the defendant's application for interlocutory appeal cannot be interpreted as indicating our agreement with the district court's ruling. Our decision to deny the application means that we will not address the merits of the district court's ruling. Therefore, it is incorrect to interpret the denial as a decision on the merits.
VII. Summary.
There is substantial evidence in the record to support the trial court's finding that a try-or-dismiss notice was sent by the clerk of court to the parties' counsel. Therefore, the case was automatically dismissed pursuant to rule 1.944(2) on January 1, 2001, when the plaintiff failed to have the matter continued before that date. The January 3, 2001, stipulated order removing the case from the clerk's dismissal list was ineffective to prevent dismissal as the case had already been automatically dismissed on January 1, 2001, and no further action was required by the clerk or the court to effectuate the dismissal.
In addition, the pretrial order did not serve to reinstate the case. The order expressly sought to prevent dismissal, not to have the matter reinstated. Moreover, the court cannot interpret the stipulation as a request for reinstatement for two reasons. First, it is undisputed that the plaintiff did not subjectively intend to seek reinstatement at that time and did not request the defendant to stipulate to reinstatement. Second, the stipulated pretrial order did not substantially comply with the requirements for an application to reinstate. Consequently, this case was not reinstated by the court's pretrial order.
The defendant was not estopped from asserting the case had been automatically dismissed and not reinstated.
*223 The defendant did no more than comply with the plaintiff's request to remove the case from the clerk's dismissal list. Judicial estoppel cannot rest on the defendant's failure to volunteer an opinion that the stipulated action would not save the plaintiff's case.
Finally, this court's denial of the defendant's application for interlocutory appeal from the district court's ruling on his first motion to dismiss did not operate as an adjudication on the merits of the district court's ruling or otherwise indicate the correctness of that ruling.
Finding no basis for reversal, we affirm.
AFFIRMED.
NOTES
[1] Although the merits of the plaintiff's suit against the defendant were immaterial to the issues raised on appeal, approximately 277 pages in a 355-page appendix were devoted to summary judgment pleadings addressing the merits of the plaintiff's claim for damages! (Rule 1.944 applies to meritorious lawsuits and unmeritorious lawsuits alike.) Similarly, an extensive factual background unrelated to the issues to be decided in this appeal was incorporated in the appellant's brief. The inclusion of these materials unnecessarily complicated our review of this case. Parties are urged in the future to limit the materials in the appendix to those pertinent to the issues under review.
[2] The plaintiff asserts in his brief that the present case "calls for the application of the doctrine of judicial estoppel (or just estoppel)." Despite the reference to "just estoppel," the plaintiff directed his argument solely to the theory of judicial estoppel. It is unclear whether the other estoppel theory to which the plaintiff referred was promissory estoppel or equitable estoppel because the plaintiff did not discuss the elements of any other estoppel theory or cite any case support for another type of estoppel. We conclude, therefore, that the plaintiff's casual reference to "just estoppel" is not sufficient to raise an additional estoppel theory for appellate review. See Schreiber v. State, 666 N.W.2d 127, 128 (Iowa 2003) ("[W]hile the petitioners allude to equal protection in one sentence in their appellate brief, they do not present an argument on the issue, and it could be deemed waived."); Soo Line R.R. v. Iowa Dep't of Transp., 521 N.W.2d 685, 691 (Iowa 1994) (stating "random mention of [an] issue, without elaboration or supportive authority, is insufficient to raise the issue for [reviewing court's] consideration"). Therefore, we consider only the claim of judicial estoppel and express no opinion on whether the doctrines of promissory estoppel or equitable estoppel would have warranted relief in this matter. See Iowa R.App. P. 6.14(1)(c) ("Failure in the brief to state, to argue or to cite authority in support of an issue may be deemed waiver of that issue.").
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761 F.Supp. 1285 (1991)
The NATIONAL ASSOCIATION OF LIFE UNDERWRITERS, Texas Association of Life Underwriters, John W. French, Sr., Danny H. Fisher, and Ben A. Kowalski, Plaintiffs,
v.
Robert L. CLARKE, Comptroller of the Currency, in his Official Capacity, the Office of the Comptroller of the Currency, the United States of America, NCNB National Bank of North Carolina, NCNB Texas National Bank, NCNB Securities, Inc., Defendants.
AMERICAN COUNCIL OF LIFE INSURANCE, the Variable Annuity Life Insurance Co., Plaintiffs,
v.
Robert L. CLARKE, Comptroller of the Currency, in his Official Capacity, the Office of the Comptroller of the Currency, the United States of America, NCNB National Bank of North Carolina, NCNB Texas National Bank, NCNB Securities, Inc., Defendants.
Civ. A. Nos. A-90-CA-679, A-90-CA-774.
United States District Court, W.D. Texas, Austin Division.
March 25, 1991.
*1286 *1287 Martin E. Lybecker, David Overlock Stewart, Alan G. Priest, Raymond C. Ortman, Jr., Ropes & Gray, Washington D.C., Roy Q. Minton, Martha Dickey, Minton, Burton, Foster & Collins, Austin, Tex., for American Council of Life Ins. and Variable Annuity Life Ins. Co.
C. Dean Davis, Davis & Davis, P.C., Austin, Tex., Jonathan B. Sallet, Ann M. Keppler, Jenner & Block, Washington, D.C., for John W. French, Sr., Danny H. Fisher, Ben A. Kowalski, Texas Ass'n of Life Underwriters and National Ass'n of Life Underwriters.
Mollie S. Crosby, U.S. Attorney's Office, Austin, Tex., Ted Hirt, Tracey Merritt, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for Robert L. Clarke, Office of the Controller of the Currency and the U.S.
Robert M. Kuruca, Steven Rosenthal, Robert G. Ballen, Morrison & Foerster, Washington, D.C., Dan S. Boyd, Johnson & Gibbs, Dallas, Tex., Janette P. Patterson, Austin, Tex., for NCNB Nat. Bank of North Carolina, NCNB Texas Nat. Bank and NCNB Securities, Inc.
MEMORANDUM OPINION AND ORDER
WALTER S. SMITH, Jr., District Judge.
The Plaintiffs seek declaratory and injunctive relief from the Comptroller of the Currency's approval of NCNB National Bank of North Carolina's plan to sell annuities through a wholly owned subsidiary, NCNB Securities, Inc. The Defendants have moved to dismiss the Plaintiffs' complaint on the grounds of lack of standing and improper venue and, alternatively, to transfer venue to the District of Columbia.
I. BACKGROUND
The National Association of Life Underwriters ("NALU") is a national trade association representing approximately 1,000 state and local associations that, in turn, represent approximately 138,000 life and health insurance agents who sell insurance products, including annuities, throughout the United States.
The Texas Association of Life Underwriters ("TALU") is a NALU-member trade association, representing approximately 8,900 life and health insurance agents who sell insurance products, including annuities, in Texas.
John W. French, Sr., Danny H. Fisher, and Ben A. Kowalski (the "individual Plaintiffs") are licensed Texas insurance agents who are members of TALU. All three agents sell annuities and are affiliated with insurance agencies in Texas.
The American Council of Life Insurance ("ACLI") is a non-profit trade association of 616 stock and mutual life insurance companies competing nationwide, and represents its members on a variety of legislative and regulatory issues. ACLI member companies market fixed and variable annuities in all fifty states.
The Variable Annuity Life Insurance Company ("VALIC") is a Texas-based insurance company licensed and doing business in all 50 states and specializing in the underwriting and sale of tax-deferred annuities.
In August, 1989, NCNB National Bank of North Carolina ("NCNB North Carolina") sought approval from the Office of the Comptroller of the Currency ("OCC") to offer various annuity contracts on an agency basis through its wholly-owned subsidiary, NCNB Securities, Inc. ("NSI"). In March, 1990, the Comptroller approved NCNB North Carolina's request, determining that annuities were primarily financial investments and the sale of such services was within the power of national banks to broker financial investment instruments.
In August, 1990, NALU, TALU, and the individual Plaintiffs filed suit pursuant to the Administrative Procedure Act, seeking declaratory and injunctive relief based upon their claim that the Comptroller's decision was arbitrary, capricious, an abuse of discretion, and otherwise in violation of law. Shortly thereafter, ACLI and VALIC *1288 initiated a separate suit against the same Defendants containing similar allegations. The cases were consolidated by this Court on October, 1990.
The Plaintiffs' main contention is that NCNB North Carolina's scheme is in violation of the National Bank Act because it will permit and encourage the unlawful entry of national banks into the insurance business.
The Defendants move to dismiss the Plaintiffs' complaint under Rules 12(b)(1) and 12(b)(3) of the Federal Rules of Civil Procedure on the grounds that the Court lacks jurisdiction with regard to a number of the Plaintiffs and because venue is improper under 28 U.S.C. § 1391(e). Alternatively, the Defendants request that the action be transferred to the District of Columbia under 28 U.S.C. § 1404(a) for the convenience of parties and witnesses and in the interest of justice.
II. STANDING
A. The Texas Plaintiffs. The Defendants assert that the individual Plaintiffs and TALU have no standing to bring this suit because NCNB is selling annuities only in North and South Carolina, and has no future plans to sell annuities in Texas.
A standing argument challenges the subject matter jurisdiction of the Court because Article III of the Constitution confines federal courts "to adjudicating actual `cases' and `controversies.'" Allen v. Wright, 468 U.S. 737, 753, 104 S.Ct. 3315, 3325, 82 L.Ed.2d 556 (1984). See also Whitmore v. Arkansas, ___ U.S. ___, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990).
This requirement ensures the presence of the "concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions." Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962).
Diamond v. Charles, 476 U.S. 54, 62, 106 S.Ct. 1697, 1703, 90 L.Ed.2d 48 (1986).
"In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues." Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The focus of the court is upon the "qualifications and status of the party seeking to bring his complaint before a federal court and not on the issues he wishes to have resolved." McKinney v. U.S. Dept. of Treasury, 799 F.2d 1544 (Fed.Cir.1986). The major requirement for an Article III case or controversy is that the plaintiff clearly demonstrate that he has suffered an "injury in fact." Whitmore v. Arkansas, 110 S.Ct. at 1723.
That injury ... must be concrete in both a qualitative and temporal sense. The complainant must allege an injury to himself that is "distinct and palpable", as opposed to merely "[a]bstract", and the alleged harm must be actual or imminent, not "conjectural" or "hypothetical". Further, the litigant must satisfy the "causation" and "redressability" prongs of the Art. III minima by showing that the injury "fairly can be traced to the challenged action," and "is likely to be redressed by a favorable decision." The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. III standing requirements. A federal court is powerless to create its own jurisdiction by embellishing otherwise deficient allegations of standing.
Id. (citations omitted).
What is required is that the plaintiff clearly establish an injury in fact "that distinguishes `a person with a direct stake in the outcome of a litigation even though small from a person with a mere interest in the problem.'" Diamond v. Charles, 476 U.S. at 66-67, 106 S.Ct. at 1706, quoting United States v. SCRAP, 412 U.S. 669, 689, n. 14, 93 S.Ct. 2405, 2417, n. 14, 37 L.Ed.2d 254 (1973). The injury must be real or immediate.
Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be "`certainly impending'" to constitute injury in fact.
Whitmore v. Arkansas, 110 S.Ct. at 1723 (citations omitted) (emphasis added).
*1289 In light of this framework, the Court is persuaded that the individual Plaintiffs have not alleged a "`sufficient threat of actual injury'" in order to have standing to prosecute this action. Pennell v. City of San Jose, 485 U.S. 1, 8, 108 S.Ct. 849, 855, 99 L.Ed.2d 1 (1988), quoting Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308-09, 60 L.Ed.2d 895 (1979). The affidavits and deposition testimony presented by the parties establish that NCNB North Carolina is selling annuities in North and South Carolina, but that no such sales have occurred in Texas. Additionally, although NCNB recognizes that Texas would be an attractive market, it has no plans to begin selling annuities in Texas, either directly or indirectly through subsidiaries or agents, within the near future. The individual Plaintiffs' allegations of harm are too attenuated to sustain jurisdiction.
TALU bases its claims against the Defendants on the threatened injury to its members. Each of the individual Plaintiffs is a member of TALU. An organization may have standing as the representative of its members even in the absence of injury to itself. International Union, United Auto. v. Brock, 477 U.S. 274, 280, 106 S.Ct. 2523, 2528, 91 L.Ed.2d 228 (1986). An organization has standing to litigate on behalf of its members when:
(a) its members would otherwise have standing to sue in their own rights; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
Hunt v. Washington Apple Advertising Comm'n., 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977). Additionally,
The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit....
Warth v. Seldin, 422 U.S. at 511, 95 S.Ct. at 2211-12.
In the present case, the individual Plaintiffs have not established the actual injury necessary to bring suit on their own behalf. Nor has TALU established that the threatened injury to its members is of sufficient immediacy to confer standing. Accordingly, it is ORDERED that the Defendants' Motions to Dismiss the individual Plaintiffs and TALU for lack of standing is GRANTED. As this is not a ruling on the merits, the Plaintiffs will be free to relitigate this issue should the NCNB Defendants actually initiate a program to sell annuities in Texas.
B. VALIC. The Defendants assert that VALIC lacks standing because it is involved in underwriting rather than in selling annuities. The Defendants claim this is insufficient to confer standing upon this Plaintiff because there is no direct competition with NSI, which is engaged solely in the sale of annuities.
The declarations and deposition testimony presented by VALIC establish that VALIC distributes its annuity products in all 50 states. This is accomplished through a "captive distribution system," composed of approximately 600 independent contractors who receive benefits from VALIC such as computers and software, referrals of potential customers, and a variety of health and insurance benefits. VALIC's system also includes approximately 17 regional managers, as well as district and unit managers. The independent contractors handle VALIC's products exclusively, and are prohibited by contract from representing other insurance companies or from selling other insurance or noninsurance products. The independent contractors are compensated on a commission basis.
Approximately 97% of VALIC's total sales are from tax-favored annuities products for employees in the not-for-profit sector, including tax-favored annuities products under Sections 403(b), 401 and 457 of the Internal Revenue Code. As of September 30, 1989, only four percent of VALIC's annuity participants were in individual accounts, and only two percent of VALIC's *1290 annuity assets were in non-qualified annuities. During the year 1990, VALIC earned premiums in the state of North Carolina in excess of $23 million. Out of that amount, approximately $1,200,000 came from sales of annuities in nonqualified plans.
VALIC is suing in its individual capacity as an insurance agency, and does not argue that it has organizational standing on behalf of its various representatives.
While the Defendants assert that any competition or injury would be suffered by the individual representatives, VALIC clearly derives a significant profit from the sale of annuities by its representatives. The sale of annuities by NSI would be in direct competition with VALIC and its individual representatives. Although the Defendants assert that VALIC has no information regarding the types of annuities sold by NCNB through NSI, NCNB interestingly does not indicate that it does not deal in the same type of annuities offered by VALIC. In light of the foregoing, the Court is persuaded that VALIC has sufficiently established a palpable injury arising from the activities of the NCNB Defendants in North and South Carolina. The same does not apply to VALIC's claims regarding NCNB's possible expansion into the Texas market. As previously noted, none of the Plaintiffs have established that such a plan is "certainly impending". Accordingly, the Defendants' Motions to Dismiss VALIC for lack of standing are DENIED.
C. ACLI. The Defendants contend that ACLI lacks standing to bring suit on behalf of its members because (a) ACLI's members are underwriters and do not sell annuities in competition with NCNB (and therefore suffer no injury in fact); and (b) ACLI is not an adequate representative of its members and therefore cannot bring this action in its representative capacity.
As in the case of VALIC, ACLI has established that its members do in fact sell annuity contracts throughout the United States, including North and South Carolina, and that such sales are in direct competition with NSI. ACLI has, therefore, established that a number of its members will suffer an injury in fact as a result of NSI's sale of annuities.
The Defendants contend, however, that there is a great diversity of opinion among ACLI members as to whether NSI's activities work to their benefit or detriment. Therefore, the Defendants argue, ACLI has failed to meet the third prong of the Hunt standard that the participation of individual members in the lawsuit is unnecessary. If there is no clear consensus among an organization's members, the participation of individual members may be necessary to provide "a proper understanding and resolution" of their claims. See Harris v. McRae, 448 U.S. 297, 321, 100 S.Ct. 2671, 2690, 65 L.Ed.2d 784 (1980).
The Defendants have established that NSI has agreements with three ACLI members to sell annuities through NSI, including The Hartford Insurance Company, National Home Life Assurance Company, and North American Life and Casualty Company. The Defendants further establish that nine additional ACLI-member insurance companies have solicited NSI to sell their respective annuities.
"[W]hether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought." Warth v. Seldin, 422 U.S. at 515, 95 S.Ct. at 2213. In the present case, the Plaintiffs seek a declaratory judgment and an injunction; there is no request for individual damages on behalf of any party. The action "raises a pure question of law" whether the Office of the Comptroller was correct in allowing NCNB to market annuities. See International Union, United Auto. v. Brock, 477 U.S. at 287, 106 S.Ct. at 2531. While there may be a number of ACLI's members who are benefited by the Comptroller's decision, the Court is persuaded that ACLI can litigate this case without the participation of its individual members because "the remedy, if granted, will inure to the benefit of those members of the association actually injured." Id. at 288, 106 S.Ct. at 2532, quoting Warth v. Seldin, 422 U.S. at 515, 95 S.Ct. at 2213-14. An association is not *1291 robbed of its ability to bring suit on behalf of its members simply because a minority of its members may be benefited by a decision adverse to the association. The ACLI members identified by the Defendants as dealing with NSI represent less than two percent of ACLI's membership. The defendants have, therefore, failed to establish that the interests of ACLI's members are so divergent that ACLI is not entitled to associational standing. See International Union, United Auto. v. Brock, 477 U.S. at 290, 106 S.Ct. at 2533. Accordingly, the Defendants' Motions to Dismiss ACLI for lack of standing are DENIED.
D. NALU. The initial Motions to Dismiss filed by the Defendants specifically excluded NALU from their standing argument. The NCNB Defendants, however, superfluously noted that NALU's complaint did not sufficiently allege standing. Despite this, the NCNB Defendants did not move to dismiss NALU or request a more definite statement. It was not until the NCNB Defendants' Reply Brief that they requested that NALU be dismissed for lack of standing.
While the party who initiates a suit in federal court has the burden of establishing that jurisdiction is proper,
[f]or purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.
Warth v. Seldin, 422 U.S. at 501, 95 S.Ct. at 2206.
The material allegations of NALU's complaint, taken as true, sufficiently establish standing. The complaint asserts that NALU is a national organization composed of state and local associations that represent life and health insurance agents who sell annuities throughout the United States, and that the approval of NCNB's plan to sell annuities through NSI would be in direct competition with its members.
The NCNB Defendants assert that NALU has presented no factual allegations in support of its claim of jurisdiction. To the contrary, NALU has presented the declaration of William R. Anderson, NALU's Associate General Counsel, which the Court considers legally sufficient to demonstrate NALU's standing. The NCNB Defendants, however, present no evidence to controvert NALU's factual allegations, but rather assert without support that the Anderson declaration is insufficient. The evidence presented is sufficient for the Court to conclude that NALU has standing to prosecute this action. Accordingly, the NCNB Defendants' Motion to Dismiss NALU for lack of standing is DENIED.
III. IMPROPER VENUE
The Defendants assert that if those Plaintiffs who lack standing are dismissed (the individual Plaintiffs, TALU and VALIC), then venue is improper in the Western District of Texas. The Court, however, has determined that VALIC does have standing. Accordingly, Defendants' arguments of improper venue must rest on different grounds.
The appropriate venue provision, 28 U.S.C. § 1391(e), provides in pertinent part:
A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.[1]
*1292 VALIC asserts that venue in the present action is proper within this district because VALIC is incorporated and maintains an office in the Western District of Texas (Austin), and there is no real property involved. The proper standard for evaluating proper venue for a plaintiff corporation is included in Davis v. Hill Engineering, Inc., 549 F.2d 314, 322 (5th Cir.1977):
Prior to the Code a corporation was a resident of the state in which it was incorporated; and, more specifically, where the state of incorporation was divided into two or more districts, then in the district where its official residence was designated by the charter or state law and, in the absence of such a designation, then in the district where the corporation maintained [its] home office. The Code has made no change in this rule relative to the residence of a corporate plaintiff. For venue purposes it has, however, radically altered the rule relative to a corporate defendant (emphasis in original).
The evidence presented establishes that VALIC should properly be considered a resident of the Southern District of Texas. Its principal place of business is in Houston, and it has used its Houston address on official documents filed with the Texas Commissioner of Insurance and the Securities and Exchange Commission.
Venue under § 1391(e) may also be maintained in a judicial district in which "a defendant in the action resides." 28 U.S.C. § 1391(e)(1). The Plaintiffs argue that this language should be interpreted to mean that a suit against a federal official in his official capacity may be brought in any judicial district where any other defendant who happens to be a party resides. The Defendants assert that a proper reading of this section indicates it refers only to the residence of the public official, not to any one of numerous defendants who may be added.
There is a paucity of authority regarding the proper interpretation of this venue provision. The case upon which Plaintiffs rely, De La Fuente v. ICC, 451 F.Supp. 867 (N.D.Ill.1978), included no extensive discussion of this issue because the federal officials did not contest venue. Id. at 870, n. 2. The Court must, therefore, attempt to discern the intent of Congress.
The former version of § 1391(e) applied to actions in which each defendant was a federal entity. Act of Oct. 5, 1962, Pub.L. No. 87-748, 76 Stat. 744. The statute required that all suits against a federal official be brought in the District of Columbia. A number of courts interpreted the section to prevent a plaintiff from joining non-federal parties as defendants. The statute was amended in part to provide expanded venue provisions in order to ameliorate the rather harsh effects of this rule. See Stafford v. Briggs, 444 U.S. 527, 100 S.Ct. 774, 63 L.Ed.2d 1 (1980). The purpose was outlined in the Congressional record:
As it is now, there is no opportunity for a judicial review of the action of any decision that is made by a Federal officer in charge out there [in the field], no matter how arbitrary or capricious, because it is too expensive to come back here [to Washington, D.C.] to litigate it. Hearings on H.R. 10089 before Subcommittee No. 4 of the House Committee on the Judiciary, 86th Cong., 2d Sess., 19-20 (May 26 and June 2, 1960).
Id. at 536, 100 S.Ct. at 781. The result of the amendment has been to permit plaintiffs to bring suit locally against federal officials acting in their individual capacity. Id. The purpose was not, however, to rely on non-federal defendants for venue against the government, but to allow a plaintiff "to utilize [§ 1391(e)'s] broad venue and extra-territorial service of process in actions against Federal defendants, despite the presence in the suit of a non-Federal defendant." S.Rep. No. 996, 94th *1293 Cong., 2d Sess. 2 (1976) U.S. Code Cong. & Admin.News 1976, p. 6121. There is no indication in the language of the statute or the legislative history that Congress intended to allow a federal agency or official to be sued in any judicial district in which a non-federal defendant might reside.
The Stafford case indicates that the language of § 1391(e) may not be as clear as Plaintiffs assert. The Stafford court noted that while the statute expressly refers to the ability of a litigant to bring "a civil action" against a federal official, there was nothing in the legislative history to indicate that § 1391(e) permitted a suit for money damages against a federal official sued in his individual capacity. The Court expressly rejected an overbroad interpretation of the statute. Id. at 542, 100 S.Ct. at 783-84.
The interpretation suggested by the Plaintiffs would have the effect of subjecting a federal officer or agency to suit in districts to which it had no connection. Such a result was clearly not intended by Congress. The statute itself appears to provide that the venue determinations for federal and non-federal defendants are separate, even though they may be joined in the same suit. The Court is persuaded, therefore, that venue in this case is not proper in the Western District of Texas.
Even if the Court were to determine that venue was proper, the Court is persuaded that equitable considerations would necessitate a transfer of this action to the District of Columbia. Without the Texas plaintiffs, this action has absolutely no connection with the Western District of Texas beyond the fact that VALIC and NCNB Texas have offices in Austin. The only Texas resident is VALIC, which the Court has determined should properly be considered as incorporated in the Southern District of Texas. NSI sells annuities only in North and South Carolina and has no plans to expand into the Texas market in the near future, if at all.
The judicial district with the most significant ties to this litigation is the District of Columbia. The cause of action arose in Washington, D.C., where the Office of the Comptroller of the Currency made the decision to approve NCNB's plans. Further, NALU and ACLI are headquartered in Washington, D.C. The connection between the Plaintiffs' claims and this district "is `minuscule'" and "a transfer pursuant to Section 1404(a) is in order." Sinko v. St. Louis Music Supply Co., 603 F.Supp. 649, 652 (W.D.Tex.1984).
Accordingly, it is ORDERED that this action is hereby transferred to the United States District Court for the District of Columbia pursuant to the provisions of 28 U.S.C. § 1404(a).
NOTES
[1] The recent amendment to § 1391, effective November 28, 1990 in the Judicial Improvements Act of 1990, Pub.L. No. 101-650, Title III, does not affect the court's determination. The revised statute now provides for venue "in any judicial district in which (1) a defendant in the action resides, or (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action." See Congressional Record H13305 (Oct. 27, 1990).
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452 F.3d 1082
UNITED STATES of America, Plaintiff-Appellee,v.Joey CLARK, Defendant-Appellant.
No. 05-10480.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 19, 2006.
Filed July 5, 2006.
Mario D. Valencia, Henderson, NV, for the appellant.
Daniel G. Bogden and Robert L. Ellman (argued), U.S. Department of Justice, Las Vegas, NV, for the appellee.
Appeal from the United States District Court for the District of Nevada, Philip M. Pro, Chief District Judge, Presiding. D.C. No. CR-03-00214-PMP.
Before: B. FLETCHER, KOZINSKI, and FISHER, Circuit Judges.
BETTY B. FLETCHER, Circuit Judge:
1
Joey Clark appeals his 46-month sentence for unlawful possession of a firearm. He asserts that the district court violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), by failing to treat the United States Sentencing Guidelines ("Sentencing Guidelines" or "Guidelines") as advisory; applied the Guidelines in an unreasonable manner; and erroneously found facts that should have been sent to a jury and/or proved beyond a reasonable doubt — or failed to adequately make any factual finding whatsoever. We have jurisdiction pursuant to, inter alia, 18 U.S.C. § 3742, and we review the sentence as a whole for reasonableness. United States v. Plouffe, 445 F.3d 1126, 1131 (9th Cir.2006).
2
We remand for resentencing on the sole ground that we cannot determine whether the district court made any factual finding to support a two-level enhancement for carrying a gun with an obliterated serial number. We reject all other arguments raised by Clark in this appeal.
BACKGROUND
3
On April 30, 2003, North Las Vegas police executed a traffic stop of an automobile moving at a high speed. Appellant Joey Clark, a passenger in the car, was asked to exit the vehicle, and police officers noticed he was wearing a bullet-proof vest. Clark tried to flee; a struggle ensued; and a handgun fell from Clark's pants and landed on the ground. Police then discovered a second gun in Clark's possession.
4
Clark had a previous conviction for possessing a controlled substance with intent to sell, and a federal grand jury returned an indictment charging Clark with unlawful possession of a firearm under 18 U.S.C. § 922(g)(1) and forfeiture of the firearms under 18 U.S.C. § 924(a)(2). The indictment specifically alleged that Clark "knowingly possess[ed a] . . . handgun, with an obliterated serial number."
5
Clark pleaded guilty to the charges in the indictment without a plea agreement and submitted objections to the Pre-Sentence Report, arguing that it would be error to assign a two-level increase for possessing a weapon with an obliterated serial number. He repeated those objections at the sentencing hearing, where he also argued that he carried the guns because his life had been threatened by gangs who believed he had been involved with another murder.
6
The district court noted at the outset of the sentencing hearing that "the guideline calculation is an advisory vehicle now. It's not mandatory or binding on the Court, and the Court has to fashion a reasonable sentence in accord with[18 U.S.C. § 3553]." The Court further stated, with regard to the two-level increase, that "subsequent to Booker and in accord with the provisions of [18 U.S.C. § 3553] those would be factors which the Court could also consider in fashioning a reasonable sentence." The court restated the advisory nature of the Guidelines several more times during the hearing.
7
The district court acknowledged that Clark had earned his high-school degree and had likely "turned a corner" in making a more productive life, but eventually determined that "as a person who had a felony conviction, you don't have the right to carry a gun." The court expressed sympathy for Clark's expressed fear of retaliation but ultimately decided that Clark's possession of two loaded firearms and his attempt to wrest away from a police officer made Clark's conduct sufficiently dangerous to warrant the two-level enhancement:
8
All of these factors, everything I have heard — and I am giving credit to things that were said by your former attorney [from a previous trial in which Clark was acquitted] because I think she has some insight into you — by your father who also obviously does and your attorney and by you yourself suggest to me that, probably, there's merit in taking somewhat of a chance in fashioning a sentence in your case.
9
But to give the kind of sentence that [your present attorney] very ably argues for would be to ignore the seriousness of your conduct and would also provide very little deterrent to other people out there who might engage in similar conduct.
10
The district court decided to stay "within the guideline range" and sentenced Clark to 46 months, the low end of the sentence. The court awarded Clark credit for time served. Judgment was entered on June 27, 2005, and this timely appeal followed.
DISCUSSION
11
Clark argues that the district court violated Booker by treating the Sentencing Guidelines as mandatory. However, the district court repeatedly cited Booker for the proposition that the Sentencing Guidelines are now advisory and demonstrated both an awareness of, and compliance with, the remedial aspect of Booker.
12
Clark's argument that his sentence is "unreasonable" under Booker also fails. "In determining whether a sentence is unreasonable, we are guided by the sentencing factors set forth in 18 U.S.C. § 3553(a), including the sentencing range established by the Sentencing Guidelines." Plouffe, 445 F.3d at 1131. These factors include: (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed; (3) the kinds of sentences available; (4) the kinds of sentences and the sentencing range established by the Sentencing Guidelines; (5) pertinent policy statements issued by the Sentencing Commission; (6) the need to avoid unwarranted sentencing disparities among defendants who have similar criminal records and have been found guilty of similar conduct; and (7) the need to provide restitution to victims. See 18 U.S.C. § 3553(a).
13
Clark claims that the district court ignored the purposes and dictates of § 3553(a), but the record reflects otherwise. The district court considered the severity of the sentence in light of Clark's self defense argument, his desire for better vocational training, his efforts to rehabilitate himself after the arrest, and his arguments regarding selective enforcement and a disproportionately long sentence. The court noted, "I do have to consider the guidelines . . . . And the provisions of [18 U.S.C. §] 3553 set forth a litany of factors . . . and I keep them written down, so I don't forget them." The court balanced these concerns against the purpose of deterring future crimes.
14
In sum, the district court conducted a thorough sentencing hearing and explained its decision in thorough and careful detail. It sentenced Clark to the low end of the Guidelines range, which suggests that it may have credited Clark in light of the mitigating circumstances mentioned above. Its determination is eminently "reasonable" under Booker.
15
Clark argues that the Sixth Amendment entitles him to a jury finding on the issue of the obliterated serial number and/or that the Fifth Amendment requires that such findings be made beyond a reasonable doubt. But, "[s]tanding alone, judicial consideration of facts and circumstances beyond those found by a jury or admitted by the defendant does not violate the Sixth Amendment right to jury trial. A constitutional infirmity arises only when extra-verdict findings are made in a mandatory guidelines system." United States v. Ameline, 409 F.3d 1073, 1077-78 (9th Cir.2005) (en banc). Nor is there any requirement that such facts be found beyond a reasonable doubt. "As a general rule, the preponderance of the evidence standard is the appropriate standard for factual findings used for sentencing." United States v. Dare, 425 F.3d 634, 642 (9th Cir.2005). Because the two-level enhancement did not have a "disproportionate effect on [Clark's] sentence," id. (quoting United States v. Hopper, 177 F.3d 824, 833 (9th Cir.1999) (internal quotation marks omitted)), application of the preponderance of the evidence standard was appropriate.
16
However, the record is not clear as to whether the court made any finding regarding the obliterated serial number. The court stated, "You weren't charged with any conduct, other than that of being a felon in possession of a firearm, and one of those firearms has an obliterated serial number, and a factor to be considered is your attempt to wrestle away from the officer at the time you were arrested." Although we do not agree with the government counsel that the district court's statement was a finding regarding the obliterated serial number, a majority of the panel finds that it was not unreasonable for counsel to so interpret it. In the final analysis, however, we disagree that such a finding was made, and we remand for resentencing so that the court can make the appropriate determination.
17
Sentence VACATED and REMANDED for resentencing. Because Clark has almost finished serving his sentence, the mandate shall issue forthwith.
18
KOZINSKI, Circuit Judge, concurring.
19
While I agree with much in the majority opinion, and concur in the result, I cannot agree with my colleagues that "it was not unreasonable for [government] counsel to so interpret" the district court's statement as a finding of fact. Maj. op. at 7374. In fact, no reasonable lawyer would have tried to pass off the district court's remark as a finding; government counsel was trying to pull a fast one.
20
To begin with, the district judge did not find — and could not have found — the serial number was obliterated because the matter was not submitted to him for decision. While the defendant objected to the PSR's claim that one of the guns in Clark's possession had an obliterated serial number, the on-the-record colloquy on this matter centered entirely on whether Clark had admitted that fact when he pleaded guilty. After hearing from defense counsel, the prosecutor and the probation officer, the district court overruled the objection, apparently on the ground that defendant's admission was sufficient—a proposition the government does not defend on appeal. If the district court had also made an independent finding that the serial number was obliterated, this is the point in the proceedings where one would expect to see it. But no evidence was presented to support such a finding and no one asked the judge to make it. So, of course, he did not.
21
Which brings up the second reason why the government's claim is patently unreasonable: The statement on which the government relies was made by the district judge much later in the proceedings when he explained the basis of his sentence, after the defendant had exercised his right to allocution. Allocution is the penultimate scene in the sentencing drama; it is the defendant's traditional right to plead to the court for leniency after the legal and factual issues affecting sentencing have been resolved. United States v. Gunning, 401 F.3d 1145, 1148-49 (9th Cir.2005) (allocution must be allowed on remand after new findings of fact). After allocution, the only thing left for the court to do is exercise its sentencing discretion. See Fed. R.Crim. Pro. 32(i)(4)(A)(ii).
22
It is unthinkable that a district court would make a finding of fact at that point in the proceedings, as every criminal lawyer well understands. Nor is there any reason to suspect that the careful and experienced district judge upset the expected order here. After all, he had made his ruling based on what he believed was defendant's admission earlier in the proceedings. What possible reason would he have had for making a factual finding, sua sponte, without a factual record, in the midst of pronouncing sentence? To articulate the proposition is to ridicule it.
23
Finally, one need only read what the district court actually said — I mean the full sentence rather than just selected parts of it—to discard the possibility of any reasonable reliance on it as a finding. The court didn't use "I find . . ." or another suitable synonym. Rather, the judge — in articulating the reasons for his sentence—notes that "[y]ou[Clark] weren't charged with any conduct, other than that of being a felon in possession of a firearm, and one of those firearms has an obliterated serial number . . . ." Of course, if one quotes only the underscored portion of the sentence, and leaves out the introductory language, one might be able to squeeze out a "finding" by the district court that the serial number was obliterated. But no reasonable lawyer would play doctor with quotes in this fashion.
24
Yet, astonishingly, this is precisely what the government did. In its brief, the government argued that Clark wasn't entitled to a jury finding that the serial number was obliterated because the district court could rely on its own finding to this effect: "Accordingly, the [jury] claim is moot because under Booker, the district court could impose any reasonable sentence up to 10 years based on its own finding of sentencing factors under a preponderance standard." This "mootness" argument is necessarily and expressly predicated on the existence of such a finding by the district judge. Unprofessionally, the government's brief gives no citation to the record where the district court made such a finding.
25
"Where is the finding?" I—and no doubt my colleagues — wondered while leafing aimlessly through page after page of the record in pursuit of support. Not finding anything, the issue naturally became the subject of questioning at oral argument:
26
Q. Was there a finding by the district court that the serial number was obliterated?
27
A. Yes there was.
28
Q. Tell me where.
29
A. Page 229 of the excerpts of record.
30
Q. What line?
31
A. Oh, excuse me, page 228 of the excerpts of record.
32
Q. What line?
33
A. And that's lines 22 and 23. So there's actually a find —
34
Q. Could you read me the language on which you're relying?
35
A. Yes. Line 22. "One of those firearms has an obliterated serial number." Begins on line 22 and ends on line 23.
36
As the perspicacious reader will already have recognized, the passage on which government counsel relies is the partial sentence underscored above. Counsel twice attempted to focus the court's attention on lines 22 and 23 of the transcript; yet the court's full sentence—including the crucial introductory phrase "[y]ou weren't charged with any conduct, other than. . . ." — spans lines 21 to 25. When a member of the panel pointed out that the sentence merely articulated what Clark was charged with, counsel insisted:
37
A. I believe it's a finding . . . .
And again:
38
Q. What the court is saying, "you weren't charged with anything but this." So what he's saying is "you were charged with this." I can't see how you can take a piece of a judge's sentence that lists the charges and characterize it as a finding.
39
. . .
40
A. I have to differ with that, your Honor. I think it stands alone . . . .
41
I don't believe that quoting portions of a sentence while leaving out key qualifiers is reasonable conduct for an attorney of this court. I don't believe that making assertions in a brief regarding disputed factual points, without providing a citation to the record, amounts to reasonable attorney conduct. I don't believe that ignoring the context of statements in the record—the timing, circumstances and purpose — amounts to reasonable conduct. In short, I don't believe that it is appropriate or reasonable for a lawyer to pluck a few words from the middle of a sentence and pretend that they say something very different from what they mean in context. This is true of every lawyer who appears before us, but it goes doubly for lawyers who represent the government in criminal cases. See United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir.1993) ("Prosecutors are subject to constraints and responsibilities that don't apply to other lawyers. While lawyers representing private parties may—indeed, must—do everything ethically permissible to advance their clients' interests, lawyers representing the government in criminal cases serve truth and justice first." (internal citation omitted)).
42
I don't understand why my colleagues believe that the government's conduct here was reasonable. I cannot join in the encomium and thereby encourage government lawyers appearing before us to try to get away with more of the same. I therefore respectfully—but decisively—distance myself from that portion of the majority's opinion suggesting that government counsel was reasonable in behaving as he did.
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605 F.2d 1205
Shawv.Dixon
No. 79-6416
United States Court of Appeals, Fourth Circuit
8/6/79
1
E.D.N.C.
AFFIRMED
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6 Cal.Rptr.3d 425 (2003)
79 P.3d 542
31 Cal.4th 1064
The PEOPLE, Plaintiff and Respondent,
v.
Vikram Gill BILLA, Defendant and Appellant.
No. S111341
Supreme Court of California
November 24, 2003
*426 Scott Concklin, under appointment by the Supreme Court, Redding, for Defendant and Appellant.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Janet E. Neeley, Stephen G. Herndon and David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.
CHIN, J.
Defendant conspired with two others to commit arson of his truck for purposes of insurance fraud. All three conspirators were present at the scene of the burning. While committing the arson, one of the conspirators caught fire and burned to death. We must decide whether defendant is guilty of murdering that coconspirator under the felony-murder rule. We conclude, as did the Court of Appeal, that the felony-murder rule applies to all arsonists at the scene of the arson. In so doing, we distinguish People v. Ferlin (1928) 203 Cal. 587, 265 P. 230 (Ferlin), which held that the rule does not apply to a conspirator who was never at the scene. We leave for another day the question whether Ferlin was correctly decided on its facts.
I. THE FACTS
The prosecution presented evidence from which the jury could reasonably find the following. Defendant purchased a truck and insured it for physical damage. On August 26, 1997, defendant and two others, including Manoj Bhardwaj, drove *427 from Yuba City towards Sacramento, with defendant and Bhardwaj in defendant's truck and the third person following in a car. They intended to burn defendant's truck and obtain the insurance proceeds. Near Wheatland, defendant drove his truck onto a gravel road and stopped about two-tenths of a mile down the road around a bend. There the three set the truck on fire, using either kerosene or diesel fuel.
During these events, Bhardwaj's clothing somehow became saturated with the fuel. It is not clear exactly what happened, but evidence suggested he might have held a leaky canister of the fuel on his lap during the drive. While the three were setting the truck on fire, Bhardwaj's clothing caught fire, and he was severely burned. He died later of his injuries.
A jury convicted defendant of the second degree murder of Bhardwaj (Pen.Code, §§ 187, 189),[1] arson causing great bodily injury (§ 451, subd. (a)), and making a false or fraudulent insurance claim (§ 550, subd. (a)(4)). The trial court had instructed the jury solely on the felony-murder rule as a basis for finding defendant guilty of murder. The Court of Appeal modified the judgment and affirmed it as modified. It held that defendant was properly convicted of Bhardwaj's murder under the felony-murder rule. We granted defendant's petition for review to decide whether the felony-murder rule applies on these facts.
II. DISCUSSION
"All murder ... which is committed in the perpetration of, or attempt to perpetrate, [specified felonies, including arson] ... is murder of the first degree." (§ 189.)[2] This felony-murder rule covers "a variety of unintended homicides resulting from reckless behavior, or ordinary negligence, or pure accident...." (People v. Dillon (1983) 34 Cal.3d 441, 477, 194 Cal.Rptr. 390, 668 P.2d 697.) We must decide whether it includes the unintended death of one of the perpetrators during the commission of arson.
Two overarching principles guide us. First, "we are not concerned here with the wisdom of the first degree felony-murder rule itself, or with the criticisms and defenses directed at it by judicial and academic commentators; section 189 is the law of California, and we are not free to ignore or alter it if we would." (People v. Pulido (1997) 15 Cal.4th 713, 724, 63 Cal.Rptr.2d 625, 936 P.2d 1235.) Second, "[n]evertheless, when the rule as ordained by the Legislature requires detailed delineation, this court properly considers policy and consistency. In particular, we have held the first degree felony-murder rule `should not be extended beyond any rational function that it is designed to serve.'" (Ibid., quoting People v. Washington (1965) 62 Cal.2d 777, 783, 44 Cal.Rptr. 442, 402 P.2d 130.)
Analysis of this question must begin with Ferlin, supra, 203 Cal. 587, 265 P. 230. In that case, the defendant hired Skala to commit arson and purchased gasoline used in the arson, but he apparently did not otherwise actively participate in the crime and was not present at the scene of the arson. Skala burned to death while committing the arson. (Id. at p. 590, 265 P. 230.) We held that the defendant was improperly convicted of felony murder. *428 "It would not be seriously contended that one accidentally killing himself while engaged in the commission of a felony was guilty of murder. If the defendant herein is guilty of murder because of the accidental killing of his co-conspirator then it must follow that Skala was also guilty of murder, and if he had recovered from his burns that he would have been guilty of an attempt to commit murder." (Id. at p. 596, 265 P. 230.) "It cannot be said from the record in the instant case that defendant and deceased had a common design that deceased should accidentally kill himself. Such an event was not in furtherance of the conspiracy, but entirely opposed to it." (Id. at p. 597, 265 P. 230.)
Several Court of Appeal cases have followed Ferlin under similar facts. In Woodruff v. Superior Court (1965) 237 Cal.App.2d 749, 47 Cal.Rptr. 291, the defendant procured another to burn defendant's cafe but was not present at the actual burning. The other person died in the arson. (Id. at p. 750, 47 Cal.Rptr. 291.) The court described the question as "whether a person who aids, counsels or procures another to maliciously set fire to a building, but who is not physically present at the scene of the arson, is guilty of murder when his confederate negligently or accidentally burns himself to death while setting the fire." (Ibid.) It followed Ferlin in concluding the felony-murder rule did not apply. (Id. at pp. 750-752, 47 Cal.Rptr. 291.) In People v. Jennings (1966) 243 Cal.App.2d 324, 52 Cal.Rptr. 329, three persons, including the defendants, hired another to burn a building for insurance purposes. That person caught fire himself while setting the fire and died later. (Id. at pp. 326-327, 52 Cal.Rptr. 329.) The Court of Appeal also found no liability for felony murder. (Id. at pp. 327-329, 52 Cal.Rptr. 329.)
In People v. Earnest (1975) 46 Cal.App.3d 792, 120 Cal.Rptr. 485, the defendant conspired with Munoz to burn defendant's house for the insurance proceeds. "Munoz, acting alone, attempted to set fire to the then unoccupied home, an explosion occurred and Munoz was killed." (Id. at p. 794, 120 Cal.Rptr. 485.) The court also found no felony-murder liability. "It is settled California law that where, as here, an accomplice in a conspiracy to commit arson for the purpose of defrauding an insurer accidentally burns himself to death, his co-conspirators may not be charged with murder under the felony-murder rule." (Ibid.) The court interpreted Ferlin and its progeny as "clearly express[ing] the rule that the accomplice's accidental self-destruction is not in furtherance of the common design. It is not the fact that the accomplice killed himself that precludes application of the theory of vicarious responsibility, but the fact that his was the sole human agency involved in his death." (People v. Earnest, supra, at pp. 796-797, 120 Cal.Rptr. 485.)
We have not confronted similar facts since Ferlin, supra, 203 Cal. 587, 265 P. 230, but we have cited that case a number of times. In the landmark decision of People v. Washington, supra, 62 Cal.2d 777, 44 Cal.Rptr. 442, 402 P.2d 130, we held that the robbery felony-murder rule does not apply when someone other than a robber, such as the police or a victim, does the killing. We cited Ferlin for the proposition that "for a defendant to be guilty of murder under the felony-murder rule the act of killing must be committed by the defendant or by his accomplice acting in furtherance of their common design." (People v. Washington, supra, at p. 783, 44 Cal.Rptr. 442, 402 P.2d 130.) In People v. Antick (1975) 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, we held that one robber cannot be vicariously liable for the death of an accomplice due to the deceased robber's *429 actions because people cannot murder themselves. We discussed Ferlin and said its "holding was aptly explained by the Court of Appeal in Woodruff v. Superior Court (1965) 237 Cal.App.2d 749 [47 Cal.Rptr. 291]: `We believe the rationale of that decision to be that section 189 was inapplicable because there was no killing by the accused felon and no killing of another by one for whose conduct the accused was vicariously responsible.... [I]n Ferlin" the coconspirator killed himself while he alone was perpetrating the felony he conspired to commit" and "it was held in substance and effect that inasmuch as [deceased] killed himself Ferlin could not be held criminally responsible for his death."' (Id. at p. 751 [47 Cal.Rptr. 291].)" (People v. Antick, supra, at p. 89, 123 Cal.Rptr. 475, 539 P.2d 43.) More recently, we cited Ferlin for the proposition that to be guilty of murder for a killing attributable to the act of an accomplice, "the accomplice must cause the death of another human being by an act committed in furtherance of the common design." (People v. Caldwell (1984) 36 Cal.3d 210, 217, fn. 2, 203 Cal.Rptr. 433, 681 P.2d 274.)
Defendant argues primarily that Ferlin, supra, 203 Cal. 587, 265 P. 230, and its progeny are on point here: Bhardwaj killed himself, and his death was not in furtherance of the conspiracy but entirely opposed to it. In deciding this question, we must consider the purpose behind the felony-murder rule, for we have said the rule should not be extended beyond its purpose. (People v. Pulido, supra, 15 Cal.4th at p. 724, 63 Cal.Rptr.2d 625, 936 P.2d 1235.) The rule's primary purpose is "to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit." (People v. Washington, supra, 62 Cal.2d at p. 781, 44 Cal.Rptr. 442, 402 P.2d 130; accord, People v. Pulido, supra, 15 Cal.4th at p. 725, 63 Cal.Rptr.2d 625, 936 P.2d 1235; People v. Hansen (1994) 9 Cal.4th 300, 310, 36 Cal.Rptr.2d 609, 885 P.2d 1022.) In Washington, we found this purpose not applicable when a third person kills a robber. "This purpose is not served by punishing [felons] for killings committed by their victims." (People v. Washington, supra, at p. 781, 44 Cal.Rptr. 442, 402 P.2d 130.) However, here no third person killed Bhardwaj. Making arsonists guilty of murder if anyone, including an accomplice, dies in the arson gives them an incentive to do whatever is necessary to make sure no one dies. Defendant argues that felons already have a natural incentive not to kill themselves or their accomplices while committing their crimes. To the extent this is so, making felons strictly liable for deaths maximizes this incentive, thus furthering the purpose of the felony-murder rule.
The felony-murder rule applies to the death of a cohort as much as to the death of an innocent person. (People v. Johnson (1972) 28 Cal.App.3d 653, 656-658, 104 Cal.Rptr. 807 [defendant's gun discharged, apparently accidentally, killing an accomplice who was running towards one of the victims; felony-murder rule applies]; People v. Cabaltero (1939) 31 Cal.App.2d 52, 55-56, 87 P.2d 364 [one accomplice shot and killed another accomplice, apparently out of anger that that accomplice had fired his gun; felony-murder rule applies]; see also People v. Washington, supra, 62 Cal.2d at p. 780, 44 Cal.Rptr. 442, 402 P.2d 130 [rejecting a distinction between the death of an accomplice and the death of an innocent person].)[3] Defendant *430 cites language in People v. Jennings, supra, 243 Cal.App.2d at pages 328-329, 52 Cal.Rptr. 329, that the felony-murder rule exists to protect the public, not to benefit lawbreakers. Jennings, in turn, cited People v. Chavez (1951) 37 Cal.2d 656, 669, 234 P.2d 632, where we said that section 189 "was adopted for the protection of the community and its residents, not for the benefit of the lawbreaker...." But we said the felony-murder rule does not benefit lawbreakers in order to extend the rule; we did not suggest it fails to protect lawbreakers. (People v. Chavez, supra, at pp. 669-670, 234 P.2d 632.) One may have less sympathy for an arsonist who dies in the fire he is helping to set than for innocents who die in the same fire, but an accomplice's participation in a felony does not make his life forfeit or compel society to give up all interest in his survival.
One rationale of Ferlin and its progeny is that the accomplice's death "was not in furtherance of the conspiracy, but entirely opposed to it." (Ferlin, supra, 203 Cal. at p. 597, 265 P. 230.) This reasoning is flawed.[4] The death of the accomplice in People v. Johnson, supra, 28 Cal.App.3d 653, 104 Cal.Rptr. 807, and possibly also People v. Cabaltero, supra, 31 Cal.App.2d 52, 87 P.2d 364, was similarly not in furtherance of the conspiracy in the sense that the death harmed the conspiracy. Nevertheless, the courts found felony-murder liability in those cases. As the Attorney General argues, there is a difference between acts done in furtherance of the conspiracy and the results of those acts. We have said that the "act of killing" must be in furtherance of the conspiracy. (People v. Washington, supra, 62 Cal.2d at p. 783, 44 Cal.Rptr. 442, 402 P.2d 130, italics added.)[5] But the result need not further the conspiracy. (See People v. Schader (1965) 62 Cal.2d 716, 731, 44 Cal.Rptr. 193, 401 P.2d 665 [the "death must result from an act committed in furtherance of the robbery or the escape from such robbery"].) In this case, all three conspirators, including Bhardwaj, were acting in furtherance of the conspiracy, including committing the acts that resulted in Bhardwaj's death. Although the unintended result Bhardwaj's death was opposed to the conspiracy, the acts causing that result were in furtherance of it. One can hypothesize many killings that harm a conspiracy killing the only person who knows the combination to a safe, for example but felony-murder liability would extend to such a killing. People v. Washington, 62 Cal.2d 777, which found no felony-murder liability for killings by third persons, is distinguishable in this regard. "When a killing is not committed by a robber or by his accomplice but by his victim, malice aforethought is not attributable to the robber, for the killing is not *431 committed by him in the perpetration or attempt to perpetrate robbery.... Section 189 requires that the felon or his accomplice commit the killing, for if he does not, the killing is not committed to perpetrate the felony. Indeed, in the present case the killing was committed to thwart a felony." (People v. Washington, supra, at p. 781, 44 Cal.Rptr. 442, 402 P.2d 130.) Here, no third party contributed to the death. Bhardwaj's death was attributable solely to the arsonists' acts in furtherance of the arson.
Another rationale of Ferlin is that the victim killed himself. Defendant would distinguish People v. Johnson, supra, 28 Cal.App.3d 653, 104 Cal.Rptr. 807, and People v. Cabaltero, supra, 31 Cal.App.2d 52, 87 P.2d 364, on this basis. He argues that in those cases, an accomplice killed the victim; here Bhardwaj, like the victim in Ferlin, simply killed himself. We disagree. Whether the deceased was solely responsible for his own death is questionable even under Ferlin's facts. After all, Ferlin hired the deceased to commit the arson and procured the gasoline, acts that contributed to the death. But even if Ferlin's rationale applied to its facts, this case is different. Although Bhardwaj may have played a more active role in his own death than did the accomplice victims in People v. Johnson, supra, 28 Cal.App.3d 653, 104 Cal.Rptr. 807, and People v. Cabaltero, supra, 31 Cal.App.2d 52, 87 P.2d 364, he did not just kill himself. All three conspirators, including defendant, were at the crime scene and active participants in the events immediately causing his death. Ferlin's connection to his accomplice's death was more attenuated than defendant's connection to Bhardwaj's death.
We agree with the Court of Appeal's assessment: "In this case, Bhardwaj did not act alone in perpetrating the arson that was the cause of his death. Defendant was present and an active participant in the crime. And his active conduct was a direct cause of Bhardwaj's death. In short, regardless of whether the death was accidental or not, defendant's act of arson killed Bhardwaj. Under the circumstances, Ferlin is inapposite, and the felony-murder rule may be applied to defendant's conduct." As the court pointed out, even if "there is no killing `of another' when an accomplice acts alone in causing his own death, there is a killing upon which murder liability may attach when the defendant or other accomplices actively participate in the events causing death." We conclude that felony-murder liability for any death in the course of arson attaches to all accomplices in the felony at least where, as here, one or more surviving accomplices were present at the scene and active participants in the crime. We need not decide here whether Ferlin was correct on its facts.
Defendant argues that "any retroactive weakening of the Ferlin rule to expand felony-murder liability would be unconstitutionally ex post facto." We disagree. "[A]n unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates in the same manner as an ex post facto law." (People v. Davis (1994) 7 Cal.4th 797, 811, 30 Cal.Rptr.2d 50, 872 P.2d 591; see also People v. Blakeley (2000) 23 Cal.4th 82, 91-92, 96 Cal.Rptr.2d 451, 999 P.2d 675.) In this case, however, we are not retroactively enlarging a criminal statute but merely interpreting one. Ferlin and its progeny are factually distinguishable. Our holding is a routine interpretation of existing law, not an overruling of controlling authority or a sudden, unforeseeable enlargement of a statute.
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
*432 WE CONCUR:[6] GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, BROWN and MORENO, JJ.
NOTES
[1] All further statutory references are to the Penal Code.
[2] Although the prosecution proceeded on a felony-murder theory with arson the underlying felony, it only sought conviction for second degree murder, possibly, as the Court of Appeal suggested, "out of a belief that a charge of first degree murder would be unduly harsh under the circumstances...."
[3] People v. Cabaltero, supra, 31 Cal.App.2d 52, 87 P.2d 364, has been criticized for reasons not relevant here but never overruled. (See People v. Pulido, supra, 15 Cal.4th at p. 722, fn. 2, 63 Cal.Rptr.2d 625, 936 P.2d 1235.)
[4] Ferlin, supra, 203 Cal. 587, 265 P. 230, was also incorrect in another part of its analysis, although one not critical to its conclusion. It stated that if the defendant were guilty of Skala's murder, then Skala must also be guilty of murder, "and if he had recovered from his burns ... he would have been guilty of an attempt to commit murder." (Id. at p. 596, 265 P. 230.) The reference to attempted murder is incorrect. California has no crime of attempted felony murder. (People v. Bland (2002) 28 Cal.4th 313, 328, 121 Cal.Rptr.2d 546, 48 P.3d 1107; see also People v. Mize (1889) 80 Cal. 41, 43, 22 P. 80 [attempted murder requires specific intent to kill].)
[5] In People v. Pulido, supra, 15 Cal.4th at pages 721-722, 63 Cal.Rptr.2d 625, 936 P.2d 1235, we identified two somewhat different lines of authority regarding the exact scope of accomplice liability. As in Pulido, we need not reconcile or choose between these lines because the result here would be the same under either.
[6] We note that Chief Justice George was outside California (attending a board meeting of the national Conference of Chief Justices, of which he is currently president) when he communicated his concurrence in this opinion by transmitting to the Clerk of the Court (at the court's chambers in San Francisco), by facsimile, a signed copy of the signature page of this opinion indicating his concurrence. We conclude that the Chief Justice's concurrence in the opinion in this manner is valid, and that prior decisions of this court indicating that appellate justices may participate in a decision only if they are physically within California at the time they formally sign an opinion or order (see Cothran v. San Jose Water Works (1962) 58 Cal.2d 608, 612, 25 Cal.Rptr. 569, 375 P.2d 449; People v. Ruef (1910) 14 Cal.App. 576, 623-632, 114 P. 54) are no longer persuasive and should be overruled.
Under the California Constitution, absent a waiver by the parties, appellate justices must be present at oral argument in order to participate in the appellate decision and judgment (see Cal. Const., art. VI, §§ 2, 3; Moles v. Regents of University of California (1982) 32 Cal.3d 867, 870-874, 187 Cal.Rptr. 557, 654 P.2d 740), but when justices are present at argument, nothing in the California Constitution or statutes provides that they are disabled from participating in the appellate decision simply because they are temporarily outside of the state at the time they communicate to the Clerk of the Court their concurrence in a proposed opinion (or submit to the clerk a separate proposed opinion for circulation to the other participating justices). In a multijudge appellate court, the operative act that gives legal effect to an appellate court opinion or order is the formal filing of the opinion or order by the Clerk of the Court. (See Cal. Rules of Court, rules 24, 29.4.) So long as the clerk is authorized by the court to file the opinion or order, and the filing occurs in California, the legally effective judicial act is performed in California. To the extent that the more restrictive rule set forth in the early California cases cited above may have reflected the vagaries and unreliability of the communication systems of the time, modern methods of communication have rendered such concerns obsolete. (See, e.g., Gov.Code, § 5500 et seq. [Uniform Facsimile Signature of Public Officials Act]; Civ.Code, § 1633.1 et seq. [Uniform Electronic Transactions Act].)
Contemporaneously with the filing of the decision in this case, we shall amend the Internal Operating Practices and Procedures of the California Supreme Court to clarify the procedures justices may utilize to communicate their vote on a matter pending before the court.
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789 A.2d 306 (2001)
NATIONAL CONSTRUCTION SERVICES, INC., Appellant,
v.
PHILADELPHIA REGIONAL PORT AUTHORITY.
Commonwealth Court of Pennsylvania.
Argued September 10, 2001.
Decided October 4, 2001.
Publication Ordered November 28, 2001.
*307 Mark C. Rifkin, Paoli, for appellant.
Kenneth M. Kolaski, Philadelphia, for appellee.
Before McGINLEY, Judge, PELLEGRINI, Judge and McCLOSKEY, Senior Judge.
PELLEGRINI, Judge.
National Construction Services, Inc. (National) appeals from an order of the Court of Common Pleas of Philadelphia County (trial court) sustaining Philadelphia Regional Port Authority's (Port Authority) preliminary objections to a complaint filed by National contending that in failing to award it a project to construct a refrigerated facility, Port Authority breached a contract to award the project to the "lowest responsible bidder."
In February 1999, Port Authority solicited proposals for bids to design and build a 150,000 square-foot refrigerated facility to be operated at its Tioga Marine Terminal in Philadelphia. In connection with the solicitation of bids for the project, Port Authority issued an instruction list for bidders which included a general conditions section stating that bids would be awarded to the lowest responsible bidder, and reserving the right of Port Authority to reject any or all bids, in whole or in part, if it found it was within its best interest to do so. National, as well as other bidders, submitted a sealed bid for the project. After it opened the bids, by letter dated April 15, 1999, Port Authority informed National that it had awarded the contract for the project to another bidder having determined that bidder to be the most responsive one. The contract with the other bidder was subsequently executed and completed.
On August 24, 1999, four months after the contract had been awarded, National filed a petition for review with this Court in our original jurisdiction contending that Port Authority breached the terms of its solicitation proposal because it had not awarded the contract to the lowest responsible bidder and was liable to National for money damages. We determined that we lacked jurisdiction to hear the claim because the action was not against the Commonwealth agency and transferred the case to the trial court.
*308 National then filed an amended complaint with the trial court to which Port Authority filed preliminary objections contending that National either had an adequate statutory remedy or lacked standing to maintain the action. As to its adequate administrative remedy, Port Authority argued that it was a Commonwealth agency governed by the Commonwealth Procurement Code (Procurement Code), 62 Pa.C.S. §§ 101-4509, and because the Procurement Code required that a written grievance must be filed with the head of purchasing within seven days after a bid was awarded, National's failure to timely pursue this remedy left the trial court without jurisdiction to hear its claim.[1] In the alternative, Port Authority asserted that even if the trial court found that Procurement Code provisions were not applicable because it was not a Commonwealth agency, the claim for money damages should still be dismissed as National was not a taxpayer, and only a taxpayer had a right to bring an action in equity to enjoin the award of a bid contract for failure to follow proper bidding procedures.[2]
Granting Port Authority's preliminary objections, the trial court held that National could not prevail because if Port Authority was a Commonwealth agency, National had to pursue a timely remedy under the Procurement Code, which it had timely failed to do, and because it was not a taxpayer, it had no standing to maintain an action. This appeal followed.[3]
On appeal, National contends that even if the Procurement Code governs or it lacks taxpayer standing, that is irrelevant as to whether it can maintain the action because the bid proposal process created a contract between it and Port Authority.[4] It argues that the solicitation for the proposals provided that the project would be awarded to the lowest responsible bidder is an offer that it accepted when it submitted its bid. Because it alleged in its complaint that it was the lowest responsible bidder, and all of its averments set forth in its complaint must be taken as *309 true,[5] National contends that Port Authority's failure to award it the project sets forth a claim for breach of contract.
What this contention ignores is that a solicitation for bid proposals is not an offer but only an invitation for parties to submit bids in response to this request. The submission of the bid is, in fact, the offer which the contracting agency is free to accept or reject. As set forth in Corbin on Contracts § 2.3 (rev. ed.1993):
[W]hen someone advertises for bids [it] is the same as that pertaining to auctions. The advertisement is not an offer. It is a request for offers. This is so even if the common practice is to accept the best bid made. Occasionally, and especially in public bid-letting procedures, the best bidder will have a statutory right to be awarded the contract. This statutory right does not create a contract.
In Pennsylvania, as in most states, the "best bidder" has no right to have the contract awarded to it because the "lowest responsible bidder" provisions are not there to give the bidder any rights but to protect taxpayers as evidenced by the settled law that only taxpayers have a right to seek an action to enjoin the contract. See Footnote 2.
Because National has not set forth a cause of action, the trial court properly granted Port Authority's preliminary objections and dismissed the complaint. Accordingly, the order of the trial court is affirmed.
ORDER
AND NOW, this 4th day of October, 2001, the order of the Court of Common Pleas of Philadelphia County, dated January 9, 2001, is affirmed.
NOTES
[1] Specifically, Section 1711(a) of the Code, 62 Pa.C.S. § 1711(a), provides in pertinent part:
(a) Right to protest.An actual or prospective bidder, offeror or contractor who is aggrieved in connection with the solicitation or award of a contract may protest to the head of the purchasing agency in writing. All protests under this subsection must be made within seven days after the protestant knows or should have known of the facts giving rise to the protest.
[2] In Pennsylvania, a taxpayer of the public entity funding a public contract has standing to enjoin its award to anyone other than the lowest responsible bidder because a taxpayer, having interest in public funds, may maintain an action aimed at preventing the unauthorized or unlawful expenditure of money. A bidder does not have standing to challenge an award. American Totalisator Co., Inc. v. Seligman, 489 Pa. 568, 414 A.2d 1037 (1980); On-Point Technology Systems, Inc. v. Department of Revenue, 753 A.2d 911 (Pa.Cmwlth. 2000); Conduit and Foundation Corp. v. City of Philadelphia, 41 Pa.Cmwlth. 641, 401 A.2d 376 (1979); Mascaro and Sons, Inc. v. Township of Bristol, 95 Pa.Cmwlth. 376, 505 A.2d 1071 (1986).
[3] National initially filed an appeal from the trial court's order to the Superior Court of Pennsylvania, which the Superior Court subsequently transferred to us for review. National now contends that we are without jurisdiction to hear its claim because this case does not come within the classes of cases enumerated in 42 Pa.C.S. § 762. However, because Port Authority is a public body, this matter is properly within our appellate review. 42 Pa.C.S. § 762; see also Pa. R.A.P. 741(a).
[4] Our standard of review over an order of the trial court sustaining preliminary objections in the nature of a demurrer is limited to determining whether the trial court abused its discretion or committed an error of law. Appeal of Gomez, 688 A.2d 1261 (Pa.Cmwlth. 1997).
[5] In ruling on preliminary objections, a court must accept as true all well-pleaded material allegations in the petition for review, as well as all inferences reasonably deduced from them. Envirotest Partners v. Department of Transportation, 664 A.2d 208 (Pa.Cmwlth. 1995).
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166 So.2d 872 (1964)
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
v.
Phillip HANNA et al.
5 Div. 772.
Supreme Court of Alabama.
March 26, 1964.
Rehearing Denied August 27, 1964.
*873 Sam W. Oliver, Dadeville, Rives, Peterson, Pettus & Conway, Birmingham, for appellant.
Chas. R. Adair, Jr., and Ruth S. Sullivan, Dadeville, Wm. I. Byrd, Alexander City, for appellees.
HARWOOD, Justice.
This is an appeal from a decree entered in a declaratory judgment action. The bill prayed for a determination of the rights of the parties under an automobile insurance policy.
It alleged that a damage suit for personal injuries had been filed by Jimmie Hanna against his son Phillip, who was the insured. It further alleged that the injury to Jimmie Hanna, on 4 November 1961, resulted from the negligence of Phillip in the operation of an automobile.
The insurer, State Farm, had been called upon to defend the suit under a liability insurance policy issued by it to Phillip. State Farm thereupon filed the bill below and asserted that it was not obligated to defend the suit nor to pay any judgment rendered thereon on grounds that, (1) the alleged accident was not covered by the *874 policy because of a family exclusion provision and, (2) the respondent, Phillip Hanna, had breached the cooperation clause of the policy, a condition precedent to liability by State Farm under the policy.
The family exclusion provision in the policy excludes coverage to:
"Bodily injury to the insured or any member of the family of the insured residing in the same household as the insured."
The assistance and cooperation of the insured provision in the policy reads:
"The insured shall cooperate with the company."
In their separate answers the respondents denied that Jimmie Hanna was a member of the family of the insured, Phillip Hanna, residing in the same household, and further denied that the insured had failed to cooperate with State Farm as required by the policy.
After a hearing, the court rendered a decree adverse to State Farm, and in favor of the respondents, holding that State Farm was obligated to defend the action at law instituted by Jimmie Hanna against his son Phillip Hanna, the insured, and was obligated to pay any judgment that might be rendered therein. The court further found that non-cooperation on the part of the insured that would prejudice the complainant was not sufficiently established.
From this decree State Farm has perfected its appeal.
The appellant has argued three points: (1) that the court erred in decreeing that State Farm was obligated to defend the insured, Phillip Hanna, in the suit brought by his father, and to pay any judgment rendered thereon against Phillip Hanna, (2) that the court erred in finding that the coverage, if any, was not voided by the insured's breach of the cooperation clause, and (3) in considering evidence which was illegal, immaterial, and irrelevant in reaching its conclusions and its decree.
The evidence presented by the complainant shows that at the time of the accident on 4 November 1961, the insured, Phillip Hanna, was 20 years of age, and was in his third year as a student in Howard College in Birmingham, Alabama. At the college he lived in a dormitory room with a roommate, with the usual furnishings of a dormitory room.
It cost Phillip approximately $800.00 per college year to attend college, his tuition being reduced by half because he was a ministerial student. These expenses were paid in part by Phillip and in part by his parents who were domiciled in East Tallassee, Alabama. Prior to entering college Phillip had accumulated $1,000 to $1,500 which was deposited in a savings account in a bank in Tallassee. During the summer vacations he had earned $300 to $500 in summer jobs, and while in college he had preached six or eight times a year and had been paid about $15 each time. He drew upon his monies from time to time while in college, and part of his expenses were paid by his parents. Upon registering for the draft in Tallapoosa County, he gave his address as that of his parents in East Tallassee. Subsequent notices of classification by the draft board have been sent to that address, the last such notice being dated 12 January 1961. He never changed his address with the draft board.
During the summer vacation each year, Phillip returned to the home of his parents in East Tallassee, and also returned there for the Thanksgiving, Christmas, and Spring holidays. He also would return for weekend visits from time to time.
Phillip had a room in the family home in East Tallassee which was known as his room, and which had been his room while in high school. He was an only child and he and his parents were the only people who had lived in the home. While away at college some of his possessions remained in this room.
Just before Christmas of 1960, he applied for the policy of insurance involved in this *875 case. At that time he was a student at Howard College. The license tags for the automobile purchased in late 1961 were bought in Tallapoosa County and Phillip gave his address as East Tallassee, Alabama.
Phillip did not pay room rent or board when he went to the family home on weekends, but from time to time during the summer vacations he would buy and contribute groceries. He maintains a charge account in a drug store in East Tallassee where his address is listed as the family home. His drivers' license shows his address as being at the family home. The present insurance policy and other papers belonging to Phillip remain in the family home. On the other hand, his college library card listed his address as Room 213, Howard College. When he purchased the insurance policy here involved, he told Mr. Thompson, the State Farm agent, he had been living in Birmingham at school.
Mr. Thompson testified that he had told Mr. Jimmie Hanna that the two conditions to issuing the policy to Phillip were that a State Farm policy must be in force in his immediate household insuring a car owned by a member of the household and secondly, that the minor owner of a car had to be a resident or member of the household. When the policy was actually applied for on 26 December 1960, he again discussed these conditions in the presence of both Mr. Hanna and Phillip. He told Phillip he was qualified under both conditions, though Mr. Thompson at that time knew that Phillip was a student in Birmingham and would take the car to Birmingham when he returned to school. Notwithstanding, Mr. Thompson considered Phillip a member of the household in Tallassee.
The accident in which Mr. Hanna was injured occurred on 4 November 1961, while Phillip had his automobile in the yard of his parent's home, he being on a weekend visit to them.
On 10 February 1962, Mrs. Hanna, at the request of Mr. Hanna's attorney, got in touch with Phillip at Howard College and requested him to pick up papers pertaining to a suit filed by his father against him, and to take such papers to Dadeville for filing. Phillip did as he was requested, picking up the papers at the office of his father's attorney, and called his mother from Dadeville telling her that he had been served, and that she should notify Mr. Thompson. This, of course, was after he had taken the suit papers from the attorney's office in Alexander City to Dadeville, Alabama, where he handed them to the clerk of the Circuit Court. He also filed a paper for the appointment of a guardian ad litem to represent him in the suit. In Dadeville a copy of the suit papers was handed to the deputy sheriff by an employee in the circuit clerk's office, who in turn served the copy on Phillip. He then returned to school and did nothing with respect to the papers until his mother called him about two and a half weeks later and told him that Mr. Thompson, the State Farm agent, needed the papers. Phillip mailed them to his mother.
Phillip testified that he in no wise discussed the suit with Mr. Hanna's attorney, but merely picked up the papers and took them to Dadeville as instructed.
Mr. Thompson testified he received these papers on 6 March. He further testified that he visited Jimmie Hanna with a claims adjuster some time after 5 November 1961, and prior to 10 February 1962, but he could not recall what was said or done on that occasion regarding the injury to Mr. Hanna.
Mr. Charles Funderbuck testified that Phillip had worked in his drug store in the afternoons while in school, and full time during the summers. Phillip terminated this employment after telling Mr. Funderbuck that he was going to college in Birmingham.
Miss Jenny Ruth Gann, clerk of the East Tallassee Baptist Church, testified in substance that Phillip Hanna moved his church membership back and forth between East Tallassee and Birmingham depending on *876 whether he was in school or at home for the summer. A copy of the "Church Covenant" was received in evidence and it showed that members of the church agreed that "when we remove from this place we will as soon as possible unite with some other church where we can carry out the spirit of the Covenant."
The first point to be determined is, were Jimmie Hanna and Phillip residing in the same household at the time of the accident?
In brief counsel for appellant argue that the provision excluding coverage for "bodily injury to the insured or any member of the family of the insured residing in the same household as the insured" is plain, unambiguous, and susceptible of only one reasonable construction, and does not permit of a construction favorable to the insured. Counsel further asserts that the doctrines of Holloway v. State Farm Mutual Automobile Ins. Co., 275 Ala. 41, 151 So.2d 774, and Home Ins. Co. v. Pettit, 225 Ala. 487, 143 So. 839, are decisive of the point now being considered. We do not agree with either premise.
Holloway, supra, concerned the concept to be accorded the word "family" as it appears in the provision now under consideration.
Pettit, supra, dealt with the meaning of the word "household" in an exclusionary clause then being considered.
Neither case was concerned with the interpretation of the phrase "residing in the same household."
The word "residing" is an ambiguous, elastic, or relative term, and includes a very temporary, as well as a permanent, abode. Phillips v. South Carolina Tax Comm., 195 S.C. 472, 12 S.E.2d 13. It means a dwelling place for the time being, as distinguished from a mere temporary locality of existence. Drew v. Drew, 37 Me. 389. It indicates some intent of permanency of occupation as distinguished from boarding or lodging, but does not require the intent of permanency to the degree required in domicile. 2 Kent's Comm. (10th Ed.) 576. While residence is a necessary component of domicile, residence is not always domicile. One may have a legal domicile with his family, and reside actually and personally away from his family. In such event the word "reside" may correctly denote either the technical domicile, or the actual personal residence. The word "reside" is often used to express a different meaning according to the subject matter. In re Seidel, 204 Minn. 357, 283 N.W. 742.
We think it common knowledge that usually a student in a college or university must be "in residence" at the college or university for the academic year preceding the award of his degree. Often the statement is found that a student, or a faculty member is "in residence" at a college or university during a particular time. Phillip Hanna was living in a college dormitory at Howard College, and taking his meals at the college dining hall. Thus in this sense, Phillip Hanna was "in residence," or residing at Howard College at the time of the accident.
Nor was such residence abrogated by casual visits over the weekend to the home of his parents. Such visits were nothing more than mere temporary interruptions of his more permanent residence at Howard College. The same would apply to the Christmas and Spring vacation periods. We doubt that such rule should apply to the long summer vacation period of several months where a student resumes living with his parents, nor should such rules apply where a student attends a college or university in the same town or city as his home while he continues to reside in his family home.
The rule is too well settled by our decisions to require citation of authority that where provisions of an insurance policy are susceptible of plural constructions, consistent with the object of the obligation, that construction will be adopted which is favorable to the insured.
*877 We hold that the court did not err in concluding that Phillip Hanna was not residing in the same household as Jimmie Hanna at the time of the accident.
Appellant's assignment of error No. 9, asserts error because the court, in its decree stated: "I do not see any element of non-cooperation to any extent that would prejudice the insurer."
The clauses of the policy pertinent to this aspect of the case read:
* * *
"2. Action Against Company. No action shall lie against the company: (a) Unless as a condition precedent thereto there shall have been full compliance with all terms of this policy.
* * *
"3. Assistance and Cooperation of the Insured. The insured shall cooperate with the company and upon its request, attend hearings and trials, assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject of this insurance."
Counsel for appellant relies upon American Fire and Cas. Co. v. Tankersley, 270 Ala. 126, 116 So.2d 579. This case concerned the failure of the insured to give the insurer notice of an accident, or receipt of any demand, summons, or other process, and held that such failure will release the insurer from obligation under the insurance contract, although no prejudice resulted, where such notices are specifically made a condition precedent to any action against the insurer.
The evidence below as to non-cooperation was merely to the effect that Phillip, at his mother's direction, had picked up certain suit papers at the office of his father's attorney and taken them to Dadeville where he filed them in the office of the circuit clerk, and was there served by a deputy sheriff with the summons and complaint. Phillip testified he did not discuss the suit in any wise with the attorney. Insofar as disclosed, his act in conveying the papers was that of a messenger or courier. The fact that he was served with the papers in no wise affected the substantial rights of the insurer, since serving could easily have been perfected by other methods.
There was no evidence tending to show that Phillip had ever been requested by the insurer to do any of the things set forth in the cooperation clause.
Cooperation implies assistance, and failure to cooperate cannot be implied where no assistance has been requested. American Surety Co. v. Sutherland, D.C., 35 F.Supp. 353.
Lack of cooperation being an affirmative defense, the burden was upon the insurer to establish such defense. United States Fidelity and Guaranty Co. v. Remond, 221 Ala. 349, 129 So. 15. What constitutes a failure of cooperation by an insured is usually a question of fact. Metropolitan Cas. Ins. Co. of New York v. Blue, 219 Ala. 37, 121 So. 25. The trial court, as trier of fact, and after hearing the witnesses, found no substantial lack of cooperation on the part of Phillip, the insured. What constituted a cooperation, or a material failure in that regard was a question of fact passed upon by him. We find no justifiable basis for disturbing his conclusion in this regard.
Counsel for appellant also argues, under appropriate assignment, that the decree is erroneous in that, because of certain statements there, it must be concluded that the court considered illegal, immaterial, and irrelevant testimony. These statements related to testimony by Phillip as to his intent to make Birmingham his place of residence. No objections were interposed to this evidence. See Section 372(1), Title 7, Code of Alabama 1940. Such evidence is not admissible under our decisions because of the so-called Rule of Exclusion prevailing in this State. See Conrad v. Conrad, *878 275 Ala. 202, 153 So.2d 635, and cases cited in concurring opinion.
However, there is legal, material, and relevant evidence fully supporting the judgment and decree below.
In equity cases, this court, in its review, will consider only such evidence as is legal, material and competent. Section 372(1), supra; Mink v. Whitfield, 218 Ala. 334, 118 So. 559. After full consideration, we are clear to the conclusion that the decree is supported by such type of evidence.
Affirmed.
LIVINGSTON, C. J., and SIMPSON and MERRILL, JJ., concur.
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[Cite as Harris v. Summers, 2011-Ohio-6544.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
SHIRLEY HARRIS, )
)
PLAINTIFF-APPELLANT, )
)
VS. ) CASE NO. 10-CO-27
)
RICHARD SUMMERS, ) OPINION
)
DEFENDANT-APPELLEE. )
CHARACTER OF PROCEEDINGS: Civil Appeal from Court of Common
Pleas of Columbiana County, Ohio
Case No. 09CV638
JUDGMENT: Affirmed
APPEARANCES:
For Plaintiff-Appellant Attorney Gregg A. Rossi
26 Market Street, 8th Floor
P.O. Box 6045
Youngstown, Ohio 44501
For Defendant-Appellee Attorney Matthew P. Mullen
158 North Broadway Street
New Philadelphia, Ohio 44663
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: December 14, 2011
[Cite as Harris v. Summers, 2011-Ohio-6544.]
DONOFRIO, J.
{¶1} Plaintiff-appellant, Shirley Harris, appeals from a Columbiana County
Common Pleas Court judgment denying her motion for a new trial after a jury verdict
in favor of defendant-appellee, Richard Summers.
{¶2} This case arises from a motor vehicle collision that occurred on
September 8, 2008. Appellant was traveling north on Route 46 in Columbiana
County approaching the intersection between the Oakmont Plaza and the Village
Plaza at approximately 25 miles per hour. Meanwhile, appellee was exiting the
parking lot of the Village Plaza attempting to cross traffic to enter the Oakmont Plaza.
{¶3} According to appellant, appellee failed to yield the right of way and
collided with the right/front of her yellow Volkswagen Beetle. She was not able to hit
her brakes. Upon impact, her vehicle was knocked into the turning lane.
{¶4} According to appellee, as he looked left, he saw a yellow vehicle with a
right turn signal on. He looked back the other way and started out. The next time he
looked, appellant was right in front of him. He slammed on his breaks, and if he
could have stopped within another inch he would have missed her. He felt no impact,
nor did he recall her car being pushed into the other lane.
{¶5} Later that evening, appellant began feeling some discomfort. The next
morning, she woke up at 4 a.m. to go to work when she discovered severe neck and
head pain. She went to the hospital later that day, where she was diagnosed with
cervical strain/sprain and was fitted with a cervical collar. She was instructed to
follow up with a primary care physician, which she did. Appellant treated with a
primary care physician and a chiropractor for some time after.
{¶6} Appellant filed a negligence complaint against appellee seeking
compensation for the injuries she alleged were caused by the accident. Appellee
admitted negligence and the matter proceeded to a jury trial on the issues of
proximate cause and damages. Appellee argued at trial that appellant’s injuries were
not caused by the accident and had existed for some time prior. The jury returned a
verdict for appellee and found that appellee’s negligence was not the proximate
cause of appellant’s alleged injuries. The trial court entered judgment accordingly.
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{¶7} Appellant filed a motion for new trial asserting that the verdict was not
sustained by the evidence. The trial court denied the motion.
{¶8} Appellant filed this timely notice of appeal on August 17, 2010.
{¶9} Appellant raises one assignment of error, which states:
{¶10} “THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION FOR NEW TRIAL AS THE JURY VERDICT WAS AGAINST
THE MANIFEST WEIGHT OF THE EVIDENCE.”
{¶11} Appellant argues that the jury’s verdict was against the weight of the
evidence. She contends that appellee presented no evidence to contradict the
testimony that she suffered a cervical sprain/strain. She points out that both of her
treating physicians testified that the accident was the proximate cause of her injury.
On the other hand, appellant notes that appellee did not offer a competing expert
opinion.
{¶12} A trial court's decision granting or denying a new trial is reviewed for
abuse of discretion. Koch v. Rist (2000), 89 Ohio St.3d 250, 251. Abuse of
discretion connotes more than an error of law or judgment; it implies that the court's
attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore
(1983), 5 Ohio St.3d 217, 219.
{¶13} Civ.R. 59(A)(6) provides, “A new trial may be granted to all or any of the
parties and on all or part of the issues upon any of the following grounds: * * * [t]he
judgment is not sustained by the weight of the evidence.” Under a motion for a new
trial under Civ.R. 59(A)(6), the movant must illustrate that the judgment is not
sustained by the weight of the evidence. Wright v. Kurth (March 22, 2000), 7th Dist.
No. 97-BA-39.
{¶14} Judgments supported by some competent, credible evidence going to
all the material elements of the case must not be reversed, as being against the
manifest weight of the evidence. C.E. Morris Co. v. Foley Constr. Co. (1978), 54
Ohio St.2d 279, at the syllabus. See, also, Gerijo, Inc. v. Fairfield (1994), 70 Ohio
St.3d 223, 226. Reviewing courts must oblige every reasonable presumption in favor
-3-
of the lower court's judgment and finding of facts. Gerijo, 70 Ohio St.3d at 226,
(citing Seasons Coal Co., Inc. v. Cleveland [1984], 10 Ohio St.3d 77). In the event
the evidence is susceptible to more than one interpretation, we must construe it
consistently with the lower court's judgment. Id. In addition, the weight to be given
the evidence and the credibility of the witnesses are primarily for the trier of the facts.
Kalain v. Smith (1986), 25 Ohio St.3d 157, 162.
{¶15} In determining whether the jury’s verdict was supported by competent,
credible evidence, we must conduct a thorough review of the evidence submitted at
trial.
{¶16} Dr. Dominic Conti was appellant’s primary care physician. His
deposition was read to the jury. Dr. Conti testified that he first saw appellant on
September 11, 2008, three days after the accident, in his office. (Conti dep. 11).
She complained of pain on the left side of her neck that radiated down into her left
arm. (Conti dep.11). Dr. Conti diagnosed appellant as having cervical sprain and
strain. (Conti dep.14). He opined to a reasonable degree of medical certainty that
the cause was likely the motor vehicle accident. (Conti dep. 14). Dr. Conti told
appellant to continue with her anti-inflammatory and muscle relaxant medication.
(Conti dep. 14). He also referred her to Dr. John Yerkey, a chiropractor. (Conti dep.
14-15). Dr. Conti stated that he took appellant off work until mid-November because
she stated the pain in her neck made her unable to fulfill her cashier duties. (Conti
dep. 17). He further testified that a week later, appellant reported that she was
having trouble hearing. (Conti dep. 17-18). Appellant told Dr. Conti that this issue
had existed prior to the accident but that it seemed to get worse afterwards. (Conti
dep. 18).
{¶17} Dr. Conti sent appellant for an MRI. (Conti dep. 22). It showed some
degenerative arthritis and canal stenosis, which is also related to arthritis. (Conti
dep. 22). He stated that these conditions were not caused by the accident. (Conti
dep. 23). Dr. Conti also offered his opinion that the cause of appellant’s visit to the
emergency room was related to the accident she was involved in the previous day.
-4-
(Conti dep. 27-28). He stated that it was common for pain to begin 24 to 48 hours
following an accident. (Conti dep. 28).
{¶18} On cross examination, Dr. Conti stated he reached his opinion based
on information that appellant gave him that she did not have pain before the accident
and she did have pain after the accident. (Conti dep. 31). He also agreed that in
order for his opinion to be valid, there would have to have been some type of quick
body movement caused by the accident. (Conti dep. 32). He further stated that he
was not appellant’s doctor prior to the accident, so he had no first-hand knowledge of
whether she had ever had similar complaints. (Conti dep. 33).
{¶19} Dr. Conti further stated that appellant did not disclose any prior history
of neck pain to him. (Conti dep. 39). Appellee’s counsel showed Dr. Conti
appellant’s medical records from a 2007 work-related accident that caused her neck
and shoulder pain on the left side. (Conti dep. 39-40). Dr. Conti acknowledged that
in May 2007, appellant was taking pain medication and muscle relaxers for her
cervical spine and that she had an MRI of her cervical spine in June 2007. (Conti
dep. 40). He stated that this MRI demonstrated that appellant had the same arthritis
in her neck before the accident as she did after. (Conti dep. 41). Dr. Conti also
acknowledged a physical therapy intake from June 2007 for appellant where she
received treatment for pain on the left side of her neck and shoulder. (Conti dep. 42).
He then acknowledged a note that appellant was discharged in July 2007 and that
the physical therapy was not successful in relieving appellant’s symptoms. (Conti
dep. 43).
{¶20} Additionally, Dr. Conti testified that he referred appellant to a specialist
for the hearing loss she complained of. (Conti dep. 45). The specialist reported back
to Dr. Conti that the hearing loss was not a recent onset and that it could be related
to noise exposure. (Conti dep. 45-46). He did not report that there was any
aggravation due to the accident. (Conti dep. 46).
{¶21} Finally, Dr. Conti stated that if appellant testified that she recovered
from the 2007 injury prior to the accident, none of the information about that injury
-5-
would affect his opinion that she injured her neck in the accident. (Conti dep. 56).
{¶22} Dr. Yerkey, appellant’s chiropractor, testified next. Dr. Yerkey first saw
appellant on September 17, 2008. (Tr. 40). Appellant provided Dr. Yerkey with a
health history that reflected that she was in her car when she was struck on the
passenger side by another car and was jerked. (Tr. 42). She reported that she had
an immediate headache and neck pain that began that evening. (Tr. 42). Dr. Yerkey
examined appellant and determined that she had injuries consistent with sprain on
the left side to the neck, cervicalgia mild headaches, and upper thoracic sprain/strain
all as a direct result of the accident. (Tr. 46). He opined, to a reasonable degree of
chiropractic certainty, that the cause of appellant’s injuries was the accident as
described by appellant. (Tr. 51). Dr. Yerkey found appellant’s injuries to be acute in
nature, meaning that they were new injuries. (Tr. 68).
{¶23} On cross examination, Dr. Yerkey stated that he based his opinion on
the history that appellant had not had a prior injury to her neck or shoulder. (Tr. 79).
Counsel then showed Dr. Yerkey the same doctor’s notes and physical therapist
notes that he showed to Dr. Conti regarding appellant’s 2007 neck injury and
treatment. (Tr. 81-85). Dr. Yerkey stated that appellant had never told him about her
prior injury. (Tr. 86-87). Dr. Yerkey agreed that 70 to 90 percent of all strain and
sprain injuries are recurrent, that 50 to 85 percent of the patients will experience neck
pain one to five years later, and that only 12 percent of those sustaining soft tissue
injuries achieve complete recovery more than ten years later. (Tr. 86). However, Dr.
Yerkey maintained on redirect examination that his opinion remained the same that
appellant’s condition was acute based on the accident. (Tr. 97).
{¶24} Appellant testified next. She stated that while at work in 2007, some
boxes fell and hit her in the head and left shoulder and knocked her to the ground.
(Tr. 111-12). She stated that the next day she could not bend her shoulder. (Tr.
112). As a result, appellant stated that she went to the emergency room, her family
doctor, and a physical therapist. (Tr. 113). She stated that she went on light duty at
work, that the therapy did not help, and eventually she went back to her regular work
-6-
duties. (Tr. 113-14). Appellant stated that after a month or two, she did not have any
more complaints about neck pain. (Tr. 115).
{¶25} As to the accident, appellant stated that she pulled through an
intersection, travelling at 25 miles per hour, when appellee came out of a parking lot
and struck her car, pushing it into the next lane. (Tr. 121). She stated that at the
time, she thought she was fine. (Tr. 124). She drove her car home. (Tr. 125).
Appellant testified that her neck began to hurt later that night. (Tr. 126). By 4:00
a.m. when she got up for work, appellant stated that her neck hurt so she called off
from work. (Tr. 127-28). She stated that she went to the hospital around 6:30 or
7:30 a.m. (Tr. 128). At the time, appellant stated that her neck and shoulder hurt
and she had a bad headache. (Tr. 128-19). She stated that she was treated with a
muscle relaxer and a soft collar and was told to follow up with a family doctor. (Tr.
130).
{¶26} On cross examination, appellant acknowledged that she told Dr. Yerkey
that she did not hit her head in the accident; however, in her deposition, she stated
that she hit her head on the window. (Tr. 156-57). Appellee’s counsel also showed
appellant a copy of her emergency room chart showing that she arrived at 12:54 p.m.
as opposed to early in the morning as she had testified. (Tr. 159; Ex. 1).
Additionally, at her deposition appellant stated that she sold her Volkswagen after the
accident because she was afraid to drive it. (Tr. 166-67). Yet at trial, she stated that
she sold it because she could not get her grandson’s car seat into it. (Tr. 166-67).
{¶27} Finally, appellant testified that the total damage to her car was
approximately $1,100. (Tr. 179).
{¶28} Officer Marvin Grace was the police officer who responded to the
accident. Officer Grace testified that the damage to both vehicles was “minor.” (Tr.
183). He further stated that he offered medical assistance, and both parties declined.
(Tr. 183-84). Officer Grace stated that he only completed a local incident report as
opposed to an OH-1 state traffic crash form report because there were no injuries
and both parties declined the OH-1 report. (Tr. 184-85). Officer Grace characterized
-7-
the accident as minor. (Tr. 186).
{¶29} Appellee was the last witness. He stated that he pulled up to Route 46
from the Oakmont Plaza, noticed a yellow vehicle with a right turn signal on, started
to cross the road, and the next thing he knew the yellow car was right in front of him.
(Tr. 193). Appellee testified that he slammed on his brakes and if he could have
stopped another inch sooner, he would have missed the other car. (Tr. 193).
Appellee stated that while the vehicles made contact with each other, he felt no
impact. (Tr. 194). He also stated that he was not injured. (Tr. 194). Appellee also
testified, contrary to appellant, that appellant’s vehicle was not pushed at all. (Tr.
194). The only damage to his car, appellee stated, was a scratched decal. (Tr. 195).
{¶30} In the instant case, both of appellant’s experts testified that her injuries
were proximately caused by the collision. However, upon cross-examination, both
admitted that they were unaware of the extent of appellant’s prior medical history.
Neither was aware that just over a year prior, appellant had complained of pain in the
left side of her neck and shoulder after a workplace injury. And Dr. Yerkey agreed
that 70 to 90 percent of all strain and sprain injuries are recurrent with only 12
percent of soft tissue injuries achieving complete recovery. Furthermore, after her
workplace injury, appellant was sent to physical therapy where the therapy was
unsuccessful.
{¶31} Moreover, Dr. Conti testified that his opinion was based on what
appellant told him during her visit:
{¶32} “Q: And the opinions that you gave in terms of, you know, what was
caused by the accident, those were essentially based on what the Plaintiff told you
when she came into the office, and, that is, that she was in an accident?
{¶33} “A. Correct.” (Conti dep. 31).
{¶34} And appellee presented evidence to discredit appellant’s truthfulness by
bringing up inconsistencies between her trial testimony and her deposition.
{¶35} Appellant is correct that appellee did not offer an expert witness to rebut
the testimony of Drs. Conti and Yerkey. But he was not required to do so in order to
-8-
discredit their opinions. In a similar case, we pointed out:
{¶36} “Appellant is correct that appellee did not provide her own separate
expert to rebut the testimony of appellant's doctors. There are ways to rebut expert
testimony other than by providing a different expert to contradict the testimony.
Rebuttal evidence refers to evidence that explains, repels, counteracts, or disproves
facts given in evidence by the adverse party. * * * Cross-examination may reveal
inconsistencies and errors in an expert's testimony, and thus, may qualify as rebuttal
evidence. * * * Other nonexpert witnesses may rebut expert testimony and challenge
an expert's credibility. * * * The expert may rebut his or her own testimony. * * * Most
important, the trier of fact is not required to believe the expert giving the testimony. * *
* The trier of fact is free to believe or disbelieve any witness, including an expert
witness. * * * In this case, the jury may simply have disbelieved the testimony of the
experts: ‘Once properly before the court, the expert's conclusions became a matter
for the trier of fact.’” (Internal citations omitted.) Sims v. Dibler, 172 Ohio App.3d
486, 2007-Ohio-3035, at ¶44.
{¶37} In this case, the jury likely disbelieved the doctors’ opinions that the
accident was the proximate cause of appellant’s injuries given that appellant had a
previous injury to the same area of her body just a year prior to the accident, she did
not disclose her previous injury to the doctors, and there was evidence that the
accident was minor.
{¶38} Here we have a case involving a low-speed automobile accident with
minimal damage to the vehicles. The jury rendered a verdict in favor of the defense
despite there being no rebuttal expert from the defendant. The jury did not need to
accept the argument advanced by appellant. Appellant contradicted herself on the
extent of her injuries, her injuries prior to the accident, and other information.
{¶39} Finally, appellant argues that at the very least, she should have been
compensated for her emergency room-related expenses. Because she went to the
hospital the day after the accident, appellant asserts it was clear that these expenses
were related to the accident.
-9-
{¶40} While appellant did go to the emergency room the day after the
accident, she never called a doctor or nurse who treated her at the hospital to testify
at trial that the accident was the proximate cause of her injuries. Thus, the jury was
left only with Dr. Conti’s opinion on this matter, which, as discussed above, was
contradicted by appellee.
{¶41} In sum, the trial court did not abuse its discretion in denying appellant’s
motion for a new trial. While it may be true that appellant suffered injuries, her
preexisting condition and her lack of its disclosure called into question whether the
accident was the proximate cause.
{¶42} Accordingly, appellant’s assignment of error is without merit.
{¶43} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Vukovich, J., concurs.
DeGenaro, J., concurs.
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135 Cal.App.3d 635 (1982)
185 Cal. Rptr. 521
JERRI HOLMES, Plaintiff and Appellant,
v.
CALIFORNIA STATE AUTOMOBILE ASSOCIATION, Defendant and Respondent.
Docket No. 47634.
Court of Appeals of California, First District, Division Four.
September 3, 1982.
*636 COUNSEL
Henry C. Krivetsky and William Kiriakis for Plaintiff and Appellant.
John J. Healy and Healy & O'Leary for Defendant and Respondent.
OPINION
CHRISTIAN, J.
Jerri Holmes appeals from a summary judgment dismissing an action she brought against respondent California State *637 Automobile Association on behalf of herself and the class of persons sharing with her the status of dual coverage by respondent and by the Medicare program administered by the United States Department of Health, Education, and Welfare (now the Department of Health and Human Services) for treatment of injuries suffered in an automobile accident.
Appellant was involved in an automobile accident on June 20, 1974, and was hospitalized for her injuries. Before the accident respondent had issued to appellant's mother an automobile liability policy, under which appellant was an insured party; the policy included a medical payment clause providing that respondent would "pay all reasonable expenses incurred by the insured [as a result of an automobile accident]." Appellant was also a beneficiary of the Medicare program administered by the United States Department of Health, Education, and Welfare. Before undergoing hospital treatment, appellant assigned her Medicare benefits to the hospital; payments due to appellant under the program were therefore paid directly to the hospital. Appellant also submitted to respondent for payment the bills issued by the hospital; respondent refused to pay, asserting that no expenses had been "incurred" by her. Appellant sued; respondent took a summary judgment of dismissal, and the present appeal followed.
(1) The central question is whether appellant "incurred" any hospital expenses and thus whether she is entitled to recover them under the provisions of the policy, even though Medicare payments met the major portion of those expenses. The Medicare program was enacted in 1965. (42 U.S.C.A. § 1395 et seq.) Medicare comprises two types of coverage designated in the statute as part A and part B. Part A affords hospital benefits; it is financed through the social security system by payroll deductions; part B provides for other health services and is financed by premiums paid by the beneficiaries. (42 U.S.C.A. § 1395c, § 1395j; see also Niles v. American Bankers Insurance Company (La. App. 1969) 229 So.2d 435, 438, cert. den. (La.) 231 So.2d 394.) Although financed differently, part A and part B benefits are treated alike in the Medicare rules; specifically, it is required as to both parts that an agreement not to charge patients be signed by participating providers of health services. (42 U.S.C.A. § 1395cc (a)(1).) The hospital at which appellant was treated had chosen to participate in the program. Accordingly, the hospital, by agreement with the United States government, undertook not to charge a patient for services for which the patient was entitled to have payment made by the United States. Respondent contends that *638 the statute and the agreement both have the effect of precluding appellant from "incurring" hospital expenses within the meaning of the insurance policy issued by respondent.
The agreement provides that, with certain exceptions, the hospital will not charge "any individual or any other person for items and services with respect to which the provider of services is precluded by reason of [statute] from charging such individual or such other person." A related passage of the statute requires that to participate in the program a hospital undertake not to charge "any individual or any other person for items or services for which such individual is entitled to have payment made under this subchapter." (42 U.S.C.A. § 1395cc (a)(1) (A).) But that language does not manifest an intention to preclude liability attaching to the patient; another passage of the same statute recognizes patient liability by stating: "no payment may be made under part A or part B of this subchapter for any expenses incurred for items or services ... for which the individual furnished such items or services has no legal obligation to pay...." (42 U.S.C.A. § 1395y (a)(2).)
Two additional provisions of the statute are pertinent: (1) "benefits provided to an individual by the insurance program under this part shall consist of entitlement to have payments made on his behalf" (42 U.S.C.A. § 1395d (a)); and (2) any payment to a provider of services such as the hospital here "shall be regarded as a payment to such individual." (42 U.S.C.A. § 1395gg (a).)
To determine whether appellant incurred costs which respondent must indemnify we analyze the interrelated contractual obligations affecting three parties: The hospital entered into an agreement in 1966 with the then Department of Health, Education, and Welfare. Appellant became an insured under an automobile insurance agreement whereby the insurer agreed to pay all expenses incurred by or on behalf of an insured. Appellant was injured in an automobile accident and was taken to the hospital. Prior to admission, appellant signed an agreement ("Conditions of Admission") whereby she undertook to pay the costs of hospitalization. Appellant states that she assigned her Medicare benefits to the hospital but the record does not reflect the terms of any such assignment. In fact, the hospital was paid directly by Medicare.
Respondent argues that no expenses were "incurred" by appellant, because the agreement between the hospital and the United States would preclude the hospital from enforcing any claim against appellant. It is *639 true that the Medicare legislation provides that no payments will be made for expenses which the patient has no legal obligation to pay; thus, expenses must, so far as concerns the contract between the hospital and the United States, be "incurred" before they can be paid under the Medicare program. It appears, therefore, that the agreement between the hospital and the government has as a condition precedent that expenses be incurred. Here appellant at the time of her admission to the hospital expressly undertook personal liability for the expenses about to be incurred. When a legal obligation to pay was created upon the rendition of services, the Medicare agreement became applicable and the hospital was bound by its commitment "not to charge," i.e., not to enforce against the patient liability for the costs incurred by the patient. We conclude that respondent was liable under the terms of the policy; it was not proper to grant summary judgment dismissing appellant's complaint.
Other state courts have similarly interpreted the term "incurred" in the context of insurance contracts. In Black v. American Bankers Insurance Company (Tex. 1972) 478 S.W.2d 434, the Texas Supreme Court concluded that the insured "actually incurred" hospital expenses even though those expenses were paid on his behalf by Medicare. (Id., at p. 438. See also Niles v. American Bankers Insurance Company, supra, 229 So.2d 435 [hospital expenses were "actually incurred" by plaintiff even though these expenses were paid by Medicare]; Dunbar v. National Security Life & Accident Ins. Co. (Tex.Civ.App. 1969) 439 S.W.2d 892 [plaintiff was liable for "actual hospital expenses" even though the bills were paid by Medicare].)
Two California cases cited by respondent warrant discussion. In Appleman v. National-Ben Franklin Ins. Co. (1978) 84 Cal. App.3d 1012 [149 Cal. Rptr. 117], the plaintiff was covered by both Medicare and an insurance policy which provided that "`No indemnity shall be payable ... with respect to such medical expenses incurred; ... (i) for which the Insured, or the eligible members of the Insured's family, is not required to pay.'" (Id., at p. 1014; italics added.) The court's analysis emphasized two distinct issues concerning the effect of Medicare payments on the policy coverage: first, were expenses "incurred" and second, was the insured "required to pay" the expenses. Adopting the reasoning of Black and Niles, supra, the court concluded that the plaintiff had received services for which the government was legally obligated to pay and thus expenses had been actually incurred. (Ibid.) Respondent contends that this portion of the Appleman decision is distinguishable *640 in that the language of the policy here refers to expenses "incurred by the insured" rather than simply "incurred" as in Appleman. This slight variation in phraseology does not affect the analysis or determination of the present case.
The Appleman court then dealt with the question whether plaintiff was "required to pay" the expenses. Since the insurance policy at issue here does not contain such a provision, Appleman diverges in result from the present case. The determination of the Appleman court that plaintiff was "not required to pay" the expenses due to Medicare coverage is therefore not now pertinent and respondent's reliance on the latter portion of Appleman and its holding is misplaced.
Respondent contends further that its position is supported by Feit v. St. Paul Fire etc. Ins. Co. (1962) 209 Cal. App.2d Supp. 825 [27 Cal. Rptr. 870]. In fact, it is appellant's argument that is assisted. In Feit, the court considered whether plaintiff could recover under both an automobile insurance policy and a group health insurance plan where the auto insurance policy covered "reasonable expenses incurred." This provision, standing alone, appeared to be ambiguous in that it did not state who was required to incur the expenses. (Id., at p. 828.)
But the court concluded that when viewed in its entirety, the policy was not ambiguous; the bodily injury and property damage portion of the policy contained an agreement to "`pay on behalf of the insured all sums which [the insured] shall become legally obligated to pay.' If the defendant had intended to limit its liability for medical expenses to such expenses as the insured should become legally liable to pay it would have employed the same language" in the medical payments portion of the policy as it did in the bodily injury and property damage section. The contract here, as in Appleman, may appropriately be interpreted to mean that the insurer "intended to pay for medical expenses incurred ... whether or not the insured was legally obligated to pay them." Feit v. St. Paul Fire etc. Ins. Co., supra, 209 Cal. App.2d Supp. at page 828.
Appellant's notice of appeal characterizes the present case as an appeal from both the summary judgment granted to respondent and an appeal from the denial of appellant's motion for summary judgment. (2) An order denying a motion for summary judgment is nonappealable. (Nystrom v. First Nat. Bank of Fresno (1978) 81 Cal. App.3d 759, 763 [146 Cal. Rptr. 711]; see also 6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 66, p. 4080.) Although the denial of appellant's motion *641 for partial summary judgment was designated a "judgment," in effect it was an order, interlocutory in nature. "The question as affecting the right of appeal is not what the form of the order may be, but what is its legal effect." (Nevada Constructors v. Mariposa etc. Dist. (1952) 114 Cal. App.2d 816, 818 [251 P.2d 53].) The attempted appeal from such an order here must be dismissed.
The summary judgment is reversed; the purported appeal from the denial of appellant's motion for partial summary judgment is dismissed.
Caldecott, P.J., and Poche, J., concurred.
A petition for a rehearing was denied September 23, 1982, and respondent's petition for a hearing by the Supreme Court was denied October 28, 1982.
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972 F.2d 214
Bankr. L. Rep. P 74,833In re OLIVE STREET INVESTMENT, INC., Appellant,v.HOWARD SAVINGS BANK, Appellee.
No. 89-2847.
United States Court of Appeals,Eighth Circuit.
Submitted June 8, 1992.Decided Aug. 5, 1992.
Larry E. Parres, St. Louis, Mo., argued (Henry F. Luepke, Jr. and Sandra A. Dannehold, on the brief), for appellant.
Susan Bradley Buse, St. Louis, Mo., argued (Steven N. Cousins, on the brief), for appellee.
Before ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
PER CURIAM.
1
In this appeal, Olive Street Investment, Inc. (OSI) challenges the district court's order dismissing its appeal from a bankruptcy court order. The bankruptcy court order lifted the automatic stay in OSI's Chapter 11 bankruptcy proceedings. 11 U.S.C. § 362. The district court concluded that OSI's appeal from this order was moot because OSI failed to obtain a stay of the order pending appeal, and, consequently, Howard Savings Bank foreclosed on its collateral. 106 B.R. 183. We dismiss this appeal as moot.
2
In July 1989, OSI's primary asset was the Syndicate Trust Building. OSI had pledged this building as collateral for a $26,500,000 note held by Howard Savings Bank. OSI was in default on this note, and Howard intended to foreclose on the building on July 25, 1989. One hour before the scheduled foreclosure sale, OSI filed a petition for bankruptcy relief, thereby automatically staying all actions against the debtor's property. Howard had anticipated this move by OSI and immediately filed a motion for relief from the automatic stay. Less than twenty minutes later, the bankruptcy court agreed to hold an expedited hearing, and the parties were telephonically connected. The approximately two-hour hearing focused on whether Howard was adequately protected, whether OSI had equity in the building, and whether the building was necessary for an effective reorganization. The bankruptcy judge resolved each of these issues against OSI, and granted Howard relief from the automatic stay. Howard then held its foreclosure sale, at which it bought the building for $15,000,000.
3
Three days later, on July 28, 1989, OSI filed a notice of appeal from the bankruptcy court's order lifting the stay. Howard then filed a motion to dismiss the appeal as moot because OSI had failed to obtain a stay of the bankruptcy court's order and the foreclosure sale had occurred. On October 10, 1989, the district court granted Howard's motion to dismiss the appeal. OSI now appeals the district court's decision.
4
OSI argues that its failure to obtain a stay of the bankruptcy court's order did not make its appeal to the district court moot because the order lifting the automatic stay was issued in violation of its due process rights. OSI claims that its due process rights were violated because it did not receive sufficient notice of the telephonic hearing. We need not address this argument because we conclude that this appeal is moot.
5
While OSI's appeal to this court was pending, the bankruptcy court issued an order dismissing OSI's bankruptcy case pursuant to 11 U.S.C. § 1112(b)(1) (1988). OSI appealed this order to the district court, which affirmed the dismissal on February 10, 1992. Olive St. Inv., Inc. v. Howard Sav. Bank (In re Olive St. Inv., Inc.), No. 90-1869CD, 1992 WL 219023 (E.D.Mo. Feb. 10, 1992). OSI chose not to pursue an appeal to this court. Accordingly, the dismissal of OSI's bankruptcy case became final.
6
This circuit has stated that "[d]ismissal of the underlying bankruptcy proceeding may indicate that no case or controversy remains with respect to issues directly involving the reorganization of the estate...." Dahlquist v. First Nat'l Bank (In re Dahlquist), 751 F.2d 295 (8th Cir.1985); see also Spacek v. Thomen (In re Universal Farming Indus.), 873 F.2d 1334, 1335 (9th Cir.1989) ("When the issue being litigated directly involves the debtor's reorganization, the case is mooted by the dismissal of the bankruptcy."). We believe that the issue before this court is directly related to OSI's reorganization. The purpose of this appeal is to obtain a ruling that allows OSI to challenge the propriety of the bankruptcy court's order lifting the automatic stay. In Chapter 11 bankruptcies, the automatic stay exists to give debtors the time necessary to develop a successful reorganization plan. See Shugrue v. Air Line Pilots Ass'n, Int'l (In re Ionosphere Clubs, Inc.), 922 F.2d 984, 989 (2d Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 50, 116 L.Ed.2d 28 (1991); Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1330 (10th Cir.1984). Once the bankruptcy proceeding is dismissed, neither the goal of a successful reorganization nor the debtor's right to the automatic stay continues to exist. Accordingly, it no longer serves any purpose to determine whether the bankruptcy court properly lifted the automatic stay; the appeal has become moot. See Armel Laminates, Inc. v. Lomas & Nettleton Co. (In re Income Property Builders, Inc.), 699 F.2d 963, 964 (9th Cir.1982) (per curiam) (holding that an appeal challenging a bankruptcy court order lifting the automatic stay became moot when the underlying bankruptcy case was dismissed); cf. Omoto v. Ruggera (In re Omoto), 85 B.R. 98, 100 (Bankr. 9th Cir.1988) (holding that an appeal challenging a bankruptcy court order approving a foreclosure sale became moot upon dismissal of the underlying bankruptcy case).
7
Let an appropriate order of dismissal be entered.
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DISMISSED and Opinion Filed January 17, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-01319-CR
MATTHEW SCOTT BURTON, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law
Rockwall County, Texas
Trial Court Cause No. CR15-0298
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Schenck
Opinion by Justice Myers
Mathew Scott Burton, Jr. appeals the trial court’s October 12, 2017 judgment
convicting him of driving while intoxicated and assessing a sentence of ninety days confinement
and a $500 fine, probated for nineteen months. We dismiss the appeal for want of jurisdiction.
A timely filed notice of appeal is required to invoke this Court’s jurisdiction. Castillo v.
State, 369 S.W.3d 196, 198 (Tex. Crim. App. 2012). In the absence of a timely filed notice of
appeal, the Court has no option other than to dismiss the appeal. Id. A defendant perfects his
appeal by filing with the trial court clerk, within thirty days after the date sentence was imposed,
or within ninety days after sentencing if the defendant timely filed a motion for new trial, a
written notice of appeal showing his or her desire to appeal. See TEX. R. APP. P. 25.2(b), (c),
26.2(a).
Because the record shows appellant did not file a motion for new trial, his notice of
appeal was due no later than Monday, November 13, 2017. See TEX. R. APP. P. 4.1, 26.2(a)(1).
The notice of appeal filed in this case bears a file stamp of November 14, 2017.
By letter dated December 5, 2017, the Clerk of the Court informed the parties of the
apparent jurisdictional defect and directed them to file letter briefs addressing the Court’s
jurisdictional questions and, if necessary, a supplemental record for any necessary information
not already in the appellate record. Neither party responded to the Clerk’s directive.
On December 11, 2017, the trial court’s official court reporter filed a letter representing
to the Court that she had not filed the reporter’s record because appellant had neither requested it
nor arranged to pay for it. The official court reporter also stated in her letter that appellant’s
counsel had informed her via email delivered on December 4, 2017 that appellant was not
pursuing this appeal.
Because appellant’s notice of appeal was untimely, we conclude we have no jurisdiction
over this appeal. See TEX. R. APP. P. 26.2(a)(1); Castillo, 369 S.W.3d at 198.
We dismiss the appeal.
/Lana Myers/
LANA MYERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
171319F.U05
–2–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MATTHEW SCOTT BURTON, JR., On Appeal from the County Court at Law,
Appellant Rockwall County, Texas
Trial Court Cause No. CR15-0298.
No. 05-17-01319-CR V. Opinion delivered by Justice Myers. Justices
Bridges and Schenck participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the appeal is DISMISSED.
Judgment entered this 17th day of January, 2018.
–3–
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152 Ill. App.3d 642 (1987)
504 N.E.2d 916
MARY WILMERE, Special Adm'r of the Estate of Keith Wilmere, Deceased, et al., Plaintiffs-Appellants,
v.
SHEILA STIBOLT et al., Defendants-Appellees.
No. 86-0432.
Illinois Appellate Court First District (4th Division).
Opinion filed February 11, 1987.
Rehearing denied March 19, 1987.
*643 Nicholas Liontakis, of Nicholas Liontakis, Ltd., of Homewood, for appellants.
French, Rogers, Kezelis & Kominiarek, of Chicago (Jerome M. Brooks and Russell P. Veldenz, of counsel), for appellee Sheila Stibolt.
Orner & Wasserman, of Chicago (Norton Wasserman and Esther Joy Schwartz, of counsel), for appellee Marian L. Dykstra.
Victor J. Piekarski and Michael Resis, both of Querrey, Harrow, Gulanick & Kennedy, of Chicago, for appellee Joyce V. Straley.
Judgment affirmed.
JUSTICE JOHNSON delivered the opinion of the court:
Plaintiffs, Mary Wilmere (in her capacity as special administrator of the estate of Keith Wilmere), Edward and Mary Wilmere (decedent's parents), and John and Brian Wilmere (decedent's brothers), brought wrongful death and survival actions in the circuit court of Cook County against defendants, Sheila Stibolt, Marian L. Dykstra, and Joyce V. Straley. Plaintiffs sought damages for injuries arising out of an automobile accident between decedent and defendants.
The original complaint contained counts brought under the Survival Act (Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6) by decedent's parents and brothers. The trial court dismissed the original complaint containing these counts, holding that the proper party to maintain an action under the Survival Act is the administrator or executor of an estate and not a decedent's survivors. The trial court later granted defendants' motions for summary judgment. Plaintiffs appeal, contending that (1) only a decedent's survivors can maintain an action *644 under the Survival Act, and (2) that the trial court erred in granting defendants' motions for summary judgment.
We affirm.
The automobile accident from which this lawsuit arose occurred on Route 54, also known as Governor's Highway, approximately 100 to 200 feet north of 219th Street in Matteson, Illinois. Governor's Highway has four lanes, two northbound and two southbound, separated by a double yellow line. The posted speed limit is 45 miles per hour.
The record shows that on March 18, 1983, at approximately 7:45 a.m., decedent traveled on Route 54 in the inner southbound lane. Stibolt traveled in the inner northbound lane; Dykstra traveled behind Stibolt in the same lane. Straley drove in the outer northbound lane. Decedent's vehicle crossed the double line, swerving from the inner southbound lane to the inner northbound lane, and collided with Stibolt's vehicle. Decedent's vehicle then collided with Dykstra's vehicle, then with Straley's automobile. The parties agree that all three collisions occurred in a matter of seconds. Keith Wilmere later died as a result of the injuries he received from the accident.
The trial court appointed decedent's mother as special administrator of his estate. On May 26, 1983, the special administrator, with decedent's parents and brothers, filed a complaint pleading several causes of action against defendants. The complaint contained a wrongful-death action against defendants brought by the special administrator, a survival action brought by decedent's parents and brothers, and an action brought by decedent's parents to recover the expenses they incurred resulting from his injuries and death. Dykstra moved to dismiss the survival actions, contending that decedent's parents and brothers could not properly bring a survival action. The trial court granted the motion on August 25, 1983.
Plaintiffs then filed a first amended complaint pleading the same causes of action with the same allegations, except that the survival actions were brought by the special administrator. All three defendants filed counterclaims against decedent's estate. Following discovery, defendants moved for summary judgment. The trial court granted summary judgment for defendants on January 4, 1986. Plaintiffs appeal.
I
Plaintiffs first contend that the trial court erred in dismissing those counts of the complaint that pleaded survival actions brought by decedent's parents and brothers. Plaintiffs claim that only a decedent's *645 survivors can maintain an action under the Survival Act.
The Survival Act provides, in pertinent part, as follows:
"Sec. 27-6. Actions which survive.
In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property * * *." Ill. Rev. Stat. 1983, ch. 110 1/2, par. 27-6.
1 The law has always recognized that a person who survives an injury may bring a common law or statutory action against the party whose wrongful conduct caused the injury. At common law, however, the same action would abate upon death of the injured person. To remedy this injustice, our legislature enacted a survival statute in 1872 (1872 Ill. Laws 108-09) to allow an action, to recover damages for an injury to the person, to survive the death of the injured person. "The Survival Act does not create a statutory cause of action. It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died." (Emphasis added.) National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 172, 383 N.E.2d 919, 923.
2 Further, an administrator generally acquires the legal title to, and the right to possession of, the personal assets of a decedent's estate. Title vests in the personal representative as a quasitrustee for the use of the creditors, distributees, and legatees. The relationship between the administrator of an estate and a beneficiary is that of trustee and cestui que trust and is fiduciary in character. (Boghosian v. Mid-City National Bank (1960), 25 Ill. App.2d 455, 459-60, 167 N.E.2d 442, 444.) The rule in this State, therefore, is that the executor or administrator of a decedent's estate has standing to file suit on behalf of the decedent, but the legatees, heirs, and devisees have no such standing. McGill v. Lazzaro (1980), 92 Ill. App.3d 393, 395, 416 N.E.2d 29, 31.
Plaintiffs, however, contend that a decedent's survivors are the sole persons who can maintain an action under the Survival Act. The only authority that they cite for this proposition is Murphy v. Martin Oil Co. (1974), 56 Ill.2d 423, 308 N.E.2d 583. Plaintiffs argue that in Murphy, the administrator brought a wrongful-death action and the decedent's survivors brought an action under the Survival Act.
Plaintiffs' reliance on Murphy is misplaced. Murphy did not change the long-standing rule giving an executor or administrator the sole responsibility for bringing an action on behalf of a decedent's estate; that case did not question the rule or even raise the issue. Murphy *646 held only that the Wrongful Death Act was not the exclusive remedy when injuries cause death and that a plaintiff could recover under the Survival Act for a decedent's conscious pain and suffering between the time of injury and death. (56 Ill.2d 423, 430-32, 308 N.E.2d 583, 586-87.) Further, the sole plaintiff in Murphy was the administrator of her husband's estate.
3 We additionally note that in our earlier reference to National Bank v. Norfolk & Western Ry. Co., our supreme court referred to a "representative" of a decedent maintaining those statutory or common law actions that had already accrued to the decedent before death. (National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill.2d 160, 172, 383 N.E.2d 919, 923.) Plaintiffs dismiss this reference as mere dictum. We disagree. The general rule that only the administrator or executor of a decedent's estate has standing to sue on behalf of the decedent and not the survivors, coupled with our supreme court's use of the word "representative" in referring to the Survival Act, lead us to conclude that only the administrator or executor of a decedent's estate, and not the decedent's survivors, can maintain an action on behalf of the decedent under the Survival Act. Accordingly, we uphold the trial court's dismissal of those counts of the complaint that pleaded survival actions brought by decedent's parents and brothers.
II
Plaintiffs next contend that the trial court erred in granting defendants' motion for summary judgment. Plaintiffs claim that a genuine issue of material fact existed as to whether any of defendants was at least 1% negligent immediately before decedent crossed the center line on Route 54 on the day in question.
4, 5 When a plaintiff appeals from a trial court's order of summary judgment for a defendant, the only issue on appeal is whether "the pleadings, depositions, 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." (Ill. Rev. Stat. 1983, ch. 110, par. 2-1005.) If the documents that the trial court considers show that there is a genuine issue as to any material fact, summary judgment should not be granted. In ruling on a motion for summary judgment, the trial court must construe the pleadings, depositions, and affidavits in the light most favorable to the nonmoving party. If fair-minded persons could draw different conclusions from the evidence, the issues should be submitted to a jury to determine what conclusion seems most reasonable. Conversely, *647 when the evidence shows that no material issues of fact has been raised, the moving party is entitled to judgment as a matter of law. (Artis v. Fibre Metal Products (1983), 115 Ill. App.3d 228, 231-32, 450 N.E.2d 756, 758.) Further, negligence cases involving the question of the reasonableness of an individual's conduct are within the scope of summary judgment, as is any other case. Mitchell v. Ralston (1971), 130 Ill. App.2d 759, 762, 266 N.E.2d 424, 426.
After reviewing the record in the instant case, we conclude that the trial court did not err in granting summary judgment for defendants. The record shows that defendants all were in their own lanes and traveling at the posted speed limit. The general principle is that "`a party having given another reasonable cause for alarm cannot complain that the person so alarmed has not exercised cool presence of mind, and thereby find protection from responsibility from damages resulting from the alarm.'" (Skala v. Lehon (1930), 258 Ill. App. 252, 258, quoting Wesley City Coal Co. v. Healer (1876), 84 Ill. 126, 129.) Courts, therefore, do not view a party's acts with hindsight, but under all the circumstances by the standard of what a prudent person would have been likely to do under the same circumstances. Lesperance v. Wolff (1979), 79 Ill. App.3d 136, 141, 398 N.E.2d 360, 364, quoting Skala v. Lehon (1930), 258 Ill. App. 252, 258.
6, 7 Illinois courts have long held, therefore, that a sudden swerve into a defendant's right-of-way by an approaching vehicle does not give rise to negligence by the defendant. (E.g., Sjostrom v. Sproule (1962), 34 Ill. App.2d 338, 344-46, 181 N.E.2d 379, 382-83, relied upon in Mitchell v. Ralston (1971), 130 Ill. App.2d 759, 762, 266 N.E.2d 424, 426.) Conversely, courts have held that a sudden swerve into a plaintiff's right-of-way by an approaching vehicle does not give rise to contributory negligence by the plaintiff. Lesperance v. Wolff (1979), 79 Ill. App.3d 136, 141, 398 N.E.2d 360, 364.
8 Plaintiffs stress that Illinois has adopted the doctrine of comparative negligence in its pure form. (Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886.) Plaintiffs argue, therefore, that summary judgment would be improper if a genuine issue of material fact existed as to whether any defendant was guilty of negligence that contributed to the accident, even if the contribution was only 1%. However, "the happening of an accident, of itself, does not raise any presumption of negligence on the part of the defendant." (Fahrforth v. Kwiatkowski (1967), 79 Ill. App.2d 300, 303, 224 N.E.2d 641, 643.) Further, the adoption of comparative negligence did nothing to the sufficiency of proof required to establish a defendant's negligence and also did not abolish the elements of a negligence cause of action; a plaintiff still *648 must prove these elements. Lucker v. Arlington Park Race Track Corp. (1986), 142 Ill. App.3d 872, 875, 492 N.E.2d 536, 539.
9 Plaintiffs attempt to manufacture genuine issues of material fact from the evidence and contradictory inferences arising from the evidence to defeat a summary judgment. These issues and inferences include the speed of defendants' vehicles in relation to the weather and traffic conditions at that time and whether defendants kept a proper lookout for oncoming vehicles. Although a trial court should construe the facts liberally in favor of the nonmovant in considering a motion for summary judgment, the court need not strain to adduce some remote factual possibility that will defeat the motion. (Erasmus v. Chicago Housing Authority (1980), 86 Ill. App.3d 142, 145, 407 N.E.2d 1031, 1033.) Accordingly, we uphold the trial court's grant of summary judgment for defendants.
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
Affirmed.
McMORROW, P.J., and JIGANTI, J., concur.
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT NASHVILLE
Assigned on Briefs February 15, 2011
ROBERT S. WILSON v. STATE OF TENNESSEE
Appeal from the Circuit Court for Marion County
No. 7868 J. Curtis Smith, Judge
No. M2010-00764-CCA-R3-PC - Filed May 3, 2011
Following a jury trial, the Petitioner, Robert S. Wilson, was convicted of attempted
aggravated sexual battery and rape of a child. This Court affirmed his convictions on direct
appeal. The Petitioner filed a timely petition for post-conviction relief and, after a hearing,
the post-conviction court denied relief. In this appeal, the Petitioner claims that he was
denied effective assistance of counsel because Trial Counsel: (a) failed to adequately meet
with him prior to the trial and investigate his case; (b) failed to adequately cross-examine the
victim, the victim’s brother, and the victim’s mother; and (c) failed to adequately convey the
State’s plea offer such that the Petitioner could make an informed and knowledgeable
decision. Additionally, the Petitioner contends that the cumulative effect of Trial Counsel’s
alleged deficiencies amounted to ineffective assistance of counsel. After our review, we
affirm the post-conviction court’s denial of relief.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
D AVID H. W ELLES, J., delivered the opinion of the Court, in which T HOMAS T. W OODALL and
R OBERT W. W EDEMEYER, JJ., joined.
Samuel F. Hudson, Dunlap, Tennessee, for the appellant, Robert S. Wilson.
Robert E. Cooper, Jr., Attorney General and Reporter; Lindsy Paduch Stempel, Assistant
Attorney General; J. Michael Taylor, District Attorney General; and Sherry Shelton,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
Factual Background
In the Petitioner’s direct appeal, this Court summarized the facts underlying his
convictions as follows:
In 2000, Susan Audr[ia] Condra, the mother of the minor female victim,
separated from her husband and, after a month, began a romantic relationship
with the [Petitioner]. Within two months, the [Petitioner] had moved into the
residence that Ms. Condra shared with her son, her mother, her stepfather, and
the victim, C.C. Approximately, five months later, the [Petitioner], Ms.
Condra, and the children moved into the residence of the [Petitioner’s] mother,
where they lived for approximately two months. From there, Ms. Condra
moved with the [Petitioner] and her children into a room at Ridley’s Motel.
Ms. Condra and the children referred to the residence at the motel as “the one
room shack.” The family lived at the motel on two separate occasions, the first
time in August and September of 2000 and the second from November of 2000
to February of 2001. During the month of October 2000, the family stayed at
the residence of Ms. Condra’s father. From “the one room shack,” Ms.
Condra, her children, and the [Petitioner] moved into “the big apartment,”
which was located in a housing project. In August of 2001, the victim and her
brother were removed from Ms. Condra’s custody by the Department of
Children’s Services. Later, Ms. Condra’s parental rights were terminated and
at the time of trial, the children were living with a foster family.
Ms. Condra testified that when she was dating the [Petitioner], she
drank alcohol every day until she passed out. She stated that the [Petitioner]
also drank heavily during their relationship. Ms. Condra recalled that on one
occasion in March or April of 2001, while the family was living in “the big
apartment,” she awoke in the middle of the night and heard the victim scream,
“No.” Ms. Condra stated that when she looked into the bathroom, she saw the
victim facing the [Petitioner] and “sitting up partly on the floor.” The
[Petitioner] had his hand on the back of the victim’s head. When she tried to
open the door fully, the [Petitioner] prevented her from doing so.
Ms. Condra also testified that on the victim’s seventh birthday, the
victim was wearing shorts and a bathing suit. She recalled leaving the
residence to purchase items for the birthday celebration and when she returned,
she found that the victim’s bathing suit had been torn and that she was no
longer wearing her shorts.
-2-
The victim, C.C., who was born on June 9, 1994, testified that on her
seventh birthday, while the family was living in “the big apartment,” the
[Petitioner] forced her to perform oral sex. C.C. recalled that she was playing
checkers with her older brother when the [Petitioner] directed her to the living
room. According to C.C., the [Petitioner], who was seated on the couch,
ordered her to “suck his thing,” which, she said, looked like “a worm.” C.C.
recalled another incident at “the big apartment” when the [Petitioner] pulled
her into the bathroom and forced her to perform oral sex. She remembered
that her mother tried to open the bathroom door but the [Petitioner] “push[ed]
on it to where she couldn’t open it.” C.C. testified that on a third occasion,
when the family was living in “the one room shack,” the [Petitioner] “came to
my bed and was pulling on my feet and he made me suck his thing.” She
stated that on each occasion, the [Petitioner] instructed her to “suck it like a
lollipop.”
C.C. also testified that while the family was living in “the big
apartment,” the [Petitioner] had penetrated her anally twice. She stated that on
the first occasion, her mother had gone to visit a relative and “[the Petitioner]
told [J.C.] to go outside and do something and . . . [the Petitioner] took me to
my mom’s room and he put it up my butt.” C.C. recalled that on that occasion,
she “had to use the bathroom very bad and [the Petitioner] wouldn’t let [her]
go and when he got finished the[re] was crap on it.” As to the second
occasion, C.C. remembered that she was playing checkers with her brother
when the [Petitioner] called her into the living room, forced her to lean over
a chair, and then “put his thing up my butt .” C.C. testified that the [Petitioner]
penetrated her vaginally while they lived at “the big apartment.” She stated
that as the [Petitioner] was “[t]rying to put his private up [her],” she was
“trying to get [the Petitioner] away from [her] and [she] was kicking.”
[J.C.], the victim’s older brother, corroborated the incident that
occurred on the victim’s seventh birthday. He remembered hearing the
[Petitioner] tell the victim to “suck it.” He and the victim had been playing
checkers and when she did not return immediately, [J.C.] walked toward the
living room and looked through a hole in the quilt that the family used to
divide the living room from the rest of the apartment. He then saw the
[Petitioner] seated on a chair with the victim on her knees in front of him.
[J.C.] testified that both were nude and the [Petitioner’s] penis was in the
victim’s mouth. He explained that he did not report the incident to his mother
because he was afraid of the [Petitioner], who had beaten him on previous
occasions.
-3-
Kathy Spada, a nurse practitioner at The Children’s Advocacy Center,
performed a physical examination of the victim in October 2001. Ms. Spada
testified that although the victim’s hymen was intact, such a finding did not
necessarily mean that there had been no vaginal penetration. She stated that
there were no fissures around the victim’s rectal area and that the victim had
no loss of tone. During cross-examination, Ms. Spada acknowledged that
neither the victim’s vagina nor anus showed visual signs of trauma such as
scarring or healing wounds.
At the close of its proof, the [S]tate made an election of the incidents
upon which it was relying for conviction. As to count one, wherein the
[Petitioner] was charged with aggravated sexual battery, the prosecution
announced reliance on the incident of oral sex that occurred in the bathroom
of “the big apartment” as described by the victim and her mother. As to count
two, the state chose to rely on the incident of oral sex that occurred on the
victim’s seventh birthday.
The [Petitioner’s] mother, Helen Wilson, testified on behalf of the
defense. Ms. Wilson recalled that the [Petitioner], Ms. Condra, and the two
children came to live with her in June of 2000 because they had nowhere else
to go. She testified that she asked them to leave two months later because the
children were “on [her] nerves.” Ms. Wilson remembered that she warned her
son that “if he didn’t get away from that girl and them two kids he was going
to end up in trouble.” According to Ms. Wilson, the victim and her brother
“loved [the Petitioner] and he loved them.” She claimed that the victim called
the [Petitioner] “daddy” and that he often helped her with her homework.
Kelly Butram, an employee of the Department of Children’s Services,
testified that on August 31, 2001, he received a call from the police, who
reported that the [Petitioner] had beaten the victim’s brother. He stated that
although he did not interview the victim with regard to her claims of sexual
abuse, the allegations first came to light during his investigation of the August
31 incident. Butram, who sat in on the interview of the victim conducted by
employees of the Children’s Advocacy Center, testified that the children were
removed from their mother as a result of the beating and that her parental
rights were later terminated.
The [Petitioner] testified that he began dating the victim’s mother in
January of 2000 but that they did not start living together until June of that
same year. He stated that they first lived with his mother, then with a friend
-4-
of his, then at Ridley’s Motel, then with Ms. Condra’s father, then again at
Ridley’s Motel, and finally at a housing project in South Pittsburg. According
to the [Petitioner], he and Ms. Condra had a rocky relationship but he chose
not to leave because of his concern for the children. The [Petitioner] testified
that on the victim’s seventh birthday, Ms. Condra took the victim to get her
ears pierced and the family had a cookout. He denied having any sort of
sexual contact with the victim on that or any other day. The [Petitioner], who
claimed to be a father figure to the children, admitted beating the victim’s
brother with a belt, explaining that he was “flustered.” He contended that the
victim’s mother claimed to have been sexually abused as a child and often
discussed the abuse in front of the victim.
State v. Robert Wilson, No. M2004-00110-CCA-R3-CD, 2005 WL 292434, at *1-3 (Tenn.
Crim. App., Nashville, Feb. 4, 2005), perm. to appeal denied, (Tenn. June 27, 2005)
(designated “not for citation”) (footnote omitted).
In his direct appeal, this Court affirmed the Petitioner’s convictions but modified both
of his sentences. The Petitioner filed a petition for post-conviction relief, as well as two
subsequent amended petitions, and claimed, among other things, that he was denied effective
assistance of counsel. An evidentiary hearing was conducted on January 10, 2010.
The Petitioner testified that Carla Newman, Ms. Condra’s sister, who initially took
care of the victim and her brother after they were removed from their mother’s custody, told
the children that, if they did not say that the Petitioner did something bad to them, she would
put them in foster care. He said that he informed Trial Counsel about this information.
The Petitioner recalled that he received multiple letters from Ms. Condra while he was
in jail awaiting trial on the instant offenses, indicating that she wanted to get back together
with him. He said that, based on those letters, he did not expect Ms. Condra to testify against
him during his trial and that he did not know she was going to testify about witnessing the
“bathroom episode” until Trial Counsel told him when the trial started. The Petitioner stated
that he gave Trial Counsel the letters he received from Ms. Condra.
The Petitioner testified that Trial Counsel conveyed a twelve-year plea offer to him
on the first day of his trial and that, even though he knew he could receive a sentence of forty
or fifty years, he rejected the offer. The Petitioner claimed that, at that time, Trial Counsel
did not inform him that Ms. Condra would be testifying for the State. He also testified that,
at the time he rejected the plea offer, he was under the impression that Ms. Spada’s report
“shot down the allegations” of vaginal and rectal penetration. The Petitioner claimed that
Trial Counsel never explained the doctrine of election to him, nor did Trial Counsel inform
-5-
him that the State could convict him based solely on the allegations of oral sex. The
Petitioner said that, if he knew he could be convicted solely on allegations of oral sex, “[i]t
would have made [him] think” about accepting the plea offer.
The Petitioner recalled that the victim had made allegations of sexual misconduct
against her biological father but that, after an investigation, he was never criminally charged.
The Petitioner said that he thought Trial Counsel was going to have the victim’s father testify
and that Trial Counsel would cross-examine the victim about the allegations she made
against her father.
The Petitioner testified that, when Trial Counsel informed him about the victim’s
brother’s allegations that he witnessed the victim perform oral sex on the Petitioner through
a curtain, he told Trial Counsel that the victim’s brother could not have seen what he alleged
because it would have been impossible due to the layout of the apartment. The Petitioner
said that he felt the victim’s brother, who gave detailed testimony during the trial, had been
coached and that Trial Counsel did not ask him “the proper questions.”
On cross-examination, the Petitioner acknowledged that, in addition to the instant
offenses, he had fifteen other convictions. He also stated that his decision to plead not guilty
was based on the fact that he was innocent and elaborated, “I didn’t know that it was going
to be like this, when you don’t got proper representation and you don’t ask the questions.”
Trial Counsel testified that he had been practicing law for thirty-seven years and had
conducted over 100 jury trials. He said that, other than capital murder trials, he believes
aggravated sexual battery and rape of a child cases are the most difficult to defend. Although
he did not recall how many times he had met with the Petitioner to prepare for trial, Trial
Counsel said that, during the period in which the Petitioner was incarcerated, they met
frequently. He also said that, after the Petitioner was released on bond, Trial Counsel did not
see him as much because the Petitioner told him that he needed to work and could not come
to Trial Counsel’s office.
Trial Counsel recalled that he was most concerned about the testimony of the victim
and her brother and the impact their testimony would have on the jury. In fact, he testified
that the victim’s brother “is probably the only witness that I can think of in 37 years who
seemed unshakable.” Trial Counsel said that he and the Petitioner discussed the victim’s
brother’s claims that he saw the victim and the Petitioner engage in sexual activity. Trial
Counsel stated that he went to the apartment complex where the incident was alleged to have
occurred and looked at how the windows were positioned, but did not go inside the unit.
-6-
Trial Counsel recalled that he subpoenaed the victim’s father and planned to ask him
about the allegations that the victim had also made against him. However, he decided not
to call him as a witness and explained, “I kept thinking if I put him on he’s going to deny that
and jurors might conclude either that we were trying to shift the blame to somebody else or
try to excuse conduct, by saying, well, it’s been done before, so what.” He said he made a
tactical decision not to call the victim’s father as a witness.
Trial Counsel testified that he decided not to ask the victim about her prior allegations
that her father sexually abused her because doing so would open the door to allow the State
to question her about other statements included in the forensic interviewer’s report. He was
particularly worried about the introduction of one part of the report, in which the victim
compared the penises of the Petitioner and her father. Further, Trial Counsel stated that he
did not know for sure that the victim’s allegations against her father were false, as all he
knew was that her father was not criminally charged in connection with the victim’s
allegations. When dealing with young children as witnesses, Trial Counsel explained, “[T]he
last thing I want to do is to get that child crying in a courtroom. So my approach to deal with
them is try to be conversational rather than accusatory.”
Regarding the letters the Petitioner received from Ms. Condra, Trial Counsel stated
that he had seen the letters, and he explained that he did not use the letters to impeach Ms.
Condra because they were undated and that he thought he could better impeach her with her
prior sworn testimony from her parental rights termination hearing.
Trial Counsel testified that he knew that Ms. Newman, the victim’s aunt, was
employed by the Department of Children’s Services and that she briefly took care of the
children after they were removed from Ms. Condra’s custody. However, he did not recall
whether the Petitioner told him that he heard from Ms. Condra that Ms. Newman threatened
to put the children in foster care if they did not tell authorities that the Petitioner had done
something bad to them.
He acknowledged that he did not interview Ms. Condra before the trial, but Trial
Counsel explained that he “had a pretty good idea of what she was going to testify to, and it
wasn’t going to be very favorable to [the Petitioner].” Trial Counsel said that he could not
remember whether he knew that Ms. Condra would testify that she saw the Petitioner and the
victim in the bathroom together one night.
Trial Counsel recalled that Ms. Spada testified that, although her physical examination
of the victim revealed no indication of vaginal or anal penetration, she could not refute the
victim’s claims of sexual abuse. Trial Counsel said that he had previously cross-examined
Ms. Spada in many other cases but that the Petitioner’s trial “was the first time [he] had ever
-7-
heard her say that.” Trial Counsel stated that he did not recall whether he spoke to Ms.
Spada via telephone during his preparation for the Petitioner’s trial.
Trial Counsel could not remember specific details about any plea offers he conveyed
to the Petitioner. He said that his normal practice, when informing his clients of plea offers,
is to discuss the elements of the offense and range of punishment. He stated that he usually
summarizes the expected testimony and proof during one of his initial meetings with his
clients.
Taffy Wilson testified that, in September 2001, she worked as a forensic interviewer
at the Children’s Advocacy Center in Hamilton County. She recalled that she interviewed
the victim and prepared a report about the interview. Ms. Wilson asked the victim if she
knew why she was talking with her, and the victim replied, “Because of Bobby and Wayne.”
The victim later explained that Bobby was her mother’s boyfriend and that Wayne was the
“[p]erson mom first married.” When asked if she knew her father’s name, the victim
answered, “I don’t have a father.” The victim told Ms. Wilson that Wayne made her perform
oral sex on him when she was five years old. Ms. Wilson testified that, in her experience as
a child abuse investigator, she found the victim to be a credible witness.
Dana Morrison testified that, in late 2000, she worked as a case manager at the
Department of Children’s Services. She said she interviewed the victim and, although she
did not remember specific details about the interview, she remembered that she found the
victim to be credible.
The post-conviction court denied relief, and this appeal followed.
Analysis
The Petitioner claims that he was denied effective assistance of counsel because Trial
Counsel: (a) failed to adequately meet with him prior to the trial and investigate his case; (b)
failed to adequately cross-examine the victim, the victim’s brother, and the victim’s mother;
and (c) failed to adequately convey the State’s plea offer such that the Petitioner could make
an informed and knowledgeable decision. Additionally, the Petitioner contends that the
cumulative effect of Trial Counsel’s alleged deficiencies amounted to ineffective assistance
of counsel.
To sustain a petition for post-conviction relief, a petitioner must prove his or her
factual allegations by clear and convincing evidence at an evidentiary hearing. See Tenn.
Code Ann. § 40-30-110(f); Momon v. State, 18 S.W.3d 152, 156 (Tenn. 1999). Upon
review, this Court will not reweigh or re-evaluate the evidence below; all questions
concerning the credibility of witnesses, the weight and value to be given their testimony, and
-8-
the factual issues raised by the evidence are to be resolved by the post-conviction judge, not
the appellate courts. See Momon, 18 S.W.3d at 156; Henley v. State, 960 S.W.2d 572, 578-
79 (Tenn. 1997). The post-conviction judge’s findings of fact on a petition for post-
conviction relief are afforded the weight of a jury verdict and are conclusive on appeal unless
the evidence preponderates against those findings. See Momon, 18 S.W.3d at 156; Henley,
960 S.W.2d at 578.
The Sixth Amendment to the United States Constitution and article I, section 9 of the
Tennessee Constitution guarantee a criminal defendant the right to representation by counsel.
State v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999); Baxter v. Rose, 523 S.W.2d 930, 936 (Tenn.
1975). Both the United States Supreme Court and the Tennessee Supreme Court have
recognized that the right to such representation includes the right to “reasonably effective”
assistance, that is, within the range of competence demanded of attorneys in criminal cases.
Strickland v. Washington, 466 U.S. 668, 687 (1984); Burns, 6 S.W.3d at 461; Baxter, 523
S.W.2d at 936.
A lawyer’s assistance to his or her client is ineffective if the lawyer’s conduct “so
undermined the proper functioning of the adversarial process that the trial cannot be relied
on as having produced a just result.” Strickland, 466 U.S. at 686. This overall standard is
comprised of two components: deficient performance by the defendant’s lawyer and actual
prejudice to the defense caused by the deficient performance. Id. at 687; Burns, 6 S.W.3d
at 461. To demonstrate prejudice, a defendant must show “a reasonable probability that but
for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The defendant bears the burden of establishing both of these
components by clear and convincing evidence. Tenn. Code Ann. § 40-30-110(f); Burns, 6
S.W.3d at 461. The defendant’s failure to prove either deficiency or prejudice is a sufficient
basis upon which to deny relief on an ineffective assistance of counsel claim. Burns, 6
S.W.3d at 461; Goad v. State, 938 S.W.2d 363, 370 (Tenn. 1996).
In evaluating a lawyer’s performance, the reviewing court uses an objective standard
of “reasonableness.” Strickland, 466 U.S. at 688; Burns, 6 S.W.3d at 462. The reviewing
court must be highly deferential to counsel’s choices “and should indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Burns, 6 S.W.3d at 462; see also Strickland, 466 U.S. at 689. The court should
not use the benefit of hindsight to second-guess trial strategy or to criticize counsel’s tactics,
see Hellard v. State, 629 S.W.2d 4, 9 (Tenn. 1982), and counsel’s alleged errors should be
judged in light of all the facts and circumstances as of the time they were made, see
Strickland, 466 U.S. at 690; Hicks v. State, 983 S.W.2d 240, 246 (Tenn. Crim. App. 1998).
-9-
A trial court’s determination of an ineffective assistance of counsel claim presents a
mixed question of law and fact on appeal. Fields v. State, 40 S.W.3d 450, 458 (Tenn. 2001).
This Court reviews the trial court’s findings of fact with regard to the effectiveness of
counsel under a de novo standard, accompanied with a presumption that those findings are
correct unless the preponderance of the evidence is otherwise. Id. “However, a trial court’s
conclusions of law—such as whether counsel’s performance was deficient or whether that
deficiency was prejudicial—are reviewed under a purely de novo standard, with no
presumption of correctness given to the trial court’s conclusions.” Id. (emphasis in original).
A. Investigation and Trial Preparation
The Petitioner contends that Trial Counsel was deficient for failing to conduct an
adequate pre-trial investigation and failing to interview key witnesses—Ms. Newman, Ms.
Condra, and Ms. Spada—prior to the trial.
Trial Counsel testified that he met with the Petitioner “frequently” while he was
incarcerated. However, Trial Counsel recalled that, after the Petitioner was released on bond,
he did not see the Petitioner as much as he would have liked because the Petitioner made
excuses regarding why he could not meet with Trial Counsel to prepare for the trial. In
addition to meeting with the Petitioner, Trial Counsel interviewed the victim and her brother,
interviewed the Petitioner’s ex-wife, went to the apartment complex where the sexual
misconduct allegedly occurred, reviewed Department of Children’s Services reports, and
reviewed the transcript of Ms. Condra’s parental rights termination hearing. The post-
conviction court found that Trial Counsel “discussed all of this information with the
[P]etitioner prior to trial.”
Regarding the Petitioner’s argument that Trial Counsel should have interviewed Ms.
Newman, we note that she was not presented as a witness during the post-conviction hearing
and that the Petitioner has therefore failed to show by clear and convincing evidence that
Trial Counsel was deficient for failing to interview her. In Black v. State, this Court stated,
“When a petitioner contends that trial counsel failed to discover, interview, or present
witnesses in support of his defense, these witnesses should be presented by the petitioner at
the evidentiary hearing.” 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990); see also Owens v.
State, 13 S.W.3d 742, 756 (Tenn. Crim. App. 1999) (“[P]roof of deficient representation by
omission requires more than a speculative showing of a lost potential benefit.”).
Additionally, Trial Counsel testified that he did not remember the Petitioner informing him
that he had information indicating that Ms. Newman told the victim and her brother that she
would put them in foster care if they did not say something bad about the Petitioner.
Next, although he did not interview Ms. Condra, Trial Counsel testified that he “had
a pretty good idea of what she was going to testify to” and that he used the transcript from
-10-
her parental rights termination hearing to impeach her credibility. Finally, Trial Counsel
could not remember if he interviewed Ms. Spada via telephone in preparation for the
Petitioner’s trial, but he knew that had reviewed her report. He recalled that the report was
favorable to his client, because Ms. Spada did not find any evidence of vaginal or anal
penetration when she examined the victim. We agree with the post-conviction court that the
Petitioner failed to show by clear and convincing evidence that Trial Counsel’s performance
was deficient. The Petitioner is not entitled to relief on this issue.
B. Cross-Examinations
The Petitioner contends that he was prejudiced by Trial Counsel’s failure to
adequately and effectively cross-examine the victim, her brother, and Ms. Condra.
i. The Victim
The Petitioner argues that Trial Counsel was ineffective because he failed to impeach
the victim’s credibility by asking her about the prior allegations of sexual abuse she had made
against her biological father.
The victim was nine years old at the time of the trial. Trial Counsel testified that it
was his trial strategy to engage the victim in a conversational style of cross-examination,
rather than blatantly accuse her of lying. In particular, Trial Counsel recalled that he was
trying not to cause the victim to cry in front of the jury. Although he knew that the victim
had also made accusations of sexual abuse against her father, Trial Counsel decided not to
question the victim about her prior allegations because doing so would open the door to allow
the State to question the victim about other statements included in the forensic interviewer’s
report. Trial Counsel was especially worried about the introduction of one part of the report,
in which the victim compared the penises of the Petitioner and her father.
In its order denying relief, the post-conviction court noted that Trial Counsel “made
a tactical decision not to delve into the prior allegations of abuse of the victim by her
biological father citing well-founded concerns that the jury could draw negative conclusions
from such an approach.” We agree with the post-conviction court that Trial Counsel’s
reasonable trial tactic should not be second-guessed. The Petitioner is not entitled to relief
on this issue.
ii. The Victim’s Brother
Next, the Petitioner argues that Trial Counsel should have cross-examined the victim’s
brother more extensively about a “serious whipping” the Petitioner had given him and
whether the whipping was the catalyst for the allegations that the Petitioner raped his sister.
-11-
The post-conviction court summarized the relevant testimony during the Petitioner’s
trial and post-conviction hearing as follows:
At the post-conviction evidentiary hearing, [Trial Counsel] testified that one
of the possible defense arguments was that the allegations of sexual abuse
were raised after the [Petitioner] whipped [the victim’s brother]. [Trial
Counsel] was well aware of the “whipping” as it was the subject of another
indictment against the [Petitioner], was very familiar with the facts of the
event, and had discussed it with the [Petitioner] prior to trial. In opening
statement [Trial Counsel] encouraged jurors to listen for “possible
motivations” in the proof.
The answers given on cross-examination by [the victim and her brother]
at trial in response to questions did not support this theory but [Trial Counsel]
was able to establish through Department of Children’s Services witness Kelly
Buttram that the allegations were made against the [Petitioner] only after DCS
became involved after the “whipping” on August 31. He was also able to
establish that it was only then that the children told about the sexual abuse
allegations against the Petitioner.
After our review, we agree with the post-conviction court that the Petitioner has failed to
show that Trial Counsel was deficient. The Petitioner is not entitled to relief on this issue.
iii. Ms. Condra
Finally, the Petitioner argues that Trial Counsel should have cross-examined Ms.
Condra about the letters she sent to the Petitioner while he was incarcerated.
Trial Counsel testified that, rather than impeaching Ms. Condra’s credibility with the
undated letters, he decided to use Ms. Condra’s prior testimony in her parental rights
termination hearing. He stated that he felt her prior testimony was a better tool for
impeachment than the letters. Indeed, our examination of the trial transcript reveals that Trial
Counsel extensively questioned Ms. Condra about inconsistencies between her testimony
during the Petitioner’s trial and her testimony during the parental rights termination hearing.
Notably, Trial Counsel’s questions made the jury aware that Ms. Condra had testified under
oath, just eight months prior to the Petitioner’s trial, that the victim had never complained
about any sexual misconduct by the Petitioner and that Ms. Condra did not know of or
witness any sexual misconduct by the Petitioner. We conclude that the post-conviction court
did not err when it denied relief and found that Trial Counsel’s trial strategy regarding Ms.
Condra’s cross-examination should not be second-guessed. The Petitioner is not entitled to
relief on this issue.
-12-
C. Plea Agreement Discussions
The Petitioner contends that Trial Counsel was deficient because he failed to
“adequately convey the State’s plea offer to Petitioner such that he could make an informed
and knowledgeable decision.”
Trial Counsel did not remember the details of any plea offers made by the State in the
Petitioner’s case. However, he stated that his normal practice is to summarize expected
testimony during one of his initial meetings with his clients and that he discusses the
elements of the offense and range of punishment when he informs his clients of a plea offer.
Additionally, we note that the post-conviction court credited Trial Counsel’s testimony and
found that Trial Counsel discussed the results of his investigation with the Petitioner prior
to the trial.
In his brief, the Petitioner states that, during the post-conviction hearing, he
“specifically stated th[at] he would have accepted the State’s plea offer had trial counsel
informed him that [Ms.] Condra would testify against him, that Nurse Spada’s testimony did
not refute the allegations, and that the State could elect to prosecute Petitioner on oral
penetration alone.” However, the Petitioner does not provide citations to the record to
support his assertion that he testified “he would have” accepted the State’s plea offer had
Trial Counsel informed him of these things. Moreover, our review of the record does not
reveal the Petitioner provided such testimony. When asked whether he would have accepted
the plea offer if he knew the State could elect only an allegation of oral sex, the Petitioner
replied, “It would have made me think.” Additionally, the Petitioner acknowledged that he
did not base his decision to reject the plea offer on Ms. Condra’s testimony, but rather on the
facts that he was innocent and that he did not think he would be found guilty.
In its order denying relief, the post-conviction court found as follows:
It was apparent from the proof and testimony that the [Petitioner] had
no intention of accepting a plea agreement and thought that he would not be
found guilty. The [Petitioner] never indicated to his attorney that he had
reconsidered the [S]tate’s plea offer and decided to accept the offer. The
[Petitioner] indicated at the post conviction proceeding he might have accepted
the plea offer, “ . . . if he had known how it would turn out . . . .”
We conclude that the post-conviction court did not err when denying relief on this issue
because the Petitioner has failed to show by clear and convincing evidence that Trial
Counsel’s performance was deficient with regard to discussing a potential plea agreement.
The Petitioner is not entitled to relief on this issue.
-13-
D. Cumulative Effect
Finally, the Petitioner asserts that “the collective and cumulative effect of each of the
above deficiencies denied Petitioner the constitutional right to the effective assistance of
counsel.” However, as we have found no deficiencies in Trial Counsel’s performance, we
conclude that the Petitioner is not entitled to relief.
Conclusion
Based on the foregoing authorities and reasoning, we affirm the denial of post-
conviction relief.
_________________________________
DAVID H. WELLES, JUDGE
-14-
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171 S.W.3d 232 (2005)
In the GUARDIANSHIP OF Eva Manning BAYNE, an Incapacitated Person.
In re Estate of Eva Manning Bayne, Deceased.
No. 05-04-00291-CV.
Court of Appeals of Texas, Dallas.
April 25, 2005.
Rehearing Overruled September 23, 2005.
*234 Emil Lippe, Jr., Lippe & Associates, P.C., Dallas, for Appellant.
David S. Mallard, Terrell, for Appellee.
Before Justices BRIDGES, O'NEILL, and MAZZANT.
OPINION
Opinion by Justice MAZZANT.
William R. Bayne appeals three orders from the guardianship and probate proceedings in favor of the American National Bank of Texas (the Bank) concerning the guardianship and the estate of his mother, Eva Manning Bayne (Ward and Deceased, respectively). We reverse in part and affirm in part.
BACKGROUND
In 2000, William Bayne applied to have his mother declared incapacitated and to have a guardianship imposed on her person and estate. The county court granted the application, declared Mrs. Bayne to be incapacitated, imposed a temporary guardianship on her person and estate, and appointed the Bank the temporary guardian of her estate. In an order signed March 28, 2003, the county court made the temporary guardianship permanent and appointed Bayne the permanent guardian of the Ward's estate, but the court also declared that the Bank "shall continue to serve as the Temporary Guardian of the Ward and continue to manage all assets belonging to the Ward . . . until such time as this Court. . . relieves such Temporary Guardian of its duties."
In June 2003, Mrs. Bayne died. Bayne filed her will for probate and was appointed independent executor of her estate. In August 2003, the county court signed an order agreed to by the Bank and Bayne ordering the Bank to transfer all the assets of the Ward's estate to Bayne as independent executor of the Deceased's estate except for $11,500 cash, which the Bank could retain "pending resolution of certain disputed expenditures, and/or further orders of this court." The Bank followed the order and transferred all of the Ward's estate to Bayne except $11,500.
In November 2003, the Bank applied in both the guardianship and probate proceedings for the county court to transfer over $100,000 of the Deceased's estate back into the Ward's estate.
On December 15, 2003, the court signed an order in the guardianship proceeding authorizing and directing the Bank "and any other party having possession or control of the funds of the ward" to pay the Bank's claim for $5668.32 and attorney Jerry Huff's claim for $8283.
On January 21, 2004, the Bank applied to the county court in both proceedings for authority to pay Huff $2953.50 from the remaining assets in the Ward's estate. That same day, the county court signed an order in both proceedings approving payment of $2953.50 to Huff, found there were ample funds in the Ward's estate to pay *235 this amount, that "payment of same would be in the best interests of this estate," and ordered the Bank as temporary guardian to pay Huff that sum. Bayne filed a notice of appeal concerning this order. The guardianship and probate proceedings were then transferred to the county court at law.
On January 29, 2004, the Bank applied in both proceedings for authority to pay attorney David Mallard $6191.10 for his fees through January 16, 2004; the Bank requested that the court order either it or Bayne as executor of the Deceased's estate to pay Mallard. On March 8 and 15, 2004, the county court at law heard evidence and testimony concerning the November 2003 application to transfer assets and the January 29, 2004 application to pay Mallard's fees. On March 16, 2004, the county court at law signed an order in both proceedings requiring Bayne as independent executor of the Deceased to "immediately re-transfer to the custody and control" of the Bank as temporary guardian of the Ward $20,000 of the money previously transferred from the Bank as guardian to Bayne as independent executor. The court also signed an order in both proceedings for the Bank as guardian "and/or" Bayne as independent executor to pay Mallard $6191.10 "out of the funds belonging to the Estate of Eva Manning Bayne, ____________." Bayne filed notices of appeal from both of these orders.
STANDARD OF REVIEW
A court's rulings on guardianship and probate applications are generally reviewed under the abuse of discretion standard. See, e.g., Epstein v. Hutchison, No. 01-02-01274-CV, ___ S.W.3d ____, ____, 2004 WL 2475220, at *1 (Tex.App.-Houston [1st Dist.] Nov. 4, 2004, pet. denied) (review of attorney's fees incurred by guardian); In re Estate of Robinson, 140 S.W.3d 801, 807 (Tex.App.-Corpus Christi 2004, pet. dism'd) (review of order finding person unsuitable to serve as executor). A court abuses its discretion when its actions are unreasonable or arbitrary or are without reference to any guiding rules or principles. Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 497 (Tex.App.-Austin 2003, no pet.). However, when an issue involves only a question of law, we review that determination de novo. Epstein, ____ S.W.3d at ____, 2004 WL 2475220, at *1.
JANUARY 21, 2004 ATTORNEY'S FEES ORDER
Bayne argues the January 21, 2004 order granting the Bank's application filed that same day to pay Huff $2953.50 is void because Bayne received no notice of the application before the order was signed, he had no opportunity to be heard, and he had a right to a jury trial on the issue. He also asserts the award is void because the Ward was deceased, an independent executor of the Deceased's estate had been appointed, and the Bank had not applied to the independent executor for payment of the claim as required by the probate code. Finally, he argues the application did not follow the correct claims procedures.
Notice
Bayne argues the order is void because he received no notice of the application for attorney's fees before the court granted it. Section 632 of the guardianship provisions in the probate code provides, "A person does not need to be cited or otherwise given notice in a guardianship matter except in situations in which this chapter expressly provides for citation or the giving of notice." TEX. PROB.CODE ANN. § 632(a) (Vernon 2003). Nothing in the relevant chapter of the probate code indicates that notice is statutorily required for a guardian's application to pay attorney's *236 fees incurred in administering the ward's estate. Bayne had the right to file a request to "be notified of any or all specifically designated motions, applications, or pleadings filed by any person." Id. § 632(j). Nothing in the record shows Bayne filed a request for notice of any application for payment of attorney's fees; accordingly, he was not entitled to notice.
Bayne asserts he had to be entitled to notice because he was entitled to a jury trial under section 643 of the probate code, and he argues that the right to a jury trial is meaningless without notice. Section 643 provides, "A party in a contested guardianship proceeding is entitled, on request, to a jury trial." Id. § 643 (emphasis added). The record does not show the guardianship proceeding on the application for Huff's fees was contested; thus, the record does not support Bayne's argument that he had a statutory right to a jury trial. To the extent Bayne asserts he could not contest the proceeding without notice, we observe he had no right to notice unless he filed a request for notice under section 632(j).
Death of the Ward
Bayne also argues the Ward's death ended the guardianship, and what had been the Ward's estate immediately became the Deceased's estate. Because there was an independent executor of the Deceased's estate, no payment from the Deceased's estate could be made without first applying to the independent executor as required by section 298 of the probate code. Id. § 298(a). We disagree.
The Ward's estate did not cease to exist at the Ward's death. Section 745 provides, "A guardianship of the estate of a ward shall be settled when: . . . (2) an incapacitated ward dies . . . ." Id. § 745(a)(2). The settlement of the estate requires the guardian to file an "account for final settlement of the estate" and to deliver the estate to a person legally entitled to it. Id. §§ 749, 758. However, contrary to Bayne's argument, those are not the only actions the guardian may take. Section 746 provides,
Before the guardianship of a person or estate of a ward is closed on the death of a ward, the guardian, subject to the approval of the court, may make all funeral arrangements, pay for the funeral expenses out of the estate of the deceased ward, and pay all other debts out of the estate. If a personal representative of a deceased ward is appointed, the court shall on the written complaint of the personal representative cause the guardian to be cited to appear and present a final account as provided in Section 749 of this code.
Id. § 746. If, at death, a ward's estate became the deceased's estate, requiring presentment of all claims to the personal representative of the deceased, then section 746 would be rendered meaningless. As written, however, section 746 permits the guardian to pay any of the remaining debts of the ward's estate before transferring the estate to the deceased's representative, but only with the court's approval to do so, and it provides a remedy for the representative of the deceased should he allege misapplication of property by the guardian. In this case, the Bank, as temporary guardian, applied for payment of one of the debts, Huff's fees, out of the Ward's estate, and the court approved that expenditure.
Claims Procedures
Bayne also argues the application "was totally deficient in failing to follow the claims procedures set forth in subpart G . . . of the Probate Code." Subpart G has twenty-six sections containing at least that many requirements, but Bayne does not *237 specify which provisions were not followed. Regardless, however, section 789 provides that defects of form or claims of insufficiency of exhibits or vouchers are deemed waived unless the objection to the form or sufficiency is presented in writing and filed with the county clerk within thirty days of the presentment of the claim. Id. § 789 (Vernon 2003). The record does not show Bayne filed any such objections with the county clerk. Thus, to the extent Bayne complains of the defects in the form or sufficiency of the exhibits supporting the attorney's-fees claim, they are waived. To the extent Bayne may be complaining of any lack of authentication of the claim, section 792 permits a guardian to pay an unauthenticated claim the guardian believes is just, "but the guardian . . . shall be liable for the amount of any payment of the claim if the court finds that the claim is not just." Id. § 792. In this case, the record does not show Bayne has challenged the claim in the lower court as "not just."
We conclude Bayne's arguments that the January 21, 2004 judgment is void lack merit.
MARCH 16, 2004 TRANSFER ORDER
Bayne next asserts the court lacked authority to order him to re-transfer assets from an independently administered probate estate back to a guardianship proceeding. We agree.
In an independently administered estate, the court's involvement in the administration of the estate is limited to the specific provisions of the probate code. Collins v. Baker, 825 S.W.2d 555, 556 (Tex. App.-Houston [14th Dist.] 1992, orig. proceeding). The probate code sets out the specific actions the court may take when an independent executor has been appointed. See TEX. PROB.CODE ANN. §§ 148-150, 152. None of those provisions permits the court to order the independent executor to "re-transfer" or "pay" funds from the Deceased's estate to the Ward's estate. Those assets had been transferred from the Ward's estate to the Deceased's estate through an agreed order on August 28, 2003 pursuant to section 747(a). See id. § 747(a) (Vernon Supp.2004-05). The court's order to "re-transfer" a portion of those assets back to the guardianship was without any basis in the law. The Bank argues that section 5A gives the court broad authority over the administration of estates, but section 5A also provides that it "shall not be construed so as to increase permissible judicial control over independent executors." Id. § 5A(b).
We conclude the court's March 16, 2004 order requiring Bayne, as independent executor, to "re-transfer" or "pay" assets to the Bank as temporary guardian was an abuse of discretion. Accordingly, we vacate the order.
MARCH 16, 2004 ORDER TO PAY ATTORNEY'S FEES
Bayne also appeals the March 16, 2004 order requiring the Bank as guardian "and/or" Bayne as independent executor to pay Mallard $6191.10.
The probate code sets out the procedure for obtaining payment of a debt owed by a deceased's estate with an independent administration. The claimant must timely file a claim with the independent executor. Id. §§ 146, 298 (Vernon 2003). If the claim is rejected, the claimant may bring suit against the independent executor, and if the claimant prevails, the judgment is executed against the estate. Id. § 147. In this case, neither the Bank nor Mallard presented a claim to Bayne as independent executor, and neither brought suit against Bayne as independent executor. Instead, the Bank filed an application for payment in the guardianship and probate proceedings. *238 The court's order requiring the Deceased's estate to pay Mallard's attorney's fees constitutes an unwarranted intrusion into the independent administration of the estate. Accordingly, we set aside the order to the extent it orders Bayne, as independent executor, to pay Mallard.
Bayne also argues that the court abused its discretion by ordering the Bank to pay Mallard. Bayne first asserts that on March 16, 2004, the Bank was no longer the temporary guardian because the letters of guardianship had expired. "All letters of guardianship expire one year and four months after the date of issuance unless renewed." Id. § 659(b). "Whenever temporary letters expire . . ., the court shall immediately enter an order requiring the temporary appointee to deliver the estate remaining in the temporary appointee's possession to the person who is legally entitled to the possession of the estate. The temporary appointee shall be discharged." Id. § 879. In this case, the letters of temporary guardianship were issued to the Bank on December 5, 2001, so they expired on April 5, 2003. However, the court did not immediately order the Bank to deliver the estate "to the person who is legally entitled to the estate," and the court did not discharge the Bank. Despite the expiration of the letters, the Bank's authority as temporary guardian continued.
Bayne also asserts the Bank's temporary guardianship ceased when Bayne was appointed permanent guardian. Section 875 provides, "The term of the temporary guardian expires . . . on the date a permanent guardian the court appoints for the proposed ward qualifies to serve as the ward's guardian." Id. § 875(l) (Vernon Supp.2004-05). The court's order appointing Bayne permanent guardian, however, specifically provided that the Bank's temporary guardianship was to continue and that the Bank was to "manage all assets," accept funds, and pay the expenses for the Ward until the court approved a final account filed by the Bank and relieved it of its duties. The order did not require the Bank to submit its final account within any time period. The record does not show the Bank has filed its final account or that the court has relieved the Bank of its duties as temporary guardian. Despite the use of the title "permanent guardian," this order did not appoint Bayne permanent guardian because, with the Bank managing all the Ward's assets, the primary responsibility of a guardian of the estate was placed with the Bank, not Bayne. Thus, notwithstanding section 875(l), the Bank's temporary guardianship did not cease with Bayne's purported appointment to permanent guardian.
Bayne also asserts the court lacked authority in the guardianship proceeding to enter the order to pay Mallard's fees because, Bayne argues, after the death of the ward, the court is without jurisdiction to take any action other than ordering the guardian to make a final accounting and conclude the guardianship, citing Carroll v. Carroll, 893 S.W.2d 62 (Tex.App.-Corpus Christi 1994, no writ).
In Carroll, the Corpus Christi Court of Appeals considered the jurisdiction of a county judge in a guardianship proceeding to order, one year after the ward's death, the sale of land in the ward's estate to pay the ward's debt to the nursing home in which she resided for twenty-one years before her death. Carroll, 893 S.W.2d at 63-64. After reviewing various provisions of the probate code, the court stated, "We believe that the Probate Code is clear. A guardianship ceases to exist upon the death of the ward and the guardian is required only to exercise those powers necessary to settle and close the guardianship as a prerequisite to his discharge." Id. *239 at 68. We disagree with Corpus Christi Court's interpretation. The probate code makes clear that a guardianship may be "kept open after the death of the ward." See TEX. PROB.CODE ANN. §§ 781(a)(7), 805(a)(2), 813, 820(1). The probate code permits a court overseeing a guardianship to make orders following the ward's death other than requiring a final accounting and closing the guardianship. For example, the code permits the court, after the ward's death, to order or approve the guardian's payment of funeral expenses, inheritance taxes, and "all other debts out of the estate." TEX. PROB.CODE ANN. § 746, 754. Accordingly, we cannot agree with the Corpus Christi Court that a guardianship necessarily ceases to exist on the death of the ward but can stay open after the death of the ward. The code leaves the decision of what debts to pay in the hands of the guardian, who must have the approval of the court, and the code provides a remedy should the deceased's personal representative have a complaint about the guardian's postmortem spending. Id. § 746. Thus, to the extent Mallard's fees were a debt owed by the Ward's estate, the court had authority to order their payment. Id.
Bayne also asserts the court erred in approving the application to pay Mallard because the evidence did not show Mallard's services were necessarily incurred in the management of the Ward's estate. Whether the fees benefitted the Ward's estate was a disputed issue of fact determined by the court. In the order to pay Mallard's fees, the court stated, "[T]he Court finds that such attorney's fees and expenses are reasonable and just; that such fees were necessarily incurred in the administration of the Guardianship . . . ." Bayne did not request the court to file findings of fact and conclusions of law, and the court did not file findings of fact and conclusions of law. In a trial to the court, where no findings of fact or conclusions of law are filed, the judgment of the court implies all necessary findings of fact to support it. Gibson v. Ellis, 126 S.W.3d 324, 335 (Tex.App.-Dallas 2004, no pet.). Where the implied findings of fact are supported by the evidence, it is our duty to uphold the judgment on any theory of law applicable to the case. Id. Likewise, when the court makes some findings on a claim but has omitted one or more elements of the claim, the omitted elements will be presumed when supported by some evidence. TEX.R. Civ. P. 299.
In this case, Mallard's testimony explained how the fees were necessarily incurred in the management of the Ward's estate. Bayne argues that Mallard's testimony shows his fees were not necessarily incurred in the management of the Ward's estate because the fees were incurred after the Ward had died and included fees for representing the Bank as guardian at a probate hearing. Neither of these events prevents the fees from having necessarily been incurred in the management of the Ward's estate. Bayne also cites evidence that the Bank had not filed the annual accountings or the final accounting as required by statute and had improperly accepted and cashed Social Security and Veterans Administration checks after the Ward's death; none of these events interferes with the propriety of Mallard's services and fees.
We conclude the record does not show the court abused its discretion in ordering the Bank as guardian of the Ward's estate to pay Mallard's fees.
CONCLUSION
We affirm the January 21, 2004 order. We vacate the March 16, 2004 order to re-transfer $20,000 from the Deceased's estate to the Ward's estate. We vacate the *240 March 16, 2004 order to pay Mallard insofar as it orders Bayne as independent executor to pay Mallard's attorney's fees, and we affirm the order to the extent it orders the Bank as temporary guardian to pay Mallard.
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535 U.S. 965
SIMSv.UNITED STATES.
No. 01-8613.
Supreme Court of the United States.
March 25, 2002.
1
C. A. 11th Cir. Certiorari denied. Reported below: 273 F. 3d 1120.
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482 F.Supp. 212 (1979)
Maria ARREDONDO as next friend for Andres Lopez, Jesus Carrillo as next friend for Fidel Alvares, Mrs. Artino Garza as next friend for Dolores Michelle Rodriguez, Oralia Martinez as next friend for Delia and Roberto Morales, Flora Falcon as next friend for Rita Gomez, Antonio Gutierrez as next friend for Silvestre Marquez Lopez, and Victoria Martinez as next friend for Marta Gutierrez-Gonzalez, Plaintiffs,
v.
M. L. BROCKETTE, Commissioner of Education in his official capacity, the Texas Education Agency, Pharr-San Juan-Alamo Independent School District, McAllen Independent School District, Mission Independent School District, Harlingen Independent School District, and Arturo Guerra, Rodney Cathy, Kenneth White, and Dan Ives, Individually and in their official capacities, Defendants.
Civ. A. No. B-77-296.
United States District Court, S. D. Texas, Brownsville Division.
December 19, 1979.
*213 Edward J. Tuddenham, Texas Rural Legal Aid, Inc., Farm Worker Division, Hereford, Tex., David Horton, Timoteo E. Gomez, Texas Rural Legal Aid, Inc., Brownsville, Tex., James S. Herrmann, Texas Rural Legal Aid, Inc., Harlingen, Tex., for plaintiffs.
Gregory Wilson, Asst. Atty. Gen., Austin, Tex., for defendants Brockette and Texas Education.
Travis Hiester, McAllen, Tex., for defendant McAllen ISD.
Mario E. Ramirez, McAllen, Tex., for defendant Pharr-San Juan-Alamo ISD.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
KAZEN, District Judge.
As will be more fully detailed below, the instant suit was originally filed asking the Court to declare unconstitutional a state statute and to enjoin the attempted enforcement of same. A hearing was held on October 26, 1979, at which time evidence on the merits was received. Pursuant to Rule 52, Federal Rules of Civil Procedure, the Court now submits its Findings of Fact and Conclusions of Law. Virtually all of the findings of fact are based upon stipulations made between the parties.
FINDINGS OF FACT
1. Both Plaintiff Roberto Morales and Plaintiff Rita Gomez are United States citizens.
2. Each child is over five years of age and under eighteen years of age.
3. Plaintiff Roberto Morales lives within the McAllen Independent School District for the primary purpose of attending school and learning English.
4. Plaintiff Rita Gomez lives within the Pharr-San Juan-Alamo School District for the primary purpose of attending school.
5. Neither Plaintiff resides with his or her parent, legal guardian, or other person *214 having lawful control of him under a court order.
6. Neither Plaintiff has a parent, legal guardian, or other person having lawful control of him residing in the McAllen or Pharr-San Juan-Alamo School Districts.
7. Both Plaintiffs would otherwise be eligible for admission to the public free schools under the provisions of Tex.Educ. Code Ann. tit. 2, § 21.031(c) (Vernon Supp. 1978), which provides:
The board of trustees of any public free school district of this state shall admit into the public free schools of the district free of tuition all persons who are either citizens of the United States or legally admitted aliens and who are over five and not over 21 years of age at the beginning of the scholastic year if such person or his parent, guardian or person having lawful control resides within the school district.
8. Both Plaintiffs were denied admission to the Texas free schools under the provisions of Tex.Educ.Code Ann. tit. 2, § 21.031(d) (Vernon Supp.1978), which provides:
In order for a person under the age of 18 years to establish a residence for the purpose of attending the public free schools separate and apart from his parent, guardian, or other person having lawful control of him under an order of a court, it must be established that his presence in the school district is not for the primary purpose of attending the public free schools. The board of trustees shall be responsible for determining whether an applicant for admission is a resident of the school district for purposes of attending the public schools.
9. Plaintiff Roberto Morales began living in McAllen Independent School District at the beginning of the 1977 school year and has continuously resided there since that time.
10. Plaintiff Roberto Morales only intends to reside in the McAllen Independent School District until he completes his education.
11. While Plaintiff Roberto Morales was denied admission to the McAllen Independent School District in 1977 and 1978, he was granted permission to attend school in November, 1978, contingent upon the payment of tuition. (See Pl.Exh. No. 2).
12. Plaintiff Roberto Morales and the person with whom he is residing are both indigent.
13. In November, 1978, tuition in the amount of $378.00 was paid on behalf of Plaintiff Roberto Morales by the Texas Rural Legal Aid, Inc. The parties apparently dispute whether these funds were those of the corporation itself or whether they were actually furnished by the family of Morales. Insufficient evidence was presented to enable the Court to resolve this point but the Court regards the issue as irrelevant to the ultimate disposition of the case. (Pl.Exh. No. 3).
14. Plaintiff Roberto Morales has not paid tuition for the Spring, 1978, or Fall, 1979, semesters and he was originally informed that his continued enrollment was conditioned upon the payment of all monies due and the availability of space.
15. Plaintiff Roberto Morales was expelled from school on November 28, 1978, for failure to pay tuition. On December 12, 1979, this Court issued a preliminary injunction returning him to school conditioned upon his first posting a bond in the sum of $1,224.00 to secure Defendant McAllen School District's claims for tuition against Plaintiff. The Plaintiff is now in school pending ultimate determination of this case on the merits.
16. Plaintiff Rita Gomez only intends to reside in the Pharr-San Juan-Alamo School District until she completes her education.
17. Plaintiff Rita Gomez was denied admission to school for the 1979-80 school year by officials of the Pharr-San Juan-Alamo School District.
18. Plaintiff Rita Gomez and the person with whom she is residing are both indigent.
19. Plaintiff Delia Morales, a United States citizen and the sister of Plaintiff *215 Roberto Morales, was also denied admission to the McAllen Independent School District, pursuant to § 21.031(d). She was then admitted upon paying tuition, but subsequently withdrew from school and returned to Mexico. Her tuition was refunded by the McAllen School District. See (Pl.Exh. 5).
20. According to admissions contained in the pleadings, Plaintiff Fidel Alvares, a United States citizen, was also denied admission to the McAllen Independent School District, pursuant to § 21.031(d), but no further evidence was presented either in support of or in opposition to his claim.
21. According to the pleadings, Plaintiff Andres Lopez, a United States citizen, was originally denied admission to the Pharr Independent School District, pursuant to § 21.031(d), but was subsequently admitted. No further evidence was presented either in support of or in opposition to his claim.
22. Prior to trial, the Plaintiffs voluntarily dismissed their cause of action as to Defendants Harlingen Independent School District and Dan Ives. The dispute of Plaintiffs Silvestre Marquez Lopez and Marta Gutierrez-Gonzalez was with these Defendants; therefore, their claims will not be adjudicated herein.
23. Prior to trial, Plaintiffs moved and were granted permission to dismiss, without prejudice, their cause of action against Defendants Mission Independent School District and Kenneth White. Since, according to the motion, no known Plaintiffs are currently being excluded from the district, the claim of Plaintiff Dolores Michelle Rodriguez has been rendered moot and incapable of adjudication.
24. None of the adults with whom the Plaintiffs reside desire to become the legal guardian or legal custodian of the child who lives with them.
25. The Texas statute in question operates to absolutely deprive a child of an education if it is determined that the child resides apart from his or her parent, legal guardian or one having lawful control over him or her for the primary purpose of attending the free public school and that child is indigent.
26. If Section 21.031(d) of the Texas Education Code were declared unconstitutional, it would, in all probability, cause the immediate enrollment of thousands of children from other states and countries who are United States citizens whose parents do not reside within the relevant school district. Furthermore, the enrollment would probably increase significantly each year.
27. The legislative classification imposing the residency requirement applies to intrastate school district transfers as well as transfers of children from other states and countries.
28. Declaring the statute unconstitutional would cause substantial numbers of intra-district transfers, which would further cause school populations to fluctuate. Also, the intrastate migration of students between school districts would cause problems in the athletic programs by possibly encouraging the recruitment of athletes.
29. Fluctuating school populations would make it impossible to predict enrollment figures even on a semester-by-semester basis, causing over-or-under-estimates on teachers, supplies, materials, etc.
30. The increased enrollment of students would cause overcrowded classrooms and related facilities; over-large teacher-pupil ratios; expansion of bilingual programs; the purchase of books, equipment, supplies and other customary items of support; all of which would require a substantial increase in the budget of the school districts.
31. Neither the State of Texas nor the Texas Education Agency nor the United States of America provides funds to assist school districts with educating Plaintiffs or children similarly situated. This burden falls exclusively upon the local school district.
32. Some school districts are presently taxing at the maximum rate allowed by law and have no means to obtain more financial assistance.
33. Most of the children in the Plaintiffs' category do not pay any local school or state taxes or tuition and, therefore, their *216 education would be funded and paid for by the resident taxpayers of the State of Texas and the school district, including some of the adults the children live with in the school district.
34. The intrastate and interstate transfers would, in all probability, have a detrimental effect on the educational standards of the Defendant school districts and the other school districts in the State of Texas.
35. The children in this case live with persons who could, in the absence of notice to the contrary, consent to medical treatment for the minor. See Tex.Fam.Code Ann. § 35.01(2) (Vernon 1975).
36. The statutory definition contained in Section 21.031(d) was passed to give administrators a statutory guideline to follow in determining a genuine bona fide resident.
37. At least one of the legislative purposes behind Section 21.031(d) was to inhibit the migration of persons residing in Mexico to attend schools in the United States. (See Pl.Exh. 6).
38. Between August 1, 1977, and May 25, 1978, out of a total of fifty-six minor United States citizens living apart from their parents, legal guardian or other person having lawful control over them, who applied for admission to the McAllen Independent School District, fifty-one of these children were admitted.
39. In denying an earlier Motion for a Preliminary Injunction, then-presiding Judge Reynaldo Garza found that the Defendant school districts had been most liberal in finding that certain children, like the Plaintiffs, are not living away from their parents or residing in the school districts for the sole purpose of attending school. Judge Garza further found that analysis of the records submitted in this case conclusively showed that children living within the school districts with someone other than their parents or legal guardians will be admitted to school if any reason exists for such situation other than solely attending school. This Court has no reason to doubt the accuracy of these findings and they are adopted for purposes of this Opinion.
40. The parties have specifically limited this case to the issue of the facial constitutionality of Tex.Educ.Code Ann. § 21.031(d).
41. On October 26, 1979, it was agreed in open court that the Plaintiffs' Motion for a Preliminary Injunction would be consolidated into a final hearing on the merits. See generally Fed.R.Civ.P. 65(a)(2).
42. In the event that any of the foregoing findings of fact also constitute conclusions of law, they are adopted as such. In the event that any of the following conclusions of law also constitute findings of fact, they are adopted as such.
CONCLUSIONS OF LAW
This case presents the very narrow issue of whether Tex.Educ.Code Ann. § 21.031(d) is unconstitutional on its face. Earlier in the case, Plaintiffs specifically requested and were granted permission to amend their complaint to eliminate any contention that the statute was unconstitutional as applied to them. The minor Plaintiffs are United States citizens residing within Texas and living apart from their parents, legal guardian or other person having lawful control over them. These children desire to attend public schools on a tuition-free basis. The Defendant school districts have refused to admit the children tuition-free, having determined that the Plaintiffs are living apart from their parents, legal guardian or other person having lawful control over them by court order for the primary purpose of attending the free public schools. See Tex.Educ.Code Ann. § 21.031(d) (Vernon Supp.1978).
This Court first notes that as a general rule the Constitution "does not invalidate state legislation because it fails to embody the highest wisdom or provide the best conceivable remedies." Cohen v. Beneficial Industrial Loan Co., 337 U.S. 541, 550-51, 69 S.Ct. 1221, 1227-1228, 93 L.Ed. 1528, 1538 (1949). This Court's task is thus not to weigh a statute's effectiveness but its constitutionality. James v. Strange, 407 U.S. 128, 133, 92 S.Ct. 2027, 2030, 32 L.Ed.2d 600, 606 (1972) (rational basis test applied). Furthermore, the fact that an inequitable *217 result may be forthcoming does not render a statute unconstitutional. See Wickard v. Filburn, 317 U.S. 111, 129-30, 63 S.Ct. 82, 91, 87 L.Ed. 122, 137 (1942).
As Plaintiffs candidly recognize, any statute is the result of a legislative choice that inevitably affects one group differently from others and, therefore, gives rise to claims of unequal treatment. Whether such statute is unconstitutional under the equal protection clause is generally determined by the "rational basis test"; that is, the statute is entitled to a presumption of validity and will be upheld so long as it bears some rational relationship to the achievement of a legitimate purpose. San Antonio School District v. Rodriguez, 411 U.S. 1, 40, 93 S.Ct. at 1300, 1278, 36 L.Ed.2d 16 at 47 (1973). On the other hand, if a statute involves "suspect classifications" or if it interferes with a fundamental right explicitly or implicitly protected by the Constitution, then the statute must withstand "strict judicial scrutiny". It is not entitled to the usual presumption of validity, and the statute must fail unless it is necessary to promote a compelling state interest. Id. at 16-17, 93 S.Ct. 1287-88, 36 L.Ed.2d 32-33. Plaintiffs rightfully do not contend that the statute in question involves any suspect classifications, as it applies on its face to all students of whatever race, sex, or national origin.[1] Further, this statute involves secondary education and the Plaintiffs recognize that while education is unquestionably vital, the Supreme Court has held that it is not among the rights afforded explicit or implicit protection under the Constitution. Id., at 35, 93 S.Ct. at 1297, 36 L.Ed.2d at 44. In an effort to bring this statute within the much stricter "compelling interest" test, Plaintiffs allege that the statute improperly burdens their fundamental constitutional right to travel, and they thereby seek relief under the umbrella of such decisions as Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974).
Shapiro, supra, affirmed lower court decisions declaring unconstitutional those statutes denying welfare assistance to residents of a state who had not resided within their jurisdiction for at least one year immediately preceding the application for assistance. The Court found that the statutes penalized the exercising of a constitutional right to interstate travel and, therefore, failed because they were not necessary to promote a compelling state interest. Memorial Hospital, supra, announced a similar result with respect to a statute requiring a one-year's residence as a condition to receiving non-emergency hospital or medical care at county expense. There is a fundamental and critical difference, however, between the statutes involved in those cases and the statute before this Court. The Supreme Court has made it crystal clear that the defect in the Shapiro and Memorial Hospital statutes was not that they had residency requirements but that they had durational residency requirements.
In Shapiro, supra, the Court clearly noted that residency and one-year residency were two separate and distinct prerequisites for welfare assistance. 394 U.S. at 636, 89 S.Ct. at 1332, 22 L.Ed.2d at 616. Later, in Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), a case concerning a durational residency requirement for voting, the Court again applied the compelling interest rule. However, the Court made it clear that the challenge was not directed at the requirement of residency but rather at the requirement of durational *218 residency. "We emphasize again the difference between bona fide residence requirements and durational residence requirements." 405 U.S. at 343, 92 S.Ct. at 1003-1004, 31 L.Ed.2d at 284. This distinction was more clearly defined in Memorial Hospital, supra, where the Court reemphasized that the constitutional right to interstate travel did not mean merely the right to be in motion but rather the right to migrate, resettle, and start a new life. 415 U.S. at 255, 94 S.Ct. at 1080, 39 L.Ed.2d at 313. The Court concluded that while every bona fide residence requirement would necessarily burden a simple right to move from one location to another, it was only a durational residency requirement that impermissibly burdened the constitutional right "to migrate, `with intent to settle and abide.'" Id. More recently, in McCarthy v. Philadelphia Civil Service Commission, 424 U.S. 645, 96 S.Ct. 1154, 47 L.Ed.2d 366 (1976) (per curiam), the Court repeated that: "We have previously differentiated between a requirement of continuing residency and a requirement of prior residency of a given duration." 424 U.S. at 647, 96 S.Ct. at 1155, 47 L.Ed.2d at 369.
The Fifth Circuit Court of Appeals has also recognized this distinction in upholding an ordinance requiring all municipal employees to maintain their domicile and principal place of residence within the corporate limits of the city during the period of their employment. Wright v. City of Jackson, 506 F.2d 900 (5th Cir. 1975). Noting that there is no fundamental constitutional "right to commute", the Fifth Circuit held that a bona fide continual residency requirement is not to be tested by the strict compelling purpose standard but rather by the traditional rational basis test. Similarly, in Andre v. Board of Trustees of Village of Maywood, 561 F.2d 48 (7th Cir. 1977), cert. denied, 434 U.S. 1013, 98 S.Ct. 727, 54 L.Ed.2d 756 (1978), the court noted:
All residency restrictions have an effect on the right to interstate travel, but only those residency restrictions which can be characterized as `durational' have been found to unconstitutionally impinge or penalize the right to travel, in the absence of some compelling state interest. Durational residency requirements classify residents into groups of residents who have fulfilled the residency requirements and those who have not . . . Bona fide residency requirements as continuing conditions of municipal employment rest upon footings significantly different from those of durational residency requirements.
561 F.2d at 52.
In the instant case, the Texas statute only attempts to articulate a residency definition and in no way contains a durational residency requirement. The Court, therefore, concludes that the statute does not burden the constitutional right to travel and thus must be examined under the rational basis test.[2] Before analyzing whether or not the statute can pass this test, however, the Court will next consider Plaintiffs' second basic point of attack.
Plaintiffs contend that the statute violates both the due process and equal *219 protection clauses of the fourteenth amendment because its definition of residency creates "an invalid irrebuttable presumption of non-residency".[3] This contention is essentially grounded on two key cases, Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965) and Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973). In Carrington, the Court was concerned with the provision of the Texas Constitution that prohibited any member of the armed forces of the United States who moved his home to Texas during the course of his military duty from ever voting in a Texas election "so long as he or she is a member of the Armed Forces". The Court held that this provision violated the equal protection clause of the fourteenth amendment. In that case, however, it was undisputed that the petitioner had been domiciled in Texas and that "he intend[ed] to make his home there permanently". 380 U.S. at 91, 85 S.Ct. at 777, 13 L.Ed.2d at 677. The Court stressed that Texas had the right to require all military persons to be bona fide residents of the community before they were entitled to vote but concluded that if the military personnel were "in fact residents, with the intention of making Texas their home indefinitely", then they had the right to be treated the same as other Texas residents. Id. at 93-94, 85 S.Ct. at 779, 13 L.Ed.2d at 678.
In Vlandis, the Court considered a Connecticut statute which attempted to define residents and non-residents for purpose of paying higher tuition at state universities. Under the statutory scheme, once a student was classified as a "non-resident", his status was permanent and irrebuttable during the entire time that he remained at the university, regardless of the particular fact situation of any given student. The Court held that this statute was a violation of the constitutional right to due process. In so doing, however, the Court was careful to observe that it was not questioning the segregation of students into resident and non-resident categories nor the charging of higher fees to the latter group. The narrow holding in Vlandis, therefore, was simply that a permanent irrebuttable presumption of non-residence violated the due process clause.
The Court cannot agree that the statute involved here creates an irrebuttable presumption of the type condemned by Vlandis. The challenged portion of the statute provides, in essence, that if a student under the age of eighteen years is living apart from his parent, guardian, or other person having lawful control of him under court order, then in order to establish residency for purposes of attending free public schools, that student must establish that his presence in the school district is "not for the primary purpose of attending the public free schools". Thus, unlike statutes which set forth objective criteria for residency such as length of time or a negative category (such as "member of the Armed Forces"), this statute codifies the ultimate universal test of residency, namely subjective intent. Of course, there is a certain superficial logic to the argument that the statutory definition is "irrebuttable" because as long as the minor student admits that he is living apart from his parent or guardian for the sole purpose of attending free public schools in a particular district, then he can never be classified as a resident. On the other hand, however, by using the definition of residency almost universally accepted in school cases, the statutory criteria in one sense merely states a truism, namely that a person who only intends to remain in a given place temporarily in order to take advantage of a particular benefit at that location necessarily lacks the permanence to be classified as a resident.
Thus, in Vlandis, supra, the Supreme Court said:
The State can establish such reasonable criteria for in-state status as to make virtually certain that students who are not, in fact, bona fide residents of the State, but who have come there solely for educational purposes, cannot take advantage of the in-state rates. 412 U.S. at 453-54, 93 S.Ct. at 2237 (emphasis supplied).
*220 In Spriggs v. Altheimer, Arkansas School District Number Twenty-Two, 385 F.2d 254 (8th Cir. 1967), the minor school children had been charged tuition because they were living with their grandfather rather than with their mother who lived in another school district. The Eighth Circuit remanded the case to the district court to make a factual determination as to the residency of the children for purposes of the Arkansas statute, which provided free public schools to all persons "residing" in the district. The trial court was instructed to hear further evidence on the question but the following guideline was given:
On the other hand, if the residency of the children with their grandfather is only temporary for the primary purpose of attending school in a district other than where their parents reside, then tuition under the statutes would be proper. 385 F.2d at 259.
In Clarke v. Redeker, 259 F.Supp. 117 (S.D. Iowa 1966) (three judge court), regulations classifying residents and non-residents for tuition purposes at the State University of Iowa were upheld as being constitutionally valid on their face. Among other things, these regulations defined a bona fide resident to mean a student who is "not in the state primarily to attend a college". 259 F.Supp. at 121. In Kelm v. Carson, 473 F.2d 1267 (6th Cir. 1973), the Court noted that where a statute and regulation "seek to distinguish between temporary sojourners in Ohio who reside there only for school purposes and Ohio residents, the intention of the party and what he has done to evidence that intent becomes critical." Id. at 1271. Presence in a school district for the primary purpose of attending school was also held insufficient "residency" for tuition purposes in Mansfield Township Board of Education v. State Board of Education, 101 N.J.L. 474, 129 A. 765 (Sup.Ct. 1925) and Mt. Hope School Dist. v. Hendrickson, 197 Iowa 191, 197 N.W. 47 (1924).
In the instant case, Plaintiffs attack the statute only on its face but it is interesting to note that at least as applied within the Defendant school districts, the statute can hardly be called irrebuttable in actual practice. Indeed, the stipulated evidence clearly shows that between approximately August 1, 1977, and May 25, 1978, the McAllen Independent School District had only 56 applications from students who were United States citizens and covered by § 21.031(d) and, of that number, all but five were enrolled in school. See Finding of Fact No. 38. The evidence indicated that students living apart from their parent or guardian because of physical health or emotional well-being, broken homes, health reasons, etc., are all allowed to qualify for free public schools. Thus, if the statute in question contains even an indirect presumption of non-residency, certainly the presumption is rebuttable in practice. See Michelson v. Cox, 476 F.Supp. 1315 (S.D.Iowa 1979). Even if a child were to originally move into the school district for the primary purpose of attending school, there is nothing on the face of the statute nor apparently in actual practice, to prohibit the child from being reclassified as a resident if in fact his circumstancesspecifically his primary motive for being in the district would change from one school semester to another. In summary, therefore, the only students to whom the statutory definition of non-residency is in any sense irrebuttable are those students who persist in declaring that their primary purpose for being present in the school district is to attend the public free schools. Because such a declaration would ipso facto place the student within the classic legal definition of a non-resident, the Court concludes that it does no violence to the Constitution.
Plaintiffs further suggest, however, that the statute is discriminatory because only one category of students must defend its motives. In other words, a literal reading of Section 21.031(d), reflects that if a student under the age of eighteen years is living with his parents, legal guardian, or some person having lawful control of him under court order, then that student's purpose for being in the school district is unquestioned. It is only when a person under the age of eighteen years is living apart from a parent or guardian or other person *221 having lawful control that he must establish the proper motive for being in the district. In resolving this contention, it is again necessary to recall the Court's earlier conclusion that this statute must only pass the rational basis test.
As stated in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970):
In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 37 S.Ct. [337], 340, 55 L.Ed. 369. `The problems of government are practical ones and may justify, if they do not require, rough accommodations illogical, it may be, and unscientific.' Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. [441], 443, 57 L.Ed. 730. `A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. [1101], 1105, 6 L.Ed.2d 393.
397 U.S. at 485, 90 S.Ct. at 1161, 6 L.Ed.2d at 433.
The Court concludes that in the present statutory scheme, there is some reasonable basis for separately classifying minor school children living apart from their parents, guardian or other person having custody under court order. Section 21.031(d) attempts to define "residence" for this one class of students. The word "residence" has many meanings in the law, largely determined by the statutory context in which it is used. Kelm v. Carlson, 473 F.2d 1267, 1271 (6th Cir. 1973). Within the context of § 21.031(d), residence means something more than mere physical presence and thus is more closely related to the concept of domicile. See DeLeon v. Harlingen Consolidated Independent School District, 552 S.W.2d 922, 924 (Tex.Civ.App. Corpus Christi 1977, no writ). The cases discussing the domicile of a minor are, therefore, extremely helpful in evaluating the reasonableness of this legislative classification. Under Texas common law, a minor is "not sui juris, and can neither select nor change its domicile, which is fixed by law as that of his father." Smith v. Ansley, 257 S.W.2d 156, 157 (Tex.Civ.App. Waco 1953, writ ref'd n. r. e.); see Bradshaw v. Peacock, 145 Tex. 68, 194 S.W.2d 551, 554 (1946); Mills v. Howard, 228 S.W.2d 906, 907 (Tex.Civ.App. Amarillo 1950, no writ); see generally Restatement of Conflicts of Law § 11 (1934). This notion rests in large measure upon the minor's presumed lack of capacity to form the requisite intention necessary to establish a separate domicile. Deterly v. Wells, 53 S.W.2d 847, 848 (Tex.Civ.App. Dallas 1932, writ refused). Indeed, the common law presumption is so strong that even when a child is abandoned by both parents, he still cannot acquire his own domicile. See generally Restatement of Conflicts of Law § 34 (1934) (where a child is abandoned by both parents it takes its father's domicile at the time of the abandonment). Since the child's ability in Texas to acquire his own separate residence is a matter of legislative grace[4], it is certainly not unreasonable to require that his presence in another school district be for some cogent reason other than attending free *222 public school in that district before qualifying for tuition-free status. See DeLeon v. Harlingen Consolidated Independent School District, supra, at 924.
Having concluded that Section 21.031(d) does not create an invalid irrebuttable presumption against residency and having further concluded that there is some rational basis for defining the residency of minors living apart from a parent or guardian or other person in lawful control under court order, the only remaining question would be whether there is a rational basis for the statutory scheme which denies free public education to those who cannot meet the statutory definition of residency. Actually, Plaintiffs do not seriously challenge this aspect of the statute. A state has a legitimate interest in protecting and preserving the quality of its educational system and the right of its own bona fide residents to attend state schools on a preferred tuition basis. Vlandis v. Kline, supra, at 452-53, 93 S.Ct. 2236. Similarly, the state would have an interest in preserving the financial integrity of the various components of the state educational system, i. e., the individual school districts. East Texas Guidance and Achievement Center, Inc. v. Brockette, 431 F.Supp. 231, 236 (E.D.Tex. 1977). It must also be remembered that although the Plaintiffs in this case have concentrated their focus on children of United States citizens residing in Mexico, nevertheless the statute on its face would also apply to children of parents living anywhere in Texas or in any of the United States. Since the statute applies to any minor student living apart from his parents, guardian or other person with lawful control, it even applies to attempted transfers between different school districts within the same county.[5] The Court is satisfied that these kinds of transfers, free of all tuition, would cause budgetary and administrative planning problems sufficient to justify the tuition scheme of the statute. As stated in DeLeon v. Harlingen Consolidated Independent School District, supra:
The variability of student population is a serious impediment to the effective planning of virtually all phases of the educational process. There is no justification for a requirement that a school system educate in tuition-free manner those children whose only indicia of residence is mere presence within the district, accompanied by the student's desire (or that of his parents) to attend school therein. It is reasonable to draw the line of residency, at least for school admission purposes, between those who come within a school district because they had to move into the district for some valid reason other than for educational purposes, and those who have come there for the sole purpose of getting tuition-free education within the district. There is no reason to add to the burdens of a school district by freely admitting to its schools anyone who has previously resided outside the district simply because they wanted to attend the schools in the district.
552 S.W.2d at 925.
In conclusion, the Court finds that Section 21.031(d) is a constitutional enactment of the Texas Legislature, in that it violates neither the equal protection clause nor the due process clause of the fourteenth amendment. This does not mean that the statute is perfect or that the Legislature could not have found a more precise or more equitable way to draw lines between resident and non-resident students. The Court simply concludes that the statute as drawn is not unconstitutional. Accordingly, final judgment will be entered for Defendants.
NOTES
[1] The United States Supreme Court has identified numerous suspect classifications. For example, racial classifications and classifications based on alienage are deemed suspect and subject to "strict scrutiny". See Graham v. Richardson, 403 U.S. 365, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971) (alienage); Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967) (race); McLaughlin v. Florida, 379 U.S. 184, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (race). Although sexual classifications were held to be suspect in one case, Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), recent cases evidence a retrenchment from this position and the application by the Supreme Court of an intermediate scrutiny. See Orr v. Orr, 440 U.S. 268, 278-79, 99 S.Ct. 1102, 1111, 59 L.Ed.2d 306, 318-19 (1979).
[2] Even if a durational residency requirement were involved in this case, it would not automatically be considered an unconstitutional penalty on the right to interstate travel. In Shapiro, supra, the Court expressly reserved decision as to whether a durational residency requirement for "tuition-free education" would be unconstitutional. 394 U.S. at 638 fn. 21, 89 S.Ct. at 1333,, f. 21, 22 L.Ed.2d at 617. In Memorial Hospital, supra, the Court reiterated that, depending upon what right is affected, some waiting periods may not be penalties. 415 U.S. at 258-59, 94 S.Ct. at 1082, 39 L.Ed.2d at 314. In Vlandis v. Kline, 412 U.S. 441, 452-53, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), the Court specifically declined to hold that a state could not impose a "reasonable durational residency requirement" as one element in demonstrating bona fide residence for purposes of lower tuition and fees. In Starns v. Malkerson, 326 F.Supp. 234 (D.Minn.1970), aff'd, 401 U.S. 985, 91 S.Ct. 1231, 28 L.Ed.2d 527 (1971), the district court upheld a university regulation providing that no student could qualify as a resident for tuition purposes unless he had been a bona fide domiciliary of the State for at least one year, and this decision was affirmed by the Supreme Court. In Sosna v. Iowa, 419 U.S. 393, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975), the Court upheld a one-year durational residency requirement for obtaining a divorce.
[3] Plaintiffs' First Amended Complaint, ¶ 21b.
[4] In the relatively new Texas Family Code, the Texas Legislature both codified and modified the common law in certain respects. For example, like the common law, a child's domicile is expressly defined as that of his parent. Texas Fam.Code Ann. § 12.04 (Vernon Supp.1978). Likewise, if a managing conservator is appointed, his domicile establishes that of the child. Id. § 14.02. On the other hand, for venue purposes, while a child is deemed to reside with its parents, guardian, manager conservator or other in lawful control, if it is found that the child is not under the care and control of any adult, then he resides where he is found. Id. § 11.04(c)(6). Thus "residence" is defined differently for venue purposes than for tuition-free purposes but these classifications are more properly left to the Legislature, and the courts will not interfere with its judgment unless the classification is patently unreasonable. See P. 221 supra.
[5] Since the statute is being attacked on its face, the fact that the statute facially applies to intra-state as well as inter-state movement, and indeed even to international movement, poses an additional barrier to Plaintiffs. Courts are reluctant to strike down a statute which can validly be applied to a number of situations. Arbeitman v. District Court, 522 F.2d 1031, 1034 (2d Cir. 1975). There is some question as to the existence of a constitutional right to intra-state travel and certainly as to whether infringement of such a right would have to pass the "compelling interest" test. Wright v. City of Jackson, 506 F.2d at 902; Wardwell v. Board of Education, 529 F.2d 625, 627 (6th Cir. 1976); Brown v. New Haven Civil Service Board, 474 F.Supp. 1256, 1264 (D.Conn.1979). With respect to international travel, see Califano v. Aznavorian, 439 U.S. 170, 99 S.Ct. 471, 58 L.Ed.2d 435 (1978).
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6 Cal.4th 435 (1993)
862 P.2d 751
24 Cal. Rptr.2d 751
In re ZACHARIA D., a Person Coming Under the Juvenile Court Law.
ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent,
v.
WENDY H. et al., Defendants and Appellants.
Docket No. S028817.
Supreme Court of California.
December 6, 1993.
*438 COUNSEL
Steven D. Schatz and Stephen S. Buckley, under appointments by the Supreme Court, for Defendants and Appellants.
Terry C. Andrus, County Counsel, and Michelle Ben-Hur, Deputy County Counsel, for Plaintiff and Respondent.
Lloyd M. Harmon, Jr., County Counsel (San Diego), Susan Strom, Chief Deputy County Counsel, Gary C. Seiser and Kathryn E. Krug, Deputy County Counsel, as Amici Curiae on behalf of Plaintiff and Respondent.
*439 Harold La Flamme, Duane T. Neary and John L. Dodd, under appointments by the Supreme Court, for Minor.
OPINION
ARABIAN, J.
In this case we determine whether the juvenile court properly declined to order either reunification services for Javan W. with his biological son, Zacharia D., or Javan's custody of Zacharia. In particular, we decide whether one who is a biological but not a presumed father is entitled to reunification services under Welfare and Institutions Code section 361.5, and whether such services may be requested for the first time after the 18-month review hearing. We further decide whether a biological but nonpresumed father is entitled to immediate placement of the minor in his custody under Welfare and Institutions Code section 361.2, and whether that section is applicable 20 months after the child is removed from the custodial parent's home. We conclude that only a presumed father is a "parent" entitled to reunification services with and/or custody of his child under the applicable statutory sections, that reunification services are not available under Welfare and Institutions Code section 361.5 after any reunification period has been terminated, and that section 361.2 applies only when the child is first removed from the custodial parent's home. We thus reverse the judgment of the Court of Appeal.
I. FACTS AND PROCEDURAL BACKGROUND
Zacharia D. was born to Wendy H. on August 12, 1989, with methamphetamine traces in his blood. Wendy named Lee D. as Zacharia's father on the birth certificate. Wendy and Lee had been together for four years, and were living together at or about the time Zachariah was conceived. Nine months prior to Zacharia's birth, however, Wendy spent approximately two weeks with a prior high school boyfriend, Javan W., and engaged in numerous acts of sexual intercourse with Javan during this time period.
On August 13, Zacharia was taken into protective custody by the Orange County Social Services Agency (County). On August 14, a dependency petition was filed, alleging that Zacharia came within Welfare and Institutions Code[1] section 300, subdivisions (a) (serious physical harm), and (b) (failure to protect), as a result of Wendy's intermittent prenatal ingestion of crystal methamphetamine and Lee's failure to protect Zacharia from Wendy's illegal drug use. The petition further alleged that both Wendy and *440 Lee had a history of drug use and transiency. On August 16, a detention hearing was held, and Zacharia was ordered released to his parents' custody.
At the pretrial hearing on September 11, 1989, Wendy and Lee pled no contest to the allegations of the amended petition, and Zacharia was declared a dependent of the juvenile court. The court authorized Zacharia's supervised release to Wendy and Lee and approved a service plan.
Wendy and Lee failed to attend drug rehabilitation or parenting classes, apparently continued their drug use, and abandoned Zacharia to the care of his stepgrandmother. On October 20, the County again took custody of Zacharia. On October 24, 1989, the County filed a supplemental petition alleging under section 300, subdivision (b), that Wendy and Lee were not satisfying the service plan, and were unable to care for Zacharia. At the time of the petition, Wendy had left Lee and Zacharia, and her whereabouts were unknown.
On October 25, a detention hearing was held, and Zacharia was detained in protective custody. At the pretrial hearing on November 17, Wendy and Lee, having apparently reunited, pled no contest to the allegations of the amended supplemental petition. A reunification plan was adopted by the court.
At the six-month review hearing on March 9, 1990, all parties stipulated that Zacharia's return would create a substantial risk of detriment to his physical or emotional well-being.
In November 1990, Wendy and Lee again separated. According to Javan, Wendy moved in with Javan and his parents. At this time, Javan first learned that Zacharia existed. Javan asked "to see the pictures of [Wendy's] child ... and I compared them to mine and we looked identical...."[2] Javan met Zacharia in January 1991, but remained unsure as to whether he was the father. Javan did not attempt to establish a relationship with Zacharia during this period, or indicate any willingness to support him. Nor did he communicate his suspicions to the County or the court.
Meanwhile, the dependency proceedings concerning Wendy, Lee, and Zacharia continued. At the 12-month review hearing held on January 25, 1991, the parties stipulated that Wendy and Lee had not substantially complied with the reunification plan, and that Zacharia's return would create a substantial risk of detriment to his physical or emotional well-being. An 18-month review hearing was ultimately set for March 14, 1991.
*441 On February 19, Lee informed the social worker that he had decided to terminate all reunification efforts with Zacharia.[3]
On March 14, 1991, fearing that Wendy would lose Zacharia at the 18-month review hearing, Javan came forward and asked the court if he could be tested for paternity.[4] The court granted the request, and appointed counsel for him. The 18-month hearing was trailed to March 20.
At the 18-month hearing on March 20, Wendy testified that she never completed the parenting and drug programs required by her reunification plan. She also said that she had been in a personal relationship with Javan for approximately one month. Wendy, who was 22 at the time of the hearing, had known Javan since she was 16. Javan was 23 years old at the time of the hearing.
Javan also testified at the March 20 hearing. In response to the question, "When was Zacharia born?" the following colloquy occurred: "I believe it was August she told me." "Of when?" "I'm not sure if it was '89 or '90; '89, I think." In response to the question of when Zacharia was conceived, Javan testified, "I believe it was '88; yeah, '88 or '89." Counsel inquired, "It sounds like you can't tie it down any closer than one year; is that right, '89 or '90?" "No."
Javan was also asked, "What was it exactly that ... compelled you suddenly to come forward?" He replied, "I thought it was time." Upon further inquiry, he explained, "She was losing her baby, why wouldn't I come forward?"
The court found that Zacharia could not be returned to Wendy because to do so would create a substantial risk of detriment to his physical and emotional well-being. The court further found that reasonable reunification services had been offered or provided to Wendy, and terminated those services. A section 366.26 permanency planning hearing was set for July 10, 1991.
On April 24, 1991, the results of Javan's blood tests were filed with the court. They revealed a 99.9 percent probability that Javan was Zacharia's *442 biological father. Javan's "18-month hearing,"[5] as referred to by the parties, was scheduled for April 25. However, on or about April 24, Javan was incarcerated for a probation violation resulting from a felony drug conviction.[6]
On May 8, 1991, the court granted Javan leave "to file any motions with respect to determination of parenthood" no later than May 21, 1991. On May 30, 1991, Javan filed a complaint to establish a parental relationship in the juvenile court. Javan sought custody and visitation rights. He was still incarcerated at this time. At a hearing held on this date, counsel stipulated that Javan was Zacharia's biological father.
On June 7, 1991, at Javan's "18-month review hearing," the court declared that Javan was Zacharia's natural father, and that a father-child relationship under Civil Code section 7006 existed.
At the hearing, several witnesses testified, including Lon Soltero, Zacharia's social worker. Soltero testified that prior to Javan, he had never had a case where a new father had come forward after the 18-month reunification period had expired. When Javan first claimed to be the father, Soltero was internally instructed by the County not to arrange for any visitations for Javan until it was determined "whether or not he had any right to a visit."
Once the blood test results were received at the end of April, Soltero asked Javan if he would like visitations with Zacharia. Javan said yes. Because Javan was incarcerated, Soltero suggested he avail himself of parenting and drug rehabilitation classes, "anything of that nature that might be available to him in jail." Soltero's "thinking was the sooner he gets going on that, the quicker possible reunification could take place." When asked if he had ever prohibited Javan from visiting Zacharia, Soltero answered, "No. In fact I have probably gone further than I should have" considering how little the County knew about Javan.
As of June 7, 1991, Javan had not requested that Zacharia visit him in jail, requested any reunification services, or taken either a parenting or drug *443 rehabilitation class. Soltero was not aware of any effort by Javan since he came forward to support Zacharia, give him any gifts, write him any letters, or make any inquiries as to Zacharia's needs, state of health, or what kind of child he was. In Soltero's opinion, if Javan committed himself to developing a relationship with Zacharia, to parenting classes and drug testing and counseling, and if he stabilized his income and place of residence, he might in six months be ready for a trial visit with, but not custody of, Zacharia.
Javan also testified at the June 7 hearing. He said that he had been living with Wendy at his mother's house since Thanksgiving 1990, and that they had plans to marry. When asked when he had decided to come forward as a father, he said, "I realized she was going to lose him at the 18-month review and I basically thought it was time, it was now or never." When asked whether he had attempted to find out whether Wendy was pregnant after their romantic interlude, Javan answered, "No, it didn't occur to me."
The juvenile court found pursuant to section 366.22, subdivision (a),[7] that Zacharia's return to Javan would create a substantial risk of detriment to Zacharia's physical and emotional well-being because Javan had no relationship with the child, had a long-standing debilitating drug problem, and planned to marry Wendy, a woman whose care of Zacharia had already been adjudicated detrimental to his well-being. The court also questioned whether Javan was sincerely motivated to act as a father.
As for the question of reunification services, the court found by clear and convincing evidence that reasonable reunification services had been offered or provided to Javan. In particular, the court stated that the County had no obligation to offer Javan reunification services until the court declared him a parent, which had not occurred until June 7 because of Javan's "own doing."[8] The court terminated reunification services, and set a section 366.26 hearing.
*444 Two and a half months prior to the October 24, 1991, section 366.26 hearing, Wendy gave birth to another child with Javan. Three weeks prior to the hearing, Wendy and Javan were married.
At the section 366.26 hearing, the court determined by clear and convincing evidence that Zacharia was likely to be adopted. The court further found that the prior finding that Zacharia could not be returned home was a sufficient basis on which to terminate parental rights. The court also found that the evidence did not prove by a preponderance that termination of parental rights would be detrimental to Zacharia, or that Zacharia would benefit from continuing a relationship with his parents, and therefore termination of parental rights was in Zacharia's best interests. Wendy's, Javan's, and Lee's parental rights were terminated.
Javan and Wendy appealed. The Court of Appeal reversed. In reviewing Javan's appeal, the court assumed that Javan, as the biological father, was entitled to receive reunification services before his parental rights could be terminated. The court held that the "undisputed evidence taken as a whole does not show Javan's delay [in coming forward] to be so egregious as a matter of law as to obviate the statutory requirement that he be offered reunification services."
The Court of Appeal then considered Javan's rights "given the unique posture of this case." The court observed that section 361.2, subdivision (a), provides that if a parent not residing with the minor at the time the conditions prompting the juvenile court to assume jurisdiction occur requests custody, "the court `shall' place the minor with that parent unless it finds placement would be detrimental." The court rejected the juvenile court's bases for finding detriment under section 366.22, concluding Javan had never had an opportunity to establish a relationship with Zacharia, there was no finding that Javan's long-standing drug problem alone supported a finding of detriment, and there was no demonstration that Javan had failed to or *445 was unable to protect Zacharia from whatever harm Wendy might do. "Accordingly, there being no sufficient finding of detriment, Zacharia must be placed ... with Javan under section 361.2." In denying a subsequent petition for rehearing, the court emphasized that Zacharia must be placed with Javan immediately.[9]
The court concluded that its disposition of Javan's appeal obviated any need to address those issues raised by Wendy. The court noted that "termination of parental rights pursuant to section 366.26 requires `clear and convincing evidence that it is likely that the minor will be adopted'" and there was no such evidence given its ruling concerning Javan. Hence, it also reversed the juvenile court's order terminating Wendy's parental rights.
Zacharia and the County separately petitioned for review.[10] We granted their petitions to decide whether one who is a biological but not a presumed father is entitled to reunification services under section 361.5, and whether such services may be requested for the first time after the 18-month review hearing. We further decide whether a biological but nonpresumed father is entitled to immediate placement of the minor in his custody under section 361.2, and whether that section is applicable 20 months after the child is removed from the custodial parent's home.[11]
II. DISCUSSION
A. Background on Reunification Services
We recently delineated in detail the procedure in dependency proceedings in Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 [19 Cal. Rptr.2d 698, 851 P.2d 1307] and In re Marilyn H. (1993) 5 Cal.4th 295 [19 Cal. Rptr.2d 544, 851 P.2d 826]. A brief overview of the policies and procedures regarding reunification services, however, is helpful to an understanding of the issues presented here.
*446 "The Legislature has recognized that a parent who has a child removed for neglect, abuse or substantial risk thereof, in most cases should be provided with services to assist the parent in overcoming the problems that led to removal. (§ 361.5.) It has also recognized that, in order to prevent children from spending their lives in the uncertainty of foster care, there must be a limitation on the length of time a child has to wait for a parent to become adequate." (In re Marilyn H., supra, 5 Cal.4th at p. 308.) "[O]nce court intervention is determined necessary, children and parents should receive appropriate legal representation, time-limited and clearly focused protective and/or reunification services, and permanency planning at the earliest possible stage for those children who cannot live safely with their family." (Sen. Select Com. on Children & Youth, SB 1195 Task Force Rep. on Child Abuse Reporting Laws, Juvenile Court Dependency Statutes, and Child Welfare Services (Jan. 1988) p. 2, italics added.)
In developing parameters on the reunification process, "the Legislature balanced numerous competing fundamental interests, including the child's compelling interest in `a placement that is stable, permanent, and which allows the caretaker to make a full emotional commitment to the child,' the parents' compelling `interest in the companionship, care, custody and management' of their child (In re Marilyn H., supra, 5 Cal.4th at p. 306), and the `preservation of the family whenever possible....' (§ 300, subd. (j).)" (In re Matthew C., ante, 386, at p. 400 [24 Cal. Rptr.2d 765, 862 P.2d 765].) "As we have often recognized, the Legislature is in the best position to weigh such diverse and competing concerns and devise an appropriate statutory scheme." (Ibid.)
Accordingly, while the dependency scheme generally requires that parents be offered reunification services, the Legislature has limited those services to "a maximum time period not to exceed 12 months," which under certain circumstances may be extended to 18 months.[12] (§ 361.5, subd. (a).) This 18-month period is calculated from "the date the child was originally taken from the physical custody of his or her parent...." (§ 366.21, subd. (g)(1).) The reunification period may be as short as six months, and in some dependency cases there may be no reunification period at all. (See §§ 366.21, subd. (e), 361.5, subd. (b); In re Troy Z. (1992) 3 Cal.4th 1170, 1177 [13 Cal. Rptr.2d 724, 840 P.2d 266].) The reunification period is expressly not tolled by the parents' physical custody of the child, or by the parents' absence or incarceration. (§ 361.5, subds. (a), (d) & (e)(1).)
*447 The juvenile court must review the case at least once every six months. (§ 366.) Under current law, "At the review hearings the state must ... present evidence that reasonable reunification services have been provided to the parent." (In re Marilyn H., supra, 5 Cal.4th at p. 308.) "If the child may not safely be returned to the parents within a maximum of 18 months from removal," the court must terminate reunification efforts and set a section 366.26 selection and implementation hearing. (Ibid.; §§ 366.21, subd. (f), 366.22, subd. (a).) "Prior to terminating reunification services, the court must make a determination that it would be detrimental to the child to be returned to the parent's custody." (In re Marilyn H., supra, 5 Cal.4th at p. 308.) "[T]he proceeding terminating reunification services and setting a section 366.26 hearing is generally a party's last opportunity to litigate the issue of parental fitness as it relates to any subsequent termination of parental rights, or to seek the child's return to parental custody." (In re Matthew C., supra, ante, at p. 392.) If there is clear and convincing evidence that the child will be adopted, and there has been a previous determination that reunification services should be ended, termination of parental rights at the section 366.26 hearing is relatively automatic. (Cynthia D., supra, 5 Cal.4th at pp. 249-250.)
"[U]p until the time the section 366.26 hearing is set, the parent's interest in reunification is given precedence over a child's need for stability and permanency." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) "Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (Id. at p. 309.) "The burden thereafter is on the parent to prove changed circumstances pursuant to section 388 to revive the reunification issue. Section 388 provides the `escape mechanism' that ... must be built into the process to allow the court to consider new information." (Ibid.)
B. Entitlement of Biological Father to Reunification
1. Definition of "Parent"
Section 361.5, subdivision (a), added to the Welfare and Institutions Code in 1986 by Senate Bill No. 1195, 1985-1986 Regular Session, provides: "Except as provided in subdivision (b), whenever a minor is removed from a parent's or guardian's custody, the juvenile court shall order the probation officer to provide child welfare [reunification] services to the minor and the minor's parents or guardians for the purpose of facilitating reunification of *448 the family within a maximum time period not to exceed 12 months[[13]].... Services may be extended up to an additional six months if it can be shown that the objectives of the service plan can be achieved within the extended time period."
Neither in this section nor anywhere else in the child dependency statutes, or in the legislative history to Senate Bill No. 1195,[14] does the Legislature define, although it often uses, the word "parent." In fact, "parent" is the only word used in the dependency statutes up until the point where the statutes begin to address the section 366.26 hearing, or the hearing at which parental rights may be terminated. Courts have concluded that the word "parent" in the dependency statutes does not include de facto or stepparents. (See In re Jodi B. (1991) 227 Cal. App.3d 1322, 1328-1329 [278 Cal. Rptr. 242] [stepparent is not a "parent" for purposes of reunification]; In re Jamie G. (1987) 196 Cal. App.3d 675, 679, 684 [241 Cal. Rptr. 869] [de facto parents not "parents" entitled to further reunification services].)
Once the dependency statutes address the issue of possible termination of parental rights, they begin to differentiate between the rights of "presumed," "natural," and "alleged" fathers. The first occurrence of this distinction is in section 366.23, subdivision (a), which provides that both presumed and alleged fathers are entitled to notice of the section 366.26 hearing at which parental rights may be terminated. In addition, section 366.26, subdivision (i), refers to "natural" parents, and section 366.26, subdivision (a), expressly incorporates Civil Code section 7017, which uses the terms "natural" and "presumed" father.
The word "parent" is defined in the Uniform Parentage Act (UPA), Civil Code section 7000 et seq. In particular, the UPA "distinguishes between a `presumed father' and one who is merely a `natural father'" (Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 790 [218 Cal. Rptr. 39, 705 P.2d 362], superseded on other grounds by statute), "according presumed fathers *449 greater rights than natural fathers."[15] (In re Shereece B., supra, 231 Cal. App.3d at p. 622; see In re Sarah C. (1992) 8 Cal. App.4th 964, 974 [11 Cal. Rptr.2d 414] ["parental rights are generally conferred on a man not merely based on biology but on the father's connection to the mother [and/or] child through marriage (or attempted marriage) or his commitment to the child"]; cf. Adoption of Kelsey S., supra, 1 Cal.4th at p. 844 ["it is clear that Legislature meant to provide natural fathers with far less rights than both mothers and presumed fathers have under California's statutory system"].) Under Civil Code section 197,[16] both the mother and presumed father, but not the natural father, "are entitled to custody of their minor children." (In re Baby Girl M., supra, 37 Cal.3d at pp. 71, 72; see In re Shereece B., supra, 231 Cal. App.3d at p. 622 [presumed, not natural, father entitled to custody]; In re Kelvin M. (1978) 77 Cal. App.3d 396, 399-400, 403 [143 Cal. Rptr. 561] [presumed father entitled to custody under Civil Code section 197 and hence due process requires opportunity to be heard at dependency jurisdictional hearing].)
In order to become a presumed father, a man must fall within one of several categories enumerated in Civil Code section 7004, subdivision (a). The only relevant category in this case is section 7004, subdivision (a)(4), which provides that a natural father may become a presumed father if "[h]e receives the child into his home and openly holds out the child as his natural child." (See In re Phoenix B. (1990) 218 Cal. App.3d 787, 790, fn. 3 [267 Cal. Rptr. 269]; id. at p. 792 [presumed father status achieved when alleged father "came forward when the Department instituted dependency proceedings, offered to care for his daughter, took her into his home and ... held her out as his child"].) The "superior court ha[s] the authority to grant [a biological father] custody of his child so that he [can] qualify as a presumed father under section 7004, subdivision (a)."[17] (Adoption of Kelsey S., supra, 1 Cal.4th at p. 842; see Michael U. v. Jamie B., supra, 39 Cal.3d at p. 791 [if *450 natural father "actually acquired physical custody, he could receive [the child] into his home and thereby acquire the status of a presumed father"]; Civ. Code, § 7010, subd. (c).)[18]
In addition, in Adoption of Kelsey S., supra, 1 Cal.4th 816, we held that "section 7004, subdivision (a) and the related statutory scheme violates the federal constitutional guarantees of equal protection and due process for unwed fathers to the extent that the statutes allow a mother unilaterally to preclude her child's biological father from becoming a presumed father and thereby allowing the state to terminate his parental rights on nothing more than a showing of the child's best interest." (Id. at p. 849, italics in original.) Under such circumstances, "[i]f an unwed [biological] father promptly comes forward and demonstrates a full commitment to his parental responsibilities emotional, financial, and otherwise his federal constitutional right to due process prohibits the termination of his parental relationship absent a showing of his unfitness as a parent." (Ibid.)[19]
In "emphasiz[ing] the narrowness of our decision," we stated that the "statutory distinction between natural fathers and presumed fathers is constitutionally invalid only to the extent it is applied to an unwed father who has sufficiently and timely demonstrated a full commitment to his parental responsibilities. Our statutes (§§ 7004 & 7017, subd. (d)(2)) are constitutionally sufficient when applied to a father who has failed to make such a showing." (Adoption of Kelsey S., supra, 1 Cal.4th at pp. 849-850, italics in original.)
Here, we examine only a biological father's right to reunification services and custody, not the standard under which his parental rights are terminated. *451 As in the adoption context addressed in Kelsey S., however, a biological father's paternal rights may ultimately be terminated in the dependency process. Such termination is almost inevitable if a father is not involved in the dependency process prior to the section 366.26 hearing. The issue would arise therefore, under facts not presented here, whether the statutory distinctions between biological and presumed fathers are unconstitutional as applied to a biological father who is precluded from attaining presumed father status by the mother or a third party, but who comes forward early in the dependency process, and who displays a commitment consistent with the standard set forth in Kelsey S. Extending Kelsey S. to apply in the dependency context would allow such a father to participate as a "parent" in, or end the need for, the dependency proceedings. However, under no view of the evidence did Javan demonstrate such a commitment, or satisfy any of the Kelsey S. criteria during the relevant period in this case. Nor does Javan claim he was precluded from attaining presumed father status by Wendy or any third party. Thus, we need not address this constitutional issue here.
2. Application of the UPA Definition Here
(1) The dependency statutes do not expressly incorporate the definitions of "parent" from the UPA. Such an incorporation, however, can be fairly implied by the use of the terms "presumed," "natural," and "alleged" father in sections 366.23 and 366.26. Applying the UPA definition to the dependency context, we conclude that only a presumed, not a mere biological, father is a "parent" entitled to receive reunification services under section 361.5. (See In re Sarah C., supra, 8 Cal. App.4th at pp. 974-975.)
Under Civil Code section 197, only a presumed father is entitled to custody of his child; custody is the consequence of either a successful reunification plan or a placement of the child with the father under section 361.2. Moreover, the Legislature uses the word "parent" at all times prior to the sections regarding termination of parental rights, and only then differentiates among alleged, natural, and presumed fathers. We are reluctant to conclude that the Legislature's use of different terms, at different times in the statutory scheme, is meaningless. Finally, interpreting "parent" to include a strictly biological father would introduce into the dependency context fathers who had never demonstrated any commitment to the child's welfare. (Cf. Adoption of Kelsey S., supra, 1 Cal.4th at p. 838 ["biological connection between father and child is unique and worthy of constitutional protection if the father grasps the opportunity to develop that biological connection into a full and enduring relationship"].) Indeed, such an interpretation would arguably grant "reunification services to a rapist or an anonymous sperm donor." (In re Sarah C., supra, 8 Cal. App.4th at p. 975.)
*452 Here, Javan failed to achieve presumed father status. The Court of Appeal therefore erred in concluding that he was a "parent" entitled to receive reunification services. We now address the effect of the 18-month limitation on reunification services on a biological father's efforts to attain presumed father status and receive the benefit of such services with his child.
C. Effect of 18-Month Limit on Reunification
As we noted earlier, the Legislature has statutorily limited reunification services to "a maximum time period not to exceed 12 months," which under certain circumstances may be extended to 18 months. (§ 361.5, subd. (a).) The 18-month period is not tolled by the parents' physical custody of the child, or by the parents' absence or incarceration. (§ 361.5, subds. (a), (d) & (e)(1).)
What all of these express nontolling events have in common is that they prevent a parent's unilateral action from impeding a child's permanent and timely placement. (2) We conclude that the 18-month period is therefore also not extended, under the circumstances of this case, by an alleged father's own failure to ascertain the existence of his child, or by his decision to wait until the 18-month hearing to assert his paternity claim.
Here, Javan engaged in at least a dozen acts of sexual intercourse with Wendy over a two-week period. There is no evidence that he had any reason to expect that this sexual relationship had not resulted in pregnancy. Rather, Javan testified that this possibility "didn't occur to [him]." There is also no evidence that Wendy ever hid herself, her pregnancy, or their child from Javan. Javan knew where Wendy was living after November of 1988, and "could have found her." In fact, Javan and Wendy had known each other many years, had been high school sweethearts, and eventually were married. Javan's ignorance of Zacharia's existence was born not of malevolence on the part of Wendy or the County, but of his own indifference.
While under normal circumstances a father may wait months or years before inquiring into the existence of any children that may have resulted from his sexual encounters with a woman, a child in the dependency system requires a more time-critical response. Once a child is placed in that system, the father's failure to ascertain the child's existence and develop a parental relationship with that child must necessarily occur at the risk of ultimately losing any "opportunity to develop that biological connection into a full and enduring relationship." (Adoption of Kelsey S., supra, 1 Cal.4th at p. 838.)
Here, the County did not know of or have reason to suspect Javan's paternity claim during Zacharia's first 19 months. While the dependency *453 statutes require the County to make an effort to locate absent parents, the County in this case had no reason to suspect Zacharia had an absent "parent." Lee, the man named as Zacharia's father on his birth certificate, who had been involved with Wendy for the preceding four years, and had welcomed Zacharia into his home and acknowledged him as his son, was Zacharia's presumed father within the meaning of Civil Code section 7004. Once a presumed father has been identified, neither the child nor the social services agency may reasonably be expected to wait for other potential fathers to come forward. Thus, to the extent the County had a duty to ascertain who Zacharia's parents were, and provide them reunification services, they appear to have satisfied that obligation in this case. Indeed, Javan does not contend that prior to March 1991, the County failed to satisfy any obligation to ascertain his existence and give him notice of the dependency proceedings.
In sum, if a man fails to achieve presumed father status prior to the expiration of any reunification period in a dependency case, whether that period be 6, 12, or 18 months as in this case, he is not entitled to such services under section 361.5. Here, Javan failed to achieve such status prior to the termination of reunification services. Rather, he waited until the 18-month hearing before even asserting his alleged father status, and his biological paternity was not judicially established until several months later. His only remedy, therefore, was to file a motion to modify under section 388. We discuss this issue further below in part II.E.
D. Zacharia's Immediate Placement With Javan
(3) The Court of Appeal sua sponte ordered Zacharia's immediate placement with Javan pursuant to section 361.2, subdivision (a). This section, also added to the Welfare and Institutions Code in 1986 by Senate Bill No. 1195, provides that when a minor is ordered removed "pursuant to Section 361, the court shall first determine whether there is a parent of the minor, with whom the minor was not residing ..., who desires to assume custody of the minor. If such a parent requests custody the court shall place the minor with the parent unless it finds that placement with that parent would be detrimental to the minor."
Nothing in this statute suggests that custody must be immediately awarded to a noncustodial parent regardless of when in the dependency process the parent comes forward. Rather, its language suggests that the statute is applicable only at the time the child is first removed from the custodial parent or guardian's home. Our interpretation is reinforced by the absence of a similar provision requiring return of the child to a noncustodial parent in *454 the statutes governing the 6-, 12-, and 18-month review hearings. Here, Javan's paternity was not even judicially determined until 20 months after Zacharia was removed from Wendy's and Lee's custody.
Moreover, the statute's use of the words "parent" and "custody" indicate that as in section 361.5 discussed above, only a presumed father is entitled to assume immediate custody. Javan clearly had not achieved such status at the time Zacharia was removed from Wendy's and Lee's custody.
Finally, even if section 361.2 did apply at this late stage of the proceedings, the statute assumes the existence of a competent parent able to immediately assume custody. Javan met no such standard. First, he could not be a "noncustodial" parent because he was, when he was not incarcerated, by his own testimony living with and planning to marry Wendy. Moreover, he was incarcerated for drug use at the time he requested custody and at the June 7 hearing. In addition, according to the uncontroverted testimony of Zacharia's social worker, as of June 7, Javan required at least six months of services before he could even attain the parental competence to be able to visit Zacharia, let alone have custody of him.
Under the Court of Appeal's rationale, whenever a biological father comes forward, his child must be automatically placed with him absent a finding of detriment. This presumptive right to custody elevates the rights of a biological father above the child's interest in stability and permanency, and defeats the Legislature's careful balance of interests reflected in the time frame of the dependency laws. We conclude that under the circumstances of this case, section 361.2 was inapplicable, and the Court of Appeal's order requiring Zacharia's immediate placement with Javan pursuant to this section was therefore erroneous.
E. Section 388 Motion
(4) While a biological father is not entitled to custody under section 361.2, or reunification services under section 361.5 if he does not attain presumed father status prior to the termination of any reunification period, he may move under section 388[20] for a hearing to reconsider the juvenile court's earlier rulings based on new evidence or changed circumstances. *455 (See In re Marilyn H., supra, 5 Cal.4th at p. 309 [once reunification services terminated, burden on parent "to prove changed circumstances pursuant to section 388 to revive the reunification issue"]; Cal. Rules of Court, rule 1432.) "Section 388 provides the `escape mechanism' that ... must be built into the process to allow the court to consider new information." (In re Marilyn H., supra, 5 Cal.4th at p. 309.)
(5) Javan never filed a motion under section 388. However, he did seek custody and visitation rights in his petition to be declared Zacharia's father. Moreover, his counsel impliedly requested reunification services at the June 7 hearing by requesting a continuance so that the County could ascertain what reunification services Javan would require.
In denying these requests, the juvenile court applied the standard applicable to 18-month review hearings set forth in section 366.22, subdivision (a). That section provides: "[A]t the 18-month hearing, [the court] shall order the return of the minor to the physical custody of his or her parent or guardian unless, by a preponderance of the evidence, it finds that return of the child would create a substantial risk of detriment to the physical or emotional well-being of the minor." In making its determination, the court is to review the probation officer's report, review and consider the report and recommendations of any appointed child advocate, and consider the extent to which the parent cooperated and availed himself of the services provided. (§ 366.22, subd. (a).) This "substantial risk of detriment" standard is arguably more stringent than the "best interests of the child" standard of section 388.
The juvenile court concluded that Zacharia's return to Javan would create a substantial risk of detriment to Zacharia's physical and emotional well-being because Javan had no relationship with the child, had a long-standing drug problem, and planned to marry Wendy, a woman whose care of Zacharia had already been adjudicated detrimental to his well-being. The court also questioned whether Javan had demonstrated sufficient motivation to act as a father. In addition, we note that at this time Javan was incarcerated for drug use, and required at least six months of services before he would attain the parental competence to be able to visit, let alone have custody of Zacharia. Javan had done almost nothing to develop a relationship with Zacharia, and had only vague plans of how he would care for him. Indeed, Javan's articulated impetus for coming forward was not one based on Zacharia's needs and interests, but rather on Wendy's impending loss of parental rights.
*456 The juvenile court's finding of substantial risk of detriment under section 366.22, subdivision (a), which was supported by substantial evidence, indicates that it would have likewise found under section 388 that it was not in Zacharia's best interests to grant Javan reunification services or custody.
CONCLUSION
Contrary to the conclusion of the Court of Appeal, the juvenile court properly concluded that Javan was not entitled to either reunification services under section 361.5 or custody. Moreover, the juvenile court's implied finding that it was not in Zacharia's best interests to grant Javan reunification services or custody was supported by substantial evidence.
Because we conclude the Court of Appeal erred in determining that Javan was entitled to reunification services and immediate custody of Zacharia, and because Wendy has not appeared in this court, we further conclude that the Court of Appeal's judgment reversing the order terminating her parental rights was likewise in error.
Accordingly, the judgment of the Court of Appeal is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
Lucas, C.J., Mosk, J., Panelli, J., Kennard, J., Baxter, J., and George, J., concurred.
Appellants' petition for a rehearing was denied February 24, 1994.
NOTES
[1] All statutory references contained herein are to the Welfare and Institutions Code unless otherwise indicated.
[2] Javan testified that it could have been as early as October that he saw the photographs and suspected Zacharia was his child.
[3] On June 29, Lee confirmed in writing that he wished to relinquish any "claims I may have to" Zacharia, and his parental rights were subsequently terminated.
[4] No party objected on the ground that Javan lacked standing to request a paternity determination. Moreover, a juvenile court has authority to "make a finding of paternity of a child regarding whom a petition has been filed under section[] 300...." (Cal. Rules of Court, rule 1412(l); see In re Lisa R. (1975) 13 Cal.3d 636, 643-644 [119 Cal. Rptr. 475, 532 P.2d 123, 90 A.L.R.3d 1017].)
[5] The dependency statutes provide for an 18-month review hearing to review the parent-child reunification efforts, and the possibility of returning the child to the parent's custody. Since Javan had never been a party to the dependency proceedings concerning Zacharia, requested or received reunification services, or even attempted to establish his paternity prior to March 1991, the term "18-month hearing" was inappropriately used in this context. Rather, the hearing set in response to the blood test results was more along the lines of a hearing on a motion to modify under section 388 an earlier ruling of the juvenile court on the basis of new evidence or changed circumstances. (See, post, pt. II.E.)
[6] Javan had "missed a couple tests and had one dirty test" and conceded he had used drugs while on probation. The underlying conviction was for possession and being under the influence of methamphetamine. Javan also had one other prior conviction for possession of crystal methamphetamine.
[7] Section 366.22 governs a juvenile court's findings at the 18-month hearing. As noted earlier, the June 7 hearing was not properly denoted an 18-month hearing. Rather, as discussed more fully in part II.E., post, because reunification services had already been terminated, Javan's remedy was a motion under section 388.
[8] The court stated in part: "[Your attorney] talked about your taking action when you first had a glimmer that this child might be yours. Okay, I think the most relevant glimmer from the point of view of this case is the one you had in your eye back around November of 1988, and I say that not to be silly, because I really think that is where this case begins.... Men on this planet for several million years have with impunity planted their seeds and then moved on.... And if you do that, as you did here, ... [i]f you have sexual intercourse with a woman of child-bearing years ... you have good cause to believe that you may have just created a human being.... So you as a male human being, if you want to protect your rights as a father, I think you've got to keep in touch.... So if you don't keep in touch with a woman with whom you have had intercourse, then you are putting yourself at risk to be a day late and a dollar short. So the real glimmer doesn't start here when you decide or when you look at a picture and say, `Boy, you know, that could be my twin.' All right. The glimmer starts and your responsibility begins when you have intercourse with her.... And that is the position I am taking here.... [I]f you are really a sincere guy and you want to put on the cloak of fatherhood, then you should have run down here, not walked. Instead, what you did is you played a little strategy game and decided, well, it's not until push comes to shove and maybe mom is going to get her rights cut off that you will come forward. Your choice, your strategy, but you burned up maybe five months of time that would have made you look a lot better. So my conclusion is that you really haven't acted like a guy who should be considered as a real candidate for fatherhood so far. So there has been no obligation to offer you services up to now and it is your own fault."
The court also found that Javan knew where Wendy was living after November 1988, and "could have found her," and that Wendy did not hide Zacharia from Javan.
[9] The record does not indicate whether or not Zacharia was, in fact, placed in Javan's custody. In response to this court's inquiry, we have been informed by Zacharia's counsel that Zacharia remains in the foster-adoptive home in which he was placed several months prior to the Court of Appeal's decision.
[10] Counsel was appointed for Javan in this court, and he filed answer briefs in response to the opening briefs of Zacharia, the County, and amicus curiae San Diego County. Wendy, however, has never sought appointment of counsel or otherwise appeared in this court. Nor did she join in Javan's briefs. Accordingly, we conclude that Wendy is not contesting the position of Zacharia, the County, and San Diego County that the juvenile court's order terminating her parental rights should be affirmed.
[11] In his answers to the petitions for review, Javan requested that if review were granted, this court also consider certain additional issues, none of which were addressed by the Court of Appeal. Prior to oral argument, we issued an order limiting the issues to those raised in the petitions for review. (See Cal. Rules of Court, rule 29.2(b).)
[12] Under section 366.3, if a juvenile court does not terminate parental rights, but "orders a permanent plan of adoption or legal guardianship pursuant to Section 366.25 or 366.26," further reunification services may be provided. (§ 366.3, subds. (a), (b) & (c).) Here, however, the juvenile court terminated the parental rights of Javan, Wendy, and Lee. We therefore need not address the rights, if any, of a mere biological father with respect to such further reunification services.
[13] Section 361.5, subdivision (b), contains certain exceptions pursuant to which a juvenile court may refuse to order reunification services. When in this opinion we discuss the definition of who is a "parent," it is for the purpose of determining who is, absent these exceptions, entitled to reunification services under section 361.5. We do not imply that once someone is found to be a "parent," the juvenile court is without discretion to deny reunification services under these or any other exceptions.
[14] In this regard, we have consulted the legislative history of both section 361.5 and section 361.2 (see, post, pt. II.D.), obtained by this court from the state archives. In addition, we have reviewed the legislative history of various dependency statutes contained in Zacharia's March 3, 1993, request for judicial notice. That request is hereby granted.
[15] A biological or natural father is one whose biological paternity has been established, but who has not achieved presumed father status as defined in Civil Code section 7004. (In re Baby Girl M. (1984) 37 Cal.3d 65, 72, fn. 5 [207 Cal. Rptr. 309, 688 P.2d 918], superseded on other grounds by statute; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 823, fn. 3 [4 Cal. Rptr.2d 615, 823 P.2d 1216].) A man who may be the father of a child, but whose biological paternity has not been established, or, in the alternative, has not achieved presumed father status, is an "alleged" father. (See In re Shereece B. (1991) 231 Cal. App.3d 613, 620-621 [282 Cal. Rptr. 430].)
[16] Civil Code section 197 provides that "The mother of an unmarried minor child is entitled to its custody, services and earnings. The father of the child, if presumed to be the father under subdivision (a) of Section 7004, is equally entitled to the custody, services and earnings of the unmarried minor. If either the father or mother be dead or unable or refuse to take the custody or has abandoned his or her family, the other is entitled to its custody, services and earnings." (Italics added.)
[17] Such an order in the dependency context would be made pursuant to a motion under section 388. (See, post, pt. II.E.)
[18] Under Civil Code section 7004, subdivision (a)(4), it is possible for a man to achieve presumed father status, with its attendant rights and duties, without being the biological father. The UPA allows for the presumption of paternity that arises under Civil Code section 7004, subdivision (a)(4) to be "rebutted by a court decree establishing paternity of the child by another man." (Civ. Code § 7004, subd. (c); see In re Olivia H. (1987) 196 Cal. App.3d 325, 330 [241 Cal. Rptr. 792].)
That is the scenario in this case. Lee was named on the birth certificate as Zacharia's father, received Zacharia into his home and openly held him out as his natural child. Lee was thus accorded reunification services and visitation rights as Zacharia's presumed father. Ultimately, this presumption was rebutted by blood tests establishing that Javan was the biological father.
[19] In determining whether a biological father has demonstrated such a commitment, "[t]he father's conduct both before and after the child's birth must be considered. Once the father knows or reasonably should know of the pregnancy, he must promptly attempt to assume his parental responsibilities as fully as the mother will allow and his circumstances permit. In particular, the father must demonstrate `a willingness himself to assume full custody of the child not merely to block adoption by others.'" (Adoption of Kelsey S., supra, 1 Cal.4th at p. 849, italics in original.) "A court should also consider the father's public acknowledgement of paternity, payment of pregnancy and birth expenses commensurate with his ability to do so, and prompt legal action to seek custody of the child." (Ibid., fn. omitted.)
[20] Section 388 provides that "Any parent or other person having an interest in a child who is a dependent child of the juvenile court or the child himself through a properly appointed guardian may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court for a hearing to change, modify, or set aside any order of court previously made or to terminate the jurisdiction of the court. The petition shall be verified and, if made by a person other than the child, shall state the petitioner's relationship to or interest in the child and shall set forth in concise language any change of circumstance or new evidence which are alleged to require such change of order or termination of jurisdiction. [¶] If it appears that the best interests of the child may be promoted by the proposed change of order or termination of jurisdiction, the court shall order that a hearing be held and [notice given]...." (Italics added.)
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940 F.2d 677
Unpublished DispositionNOTICE: Federal Circuit Local Rule 47.8(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order.Judith E. WALKER, Petitioner,v.DEPARTMENT OF HEALTH & HUMAN SERVICES, Respondent.
No. 91-3224.
United States Court of Appeals, Federal Circuit.
July 22, 1991.
Before NIES, Chief Judge, and PAULINE NEWMAN and PLAGER, Circuit Judges:
Judgment
PER CURIAM.
1
AFFIRMED. See Fed.Cir.R. 36.
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Issues Raised by Foreign Relations Authorization Bill
P ro v isio n in foreign relations authorization bill conditioning an authorization fo r ap p ro p ria
tions on th e requirem ent that an entity controlled by the legislative branch be included at
C onference on Security and C ooperation in E urope negotiations would u n constitutionally
infringe on the P resident’s exclusive authority to conduct negotiations on beh alf o f the
U nited S tates abroad and unconstitutionally deprive the President o f his co n stitutionally-
m andated control over the disclosure o f the content o f negotiations.
T h e unconstitutional condition may be severed from the rem ainder o f the provision authorizing
appropriations and the rest o f the bill.
A t least in the context o f legislation that infringes on the separation o f pow ers, the P resident has
the constitutional authority to refuse to enforce a statutory provision that he believes is
u nconstitutional. B ecause this unconstitutional requirem ent is severable, the P resident m ay
enforce the rem ainder o f th e provision, while refusing to enforce the unconstitutional portion.
February 16, 1990
M em orandum O p in io n f o r t h e C o u n sel to the P r e s id e n t
This memorandum is in response to your request for this Office’s opinion
on several issues raised by section 102(c) of H.R. 3792*, the foreign rela
tions authorization bill for fiscal years 1990 and 1991. Specifically, you
asked whether section 102(c)(2) is unconstitutional; whether it is severable
from the rest of H.R. 3792; and whether the President may decline to en
force it. As set forth in greater detail below, we believe that section 102(c)(2)
is plainly unconstitutional. We further believe that it is severable from sec
tion 102(c)(1) and the rest of H.R. 3792. Under the circumstances, we
believe that if the President chooses to sign H.R. 3792, he would be consti
tutionally authorized to decline to enforce section 102(c)(2).
Analysis
1. Section 102(c)(2) Unconstitutionally Infringes on the P resid en t’s
E xclusive A u thority to C onduct N egotiations on B e h a lf o f the
United States
37
Section 102(c) provides:
(c) INTERNATIONAL CONFERENCES AND CONTIN
GENCIES. — (1) There are authorized to be appropriated for
“International Conferences and Contingencies”, $6,340,000 for
the fiscal year 1990 and $7,300,000 for the fiscal year 1991
for the Department of State to carry out the authorities, func
tions, duties, and responsibilities in the conduct of the foreign
affairs of the United States with respect to international con
ferences and contingencies and for other purposes authorized
by law.
(2) None of the funds authorized to be appropriated under
paragraph (1), may be obligated or expended for any United
States delegation to any meeting of the Conference on Secu
rity and Cooperation in Europe (CSCE) or meetings within
the framework of the CSCE unless the United States delega
tion to any such meeting includes individuals representing the
Commission on Security and Cooperation in Europe.
The Commission on Security and Cooperation in Europe (the “Commis
sion”) is an entity controlled by the legislative branch. The Commission
consists of twenty-one members, eighteen of whom are drawn from the houses
o f Congress, three of whom are appointed by the President. 22 U.S.C. §
3003(a). The Commission is deemed to be a standing committee of Con
gress for the purpose of receiving disbursements of foreign currencies, see
id. § 3007(b), and Commission employees are considered congressional em
ployees, id. § 3008(d).
It is abundantly clear that section 102(c)(2), by purporting to require the
President to include “individuals representing the Commission” as part of a
delegation charged with conducting international negotiations, is unconstitutional.
The President possesses broad authority over the Nation’s diplomatic af
fairs. That authority flows from his position as head o f the unitary Executive
and as Commander in Chief. E.g., U.S. Const, art. II, §§ 1, 2 & 3; Haig v.
Agee, 453 U.S. 280, 291-92 (1981); Baker v. Carr, 369 U.S. 186, 212, 213
(1962); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319-20
(1936). Article II, Section 2 o f the Constitution also gives the President the
specific authority to “appoint Ambassadors, other public Ministers and Con
suls.” These constitutional provisions authorize the President to determine
the form and manner in which the United States will maintain relations with
foreign nations, and further to determine the individuals who will conduct
those relations. Section 102(c)(2) of the bill is thus clearly unconstitutional,
on two specific and distinct grounds.
38
First, the courts, the Executive and Congress have all concurred that the
President’s constitutional authority specifically includes the exclusive author
ity to represent the United States abroad. A's the Supreme Court held in
Curtiss-Wright, speaking of the “federal power over external affairs”:
In this vast external realm, with its important, complicated,
delicate and manifold problems, the President alone has the
power to speak or listen as a representative of the nation. He
makes treaties with the advice and consent of the Senate; but
he alone negotiates. Into the field of negotiation the Senate
cannot intrude; and Congress itself is powerless to invade it.
299 U.S. at 319 (emphasis omitted). The Court’s opinion is directly appli
cable here: “the President alone has the power to speak or listen as a
representative of the nation. . . . [H]e alone negotiates.” Id. (emphases
added). The Court went on to describe the President’s authority in the realm
of foreign affairs as
the very delicate, plenary and exclusive power of the Presi
dent as the sole organ of the federal government in the field
of international relations—a power which does not require as a
basis for it’s exercise an act of Congress . . . .
Id. at 320.
Such authority “in the field of international relations” must self-evidently
include the President’s power to select his subordinates, who will speak as
the President’s assistants or agents in the realm of foreign affairs. James
Madison observed in the First Congress that: “No person can be forced
upon [the President] as an assistant by any other branch of the Government.”
The First Congress 190 (Robert P. Williams ed. 1970).
Justice Nelson relied upon the President’s primacy in foreign affairs in
dismissing a civil action for damages brought against the commander of an
American gun ship that had bombarded a town in Nicaragua where a revolu
tionary government had engaged in violence against American citizens and
their property:
As the executive head of the nation, the president is made
the only legitimate organ of the general government, to open
and carry on correspondence or negotiations with foreign na
tions, in matters concerning the interests of the country or of
its citizens.
39
D urand v. Hollins, 8 F. Cas. I l l , 112 (C.C.S.D.N.Y. .1860) (No. 4186). In
Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.), rev’d on other grounds, 444
U.S. 996 (1979), the Court o f Appeals for the District of Columbia Circuit
stated that: “The subtleties involved in maintaining amorphous relationships
are often the very stuff of diplomacy — a field in which the President, not
Congress, has responsibility under our Constitution.” Id. at 708. Section
102(c)(2) plainly conflicts with that fundamental constitutional command.
From the earliest days o f the Republic the executive branch has made
clear that it controls the representation of the foreign policy of the United States.
In 1790, Secretary of State Thomas Jefferson made the point emphatically:
The transaction of business with foreign nations is Executive
altogether. It belongs then to the head of that department,
except as to such portions of it as are specially submitted to
the Senate. Exceptions are to be construed strictly.
Opinion on the Powers of the Senate Respecting Diplomatic Appointments,
April 24, 1790, reprinted in 16 Papers o f Thomas Jefferson 378, 379 (Julian
P. Boyd ed„ 1961).
Jefferson made this point with even greater specificity in rebuking Citi
zen Genet for attempting to present a consul whose commission was addressed
to the Congress of the United States. Jefferson emphatically declared that
the President is
the only channel of communication between this country and
foreign nations, it is from him alone that foreign nations or their
agents are to learn what is or has been the will of the nation,
and whatever he communicates as such, they have a right and
are bound to consider as the expression of the nation.
Jefferson to Edmond C. Genet, November 22, 1793, reprinted in 9 The Writ
ings o f Thomas Jefferson 256 (Albert E. Bergh ed. 1903).
In modem times Presidents have also asserted their authority to control
negotiations. President Bush based his 1989 veto of the FS-X legislation in
part upon his constitutional authority to control foreign negotiations:
In the conduct of negotiations with foreign governments, it is
imperative that the United States speak with one voice. The
Constitution provides that that one voice is the President’s.
II Pub. Papers George Bush 1042, 1043 (July 31, 1989). Other recent Presi
dents have taken the same view. E.g., President Reagan’s Statement on
Signing H.R. 1777 into law, II Pub. Papers Ronald Reagan 1541, 1542 (Dec.
40
22, 1987) (invoking the President’s “exclusive authority to determine the
time, scope, and objectives” on any international negotiations); President
Carter’s Statement on Signing H.R. 3363 into law, II Pub. Papers Jimmy
Carter 1434 (Aug. 15, 1979) (“decisions associated with the appointment of
Ambassadors are acknowledged to be a constitutional prerogative of the
President”).
Congress has also repeatedly endorsed this understanding of the Constitu
tion. John Marshall, when serving in Congress, described the President’s
primacy in the conduct of foreign negotiations by referring to the President
as “the sole organ of the nation in its external relations, and its sole representa
tive with foreign nations.” 10 Annals of Cong. 613 (1800).' The Senate Committee
on Foreign Relations reported to the Senate in 1816 in similar words:
The President is the constitutional representative of the United
States with regard to foreign nations. He manages our con
cerns with foreign nations and must necessarily be m ost
competent to determine when, how, and upon what subjects
negotiation may be urged with the greatest prospect of suc
cess. For his conduct he is responsible to the Constitution.
The committee consider[s] this responsibility the surest pledge
for the faithful discharge of his duty. They think the interfer
ence of the Senate in the direction of foreign negotiations
calculated to diminish that responsibility and thereby to im
pair the best security for the national safety.
Reports of the Senate Committee on Foreign Relations, S. Doc. No. 231, pt.
8, 56th Cong., 2d Sess. 24 (1901).2
These examples and authorities by no means exhaust the list of what
could be cited in support of our conclusion. Nonetheless, they are clearly
sufficient to demonstrate that the President has the constitutional responsi
bility to represent the United States abroad and thus to choose the individuals
through whom the Nation’s foreign affairs are conducted. That responsibil
ity cannot be circumscribed by statute.3 By requiring the President to conduct
negotiations by means of certain individuals, section 102(c)(2) would imper
missibly interfere with that specific authority over foreign negotiations and
diplomatic appointments. Accordingly, the section is unconstitutional.
1Other congressm en contemporaneously recognized that communications with foreign governments
was an exclusive presidential prerogative. For example. Representative James A. Bayard o f Delaware
noted that “the Constitution has placed the power of negotiation in the hands o f the Executive only.” 9
Annals o f Cong. 2588 (1799); see also id. at 2677 (remarks o f Rep. Isaac Parker); id. at 2494 (remarks
o f Rep. Roger Griswold).
2 Both M arshall’s and the Com m ittee’s statements were cited by the Supreme Court with approval in
Curtiss- Wright, 299 U.S. at 319.
41
Second, section 102(c)(2) is also constitutionally offensive on the ground
that the individuals illegitimately “appointed” by the section are to “rep
resent” a legislative entity. Section 102(c)(2) thus seeks to inject legislative
agents directly into the Executive’s foreign relations negotiations, giving
C ongress regular and unsupervised access to privileged information. The
role section 102(c)(2) thus envisions for the legislative branch— which
w ould be “represented” on a negotiating delegation and presumably would
receive reports on the conduct of negotiations from their “representative”—
w ould deprive the President o f his constitutionally-m andated control over
the disclosure o f the content of negotiations.4 That control— a necessary
and recognized element o f executive authority— would be impaired by
section 102(c)(2).
That the Constitution mandates Presidential control over the disclosure of
negotiations was an essential element of the Founders’ vision. As John Jay
wrote in The Federalist:
It seldom happens in the negotiation of treaties, of whatever
nature, but that perfect secrecy and immediate dispatch are
sometimes requisite. There are cases where the most useful
intelligence may be obtained, if the persons possessing it can
be relieved from apprehensions of discovery. Those appre
hensions will operate on those persons whether they are actuated
by mercenary or friendly motives; and there doubtless are many
of both descriptions who would rely on the secrecy of the
President, but who would not confide in that of the Senate,
and still less in that o f a large popular assembly. The conven
tion [has] done well, therefore, in so disposing of the power of
making treaties that although the President must, in forming
them, act by the advice and consent of the Senate, yet he will
be able to manage the business of intelligence in such manner
as prudence may suggest. . . . So often and so essentially have
we heretofore suffered from the want of secrecy and dispatch
’ N or can section 102(c)(2) be viewed as a legitimate exercise o f congressional power over the appro
priation o f public funds. Congress may not use that power
to attach conditions to executive branch appropriations requiring the President to relin
quish his constitutional discretion in foreign affa irs.. . . [T]he President cannot be com
pelled to give up the authority of his Office as a condition o f receiving the funds neces
sary to carrying out the duties of his Office.
C onstitutionality o f Proposed Statutory Provision Requiring Prior Congressional Notification fo r Cer
tain CIA Covert Actions, 13 Op. O.L.C. 258, 261-62 (1989) (footnote omitted).
4T hat participatory role in ongoing negotiations is also completely divorced from the Fram ers’ inten
tions with respect to the activities and authority of the legislative branch. As Alexander Hamilton
explained:
The essence o f the legislative authority is to enact laws, or, in other words, to prescribe
rules for the regulation of the society; while the execution of the laws and the em ploy
m ent o f the com m on strength, either for this purpose or for the common defense, seem to
com prise all the functions of the executive magistrate.
The Federalist No. 75, at 450 (Alexander Hamilton) (Clinton R ossitered., 1961).
42
that the Constitution would have been inexcusably defective if
no attention had been paid to those objects.
The Federalist No. 64, at 392-93 (John Jay) (Clinton Rossiter ed., 1961).
Similarly, James Madison, while serving in Congress, observed that “the
Executive had a right, under a due responsibility, also, to withhold informa
tion, when of a nature that did not permit a disclosure of it at the time.” 5
Annals of Cong. 773 (1796).
Moreover, the executive branch has repeatedly objected to requirements
for mandatory disclosure of information to Congress about international ne
gotiations. At the same time, where possible, all Presidents have provided
broad information to Congress about international negotiations.5 The con
duct of international negotiations is a function committed to the President
by the Constitution, see supra, and he must have the authority to determine
what information about such international negotiations may, in the public
interest, be made available to Congress and when such disclosure should
occur. As the Supreme Court observed in Curtiss-Wright:
[C ongressional legislation which is to be made effective
through negotiation and inquiry within the international field
must often accord to the President a degree of discretion and
freedom from statutory restriction which would not be adm is
sible were domestic affairs alone involved. Moreover, he, not
Congress, has the better opportunity of knowing the condi
tions which prevail in foreign countries . . . . He has his
confidential sources of information. He has his agents in the
form of diplomatic, consular and other officials. Secrecy in
’ This balanced view of the President’s responsibilities with respect to the disclosure o f negotiations
has been the consistent position of the executive branch since 1792, when President Washington re
ceived a request from the Congress for all “persons, papers, and records” relating to the failure of M ajor
General St. C lair’s military expedition against the Indians. 2 Annals of Cong 493(1792). Secretary of
State Jefferson’s notes reflect that President Washington thereafter convened the Cabinet to determ ine
the proper response. 1 The Writings o f Thomas Jefferson 303 (Andrew A. Lipscomb ed., 1903). The
President and the Cabinet concluded that “the Executive ought to com municate such papers as the
public good would permit, and ought to refuse those, the disclosure of which would injure the public.”
Id. at 304. The President ultimately decided to produce the requested documents. He directed Secretary
Jefferson to negotiate an agreement with Congress that acknowledged the President’s right to protect
state secrets, the public disclosure of which he determined could adversely affect national security.
Jefferson’s efforts were successful, and on April 4, 1792, the House resolved
[t]hat the President of the United States be requested to cause the proper officers to lay
before this House such papers o f a public nature, in the Executive Department, as may be
necessary to the investigation of the causes of the failure of the late expedition under
Major General St. Clair.
3 Annals of Cong. 536 (1792) (emphasis added).
Similarly, in 1794, the Senate requested correspondence between the U. S. M inister to France and
the Republic of France, and between the Minister and the State Department. Senate Journal, 3d Cong.,
1st Sess. 42 (1794). President Washington submitted certain o f the correspondence requested, but w ith
held “those particulars which, in my judgment, for public considerations, ought not to be com m uni
cated.” 1 James D. Richardson, Messages and Papers o f the Presidents 152 (1896).
43
respect o f information gathered by them may be highly neces
sary, and the premature disclosure of it productive of harmful
results. Indeed, so clearly is this true that the first President
refused to accede to a request to lay before the House of Rep
resentatives the instructions, correspondence and documents
relating to the negotiation of the Jay Treaty — a refusal the
wisdom of which was recognized by the House itself and has
never since been doubted.
299 U.S. at 320.6 Curtiss-Wright thus clearly establishes that the President
has the authority to determine what information about international negotia
tions may, in the public interest, be made available to Congress and when, if
at all, such disclosure should occur. Section 102(c)(2), however, would
subvert the President’s control over the disclosure o f negotiations by insert
ing a “representative” of the legislative branch into diplomatic negotiations.7
Again, the examples and authorities offered do not exhaust those that
could be invoked in support o f our conclusion. Nonetheless, we believe that
the historical record is clear that the President has the constitutional author
ity to control disclosure of the content of negotiations to Congress. It follows,
equally clearly, that a provision that purports to place a “representative” of a
legislative entity upon an executive negotiating team is inconsistent with
that authority, and is unconstitutional.
2. Section 102(c)(2) is Severable
The unconstitutional requirement that representatives of the Commission
be included at the CSCE negotiations may be severed from the authorization
for appropriations. Because the condition is severable, the President may
enforce the remainder of the provision, disregarding the condition contained
in section 102(c)(2).
A presumption in favor of the severability of unconstitutional provisions
exists so long as what remains of the statute is capable of functioning inde
pendently. See, e.g., Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality
opinion); Alaska Airlines, Inc. v. Donovan, 766 F.2d 1550, 1560 (D.C. Cir.
1985), a j f ’d sub nom. Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987).
As the Supreme Court has explained on many occasions, “[ujnless it is
evident that the Legislature would not have enacted those provisions which
‘ The Court in Curtiss-W right specifically endorsed President Washington’s refusal to provide the House
w ith inform ation it requested about treaty negotiations, even after the negotiations had been concluded.
299 U.S. at 320-21. A fortiori, the President has constitutional authority to withhold such information
during the negotiations.
7 The effect o f this provision would also be to vitiate the President’s authority to determine not to
disclose particular inform ation because such disclosure would jeopardize national security. See United
States v. N ixon, 418 U.S. 683, 710-11 (1974); Assertion o f State Secrets Privilege in Civil Litigation, 3
Op. O .L.C. 91 (1979).
44
are within its power, independently of that which is not, the invalid part may
be dropped if what is left is fully operative as a law.” Champlin Ref. Co. v.
Corporation Comm'n, 286 U.S. 210, 234 (1932), quoted in Alaska Airlines,
480 U.S. at 684. This presumption may be overcome by evidence that,
absent the unconstitutional provision, the statute will not function “in a m an
ner consistent with the intent of Congress.” Alaska Airlines, Inc. v. Brock,
480 U.S. at 685.
The authorization contained in section 102(c)(1) functions independently
of the provision in section 102(c)(2). Accordingly, the unconstitutional con
dition in section 102(c)(2) may be severed from the remainder of the provision
unless there is evidence that Congress would not have enacted the authoriza
tion absent the condition.8
There is no such evidence. Nothing in the debates concerning the condi
tion suggests that Congress would not have enacted the authorization if the
requirement of Commission representation was invalidated. The condition
was added in the House as an amendment to the existing authorization pro
vision. See 135 Cong. Rec. 6265 (1989). Its purpose was to enable members
of the Commission to continue their previous participation in the CSCE
negotiations. See 135 Cong. Rec. 14,787 (1989) (statement of Sen. Fowler);
id. (statement of Sen. D ’Amato); id. (statement of Sen. DeConcini). No
one, however, indicated that they would disapprove funding for the negotia
tions if the Commission access requirement were deleted. The chairman of
the House subcommittee said only that “[i]t is an okay amendment.” 135
Cong. Rec. 6265 (1989) (statement of Rep. Dymally).
That Congress early desired to impose the condition on the authorization
does not mean that Congress would not have authorized the funds without
the condition. The Supreme Court declined to make this assumption in FCC
v. League o f Women Voters, 468 U.S. 364 (1984), where the court held that
an appropriations law’s prohibition on editorializing by public broadcasting
stations violated the First Amendment, but did not even consider whether
the invalidity of the condition should result in the invalidity of the entire
' We reject any argum ent that the conditional clause “unless the United States delegation to any such
meeting includes individuals representing the Commission on Security and Cooperation in Europe” is
the relevant language to be severed from the provision. It is merely an accident of gram m ar that this
clause can be deleted without making nonsense of section 102(c)(2) as a whole Moreover, with this
clause deleted section 102(c)(2) would deny the President funding for a particular type o f negotiations.
For the reasons discussed above, this would in itself raise serious constitutional questions as an interfer
ence with the President’s authority to conduct diplomacy as he sees fit. There is obviously no reason to
prefer a severability analysis that presents the same constitutional questions that gave rise to the analy
sis in the first place. Cf. Edward J. DeBarlolo Corp v. Florida G ulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988) (statutes should be construed to avoid constitutional questions).
Section 102(c)(2) in its entirety is naturally understood as the condition regarding the CSCE negotia
tions, and the proper question is whether that whole section is severable.
45
appropriation.9 Indeed, we are aware of no instance in which the Supreme
Court has ever invalidated an appropriation because a condition on the use of
the appropriation was held unconstitutional.
We are also reluctant to attribute to Congress an intent to preclude the
U nited States from engaging in the CSCE negotiations. Congress was keenly
aware of the significance of the negotiations concerning conventional mili
tary forces in Europe. The care with which Congress considered the
negotiations illustrates their importance to Congress. We cannot believe that
Congress would have preferred no participation by the United States in the
CSCE negotiations to participation by a delegation that does not include
representatives of the Commission.
3. The President M ay Refuse to Enforce Section 102(c)(2)
The final issue we address is whether the President may refuse to enforce
an unconstitutional provision such as section 102(c)(2).10 The Department
o f Justice has consistently advised that the Constitution provides the Presi
dent with such authority. Both the President’s obligation to “take Care that the
Laws be faithfully executed” and the President’s oath to “preserve, protect and
defend the Constitution of the United States” vest that conflict with the highest
law, the Constitution. We emphasize, however, that there is little judicial au
thority concerning this question, and the position remains controversial.
The President’s authority to refuse to enforce a law that he believes is
unconstitutional derives from his duty to “take Care that the Laws be faith
fully executed,” U.S. Const, art. II, § 3 and the obligation to “preserve,
protect and defend the Constitution of the United States” contained in the
President’s oath of office. U.S. Const, art. II, § 1. The Constitution is the
suprem e law that the President has a duty to take care to faithfully ex
ecute.11 W here a statute enacted by Congress conflicts with the Constitution,
the President is placed in the position o f having the duty to execute two
conflicting “law s” : a constitutional provision and a contrary statutory
9Justice Stevens, dissenting alone, said that there was a “serious question . . . whether the entire public
funding schem e is severable from the prohibition on editorializing and political endorsements." FCC v.
League o f Women Voters, 468 U.S. at 411 n.3 (Stevens, J., dissenting).
'“T he analysis o f this question does not depend on w hether the President signed the bill or not. As the
Suprem e Court has observed, “it is not uncomm on for Presidents to approve legislation containing parts
w hich are objectionable on constitutional grounds." IN S v. Chadha, 462 U.S. 919, 942 n.13 (1983)
T hat the President has signed the bill in no way estops his ability to assert the bill’s unconstitutionality,
in court or otherwise. See id.
" It is generally agreed that the Constitution is a law w ithin the meaning of the Take Care Clause. See,
e.g.. C onstitutionality o f GAO's Bid Protest Function: Hearings Before the Subcomm. o f the House
Comm, on G overnm ent Operations, 99th Cong., 1st Sess. 23 (1985) ("B id Protest Hearings") (state
m ent o f Professor Mark Tushnet) (“the President is required faithfully to execute the laws o f the United
States, w hich surely include the Constitution as supreme law ”); Letter for Secretary o f Education Shirley
M . H ufstedler from Attorney General Benjam in R. Civiletti at 12 (June 5, 1980) (“the Executive’s duty
faithfully to execute the law embraces a duty to enforce the fundamental law set forth in the Constitution
as w ell as a duty to enforce the law founded in the Acts o f Congress, and cases arise in which the duty
to the one precludes the duty to the other” ).
46
requirement. The resolution of this conflict is clear: the President must
heed the Constitution— the supreme law of our Nation.
Moreover, the Take Care Clause does not compel the President to execute
unconstitutional statutes. An unconstitutional statute is not a law. Alexander
Hamilton explained:
There is no position which depends on clearer principles
than that every act of a delegated authority, contrary to the
tenor of the commission under which it is exercised, is void.
No legislative act, therefore, contrary to the Constitution, can
be valid. To deny this would be to affirm that the deputy is
greater than his principal; that the servant is above his master;
that the representatives of the people are superior to the people
themselves; that men acting by virtue of powers may do not
only what their powers do not authorize, but what they forbid.
The Federalist No. 78, at 467 (Alexander Hamilton) (Clinton Rossiter ed.,
1961). John Marshall stated the same position in Marbury v. Madison-.
Certainly all those who have framed written constitutions
contemplate them as forming the fundamental and paramount
law of the nation, and consequently the theory of every such
government must be, that an act o f the legislature, repugnant
to the constitution, is void.
5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added).12
The President’s oath of office is the other constitutional provision autho
rizing the President to refuse to enforce a law. The Constitution requires the
President to take an oath in which he promises to “preserve, protect and
defend the Constitution of the United States.” U.S. Const, art II, § 1. As
Chief Justice Chase asked, “How can the President fulfill his oath to pre
serve, protect, and defend the Constitution, if he has no right to defend it
against an act of Congress sincerely believed by him to have been passed in
violation of it?” Letter from Chief Justice Chase to Gerrit Smith, Apr. 19,
1868, quoted in J. W. Schuckers, The Life and Public Services o f Salmon
,! Even though the Constitution provides that a measure enacted pursuant to the procedure described in
U.S. Const, art. I, § 7 “shall become a Law,” the fact that a law was adopted consistently with the consti
tutional process will not save it. Only laws “made in Pursuance” of the Constitution “shall be the su
preme Law o f the Land." U.S. Const, art. VI; see also Marbury v. M adison. 5 U.S. (1 C ranch)at 180. A
law that is not in pursuance o f the Constitution is not the supreme law of the land — indeed, it is not law.
And if an unconstitutional law is void, then the President has no obligation to enforce it. See, e.g.. Letter
from C hief Justice Chase to Gerrit Smith, Apr 19, 1868, quoted in J. W. Schuckers, The Life and Public
Services o f Salmon Portland Chase 577 ( 1874) (“Nothing is clearer to my mind than that acts of Congress
not warranted by the Constitution are not laws ”); 11 Op. A tt’y Gen. 209, 214 (1865) (“ If any law be
repugnant to the Constitution, it is void; in other words, it is no law.’’).
47
Portland Chase 578 (1874) (“Letter from Chief Justice Chase”). Chief Jus
tice Chase concluded that the President’s obligation to defend the Constitution
of the United States authorizes him to decline to enforce statutes which he
believes are unconstitutional.13 The President’s obligation to defend the Con
stitution permits him to decline to enforce a statute which is unconstitutional.
Just as the Take Care Clause requires the President to faithfully execute the
laws, including the Constitution as the supreme law, the oath to defend the
Constitution allows the President to refuse to execute a law he believes is
contrary to the supreme law, the Constitution.
Indeed, the Framers of the Constitution anticipated the question of the
President’s authority to refuse to enforce unconstitutional laws and indicated
that the Constitution affords the President the authority to refuse to enforce
unconstitutional legislation. James Wilson, one of the key drafters and ad
vocates o f the Constitution, addressed this question before the Pennsylvania
convention that was debating whether to ratify the proposed Constitution.
He stated:
[I]t is . . . proper to have efficient restraints upon the legisla
tive body. These restraints arise from different sources. I will
mention some of them. . . . I had occasion, on a former day . . . to
state that the power o f the Constitution was paramount to the
power o f the legislature, acting under that Constitution. For it
is possible that the legislature, when acting in that capacity,
may transgress the bounds assigned to it, and an act may pass,
in the usual mode, notwithstanding that transgression; but when
it comes to be discussed before the judges — when they con
sider its principles and find it to be incompatible with the
superior power of the Constitution, it is their duty to pronounce
it void. . . . In the sam e manner, the President o f the United
States could shield him self and refuse to carry into effect an
a c t that violates the Constitution.
2 The D ocum entary History o f the Ratification o f the Constitution 450 (Merrill
Jensen ed. 1976) (statement of James Wilson on Dec. 1, 1787) (second em
phasis added).
13 C h ie f Ju stic e C h a se answ ered his q u e stio n by en d o rsin g P resident Jo hnson’s decisio n to refuse to
e n fo rc e th e law :
To m e, th e re fo re , it seems p e rfe c tly clear that th e P resident had a p erfect right, and
in d e e d w as u n d e r the highest o b lig a tio n , to rem ove Mr. Stanton, if he m ade the rem oval
n o t in w a n to n d isre g ard o f a c o n stitu tio n al law, b u t w ith a sincere be lie f that the T enure-
o f-O ffic e A ct w as u n constitutional an d fo r the p u rp o se o f b rin g in g the questio n before
th e S u p rem e C o u rt. Plainly it w as a proper and peaceful, if not the only proper and peaceful
m ode o f protecting an d defending th e Constitution.
L e tte r fro m C h ie f J u stic e C hase at 578. Sim ilarly, this O ffice has o p ined that “ the P resid e n t’s du ty to
u p h o ld th e C o n stitu tio n carrie s with it a prero g ativ e to d isreg ard unconstitutional statu tes.” M em o ran
du m fo r R o b ert J. L ip sh u tz , Counsel to th e P resident, fro m John M . H arm on, A ssistant A ttorney G e n
e ra l, O ffice o f L e g a l C o u n se l at 16 (S ept. 17, 1977) (“ H arm o n M em orandum ” ).
48
This understanding comports with the Framers’ profound structural con
cern about the threat of legislative encroachments on the Executive and the
judiciary. As Madison observed, “The legislative department is everywhere
extending the sphere of its activity and drawing all power into its impetuous
vortex.” The Federalist No. 48, at 309 (James Madison) (Clinton Rossiter
ed., 1961). As Chief Justice Burger more recently admonished, “[t]he hy
draulic pressure inherent within each of the separate Branches to exceed the
outer limits of its power, even to accomplish desirable objectives, must be
resisted.” INS v. Chadha, 462 U.S. at 951. In particular, presidential deci
sions not to enforce a statute which violates the separation of powers have
been justified by the need to resist legislative encroachment. For example,
in 1860 Attorney General Black advised President Buchanan that the Presi
dent could refuse to enforce an unconstitutional condition in a law:
Congress is vested with legislative power; the authority of the
President is executive. Neither has a right to interfere with
the functions of the other. Every law is to be carried out so
far forth as is consistent with the Constitution. . . . You are
therefore entirely justified in treating this condition (if it be a
condition) as if the paper on which it is written were blank.
9 Op. Att’y Gen. 462, 469-70 (I860).14
For the reasons discussed above, the Department of Justice in modem
times has also consistently advised that the Constitution authorizes the Presi
dent to refuse to enforce a law that he believes is unconstitutional. See, e.g.,
Letter for Congressman Peter W. Rodino, Jr., from Attorney General W ill
iam French Smith at 3 (Feb. 22, 1985) (“Attorney General Smith Letter”)
(the decision not to enforce the Competition in Contracting Act was based
upon “the duty of the President to uphold the Constitution in the context of
the enforcement of Acts of Congress” and the President’s “oath to ‘preserve,
protect and defend’ the Constitution”); Letter for Congressman Thomas P.
O ’Neill, Jr., from Attorney General Benjamin R. Civiletti (Jan. 13, 1981);
Harmon Memorandum at 16 (“the President’s duty to uphold the Constitu
tion carries with it a prerogative to disregard unconstitutional statutes”).
The Department has given the same advice whether or not the President
signed the law which he intends not to enforce. See,, e.g., Attorney General
Smith Letter; Harmon Memorandum.
14 See also R aoul B erger, Executive Privilege: A Constitutional Myth 309 (1974) (“ A greed that a v e to
e xhausts p re sid en tial p o w er w hen the issue is the wisdom o f the legislation. B ut the o b ject o f the
F ram ers w as to p rev en t ‘encroachment ’; and they w ere too practical to lim it the P resid e n t’s p o w e r to
‘d e fe n d ’ the C o n stitu tio n a g ain st a breach o f its very essence: the separation o f pow ers. . . . I w ou ld
therefore h o ld th at the p resid en tial o ath to ‘p ro tect and d efen d the C o n stitu tio n ' posits b oth a right a n d a
duty to protect h is ow n con stitu tio n al functions from congressional im pairm ent.” ).
49
We, too, conclude that at least in the context of legislation that infringes
the separation o f powers, the President has the constitutional authority to
refuse to enforce unconstitutional laws. The opinions of the Department of
Justice have long recognized the President’s authority to refuse to enforce a
statutory provision that interferes with the President’s exercise of his consti
tutional powers. See, e.g.. Attorney General Smith Letter at 3 (the decision
not to enforce the Competition in Contracting Act was justified by the
President’s “constitutional duty to protect the Presidency from encroach
ment by the other branches”); Recommendation that the Department o f Justice
not D efend the Constitutionality o f Certain Provisions o f the Bankruptcy
Am endm ents and Federal Judgeship A ct o f 1984, 8 Op. O.L.C. 183, 195
(1984) (describing the historical practice of the President “under which the
President need not blindly execute or defend laws enacted by Congress if
such laws trench on his constitutional power and responsibility”). James
W ilson’s statement, quoted above, provides further evidence of the constitu
tional authority of the President to shield him self from unconstitutional
legislation by refusing to enforce such laws. We therefore advise that the
President has the constitutional power to refuse to enforce laws that violate
the separation of powers.
We recognize that opponents of presidential authority to refuse to enforce
an unconstitutional statute attempt to draw support for their views in the
same constitutional texts cited by proponents of such authority. The Take
Care Clause is often quoted as providing self-evident proof that the Presi
dent may not refuse to enforce a law which he believes is unconstitutional.15
This reading of the provision denies the President any discretion to refuse to
enforce a law that is unconstitutional. See, e.g., B id Protest Hearings at 88
(Letter from Professor Eugene Gressman).
We reject this reading of the Take Care Clause because it rests on two
faulty premises concerning the nature o f the “laws” which the President
must enforce: first, that the President will never be faced with a conflict
between a statute and the Constitution, and second, that an unconstitutional
law is truly “law” for the purposes of the Take Care Clause. As explained
above, both o f these premises are invalid. Statutes do conflict with the
Constitution, and unconstitutional statutes are not laws the President must
faithfully execute.
We are also aware that others have argued that the President may not
refuse to enforce a law because the executive branch is not the institution
within the federal government that is authorized to determine whether a law
is unconstitutional. We have ourselves testified that “until a law is adjudi
'sSee, e.g., Lear Siegler, Inc., Energy Prods. Div. v. Lehman, 842 F.2d 1102, 1124 (9th Cir. 1988) ("To
c o n stru e th is d u ty to fa ith fu lly execute th e law s as im p ly in g the p o w er to forbid th eir execution perverts
the c le a r la n g u a g e o f th e ‘tak e care’ c la u s e . . . . ”), withdrawn in relevant part, 893 F.2d 205 (9th Cir.
1989); A rth u r S. M iller, The President and Faithful Execution o f the Laws, 4 0 V and. L. Rev. 389, 396
(1 9 8 7 ) ( “To say th a t th e P resident’s d u ty to faithfully e x ec u te the law s im plies a pow er to forbid their
e x e c u tio n is to flo u t th e p la in language o f the C o n stitu tio n .” ).
50
cated to be unconstitutional, the issue of enforcing a statute of questionable
constitutionality raises sensitive problems under the separation of powers.”
B id Protest Hearings at 318-19 (statement of Acting Deputy Attorney Gen
eral D. Lowell Jensen). We reject, however, the argument that the President
may not treat a law as invalid prior to a judicial determination but rather
must presume it to be constitutional. It affects a subtle, but fundamental
transformation from the position, established in Marbury, that in deciding a
case or controversy the judiciary ultimately decides whether a statute is
constitutional to the position that a law is unconstitutional only when the
courts say it conflicts with the Constitution. Professor Levinson has ex
plained why this cannot be so:
If one believes that the judiciary “finds” the [law] instead of
“creating” it, then the law is indeed “unconstitutional from
the start.” Indeed, the judicial authority under this view is
derived from its ability to recognize the constitutionality or
unconstitutionality of laws, but, at least theoretically, the con
stitutional status is independent of judicial recognition. To
argue otherwise is ultimately to adopt a theory that says that
the basis of law — including a declaration of unconstitution
ality — is the court’s decision itself. Among other problems
with this theory is the incoherence it leads to in trying to
determine what it can mean for judges to be faithful to their
constitutional oaths.
Bid Protest Hearings at 67.
Still others have argued that the veto power is the only tool available to
the President to oppose an unconstitutional law. We agree that the veto
power is the primary tool available to the President. We disagree, however,
with the contention that the Framers intended it to be the only tool at the
President’s disposal. James Wilson’s statement, quoted above, demonstrates
that the idea that the President has the authority to refuse to enforce a law
which he believes is unconstitutional was familiar to the Framers. The
Constitution qualifies the President’s veto power in the legislative process,
but it does not impose a similar qualification on his authority to take care
that the laws are faithfully executed.
Finally, we emphasize that this conclusion does not permit the President
to determine as a matter of policy discretion which statutes to enforce. The
only conclusion here is that he may refuse to enforce a law which he be
lieves is unconstitutional. Obviously, the argument that the President’s
obligation to defend the Constitution authorizes him to refuse to enforce an
unconstitutional statute does not authorize the President to refuse to enforce
a statute he opposes for policy reasons. Thus, instances in which courts
51
have rejected the claims of general presidential discretion to refuse to en
force a statutory command are irrelevant to the question of whether the President
may refuse to enforce a law because he considers it unconstitutional.16
Conclusion
For the reasons given above, we conclude that section 102(c)(2) is uncon
stitutional. We also conclude that it is severable, and that the President may
constitutionally decline to enforce it.
WILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel
“ In K endall v. U nited States, 37 U .S . (12 Pet.) 524 (1 8 3 8 ), the P ostm aster G eneral refused to com ply
w ith a s tatu te th at o rd e re d him to pay tw o c o n tracto rs fo r m ail carry in g services. T h e C ourt, alth o u g h
d e n y in g th a t the P resid e n t was m aking su ch an arg u m en t, said, “To contend that the o b ligation im posed
o n th e P resid e n t to see the laws faith fu lly executed, im p lie s a p o w er to forbid th e ir e xecution, is a novel
c o n stru c tio n o f th e constitution, an d e n tire ly in a d m issib le .” Id. a t 613. Kendall, how ever, d id not
in v o lv e a c la im by th e President that h e w as being o rd e re d to en fo rce an u n constitutional law, and thus
th e C o u rt h a d n o o c ca sio n to exam ine th e u n ique co n sid eratio n s p resented by such a claim .
P re s id e n t N ix o n ’s d e cisio n to im p o u n d funds ap p ro p riated by C ongress is a nother e x am p le o f an
e x e c u tiv e re fu sa l to e n fo rc e a federal law, b u t th ere, to o . P resident N ixon did not contend that the law
w as u n c o n stitu tio n a l. A ssistant A tto rn ey G eneral R eh n q u ist acknow ledged that “ it seem s an a n o m a
lo u s p ro p o s itio n th a t b ecau se the E x e c u tiv e branch is b o u n d to ex ecu te the law s, it is free to d eclin e to
e x e c u te th e m .” H e a d d ed , however, th a t “ [o ]f co u rse, if a C ongressional d ire c tiv e to spend w ere to
in te rfe re w ith th e P re s id e n t’s authority in an are a c o n fid e d by the C onstitution to his su b stantive d ire c
tio n an d c o n tro l, su ch as h is authority as C o m m an d er-in -C h ief o f the A rm ed F orces and his auth o rity
o v e r fo re ig n affa irs, a situation w ould b e presented v ery d ifferent from the one before u s.” M em o ran
d u m Re: Presidential Authority to Im pound Funds Appropriated fo r Assistance to Federally Im pacted
Schools at 11 (D ec. 1, 1969) (citation om itted).
52
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57 F.3d 1073NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.
James F. PORM, Plaintiff/Appellant,v.Leo L. MEYER, William O'Sullivan, John Doe, et al.,Defendants/Appellees.
No. 94-2032.
United States Court of Appeals, Seventh Circuit.
Submitted June 7, 1995.*Decided June 8, 1995.
Before POSNER, Chief Judge, and PELL and ESCHBACH, Circuit Judges.
ORDER
1
The district court allowed the plaintiff in this case, James F. Porm, to voluntarily dismiss his complaint against various prison officials. However, the district court dismissed the complaint with prejudice. Porm sought to vacate the district court's judgment, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. The district court denied the motion, and Porm appeals. For the reasons that follow, we reverse and remand.
I. Background
2
Proceeding pro se, Porm filed his first complaint in this suit in May 1991. Following dismissal of the complaint, Porm appealed and was given the right to amend the complaint (No. 91-3612, unpublished order, April 28, 1993), which he did, twice. Porm's second amended complaint seeks relief from various officials of the Illinois Department of Corrections under 42 U.S.C. Sec. 1983. Porm alleges that prison officials deliberately exposed Porm to the AIDS virus as part of a medical experiment; that Porm's blood was extracted and tested without his consent; and that inmates with communicable diseases, including carriers of HIV, are housed in the general prison population. Porm claims these actions constitute cruel and unusual punishment in violation of the Eighth Amendment.
3
Porm made several motions to the district court requesting the appointment of counsel, all of which were denied. In March 1994, after the defendants had filed an answer and affirmative defenses, Porm sent a letter addressed to the district court judge. The letter read, in part: "My name is James Porm, plaintiff referenced above. Please consider this letter as my voluntary dismissal of this case. This course of action is not voluntary, but induced by fear and as necessary to keep me alive." Porm alleged that his life was at risk because he was to be transferred to another prison, where the survival rate for white inmates is "zero." Porm also recounted threats of physical violence from other inmates; the confiscation of his materials lobbying the state legislature for medical improvements in the prison with regard to inmates who carry HIV; and retaliatory prison disciplinary proceedings. Porm's letter ended:
4
I cannot work on this case or draft formal pleadings because all of my case files have been taken from me. Will you Sir permit the prison officials to take my life as well, in addition to punishing me for exercising my rights through retaliatory conduct? Please intervene! Promptly!!"
5
(R. 90; Appendix at 8-10). Construing Porm's letter as a motion to voluntarily dismiss, the district court dismissed Porm's lawsuit with prejudice. Within 10 days, Porm filed a motion to alter or amend the judgment, pursuant to Rule 59(e) of the Federal Rules of Civil Procedure, claiming that the district court should not have dismissed the case with prejudice because Porm was coerced into the voluntary dismissal. The district court denied the motion, stating:
6
The plaintiff, a savvy litigator, did not seek a protective order, but rather a dismissal. The plaintiff has been able to litigate this case for three years without evidence [of] interference or harassment. The court will not permit the plaintiff's change of heart over whether to pursue a case of highly doubtful merit.
7
(Minute Entry, 4/28/94). Porm now appeals.
II. Analysis
8
We review the district court's denial of Porm's motion to withdraw the voluntary dismissal of his complaint for an abuse of discretion. Villegas v. Princeton Farms, Inc., 893 F.2d 919, 924 (7th Cir.1990); McGregor v. Board of Commrs., 956 F.2d 1017, 1019 (11th Cir.1992).
9
Rule 41(a)(2) allows a plaintiff to voluntarily dismiss his case "upon order of the court and upon such terms as the court deems proper.... Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." Fed.R.Civ.P. 41(a)(2). This court has held that under certain circumstances, dismissal with prejudice is a permissible term and condition of dismissal under Rule 41(a)(2). Ratkovich v. Smith Kline, 951 F.2d 155, 157-58 (7th Cir.1991). Additionally, the district court retains the discretion to convert a dismissal sought to be entered without prejudice, to one with prejudice. Gravatt v. Columbia Univ., 845 F.2d 54, 56 (2d Cir.1988). However, several circuits, including this one, have held that a plaintiff moving under Rule 41(a)(2) should be afforded the opportunity to withdraw his motion if the terms and conditions of the dismissal required by the district court are "too onerous." Mortgage Guar. Ins. Corp. v. Richard Carolyn Co., 904 F.2d 298, 300 (5th Cir.1990); Lau v. Glendora Unified School Dist., 792 F.2d 929, 930-31 (9th Cir.1986); GAF Corp. v. Transamerica Ins. Co., 665 F.2d 364, 367-68 (D.C.Cir.1981); Scam Instrument Corp. v. Control Data Corp., 458 F.2d 885, 889 (7th Cir.1972).
10
Thus, the rule in this circuit is that "according to the 'terms and conditions' clause of Rule 41(a)(2), a plaintiff who moves for dismissal without prejudice under Rule 41(a)(2) must be given a reasonable opportunity to withdraw his motion in the event the district court grants the motion but only with prejudice." Marlow v. Winston & Strawn, 19 F.3d 300, 305 (7th Cir.1994). See also Gravatt, 845 F.2d at 56; Andes v. Versant Corp., 788 F.2d 1033, 1037 (4th Cir.1986). If Porm, therefore, had moved for a dismissal without prejudice, the district court would have clearly abused its discretion in denying him the opportunity to withdraw. However, Porm's letter did not specify whether the voluntary dismissal ought to be with or without prejudice.
11
If the plaintiff fails to specify whether the request is for dismissal with or without prejudice, the matter is left to the discretion of the court. 9 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure Sec. 2367 (1994). The question then becomes whether the district court abused its discretion in construing Porm's letter to request a voluntary dismissal with prejudice.
12
If the district court order had failed to specify whether the dismissal was to be with or without prejudice, Rule 41(a)(2) presumes the order to be without prejudice, leaving plaintiff free to reopen the case. Fed.R.Civ.P. 41(a)(2). Indeed, "the language and history of Rule 41(a) imply [that] the general purpose of the rule is to preserve the plaintiff's right to take a voluntary nonsuit and start over so long as the defendant is not hurt." McCall-Bey v. Franzen, 777 F.2d 1178, 1184 (7th Cir.1985). In Porm's letter to the district court, Porm states that the reason for the voluntary dismissal is coercion from prison officials, not that Porm believes his case has no merit. Porm's request indicates that because of the alleged coercion, he cannot proceed with the case at this time; not that he intends to forever abandon it. Porm had actively prosecuted the case for three years, including a successful appeal to this court. Additionally, after his letter to the district court, Porm sent a letter to defendants' attorney, concerning their waiver of objections to Porm's proposed interrogatories, (R. 95 at 9; App. at 11), indicating that Porm had no intention of permanently abandoning his claims. We hold that it was an abuse of discretion to construe Porm's letter to the district court as a motion for dismissal with prejudice.
13
Porm also appeals the district court's denial of Porm's motion for appointment of counsel. However, Porm has no constitutional or statutory right to counsel in this civil case and the district court did not abuse its discretion in denying Porm's motion. See Farmer v. Haas, 990 F.2d 319, 321-22 (7th Cir.1993).
14
Accordingly, we REVERSE and REMAND to the district court to allow Porm the opportunity to withdraw his voluntary dismissal, or to move for a dismissal without prejudice.
*
After preliminary examination of the brief, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Cir.R. 34(f). No such statement having been filed, the appeal is submitted on the briefs and the record
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13 B.R. 997 (1981)
In re Wavalene N. BARNES, Debtor/Appellant.
In re Abel MONTANO, Debtor/Appellant.
Civ. A. Nos. 80-1540, 80-1728 and 80-2227.
United States District Court, District of Columbia.
April 22, 1981.
George F. Bason, Jr., Washington, D.C., for debtor/appellant.
*998 Cynthia Niklas, Washington, D.C., Francis P. Dicello, Alexandria, Va., for appellee.
MEMORANDUM AND ORDER
BARRINGTON D. PARKER, District Judge.
In these consolidated appeals, the appellants, Wavalene N. Barnes and Abel Montano, urge reversal of both procedural and substantive rulings of the Bankruptcy Court. The appellants had petitioned that Court for Debt Adjustment Plans under Chapter 13 of the new Bankruptcy Code.[*] The Court determined that venue was improper in each proceeding and ordered transfer to the districts in which the debtors were domiciled. Barnes resides in Maryland and Montano in Virginia.
Because these orders were appealed to this Court, the bankruptcy judge issued a stay and proceeded to consider the merits of each plan. He then determined that Ms. Barnes' repayment plan, which provided for a 1% repayment of her debts to unsecured creditors, failed to meet the "good faith" requirement for confirmation under 11 U.S.C. § 1325(a)(3). Finding further that she was not financially able to make even these payments, see subsection (a)(6), the judge converted the case into a Chapter 7 liquidation proceeding. Barnes appeals the rejection of her plan as not in good faith and the court's conversion of her petition to a Chapter 7 proceeding sua sponte. The bankruptcy judge also rejected Mr. Montano's repayment plan, finding that his proposal for 100% repayment of unsecured debts guaranteed by co-signers, but only 1% repayment of other unsecured debts unfairly discriminated among unsecured claims in violation of 11 U.S.C. § 1322(b)(1). The judge also found, as with Ms. Barnes, that the 1% repayment plan was not offered in good faith. Montano was ordered to submit a new confirmation plan. Both of these proceedings were stayed pending the decision on appeal.
This Court concludes that, because the bankruptcy judge proceeded to the merits of the debtors' claims, the venue determination is moot and need not be addressed on appeal. After evaluating the briefs of the parties and the records below, the Court determines that the bankruptcy judge erred in ruling that the Chapter 13 plan must provide meaningful repayment to unsecured creditors to meet the good faith requirement of section 1325(a)(3). However, the Court affirms the ruling that appellant Montano's classification and repayment plan unfairly discriminated against creditors who held his debts without a co-obligor. The cases are remanded for appropriate resolution of the proceedings.
I.
Wavalene Barnes filed a Chapter 13 Debt Adjustment Plan in December 1979. She has two dependent children and is employed as a secretary in a government agency. Her net monthly income is $749 and she lists monthly expenses of $658. Unsecured indebtedness totals $8,008, while her secured debts are approximately $2,400. She proposed to repay her debts at a monthly rate of $91 for three and a half years, providing 100% repayment to secured creditors to the extent of their security interests and 1% repayment of unsecured debts.
Abel Montano filed a petition and plan seeking Chapter 13 relief in February 1980. His plan anticipates $949 in net monthly wages from employment as a government clerk. He lists expenses of $749 a month for his wife, dependent child and himself. Montano proposed under the plan to repay $31,507 in unsecured indebtedness from the remaining $200 in monthly income. The debtor's plan provided for 100% repayment of approximately $7,000 in claims guaranteed by cosigners and a 1% repayment of the remaining $24,507 in claims of creditors that were not guaranteed by a cosigner.
II.
Under the new Bankruptcy Code, a Chapter 13 Debt Adjustment Plan must *999 comply with the conditions of 11 U.S.C. § 1325(a), which in part require that:
* * * * * *
(3) the plan has been proposed in good faith and not by any means forbidden by law;
(4) the value, as of the effective date of the plan, of the property to be distributed under the plan on account of each allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under Chapter 7 of this title on such date;
* * * * * *
(6) the debtor will be able to make all payments under the plan and to comply with the plan.
If these conditions are met, confirmation of the plan is mandatory. S.Rep. No. 95-989, 95th Cong.2d Sess. 142 (1978); H.R.Rep. No. 95-595, 95th Cong. 1st Sess. 430 (1977), U.S. Code Cong. & Admin.News 1978, p. 5787. The purpose behind Chapter 13 is to give the debtor a fresh start by providing him an opportunity to repay all or a percentage of his debts in full settlement of creditors' claims, while enabling the debtor to maintain support of himself and of his family. H.R.Rep. at 117-118. The provisions of Chapter 13 also insure that this favorable treatment of debtors does not harm creditors: under subsection (a)(4), a repayment plan can only be approved where it provides that each unsecured creditor will receive at least the amount he would receive in a Chapter 7 liquidation proceeding.
The "good faith" requirement of subsection (a)(3) was read by the bankruptcy judge to require that the debtor's plan under Chapter 13 provide a "meaningful" repayment to unsecured creditors. A 1% payment plan was rejected by the Court under this standard as only de minimus. Support for this conclusion is drawn from a statement in the House Report which provides that one purpose of Chapter 13 is to provide significantly less losses to creditors than they would suffer in a Chapter 7 proceeding. H.R.Rep. at 118. The judge also relied on a number of other bankruptcy decisions that have read "good faith" to require that a meaningful repayment to creditors is a "quid pro quo" for the liberal discharge treatment under Chapter 13. See e.g., In re Howard, 3 B.R. 75 (Bkrtcy.S.D.Cal.1980); In re Bloom, 3 B.R. 467 (Bkrtcy.C.D.Cal. 1980).
This Court finds support for the bankruptcy judge's reading of the Act's legislative history. However, nothing in the Bankruptcy Code suggests that "good faith" as used in section 1325(a) was intended to depart from the term's traditional meaning of honesty in fact or honesty of intention. See 5 Collier on Bankruptcy, ¶ 1325.01[2][C] at 1325-8 (15th ed. 1979). Indeed subsection (a)(4) sets up a standard for evaluating the sufficiency of a Chapter 13 plan's repayment to unsecured creditors. This standard, known as the "best interest of the creditors test," which requires that creditors receive at least what they would receive in a liquidation proceeding, "is the only criteria specifically aimed at the protection of the holders of allowed unsecured claims under Chapter 13." 5 Collier on Bankruptcy, ¶ 1325.01[2][D][a] at 1325-9. Accord, In re Cloutier, 3 B.R. 584 (Bkrtcy.D. Colo.1980). The statute does not indicate that the repayment must provide a substantial benefit to creditors over a Chapter 7 liquidation; it "requires only that creditors receive more than they would if the debtor went into straight bankruptcy." H.R.Rep. at 123-124, U.S.Code Cong. & Admin.News 1978, p. 6084.
The good faith provision does not address the amount of repayment at all. Rather, good faith is lacking under section 1325 "only in those unusual cases in which there has been an abuse of the provisions, purposes, or spirit of Chapter 13." In re Cloutier, 3 B.R. at 584. As the Bankruptcy Court noted in In re Terry, 3 B.R. 63, 66 (Bkrtcy.W.D.Ark.1980):
This Court believes that it will bode ill for the Bankruptcy Courts to use the *1000 requirement of "Good Faith" as a peg from which they spin a web of nebulous judicial requirements for confirmation which have not been made by Congress. In an area fraught with enmity and misunderstanding as is created by discharge of debts in bankruptcy, this Court is reticent to tack onto the work of Congress its own notions of what debtors ought to do in order to be afforded discharge from their debts.
Indeed, reading a "meaningful" repayment requirement into the good faith provision of section 1325 would lead to a result clearly inconsistent with the liberal discharge provisions of Chapter 13 in the case of appellant Barnes. As the Court below noted, her circumstances were such that she could not propose monthly payments beyond 1% of her debts. If her petition were converted into a Chapter 7 proceeding, she and her two children would face the undesirable consequences of possible eviction from her dwelling and repossession of her automobile. Congress intended to avoid such harsh results in bankruptcy where possible, recognizing that, were the court to "force the debtor, or his dependents, to become public charges, [it would be] to the detriment of the debtor, his dependents, his creditors and the public." H.R. Rep. at 124, U.S.Code Cong. & Admin.News 1978, p. 6085. Forcing appellant Barnes into Chapter 7 will provide no comfort to creditors and only exacerbate an unfortunate situation. Her plan, which offered repayment to the maximum extent she honestly believed she was capable, met Chapter 13's good faith requirement.
Whether appellant Montano's repayment plan met the good faith standing in the absence of a meaningful repayment requirement is a question the Court need not examine. For the reasons set out below, the plan's classification of unsecured debts fails in the first instance by unfairly discriminating against a group of unsecured creditors under 11 U.S.C. § 1322(b)(1).
III.
A debtor's repayment plan under Chapter 13 may distinguish among groups of creditors if certain conditions are met. Section 1322 requires that:
(b) . . . the plan may
(1) designate a class or classes of unsecured claims, as provided in section 1122 of this title, but may not discriminate unfairly against any class so designated;
Claims classified together must be substantially similar according to the terms of section 1122(a). This requires a similarity in the legal nature of the claims. 5 Collier on Bankruptcy ¶ 1122.03 at 1122-4. As the bankruptcy judge properly concluded, a separate classification is not allowable merely on the basis of the presence of a co-obligor debt, because its holder has no more legal right to the debtor's assets than a general unsecured creditor. In re Iacovoni, 2 B.R. 256, 260-61 (Bkrtcy.D.Utah 1980). However, a further rationale suggests itself for rejecting appellant Montano's debt classification. Where the classification provides for full repayment to one group of unsecured creditors, but only token repayment to another class, it is difficult to conclude that fairness exists in the classification. Such a difference in treatment is too extreme to satisfy section 1322(b)(1). Id. at 261. Accordingly, the rejection of Montano's classification was consistent with requirements of section 1322(b)(1).
IV.
Appellant Barnes notes in the brief that since the Bankruptcy Court's rejection of her plan, her level of income has increased.[**] On remand the Court should determine whether she remains unable to *1001 meet the payments proposed in her plan in light of the changed circumstances. Alternatively, if the Court determines that she is unable to meet the plan's payments, the debtor is entitled to propose another repayment plan to meet the requirements of section 1325(a). In light of this ruling, the Court need not examine the Bankruptcy Court's decision to convert her petition into a Chapter 7 proceeding sua sponte. The rejection of appellant Montano's plan is affirmed. His proceeding is remanded for completion on the merits.
Accordingly, it is this 22nd day of April, 1981,
ORDERED, (1) The decision of the Bankruptcy Court 5 B.R. 376, rejecting the Debt Adjustment Plan of appellant Barnes is reversed and remanded;
(2) The decision of the Bankruptcy Court 4 B.R. 535 rejecting the Debt Adjustment Plan of appellant Montano is sustained and affirmed.
NOTES
[*] Public Law 95-598, 92 Stat. 2549 (1978).
[**] This is attributed principally to the resumption of child-support payments by her former husband.
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919 N.E.2d 560 (2009)
WATKINS
v.
STATE.
Supreme Court of Indiana.
December 17, 2009.
Transfer denied. All Justices concur.
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Case: 18-13284 Date Filed: 12/20/2019 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-13284
________________________
D.C. Docket No. 3:17-cr-00112-MCR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY S. ROTHWELL, JR.,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(December 20, 2019)
Before WILSON and GRANT, Circuit Judges, and MARTINEZ, ∗ District Judge.
PER CURIAM:
∗
Honorable Jose E. Martinez, United States District Judge for the Southern District of Florida,
sitting by designation.
Case: 18-13284 Date Filed: 12/20/2019 Page: 2 of 13
Gregory Rothwell, Jr., appeals his convictions and sentences for possession
of marijuana with intent to distribute and related firearms offenses. First, Rothwell
argues that the district court abused its discretion by failing to remove a juror who,
prior to deliberation, expressed concerns about his safety based on his close work
with state and county inmates. Second, Rothwell claims that the district court
clearly erred by considering certain conduct as relevant conduct under U.S.S.G.
§ 1B1.3(a)(2), which allowed the ten-year window for considering prior
convictions under U.S.S.G. § 4A1.2(e)(2) to run backwards from the time of that
conduct rather than from the July 2017 date of the instant offense. As a result, a
2005 conviction for the sale of marijuana was counted as a predicate offense for a
career-offender designation in U.S.S.G. § 4B1.1(a), and Rothwell was
subsequently sentenced as a career offender. After careful review, and with the
benefit of oral argument, we affirm on both issues.
BACKGROUND
A federal grand jury indicted Rothwell for possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D) (Count
One); possession of a firearm in furtherance of a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count Two); and possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count
2
Case: 18-13284 Date Filed: 12/20/2019 Page: 3 of 13
Three). The indictment alleged that the conduct occurred on or about July 13,
2017.
Rothwell opted for a jury trial. After jury instructions but before the jury
began deliberating, Juror No. 6 expressed concern for his personal safety. For the
first time, Juror No. 6 revealed that as an employee of Walton County Public
Works, he regularly performed maintenance at the Walton County Jail and
regularly interacted with its prisoners. Prosecutors presented an exhibit of a jail
phone call that Juror No. 6 believed referenced the Walton County Jail. Defense
counsel asked the district court to remove Juror No. 6 and replace him with an
alternate. The defense argued that when a juror is concerned for his personal
safety, the juror is prejudging the case before jury deliberations.
In response, and with the consent of both the prosecutor and defense
counsel, the district court conducted an in-chambers colloquy with Juror No. 6. At
the colloquy, the district court explained that if Rothwell was convicted, he would
not serve his sentence in the Walton County Jail, but rather in a federal prison.
Juror No. 6 explained that he was only worried about serving as the foreperson
because it could get him in trouble with inmates he encounters during his work.
The district court asked if, because he was not selected as the foreperson, Juror No.
6 could deliberate fairly and impartially. Juror No. 6 responded that he could. The
district court then asked if Juror No. 6 had already decided his verdict. He
3
Case: 18-13284 Date Filed: 12/20/2019 Page: 4 of 13
responded that he had not, and that he would deliberate with the rest of the jury as
a group. Juror No. 6 also said he was no longer concerned about his safety after
the district court explained that Rothwell would not be sentenced to Walton
County Jail.
After the colloquy, defense counsel objected to Juror No. 6 serving on the
jury and the district court overruled that objection. Shortly after, the jury found
Rothwell guilty on all counts.
Before sentencing, Probation prepared a presentence investigation report
(PSR) which alleged that Rothwell “began his involvement in illegal activities”
shortly after being released from state prison in April 2014. According to the PSR,
a co-conspirator told law enforcement officers that he, Rothwell, and another man
received marijuana for distribution from suppliers in California and that Rothwell
had been doing so from April 2014 up until his arrest in the instant case. Using
this testimony—and certain text messages and “drug activity” found on cell phones
in Rothwell’s storage unit—the PSR recommended that Rothwell’s marijuana-
related activities in 2014 and 2015 be considered “relevant conduct” for his instant
offense. Under § 4A1.2(e)(2), the PSR also recommended that the commencement
of the instant offense be 2014 rather than 2017.
The PSR also noted Rothwell’s prior criminal history. Of importance here,
Rothwell was convicted of selling marijuana in February 2005. Additionally,
4
Case: 18-13284 Date Filed: 12/20/2019 Page: 5 of 13
Rothwell was adjudicated guilty of selling cocaine in March 2006, and of
trafficking cocaine, possessing a firearm as a felon, and possessing drug
paraphernalia in March 2011. Because Probation measured the commencement of
the instant offense from 2014, these offenses fell within the ten-year window for
considering prior convictions under § 4A1.2(e)(2) and could support Rothwell’s
designation as a career offender.
Rothwell objected to the career-offender designation and argued that the
2014 and 2015 activity should not be considered relevant conduct. The district
court overruled the objection. It disagreed with defense counsel, explaining that
“for purposes of when the offense of conviction commences, you include relevant
conduct. And if the relevant conduct here was in 2014, then you go back ten years
from there, not from 2017.” The district court adopted the PSR’s recommendation
that, under § 4B1.1, Rothwell’s prior 2005 and 2006 offenses were qualifying
offenses.
Rothwell was sentenced to 240-months’ imprisonment, comprised of 120
months’ imprisonment as to Counts One and Three plus 120 months’
imprisonment on Count Two, followed by five years of supervised release.
5
Case: 18-13284 Date Filed: 12/20/2019 Page: 6 of 13
DISCUSSION
I.
We review the district court’s decision not to remove a sitting juror for abuse
of discretion. United States v. Moran, 778 F.3d 942, 958 (11th Cir. 2015). A
district court may remove and replace a seated juror, prior to deliberations, when
“facts arise that cast doubt on [the] juror’s ability to perform [his] duties.” United
States v. Godwin, 765 F.3d 1306, 1316 (11th Cir. 2014) (alteration accepted). Just
cause to remove a juror exists when the district court “finds evidence that the juror
cannot decide the issues fairly.” Moran, 778 F.3d at 966. “The decision to remove
a juror and replace him with an alternate is entrusted to the sound discretion of the
trial judge whenever facts are presented which convince the trial judge that the
juror’s ability to perform his duty as a juror is impaired.” United States v. Fajardo,
787 F.2d 1523, 1525 (11th Cir. 1986) (internal quotation mark omitted). We will
not disturb the district court’s decision “absent a showing of bias or prejudice to
the defendant . . . or to any other party.” Id. That is because the district court is in
the best position to determine jurors’ credibility when their bias is challenged.
United States v. Sammour, 816 F.3d 1328, 1338 (11th Cir. 2016). When a district
court finds that a juror is not biased, our deference “is at its pinnacle.” Id.
The district court did not abuse its discretion by declining to remove Juror
No. 6. This conclusion is supported by our caselaw. In Sammour, we held that the
6
Case: 18-13284 Date Filed: 12/20/2019 Page: 7 of 13
district court did not abuse its discretion when it refused to remove a juror that
expressed safety concerns. Id. The juror in question wrote a note to the court clerk
asking if the jury would be offered a “jury protection program,” stating that the
case “reeks of Alquaida [sic]” and expressing “concerns for our safety.” Id. at
1333. The district court questioned the juror and concluded that the juror would be
fair and impartial. Id. at 1339. The district court also assured the juror that the
case had nothing to do with terrorism and that she was not in danger. Id.
Here, like in Sammour, the district court did not abuse its discretion by
declining to remove Juror No. 6. 1 See id. at 1338; see also United States v. Jonas,
786 F.2d 1019, 1022–23 (11th Cir. 1986) (holding that district court did not abuse
its discretion in refusing to remove juror who, during trial, stated that he “had
pretty well made up my mind about” the case but stated he “would and could keep
his mind open until, in effect, the case was submitted to the jury.”). The district
court was in the best position to examine Juror No. 6’s credibility and potential
bias during the colloquy. See Fajardo, 787 F.2d at 1525. The district court
1
On appeal, Rothwell relies on our decision in United States v. De La Vega, 913 F.2d 861 (11th
Cir. 1990). In De La Vega, we affirmed a district court’s decision to remove a Hispanic juror
over the juror’s concern that he would be blamed by the Hispanic community for whatever
verdict the jury reached. Id. at 869. The juror did not provide assurances that he could
deliberate fairly and impartially, nor did he tell the district court that he was comfortable
returning to the jury room to deliberate. Id. at 868 & n.6. Consistent with the deferential abuse
of discretion standard, we affirmed the district court’s decision to remove that juror. Id. at 869.
De La Vega does not, however, stand for the proposition that it would have been an abuse of
discretion if the district court had declined to remove the juror.
7
Case: 18-13284 Date Filed: 12/20/2019 Page: 8 of 13
explained to Juror No. 6 that if the jury found Rothwell guilty, he would not be
incarcerated in a state facility. Juror No. 6 assured the district court that he had not
determined his verdict, that he was prepared to deliberate with the jury as a group,
that he was no longer concerned for his safety, and that he was truly comfortable
going back to the jury room to deliberate. After thoroughly questioning Juror No.
6, the district court determined that he was capable of deliberating fairly and
impartially.
To the extent that Rothwell attempts to argue that the entire jury was tainted
by Juror No. 6’s presence during deliberations, defense counsel neither asked the
district court to question the entire jury nor argued that the entire jury was tainted.
And the district court instructed Juror No. 6 during the colloquy to inform the other
jurors that “if there are any questions of the jurors about what we just discussed,
you just let them know that you’re satisfied and not concerned about any safety
issues.”
Rothwell’s other argument—that Juror No. 6’s failure to disclose that he
worked in a position where he regularly encountered inmates proved his prejudice
and bias and should have been enough to remove him from the jury—is meritless.
Rothwell failed to raise this argument before the district court and we may not
“correct an error the defendant failed to raise in the district court unless there is:
‘(1) error, (2) that is plain, and (3) that affects substantial rights.’” United States v.
8
Case: 18-13284 Date Filed: 12/20/2019 Page: 9 of 13
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). Under plain-error review, the
district court did not err by failing to remove the juror because the juror did not
misrepresent himself during voir dire. His answers were in-line with questioning. 2
Because Rothwell cannot “establish, based on a cold record, that the district
court abused its broad discretion despite its superior vantage point,” the district
court did not err in refusing to remove Juror No. 6. See Sammour, 816 F.3d at
1338.
II.
We review the district court’s consideration of past conduct as relevant
conduct under § 1B1.3 for clear error. See United States v. Maxwell, 34 F.3d 1006,
1011 (11th Cir. 1994). A finding is clearly erroneous if it leaves us “with a
definite and firm conviction that a mistake has been committed.” United States v.
Almedina, 686 F.3d 1312, 1315 (11th Cir. 2012). And if “a fact pattern gives rise
to two reasonable and different constructions, the factfinder’s choice between them
cannot be clearly erroneous.” Id. (internal quotation mark omitted).
2
The record supports this conclusion. The district court asked the jury panel whether any of the
jurors were “associated . . . in any way with the judicial system?” Juror No. 6 did not respond.
The district court then asked whether any of the jurors had “ever worked in any capacity . . . for
any law enforcement agency” including any “correctional facility.” Juror No. 6 responded that
he had a second cousin who was a correctional officer in Walton County, Florida, but testified
that it would not affect his ability to be fair and impartial. Finally, the district court asked a
catch-all question, asking the jurors if they had any reservations about their ability to be fair and
impartial. Juror No. 6 did not respond.
9
Case: 18-13284 Date Filed: 12/20/2019 Page: 10 of 13
A defendant is a career offender under the Sentencing Guidelines if he has at
least two prior felony convictions for either a crime of violence or a controlled
substance offense. U.S.S.G. § 4B1.1(a). 3 “Two prior felony convictions” means:
(1) the defendant committed the instant offense subsequent to sustaining at least
two felony convictions for either a crime of violence or a controlled-substance
offense; and (2) the sentences for at least two of those felony convictions are
counted separately for calculating criminal history points under § 4A1.1(a)–(c). Id.
at § 4B1.2(c).
Prior felony convictions count as a criminal history point if the sentence for
the prior conviction was imposed within ten years of the commencement of the
instant offense. Id. at § 4A1.2(e)(2). But the “commencement of the instant
offense” also includes any relevant conduct. Id. at § 4A1.2, comment. 8. A district
court need only find that conduct is relevant under § 1B1.3 by a preponderance of
the evidence. See United States v. Hamaker, 455 F.3d 1316, 1336 (11th Cir.
2006).
When U.S.S.G. § 3D1.2(d) requires grouping multiple counts, all acts and
omissions that were part of the same course of conduct or common scheme or plan
3
Career offender status also requires that the defendant was at least 18 years old at the time he
committed the instant offense, and that the instant conviction is a felony that is either a crime of
violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). The parties do not dispute that
Rothwell satisfies these other requirements.
10
Case: 18-13284 Date Filed: 12/20/2019 Page: 11 of 13
as the offense of conviction are considered relevant conduct. U.S.S.G.
§ 1B1.3(a)(2). In evaluating relevant conduct under § 1B1.3, we consider the
“similarity, regularity, and temporal proximity” between the instant offense and the
uncharged conduct. Maxwell, 34 F.3d at 1011. But, “[w]hen one of the above
factors is absent, a stronger presence of at least one of the other factors is
required.” U.S.S.G. § 1B1.3 comment. 5(B)(ii).
Here, the indictment stated that the instant distribution offense occurred on
July 13, 2017. Ordinarily the ten-year window under § 4A1.2(e)(2) would begin to
run on that date. United States v. Cornog, 945 F.2d 1504, 1509 (11th Cir. 1991).
But the district court determined that Rothwell engaged in conduct relevant to the
instant offense as early as 2014—placing his June 2005 conviction for selling
marijuana within the ten-year window and resulting in his designation as a career
offender under § 4B1.1(a). Rothwell argues that the district court erred because, in
his view, the 2014 conduct is not encompassed in the same course of conduct or
common plan as the 2017 offense.
This case turns on the standard of review. Demonstrating clear error is a
heavy burden, one that Rothwell has not overcome. Based on the record, we
cannot find a clear error in the district court’s decision to consider Rothwell’s
marijuana-related activities in 2014 and 2015 as relevant conduct for his instant
11
Case: 18-13284 Date Filed: 12/20/2019 Page: 12 of 13
2017 marijuana distribution offense. We reach this conclusion because the district
court’s decision was fully supported by the PSR and the evidence at trial.
According to the PSR, from the time Rothwell was released from prison in
2014 until his arrest, he received marijuana for distribution from the same or
similar suppliers and received marijuana at the same house he shared with his
fellow drug traffickers. A fellow drug trafficker stated that he, Rothwell, and
another person rented a location in Destin, Florida and a provider from California
would deliver marijuana to that location. Rothwell used the Destin location to
“keep his weed at,” used the same provider as his fellow drug trafficker, and
received pound quantities of marijuana “on a regular basis.” The fellow drug
trafficker also stated that the most marijuana he witnessed Rothwell purchase to
sell was approximately three to five pounds in exchange for about $7,500.
These statements were supported by the evidence yielded from the search of
Rothwell’s storage unit. At that place, officials found “smoking paraphernalia, a
digital scale, two cell phones, and three stacks of cash containing approximately
$10,000 in 20-dollar bills each.” The two cell phones were examined and among
the data extracted were text messages from September 2014 through October 2015
that discussed the distribution of marijuana. Further extracted were pictures of
Rothwell, dated between December 2014 and October 2015, in which he posed
with a firearm in his waistband, with large amounts of cash, and quantities of
12
Case: 18-13284 Date Filed: 12/20/2019 Page: 13 of 13
marijuana indicative of distribution. These facts suggest that Rothwell’s 2014 and
2015 activities were part of the same ongoing series of marijuana transactions as
the 2017 marijuana-distribution offense.
Rothwell’s argument that his 2014 and 2015 conduct are temporally distant
from the instant 2017 offense is not completely lacking in merit. Another district
court or judge could have concluded that the 2014 and 2015 conduct were not part
of the same course of conduct as the instant offense. But recognizing that
possibility exists is not determinative in this context. Our standard here is highly
deferential. And “where a fact pattern gives rise to two reasonable and different
constructions, the factfinder’s choice between them cannot be clearly erroneous.”
Almedina, 686 F.3d at 1315 (internal quotation mark omitted).
Since the district court’s conclusion that Rothwell engaged in conduct
relevant to the instant offense as early as 2014 was not an impermissible view of
the evidence, the district court did not err in designating Rothwell as a career
offender under § 4B1.1(a).
AFFIRMED.
13
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364 P.2d 398 (1961)
BELL PRESS, INC., and Allen Bell, Plaintiffs in Error,
v.
Gifford PHILLIPS, Defendant in Error.
No. 19494.
Supreme Court of Colorado. In Department.
August 21, 1961.
Rehearing Denied September 11, 1961.
Graham Susman, Hyman D. Landy, Denver, for plaintiffs in error.
Tull, Hays & Thompson, Denver, for defendant in error.
McWILLIAMS, Justice.
We will refer to the parties by name, or as they appeared in the trial court, where Gifford Phillips was the plaintiff and Bell Press, Inc. and Allen Bell were defendants.
The present controversy has its origin in the purchase of the Golden Press, Inc., a corporation, by Bell Press, Inc., also a corporation, and Allen Bell. Prior to December 31, 1956 Golden Press and Bell Press were both in the printing business, with Gifford Phillips being the principal stockholder in the former company and Allen Bell in the latter. Phillips was also the president of Golden Press, but inasmuch as he resided in California he had little to do with the day to day operation of the business. Rather, one Harry Schnibbe, a vice-president of Golden Press and also its general manager, was in actual charge of its daily operation.
*399 In 1956 Gifford Phillips determined to get out of the printing business and it became known that Golden Press was "for sale". Schnibbe and Bell had intermittent but recurring conversations about the possibility of the two firms merging, or, in the alternative, the outright purchase of Golden Press by Bell Press. These conversations took place during the Fall of 1956, but no understanding was reached until the latter part of December of that year, when after hurried last minute negotiations, Bell Press and Allen Bell submitted a written offer to purchase which was accepted in writing, by Gifford Phillips for Golden Press, on December 22, 1956, the sale to be effective on December 31, 1956.
In essence, the purchase and sale agreement provided that Bell Press would take over all the assets and liabilities of Golden Press and pay Golden Press the additional sum of $15,000, to be evidenced by a promissory note in that amount. Accordingly, on December 31, 1956 Bell Press and Allen Bell, individually, executed their promissory note in which they jointly promised to pay Golden Press the sum of $15,000 at the rate of at least $500 per month, commencing January 1, 1958 with interest. On July 25, 1957 this note was assigned by Golden Press to Gifford Phillips "in partial payment of the debt owed by Golden Press, Inc. to Gifford Phillips, in accordance with, and in execution of the plan of liquidation of Golden Press, Inc."
On May 1, 1958 Gifford Phillips brought the present action based on this promissory note against Bell Press, and Allen Bell, alleging that none of the payments called for by the note had been made and demanded judgment against defendants jointly for $15,000 and interest. Defendants denied owing $15,000 and interposed a counterclaim or set-off based on their contention that Golden Press had misrepresented the value of certain assets which had been transferred to Bell Press as a part of the transaction.
It was agreed upon trial that Phillips was not a good faith purchaser for value and therefore took the note subject to all the defenses and set-offs that Bell Press and Allen Bell could interpose against the original payee, Golden Press. Trial to the court resulted in a judgment for Phillips against both defendants for $9,103.75 plus interest. The difference between the amount of the judgment and the amount prayed for in the complaint, namely $5,896.25, represents certain "adjustments" allowed by the trial court. Phillips does not assign error based on this downward adjustment from the face value of the note. Rather, by the present writ of error Bell Press and Allen Bell seek reversal of the judgment of the trial court for its failure to allow defendants' counterclaim or set-off for the additional amount of $6,755.17.
This additional amount of $6,755.17 is claimed by these defendants on the grounds that the representatives of Golden Press fraudulently represented the "collectibility" of certain of their accounts receivable. In connection therewith defendants alleged that Golden Press by and through its agents, represented that all of the accounts receivable constituting a part of the assets of the corporation and amounting to $22,209.47 were current, collectible accounts; that defendants relied on such representation which was known by the agents of Golden Press to be false and untrue and which had been made for the purpose of inducing the defendants to purchase said business and with the intent that the defendants should rely thereon; that in fact certain of the accounts receivable were not current nor collectible and that defendants were in fact unable to collect $6,755.17. Accordingly, defendants claimed the right to a set-off in the amount of $6,755.17. Plaintiff by reply denied these allegations.
Upon trial after all the evidence had been presented the trial court found for the plaintiff and rejected the defendants' claim of fraud. In its findings the trial court generally held that the evidence in support of the charge of fraud was insufficient and the court specifically found that there was no evidence to support the allegation that any of the accounts receivable *400 transferred to defendants as of December, 1956 were in fact uncollectible.
Defendants contend that there is no evidence to support the finding of the trial court, hence this finding must fall and the defendants should be allowed an additional set-off in the amount of $6,755.17.
Careful examination of the record persuades us that defendants' contention is without merit. The evidence or, perhaps more accurately, the inferences deducible therefrom, on the issue of fraud was in dispute. The trial court as the trier of the facts was charged with the responsibility of making a decision. There being evidence to support its findings, they will not be disturbed on review. In this regard, see Andersen-Randolph Co., Inc., v. Taylor, 146 Colo. ___, 361 P.2d 142, decided April 10, 1961 where numerous cases are cited in support of the proposition that findings of a trial court sitting without a jury are binding on review by writ of error unless the evidence is wholly insufficient to sustain them.
The allegedly fraudulent misrepresentations were made by Schnibbe. At the trial Schnibbe by deposition freely and frankly testified that in December 1956 he advised Bell that the accounts receivable of Golden Press totaling $22,209.47 were "collectible". He additionally explained to Bell at that same time that certain of these assigned accounts were "slow" but that he felt even these "slow" accounts would eventually be collected. There is absolutely nothing in the record to support the allegation that Schnibbe knowingly, or with a reckless disregard for the truth, uttered a false representation as to the collectibility of such accounts. On the contrary, everything points toward the conclusion that in thus expressing himself, Schnibbe was giving no more than an honest and forthright opinion as to their "collectibility".
Also, the negative finding of the trial court that there was no evidence to establish that as of December, 1956 any of these accounts receivable were in fact uncollectible is quite proper and correct. Schnibbe in December, 1956 admittedly described the assigned accounts receivable of Golden Press as "collectible". The fact that months later Bell Press failed to collect certain of the accounts does not in itself permit, let alone require, a holding that as of December, 1956 such accounts were in fact uncollectible. At no stage of the transaction did Golden Press undertake to insure the collection of these accounts.
To rest our decision on the proposition that the trial court and not this Court is the trier of facts might lead to the erroneous conclusion that this Court believes that under the circumstances of this case the statement of the witness Schnibbe that the accounts receivable of Golden Press were "collectible" was a statement of fact upon which an action for fraud and deceit could be successfully predicated. To avoid such, we now hold that under the circumstances presented by the record the statement of Schnibbe that the accounts were collectible was simply an expression of his opinion and not a statement of an existing fact upon which an action for fraud could be grounded.
It is well settled in Colorado that one of the essential elements of fraud and deceit is that there be a false representation of a material fact, which fact either exists in the present or has existed in the past; and, conversely, that a mere expression of an opinion in the nature of a prophecy as to the happening or non-happening of a future event is not actionable. Morrison v. Goodspeed, 100 Colo. 470, 68 P.2d 458, 71 P.2d 154; and Ginsberg v. Zagar, 126 Colo. 536, 251 P.2d 1080. Difficulty sometimes arises in determining whether a particular representation is a representation of fact, or is only the expression of a personal opinion. 23 Am.Jur. p. 784 points up this problem as follows:
"It is sometimes difficult to determine whether a given statement is one of opinion or one of fact, inasmuch as the subject matter, the form of the statement, the surrounding circumstances, and the respective knowledge of the parties all have a bearing upon the *401 question, and there may be a want of one or more of the controlling circumstances. There is no certain rule by the application of which it can be determined when false representations constitute matters of opinion or matters of fact, but each case must be in a large measure adjudged upon its own facts, taking into consideration the nature of the representation and the meaning of the language used as applied to the subject matter and as interpreted by the surrounding circumstances."
Under the circumstances when Schnibbe advised Bell that the accounts receivable of Golden Press were collectible he was only expressing his personal opinion, and not making a statement of fact upon which fraud could be predicated. Nor was he by such expression undertaking to insure or guarantee 100% collection of all the accounts. The word "collectible" in such connection means merely than an indebtedness is capable of being collected, and not that it will with certainty be collected sometime in the future. See McDoal v. Yoemans, 8 Watts, Pa., 361, 362 where it was said: "To warrant that a debt is `collectible' is to warrant that it is legally demandable and that the debtor is of competent ability to answer it, not that he will pay it, when demanded * * *."
Had Bell and Bell Press wanted to protect themselves against the possibility that certain of the accounts receivable would eventually turn out to be uncollectible, they could easily have inserted a clause to that effect in their offer. Not having done so, they now take the more arduous route of proving fraud and deceit. The trial court decreed that they had not sustained the burden which falls upon those who cry fraud. In so holding the trial court committed no error.
The judgment is affirmed.
HALL, C. J., and FRANTZ, J., concur.
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Case: 17-12346 Date Filed: 01/12/2018 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12346
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-01338-LTW
FIRST-CITIZENS BANK & TRUST COMPANY, INC.,
Successor by merger with Ironstone Bank,
f.k.a. Atlantic States Bank,
Plaintiff-Appellee,
versus
THOMAS MICHAEL BRANNON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 12, 2018)
Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Case: 17-12346 Date Filed: 01/12/2018 Page: 2 of 11
Thomas Brannon appeals the district court’s 1 grant of summary judgment to
First-Citizens Bank & Trust Company, Inc. (“First-Citizens”), on its complaint “to
collect a sum certain memorialized in loan documents.” The thrust of Brannon’s
arguments on appeal is that First-Citizens refused a court order to produce certain
documents, including a full loan history, which Brannon believes would show he is
not in default on the loan.
I.
In April 2016, First-Citizens sued Brannon in federal district court “to
collect a sum certain memorialized in loan documents.” According to the
complaint, Brannon was in default on a $190,000.00 loan that he had obtained
from a predecessor by merger to First-Citizens.
In August 2016, First-Citizens moved for summary judgment, relying
primarily on an affidavit by Tracy B. Hinnant, First-Citizens’s Senior Real Estate
Resolution Specialist. Hinnant, referencing several documents attached to the
affidavit, swore to the following facts.
On November 25, 2003, Brannon borrowed from First-Citizens’s
predecessor the principal sum of $196,000.00, which was memorialized in an
1
The parties consented to the exercise of jurisdiction by a magistrate judge, who entered
final judgment in this case. See 28 U.S.C. § 636(c). We refer to the magistrate judge’s decision
as that of that district court.
2
Case: 17-12346 Date Filed: 01/12/2018 Page: 3 of 11
agreement executed that same day. 2 In connection with the loan, Brannon
executed a security deed in favor of the predecessor bank, which First-Citizens
acquired by merger in 2011. As of June 2016, Brannon owed First-Citizens
$195,586.39 in principal, plus interest, late fees, and attorney’s fees. To establish
the amounts owed, Hinnant cited an attached computer printout showing a
“Statement of Account and Loan History” from October 28, 2014, through March
31, 2016, as well as her “personal[] familiar[ity]” with Brannon’s debts.
Brannon, according to Hinnant, was in default on the loan. Hinnant averred
that “Brannon failed to pay the principal and interest when due. Accordingly,
Defendant Brannon has defaulted under the terms of the Loan Documents.”
Hinnant Aff. (Doc. 9-1) ¶ 13. But the affidavit does not provide any other details
about Brannon’s purported default, such as dates payments were due but not made.
See, e.g., id. ¶ 17 (“Defendant Brannon is in default, has not cured the default, and
is still in default as of the date of this Affidavit.”). Nor does the affidavit explain
how the Statement of Account established that Brannon is in default.
Nevertheless, it appears to be undisputed that no payments have been
credited to Brannon’s account after July or August of 2015. The Statement of
2
Despite Hinnant’s claim that the amount of the debt was “memorialized” in the attached
loan agreement, however, the “Equity Line Agreement” attached to her affidavit simply reflects
that Brannon could borrow up to $196,000 for a period of fifteen years from November 25, 2003.
That was his credit limit, in other words, not the amount that he actually borrowed. He agreed to
make monthly interest payments on any amounts borrowed based on a variable interest rate.
Brannon also agreed “to pay the entire balance owing in a single balloon payment” at the date of
maturity, November 25, 2018.
3
Case: 17-12346 Date Filed: 01/12/2018 Page: 4 of 11
Account printout supports that assessment, showing only “fees” added and no
“regular payment[s]” made after August 2015.
In his response to First-Citizens’s motion for summary judgment, Brannon
denied that he was in default or that he owed the amount claimed by First-Citizens.
He was not in default, he claimed, because First-Citizens had been refusing his
regularly scheduled payments “based on their perception of [his] first mortgage
status with another bank.” According to Brannon, First-Citizens refused to accept
his payments until Brannon’s first mortgage holder approved a loan modification.
Brannon stated that Hinnant had agreed to dismiss this lawsuit and to allow him to
bring his loan current once the other bank approved the modification.
Brannon elaborated on these allegations in a later filing, “Defendant’s
Motion for Counter Claim,” before the district court granted summary judgment.
He explained that in 2008 First-Citizens’s predecessor bank modified the loan
agreement to allow the regular payments to be made quarterly and semi-yearly
instead of monthly. Doc. 34 ¶ 7. The loan was “paid up and current” until around
July 2015, when First-Citizens simply stopped accepting Brannon’s payments
because he was late on his first mortgage loan with another bank. Id. ¶¶ 12–13.
First-Citizens told Brannon that it would honor the prior modification of the loan—
quarterly and semi-yearly payments—once the first mortgage loan was paid up and
current. Id. ¶ 14. But, he asserted, the loan was paid and current. Id.
4
Case: 17-12346 Date Filed: 01/12/2018 Page: 5 of 11
Brannon further alleged that Hinnant got involved in or around March 2016,
representing that she wanted to cure the default and bring the loan current. Id.
¶ 18. But according to Brannon, Hinnant likewise refused to accept his payments
until a pending modification of Brannon’s first mortgage loan with the other bank
was finalized. Id. ¶ 19–20. Brannon stated that he “attempted and was willing to”
bring current the loan with First-Citizens, but First-Citizens continued to refuse his
payments based on the status of the other loan. Id. ¶¶ 21–22.
Ultimately, the district court granted summary judgment to First-Citizens
after attempts at mediation and settlement proved unsuccessful. The court found
that, based on Hinnant’s affidavit and the attached documents, First-Citizens had
established the absence of a genuine dispute of material fact that Brannon
defaulted on the loan at some point in 2015 and that he owed the amounts claimed
by First-Citizens. The court concluded that Brannon had not controverted First-
Citizens’s evidence with anything other than conclusory assertions and that he had
not offered “any evidence that Plaintiff refused his payments and thereafter agreed
to settle the case and bring his account into good standing.”
In addition to granting summary judgment, the district court denied
Brannon’s motion to bring a counterclaim against First-Citizens, reasoning that
First-Citizens would be prejudiced by Brannon’s delay in bringing the claim. The
5
Case: 17-12346 Date Filed: 01/12/2018 Page: 6 of 11
court also denied Brannon’s request to compel discovery, because the court already
had ordered First-Citizens to produce the requested documentation.
Brannon now appeals.
II.
We review de novo a district court’s order granting summary judgment,
construing the evidence and drawing all reasonable inferences in favor of the non-
moving party. Brooks v. Cty. Comm’n, 446 F.3d 1160, 1161–62 (11th Cir. 2006).
Summary judgment is appropriate only when there is no genuine issue as to any
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a).
The party moving for summary judgment bears the initial burden of
demonstrating, by reference to materials on record, the absence of a genuine
dispute of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991); Fed. R. Civ. P. 56(c)(1). If the moving party meets its burden, the non-
moving party generally must set forth by affidavit or other evidence specific facts
showing that there is a genuine issue for trial. Lujan v. Defs. of Wildlife, 504 U.S.
555, 561 (1992); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
III.
On appeal, Brannon argues, as he did before the district court, that First-
Citizens manufactured the default by refusing to accept his regular payments on
6
Case: 17-12346 Date Filed: 01/12/2018 Page: 7 of 11
the loan. He asserts that at all times, he was willing and able to make the payments
but that First-Citizens refused them due to the status of his loan with another bank.
He also contends that First-Citizens is withholding a complete statement of his
loan history and that summary judgment should not have been granted before First-
Citizens produced a complete loan history.
We agree with the district court that First-Citizens met its initial burden of
establishing the absence of a genuine issue of material fact. Although its evidence
was sparse and somewhat vague, First-Citizens established that Brannon took out a
loan from First-Citizens’s predecessor by merger and that he defaulted on the loan
in mid-2015 by failing to make regular payments. In addition, Hinnant’s affidavit,
citing the Statement of Account, which the district court found admissible as a
business record, provided sufficient evidence of the amounts owed. 3 Accordingly,
we conclude that First-Citizens met its initial burden of showing that summary
judgment was appropriate, so the burden shifted to Brannon to establish by
affidavit or other evidence specific facts showing a genuine issue for trial. See
Lujan, 504 U.S. at 561.
We also agree with the district court that Brannon offered no evidence to
contradict First-Citizens’s motion for summary judgment, though not for the same
3
On appeal, Brannon does not appear to challenge the district court’s ruling on this
evidentiary issue. But even if he had, we could not say that the district court abused its
discretion in concluding that Statement of Account was admissible as a business record.
7
Case: 17-12346 Date Filed: 01/12/2018 Page: 8 of 11
reasons as offered by the district court. The district court, in addition to describing
Brannon’s statements as merely “conclusory,” cited the lack of “evidence that
Plaintiff refused his payments,” thereby suggesting that Brannon needed to file
materials corroborating his assertions. But that is not the rule. “Federal Rule of
Civil Procedure 56 and countless decisions applying it express the modern rule that
a case should be put to the jury if there is any genuine issue of material fact,
including one created solely by the testimony of a party.” Feliciano v. City of
Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013). Brannon is someone with
personal knowledge who would be able to testify about his interactions with First-
Citizens and its employees, including Hinnant. See Fed. R. Civ. P. 56(c)(4). True,
some of his statements were conclusory, like the bare assertion that he was not in
default. But not all of Brannon’s statements were conclusory. For example,
Brannon’s statement that First-Citizens refused his attempts to make his regular
payments was not a conclusory assertion.
Nevertheless, Brannon’s version of events could not have defeated summary
judgment, despite the apparent material conflicts it creates, particularly as to the
issue of default, because it was not sworn or made under penalty of perjury. As a
general rule, district courts may not consider unsworn statements when
“determining the propriety of summary judgment.” Gordon v. Watson, 622 F.2d
8
Case: 17-12346 Date Filed: 01/12/2018 Page: 9 of 11
120, 123 (5th Cir.1980).4 Federal law does provide an alternative to making a
sworn statement, but requires the statement include a handwritten averment, signed
and dated, that the statement is true under the penalties of perjury. 28 U.S.C. §
1746. These rules apply even in cases involving pro se litigants. Gordon, 622
F.2d at 123. Thus, Brannon’s failure to rebut First-Citizens’s evidence with
admissible evidence of his own ordinarily would make the grant of summary
judgment appropriate.
But “[w]e have repeatedly emphasized that care must be exercised to ensure
proper notice to a litigant not represented by counsel.” United States v. One Colt
Python, 845 F.2d 287, 289 (11th Cir. 1988). When a pro se litigant is involved, we
have interpreted Rule 56 to require that the district court give clear notice to the
litigant of the need to file affidavits or other responsive materials and the
consequences of default. Farred v. Hicks, 915 F.2d 1530, 1534 (11th Cir. 1988;
United States v. One Colt Python, 845 F.2d 287, 289 (11th Cir. 1988).
In Brown v. Shinbaum, for example, we held inadequate a summary-
judgment notice that failed to provide a pro se litigant notice that the moving
party’s evidence “might be accepted as the truth if it is not contradicted by [the
non-moving party’s] affidavits” or to “specify that the evidence must be in the
form of sworn affidavits.” 828 F.2d 707, 708 (11th Cir. 1987). When a court does
4
This Court adopted as binding precedent all Fifth Circuit decisions prior to October 1,
1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
9
Case: 17-12346 Date Filed: 01/12/2018 Page: 10 of 11
not provide the required notice, we will vacate the grant of summary judgment and
remand for further proceedings. Id.
Here, “[m]indful of the incessant command of the court’s conscience that
justice be done in light of all of the facts,” Johnson v. Pullman, Inc., 845 F.2d 911,
914 (11th Cir. 1988) (internal quotation marks omitted), we hold that the
summary-judgment notice in this case was inadequate.
We acknowledge that the summary-judgment notice gave Brannon adequate
notice of several important matters, including that a motion for summary judgment
had been filed, that he had 21 days to file any materials he wanted the court to
consider, and that the court’s resolution of the motion could constitute a final
judgment on the merits. See Doc. 20. The notice also offered this general
statement of law:
Whenever the nonmoving party bears the burden at trial on a
dispositive issue and the party moving for summary judgment has
demonstrated the absence of any genuine issue of fact, the non-
moving party must go beyond the pleadings and must designate, by
affidavit or other materials, specific facts showing that there is a
genuine issue for trial.
However, while the notice generally references the need to submit
“affidavits or other materials,” it does not specify that Brannon’s statements, to be
considered at summary judgment, must be in the form of a sworn affidavit or a
declaration made under penalty of perjury, pursuant to the requirements of 28
U.S.C. § 1746. See Brown, 828 F.2d at 708. Rather, the notice’s broad reference
10
Case: 17-12346 Date Filed: 01/12/2018 Page: 11 of 11
to “other materials” suggests that the court might consider whatever specific facts
Brannon identified for the court.
Since Brannon was not properly notified under Rule 56, we must vacate the
judgment of the district court and remand the case for further proceedings.5
VACATED AND REMANDED.
5
We therefore do not address Brannon’s arguments regarding issues of discovery.
11
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300 So.2d 16 (1973)
THE FLORIDA BAR, Complainant,
v.
David M. PINCUS, Respondent.
Nos. 43745, 44001.
Supreme Court of Florida.
November 28, 1973.
On Rehearing June 26, 1974.
Rehearing Denied September 5, 1974.
Norman A. Faulkner, Staff Counsel, Wilson J. Foster, Jr., Asst. Staff Counsel, The Florida Bar, Tallahassee, Guy B. Bailey, Jr., and Stanley J. Bartel, Miami, for complainant.
David M. Pincus, in pro per.
PER CURIAM.
This cause is before us on petition by the Florida Bar, seeking review and modification of the recommendations of discipline for the Respondent made by two referees in two different disciplinary cases which have been consolidated for the purpose of simultaneous review by this Court.
In Case No. 43,745 the Referee found the Respondent guilty as charged in the Complaint, and specifically guilty of violating Canons 6 and 7 of the old Canons of Professional Ethics, 32 F.S.A. and Rules 1 and 27 of the Additional Rules Governing the Conduct of Attorneys in Florida, 32 F.S.A. He then recommended that the Respondent be disbarred.
After appropriate review, the Board of Governors of The Florida Bar at its May, 1973, meeting approved the Referee's findings of guilt in Case No. 43,745, but directed that the Bar petition the Court to reduce the discipline to one year's suspension plus proof of rehabilitation prior to any reinstatement.
During the week of the Board of Governors meeting, the referee report in a separate and distinct matter, Case No. 44,001, was filed with The Florida Bar. The Referee, in that case, found the Respondent guilty of violating Rule 11.02(3)(a) of Article XI of the Integration Rule, 32 F.S.A. and Disciplinary Rules 6-101 and 6-102 of the Code of Professional Responsibility, 32 F.S.A. The Referee recommended that the Respondent be suspended from the practice of law for three months.
We have consolidated both cases for the purpose of this review.
The Florida Bar, after review of both cases, by vote of its Board of Governors, has petitioned this Court to sustain the findings of guilt by both referees, assess the costs in both cases against the Respondent, and suspend the Respondent for 15 months with the requirement that he prove his rehabilitation before any future reinstatement.
*17 CASE NO. 43,745
The Respondent, on or about May 7, 1971, agreed to defend Johanna Kohler, who had been served with a summons and Complaint for Divorce in Dade County Circuit Court, Case No. 71-8345, on May 3, 1971. The Respondent received a cost deposit of $50.00, and undertook the responsibility for filing an answer on Johanna Kohler's behalf on or before May 23, 1971. The Respondent failed to meet his court deadline, and allowed Johanna Kohler to suffer a default and default judgment. The Respondent took the $50.00 cost deposit and converted it to his own use. The Respondent, on repeated occasions, misrepresented to Johanna Kohler that he was adequately representing her when, in fact, he was performing no services for her at all.
CASE NO. 44,001
The Respondent accepted employment to represent a client, Esther L. Cianciola, in the prosecution of her personal injury claim arising out of an automobile collision on October 29, 1964. The Respondent had not previously handled such an injury claim, and intended to refer the claim to other counsel. The Respondent failed, or was unable to, associate a lawyer competent in such matters, and allowed the statute of limitations to run on his client's claim.
After the claim was barred by the statute of limitations, the Respondent conveyed the impression that settlement of the claim was being accomplished with the insurance carrier. He then negotiated a settlement with his client in the aggregate sum of $3,844.00. The Respondent received no compensation, since he simply paid from his own funds the amount that his client was willing to accept in full settlement of her personal injury claim.
Pursuant to the settlement, the Respondent issued his personal check for $300.00 to his client. The check was returned for nonsufficient funds, but was later made good by the Respondent.
DISCUSSION
The charges of professional misconduct of which the Respondent has been found guilty are serious ones. In both cases, the Respondent failed to fulfill the responsibilities he had accepted when he undertook the representation of his clients. No principle is more fundamental to our legal system than the assumption that lawyers will competently and zealously protect the legal rights of clients who have entrusted legal matters to their care.
An examination of the records shows that the Respondent not only failed to prosecute the causes of his clients with even a minimal amount of effort but, in both cases, misrepresented the extent of his efforts and misled his clients in that regard. Clearly a serious type of discipline is warranted for the Respondent's misconduct.
However, the disbarment recommended by one Referee is too harsh. Such a punishment focuses upon retribution and does not consider the possibility of rehabilitation. The purpose of disciplinary proceedings is primarily to protect the public from incompetent and unethical practitioners and, only secondarily, to punish the offender and act as a deterrent to others.
In its Petition for Review, the Florida Bar urges:
"Complainant-Appellant, THE FLORIDA BAR, by vote of its Board of Governors, petitions this Court to sustain the findings of guilt by both referees, assess the cost in both cases against the Respondent, and suspend the Respondent for fifteen months with the requirement that he prove his rehabilitation before any future reinstatement.
"The modifications petitioned for herein will protect the public and, at the same *18 time, be sufficient discipline to impress upon the Respondent his responsibilities as an attorney."
We agree.
Suspension of the Respondent, with the requirement that he prove his rehabilitation before any future reinstatement, is a sanction which can impress upon him his responsibilities and still provide protection for the public. Such a course will serve the purpose of allowing the Respondent the opportunity to reflect upon the error of his ways. At an appropriate time in the future he can apply for reinstatement and perhaps show his sincerity and desire to conduct his future affairs in the highest tradition of our profession.
The public can easily be protected from the Respondent by suspending him for a period of fifteen months and requiring that he make an appropriate showing of rehabilitation before any future reinstatement to the practice of law. Such a course is consistent with the public interest, the Respondent's interest and the administration of justice.
Accordingly, it is the decision of this Court to sustain the findings of guilt by both referees, assess the costs in both cases against the Respondent, and suspend the Respondent for fifteen months, with the requirement that he prove his rehabilitation before any future reinstatement.
It is so ordered.
CARLTON, C.J., and ROBERTS, BOYD, McCAIN and DEKLE, JJ., concur.
UPON REHEARING GRANTED
Mitigation factors have come to the attention of the Court for the first time upon petition for rehearing which has been granted herein. These have been carefully considered together with the entire record which supports these additional factors and justifies modification of our earlier decision insofar as the discipline to be assessed is concerned.
It now appears that respondent voluntarily informed his client of the running of the statute in the one instance and tendered and paid full settlement to the client for the loss. The reference in our original opinion to the initial partial payment by personal check for $300.00 to the client, as being returned for insufficient funds and later made good by respondent, does not include the fact that, even before the client had received notification of return of the check, it was replaced by respondent with a cashier's check and that the entire amount was paid within one week of the agreement between them.
In the other matter, the respondent was in the process of curing the default which had occurred but was replaced of record before a hearing thereon and in fact the client suffered no loss as a result.
We accordingly, upon rehearing, modify and recede from our former opinion herein to the extent of deleting that portion of the opinion following the heading "DISCUSSION" and substituting instead the following:
"DISCUSSION
"The charges of professional misconduct of which the respondent has been found guilty are serious ones. In both cases, the respondent failed to fulfill the responsibilities he accepted when he undertook the representation of his clients. No principle is more fundamental to our legal system than the assumption that lawyers will competently and zealously protect the legal rights of clients who have entrusted legal matters to their care.
"Clearly a proper form of discipline is indicated in the circumstances; however, the disbarment recommended by one referee is too harsh. Such a punishment focuses upon retribution rather than the goal of effective discipline which is primarily to protect the public from incompetent and unethical practitioners and *19 only secondarily to punish the offender and to act as a deterrent to others. Here the public is easily protected and these goals are accomplished by suspension of respondent. Such a course is consistent with the public interest, the respondent's interest and the administration of justice.
"Accordingly, it is the decision of this Court to sustain the findings of guilt by both referees, assess the costs in both cases against the respondent, and suspend the respondent for a period of 6 months, at the conclusion of which and upon all costs having been paid, respondent may thereupon resume the practice of law.
"The suspension shall be from September 15, 1974, and terminate automatically on March 15, 1975.
"It is so ordered."
It is so ordered.
On consideration of the Petition for Rehearing and Clarification, Petition for Rehearing and/or Modification, and Response to Petition for Rehearing and/or Modification,
It is ordered that said petitions are denied, and it is further
Ordered that the suspension shall be from November 1, 1974 and terminate automatically on May 1, 1975, thereby giving respondent forty-five days to close out his practice and take the necessary steps to protect his clients, and it is further
Ordered that respondent shall not accept any new business.
ADKINS, C.J., ROBERTS, McCAIN and DEKLE, JJ., and SPECTOR, District Judge, concur.
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904 F.2d 697
U.S.v.Morales (Victor M.)
NO. 89-5977
United States Court of Appeals,Third Circuit.
MAY 02, 1990
Appeal From: M.D.Pa.,
Caldwell, J.
1
AFFIRMED.
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145 Ga. App. 205 (1978)
243 S.E.2d 580
PARKER
v.
THE STATE.
55068.
Court of Appeals of Georgia.
Argued January 4, 1978.
Decided February 20, 1978.
Rehearing Denied March 8, 1978.
*210 Culpepper, Culpepper & Liipfert, Sampson M. Culpepper, for appellant.
W. Donald Thompson, District Attorney, Thomas J. Matthews, Charles Weston, Assistant District Attorneys, for appellee.
SMITH, Judge.
Parker was convicted of second degree arson in connection with the burning of a restaurant which Parker operated. On appeal, he contends that the evidence did not authorize the verdict, that the state improperly used expert opinion evidence, that inadmissible hearsay was admitted, that his character was erroneously placed into issue, and that the state wrongfully withheld exculpatory evidence. We find no error and affirm the judgment.
The state introduced evidence from which the jury could have concluded the following: Parker operated a restaurant in Fort Valley, Georgia. Shortly after increasing the insurance coverage on the restaurant, he hired one Moye, a frequent patron of the restaurant, to burn the restaurant. Parker began to lock a chain on the *206 driveway, thus preventing nighttime police patrols of the rear of the premises, and for the first time in memory he began to close the restaurant on Sundays. Then, on a Sunday night, he left a mixture of gasoline and diesel fuel at the rear of the building, and left the rear door unlocked. Moye showed up, doused portions of the restaurant, ran a trail of fuel out the back door where he doused some mops and brooms at the rear of the building, closed the door, and set fire to the stream of fuel. Fire traveled along the fuel into the restaurant, gutting it. Evidence also showed that the appellant kept a quantity of diesel fuel in the basement of his home. Held:
1. Though the state's "star" witness, who testified that the appellant had asked him to set fire to the restaurant, had been seriously impeached, the evidence nevertheless supports the verdict. The nature of the impeachment was that the witness had sixteen prior convictions for crimes involving moral turpitude; the witness had drunk 47 beers and some whiskey during the day prior to the time the appellant allegedly asked him to commit arson; the witness admitted he may have been confused about this conversation; the witness admitted he was testifying in hopes of the district attorney going easy against him on the arson charges he faced; and an associate of the witness testified that he considered the witness to be unreliable and would not believe him under oath. Despite all this, the credibility of the witness remains a question for the jury. Chatman v. State, 8 Ga. App. 842 (1) (70 SE 188) (1910); Code § 38-1806. Furthermore, the testimony of other witnesses corroborated much of this witness' testimony and made out a circumstantial case against the appellant. Hence, we cannot hold here that the verdict was contrary to the evidence.
2. Several enumerations are directed at the state's use of expert opinions about the fire.
(a) The appellant asks for reversal because the trial court permitted state's counsel allegedly to state in his opening statement that a fire analysis expert would testify that the fire was a case of arson. We cannot reach the merits of this enumeration because the alleged statement does not appear in the record, nor does the *207 record show any stipulation between the parties or statement by the trial court indicating what was said. Ga. L. 1965, pp. 18, 24 (Code Ann. § 6-805 (d)).
(b) The fire expert testified over objection that, in his opinion, the fire here was a "suspicious fire," that is, a "set fire," probably set by an inexperienced person. The appellant argues that the witness was concluding the ultimate fact, a conclusion properly reserved for the jury, but we disagree. The transcript shows that the expert was highly qualified in fire investigation (this fact is not contested), and he testified extensively as to the specialized scientific analysis used in investigating and interpreting the debris from this fire. Given the above, it was reasonable for the expert to draw conclusions as to the origin of the fire. the factual conclusion that the fire was set by a human, rather than accidentally, is a far cry from the legal conclusion that the appellant here was criminally responsible for arson. Similarly, see Bryant v. Rushing, 121 Ga. App. 430 (3) (174 SE2d 226) (1970).
(c) A volunteer fireman, who had fought more than 100 fires in a 17 or 18 year period, helped fight this fire and testified about his observations. After noting that he observed some mops and brooms burning at the rear of the building completely isolated from the main fire, he offered his characterization of this event as "peculiar." To whatever extent the witness was offering his opinion rather than a mere narration of the facts as he observed them, we think he was qualified by his experience to do so. We cannot agree with the appellant's contentions that this testimony would not help the jurors evaluate the bare observations of the fire scene, for the jurors, like most of us, have probably had scant opportunity dispassionately to observe buildings afire and thus to know what is "peculiar" and what is not.
3. There is no merit in the contention that there was harmful error in admitting proof of certain declarations of the man who admitted setting the fire. A conspiracy between this declarant and the appellant had been prima facie proved, and the jury was charged that before it could consider this declaration it must find (1) that a conspiracy was in existence (2) when the statement was made. Code § 38-306; Wortham v. State, 184 Ga. 674, 680 (192 SE *208 720) (1937). There is some support for the appellant's contention that there was no evidence to support a determination that this particular declaration was made subsequent to formulation of the conspiracy. If so, admission of the declaration was error. But we find any such error to be harmless beyond a reasonable doubt (Morgan v. State, 231 Ga. 280(4) (201 SE2d 468) (1973)), for the same declaration was later made by the same co-conspirator declarant at a time unquestionably during the pendency of the conspiracy. If proof of the first such declaration was erroneously admitted, that proof was merely cumulative of properly admitted evidence.
4. A former employee of the appellant's restaurant offered testimony inculpatory of the appellant. On cross examination, the appellant's counsel attempted to show bias and ill will on the witness' part in quitting the employment and later testifying against the appellant. On redirect, the state elicited testimony in which the witness explained that one reason she quit the job was her fear "of the people that were hanging around out there." We cannot agree with the appellant's contention that this testimony, which was relevant and responsive, unduly placed the appellant's character in issue. Any implications such testimony may make about the appellant's character are certainly minimal, and we conclude that the relevance of this testimony outweighed any prejudice it may have caused. Clark v. State, 144 Ga. App. 650 (1978); Carroll v. State, 143 Ga. App. 796 (1977); Hanson v. State, 143 Ga. App. 200 (237 SE2d 699) (1977); Payne v. State, 233 Ga. 294, 312 (210 SE2d 775) (1974).
5. Finally, we do not believe a new trial is required by the prosecution's failure to disclose allegedly exculpatory evidence. It is clear that the state sometimes incurs an affirmative duty to disclose exculpatory evidence which comes into its hands, and its failure to do so can amount to a denial of due process. Carter v. State, 237 Ga. 617 (229 SE2d 411) (1976). The question is one of materiality of the nondisclosed evidence. This court, quoting from United States v. Agurs, 427 U. S. 97 (96 SC 2392, 49 LE2d 342) (1975), has observed, "`The proper standard of materiality must reflect our overriding concern with the justice of the finding of guilt ... [i]f the *209 omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.'" Jefferson v. State, 141 Ga. App. 712, 714 (234 SE2d 333) (1977); see also Lundy v. State, 139 Ga. App. 536 (1) (228 SE2d 717) (1976).
The state introduced into evidence a sample of Primrose diesel fuel additive. Also, evidence showed that the appellant had recently had a large quantity of this substance in his possession. The obvious inference to be derived from this line of evidence was that the appellant had used some of this additive in the flammable mixture he allegedly left at the rear of the restaurant. During the course of the trial, the state supplied a sample of this product to a state crime laboratory expert, who analyzed it and reported back to state's counsel that the product contained a component not found in the fire debris. The appellant strenuously argues that this finding seriously contradicts much of the state's circumstantial and corroborative evidence, and thus it should have been disclosed. However, the expert also reported to the state that his findings at that time were tentative (although further testing confirmed them); more importantly, he stated that the component found in the Primrose product but not in the fire debris was highly volatile and may very well have burned away completely in the very hot restaurant fire. Thus, there is some doubt whether the evidence is exculpatory at all, and if it is, it is only minutely exculpatory. We therefore conclude that introduction of this expert's conclusions into evidence would not have created a reasonable doubt as to the appellant's guilt; consequently, a new trial is not required because the state failed to disclose to the appellant the existence of the expert's preliminary findings.
Judgment affirmed. Deen, P. J., and Banke, J., concur.
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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
__________________________ FILED
U.S. COURT OF APPEALS
No. 99-12813 ELEVENTH CIRCUIT
SEPTEMBER 07, 2000
__________________________
THOMAS K. KAHN
CLERK
D.C. Docket No. 97-01421-CV-D-N
JOE MARSH, LEROY OWENS,
Plaintiffs-Appellants,
versus
BUTLER COUNTY, ALABAMA,
THE BUTLER COUNTY COMMISSION, et al.
Defendants-Appellees.
__________________________
Appeal from the United States District Court
for the Middle District of Alabama
__________________________
(September 7, 2000)
ON SUA SPONTE RECONSIDERATION
Before BIRCH, BARKETT and ALARCON*, Circuit Judges.
______________
*Honorable Arthur L. Alarcon, U.S. Circuit Judge for the Ninth Circuit, sitting by designation.
BARKETT, Circuit Judge:
Upon reconsideration, this court, sua sponte, VACATES its prior opinion in
this matter, published at 212 F.3d 1318 (11th Cir. 2000), and substitutes the
following in its place:
Joe Marsh and Leroy Owens, former inmates at Butler County Jail in
Greenville, Alabama, appeal the district court’s dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6) of their complaint against Butler County, the Butler
County Commission, and Sheriff Diane Harris in both her individual and official
capacities. Marsh and Owens sued under 42 U.S.C. § 1983, claiming that their
rights under the Eighth and Fourteenth Amendments were violated by the County,
the County Commission, and the Sheriff’s deliberate indifference to the substantial
risk of serious harm to inmates at Butler County Jail. Owens also claimed that his
rights under the Fourteenth Amendment were violated by their deliberate
indifference to his serious medical needs. Marsh and Owens claim that the injuries
they suffered, although arising from distinct incidents, were caused by the same
unconstitutional jail conditions and jail practices. The district court dismissed the
complaint under Federal Rule of Civil Procedure 12(b)(6), on the grounds that
Butler County and the Butler County Commission are protected from this suit by
legislative immunity, and that Sheriff Harris is protected by qualified immunity.
We reverse.
2
DISCUSSION
The dismissal of a complaint for failure to state a claim is reviewed de novo.
In re Johannessen, 76 F.3d 347, 349 (11th Cir. 1996) In conducting such a review,
appellate courts must keep in mind that “a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to relief.” Scheuer
v. Rhodes, 416 U.S. 232, 236-37 (1974). In interpreting Federal Rule of Civil
Procedure 8, which governs the filing of complaints, the Supreme Court has held
that a plaintiff need only set out “‘a short and plain statement of the claim’ that will
give the defendant fair notice of what the plaintiff’s claim is and the grounds upon
which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). That requirement is no
different in cases brought under Section 1983. Indeed, the Court has explicitly
held that courts may not apply a “heightened pleading standard” over and above
the dictates of Federal Rule of Civil Procedure 8(a) to claims under Section 1983.1
1
Federal Rule of Civil Procedure 8(a) states:
(a) Claims for Relief. A pleading which sets forth a claim for relief, whether an
original claim, counterclaim, cross-claim, or third-party claim, shall contain (1) a
short and plain statement of the grounds upon which the court's jurisdiction
depends, unless the court already has jurisdiction and the claim needs no new
grounds of jurisdiction to support it, (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for judgment for
the relief the pleader seeks. Relief in the alternative or of several different types
may be demanded.
3
Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507
U.S. 163, 168 (1993).
This case involves a complaint filed against Butler County, the Butler
County Commission, and Sheriff Diane Harris. The claims against the County and
the County Commission on the one hand and Sheriff Harris on the other involve
different questions of liability and immunity as different types of governmental
entities are entitled to different types of immunity. In order to determine whether
Marsh and Owens have stated legal claims against Butler County, the Butler
County Commission, and Sheriff Harris, we must first ascertain the type of
governmental body or officer each represents, which will determine the type of
conduct each may be held liable for under Section 1983. In determining the
particular functions of a governmental body or official, we must refer to the state
law definitions of that entity’s functions. Turquitt v. Jefferson County, Ala., 137
F.3d 1285, 1287 (11th Cir. 1998) (en banc). This Court has stated that “[o]ur
analysis of Alabama law persuades us that an Alabama sheriff acts exclusively for
the state rather than for the county in operating a county jail.” Id. at 1288. Thus,
we examine Marsh and Owens’ complaint to determine both whether it states a
claim against the County and County Commission as local governmental bodies,
and whether it states a claim against Sheriff Harris as a state official in either her
4
official or personal capacity. Accordingly, we discuss the claims against the
County and the Commission separately from those against Harris.
I. Claims against Butler County and the Butler County Commission2
A. Allegations in the Complaint
In order to state a claim under Section 1983 against a local governing body,
a plaintiff must allege that he suffered an injury under federal constitutional or
statutory law, and that his injury was caused by “a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers.”
Monell v. Dept. of Social Servs., 436 U.S. 658, 690 (1978). A local governing
body may also be held liable for “constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received formal
approval through the body’s official decisionmaking channels,” but may not be
held liable under a theory of vicarious liability. Id. at 690-91. The extent to which
the County may be held liable for violations of federal law at the Butler County
Jail is proscribed by the extent to which the County is responsible for the
conditions therein. In Alabama, the distinct responsibilities of counties and
sheriffs with respect to the operation and maintenance of county jails have been
2
We henceforth refer to Butler County and the Butler County Commission collectively as
“the County.” The County Commission is the governing body of the County, and the liability
and immunity analyses are identical for both entities.
5
recognized by this Court. We have held that the “duties of the counties with
respect to the jails ‘are limited to funding the operation of the jail and to providing
facilities to house the jail.’” Turquitt v. Jefferson County, Ala., 137 F.3d 1285,
1289 (11th Cir. 1998) (en banc) (quoting Stark v. Madison County, 678 So.2d 787,
787 (Ala. Civ. Ct. App. 1996)). “The county commission is charged with erecting
and maintaining jails, and each county is required to maintain a jail of sufficient
size and strength to secure the prisoners.” Id. at 1289-90 (quoting Ala. Code §§
11-14-10, 11-14-13 (1989)).
In their complaint, Marsh and Owens claim that the County’s “deliberate
indifference to the substantial risk of serious harm to inmates at Butler County
Jail” resulted in substantial injury to them, in violation of their Eighth and
Fourteenth Amendment rights. In order to state such a claim successfully for the
purposes of a Rule 12(b)(6) motion, Marsh and Owens must allege facts supporting
each element of a deliberate indifference claim. Thus, the complaint must allege
facts demonstrating: 1) that inmates at Butler County Jail were subjected to a
substantial risk of serious harm; 2) that the County was deliberately indifferent to
that risk; 3) that there was a causal link between the acts or omissions of the
County and the excessive risk of violence; and 4) that there was a causal link
between the excessive risk of violence and the injuries suffered by Marsh and
6
Owens. Hale v. Tallapoosa County, 50 F.3d 1579, 1582-84 (11th Cir. 1995); see
also Farmer v. Brennan, 511 U.S. 825, 837, 847 (1994). For the purposes of
reviewing the district court’s dismissal of the plaintiffs’ complaint, we must accept
all facts alleged in the complaint as true. Fortner v. Thomas, 983 F.2d 1024, 1027
(11th Cir. 1993). Of course the facts as stated herein may differ from the facts
ultimately determined by a jury.
The complaint in this case makes the following allegations about conditions
in Butler County Jail. The Butler County Jail, a two-story building located in
downtown Greenville, Alabama, was constructed in 1929 and 1930. By 1996,
because the County failed to maintain the facility over the years, the building was
in an extremely dilapidated and poor physical condition. Sewage leaked from
overhead pipes. Showers were covered with rust, mildew and peeling paint. Sinks
and toilets were dilapidated and inoperable. Hallways were littered with trash.
Windows were cracked and could not be closed. Shards of broken glass lay in the
window sills. Rats, cockroaches and other rodents and vermin entered the jail
through broken windows and cracks in the walls. The locks on inmate cells on the
second floor of the Jail had been inoperable since at least 1995. As a result,
inmates housed on the second floor have been able at all times to open their cell
doors and walk into the hall, other cells, or the dayrooms whenever they wished,
7
and they did so.
The complaint further alleged that the Jail was grossly understaffed. Despite
the fact that jailers had numerous duties,3 the Jail was often staffed by only one
person. Jailers spent most of their time sitting at a desk at the entrance to the Jail
on the first floor, from which position they could not view any of the inmate cells,
dayrooms, or the kitchen. In fact, most inmate living areas at the Jail were
completely unsupervised. Jailers were “too afraid to conduct visual inspections of
inmate cells on the second floor” because the broken locks prevented them from
ever locking down the inmates. The Jail had no visual or audio surveillance
system on the second floor, and no jailer was assigned there.
Because of the poor condition of the Jail, inmates were able “to vandalize
[the facility], break windows, and rip metal pipes and other dangerous objects from
the structure.” Due in part to the low perimeter fence around the exercise yard,
inmates were also “able to obtain screwdrivers, sticks, and [make-shift knives
called] ‘shanks’ from outside the exercise yard.”
3
Jailers’ duties included controlling the inmate population, which could exceed fifty persons;
administering inmate intake and release; controlling the electronic gate in the fence surrounding
the Jail; supervising visitation and outdoor exercise; handling mail; coordinating food service;
dispensing medication; supervising trustees; and answering the Jail telephone. On weekends,
jailers were also responsible for answering telephone calls to the Butler County Sheriff’s
Department and for operating the dispatch radio. Because their duties were so overwhelming,
jailers often relied on unsupervised inmate trustees to assist them by, e.g., distributing medicine,
unloading supplies, and sometimes handling the Jail’s keys.
8
As a result of the County’s failure to maintain a jail of sufficient size and
strength to adequately secure and protect the prisoners, Marsh and Owens contend
that inmates at Butler County Jail faced a substantial risk of serious harm at the
hands of other inmates. Inmates were able to acquire weapons from in and around
the Jail facility, and were able to roam freely among the rooms on the second floor
without supervision. In the event that those unsupervised and armed inmates
attacked someone, inmates on the second floor were unable to contact jailers
directly. If they needed assistance, they either shouted out the windows or banged
on the walls. Even then, “[j]ailers often did not respond.”
The complaint further alleges that the County “knew and should have known
about [the] risk” to inmates, and “failed to take measures to abate [the] substantial
risk of serious harm.” Marsh and Owens alleged that the County was “repeatedly
informed that more staff was needed at the jail” and that “the jail was not
reasonably secure.” Critical reports from the Alabama Department of Corrections
and several other state agencies, numerous inmate complaints and requests for
assistance, and a federal civil rights action filed in May 1996 put the County on
notice of the poor conditions at the Jail. In spite of these warnings, by July 1996, it
had failed to take measures to ameliorate the situation. The County “did not
improve the physical condition of the jail or maintenance practices . . ., did not
9
repair the locks on the second floor,” and did not increase staffing at the Jail.
In their complaint, Marsh and Owens alleged that the substantial risk of
harm faced by the inmates at Butler County Jail was traceable to the acts and
omissions of the County. In particular, they alleged that they were subject to a
substantial risk of serious harm because inmates were able to fashion weapons by
vandalizing the decrepit Jail facility. Inmates were also able to secure weapons
from in and around the outdoor exercise area due in part to the inadequacy of the
perimeter fence. Moreover, Marsh and Owens alleged that inmates faced
substantial risk of harm as a result of the broken locks on the second floor of the
Jail. Because jailers were not able to lock down inmates on the second floor, the
jailers were afraid to enter the floor, and thus could not perform necessary health
and safety checks. Inmates were also permitted to roam freely among the cells and
other rooms on the second floor because of the broken locks. In addition, the Jail
did not utilize any visual or audio surveillance system. Finally, Marsh and Owens
alleged that the Jail was chronically under-staffed, resulting in inadequate
supervision and discipline of the inmates.
The complaint then delineates the injuries suffered by Marsh and Owens as a
result of the deplorable jail conditions and the County’s failure to address them.
As to Marsh, the complaint alleges the following. On July 2, 1996, Joe Marsh was
10
resting on a bunk bed in a cell on the second floor of the Jail when four inmates
entered the cell and one of them challenged Marsh to a fight in the dayroom.
“When Marsh refused, the inmate struck him across the head with a metal pipe.”
The three other inmates joined in the assault on Marsh, which lasted for several
minutes. “They punched, kicked, and hit Marsh with the pipe while he was balled
up in a corner. One inmate cut Marsh with a screwdriver while the other three held
him.” While the assault was in progress, other inmates on the second floor
“shouted and pounded on the walls” in an attempt to procure assistance from the
jailers on the first floor. After being struck with the pipe a final time in the head,
Marsh managed to walk toward the entrance to the back side to seek help. His face
and head were covered in blood. As a result of the assault, Marsh suffered
lacerations on his face, on the back of his head, and on this back. In addition, he
sustained a fracture to the bone above his left eye. Since leaving the Jail, Marsh
has suffered from frequent headaches and nightmares about the assault.
On the evening of July 3, Leroy Owens entered the dayroom on the second
floor of the Jail, followed by the four inmates who had assaulted Marsh. One of
those inmates “hit Owens over the head with a metal pipe,” and “[a]nother hit him
with a water cooler.” They proceeded to smash his head against a metal table, kick
him, stomp on him, stab him, and beat him. Owens screamed for help. A number
11
of other inmates pounded on the walls and called for help, one of them yelling,
“[t]hey’re killing him up here.” Only one jailer was on duty, and he did not come
to Owens’ assistance. Instead, he called the Greenville City Police, who refused to
approach the second floor when they arrived at the Jail. The jailer then called
Sheriff Harris and the jail administrator, both of whom refused to come to the Jail.
The jailer finally called the chief deputy of the Sheriff’s Department, who came to
the Jail.
The assault lasted between 30 minutes and an hour, during which time the
four inmates stopped beating Owens and returned to their cells several times
because they mistakenly thought they heard approaching jailers. Each time, they
returned to the dayroom and continued to beat Owens when they realized that
nobody was coming. When the assault was over, Owens lay on the floor of the
dayroom in a pool of his blood. Inmates continued to call for help. Approximately
20 minutes after the assault ended, the chief deputy removed Owens from the
second floor and had him transported to the emergency room.
B. District Court’s Ruling
The County moved for dismissal on the ground that it “does not have
authority to control or set policies or customs for the operation of the Butler
County Jail, nor does it have the authority to promulgate policies for treatment of
12
inmates housed in the Butler County Jail.” The district court granted the County’s
motion to dismiss without holding a hearing on the ground that the County and
County Commission both enjoyed legislative immunity under the purview of 28
U.S.C. § 1915(e)(2)(B)(iii). Clearly, legislative immunity is not applicable in this
case. As is plain from the title of Section 1915, that statute applies only to
proceedings in forma pauperis, which this suit was not. More importantly,
however, it is well settled that “immunity from suit under Section 1983 extends to
public servants only in their individual capacities,” but does not protect
governmental entities. Board of County Comm’rs v. Umbehr, 518 U.S. 688, 677 n.
* (1996). In this case, the County Commissioners were not sued in their individual
capacities. Therefore, legislative immunity has no bearing on the complaint in this
case. The district court clearly erred in concluding that the County and County
Commission enjoyed any sort of legislative immunity from this suit.
The County concedes that the district court clearly erred in dismissing the
suit on this basis, but asks that we nonetheless affirm the dismissal because the
complaint fails to state claims of constitutional deprivations for which the County
is responsible under this Court’s en banc decision in Turquitt v. Jefferson County,
Ala., 137 F.3d 1285 (11th Cir. 1998). Alternatively, the County asks that we
affirm the dismissal because the complaint fails to allege that the County was on
13
notice of the constitutional deficiencies at the Jail.
Looking anew at the allegations in the complaint, we find that Marsh and
Owens alleged sufficient facts to state a claim against the County under Section
1983 for deliberate indifference to a substantial risk of serious harm at the Butler
County Jail. It is true that the County may not be responsible for all of the
conditions at the Butler County Jail. The extent to which the County may be
considered to have caused conditions leading to a constitutional deprivation is
prescribed by the duties and responsibilities Alabama counties have with regard to
county jails. This Court has found that:
The duties of the counties with respect to the jails are limited to
funding the operation of the jail and to providing facilities to house
the jail. . . . The county commission is charged with erecting and
maintaining jails, and each county is required to maintain a jail of
sufficient size and strength to secure the prisoners. . . . In construing
these provisions, the Alabama courts have made it clear that the duty
of the county to erect and maintain a county jail pertains exclusively
to the physical plant of the jail. The duty to maintain a jail under
[Alabama Code] § 11-14-10 is merely the duty to keep the jail and all
equipment therein in a state of repair and to preserve it from failure or
decline.
Turquitt v. Jefferson County, Ala., 137 F.3d 1285, 1289-90 (11th Cir. 1998) (en
banc) (internal quotation marks and citations omitted). Although these duties are
not as extensive as those owed by the Sheriff, there is in fact a nexus between the
County’s sphere of responsibility and the jail conditions alleged to have caused the
14
substantial risk of serious harm.
The complaint alleged that the risk of harm at the Jail stemmed in part from
the inmates’ ability to fashion weapons by vandalizing the dilapidated physical
structure of the Jail and by removing dangerous objects such as metal pipes and
broken glass from the ailing building. It is the County that is charged with the duty
of maintaining the physical structure of jails and keeping those structure and the
equipment therein in a state of repair. Marsh and Owens also alleged that inmates
were able to obtain weapons from outside the outdoor exercise area because the
perimeter fence was too low. The County was also charged with erecting and
maintaining a jail facility of sufficient size and strength to secure the inmates. The
complaint also charged that, because all the cell locks on the second floor were
broken for at least a year, jailers were afraid to supervise inmates adequately and
inmates were able to roam freely among different cells, which created a risk of
assault and intimidation. The lack of surveillance was exacerbated by the Jail’s
failure to use a video or audio surveillance system. Again, it is the responsibility
of the County to establish and maintain a jail that is in good repair and is
sufficiently secure. Finally, the Jail’s alleged under-staffing problems may have
been caused by insufficient funding. The County is responsible for funding the
operation of the jails.
15
Moreover, Marsh and Owens did in fact allege that the County was actually
aware of the dangerous conditions and did nothing to remedy the problems,
evidencing deliberate indifference to the risk of harm. We also find that the
complaint contained sufficient facts to allege a causal link both between the acts or
omissions of the County and the excessive risk of harm, and between the excessive
risk of violence and the injuries suffered by Marsh and Owens.
Because the complaint filed by Marsh and Owens alleged with sufficient
particularity all of the elements necessary to find municipal liability for a
constitutional deprivation under Section 1983, we find that the district court erred
in dismissing this case against Butler County and the Butler County Commission.
II. Claims against Sheriff Harris
In their complaint, Marsh and Owens alleged that Sheriff Harris, in both her
personal and her official capacity,4 was deliberately indifferent “to the substantial
risk of harm to inmates at the Butler County Jail.” In addition, Owens alleged that
4
Although the complaint states that “Diane Harris is sued in her official capacity as Sheriff of
Butler County,” the caption states that Harris is sued in her personal as well as her official
capacity. This Court has previously said that “the complaint itself, not the caption, controls the
identification of the parties and the capacity in which they are sued.” Welch v. Laney, 57 F.3d
1004, 1010 (11th Cir. 1995). We did so, however, in allowing a claim to go forward despite a
misleading caption. In this case, the caption is sufficient to put Harris on notice that she was
subject to suit under Section 1983. Because Harris is immune from suit against her in her
official capacity, we will consider all claims against her as against her in her personal capacity.
The district court, having addressed the issue of Harris’ qualified immunity, also treated the
complaint as naming Harris in her personal as well as her official capacity.
16
Sheriff Harris, in her personal capacity, was deliberately indifferent to his serious
medical needs.5 In order to find that the district court erred in dismissing Marsh
and Owens’ claims against Sheriff Harris, we must find that they alleged sufficient
facts to demonstrate that Harris, acting within her discretionary functions, violated
their clearly established constitutional rights.
This Court has found that an Alabama sheriff “acts exclusively for the state
rather than for the county in operating a county jail.” Turquitt, 137 F.3d at 1288.
Because she is an officer of the State, the Eleventh Amendment immunizes Harris
from being sued in her official capacity. Zatler v. Wainwright, 802 F.2d 397, 400
(11th Cir. 1986). Thus, the district court was correct in dismissing the claims
against Harris in her official capacity. In order to state a successful claim under
Section 1983 against a state official in her personal capacity, a plaintiff must first
overcome the protections of qualified immunity. Qualified immunity protects
government officials from civil suit when they have acted within their
discretionary functions in a manner that violates “no clearly established statutory
or constitutional rights of which a reasonable person would have known.” Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982). “Defendants are entitled to qualified
5
In the complaint, Owens asserts this claim against the “Defendants.” Because there is no
allegation anywhere else in the complaint to support a theory that the County showed deliberate
indifference to his serious medical needs, we will consider this claim as against Sheriff Harris
only.
17
immunity in a Rule 12(b)(6) motion to dismiss only if the complaint fails to allege
facts that would show a violation of a clearly established constitutional [or federal
statutory] right.” Kyle K. v. Chapman, 208 F.3d 940, 942 (11th Cir. Apr. 5, 2000).
A. Marsh and Owens’ Claim of Deliberate Indifference to a Substantial
Risk of Serious Harm
1. Allegations in the Complaint
It is well settled law that a “prison official’s deliberate indifference to a
substantial risk of serious harm to an inmate violates the Eighth Amendment.”
Farmer, 511 U.S. at 828. In order to survive Rule 12(b)(6) motion, the Complaint
in this case must have alleged that 1) inmates were subjected to a substantial risk of
serious harm, 2) Sheriff Harris was deliberately indifferent to that risk, 3) the
Sheriff’s deliberate indifference caused that risk, and 4) her deliberate indifference
caused the harm suffered by Marsh and Owens. See Zatler, 802 F.2d at 400-01. In
order to state the requisite causal connections, Marsh and Owens need not have
alleged that Harris was personally involved in the actions that violated their
constitutional rights. This Court has made clear that “[p]ersonal participation is
only one of several ways to establish the requisite causal connection. . . . An
official may also be liable where a policy or custom that [she] established or
utilized results in deliberate indifference to an inmate’s constitutional rights.”
18
Zatler, 802 F.2d at 401 (internal citations omitted).
Many of the complaint’s factual allegations that are outlined above also
implicate the Sheriff in the alleged constitutional deprivations. Marsh and Owens
alleged that inmates were able to acquire or fashion weapons due in part to both
inadequate supervision by prison personnel and a systematic failure to search
inmates when they returned from the exercise yard. They also alleged that jailers
failed to inspect cells and inmates on the second floor, and thus could not conduct
“counts” to ensure the health and safety of the inmates. They further alleged that
the personnel at the Jail were inadequately trained and that the Jail was routinely
“grossly understaffed.” They charged that the Jail did not have any system for
screening entering inmates, and “did not ask new inmates about their mental health
background or other medical conditions.” Nor did they ascertain whether
incoming inmates had any existing conflicts with persons already imprisoned at the
Jail. Moreover, they claimed that the Jail had no system for classifying or
separating inmates, instead housing violent offenders with non-violent offenders,
serious felons with misdemeanants, juveniles with adults, and mentally ill persons
with those in good mental health. Finally, Marsh and Owens alleged that the Jail
employed “[n]o system of discipline,” and “did not discipline or even segregate
inmates who cursed, flooded cells, broke windows, destroyed property, attempted
19
to escape, threatened jailers, or assaulted other inmates.” As a result of these
alleged failures in supervision, security, and other inmate-related policies, Marsh
and Owens alleged that the conditions at Butler County Jail created “an intolerably
high risk of intimidation, assault, and other abuse among inmates at the jail.”
Marsh and Owens also alleged that Sheriff Harris was aware of the problems
and conditions that led to the substantial risk to inmates, and, by failing to remedy
those problems, evidenced deliberate indifference to the risk of harm faced by
inmates. They alleged that the Jail Administrator had informed Sheriff Harris that
the Jail was understaffed, and that the three inmate escape attempts during the first
half of 1996 all occurred when only one jailer was on duty. They also contended
that the jail inspector for the Alabama Department of Corrections had informed the
Sheriff that the Jail was not reasonably secure, and that the Sheriff had received
numerous critical inspection reports and inmate complaints. Notwithstanding this
notice, Marsh and Owens alleged that the Sheriff did nothing to address the
problems in the Jail or to alleviate the substantial risk of harm.
Marsh and Owens alleged in their complaint that Sheriff Harris is
responsible under Alabama law for the general operation of the Jail, and thus acts
as final policy maker with respect to the operation of the Jail. They further alleged
that the substantial risk of harm they faced was a direct result of the staffing and
20
operational policies of the Jail. They alleged that the risk of harm arose from the
ability of the inmates to bring weapons from the exercise yard into the Jail, from
the inadequate supervision of inmates, from the Jail’s failure to classify and
segregate inmates, and from the Jail’s lack of a disciplinary system.
Finally, Marsh and Owens alleged that Sheriff Harris’ failure to remedy the
problems at the Jail – that is, her deliberate indifference to the substantial risk of
harm faced by the inmates – caused them to suffer injuries. Both Marsh and
Owens alleged that they were attacked by inmates who brandished weapons such
as a screwdriver that they may have acquired while outside in the exercise yard.
Both victims alleged that they were subjected to prolonged attacks because jailers
refused to come to their assistance. In the case of Owens, the only jailer on duty
refused to come to his assistance until other Jail personnel could accompany him.
After the four attacking inmates allegedly assaulted Marsh, they were not
disciplined, interrogated, or segregated, even after they were later heard plotting to
assault a female guard. Marsh and Owens alleged that those four inmates were left
to roam freely among the rooms on the second floor, where they later assaulted
Owens and again attacked Marsh with a fire extinguisher after he returned from the
emergency room. Indeed, it was the very day after Marsh was beaten that Owens
was extensively beaten while no jailer came to his aid. After being left in a pool of
21
his own blood, Owens was finally removed from the second floor and taken to the
emergency room. Owens was treated at the hospital, after which the deputies once
again took him into their custody, agreeing to monitor his injuries and his health.
Nonetheless, the deputies left him without shoes or supervision by the side of an
interstate.
Owens further alleged that he was injured partly as a result of the fact that
the Jail did not have any system for screening or segregating inmates. He alleged
that he has suffered from mental illness since at least 1979, has been diagnosed as a
paranoid schizophrenic with borderline intellectual functioning, and has been
institutionalized in a number of mental health facilities. He alleged that the
affidavit upon which his arrest warrant was based in July 1996 stated that Owens
was a “mental patient” and that he was “talking nonsense.” When Owens arrived
at the Jail, nobody asked him about his mental illness, and he was placed in the
general population on the back side of the second floor. While he was incarcerated
at the Jail, Owens alleged that his mental health problems were obvious as he
allegedly proclaimed that he was a prophet of God. Another inmate informed a
jailer that Owens should be moved because he was “not right in the head” and was
aggravating other inmates. Some inmates complained about Owens’ hygiene and
harassed him, forcing him to move from cell to cell. Owens requested that he be
22
placed in a cell by himself, but his request was refused.
2. District Court’s Ruling
The district court found that Marsh and Owens had failed to state a claim of
deliberate indifference to a substantial risk of serious harm against Sheriff Harris
because they had stated insufficient facts to overcome her qualified immunity. In
so holding, the court concluded that Marsh and Owens had failed to allege that
Harris had crossed a “bright line” into violations of clearly established law.
In order to state a claim that Harris violated clearly established law by
displaying deliberate indifference to a substantial risk of serious harm to inmates,
Marsh and Owens needed to allege 1) that they were “incarcerated under
conditions posing a substantial risk of serious harm,” and 2) that prison officials –
in this case Sheriff Harris – demonstrated “‘deliberate indifference’ to inmate
health or safety.” Farmer, 511 U.S. at 834. Marsh and Owens clearly did so in this
case. In Hale v. Tallapoosa County, 50 F.3d 1579, 1582-84 (11th Cir. 1995), this
Court found that an inmate alleged sufficient facts to survive the jailer defendants’
motion for summary judgment based on qualified immunity. The inmate plaintiff
in that case complained that he faced a substantial risk of serious harm from
inmate-on-inmate violence, and had in fact been assaulted by other inmates, due in
part to the jail’s failure to segregate inmates, the jail’s under-staffing, the
23
inadequate training of jailers, and the jailers’ inadequate supervision and
monitoring of inmates. The district court in this case stated that, although Marsh
and Owens “have asserted essentially the same claims as the inmates in the Hale
case,” this case is distinguishable because Marsh and Owens had failed to allege
that “inmate-on-inmate violence occurred regularly when the jail was over-
crowded,” as was the case in Hale. We do not find that fact to be distinguishing.
Marsh and Owens do not need to allege that previous incidents of violence
occurred at the Jail in order to state a claim for deliberate indifference to a
substantial risk of serious harm. Indeed, the Supreme Court has held that the
standard for demonstrating deliberate indifference “does not require a prisoner
seeking ‘a remedy for unsafe conditions [to] await a tragic event [such as] an
actua[l] assaul[t] before obtaining relief.’” Farmer, 511 U.S. at 845 (quoting
Helling v. McKinney, 509 U.S. 25, 33-34 (1993) (alterations in original)).
The conditions at the jail in Hale that gave rise to the history of inmate-on-
inmate violence are substantially similar to the conditions alleged in this case to
have created the substantial risk of serious harm at Butler County Jail. Indeed, the
living conditions at Butler County Jail are a good deal worse than were the
conditions in Hale. Butler County inmates were forced to endure squalid
conditions that in fact put prisoners in harm’s way rather than securing their safety.
24
Although the “Constitution ‘does not mandate comfortable prisons,’ . . . neither
does it permit inhumane ones.” Farmer, 511 U.S. at 832 (quoting Rhodes v.
Chapman, 452 U.S. 337, 349 (1981)). Rather, prison officials have a duty to
provide humane conditions of confinement and to protect prisoners from violence
at the hands of other prisoners. Farmer, 511 U.S. at 832. “Having incarcerated
‘persons [with] demonstrated proclivit[ies] for antisocial criminal, and often
violent, conduct,” . . . having stripped them of virtually every means of self-
protection and foreclosed their access to outside aid, the government and its
officials are not free to let the state of nature take its course.” Id. (quoting Hudson
v. Palmer, 468 U.S. 517, 526 (1984)). Marsh and Owens alleged that armed
inmates were permitted to roam freely and unsupervised among second floor
rooms, which housed all classes of detainees. Moreover, the jailers themselves
were afraid to perform health and safety checks on the second floor because they
were unable to lock down the inmates. These allegations are sufficient to state a
claim that inmates at Butler County Jail faced a substantial risk of serious harm at
the hands of other inmates. Moreover, the allegations are sufficient to state a claim
that Sheriff Harris, as final policy maker for Butler County Jail, violated clearly
established laws by creating the conditions at the Jail that gave rise to the threat of
danger.
25
Marsh and Owens also alleged sufficient facts to demonstrate that Sheriff
Harris was deliberately indifferent to the risk of harm at the Jail. “Whether a
prison official had the requisite knowledge of a substantial risk is a question of fact
subject to demonstration in the usual ways, including inference from circumstantial
evidence, . . . and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Farmer, 511 U.S. at
841. Marsh and Owens alleged both that Sheriff Harris had been put on notice by
numerous sources that the Jail was understaffed and that it was “not reasonably
secure,” and that she had failed to take any steps to alleviate the risk of harm.
Allegations that “the defendant-official being sued had been exposed to
information concerning the risk and thus ‘must have known’ about it . . . could be
sufficient to permit a trier of fact to find that the defendant-official had actual
knowledge of the risk.” Farmer, 511 U.S. at 842-43. Marsh and Owens alleged
sufficient facts in their complaint to state a claim that Sheriff Harris was
deliberately indifferent to the substantial risk of serious harm at the Butler County
Jail.
Because Marsh and Owens alleged all of the elements necessary for a
successful claim against a state official in her personal capacity under Section 1983
for deliberate indifference to the substantial risk of serious harm, and because they
26
alleged those elements with sufficient specificity to put Sheriff Harris on notice of
the grounds upon which their claim rested, we find that the district court erred in
dismissing their claim.
B. Owens’ Claim of Deliberate Indifference to Serious Medical Needs
1. Allegations in the Complaint
We now turn to Owens’ claim against Harris for deliberate indifference to
his serious medical needs, which must meet criteria similar to that of the serious
harm claim in order to survive a Rule 12(b)(6) motion. The Supreme Court has
held that “deliberate indifference to serious medical needs of prisoners constitutes
the ‘unnecessary and wanton infliction of pain’ proscribed by the Eighth
Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.
Georgia, 428 U.S. 153, 173 (1976)). In order to state such a claim, an inmate must
allege more than negligence; he must “allege acts or omissions sufficiently harmful
to evidence deliberate indifference to serious medical needs.” Estelle, 429 U.S. at
105.
In order to survive Rule 12(b)(6) motion, the complaint in this case must
have alleged that 1) Owens suffered from a serious medical need, 2) Sheriff Harris
was deliberately indifferent to that need, and 3) Harris’ deliberate indifference
caused Owens to suffer harm. See McElligot v. Foley, 182 F.3d 1248, 1254-55
27
(11th Cir. 1999).
Owens has alleged that he suffered from “serious medical needs” after being
released from the hospital following his assault at the Jail. He claims that the
hospital staff “instructed the Sheriff’s Department to follow specific procedures to
care for Owens’s head wounds and other injuries. It instructed them to monitor his
level of consciousness, pupils, vision, and coordination, and to call the hospital
immediately if any change occurred.” His condition was diagnosed by a physician
as mandating treatment and monitoring, and he was in a great deal of pain.
Owens also contended that the Sheriff’s Department was deliberately
indifferent to his serious medical needs. Rather than adhering to the written
instructions they received when they signed Owens out of the hospital, the officers
released Owens, instructing him to sign his own bond, and dropped him off near an
interstate outside of a motel. Owens was barefoot, wearing bloodied clothing, and
was severely swollen and bruised. When he stepped out of the officer’s car, the
officer drove away. Owens was unable to secure a room at that motel, and, after
walking dazedly across the interstate, he was also denied entrance to a restaurant.
At that point, a city police officer picked him up and ordered a clerk at a Holiday
Inn to rent a room to Owens.
Owens did not allege that Sheriff Harris was personally involved in these
28
events. He did, however, allege that the deliberate indifference shown by the
officers was pursuant to an official policy of the Sheriff’s Department. Owens
claimed that the acts allegedly constituting deliberate indifference occurred when
the officers of the Sheriff’s Department dropped him on the side of the road
without administering the medical care the hospital had instructed them to deliver.
Owens also alleged that the officers released him in such a manner pursuant to a
“policy and custom of releasing sick or injured inmates.”
Finally, Owens also alleged that, when he awoke alone on the day following
the assault, he was in a great deal of pain and had to be taken back to the hospital
in an ambulance. He also alleged that he had to be readmitted to the hospital
several days later and that he still experiences pain and limited mobility in his right
shoulder as well as uncontrollable shaking in his right arm.
2. District Court’s Ruling
The District Court dismissed Owens’ claim against Sheriff Harris for
deliberate indifference to serious medical need on the ground that she enjoyed
qualified immunity. The district court concluded that Owens did not “show that
the sheriff was personally involved in the acts or omissions that resulted in the
constitutional deprivation,” and that he therefore failed to establish a constitutional
violation. In order to overcome the defense of qualified immunity in a Section
29
1983 claim for civil damages from a government official performing discretionary
functions, a plaintiff must show that the official has violated “clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Harlow, 457 U.S. at 818 (1982). In assessing such Section 1983 claims, the
Supreme Court has recently stated that “a court must first determine whether the
plaintiff has alleged the deprivation of an actual constitutional right at all, and if so,
proceed to determine whether that right was clearly established at the time of the
alleged violation.” Conn v. Gabbert, 526 U.S. 286, 290 (1999). See County of
Sacramento v. Lewis, 523 U.S. 833, 841, n. 5 (1998) (criticizing the district court
for granting summary judgment based on qualified immunity to a government
official in a Section 1983 case, without first deciding that a substantive due process
violation had taken place, on the ground that the law was not clearly established at
the time of the alleged violation); Siegart v. Gilley, 500 U.S. 226, 232 (1991)
(stating that “a necessary concomitant to the determination of whether the
constitutional right asserted by a plaintiff is ‘clearly established’ at the time the
defendant acted is the determination of whether the plaintiff has asserted a
violation of a constitutional right at all,” and that courts should not “assum[e],
without deciding, this preliminary issue”).
As noted above, this was a Rule 12(b)(6) dismissal. Therefore we look to
30
the complaint to see if Owens has alleged the violation of a federal right. In order
to state a claim for a violation of rights under the Fourteenth Amendment,6 the
complaint must allege that Sheriff Harris was not merely negligent but that she
committed “acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs” and caused Owens to suffer harm. Estelle,
429 U.S. at 106; McElligot v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999). We
have defined a “serious medical need” as “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Hill, 40 F.3d at
1187.
The condition Owens alleges he was in when he was released by the
hospital into the care of the Sheriff’s Department qualifies at this initial stage of the
proceedings as a “serious medical need.” Moreover, by alleging that the officers of
the Sheriff’s Department failed to follow the instructions given to them at the
6
Owens was a pretrial detainee at the time of the alleged constitutional violations. “Eighth
Amendment prohibitions against cruel and unusual punishment do not apply to pretrial
detainees.” Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1539 n. 3 (11th Cir.1994) (en
banc) (citing Ingraham v. Wright, 430 U.S. 651, 671-72 n. 40, 97 S.Ct. 1401, 1412-13 n. 40, 51
L.Ed.2d 711 (1977)). However, this Court has held that “in regard to providing pretrial
detainees with such basic necessities as food, living space, and medical care the minimum
standard allowed by the due process clause is the same as that allowed by the eighth amendment
for convicted persons.” Belcher v. City of Foley, Ala., 30 F.3d 1390, 1396 (11th Cir. 1994),
(quoting Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir.1985); accord Tittle, 10 F.3d
at 1539; Edwards v. Gilbert, 867 F.2d 1271, 1274 (11th Cir.1989). Accordingly, we analyze
Owens’ claims under the same standard as applied to Marsh.
31
hospital for caring for Owens’ medical needs, and instead left him barefoot by the
side of the road, Owens has alleged that they were deliberately indifferent to his
serious medical needs.
In order to state a claim against Harris, however, Owens must do more than
allege that her employees were deliberately indifferent. Owens must allege
sufficient facts to adequately establish that Sheriff Harris’ was personally
responsible for her employees’ actions. The district court held that because the
Sheriff was not personally involved at the time of the deputy’s actions, she could
not be held personally liable. However, as this Court has previously held,
“[p]ersonal participation is only one of several ways to establish the requisite
causal connection. . . . An official may also be liable where a policy or custom
that [she] established or utilized results in deliberate indifference to an inmate’s
constitutional rights.” Zatler, 802 F.2d at 401 (internal citations omitted). Owens
did allege that the officers of the Sheriff’s Department acted pursuant to a “policy
and custom of releasing sick and injured inmates” when they acted with deliberate
indifference. Because Sheriff Harris is the final policy maker of Butler County
Jail, these allegations are sufficient to state a claim that she acted with deliberate
indifference to Owens’ serious medical needs.
Because the complaint has alleged the necessary elements to demonstrate
32
that Harris was deliberately indifferent to Owens’ serious medical needs, it has also
sufficiently alleged that Harris is not entitled to qualified immunity. As we noted
in Hill v. Dekalb Regional Youth Detention Center, “a finding of deliberate
indifference necessarily precludes a finding of qualified immunity; prison officials
who deliberately ignore the serious medical needs of inmates cannot claim that it
was not apparent to a reasonable person that such actions violated the law.” 40
F.3d 1176, 1186 (11th Cir. 1994) (quoting Hamilton v. Endell, 981 F.2d 1062,
1066 (9th Cir. 1992); see also Albers v. Whitley, 743 F.2d 1372, 1376 (9th Cir.
1984), rev’d on other grounds, 475 U.S. 312 (1986).7
7
We note that in Hare v. City of Corinth, 135 F.3d 320, 327-28 (5th Cir. 1998), the Fifth
Circuit analyzed the qualified immunity claims in that case and did not decide whether the
plaintiff had established deliberate indifference. Hare was reviewing a denial of summary
judgment, and the court determined that the undisputed facts of the case revealed that the actions
taken by corrections officers were not unreasonable in the light of the circumstances and that
therefore the officers were entitled to qualified immunity. We also note, however, that under the
facts in Hare, the plaintiff would likewise not have met the test for deliberate indifference, as the
court concluded that officials had acted reasonably under the circumstances. “Whether one puts
it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found
liable under the Cruel and Unusual Punishments Clause.” Farmer, 511 U.S. at 845. The
Supreme Court has recognized that “[t]he infliction of pain in the course of a prison security
measure . . . does not amount to cruel and unusual punishment simply because it may appear in
retrospect that the degree of force authorized or applied for security purposes was unreasonable,
and hence unnecessary in the strict sense.” Whitley v. Albers, 475 U.S. 312, 319 (1986). Thus a
finding that a plaintiff has alleged deliberate indifference sufficiently to survive a 12(b)(6)
motion to dismiss does not rule out the possibility that facts may later come to light indicating
that the defendant behaved reasonably in the circumstances and thus was not deliberately
indifferent. However, the Supreme Court has also held that deliberate indifference to prisoners’
serious medical needs constitutes the “unnecessary and wanton infliction of pain.” Estelle, 429
U.S. at 104. Once a court has found that a prison official has unnecessarily and wantonly
inflicted pain on inmates, it cannot find that conduct to be objectively reasonable. Although
facts may later come to light indicating that Harris behaved reasonably in the circumstances and
33
Owens has also alleged sufficient facts to demonstrate that he was injured by
Harris’ deliberate indifference. When he awoke alone the day following the
assault, he was “in terrible pain” and had to be taken back to the hospital in an
ambulance. He returned to the hospital several days later for further treatment.
Because we find that Owens alleged sufficient facts to state a claim against Sheriff
Harris under Section 1983 for deliberate indifference to serious medical needs, we
conclude that the district court erred in dismissing the complaint under Rule
12(b)(6).
REVERSED and REMANDED for further proceedings in accordance herewith.
thus was not deliberately indifferent, the allegations in Owens’ complaint suffice to survive a
12(b)(6) motion to dismiss for failure to allege a cause of action and to dismiss on the grounds of
qualified immunity.
34
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244 F.3d 9 (1st Cir. 2001)
GEORGETTE BAGHDADY TILLER, Plaintiff, Appellant,v.SAMI J. BAGHDADY, Defendant, Appellee.
No. 00-1131 & No. 00-1261
United States Court of Appeals For the First Circuit
Heard October 2, 2000Decided March 22, 2001
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Donald R. Furman, Jr. for appellant.
Gael Mahony, with whom John D. Lawrence and Hill & Barlow were on brief for appellee.
Before Torruella, Chief Judge, Lynch and Lipez, Circuit Judges.
LIPEZ, Circuit Judge.
1
This unhappy case pits brother against sister. Sami Baghdady, a property developer in Massachusetts, allegedly used money from the sale of his sisters' Teledyne stock to purchase land for the development of a residential apartments complex in Arlington, Massachusetts, in 1971. One of the sisters, Georgette Tiller, sued Baghdady on several theories, contending that she was promised a partnership interest in the apartments project, which she never received. The jury rejected her claim of intentional misrepresentation, the only claim that the court permitted the jury to consider.
2
In this appeal, Tiller argues that the trial court erred in excluding evidence about Baghdady's disposition of the stock of his other sister, Violette Haddad. She claims that this evidence would have undermined Baghdady's credibility, leading the jury to accept her version of the events and reject his. Tiller also challenges the trial court's decision to grant Baghdady's motion for judgment as a matter of law on her claims for breach of an oral contract and negligent misrepresentation.
3
Although we agree that the court erred in its evidentiary ruling, that error was harmless. We therefore affirm.
I.
Background
4
The Baghdadys are an entrepreneurial family, at one time or another pursuing business ventures on three continents. Sami Baghdady is involved in business investments in the Northeastern United States. For years, Georgette Tiller owned and managed a cosmetics merchandise and bakery business with her sister, Violette Haddad, in Lebanon and locations in Africa. Into the 1980s, Tiller was also responsible for management of a family-owned apartment building in Beirut, and she continues to own real estate in Lebanon. Both Tiller and Haddad now live in the United States. A fourth sibling, George Baghdady, lives in Connecticut.
5
In 1961, all of the family members invested in a company called ADCOM, which was then run by a family member. When that company was sold in 1967, Baghdady coordinated the swapping of shares for interests in Teledyne, Inc. At the time, Tiller and Haddad were living in Lebanon and the family decided that the stock certificates might not be secure in Beirut. Baghdady agreed to hold them for safekeeping. According to her testimony, Tiller gave explicit instructions to Baghdady regarding the Teledyne stock: "You don't touch these. These are untouchables. These are long-term investment [sic] for my old age." Still, Tiller and Haddad executed Powers of Attorney in August 1970, giving Baghdady the authority to manage their investments through the brokerage firm Bache & Company.
6
Baghdady's and Tiller's accounts diverge on the circumstances of the Teledyne stock sale, as well as the understanding that they reached following the sale. Tiller says that in April 1971, acting pursuant to the powers of attorney, Baghdady sold his sisters' and his own Teledyne shares without notifying them. When Tiller first learned that the shares had been sold in the summer of 1971, during a visit to the United States, she was furious. Tiller says that she asked Baghdady to repurchase the stock, but he replied that he no longer had the money to do so. She further claims that he used the money to purchase the land that would become the Cedar Crest real estate project, a transaction that closed on May 10, 1971. To make amends, Tiller says Baghdady promised to make her and her sister partners in the venture, and he indicated that legal papers would be drafted when he had time. Tiller also acknowledges that following her protest about the sale of her stock, Baghdady executed promissory notes to both Tiller and Haddad on August 4, 1971, just before her return to Lebanon. The note to Tiller stated: "I owe you the sum of (31,000.00) thirty one thousand dollars. This amount, I received from the sale of Teledyne Inc. stock in your name. In the event of my death this debt is transferred to my heirs and is to be paid to you from my estate."
7
Although no legal documents were forthcoming, Baghdady allegedly persisted in characterizing the relationship with his siblings as a partnership. Tiller reports, and her brother George concurs, that during a tour of the Cedar Crest apartments in 1977 Baghdady hailed the property and said to his siblings, "[T]hese are yours. These are the houses you own. Here is your building." There were supposedly multiple conversations about the lack of partnership papers between 1971 and 1996. Finally, in December 1996 when Tiller demanded the papers, Baghdady responded angrily: "There are no papers, no partnership, nothing."
8
In his defense, Baghdady says Tiller herself was responsible for the stock sale. He states that he only sold his own Teledyne shares, and deposited their value into one of his savings accounts to help with the purchase of the Arlington property. Baghdady also acknowledges that he deposited the proceeds of Tiller's stock sale into one of his savings accounts, at his sister's request, in mid-summer 1971, long after the property purchase was closed. Baghdady states that when Tiller was returning to Lebanon in August, she told him to keep the stock sale amount as a loan. He assured the repayment in writing, executing the promissory note acknowledged by Tiller at trial, and writing her a check initiating repayment of the loan.
9
Over the next decade or so, Baghdady paid the balance of the $31,000, plus interest, to Tiller by sending checks, many of them marked "int." or "interest," on almost a monthly basis. The cost of health insurance premiums that Baghdady was covering for Tiller was sometimes deducted from the interest payments. Although Baghdady did not earn a profit on his real estate investment for several years, Tiller received ongoing repayment of the stock proceeds loaned to her brother. Tiller has never received any percentage of earnings from Cedar Crest, and there was no evidence of Tiller taking part in the venture's management.
10
Tiller filed a diversity action in federal district court on May 12, 1997, charging fraud and intentional misrepresentation, negligent misrepresentation, and breach of oral contract. The 2 1/2 day trial began on December 6, 1999. At the close of the plaintiff's evidence, the court granted Baghdady's motion for judgment as a matter of law on both the negligent misrepresentation and the breach of oral contract claims. At the conclusion of the case, the court submitted only the intentional misrepresentation claim to the jury. The first question on the verdict form read: "Has the plaintiff proved by a preponderance of the evidence that the defendant misrepresented to her that she was his partner in the Cedar Crest Apartments development?" The jury responded, "No," obviating the need to answer any further questions. The court entered a judgment for Baghdady.
II.
A. Relevance of excluded evidence
11
At trial, the court refused to allow the admission of documents pertaining to the sale of the Teledyne shares of Violette Haddad, Baghdady's other sister. The plaintiff contends that these documents undermined the veracity of Baghdady's claim that he did not use the money from the sisters' stock sale to purchase the land for his real estate project.
12
The parties first discussed the admissibility of these documents with the judge the morning the trial began, at a conference immediately preceding the arrival of the jury. At this time, Tiller's attorney, Mr. Tariot, noted the discovery just a few days prior to trial of "Notices of Sale" from Bache & Company for Haddad's stock.1 Baghdady's attorney, Mr. Mahony, objected to the admission of the Haddad documents, arguing that they were not relevant to Tiller's claims relating to her own stock. The court was inclined to agree, but Mr. Tariot persisted: "They are relevant, I believe, in that the dates of transactions are from the same brokerage company of the publicly traded shares and occurred on the identical dates in question relative to my client." He added that they are "probative and relevant to some of the checkbook entries [in Baghdady's account] which are in the agreed exhibits, which show sums of money received from Bache & Company and tally out to the penny to the combination of my client's shares and her sister's shares." Tariot then attempted to show how the checkbook entry listing deposits to Baghdady's account represented the sum of Tiller's and Haddad's stock values. The court remained skeptical, focusing instead on the question of "whether [the amount] was a loan or whether [Tiller] bought a piece of an apartment house." Tariot once again explained: "[T]hese documents are probative as to whether [Baghdady] received the sum in April at the time he was negotiating the purchase [of the land], or August." The court disagreed: "If those [notices of sale] don't mention both people [Tiller and Haddad], I don't see how it is probative."2 The court added, however: "If you reach a point where you think that you have laid a foundation, I will revisit it then."
13
Accepting this offer, Mr. Tariot attempted twice more to gain the admission of Haddad's sale notices. The first effort came during Mr. Tariot's examination of Violette Haddad, after her answers established that Baghdady also sold Haddad's Teledyne stock. The relevant colloquy was as follows:
14
MR. TARIOT: This is the juncture at which I would attempt at this time, your Honor, to revisit the issue of documents.
15
THE COURT: What do they add?
16
MR. TARIOT: Excuse me?
17
THE COURT: What do they add?
18
MR. TARIOT: They add - They are cumulative to the testimony, I expect.
19
THE COURT: I think unnecessarily cumulative. I will sustain the objection. If some issue is raised as to the date and fact of sale, then I will let you offer it.
20
In response to Mr. Tariot's argument that the evidence was cumulative in the sense of adding to the evidence already admitted, the court concluded that the evidence was "unnecessarily cumulative" within the meaning of Federal Rule of Evidence 403, which refers to the "needless presentation of cumulative evidence."
21
The second effort to get the sale notices admitted came during the examination of Sami Baghdady, after Mr. Tariot established that a notation next to a deposit in one of his bank accounts read "Bache & Co. $47,314.34." Mr. Tariot next established that the value of the sale of Tiller's Teledyne stock was $31,589.36. With the help of Baghdady, Mr. Tariot subtracted the value of Tiller's stock from the deposit amount. They arrived at the figure $15,724.98. Mr. Tariot then presented a document that prompted a bench conference at the request of Mr. Mahony:
22
MR. MAHONY: We're now coming to the issue, your honor, of documents relating to the sale of Violette's stock.
23
THE COURT: Yes.
24
MR. MAHONY: And I have objected on the grounds that it -
25
THE COURT: It has nothing to do with this case.
26
MR. MAHONY: It has nothing to do with this case.
27
MR. TARIOT: If I might be heard, your Honor?
28
THE COURT: You can make an offer of proof.
29
MR. TARIOT: I will. Consistent with your earlier statement, I can do it in writing, but if I may very briefly be heard?3 It comes down to the penny as to what the entry is in his checkbook on the date which precedes - excuse me - which follows the trade date of two days. It's the same date as the sister's transaction, which he agrees it's [sic] a document in evidence. The sum of these two numbers is to the penny the entry which goes into the checkbook on that date.
30
THE COURT: So?
31
MR. TARIOT: I believe it's probative as to when the sale took place. The defendant has maintained throughout he never sold these shares - that he got the proceeds sometime in August, and that he never sold them in April of 1971.
32
After further discussion about when and how Baghdady received the money from the sale of his sisters' Teledyne shares, the court concluded: "I don't know why we're still talking. I sustained the objection a long time ago."4
33
Under Federal Rule of Evidence 401, relevant evidence is "evidence having any tendency to make the existence of any fact that is of more consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. "The district court has broad discretion in making relevancy determinations and we must review its decisions only for abuse of that discretion." United States v. Brandon, 17 F.3d 409, 444 (1st Cir. 1994). However, "a trial court's discretion is not unlimited." Loinaz v. EG & G, Inc., 910 F.2d 1, 6-7 (1st Cir. 1990). A judge abuses this discretion "when a relevant factor that should have been given significant weight is not considered." United States v. Hastings, 847 F.2d 920, 924 (1st Cir. 1988) (quoting United States v. Kramer, 827 F.2d 1174, 1179 (8th Cir. 1987)). We acknowledge that, "[t]here is no neat, standardized test for judging abuse of discretion; each case must be judged on its own facts and circumstances." Loinaz, 910 F.2d at 7; see alsoEspeaignnette v. Gene Tierney Co., Inc., 43 F.3d 1, 10 (1st Cir. 1994).
34
Tiller claimed that Baghdady needed the proceeds from the sale of her Teledyne stock and her sister's to purchase the land necessary for his real estate project in May 1971. When she discovered this use of her stock in the summer of 1971, she was furious and told Baghdady so. To mollify her, she says, Baghdady promised for the first time to make her a partner in the real estate project. Baghdady insists that he used his own money to purchase the land, and that he did not borrow the money from his sisters, available from the proceeds of the sale of the Teledyne stock, until mid-summer 1971.
35
Given this dispute, evidence tending to show that Baghdady secured the stock sale amounts from his sisters immediately prior to the close of his land purchase cannot be characterized as "only tangentially related to the issue at hand." Elgabri v. Lekas, 964 F.2d 1255, 1261 (1st Cir. 1992) (holding that the exclusion of marginally relevant evidence was within the court's discretion). As the plaintiff explains in her brief on appeal:
36
[A]dding the April 19, 1971 Teledyne stock sale notices of Ms. Tiller ($31,589.36) and Ms. Haddad ($15,724.98) will sum to $47,314.34. This amount is the exact amount reflected as a deposit in Mr. Baghdady's personal business account. The deposit date (April 27, 1971) immediately precedes Mr. Baghdady's receipt of deeds evidencing his purchase of the real estate on May 10, 1971 comprising the Cedar Crest project.
37
This match between the amount of the deposit to Baghdady's account and the combined value of the sale of stock of both sisters is a relevant fact that might prompt a fact-finder to question Baghdady's insistence that he did not use the proceeds from the sale of his sisters' Teledyne stock to purchase the land. Doubt on this point, in turn, might prompt further doubts about Baghdady's account of his business dealings with Tiller. The evidence about the amounts derived from the sale of the sisters' stock is "inseparably intertwined" with the partnership question at issue in this case; the evidence is necessary to "complete the story." United States v. Rosario-Diaz, 202 F.3d 54, 71 (1st Cir. 2000). The Haddad notices of sale were the only evidence establishing the date of the sale of her Teledyne stock prior to Baghdady's land purchase and the precise amount of the proceeds from the stock sale. This evidence was not unnecessarily cumulative. We conclude, therefore, that the trial court erred in excluding the evidence about Haddad's stock sale.5
B. Harmless error
38
An error is harmless when "we can say with fair assurance . . . that the judgment was not substantially swayed by the error." United States v. Gaines, 170 F.3d 72, 82 (1st Cir. 1999) (quoting Vincent v. Louis Marx & Co., Inc., 874 F.2d 36, 41 (1st Cir. 1989)). That is our conclusion here.
39
First, even if the evidence about the Haddad stock transaction had been admitted, there would have remained uncertainty about when the proceeds from the sale of the sisters' Teledyne stock became available to Baghdady. While the trade dates for the sale of Tiller's Teledyne stock indicate transactions on April 19th and 22nd, there was correspondence to Tiller from Bache & Company dated June 8, 1971 requesting documentation of a power of attorney "[i]n order to complete the transfer" from the stock sale. If, as Baghdady contended, a response to this request was necessary for Tiller or Baghdady to receive money from the stock sale, whenever it may have occurred, this money would not have been available to Baghdady for the land purchase on May 10, 1971. Furthermore, there is no evidence that the April deposit into Baghdady's savings account, alleged to be the value of his sisters' Teledyne stock, was then used to fund the purchase of the land that would become Cedar Crest Apartments.
40
More importantly, the overwhelming weight of the evidence in this case supports Baghdady's version of this dispute. Tiller only has her account of a few conversations with Baghdady, confirmed by testimony from her brother and sister, over a period of twenty-five years. By contrast, Baghdady has the promissory note he executed for Tiller and accepted by her setting forth her agreement to receive repayment of the $31,000. As the note specifies, "[t]his amount, I received from the sale of Teledyne Inc. stock in your name." At trial, Mr. Mahony painstakingly reviewed with Tiller the series of checks, drafted over more than a decade, which represented the repayment with interest of the loan documented in the promissory note. Based on this substantial evidence, we can say with fair assurance that the jury's verdict against Tiller on her intentional misrepresentation claim was not substantially swayed by the court's error in excluding evidence about the sale of Violette Haddad's Teledyne stock.
III.
Motion for judgment as a matter of law
41
Tiller claims error in the court's decision to grant a judgment as a matter of law on the claims of breach of oral contract and negligent misrepresentation. Assuming arguendo that there was such an error, any error was unmistakably harmless.
42
In concluding that Baghdady had not "misrepresented to [Tiller] that she was his partner in the Cedar Crest Apartments Development," the jury decided that Baghdady had not told Tiller that she would become his partner. That alleged promise was central to the breach of contract claim. That claim necessarily failed along with the intentional misrepresentation claim. Similarly, a finding of a misrepresentation is a necessary element of both a negligent and intentional misrepresentation claim. See Zuckerman v. MacDonald's Corp., 35 F. Supp. 2d 135, 144 (D. Mass. 1999). The jury's conclusion that there was no misrepresentation necessarily defeats both claims. Thus, any error in keeping the breach of oral contract and negligent misrepresentation claims from the jury was harmless.
43
Judgment affirmed.
Notes:
1
There were three "Notice of Sale" documents at issue: April 19, 1971 in the net amount of $15,724.98; April 21, 1971 in the net amount of $1,486.46; and April 22, 1971 in the net amount of $9,167.81. Ultimately, the April 19, 1971 Notice of Sale became the crucial document from Tiller's perspective. Seeinfra pp. 8, 12.
2
Other evidence pertaining only to the sale of Haddad's stock, including Haddad's executed power of attorney and Baghdady's correspondence promising repayment of the stock sale amount, were readily referenced at trial by both parties.
3
On appeal, the defendant argues that the fact that an offer of proof was never put in writing makes any challenge to the exclusion of evidence impermissible. We disagree. Federal Rule of Evidence 103(a)(2) does not require that an offer of proof appear in any particular form. See 21 Charles Alan Wright & Kenneth A. Graham, Jr., Federal Practice and Procedure § 5040 (1977). In this case, Mr. Tariot adequately explained the substance of the evidence he sought to have admitted.
4
At this point, the defendant also argued that the evidence in question was not covered by a pre-trial stipulation entered into in June 1998, and thus was not admissible. The trial was initially scheduled for September 1998. After a continuance was granted due to an illness, the parties agreed to freeze evidence, pursuant to a stipulation, thereby precluding the admission of evidence in the delayed trial not identified at that time. Such a stipulation does not necessarily preclude the admission of additional evidence in subsequent proceedings. As we have said, "It was within the discretion of the district court to hold parties to compliance with the pretrial stipulation." Jay Edwards, Inc., v. New England Toyota Distributor, Inc., 708 F.2d 814, 824 (1st Cir. 1983). The court had the option of admitting this evidence if it deemed it relevant. In any event, the court's exclusionary ruling was based on its sense of relevance, not the stipulation, and the issue of the stipulation was never reached.
5
Judge Lynch does not agree there was an abuse of discretion in excluding the evidence, particularly after plaintiff's counsel conceded it was cumulative.
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546 F.2d 1224
UNITED FRUIT COMPANY, Petitioner,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR and Herman G. Hoff, Respondents.
No. 75-3639.
United States Court of Appeals,Fifth Circuit.
Feb. 11, 1977.
Shelly M. Barto, C. Brooks Morris, New Orleans, La., for petitioner.
1
William J. Kilberg, Sol. of Labor, U. S. Dept. of Labor, Laurie M. Streeter, Harry L. Sheinfeld, Washington, D. C., for Dept. of Labor.
2
Eldon E. Fallon, New Orleans, La., for Herman Hoff.
3
Thomas W. Thorne, Jr., New Orleans, La., Noble Eden, Metairie, La., for other interested parties.
4
Petition for Review of an Order of the Benefits Review Board (Louisiana Case).
5
Before BROWN, Chief Judge, and HILL and FAY, Circuit Judges.
JAMES C. HILL, Circuit Judge:
6
United Fruit Company, a self insured employer, presently appeals to this Court, seeking review of an order of the Benefits Review Board, United States Department of Labor. In that order, the Benefits Review Board reversed the order of the administrative law judge which rejected the claim for disability benefits of Herman Hoff, pursuant to the provisions of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1424, as amended, 33 U.S.C.A. 901 et seq. (hereinafter referred to as the Act).
7
In its order, the Benefits Review Board held that the claimant Hoff was entitled to disability benefits. United Fruit Company seeks to appeal from that ruling. However, the order also remanded the case to the administrative law judge in order that the nature and extent of the claimant's disability and the possible liability of the special second injury fund could be determined.
8
The Director, Office of Workers' Compensation Programs, United States Department of Labor, has moved this Court to dismiss the petition of United Fruit Company for review of the order of the Benefits Review Board contending that a final order has not been rendered in the cause and hence the order is not reviewable under Section 21(c) of the Act. 33 U.S.C.A. § 921(c) (Supp. II 1972). We agree.
9
Section 21(c) of the Act, in pertinent part, provides as follows:
10
Any person adversely affected or aggrieved by a final order of the Board may obtain a review of that order in the United States court of appeals for the circuit in which the injury occurred, by filing in such court within sixty days following the issuance of such Board order a written petition praying that the order be modified or set aside. . . .
11
Following the precedent of our Circuit as well as others, we hold that the petition must be dismissed for lack of a final order. Strachan Shipping Co. v. Davis, No. 75-4017 (5th Cir. March 17, 1975); Gulfport Shipbuilding v. Vallot, 334 F.2d 358 (5th Cir. 1964); Sun Shipbuilding v. Benefits Review Board, 535 F.2d 758 (3rd Cir. 1976); Terminal Shipping Company et al. v. Spence et al., No. 75-2267 (4th Cir. Feb. 17, 1976); Todd Shipyards Corporation et al. v. Allan et al., No. 75-3442 (9th Cir. May 14, 1976).
12
By ordering dismissal of this appeal as premature, the order complained of being interlocutory, we do not hold that such order may not be subject to review upon appropriate appeal from a final order.
13
DISMISSED.
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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 30, 2000 Decided June 27, 2000
No. 94-1683
American Petroleum Institute, et al.,
Petitioners
v.
United States Environmental Protection Agency,
Respondent
Chemical Manufacturers Association,
Intervenor
Consolidated with
94-1684, 94-1686, 98-1494, 98-1506, 98-1507, 98-1514
On Petitions for Review of Orders of the
Environmental Protection Agency
Michael W. Steinberg and Thomas Sayre Llewellyn argued
the causes for petitioners American Petroleum Institute, et al.
With them on the briefs were G. William Frick, Ralph J.
Colleli, Jr., Joshua D. Sarnoff, David F. Zoll, Ronald A.
Shipley, Christopher H. Marraro and John W. Kampman.
Hunter L. Prillaman, David B. Graham and Judith A.
Wenker entered appearances.
David Frederick and David R. Case argued the causes and
filed the briefs for petitioners Louisiana Environmental Ac-
tion Network, et al. Richard W. Lowerre entered an appear-
ance.
Steven E. Silverman, Attorney, Environmental Protection
Agency, Patricia R. McCubbin, Attorney, and Martin F.
McDermott, Attorneys, U.S. Department of Justice, argued
the causes for respondent. With them on the brief were Lois
J. Schiffer, Assistant Attorney General, David J. Kaplan and
Alan Birnbaum, Attorneys, and Alan H. Carpien, Attorney,
Environmental Protection Agency. Christopher S. Vaden,
Attorney, U.S. Department of Justice, entered an appearance.
Ralph J. Colleli, Jr. argued the cause for Intervenor Amer-
ican Petroleum Institute. With him on the brief were G.
William Frick and Thomas S. Llewellyn. David F. Zoll and
Ronald A. Shipley entered appearances.
Before: Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed PER CURIAM.*
PER CURIAM: Two sets of petitioners challenge regula-
tions of the United States Environmental Protection Agency
("EPA") promulgated under the Resource Conservation and
Recovery Act ("RCRA"), 42 U.S.C. s 6901 et seq. (1994). The
EPA rulemaking at issue concerned regulating several sec-
ondary materials generated by the petroleum refining and
petrochemical industries as "solid waste" and "hazardous
waste."
__________
* Judge Sentelle authored Part I of this opinion, Judge Williams
Part II, and Judge Rogers Part III.
Industry petitioners, American Petroleum Institute
("API"), the Chemical Manufacturers Association ("CMA"),
and Texaco, Inc. (collectively, "industry petitioners"), assert
two main categories of challenges. The first category chal-
lenges EPA's regulation under RCRA of two materials as
solid waste. The second challenges EPA's listing of certain
refinery wastes as hazardous waste. Environmental petition-
ers, Louisiana Environmental Action Network ("LEAN"),
Communities for a Better Environment of California
("CBE"), the Sierra Club, and the Environmental Technology
Council ("ETC") (collectively, "environmental petitioners"),
challenge EPA's failure to list certain items and further
allege an Administrative Procedure Act ("APA"), 5 U.S.C.
s 551 et seq. (1994), notice and comment claim.
We deny the petition of the industry petitioners on all
counts but one, on which we vacate and remand to EPA for
further proceedings. Finding that we lack jurisdiction to
consider the claims of environmental petitioners, we dismiss
their petition.
I. Industry Petitioners' Challenges to EPA's Regulation
of Recovered Oil and Wastewaters as Solid Waste
A. Statutory Framework
RCRA is a comprehensive environmental statute granting
EPA authority to regulate solid and hazardous wastes. "Sol-
id wastes" are governed by Subtitle D of RCRA, and are
generally subject to less stringent management standards
than "hazardous wastes" which are regulated under Subtitle
C. For purposes of RCRA, Congress defined solid waste as
follows:
The term "solid waste" means any garbage, refuse,
sludge from a waste treatment plant, water supply treat-
ment plant, or air pollution control facility and other
discarded material, including solid, liquid, semisolid, or
contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations, and
from community activities....
42 U.S.C. s 6903(27).
In pursuit of its congressionally conferred duty and author-
ity to regulate solid waste under RCRA, the EPA has
adopted regulations defining solid waste for purposes of its
hazardous waste regulations: "A solid waste is any discarded
material," 40 C.F.R. s 261.2(a)(1) (1999), subject to a number
of exclusions enumerated in s 261.4(a) and case-by-case vari-
ances under ss 260.30 and 260.31. The term "discarded
material" for purposes of the regulation means any material
which is abandoned, recycled, or considered inherently waste-
like. 40 C.F.R. s 261.2(a)(2).
In 1994 and 1998 rulemakings in pursuit of its RCRA
obligations, the EPA examined the production processes of
the petroleum refining industry. As pertinent to the issue
before us, EPA considered whether to exclude from the
definition of solid waste two secondary materials: oil-bearing
wastewaters generated by the petroleum refining industry
and recovered oil produced by the petrochemical manufactur-
ing industry. See Hazardous Waste Management System,
Identification and Listing of Hazardous Waste; Petroleum
Refining Process Wastes; Land Disposal Restrictions for
Newly Identified Wastes; and CERCLA Hazardous Sub-
stance Designation and Reportable Quantities, 63 Fed. Reg.
42,110 (1998) ("Final Rule"); Hazardous Waste Management
System, Identification and Listing of Hazardous Waste;
Petroleum Refining Process Wastes; Land Disposal Restric-
tions for Newly Identified Wastes; and CERCLA Hazardous
Substance Designation and Reportable Quantities, 60 Fed.
Reg. 57,747 (1995) ("Proposed Rule"); Identification and
Listing of Hazardous Waste; Amendments to Definition of
Solid Waste, 59 Fed. Reg. 38,536 (1994) ("1994 Rule"). EPA
determined that oil-bearing wastewaters are solid waste for
purposes of RCRA regulation, and that recovered oil from
petrochemical facilities is excluded from the definition of solid
waste only when specified conditions are met. See Proposed
Rule, 60 Fed. Reg. at 57,755/3-57,756/1; Final Rule, 63 Fed.
Reg. at 42,128-30; 40 C.F.R. s 261.4(a)(12), (18). Industry
petitioners challenge these conclusions.
B. Oil-Bearing Wastewaters
In petroleum refining, impurities are removed and usable
hydrocarbon fractions are isolated from crude oil feedstock.
See Final Rule, 63 Fed. Reg. at 42,113/3-42,115/1, 42,121/2.
Large quantities of water are used, and the resulting waste-
waters contain a small percentage of residual oil. These "oil-
bearing wastewaters" are destined for ultimate discharge, but
only after a three-step treatment process is first applied.
The first phase of treatment, known as "primary treatment,"
removes certain materials including the oil. This phase has
at least two beneficial consequences: (1) it meets a Clean
Water Act requirement that refineries remove oil from their
wastewater, and (2) it allows refineries to recover a not
insignificant quantity of oil (up to 1,000 barrels a day across
the industry) which is cycled back into the refinery produc-
tion process.
Industry petitioners and EPA disagree over when these
wastewaters become discarded for purposes of the solid waste
definition. While no one disputes that discard has certainly
occurred by the time the wastewaters move into the later
phases of treatment, the question is whether discard happens
before primary treatment, allowing regulation of wastewater
as solid waste at that point, or not until primary treatment is
complete and oil has been recovered for further processing.
EPA's initial proposal excluded oil-bearing wastewaters.
See 1994 Rule, 59 Fed. Reg. at 38,540/3 (citing Identification
and Listing of Hazardous Waste; Amendments to Definition
of Solid Waste, 53 Fed. Reg. 519, 525-26 (1988)). However, it
changed its mind in 1994 and concluded that even before the
oil is recovered in primary treatment, "the wastewaters are
discarded materials and hence solid wastes subject to regula-
tion under RCRA." 59 Fed. Reg. 38,540/1. EPA stated:
"Primary wastewater treatment operations exist to treat
plant wastewaters." Id. at 38,539/3. It noted that the per-
centage of oil in the wastewater is very small and "not
significant in the context of a refinery's overall production
activities," and that the Clean Water Act mandates such
treatment. Id.; see also 40 C.F.R. Part 419; API v. EPA,
540 F.2d 1023 (10th Cir. 1976) (discussing water discharge
regulations). For these stated reasons, EPA concluded that
"[c]learly, wastewater treatment is the main purpose of the
systems in question, and any oil recovery is of secondary
import." 59 Fed Reg. at 38,539/3.
EPA restated its conclusion in its subsequent 1995 Pro-
posed Rule, 60 Fed. Reg. at 57,755/3, and retained it in the
Final Rule. See 63 Fed. Reg. at 42,184 (codified at 40 C.F.R.
s 261.4(a)(12)(ii)). The actual regulation does not mention
wastewaters. But by not being excluded, all wastewaters
including oil-bearing wastewaters are considered to fall under
EPA's general regulatory definition of solid waste.
Whether a material has been "discarded," subjecting it to
RCRA regulation, is a question we have considered in four
prior cases. First, in American Mining Congress v. EPA,
824 F.2d 1177 (D.C. Cir. 1987) ("AMC I"), we held that the
term "discarded" conforms to its plain meaning. Id. at 1193.
Thus, items that are "disposed of, abandoned, or thrown
away" are discarded. Id. AMC I concluded that "in-process
secondary materials," that is, materials "destined for immedi-
ate reuse in another phase of [an] industry's ongoing produc-
tion process," are not discarded under RCRA. Id. at 1185,
1193. We recently reaffirmed that holding in Association of
Battery Recyclers, Inc. v. EPA, 208 F.3d 1047 (D.C. Cir.
2000), where we reiterated that EPA cannot regulate as solid
waste secondary materials "destined for reuse as part of a
continuous industrial process" that is therefore "not aban-
doned or thrown away." Id. at 1056.
At the other end of the spectrum we have held that a
material that has been "indisputably 'discarded' " can, of
course, be subjected to regulation as solid waste. API v.
EPA, 906 F.2d 729, 741 (1990). Where a material was
"delivered to [a metals reclamation] facility not as part of an
'ongoing manufacturing or industrial process' within 'the gen-
erating industry,' but as part of a mandatory waste treatment
plan prescribed by EPA," we concluded that a material was
not precluded from being classified by EPA as a solid waste.
Id.; see also United States v. Ilco, Inc., 996 F.2d 1126, 1132
(11th Cir. 1993) ("Previously discarded solid waste, although
it may at some point be recycled, nonetheless remains solid
waste.").
A material somewhere between the extremes of ongoing
production and indisputable discard was addressed in Ameri-
can Mining Congress v. EPA, 907 F.2d 1179 (D.C. Cir. 1990)
("AMC II"). Industry petitioners claimed that sludges from
wastewater stored in surface impoundments, which "may"
later be reclaimed for treatment, could not be regulated. Id.
at 1186. We disagreed and deferred to EPA's determination
that such sludges have been discarded. Nothing, we rea-
soned, prevents EPA from regulating as "solid wastes" mate-
rials managed in land disposal units which are no longer part
of an industrial process. See id. at 1186-87; see also Owen
Elec. Steel Co. of S.C., Inc. v. Browner, 37 F.3d 146, 150 (4th
Cir. 1994) (slag recycled after sitting for up to six months was
reasonably classified as solid waste).
Industry petitioners rely primarily on AMC I. They first
contend that the oil-bearing wastewaters at issue in this case
cannot be classified as discarded because AMC I already said
they are not. We disagree. True, API's brief in AMC I
characterized oil-bearing wastewaters as part of an ongoing
industrial process. Our opinion in AMC I, however, did not
decide this question. We only held that in-process secondary
materials are not "discarded" so that EPA could not regulate
them; we did not address the discard status of any of the
particular materials discussed in the briefs. See AMC I, 824
F.2d at 1181 (describing the petroleum refining process); cf.
Battery Recyclers, 208 F.3d at 1056 (holding that "all we can
say with certainty is that at least some of the secondary
material EPA seeks to regulate" is not discarded).
Industry petitioners also contend that even if AMC I did
not decide the issue, oil-bearing wastewaters cannot be regu-
lated because they are (as claimed in API's AMC I brief)
unquestionably in-process materials not yet discarded. Alter-
nately, even if the status of oil-bearing wastewaters is not so
plain, petitioners assert that EPA's conclusion is arbitrary
and capricious because it is not based on reasoned decision-
making. See, e.g., Motor Vehicle Mfrs. Ass'n of the United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (agency must "articulate a satisfactory explanation for
its action including a rational connection between the facts
found and the choice made") (internal quotation marks omit-
ted). Petitioners emphasize that primary treatment yields
valuable oil that is reinserted into the refining processes in a
continuous operation. They also claim that oil recovery oper-
ations began long before Clean Water Act regulations re-
quired it. In sum, they contend that oil recovery in primary
treatment is a part of in-process oil production.
At bottom, the parties disagree over the proper character-
ization of primary treatment. Is it simply a step in the act of
discarding? Or is it the last step in a production process
before discard? Our prior cases have not had to draw a line
for deciding when discard has occurred. While the issue was
closest in AMC II, the sludges in dispute there were de-
scribed as being stored in surface impoundments "that may at
some time in the future be reclaimed." AMC II, 907 F.2d at
1186. We concluded that EPA's interpretation of "discarded"
as including the sludges was reasonable and entitled to
deference under Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837, 842-45 (1984). See AMC
II, 907 F.2d at 1186-87; Battery Recyclers, 208 F.3d at 1055;
cf. Owen Elec., 37 F.3d at 150. We did not, however, focus on
whether EPA's reasoning to reach that result was arbitrary
or capricious under the APA. See State Farm, 463 U.S. at
43; 5 U.S.C. s 706(2)(A) (1994). The second step of Chevron
analysis and State Farm arbitrary and capricious review
overlap, but are not identical. See Michigan v. EPA, ---
F.3d ----, 2000 WL 180650, *17 (D.C. Cir. 2000); Arent v.
Shalala, 70 F.3d 610, 614-16 (D.C. Cir. 1995).
It may be permissible for EPA to determine that the
predominant purpose of primary treatment is discard. Legal
abandonment of property is premised on determining the
intent to abandon, which requires an inquiry into facts and
circumstances. See Baglin v. Cusenier Co., 221 U.S. 580,
597-98 (1911); International Finance Corp. v. Jawish, 71
F.2d 985, 986 (D.C. Cir. 1934); see also Katsaris v. United
States, 684 F.2d 758, 761-62 (11th Cir. 1982) (collecting
cases). Where an industrial by-product may be characterized
as discarded or "in process" material, EPA's choice of charac-
terization is entitled to deference. See AMC II, 907 F.2d at
1186. However, the record must reflect that EPA engaged in
reasoned decisionmaking to decide which characterization is
appropriate. The record in this case is deficient in that
regard. EPA has noted two purposes of primary treatment
and concludes, "[c]learly, wastewater treatment is the main
purpose." 1994 Rule, 59 Fed. Reg. 38,539/3. As English
teachers have long taught, a conclusion is not "clear" or
"obvious" merely because one says so.
EPA points out that primary treatment only recovers a
small amount of oil relative to the entire output of a typical
refining facility. However, the oil is still valuable and usable,
so that reason alone cannot show discard. The rock of a
diamond mine may only contain a tiny portion of precious
carbon, but that is enough to keep miners busy. In the
refining industry, the net amount of oil recovered may reach
1,000 barrels a day. It is plausible to claim, as industry
petitioners do, that refiners engage in primary treatment first
and foremost to recover this usable resource. At the very
least, EPA cannot merely rely on the small relative amount of
oil recovered from primary treatment without further expla-
nation.
EPA also notes that the Clean Water Act requires primary
treatment before discharge. If refiners got nothing from
primary treatment, this might be a compelling rationale be-
cause it would be hard to explain why, other than to discard,
refiners would engage in a costly treatment activity with no
economic benefits. See API, 906 F.2d at 741. However,
petitioners claim they would engage in primary treatment
regardless of the treatment standards in order to recover the
desired oil. EPA does not explain why this possibly valid
motivation is not compelling. EPA makes no attempt to
balance the costs and benefits of primary treatment, or
otherwise to explain why the Clean Water Act requirements
are the real motivation behind primary treatment. Indeed,
without further explanation, it is not inherently certain why a
substance is definitively "discarded" if its possessor is con-
tinuing to process it, even though the possessor's decision to
continue processing may have been influenced, or even pre-
dominantly motivated, by some external factor. Otherwise
put, it is not so obvious as EPA would have us hold that if the
industry petitioners conceded that their overriding motivation
in further processing the wastewaters was compliance with
Clean Water Act regulations that they would then conclusive-
ly be discarding the material in question even while further
processing it. If the non-Clean Water Act benefits of the
initial treatment are enough to justify firms' incurring the
costs (petitioners point to material in the record that may
support such a proposition), the EPA would have to reconcile
that fact with any conclusion that the Clean Water Act
purpose was primary.
In short, EPA has not set forth why it has concluded that
the compliance motivation predominates over the reclamation
motivation. Perhaps equally importantly it has not explained
why that conclusion, even if validly reached, compels the
further conclusion that the wastewater has been discarded.
Therefore, because the agency has failed to provide a rational
explanation for its decision, we hold the decision to be arbi-
trary and capricious. See State Farm, 463 U.S. at 46-57;
Illinois Public Telecomms. Ass'n v. FCC, 117 F.3d 555, 564
(D.C. Cir. 1997). We therefore vacate the portion of EPA's
decision declining to exclude oil-bearing wastewaters from the
statutory definition of solid waste, and remand for further
proceedings. We do not suggest any particular result on
remand, only a reasoned one demonstrating when discard
occurs if EPA wishes to assert jurisdiction.
C. Petrochemical Recovered Oil
Unlike petroleum refiners, petrochemical manufacturers do
not refine crude oil but instead use refined petroleum prod-
ucts and other feedstocks to produce petrochemical products
such as organic chemicals. These production processes can
produce residual oil, known as "petrochemical recovered oil."
Final Rule, 63 Fed. Reg. at 42,114 n.2. This oil can be
inserted into the petroleum refining process.
EPA crafted a regulation excluding petrochemical recov-
ered oil from the definition of solid waste, provided that
certain conditions are met. These conditions are designed to
disqualify from the exclusion oil that contains non-refinable
hazardous materials. See id. at 42,129-30. EPA was con-
cerned that if additional unneeded materials present in petro-
chemical recovered oil were covered by the exclusion, it would
allow for the improper disposal of waste materials through
adulteration. Such activity is called "sham recycling." See
United States v. Marine Shale Processors, 81 F.3d 1361, 1365
(5th Cir. 1996). Simply put, if extra materials are added to
petrochemical recovered oil that provide no benefit to the
industrial process, EPA finds this to be an act of discard
under the guise of recycling. Although EPA apparently does
not know if sham recycling actually occurs in this industry, it
was concerned because some of the petrochemical recovered
oil samples it tested were contaminated with chlorinated or
other halogenated materials that were unexpected.
The EPA rule promulgated excludes from its solid waste
definition "petrochemical recovered oil ... to be inserted into
the petroleum refining process ... along with normal petrole-
um refinery process streams, provided [that] [t]he oil is
hazardous only because it exhibits the characteristic of ignita-
bility ... and/or toxicity for benzene...." Final Rule, 63
Fed. Reg. 42,185 (codified at 40 C.F.R. s 261.4(a)(18)(i)).
EPA explained that the ignitability and benzene toxicity
properties are typical of or very similar to basic petroleum
refining feedstocks. See Final Rule, 63 Fed. Reg. at 42,130/1.
Thus, the exclusion does not cover petrochemical recovered
oil that is hazardous due to the presence of other hazardous
materials. The exclusion also contains other conditions
meant to help curb sham recycling, such as when petrochemi-
cal recovered oil is "speculatively accumulated before being
recycled into the petroleum refining process." Id.
Industry petitioner CMA makes one argument, premised
solely on Chevron step one. CMA argues that EPA has no
authority to regulate any petrochemical recovered oil under
any circumstances because such materials are not "discard-
ed." The reasonableness of the conditions adopted by EPA
as part of its exclusions are not challenged because, in CMA's
opinion, no such conditions may be imposed.
This Chevron plain meaning argument fails because EPA is
correct that abandoning a material is discarding even if
labeled recycling. EPA is not violating AMC I's definition of
discard. To the contrary, the premise of EPA's rule is sound
precisely because it is meant to regulate only discarded
materials. EPA can regulate material "discarded" through
sham recycling even though it cannot regulate under RCRA
materials that are not discarded. Speculatively accumulated
recovered oil is a clear example of a condition imposed under
the exclusion which shows that some petrochemical recovered
oil can indeed be considered as discarded. Even if, assuming
for the sake of argument, the rule's many conditions might
incidentally regulate oil containing chemicals not caused by
sham recycling (and therefore not discarded), that is beyond
the claim we consider today. Presumably a refiner in a
specific case could attempt to show that additional chemicals
in the oil are not a product of adulteration, not discarded, and
outside EPA's authority to regulate such material under
RCRA. We therefore deny CMA's petition as to petrochemi-
cal recovered oil.
II. Industry Petitioners' Challenges to Listing
of Refinery Wastes as Hazardous
Industry petitioners allege that the listed refinery residuals
do not pose a "substantial present or potential hazard to
human health or the environment," RCRA s 1004(5)(B), 42
U.S.C. s 6903(5)(B); 40 C.F.R. s 261.11(a)(3) (emphasis add-
ed), and thus were improperly listed as "hazardous waste."
Their argument is based on EPA's explicit recognition that
for some of the wastestreams at issue "population risk" is
"near zero." Notice of Proposed Rulemaking: Hazardous
Waste Management System, 60 Fed. Reg. 57,747, 57,789/2
(1995). Our disposition of this claim turns on the relationship
between "individual risk," which EPA regarded as substan-
tial, and "population risk," which for some wastestreams it
acknowledged as negligible. Until a letter filed after oral
argument, petitioners did not attack the EPA's characteriza-
tion of the individual risks, and thus we have no occasion to
consider whether the agency lawfully characterized such risks
as substantial.
Before considering this claim, we pause for a brief explica-
tion of these concepts. "Population risk" is, as its name
suggests, the risk of the population at large, generally calcu-
lated as an "upper bound" estimate of risk for the population
overall. It is commonly measured in terms of health effects
cases over a given time period (e.g., cancer deaths caused per
year). Draft Report: Assessments of Risks From the Man-
agement of Petroleum Refining Wastes: Background Docu-
ment 2-25 (October 1995) ("Draft Report"). "Individual risk"
is calculated variously as a "bounding estimate," a "central
tendency estimate," or a "high-end estimate," for a member
of a particular segment of the population. Id. at 2-33. (For
high-end estimates, the agency set the two most sensitive
parameters at the high end (90th percentile point on the
distribution), and set the others at their central tendency.
Final Rule, 63 Fed. Reg. at 42,117/2, 42,120 (Table IV-2)
(1998).) Unlike population risk, individual risk is commonly
measured in terms of lifetime risk. As the term population
risk seems to imply, it is an aggregate, calculated either by
"summing the estimated individual risk over all of the individ-
uals in the population," Draft Report at 2-34, or by estimat-
ing methods aimed at the same goal, id. EPA counsel
confirmed at oral argument that population risk aggregates
individual risk.
Suppose, for example, that a particular waste poses an
individual 1-in-100,000 lifetime risk of death from cancer to
100 people. The estimated annual population risk is 1 in
100,000 divided by 70, since the "individual" risk estimate
assumes a 70-year lifespan, and multiplied by 100, to reflect
the 100 persons exposed; thus the estimated additional annu-
al cancer incidence for this population is 100 X 1/7,000,000 =
1.4 X 10-5 (or, 1.4 cases every 100,000 years). Of course any
other cancer cases estimated to result from exposure to the
waste across the overall population would be added in to
produce the complete population risk estimate.
According to established EPA practice, wastestreams with
"high-end individual cancer-risk level[s]" of 1 in 100,000 life-
times or higher "generally are considered initial candidates"
for listing, and those that pose a risk of at least 1 in 10,000
lifetimes are "presumptively assumed" to merit listing. No-
tice of Proposed Rulemaking: Hazardous Waste Management
System, 59 Fed. Reg. 66,072, 66,077 (1994). EPA found that
the risks posed by the refinery residuals generally met at
least the candidate level for listing. See Final Rule, 63 Fed.
Reg. at 42,150-55. But in the case of one subcategory of
clarified slurry oil ("CSO") sediment, namely landfilled sedi-
ments, EPA appears to acknowledge that high-end individual
risk was actually as low as 4 X 10-6, i.e., 4 cancer deaths in
one million lifetimes of exposure, id. at 42,152/2 (expressed as
"4E-6"), and "that the incremental [population] risk in terms
of cancer cases avoided would be near zero." Notice of
Proposed Rulemaking: Hazardous Waste Management Sys-
tem, 60 Fed. Reg. 57,747, 57,789 (1995). Petitioners argue
that EPA's failure to consider the "near zero" population risk,
which by their calculations based on EPA's figures ranged
from 0.3 cancer cases in 10,000 years to 0.7 cases in 1 million
years, API's Initial Br. at 34, rendered its listing unlawful. 5
U.S.C. s 706(2)(A).1
__________
1 The passages of the record cited by petitioners for a popula-
tion risk as low as 0.7 cases in a million years appear to refer not to
an overall aggregate but only to the risk for a subset of the exposed
population, 76 home gardeners. See Joint Appendix at 2592. EPA,
however, does not defend on the basis that petitioners have chosen
an incomplete figure for population risk. (We note that a popula-
tion risk of 0.7 cases in a million years is equivalent to an individual
risk of 5 cancers in 100,000 lifetimes, which would be within EPA's
"candidate" levels for listing.)
Were population risk a factor that EPA had to weigh with
and against individual risk to determine whether a particular
hazard was "substantial," the Agency would have to provide a
reason for ignoring it in this instance. Dithiocarbamate Task
Force v. EPA, 98 F.3d 1394, 1398-99 (D.C. Cir. 1996). But
neither the statute nor the regulation identifies population
risk per se as one of the mandatory factors that the Agency
must consider. See 42 U.S.C. s 6921(a); 40 C.F.R.
s 261.11(a)(3). Under EPA's regulations, the Administrator
must "consider[ ]" "[t]he nature and severity of the human
health and environmental damage that has occurred" from
mismanagement of the waste, 40 C.F.R. s 261.11(a)(3)(ix);
but this does not necessarily imply that substantial individual
risk alone, without high population risk, cannot be enough to
constitute a "substantial ... hazard."
Much of what EPA has written could be taken as requiring
substantial population risk. Thus, here it observed, "Popula-
tion risk is only one of many factors to be considered," Final
Rule, 63 Fed. Reg. at 42,138/3, arguably suggesting that it
always "consider[s]" it, so that zero or near-zero population
risk would exonerate, or tend to exonerate, a wastestream.
In context, however, we believe we may discern the Agency's
path to its conclusion that individual risk alone may be
enough to justify a hazardous waste listing, regardless of
population risk. Motor Vehicle Mfrs. Ass'n of the United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). EPA states, for instance, that it "does not believe
that it is appropriate to allow contamination from waste
management units to cause substantial risk to nearby resi-
dents simply because there are few wells in the immediate
area" and that its "decision to list these wastes is based
primarily on the concern over risks to those individuals who
are significantly exposed, even if there are relatively few of
them." Final Rule, 63 Fed. Reg. at 42,138/3 (emphasis
added). These justifications are consistent with its 1995
Guidance for Risk Characterization, which states that when
small populations are exposed (and thus population risk is
low), "individual risk estimates will usually be a more mean-
ingful parameter for decision-makers." Id. Moreover, EPA
cited instances (primarily in the Superfund context) in which,
consistent with this reasoning, it "rejected using population
risk as the point of departure" and took action because of the
high individual risk even though population risk was low. Id.
at 42,139/1. We thus read EPA as saying--in consonance
with both the governing statute and regulation--that it will
regulate a waste that poses a substantial risk to highly
exposed individuals, even if that risk poses a relatively small
risk to the population at large.
Petitioners also argue that if RCRA is read to allow EPA
to list wastes that pose "near zero" population risk without
establishing a stopping point, then the statute effectuates a
violation of the nondelegation principle. See American
Trucking Ass'ns, Inc. v. EPA, 175 F.3d 1027, 1034 (D.C. Cir.
1999) (per curiam), modified on reh'g, 195 F.3d 4 (D.C. Cir.
1999), cert. granted, 120 S. Ct. 2003 (May 22, 2000). But
petitioners failed to attack EPA's judgment that the individu-
al risks presented here alone constituted a "substantial"
hazard; rather they assumed the necessity of a population
risk factor, and then attacked any notion of population risk
that could slide so low. But in the EPA view population risk
drops out of the calculation altogether under the facts pre-
sented, so we have no occasion to review petitioners' claim
that the "population risk" factor is unduly elastic.
Industry petitioners also allege that even if the listings are
valid, they nonetheless are overbroad and should be vacated.
Several of these contentions, we think, are not only adequate-
ly answered in the EPA's brief but are also too fact-specific to
justify exposition in a published opinion. The other two call
for explicit analysis.
First, petitioners argue that EPA's listing of CSO sediment
is overbroad. Although according to petitioners "CSO is
often blended, in various proportions, with other petroleum
products," EPA sampled only sediment from CSO stored by
itself. API's Initial Br. at 46. In defense of its action EPA
appeals to the well-established "mixture rule," providing that
the mixture of a solid waste and a listed hazardous waste is
itself a hazardous waste. 40 C.F.R. s 261.3(a)(2)(iv).
Although EPA's brief reads as if it viewed the decision here
as a simple application of the mixture rule, industry petition-
ers point out that, strictly speaking, this is not so: sediment
generated from a mixture of CSO and other refinery products
is not itself the mixture of CSO sediment with a solid waste.
To put it more generally, to say that any mixture of hazard-
ous waste X and solid waste Y (the latter being any solid
waste whatever) is a hazardous waste--as the mixture rule
does--is not exactly the same as saying that where the
sediment of X is a hazardous waste, the sediment of X and Y
(Y being any substance whatever) is a hazardous waste.
Thus, we think EPA in fact extended its mixture rule, or
developed a corollary. But petitioners have pointed us to
nothing in the record or in common sense that would contra-
dict EPA's belief that the sediment generated from a CSO
blend would contain CSO sediment. See Final Rule, 63 Fed.
Reg. at 42,153/2 (asserting that it would be likely to generate
CSO sediment). On this record, then, we see nothing to
upset the EPA decision.
Second, industry petitioners argue that EPA's listing of
guard beds was arbitrary and capricious. These are related
to hydrotreating and hydrorefining catalysts, which EPA
decided to list, and to hydrocracking catalysts, which it did
not list. EPA acknowledged that there is no "universally
established or accepted" way of distinguishing among these
three processes, although they can be viewed as differing in
terms of "degrees of severity of operating conditions and
conversion of larger hydrocarbons to smaller molecules
('cracking'), and/or feeds." Final Rule, 63 Fed. Reg. at
42,155/1. The proposed regulations defined hydrorefining as
including "processes where 10 percent of the feed or less is
reduced in molecular size," and hydrocracking as including
"processes where 50 percent of the feed or more is reduced in
molecular size." Id. at 42,155/2. EPA rejected this proposal,
determining that the "simplest way" to distinguish hydro-
cracking catalysts from hydrotreating and hydrorefining cata-
lysts was to rely on the categories used by the DOE's
Petroleum Supply Annual, under which refineries annually
submit data on operating capacity for catalytic hydrocracking
and catalytic hydrotreating. Id. at 42,155/2-3. "[I]f a refin-
ery has been classifying its hydroprocessor as a catalytic
hydrocracker for the purposes of the DOE's Form EIA-820,
spent catalyst from this unit would not be covered by K171 or
K172," and conversely for hydrotreaters. Id. at 42,155/3.
EPA, however, excepted "guard beds" from this criterion,
ruling that their wastes should be listed regardless of the
refinery's classification. Guard beds "are used to extend the
life of the downstream catalytic bed (e.g., reformer, hydro-
cracker, isomerization reactor) by removing sulfur, oxygen,
nitrogen, and/or heavy metals." Id. at 42,156/1. EPA pro-
vided little by way of explanation for its classification, except
to say that it "agrees [with the catalyst reclaimers] that these
pretreatment units, or 'guard units,' should be covered under
the listing descriptions in today's rule." Id.
EPA's description of guard beds as "desulfurization pre-
treaters," id., however, shows that it viewed them as fitting
squarely within the DOE definition of catalytic hydrotreating,
which includes "desulfurization [and] removal of substances
(e.g., nitrogen compounds) that deactivate catalysts." Id. at
42,155/3. Thus, if EPA was correct in using the DOE classifi-
cations generally, a proposition petitioners do not contest, and
if the reason for using those classifications here pointed
toward listing guard beds, it was reasonable for EPA to do
so--even though, for reasons that are unclear, guard beds
end up otherwise classified for DOE.
This is true even if, as industry petitioners commented
below and now argue, guard beds may involve some hydro-
cracking in reducing the feedstock molecular size. EPA
rejected a reliance on molecular conversion rates in favor
(implicitly) of the processes' roles in removing contaminants;
accordingly it could permissibly classify guard beds with the
other listed processes.
III. Environmental Petitioners' Challenges
to EPA's Non-Listing Determinations,
and Notice and Comment Claim
Environmental petitioners, see supra at 3, challenge EPA's
decisions not to: (1) classify unleaded gas storage tank sedi-
ment ("UGSTS") as a hazardous waste; (2) exempt otherwise
"hazardous" wastes from being classified as such if they are
used in the petroleum coking process, on the basis of inade-
quate notice and opportunity to comment on the exemption;
and (3) classify coke product and fines inadvertently released
from saleable piles of coke as hazardous waste. While EPA
joined issue on the merits of the environmental petitioners'
first two contentions, API, as intervenor with respect to their
petition, contends that they lack standing.2 Essentially, API
contends that the environmental petitioners fail to link the
harms of which their members complain with the regulatory
actions that they wish EPA to take. API and EPA also
contend that the court lacks jurisdiction over the environmen-
tal petitioners' third contention, regarding coke product and
fines, because EPA's decision not to list these substances is a
deferral of rulemaking, rather than a final rule. We hold that
the environmental petitioners have failed to establish that
they have standing to raise their contentions with respect to
UGSTS and the coking process exemption, and that EPA's
inaction on coke product and fines is not justiciable under the
Resource Conservation and Recovery Act ("RCRA"), 42
U.S.C. s 7006(a). Accordingly, because the court lacks juris-
diction, we dismiss the environmental petitioners' petition.
A. UGSTS
The environmental petitioners challenge EPA's decision not
to list as hazardous waste the sediment found in discarded
storage tanks that once held unleaded gasoline, maintaining
in general terms that EPA's failure to list this waste as
hazardous has placed its members in harm's way. For
Article III standing, a petitioner must show that "(1) it has
suffered an 'injury in fact' that is (a) concrete and particular-
ized and (b) actual or imminent, not conjectural or hypotheti-
cal; (2) the injury is fairly traceable to the challenged action
__________
2 Because the environmental petitioners do not rely on the
Environmental Technology Council ("ETC") or its members for
standing, we need not address API's challenge to ETC's prudential
standing.
of the defendant; and (3) it is likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision." Friends of the Earth, Inc. v. Laidlaw Environ-
mental Services, Inc., 120 S. Ct. 693, 704 (2000) (citing Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). An
organization has standing to sue "on behalf of its members
when its members would otherwise have standing to sue in
their own right, the interests at stake are germane to the
organization's purpose, and neither the claim asserted nor the
relief requested requires the participation of individual mem-
bers in the lawsuit." Id. (citing Hunt v. Washington State
Apple Advertising Comm'n., 432 U.S. 333, 343 (1977)).
At issue is whether the environmental petitioners' evidence
demonstrates that EPA's alleged failings have caused a trace-
able "concrete and particularized" harm to their members
that is "actual or imminent". In Louisiana Environmental
Action Network v. EPA, 172 F.3d 65 (D.C. Cir. 1999) ("LEAN
I"), the court reiterated that for purposes of standing a
petitioner need not establish the merits of a case, i.e., that
localized harm has in fact resulted from a federal rulemaking,
but rather must demonstrate that there is a "substantial
probability" that local conditions will be adversely affected,
and thus will harm members of the petitioner organization.
LEAN I, 172 F.3d at 68 (citing Florida Audubon Society v.
Bentsen, 94 F.3d 658, 666 (D.C. Cir. 1996) (en banc)). In
LEAN I, petitioners alleged that their members would be
adversely affected by a federal rule permitting variances from
generally applicable treatment standards for waste prior to
landfill disposal. At least three LEAN members lived near
the Carlyss landfill where most waste from the state of
Louisiana "would be 'land disposed' if excavated and treated.
Under LEAN's theory, 'lower quality' (less treated) wastes
[would] be deposited in Carlyss" as a result of the variances.
Id. at 67. The court held that petitioners had standing:
Petitioners have noted that in the state of Louisiana
there are over 100 inactive or abandoned hazardous
waste sites for which cleanup has already been found
necessary, as well as about thirty RCRA facilities desig-
nated "high priority." It is therefore all but certain that
remediation activities will continue to occur apace. Even
if the variance-to-remediation ratio is fairly low, the
amount of such activities creates a very "substantial
probability" that some variances will be granted, increas-
ing risk to LEAN members near the Carlyss site.
Id. at 68 (citation omitted).
To establish their standing to challenge the non-listing of
UGSTS, environmental petitioners rely in part on two affida-
vits by Michelle McFaddin Atwell, an environmental regulato-
ry affairs consultant. Based on her review of the digital
database of the Texas Natural Resources Conservation Com-
mission on industrial hazardous waste shipments, Atwell con-
cluded that "tank bottoms" have been shipped from refineries
to a municipal landfill in Sinton, Texas, and that other "Type
I" municipal landfills throughout Texas have received "tank
bottoms" and "oily sludge waste," including landfills in Hous-
ton, Conroe, and Altair. While Atwell never identifies un-
leaded gasoline tanks generating UGSTS, she explains that
standard listing codes preclude specific identification of "un-
leaded gasoline tanks"; generic codes such as "tank bottoms"
and "oily sludge waste" are employed, and encompass numer-
ous wastes, including those generated by unleaded gasoline
tanks. Atwell notes that while "Class I industrial, solid
waste" generally is supposed to be shipped to "a permitted,
Class I industrial waste landfill rather than a Type I, munici-
pal landfill," exemptions from this rule are routinely granted
in Texas with respect to those industrial wastes not listed as
hazardous, such as UGSTS, and the state conservation com-
mission "rarely if ever track[s] the volumes of waste that are
actually shipped to Type I landfills under these case-by-case
requests."
Although the environmental petitioners have identified
landfills that have a substantial probability of receiving such
shipments, see LEAN, 172 F.3d at 68, namely, Type I munici-
pal landfills likely to receive wastes within categories that
include UGSTS, they have failed to establish either a substan-
tial probability that the shipments to these identified landfills
contain UGSTS, or a link between such deposits and the
specific harms alleged by their members. See, e.g., Laidlaw,
120 S. Ct. at 704; Lujan, 504 U.S. at 560-61; LEAN I, 172
F.3d at 68. As to the former, environmental petitioners do
not present, for example, either expert opinion that these
landfills are of a class substantially likely to receive UGSTS-
filled shipments or an affidavit that the effects of UGSTS are
evident in the landfill's groundwater. As to the latter, by
failing to connect the alleged injuries to UGSTS, the environ-
mental petitioners also have failed to establish a likelihood
that the injuries alleged will be redressed by a favorable
decision. See, e.g., Laidlaw, 120 S. Ct. at 704; Lujan, 504
U.S. at 560-61.
Much of the environmental petitioners' standing problem
arises from the fact that their only affiant who lives in Sinton,
which Atwell identified as having a landfill likely to receive
UGSTS waste, has not shown that he was a member of a
petitioner organization at the time the petition challenging
the rule was filed, and his affidavit thus is legally insufficient.3
See Petro-Chem. Processing v. EPA, 866 F.2d 433, 437 (D.C.
Cir. 1989). The environmental petitioners' other affidavits,
involving general concerns about pollution at other locations,
do not cure the deficiency.
The affidavits of Tommy C. Douglas and H. C. Clark do
indicate that pollution in the Greens Bayou near Houston may
be linked to waste from the BFI-McCarty landfill in Houston,
which Atwell also identifies as among those landfills that
receive "tank bottoms" and "oil sludge waste," and that
Douglas no longer canoes in the Bayou as a result of his
concerns about pollution. The problem lies, however, in the
vagueness of Clark's and Douglas' affidavits. Clark, a geo-
physicist, states that public records at the Texas Natural
__________
3 Herbert H. Coleman's affidavit of August 11, 1999, states that
he "recently became a member of the Sierra Club," but does not
indicate that he was a member of the Sierra Club at the time the
petition was filed. Although API made this point in its brief, the
environmental petitioners did not submit a responsive affidavit.
Resources Conservation Commission show that contamination
in the groundwater under and from the BFI landfill in
Houston, including "petroleum related organic chemicals,"
has migrated into the Greens Bayou. Douglas, a member of
a petitioner organization who lives in Houston, states that he
no longer canoes on the Greens Bayou because he and other
canoers have observed pollution in the Bayou, and because of
more general concerns about pollution in the Bayou, based in
part upon his knowledge that "there is a landfill just above
the location" where he once began a Bayou canoe trip.
While Clark provides a general link between Houston's
BFI landfill and the Greens Bayou, and Douglas suggests
generally that he is wary of Bayou pollution, neither affiant
traces the pollution of concern to UGSTS waste. Clark
refers to "petroleum related organic chemicals," but he does
not suggest the current or imminent presence of specific
chemicals found in UGSTS waste, such as benzene, and none
of Clark's statements refer to specific wastes generated from
unleaded gasoline storage tanks. Similarly, Douglas does not
describe the characteristics of the pollution that he has
observed, thus offering no basis to discern whether such
pollution, and hence his fears, were substantially likely to
have been derived, even in part, from unleaded gasoline
storage tanks. Nor does Douglas suggest that his general
concerns about current or imminent Bayou pollution, includ-
ing his knowledge that a landfill exists nearby, are linked to
UGSTS waste, or to wastes with features characteristic of
UGSTS. While it is hardly necessary to present duplicative
evidence of reasonable fears that are fairly traceable, as
occurred in Friends of the Earth v. Gaston Copper Recycling
Corp., 204 F.3d 149, 153, 157-58, 161-62 (4th Cir. 2000) (en
banc), Douglas and Clark establish little more than that some
types of petroleum-related organic chemicals migrate from
BFI's Houston landfill to the Greens Bayou, and that Douglas
is concerned generally about pollution in the Bayou. This is
insufficient to establish the environmental petitioners' stand-
ing because there is no showing that the specific EPA listing
determination that they seek would redress Douglas' con-
cerns. See, e.g., Laidlaw, 120 S. Ct. at 704; Lujan, 504 U.S.
at 560-61.
Affiant W. H. Hilton is no more helpful to the environmen-
tal petitioners. He states that he owns property in Wilmer
and in Ellis County and that municipal landfills "in Texas are
allowed to accept significant quantities of industrial wastes
including.... Class 1 wastes [such as UGSTS,] even if the
[municipal landfill's] permit does not so state," but he does
not indicate any current or imminent harm to himself. To
the contrary, he states that he organized a successful effort to
halt plans for a new municipal waste landfill in Wilmer, and
that although at one time he was concerned that his Ellis
County property might be devalued in view of the potential
expansion of a local municipal landfill and existing groundwa-
ter contamination at that landfill, a political effort resulted in
a settlement to better protect the groundwater and his prop-
erty. Hilton also states that a Chevron storage tank leaked
on land adjacent to land belonging to his mother-in-law's
estate, of which Hilton is co-executor, and that wells had to be
drilled on the estate's land to remedy the resulting water
contamination, but Hilton does not identify the circumstances
surrounding the leak, including whether it involved landfilled
unleaded gasoline tanks or whether any harms suffered by
the estate are current or imminent, and hence remediable.4
See, e.g., Laidlaw, 120 S. Ct. at 704; Lujan, 504 U.S. at 560-
61.
Therefore, in addition to having failed to show the existence
or imminent existence of unleaded gasoline storage tanks in
the identified Type I landfills, the environmental petitioners
__________
4 We need not decide the question of executor standing. Al-
though executors are granted standing to sue on behalf of the
deceased owner of the relevant estate, see, e.g., Nat'l Taxpayers
Union, Inc. v. United States, 68 F.3d 1428, 1435 (D.C. Cir. 1995);
Amato v. Wilentz, 952 F.2d 742, 751 (3d Cir. 1991), such standing
generally is based upon a vicarious, third-party representation
theory. In the Matter of Oil Spill, 954 F.2d 1279, 1319 (7th Cir.
1992). Whether such third-party standing could establish associa-
tional standing for an organization of which the third party is a
member is an open question in this circuit.
fail to trace any harm to their members that flows from the
presence of UGSTS in waste streams from the landfills, and
thus to establish that their members' concerns are redressa-
ble through the listings sought by the environmental petition-
ers. Because the environmental petitioners have not demon-
strated an injury to any of their members that is both
traceable to EPA's non-listing decision and redressable by
this court, we dismiss the UGSTS portion of their petition for
lack of jurisdiction. See Laidlaw, 120 S. Ct. at 704; Lujan,
504 U.S. at 560-61; LEAN I, 172 F.3d at 68.
B. Coking process exemption: notice and comment claim
Similar deficiencies exist regarding the environmental peti-
tioners' challenge under the notice and comment requirement
of the Administrative Procedure Act, 5 U.S.C. s 553(b) & (c),
to EPA's decision not to regulate the solid wastes inserted
into the coking process, particularly those used in coke
quenching.5 EPA exempted from regulation those oil-bearing
hazardous secondary wastes inserted into the coking process,
noting in its final rule that such insertion generally occurs
during coke quenching rather than in the conventional coking
process. The environmental petitioners challenge this ex-
emption on the ground that EPA failed to provide adequate
notice and opportunity for comment because EPA focused on
coke quenching only after the initial notice and comment
period had closed. We do not address this contention be-
cause the environmental petitioners have failed to establish a
substantial probability that their affiants will be exposed to
coke product quenched with hazardous materials. See id.
The environmental petitioners base their standing to raise
this contention on the affidavits of Zelda Champion, Frank
__________
5 "Coking," the process through which coke is produced, con-
sists of two primary stages. In the first, or conventional coking
stage, heavy oil bearing feedstocks are placed into a coke drum and
heated at high temperatures, thus breaking the long-chain hydro-
carbon molecules found in the feedstocks, and ultimately producing
coke. The second, or "coke quenching" stage, involves the injection
of water into the coke drum to quench and cool the coke.
Gordon, and Dr. Charles Lamb. The Champion and Gordon
affidavits show that members of petitioner organizations are
exposed to coke product generally, including "fines" (i.e., tiny
coke particles). Both affiants state that they live near refin-
eries or coke storage sites, have observed the storage and
transportation of coke at such sites, believe that such storage
and transportation is inadequately controlled, and have wit-
nessed the release and windblown carriage of coke product
and fines from these sites. They also state that they have
had such product and fines tested to confirm their identity as
petroleum coke dust.6 While these affidavits demonstrate
exposure by members of environmental petitioners' organiza-
tions to coke product and fines, neither Champion or Gordon
avers that the coke product and fines to which they are
exposed are generated by a coking process into which hazard-
ous secondary materials are inserted, or are substantially
likely to be inserted.
As to the coking process itself, the affidavit of Dr. Charles
Lamb establishes only that the quenching of coke in waste
increases the toxic nature of such coke, and that "the dust
from such coke [would contain] increased levels of toxic
contaminants." Attached to his affidavit is a report deriving
estimates of coke contamination levels that would be expected
from the use of specific refinery wastes in coke quenching.
Dr. Lamb states that his study showed that "there are
refinery wastes which contain [polynuclear aromatics] that
would deposit on the surface of coke particles if they were
used for coke quenching," and concludes that "[i]t is logical
that these contaminants would disproportionately partition to
the finer coke particles ... [and that] coke dust emitted from
the coke mass would have even higher concentrations of
__________
6 It is unclear whether Champion was a member of the Sierra
Club at the time the petition was filed, and thus eligible to provide
standing for the environmental petitioners. However, the affidavit
by Gordon, who was a member of petitioner Citizens for a Better
Environment when the petition was filed, is in relevant parts
cumulative of Champion's affidavit except as to the location of the
facilities each has identified, for Gordon lives in Pittsburgh, Califor-
nia, while Champion lives in Corpus Christi, Texas.
contaminants than indicated previously." But the report
notes that "[a] site specific risk assessment would require
actual data of emission rates and ambient air concentra-
tions...."
In sum, the environmental petitioners' affidavits establish
at most that the insertion of hazardous wastes into the
coking process is potentially unhealthy and environmentally
unsound, and that coke product and fines from such a pro-
cess are likewise unhealthy and environmentally unsound.
What is missing is an averment that such insertion occurs, or
is substantially likely to occur, at the facilities that produce
the coke complained of by affiants Champion or Gordon. It
is true that Dr. Lamb suggests that there is an economic
incentive for coke producers to avail themselves of EPA's
exemption and quench coke in hazardous waste, noting that
"[w]hile there may be some recovery of fuel values, the
overriding incentive for using refinery wastes for coke
quenching is to avoid the cost of waste disposal. The coke
product can be significantly degraded by waste contaminants
added in the quenching step." Such a generalized state-
ment, however, is insufficient to demonstrate a substantial
probability that the specific coke product and fines to which
members of environmental petitioners' organizations are ex-
posed will be quenched in hazardous waste. While Laidlaw
may not require very much to constitute a concrete and
particularized harm, 120 S. Ct. at 706-07, more is required
than the vague statement proffered here. In Florida Audu-
bon, the court rejected the argument that a tax incentive to
produce a fuel derived from ethanol was substantially likely
to generate increased production of ethanol-producing crops,
given the "lengthy chain of conjecture," and thus to generate
increased agricultural pollution in the specific areas where
members of the environmental organization might face harm.
Florida Audubon, 94 F.3d at 666. While the causal chain in
Florida Audubon was significantly more attenuated than
here, Florida Audubon requires some showing of a substan-
tial likelihood that a specific, relevant actor will avail itself of
a given incentive. Id. at 669. No such showing is made
here, as nothing is averred to the effect that hazardous
wastes are present, and hence available to quench wastes, at
the specific facilities identified by affiants Champion and
Gordon, or otherwise to the effect that hazardous waste
quenching currently exists or is substantially likely to exist
in those facilities generating coke product to which members
of environmental petitioners' organizations are exposed.7
Consequently, the environmental petitioners have failed to
link the practices complained of to alleged harms or immi-
nent harms to their members, and thus have failed to estab-
lish that they have standing to raise their coke processing
exemption claim. Accordingly, we dismiss the coking pro-
cess portion of the environmental petitioners' petition for
lack of jurisdiction. See Laidlaw, 120 S. Ct. at 704; Lujan,
504 U.S. at 560-61; LEAN I, 172 F.3d at 68.
C. Wind-blown Coke Product and Fines
Finally, the environmental petitioners seek review of EPA's
decision to defer a listing determination for coke product and
fines accidentally released into the air, or otherwise inadver-
tently released, from saleable piles of coke. Unlike the
environmental petitioners' coke quenching challenge, their
airborne coke product and fines contention does not relate to
the manner in which coke is processed, or to the materials to
which the coke is exposed in processing. Rather, this conten-
tion concerns the non-listing of those product and fines
released from saleable piles of coke, regardless of how the
coke is processed. As noted in subpart (B), affiants Champi-
on and Gordon establish a link between coke product and
fines emissions generally, and their exposure to such product
and fines. Nonetheless, environmental petitioners face an-
other jurisdictional obstacle: the determination they chal-
lenge is a deferral of rulemaking, not a final rule.
__________
7 In a supplemental filing on April 5, 2000, the environmental
petitioners repeat that hazardous wastes could, under EPA's rule,
be inserted into the coking process but do not state that this occurs
or is substantially likely to occur at a location referred to in their
affidavits, nor that such information cannot be obtained.
Under RCRA s 7006(a), the court has jurisdiction to re-
view three types of actions by EPA: promulgation of final
regulations, promulgation of requirements, and the denial of
petitions for the promulgation, amendment or repeal of
RCRA regulations. See American Portland Cement Alliance
v. EPA, 101 F.3d 772, 775 (D.C. Cir. 1996); 42 U.S.C.
s 6976(a) (1995). In determining whether an agency has
taken final action the court has looked to a variety of factors,
"including the agency's own characterization of its action,
publication or lack thereof in the Federal Register or Code of
Federal Regulations, and whether the action has a binding
effect on the rights of parties, and on the agency's ability to
exercise discretion in the future." American Portland Ce-
ment, 101 F.3d at 776. A decision by an agency to defer
taking action is not a final action reviewable by the court. As
the court explained in concluding that it lacked jurisdiction
under RCRA to review certain regulatory determinations:
An announcement of an agency's intent to establish law
and policy in future is not the equivalent of the actual
promulgation of a final regulation. EPA described in
detail the areas that will require further analysis before
final regulations can be promulgated, signaling that the
Regulatory Determination was not intended as the last
word on the subject....
American Portland Cement, 101 F.3d at 777 (citation omit-
ted).
The environmental petitioners acknowledge in their initial
brief that EPA's failure to list product and fines from coke
piles is a "deferral" of a listing determination, but contend
nonetheless that it is reviewable under RCRA because EPA
lacked discretion to defer this determination under a consent
decree entered in Browner v. EDF, Civ. No. 89-0598 (D.D.C.
Dec. 9, 1994). The environmental petitioners' position has
three shortcomings.8 First, EPA's decision to defer has none
__________
8 The environmental petitioners attempted, in their reply brief
and at oral argument, to recast their position to be that EPA's
deferral effectively constitutes a final rule insofar as EPA lacked
discretion to defer ruling under both the Browner consent decree
of the characteristics of final agency action. In explaining its
decision on those product and fines inadvertently discarded
from saleable piles of coke, EPA stated it would "defer"
making a listing determination because the Browner consent
decree did not require such a determination and no other
factors made such a determination immediately necessary.
Final Rule, 63 Fed. Reg. at 42,161. A decision to defer has
no binding effect on the parties or on EPA's ability to issue a
ruling in the future. American Portland Cement, 101 F.3d at
776.
Second, to the extent that the environmental petitioners
challenge EPA's interpretation of the consent decree, this
court lacks jurisdiction; an action to enforce the consent
decree must be brought in the district court that issued the
decree, see 42 U.S.C. s 6972(a); Beckett v. Air Line Pilots
Ass'n, 995 F.2d 280, 285-86 (D.C. Cir. 1993); Figures v. Bd.
of Public Utilities of Kansas City, 967 F.2d 357, 361 (10th
Cir. 1992), even assuming that the environmental petitioners
have standing to bring such an enforcement action (for the
Environmental Defense Fund was the sole environmental
organization in the Browner case).9
Accordingly, because the court lacks jurisdiction to consid-
er the environmental petitioners' contention regarding EPA's
decision to defer listing coke product and fines, we dismiss
that portion of their petition for review as well.
__________
and 42 U.S.C. s 6291(e)(2). Under either characterization, the
environmental petitioners' contention fails for the same reasons.
Furthermore, counsel for the environmental petitioners stated at
oral argument that they are not contending that jurisdiction should
be taken on the basis of unreasonable agency delay. See Telecom-
munications Research and Action Center v. FCC, 750 F.2d 70, 76
(D.C. Cir. 1984).
9 The statute on which the environmental petitioners rely for a
"congressional mandate" for an EPA listing determination on coke
product and fines, 42 U.S.C. s 6291(e)(2), underlies the Browner
consent decree litigation with respect to coke product.
| {
"pile_set_name": "FreeLaw"
} |
420 F.3d 193
Fikiri LUSINGO, Petitionerv.*Alberto GONZALES, Attorney General of the United States, Respondent.
No. 03-4418.
United States Court of Appeals, Third Circuit.
Argued March 8, 2005.
August 19, 2005.
Stephen J. Spiegelhalter (Argued), Latham & Watkins, Washington, D.C., for Petitioner.
Christopher C. Fuller, Linda S. Wernery, Douglas E. Ginsburg, John M. McAdams, Jr., Lyle D. Jentzer, (Argued), United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, D.C., for Respondent.
Before NYGAARD,1 McKEE and RENDELL, Circuit Judges.
OPINION
McKEE, Circuit Judge.
1
Fikiri Lusingo petitions for review of the decision of the Board of Immigration Appeals affirming the Immigration Judge's denial of asylum. Although the BIA disagreed with the Immigration Judge's analysis of much of the evidence Lusingo presented during his removal hearing, the BIA ultimately affirmed the IJ's order denying relief. On appeal, Lusingo argues that the BIA's ruling denying his asylum claim is "objectively unreasonable."2 For the reasons that follow, we agree and we will grant the petition for review and remand for additional proceedings consistent with this opinion.
2
I. Background.
3
Lusingo is a native and citizen of Tanzania. He speaks Swahili, and very little English. On July 23, 2001, when Lusingo was sixteen years old, he entered the United States as a visitor for pleasure in order to participate in the International Boy Scout Jamboree in Fredericksburg, Virginia. His visa allowed him to remain in the United States until January 23, 2002. Prior to coming to the United States, Lusingo lived with both parents and attended school.
4
However, Lusingo did not remain at the jamboree. Instead, he and two other scouts left the jamboree and went to the home of a relative of one of the boys. They were eventually reported missing, and their disappearance received extensive international media coverage.
5
When Lusingo learned of the extensive news reports of his disappearance, he became frightened and reported to a police station in Maryland. The police transferred him to the custody of the Immigration and Naturalization Service.3 During the ensuing INS interrogation, Lusingo expressed fear that he would face persecution if returned home because the extensive media coverage of his disappearance would no doubt have embarrassed the government of Tanzania. Lusingo had come to the United States with hopes of converting his visa into a student visa so that he could remain here and receive an education. He therefore had no reason to fear persecution until the media blitz occurred. The extensive coverage of his disappearance resulted in the broadcast of a substantial amount of unflattering information about the Tanzanian government. This included reports that Lusingo feared his government would retaliate by imprisoning him upon his return home, and by economic retaliation against his family. Reports of the possibility of Lusingo's likely imprisonment upon his return mentioned that "it is common for boys to be sexually exploited while in jail in Tanzania."
6
Lusingo petitioned for asylum based upon his fear that he would be persecuted upon his return home because the Tanzanian government persecutes people who embarrass it. The testimony Lusingo produced during the ensuing removal hearing before the Immigration Judge included the declaration of Dr. Rakesh Rajani. Dr. Rajani's expertise on human rights in Tanzania was not disputed. His declaration states in part:
7
the government [of Tanzania] looks unfavorably on those who they perceive to have embarrassed the government or that simply reflect poorly on the government, especially in the eyes of the international community ... [Lusingo] ... publicly embarrassed the Tanzanian government by disappearing from the Boy Scout Jamboree ... which led to the involvement of the U.S. authorities and spurred wide spread media coverage both in the United States and in Tanzania. The Tanzanian government does not turn a blind eye to such embarrassing publicity, as it could mar their relationship with Western donors ... if sent back to Tanzania, [Lusingo] is likely to be arrested and interrogated upon arrival, as the Tanzanian government is clearly quite interested in his case, as is shown from its statements to the American and African press. After he is arrested, he may be subject to beatings, indefinite detention, a prolonged trial.
8
Dr. Rajani also described Tanzanian jails and the type of torture and treatment endured by prisoners. According to his declaration, this includes: co-mingling of adults and children and the consequent sexual abuse of the children, cells covered with urine and feces, forced manual labor including carrying buckets of human excrement; and lack of due process. Dr. Rajani also explained that, given the unfavorable publicity, Lusingo could be subject to prolonged imprisonment under such conditions without actually being charged with any crime. He recounted an event in 2002 where 120 prisoners were held in a room designed to hold 30. Many of those prisoners died of suffocation. Dr. Rajani's declaration ended with the following statement:
9
[Lusingo] is at risk of the aforementioned conditions and abuse even if he is not ultimately convicted of a crime.... Fikiri would be held as a remand prisoner, where ... he would endure appalling conditions and be vulnerable to sexual molestation and abuse by adult prisoners or detainees. Thus, [he] is likely to face abuse notwithstanding the outcome of his case if he is forced to return to Tanzania and is prosecuted.4
10
When asked to describe the attitude of the Tanzanian government toward those believed to be disloyal, Dr. Rajani responded: "the government takes a very dim view of people who are disloyal. It has very little tolerance from them ... dissent is seen as unpatriotic, it is seen as treacherous, and people who are perceived to have been disloyal to the government are treated very harshly by the government." He also declared that Lusingo's departure from the Boy Scout Jamboree had received "quite a bit of coverage." He lived in Tanzania at the time and recalled "vividly that there was a strong sense in Tanzania that what these young people have done was, was extremely disloyal and you got a palpable sense the government was angry with their actions."
11
Dr. Rajani opined that it was likely that the Tanzanian government would jail Lusingo upon his return and that he would be mistreated in much the same manner the government treats the street children who are also a source of embarrassment. Dr. Rajani believed that the Tanzanian government was angry, "especially since his situation is so unusual for generating so much media interest in both countries." Dr. Rajani concluded that Lusingo had a "reasonable and legitimate fear of returning to Tanzania," because it was likely that he would be "detained, interrogated, and in that process would be held in prison conditions that would be detrimental to his health and probably life threatening." Dr. Rajani's testimony was not rebutted.
12
Lusingo also produced a declaration from Loren Landau, Ph.D., a Research Coordinator of the Witwaterstand's Forced Migration Studies Program in Johannesburg, South Africa. Dr. Landau, had first-hand knowledge of prison conditions in Tanzania. He opined that Lusingo had a "legitimate and reasonable fear of imprisonment if returned to Tanzania, where he would likely be commingled with adults and would certainly face horrific conditions ... [because] ... the government continues to act with disproportionate force against individuals or groups who oppose the government or embarrass the government in anyway."
13
In addition, Lusingo testified credibly about his personal knowledge of police mistreatment of Tanzanian citizens.5 He said that he had seen prisoners (including those with handicaps) being kicked and beaten with batons. He also testified that his friend was once arrested for "hanging out" on the street. His friend returned home without ever having been charged with any offense and told Lusingo of the conditions he had observed in prison. Lusingo learned that detainees are physically mistreated, denied food and medicine, and often raped by violent homosexual prisoners.
14
Christopher Nugent, Director of the Commission on Immigration Policy, Practice and Pro Bono of the American Bar Association, also testified at Lusingo's removal hearing. He explained that, while interviewing Lusingo, he had been "struck by how fearful [Lusingo] was of returning to Tanzania after all of the press reports."
15
Documentary evidence that was admitted corroborated Lusingo's evidence. U.S. State Department Country Reports on Human Rights Practices in Tanzania described that country's jails as being among the worst in Africa. JA. 012-013. The Report also confirmed that the Tanzanian government has little appetite for dissent. Id. The human rights record was "poor" and includes arbitrary arrests, torture, beatings, and horrendous prison conditions. Id.
A. The Immigration Judge's Decision.6
16
The IJ found Lusingo's fear of return "subjectively genuine." JA 012. The judge summarized Lusingo's claim as follows:
17
It is essentially [Lusingo's] contention that once the Tanzanian government became aware that he had disappeared from the scouting jamboree in Virginia and attempted to remain in the United States to attend school, it became angry with him for creating such a "media circus." Because of such government embarrassment it will target him for persecution upon his return based on a political opinion imputed to him. In this regard, [Lusingo] avers that his decision to walk away from the jamboree, an event his government permitted him to attend, and his determination to remain in the United States, will be viewed as an adverse imputed political opinion which the government has a history of responding to by acts constituting persecution and/or torture.
18
J.A. 011.
19
However, the IJ denied asylum, withholding of removal and relief under the United Nations Convention Against Torture based largely upon his interpretation of Dr. Rajani's testimony. The IJ explained:
20
An important aspect of Mr. Rajani's testimony .. is that he equated respondent's situation to the Tanzanian government's handling of street children in the cities .... these children are an embarrassment to the government, which sometimes files criminal charges against them for vagrancy, or rounds them up and trucks them off to a rural area, where they are released out of sight of the public... Of those juveniles who find themselves locked away in prison awaiting trial, they are sometimes jailed with violent criminal predators who rape and otherwise sexually abuse them. [Lusingo] feared that once returned, [he] may well find himself immediately detained with adult prisoners and thus will face all of the shortcomings of the penal system of Tanzania.
21
J.A. 013. However, the IJ concluded that the evidence established that the Tanzanian government had not targeted children for abuse. Id. He concluded that, although street children may be harassed, even beaten and jailed "merely [for] being poor and destitute, ... this is not per se persecution ... nor is it relevant to [Lusingo's] claim". Id. The IJ was "unconvinced that [Lusingo's] claim [had] any relevant relationship with the alleged mistreatment of street children in Tanzania." Id., JA014.
22
The IJ noted that he was only able to find one newspaper article from Tanzania relating to Lusingo's case, and he therefore doubted Dr.Rajani's testimony about the scope of media coverage of Lusingo's disappearance in the Tanzanian and international press. Id. The IJ also expressed skepticism that Lusingo's unauthorized presence in the United States under the circumstances presented "would result in persecution," whether or not the Tanzanian government was embarrassed by it. Id., at 15. Finally, the IJ noted Lusingo's claim of future persecution was further undermined by the fact that the Tanzanian government had not retaliated against his parents. Based upon all of these considerations, the IJ denied relief based upon his conclusion that Lusingo had not established a well-founded fear of future persecution.
23
B. The BIA's Decision.
24
Although the BIA ultimately affirmed the IJ's denial of relief, it disagreed with several important aspects of the IJ's analysis. The Board held that "the Immigration Judge erred in concluding that there was a lack of evidence relating to the Tanzanian government's sensitivity to adverse publicity generated by [Lusingo's] departure from the jamboree." JA005. On the contrary, the Board found that Lusingo's departure "received extensive media attention, including media coverage in Tanzania." Id. Nevertheless, the BIA affirmed the denial of relief based primarily upon its rejection of Lusingo's analogy to his plight and that of street children in Tanzania. JA. O05.
25
The BIA reasoned: "[Lusingo's] experts do not have a good analogy of [his] situation, insofar as the mistreatment of street children in Tanzania does not have much relevance to [his] claim. [Lusingo] comes from a stable family, with both parents employed, and he attended school until he left Tanzania. While such media attention may have embarrassed the Tanzanian Government, we do not find that it gives rise to a well-founded fear of persecution." J.A. 005.
26
The Board also reasoned that the fact that Lusingo's parents had neither been arrested nor harmed even though Lusingo had testified that they knew of his desire to remain in the United States from the outset, undermined Lusingo's claim of a wellfounded fear of persecution upon his return home. J.A. 006. The Board thus denied relief, and this Petition for Review followed.
II. DISCUSSION
27
We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. § 1252. We do not review the Immigration Judge's rulings unless adopted by the BIA. Kayembe, 334 F.3d at 234. Because the BIA's denial of relief was based on a factual finding, we must affirm it if it is supported by "substantial evidence." Balasubramanrim, 143 F.3d at 161. "Substantial evidence is more than a scintilla, and must do more than create a suspicion of the existence of the fact to be established. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion...." N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939) (internal citations omitted).
28
As noted above, although the BIA affirmed the IJ's denial of relief, it rejected several of the IJ's findings and adjudicated Lusingo's appeal based upon its independent assessment of the record. We therefore review the BIA's decision to determine if it is supported by substantial evidence in the record.
29
Under the Immigration and Naturalization Act ("INA"), the Attorney General has discretion to grant asylum to an alien who qualifies as a "refugee." See 8 U.S.C. § 1158(b)(1). An alien qualifies as a "refugee" by establishing either past persecution or a well-founded fear of future persecution because of "race, religion, nationality, membership in a particular social group, or political opinion," if returned to his/her prior country of residence. Kayembe, 334 F.3d at 234.7
30
The inquiry into whether an alien has established the requisite well-founded fear of future persecution is both subjective and objective. The subjective component is satisfied by proof that the professed fear is genuine. The objective component is satisfied by proof that the alien's subjective fear is reasonable in light of all of the record evidence. Guo v. Ashcroft, 386 F.3d 556 (3d Cir.2004).
31
Lusingo produced abundant evidence that his fear is genuine, and the subjective component of his claim is not disputed. Rather, the dispute focuses on whether that fear is objectively reasonable. An alien may demonstrate that his/her belief is objectively reasonable by documentary or expert evidence about the conditions in a given country. Lukwago v. Ashcroft, 329 F.3d 157, 177 (3d. Cir.2003). When documentary evidence is lacking, an "applicant's credible, persuasive, and specific testimony may suffice" to establish an objective fear of prosecution. Id. citing Gomez v. I.N.S., 947 F.2d 660, 663 (2d Cir.1991).
32
On appeal to the BIA, Lusingo claimed that the IJ applied the wrong legal standard for asylum because the IJ stated that Lusingo had to prove that he "would" face persecution. The BIA disagreed based upon its conclusion that "the record in its entirety reflects that [the IJ] understood and applied the proper standard, ... [and] considered whether [Lusingo] had established ... `a reasonable possibility' of suffering persecution in Tanzania." JA005.
33
However, the BIA determined that the IJ had "erred in concluding that there was a lack of evidence relating to the Tanzanian government's sensitivity to adverse publicity generated by [Lusingo's] departure from the jamboree." Id. Rather, the BIA agreed with Lusingo that "his departure from the boy scouts jamboree received extensive media attention, including media coverage in Tanzania...." Id. Nevertheless, the BIA agreed that Lusingo's subjective fear was not objectively reasonable and that he therefore could not satisfy the second part of the asylum inquiry.
34
The BIA's conclusion that Lusingo's claim was not objectively reasonable was based primarily upon the analogy to street children that also troubled the IJ. The Board explained: [Lusingo's] experts do not have a good analogy to [his] situation, insofar as the mistreatment of street children in Tanzania does not have much relevance to [Lusingo's] claim. [He] comes from a stable family, with both parents employed, and he attended school until he left Tanzania. While such media attention may have embarrassed the Tanzanian Government, we do not find that it gives rise to a well founded fear of persecution. The record does not establish that the media attention ... will lead to [Lusingo's] persecution.
35
Id. The BIA's explanation is puzzling because it totally misses the point of Lusingo's analogy. Lusingo did not claim that he was part of the social group of street children, as the BIA's analysis suggests, or that he was subject to persecution upon his return because the Tanzanian government persecutes children. Rather, he merely introduced evidence of the Tanzanian government's repressive attitude toward street children because they are an embarrassment to the Tanzanian government, and because the government's retaliation for the embarrassment they cause is relevant to the reasonableness of Lusingo's fear that he will be persecuted upon his return because he also embarrassed the government. That testimony, if accepted, is certainly supported by the record, and could establish Lusingo's claim of an objectively reasonable and well-founded fear. Thus, we are at a loss to understand the Board's rejection of it based upon what it apparently interpreted as a poorly conceived attempt to suggest Lusingo was a street child.
36
We are also at a loss to understand the significance the Board attached to the fact that the Tanzanian government had not retaliated against Lusingo's parents. The Board reasoned, "the lack of repercussion to his family tends to suggest that his family has nothing to fear from the government. We too find the reasonableness of [Lusingo's] fear of persecution is reduced insofar as his family continues to reside unharmed in Tanzania." JA 006. However, as the Board clearly notes, Dr. Rajani testified that Lusingo's family would only be "treated harshly if the Tanzanian government thought they were party to [his] unauthorized stay in the United States." Id. at. JA006. Although Lusingo testified that his parents knew of his desire to remain here to seek an education, there is nothing to suggest that the his parents knew he planned to leave the jamboree and stay in the United States when he left Tanzania, or that the media reports suggested they knew, or that the Tanzanian government suspected their complicity. Accordingly, Dr. Rajani's testimony does not suggest that the government's failure to retaliate against Lusingo's parents should undermine the objective reasonableness of Lusingo's fear of retaliation absent further explanation for reaching that conclusion.
37
There is no dispute that Lusingo's fear of return is genuine. In addition, the BIA accepted the evidence of the repressive and retaliatory nature of the Tanzanian regime as well as the fact that reports of Lusingo's departure from the jamboree reached Tanzania and caused the government embarrassment. Moreover, as noted above, the BIA accepted the IJ's analysis of Lusingo's asylum claim as being based on imputed political opinion criticizing the government. Accordingly, it is difficult for us to determine on this record why Lusingo is not entitled to the asylum he is seeking.
38
In similar situations, we have granted petitions for review, and remanded the matter for additional explanation of the rationale for denying relief. In Kayembe, we granted the petition for review and remanded to the BIA because "`the BIA's decision [provided] us with no way to conduct our (albeit limited) review.'" 334 F.3d at 238. Similarly, in Dia v. Ashcroft, 353 F.3d 228, 251 (3d Cir.2003) (en banc), we could not understand the IJ's rationale for denying relief. We stated: "we cannot affirm the IJ's findings and conclusions on the record presented to us, as the reasons she does provide in support of her decision do not logically flow from the facts she considered."
39
Given the BIA's misinterpretation of Lusingo's evidence about street children, and the unwarranted weight attached to the fact that his parents were not persecuted when the Tanzanian government learned of the unfavorable reports of his departure from the jamboree, the reasons the BIA gave in support of its decision do not logically flow from the facts it considered here either. Accordingly, we will remand to the BIA for further explanation of the basis for its decision. "When deficiencies in the BIA's decision make it impossible for us to meaningfully review its decision, we must vacate that decision and remand so that the BIA can further explain its reasoning." Kayembe, 334. F.3d at 238.
40
Before concluding, we pause to comment on some of the arguments the Attorney General makes in its brief as they reflect a problem which is increasingly common in the growing number of cases coming before us. The Attorney General argues that the absence of "even one news report or letter to the editor" undermines Lusingo's claims regarding the media coverage in Tanzania. Appellee's Br. at 31. This argument is either disingenuous or embarrassingly naive. Given the allegations on this record about the Tanzanian government's reaction to those who embarrass it, no one can seriously suggest that the absence of "letters to the editor" on a topic that may embarrass the regime has any probative value whatsoever. We are therefore both confounded and somewhat puzzled by the suggestion that Lusingo should have introduced "letters to the editor" excerpted from the Tanzanian press to support his claim that his disappearance received publicity in Tanzania.8
41
In a less astonishing but similarly myopic assertion, the Attorney General relies upon statements attributed to the Tanzanian Ambassador to the United States in its attempt to suggest that Lusingo has nothing to fear. The Attorney General argues that some of the articles that Dr. Landau introduced indicated that the "Tanzanian Ambassador was aware that Lusingo... [was] hoping to stay in the United States to further [his] education, that the Tanzanian government was consulting with our government about the situation, and that the Tanzanian government had assured the boys' families that they were safe." Appellee's Br. At 29. The Attorney General should appreciate that an ambassador of Tanzania is rather unlikely to make public pronouncements that his/her government persecutes its citizens or retaliates against them for unfavorable publicity in the international press. Thus, it should come as no surprise that the Tanzanian Ambassador managed a diplomatic response to inquiries about Lusingo. It is, however, surprising that anyone would suggest that the ambassador's response proves anything other than his diplomatic acumen.
III CONCLUSION
42
For the reasons set forth above, we will grant the petition for review and remand to the BIA for further proceedings consistent with this opinion.
Notes:
*
Amended pursuant to F.R.A.P. 43(c)
1
Judge Richard L. Nygaard, Senior Circuit Judge effective July 9, 2005
2
The BIA also ruled that Lusingo failed to establish that he was eligible for withholding of removal or relief under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "CAT"), but allowed him voluntary departure. Lusingo has not petitioned for review of those rulings and his claim for withholding of removal and relief under the CAT is therefore not before us
3
On March 1, 2003, the INS ceased to exist as an agency within the Department of Justice and its functions were transferred to the Department of Homeland SecuritySee Homeland Security Act of 2002, Pub.L. No. 107-296, 110 Stat. 2135 (2002). For the sake of consistency, we will use the term INS to refer both to the historical INS and to the Department of Homeland Security to the extent that it is currently fulfilling duties historically performed by the INS.
4
Dr. Rajani also offered his eyewitness account of a child that he saw beaten by police. The child had been given a book to attend school, but the police mistakenly believed he had stolen the book, and began beating the child. Dr. Rajani stated that he tried to intercede on behalf of the boy and was himself imprisoned
5
There was no finding of adverse credibility by the IJ with respect to Lusingo's testimony at the removal hearing. Accordingly, we presume its veracity. Where the alien's credibility is not determined by the BIA, "we must proceed as if [his/her] testimony were credible ..."Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003). Moreover, nothing on this record even suggests that Lusingo's testimony was not credible, and both the IJ and the BIA found that he had a genuine fear of returning home.
6
Although we are reviewing the decision of the BIA, not the Immigration Judge, a review of the IJ's reasoning is helpful to our analysis of the BIA's decision since the BIA partially agreed with the IJ's rationale
7
The IJ reasoned that Lusingo's claim was based on the fact that the Tanzanian government would regard him as being critical of the regime based upon his unfavorable comments and the adverse publicity they generated. The IJ treated this as a claim for refugee status based upon an imputed political opinion, and the BIA did not disagree
8
Moreover, absence of letters to the editor would be of questionable probative value even in the context of the free, open and vigorous press that we enjoy here. It certainly has no probative value here
| {
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Filed 5/29/14 Clayworth v. Abbott Laboratories CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JAMES R. CLAYWORTH et al.,
Plaintiffs and Appellants,
A132527
v.
ABBOTT LABORATORIES et al., (Alameda County
Super. Ct. No. RG04172428)
Defendants and Respondents.
Appellants are a group of retail pharmacies who sued various drug companies for
state antitrust violations. They make two claims in this appeal. First, they argue that the
drug companies, which ultimately prevailed in the litigation, should not have been
awarded their costs because an earlier motion for summary judgment filed by the drug
companies was granted below but reversed on appeal. Second, they claim—for the third
time in the Court of Appeal—that a motion they filed to disqualify a trial judge was
improperly denied. Their arguments are without merit, and we affirm.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The factual background of this case has been summarized in three previous
opinions: two by Division Two of this court and one by the California Supreme Court.
(Clayworth v. Pfizer, Inc. (2008) previously published at 165 Cal.App.4th 209
(Clayworth I), review granted Nov. 19, 1008, opn. ordered nonpub., and revd. in
Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758 (Clayworth II); Clayworth v. Pfizer, Inc.
1
(Aug. 22, 2012, A131804 [nonpub. opn.] (Clayworth III).)1 We recount here only the
facts that are relevant to the narrow issues in this appeal.
The pharmacies filed this suit against the drug companies2 alleging that they
conspired to fix prices to reap a higher profit from the sale of drugs sold in the United
States than from the sale of the same drugs in Canada. They asserted that this price
fixing violated the Cartwright Act (Bus. & Prof. Code, § 16720 et seq.) and the Unfair
Competition Law (Bus. & Prof. Code, § 17200 et seq.). During discovery, evidence
revealed that the drug companies’ alleged overcharges had been passed on by the
pharmacies to their customers. The drug companies filed a motion based on this
evidence arguing that under California law the “pass-on” of charges entitled them to
summary judgment. This pass-on defense is generally unavailable under federal antitrust
law, but at the time of the motion it was unsettled whether it was available under state
1
On the court’s own motion, we take judicial notice of Clayworth I and Clayworth III, as
well as the records in Appeal Nos. A118473, A118488, A118496, A119167, and
A130516, discussed post.
2
Plaintiffs/appellants are James Clayworth, R.Ph., an individual, dba Clayworth
Pharmacy; Marin Apothecaries, Inc., dba Ross Valley Pharmacy; Golden Gate Pharmacy
Services, Inc., dba Golden Gate Pharmacy; Pediatric Care Pharmacy, Inc.; Chimes
Pharmacy, Inc.; Mark Horne, R.Ph., an individual, dba Burton’s Pharmacy; Meyers
Pharmacy, Inc.; Benson Toy, R.Ph., an individual, dba Marin Medical Pharmacy;
Seventeen Fifty Medical Center Pharmacy, Inc.; Jack’s Drug Store and Medical Supplies,
Inc.; Julian Potashnick, R.Ph., an individual, dba Leo’s Pharmacies; Jerry Shapiro, R.Ph.,
an individual, dba Uptown Drug, Co.; Tilley Apothecaries, Inc., dba Zweber’s
Apothecary; RP Healthcare, Inc.; Rohnert Park Drugs, Inc.; JGS Pharmacies, Inc., dba
Dollar Drugs; and California Pharmacy Systems, Inc. Defendants/respondents are Abbott
Laboratories; Allergan, Inc.; Amgen Inc.; AstraZeneca LP; Boehringer Ingelheim
Pharmaceuticals, Inc.; Bristol-Myers Squibb Company; Eli Lilly and Company;
GlaxoSmithKline plc; Hoffmann-La Roche Inc.; Johnson & Johnson Health Care
Systems Inc. (a distribution arm for the operating companies of Johnson & Johnson);
Janssen Pharmaceuticals Inc.; Ortho-McNeil Pharmaceutical, Inc.; Ortho Biotech Inc.;
Merck Sharp and Dohme Corp., formerly known as Merck & Co., Inc.; Novartis
Pharmaceuticals Corporation; Pfizer Inc.; Pharmaceutical Research and Manufacturers of
America (PhRMA); and Wyeth LLC, formerly known as Wyeth. Although PhRMA is a
nonprofit trade association of which all defendants are members and does not itself
manufacture drugs, we will refer collectively to respondents as “drug companies” in the
interest of simplicity.
2
antitrust law. The trial court (Judge Ronald M. Sabraw) ruled that the defense was
available and in December 2006 granted the drug companies’ motion. The pharmacies
appealed.
While the appeal was pending, the drug companies filed a joint memorandum of
costs in the trial court, seeking more than $1.6 million, and the pharmacies filed a motion
to tax costs. The trial court (Judge Harry R. Sheppard) granted in part the motion to tax
costs. In an 18-page order, the court concluded that some, but not all, costs sought by the
drug companies were reasonable, and it directed the drug companies to submit a
summary of costs allowed by the order. They did so later that month, and in a judgment
dated July 31, 2007, the court awarded costs to each individual drug company, for a total
award of $1,157,534.25, about $442,400 less than what the drug companies had
requested. The pharmacies and three drug companies appealed the costs award. (Appeal
Nos. A119167, A118496, A118488, A118473.)
On July 25, 2008, Division Two of this court affirmed the summary judgment,
concluding that the pass-on defense is available under California antitrust law.
(Clayworth I, supra, A116798.) The Supreme Court, however, reversed in an opinion
dated July 12, 2010, and remanded the matter for further proceedings. (Clayworth II,
supra, 49 Cal.4th at pp. 763, 791.) The following month, Division Two remanded the
matter to the trial court with directions to vacate its order granting summary judgment
and to enter an order denying the motion. (Clayworth v. Pfizer, Inc. (Aug. 26, 2010,
A116798) [nonpub. opn.].)
The pharmacies’ and the three drug companies’ appeals regarding the costs award
were also resolved. Two of the drug companies quickly requested dismissals of their
appeals, which Division Two granted in August 2010. (Appeal Nos. A118488,
A118473.) In September, Division Two observed in the pharmacies’ appeal
(No. A119167) that the Supreme Court’s reversal of the summary judgment necessarily
required reversal of the judgment for trial costs. The court noted that it was in all parties’
“obvious interest” to avoid “the pointless delay and expense of briefing,” and it
“encourage[d] counsel to agree upon a stipulation for prompt disposition of th[e] appeal.”
3
The parties thereafter stipulated to a dismissal, and Division Two dismissed the appeal in
October. The remaining drug company that had appealed from the costs award finally
requested that its appeal (No. A118496) be dismissed, and the request was granted in
December. Back in the trial court, the original judgment awarding costs to defendants
was vacated on January 14, 2011, pursuant to the parties’ stipulation.
Two other things happened on remand that are relevant to the current appeal.
First, the case was assigned to Judge Steven A. Brick. The pharmacies sought to
disqualify Judge Brick under Code of Civil Procedure section 170.13 on the ground that
his sister-in-law was a partner in a law firm that represented one of the pharmacies until
just before the parties learned that Judge Brick likely would be assigned to the case. A
Marin County Superior Court judge denied the disqualification request, and the
pharmacies challenged the decision by petitioning for a writ of mandate. (No. A130516.)
Division Two denied the petition, and the California Supreme Court denied a subsequent
petition for review. (S189094, petn. den. Feb. 16, 2011.)
Second, the drug companies renewed motions for summary judgment on theories
that had not been previously resolved. The trial court (Judge Brick) granted the motions,
and judgment was entered for the drug companies on March 14, 2011. The judgment
ordered that “each of [the drug companies] shall recover from all [the plaintiff
pharmacies] its costs of suit in accordance with the Code of Civil Procedure.” The
pharmacies appealed. In their appeal, they again challenged the denial of their request to
disqualify Judge Brick. In a nonpublished opinion filed on August 22, 2012, Division
Two affirmed summary judgment (Clayworth III, supra, A131804) and also concluded
that the pharmacies could not pursue their appeal of the order denying Judge Brick’s
disqualification because they already had unsuccessfully challenged the order by petition
for writ of mandate. Plaintiffs petitioned the California Supreme Court for review of
Clayworth III, but their petition was denied. (No. S205726.) Plaintiffs then sought
review in the United States Supreme Court, which also denied review. (No. 12-1241.)
3
All statutory references are to the Code of Civil Procedure unless otherwise specified.
4
Meanwhile, in the trial court, the drug companies filed a joint memorandum of
costs, seeking a total of $1,152,658.43 as prevailing parties on their second round of
summary judgment motions. The pharmacies filed a motion to tax costs, challenging the
entire amount sought. They did not, however, challenge the reasonableness of the cost
items. Instead, they claimed that the costs were identical to the costs previously awarded
but later vacated and that the drug companies were precluded under various legal theories
from recovering them.
The drug companies filed a joint opposition to the motion to tax costs. In support
of it, they filed the declaration of Paul J. Riehle, an attorney for one of the drug
companies (Bristol-Myers Squibb Company). Riehle focused on the “massive amount of
discovery” that the pharmacies had taken in the proceedings, and he discussed the
procedural history of the award of costs. The pharmacies filed various objections to the
declaration, claiming, for example, that it contained improper opinion testimony and
hearsay.
The trial court denied the pharmacies’ motion to tax costs and entered judgment
awarding costs to the drug companies. In denying the motion to tax costs, the trial court
pointed out that the previous judge had already ruled on the reasonableness of the
requested costs when judgment was entered the first time, which “was no small task.”
The court concluded that the drug companies were prevailing parties for purposes of
recovering costs and that they were therefore entitled as a matter of right to recover their
requested costs, which were essentially identical to what previously had been awarded.
(§ 1032, subds. (a)(4), (b).) The court also concluded that the reversal of the previous
costs order after the Supreme Court’s opinion in Clayworth II did not foreclose the drug
companies from seeking costs after they once again obtained a favorable judgment.
Costs to individual drug companies ranged from just over $12,000 to more than $98,000,
for a total costs award of $1,152,658.43, about $4,800 less than what had been awarded
after the drug companies prevailed on their first summary judgment motion.
5
The pharmacies timely appealed from the costs order. The appeal initially was
initially assigned to Division Two, but it was transferred to this division. (Cal. Rules of
Court, rule 10.1000(b)(1)(B) [transfer upon division’s recusal].)
II.
DISCUSSION
A. The Drug Companies Are Entitled to Costs, Even Though The Order Granting
Their First Motion for Summary Judgment Was Reversed, Because They Are
the Prevailing Parties.
In this appeal, the pharmacies argue that the drug companies are not entitled to
their costs, even though they are the prevailing parties, because they were unsuccessful
on their first motion for summary judgment. The pharmacies are wrong.
Section 1032, subdivision (b) provides that “a prevailing party is entitled as a
matter of right to recover costs in any action or proceeding.” A prevailing party is
entitled to all costs unless another statute provides otherwise, and, absent such statutory
authority, the trial court lacks discretion to deny costs to the prevailing party. (Nelson v.
Anderson (1999) 72 Cal.App.4th 111, 129.)
The pharmacies do not and cannot dispute that the drug companies are the
prevailing parties for purposes of recovering costs. (§ 1032, subd. (a)(4).) Instead, they
argue that the drug companies are barred from recovering costs under the doctrines of law
of the case, estoppel, and waiver because the costs award entered in connection with the
first motion for summary judgment was invalidated after the Supreme Court reversed the
order granting summary judgment. The argument is specious at best. An award of costs
is “merely incidental” to a judgment, “and an order awarding costs falls with a reversal of
that part of the judgment upon which it is based.” (Purdy v. Johnson (1929)
100 Cal.App. 416, 419-420.) After a judgment is reversed, the issue of costs is “set at
large.” (Id. at p. 420; see also Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284; Merced
County Taxpayers’ Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402.) In other words,
when a judgment falls, so, too, does the cost award associated with it.
Thus, when the Supreme Court reversed the order granting summary judgment,
the costs award entered in connection with that order was necessarily rendered invalid,
6
and the parties recognized this unavoidable consequence by dismissing the then-pending
costs appeals. But, as the trial court found, the dissolution of the first costs award did not
foreclose litigation of costs after summary judgment was renewed on remand and again
resolved in favor of the drug companies. At that point, the drug companies became the
prevailing parties and were entitled to costs as a matter of right. (§ 1032, subd. (b).)
We quickly dispose of the pharmacies’ related contentions. They argued below
that if the trial court was disinclined to completely bar the drug companies from
recovering costs, it should at least disallow costs related to the litigation of the first
motion for summary judgment, which they identified on a chart. Although the trial court
did not explicitly reject this argument, it implicitly did so when it awarded costs
associated with the first motion. (See, e.g., Michell v. Olick (1996) 49 Cal.App.4th 1194,
1200-1201 [party entitled to costs as a matter of right even though some costs related to
causes of action upon which she did not prevail]; City of Sacramento v. Drew (1989)
207 Cal.App.3d 1287, 1303 [“A litigant should not be penalized for failure to find the
winning line at the outset. . . .”].)
On appeal, the pharmacies present the same chart, but, in their appellate briefs,
they do not renew their argument that the drug companies should be barred from
recovering costs related to their ultimately unsuccessful summary judgment motion.
Instead, they summarize the rules related to costs motions generally and argue that costs
may be awarded only where they are reasonable in amount (§ 1033.5, subd. (c)(3)) and
“reasonably necessary to the conduct of the litigation rather than merely convenient or
beneficial to its preparation” (id., subd. (c)(2)). If items appearing in a cost bill are
properly objected to, “they are put in issue and the burden of proof is on the party
claiming them as costs.” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th
761, 774.) The pharmacies argue that the trial court erred by failing to rule on specific
objections to various costs requested by the drug companies and that the drug companies
are not entitled to “substantial travel expenses, video expenses and document production,
messenger expenses, lodging and meals . . . .” But the pharmacies failed to raise these
specific objections below, and we conclude that they have forfeited them. (Planned
7
Protective Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, 12-13 [party may not raise
new theory on appeal regarding recovery or denial of attorney fees], disapproved on
another ground in Martin v. Szeto (2004) 32 Cal.4th 445, 451, fn. 7.) Moreover, we note
that the pharmacies do not identify with particularity which of the costs identified on the
chart are now contested.
We also reject the pharmacies’ argument that the trial court erred by failing to rule
on their evidentiary objections to Riehle’s declaration. The trial court noted that the
pharmacies raised only legal arguments against an award of costs, which the trial court
rejected. Because the court did not rely on the factual assertions set forth in the
declaration, it reasonably concluded it was unnecessary to rule on the pharmacies’
evidentiary objections to that declaration. On appeal, the pharmacies renew their
evidentiary objections but fail to articulate any reversible error. “Whether legal or
factual, no error warrants reversal unless the appellant can show injury from the error.”
(City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286.) “[P]rejudice from
improper evidence will not be presumed but must be affirmatively demonstrated.”
(Douglas v. Ostermeier (1991) 1 Cal.App.4th 729, 740.) As the pharmacies simply
repeat their evidentiary objections, without explaining how a ruling in their favor would
have affected the trial court’s conclusion to award the drug companies costs as a legal
matter, we need not consider their arguments.
B. The Pharmacies Cannot, Yet Again, Appeal the Order Denying Their Motion
to Disqualify Judge Brick.
Finally, we reject as frivolous the pharmacies’ argument that we should reverse
the costs award based on the denial of their request to disqualify Judge Brick. As set
forth above, the pharmacies have challenged the order denying their disqualification
request twice before, first by writ of mandate, and then again when they appealed the
granting of the drug companies’ second round of summary judgment motions on the
merits. Clayworth III explained that the denial of a request to remove a judge is not an
appealable order and may be challenged only by writ of mandate (§ 170.3, subd. (d);
8
People v. Hull (1991) 1 Cal.4th 266, 276), and the court rejected the pharmacies’
arguments that an exception should be made in that appeal.
In this appeal, the pharmacies do not even attempt to explain why they should be
allowed to challenge the denial of their disqualification motion yet again. They simply
continue to insist that disqualification here was “required,” without explaining why we
should even address this issue. As to do so would be inappropriate, we reject the
pharmacies’ arguments.
III.
DISPOSITION
The order awarding costs is affirmed. Defendants shall recover their costs on
appeal.
_________________________
Humes, J.
We concur:
_________________________
Rivera, Acting P. J.
_________________________
Bruiniers, J.
9
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OSCN Found Document:NULL v. POLIN
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NULL v. POLIN2014 OK CIV APP 12Case Number: 110468Decided: 08/20/2013Mandate Issued: 02/04/2014DIVISION IVTHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IVCite as: 2014 OK CIV APP 12, __ P.3d __
LYNN Z. NULL, Plaintiff/Appellee,
v.
ROBIN A. POLIN, Defendant/Appellant.
APPEAL FROM THE DISTRICT COURT OF TULSA
COUNTY, OKLAHOMA
HONORABLE CHARLES R. HOGSHEAD, TRIAL JUDGE
AFFIRMED
Leslie K. Brier, BRIER LAW FIRM, PLLC, Tulsa, Oklahoma, for Plaintiff/Appellee
Donald B. Bolt, III, BOLT LAW FIRM, Tulsa, Oklahoma, for Defendant/Appellant
KEITH RAPP, JUDGE:
¶1 Defendant, Robin A. Polin, appeals the trial court's Final Order of Protection finding plaintiff, Lynn Null, was a victim of stalking as defined in Title 22 O.S.2011, § 60.1(2) and granting an Order of Protection against Polin for three years.
BACKGROUND
¶2 Null is employed as an independent living coordinator for Tulsa Source for Hearing-Loss and Access (TSHA), a non-profit agency that provides services to the deaf and hard-of-hearing communities. She is also the liaison between TSHA and the National Association of the Deaf (NAD), Oklahoma Association of the Deaf (OAD), and Tulsa Association of the Deaf (TAD). Null has provided services to Polin through TSHA's independent living program.
¶3 On February 2, 2012, Null filed a Petition for Protective Order alleging claims of harassment pursuant to Title 22 O.S.2011, § 60.1(3) and stalking per Title 22 O.S.2011, § 60.1(2). In her Petition, Null alleged that Polin had repeatedly harassed Null by making at least six complaints to Null's supervisor, Rebecca Renee Ryan, in an attempt to have Null fired. Ryan investigated each of these complaints and found them to be baseless. Ryan told Polin that she investigated the complaints and found the complaints did not warrant firing Null. Polin then contacted other agencies dealing with the deaf community, OAD and NAD, to pressure Ryan into firing Null.
¶4 In addition, Null asserted that, in January 2012, Ryan and Null each received a letter from Eric Smith, President of TAD, requesting an investigation of Null and stating that Null's conduct was unethical and inappropriate and that Null was harassing Smith. After investigating these letters, Ryan learned that Polin wrote the letters at Smith's request, but inserted the statements concerning Null without Smith's knowledge.
¶5 Null stated that she is "afraid for my safety because people who disagree with Ms. Polin end up getting hurt and since I still have my job, I believe she will try to hurt me too." Null further stated "I have been the target of her latest harassment and have seen firsthand her anger and aggression towards anyone who does not accept her position, I am afraid for my safety." Based on these allegations, Null sought a protective order against Polin.
¶6 In addition, Null filed a police report with the Tulsa Police Department on February 2, 2012, before filing the Petition for Protective Order in district court, alleging Polin had harassed Null over a period of time, the most recent incident being January 10, 2012.1
¶7 The trial court entered an Emergency Order of Protection against Polin on February 2, 2012, and set a hearing on a final order of protection. The trial court initially ordered Polin not to come within three hundred yards of Null and not to have any contact with Null.
¶8 The trial court conducted a hearing on a final protective order on February 16, 2012. At the hearing, Null testified regarding Polin's numerous attempts to ruin Null's reputation in the deaf community and to have her fired from her employment at TSHA. Null testified she felt threatened by Polin because Polin becomes "very angry, very aggressive, and it tends to just get worse."2 Null stated Polin is "very in your face whenever she becomes upset," and has the ability to hurt others.3 Null stated that she no longer feels safe and feels threatened.
¶9 Null's supervisor at TSHA, Rebecca Ryan, also testified at the hearing on the protective order. Ryan testified she is the executive director of TSHA and is responsible for oversight of all services related to the agency. Ryan testified concerning the numerous unfounded complaints that Polin asserted against Null in an attempt to have her fired. Ryan determined that Polin would no longer interact with Null, but would deal with Ryan. However, Polin continued to bring non-issues concerning Null to Ryan. Ryan testified that Polin asked Ryan to fire Null every time that Ryan saw Polin. She also testified that Polin escalated her complaints to other agencies in the deaf community.
¶10 In addition, Ryan testified she received two certified letters from Eric Smith, the TAD President. The letters stated that Null was harassing Smith and had acted unethically. Ryan stated she spoke with Smith about the letters and he told her that he did not know Polin had inserted the information concerning Null in the letters and he was very upset. Smith told Ryan he did not have any issues with Null. Ryan testified that Polin admitted she wrote the letters.
¶11 Finally, Ryan testified that she is concerned about Null's safety because Polin has become more vocally aggressive toward Null, and that Polin is explosive and fixated on Null.
¶12 Eric Smith, President of TAD, also testified on Null's behalf. Smith testified that he did not ask anyone, including Polin, to draft letters containing content concerning Null. He stated that the letters were supposed to discuss certain by-laws and that Polin wrote the letters.
¶13 Defendant Polin testified that she had not been stalking or harassing Null.
¶14 After hearing evidence, the trial court found that Polin's actions constituted "malicious harassment, which by definition under the statute is officially stalking." The trial court stated:
The Court finds that that type of behavior where you're not only filing your own complaints, but drafting something that would purport to be an official complaint from someone else just to have them sign it has gone beyond what this Court would be considered acceptable in a commercial or business like complaint and into a vendetta.4
¶15 The trial court found that Null's evidence supported her claim and issued a Final Order of Protection against Polin for three years. The court ordered Polin to keep a distance of ten feet from Null.
¶16 Polin appeals the trial court's Final Order of Protection.
STANDARD OF REVIEW
¶17 This Court is presented with a question of statutory construction, which presents a question of law. Weeks v. Cessna Aircraft Co., 1994 OK CIV APP 171, ¶ 5, 895 P.2d 731, 733 (approved for publication by the Oklahoma Supreme Court). This Court's review of the trial court's legal rulings is plenary, independent and non-deferential. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084 (citing Salve Regina College v. Russell, 499 U.S. 225, 231, 111 S. Ct. 1217, 1221, 113 L.Ed.2d 190 (1991)). If a statute is unambiguous and its meaning clear and there is no reason to apply rules of statutory construction, this Court will apply the meaning expressed by the language used. TRW/Reda Pump v. Brewington, 1992 OK 31, ¶ 5, 829 P.2d 15, 20.
¶18 This Court reviews the trial court's issuance of a protective order under the Protection from Domestic Abuse Act, 22 O.S.2011, §§ 60-60.18, under the abuse of discretion standard. Curry v. Streater, 2009 OK 5, ¶ 8, 213 P.3d 550, 554. "Under an abuse of discretion standard, the appellate court examines the evidence in the record and reverses only if the trial court's decision is clearly against the evidence or is contrary to a governing principle of law. To reverse under an abuse of discretion standard, an appellate court must find the trial court's conclusions and judgment were clearly erroneous, against reason and evidence." Id. (citations omitted).
ANALYSIS
¶19 Polin first argues that the trial court erred in finding Null was a victim of stalking and issuing a Final Order of Protection against Polin. Polin contends that, under the Title 22 O.S.2011, § 60.1(2) definition of stalking, the trial court must define harassment as applying to only family or household members or those in a dating relationship as provided in the harassment definition of Section 60.1(3). Polin contends she is not in one of the statutorily-defined relationships with Null and, therefore, the trial court erred in finding Polin "maliciously harassed" Null, which constituted "stalking" pursuant to Section 60.1(2).
¶20 Null is a victim of stalking because Title 22 O.S.2011, § 60.1(2) defines stalking as follows:
2. "Stalking" means the willful, malicious, and repeated following or harassment of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older, in a manner that would cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested and actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed or molested. Stalking also means a course of conduct composed of a series of two or more separate acts over a period of time, however short, evidencing a continuity of purpose or unconsented contact with a person that is initiated or continued without the consent of the individual or in disregard of the expressed desire of the individual that the contact be avoided or discontinued.
Section 60.1(3) defines harassment as follows:
3. "Harassment" means a knowing and willful course or pattern of conduct by a family or household member or an individual who is or has been involved in a dating relationship with the person, directed at a specific person which seriously alarms or annoys the person, and which serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial distress to the person. "Harassment" shall include, but not be limited to, harassing or obscene telephone calls in violation of Section 1172 of Title 21 of the Oklahoma Statutes and fear of death or bodily injury.
¶21 The Protection from Domestic Abuse Act (Act) provides immediate relief for victims of domestic abuse, stalking, harassment, or rape. Curry v. Streater, 2009 OK 5 at ¶ 9, 213 P.3d at 554. "A careful balance must be achieved for a statute addressing stalking to be effective. Stalking statutes must be defined as broadly as possible to maximize victim protection, but narrowly enough to prevent serious abuse." State v. Saunders, 1994 OK CR 76, ¶ 7, 886 P.2d 496, 497 (interpreting the criminal counterpart to the Act).
¶22 Polin asks this Court to narrowly construe the definition of "stalking" under Section 60.1(2) to provide that a victim of willful, malicious, and repeated harassment under the stalking definition is limited to a family or household member or a person in a dating relationship with the defendant, as required by the Section 60.1(3) harassment definition. Under Polin's interpretation of the stalking definition, a victim that was being harassed, but not necessarily followed, as in the present case, would not have a recourse against the person harassing him or her unless they were in one of the statutorily-defined relationships.
¶23 At first blush, it appears that Polin's argument has merit. However, a closer inspection of the statute reveals otherwise.
¶24 Under the Section 60.1(2) stalking definition, the harassment that is referred to is the "willful, malicious, and repeated . . . harassment of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older." In comparison, the harassment as defined in Section 60.1(3) is a "knowing and willful course or pattern of conduct by a family or household member or an individual who is or has been involved in a dating relationship with the person." The Section 60.1(2) harassment requires a "malicious" element, while the Section 60.1(3) harassment does not have that requirement.
¶25 In addition, while both the stalking and harassment definitions have a subjective and an objective component, the standards differ. Under stalking, the questioned action must "cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested" (objective standard) and actually cause the victim to feel "terrorized, frightened, intimidated, threatened, harassed or molested" (subjective standard). In contrast, under the harassment definition, the course of conduct must cause a "reasonable person to suffer substantial emotional distress" (objective standard) and "must actually cause substantial distress to the person" (subjective standard). Thus, the harassment definition requires a more heightened effect than the stalking definition.
¶26 Furthermore, the "stalking" definition and the "harassment" definition differ on defining the individual who takes the offensive action. Under the stalking statute, the "willful, malicious and repeated harassment" must be "by an adult, emancipated minor, or minor thirteen (13) years of age or older." Under the harassment statute, the offensive conduct must be taken "by a family or household member or an individual who is or has been involved in a dating relationship with the person."
¶27 Thus, a careful reading of the plain language of the statute distinguishes malicious harassment under Section 60.1(2), as correctly found by the decision of the trial court in the present case, from harassment as defined in Section 60.1(3).
¶28 "The primary goal of statutory construction is to ascertain and follow the intention of the Legislature." TRW/Reda Pump v. Brewington, 1992 OK 31 at ¶ 5, 829 P.2d at 20. If a statute is unambiguous and there is no reason to apply rules of statutory construction, this Court will accord the meaning expressed by the clear language of the statute. Id. Furthermore, this Court will presume that the Legislature has not done a vain act in drafting legislation. Marquette v. Marquette, 1984 OK CIV APP 25, ¶ 8, 686 P.2d 990, 993. This Court will avoid an interpretation of a statute which would lead to an absurd result provided it does not violate the legislative intent. Id.
¶29 The intent of the Act is to provide protection to victims of offensive conduct under the Act. In 2010, the Legislature amended the definition of "stalking" under the Act to include malicious harassment.5 If the Legislature had intended to limit the availability of the stalking remedy to only those in a statutorily-defined class, it could have expressly done so. The express language of the Act reflects the Legislature did not intend to limit protection under the Act to such a narrow class.
¶30 Here, this Court finds that the word "harassment" used in the "stalking" definition is not to be confined to the definition set forth in Section 60.1(3). To hold otherwise would violate the intent of the Act to provide protection to a broad class of victims of domestic violence. Thus, this Court finds Polin's argument that the trial court erred in not applying the harassment definition of Section 60.1(3) in interpreting the Section 60.1(2) definition of stalking to be without merit.
¶31 Polin next argues that the trial court's decision to issue a protective order based on stalking was against the evidence and an abuse of discretion. This Court disagrees.
¶32 Null presented evidence that Polin continually contacted Null and her supervisor to complain about Null's conduct and to demand that Null be fired. In addition, Polin fraudulently drafted letters for Mr. Smith's signature and inserted information concerning Null and her alleged unethical actions that Mr. Smith had not requested be included in the letter.
¶33 "Where there is conflicting evidence on an issue of fact, we defer to the judgment of the trial court who is in the best position to observe the behavior and demeanor of the witnesses and to gauge their credibility." Triplett ex rel. K.T. v. Miller, 2008 OK CIV APP 27, ¶ 3, 179 P.3d 1285, 1287. After considering the evidence presented at the hearing, this Court finds the trial court did not abuse its discretion in issuing a Final Order of Protection against Polin based on stalking, Title 22 O.S.2011, § 60.1(2).
CONCLUSION
¶34 Based on the foregoing, this Court finds the trial court did not err in issuing a Final Order of Protection against Polin and in favor of Null. The trial court's Final Order of Protection is affirmed.
¶35 AFFIRMED.
THORNBRUGH, P.J., concurs, and GOODMAN, J., concurs specially.
FOOTNOTES
1 Title 60 O.S.2011, § 60.2(A)(1) requires a person seeking a protective order based on stalking, who is not a family or household member or in a dating relationship with the defendant, to file a complaint with law enforcement prior to filing a petition for an order of protection with the district court.
2 Transcript of Protective Order Hearing, February 16, 2012, p. 49.
3 Transcript of Protective Order Hearing, February 16, 2012, p. 48.
4 Transcript, Protective Order Hearing, February 16, 2012, p. 59.
5 Section 60.1(2) previously defined "stalking" as follows:
"Stalking" means the willful, malicious, and repeated following of a person by an adult, emancipated minor, or minor thirteen (13) years of age or older, with the intent of placing the person in reasonable fear of death or great bodily injury.
GOODMAN, J., specially concurring:
¶1 I concur, but wish to write separately to emphasize the larger problem alluded to in the majority opinion: that the Protection from Domestic Abuse Act, 22 O.S.2011, §§ 1 through 19 (Act), reflects a hodgepodge attempt by the Legislature to address a growing problem. This author is of the opinion that the Act has been repeatedly amended to address problems created by the Act itself.1 In the case under review, much is made of the defined-term "harassment" as a distinct basis for a protective order, which by definition can only be sought by a victim against a family or household member or one involved in a dating relationship. See 22 O.S.2011, § 60.1(3). The Legislature subsequently uses the term "harassment" to define the term "stalking," which carries with it no requirement for a victim to prove a family, household, or dating relationship. See 22 O.S.2011, § 60.1(2). Thus, unnecessary ambiguity is introduced into an otherwise straightforward statute, requiring further analysis as to whether or not the plaintiff was entitled to relief under the Act for stalking because there was no proof of these aforementioned relationships.
¶2 Nevertheless, I agree the trial court was correct in its conclusions. Title 22 O.S.2011, § 60.1(2) provides two definitions of "stalking." The first was addressed in the majority opinion. "Stalking" is further defined in § 60.1(2) as:
[]Stalking also means a course of conduct composed of a series of two or more separate acts over a period of time, however short, evidencing a continuity of purpose or unconsented contact with a person that is initiated or continued without the consent of the individual or in disregard of the expressed desire of the individual that the contact be avoided or discontinued. Unconsented contact or course of conduct includes, but is not limited to:
a. following or appearing within the sight of that individual;
b. approaching or confronting that individual in a public place or on private property;
c. appearing at the workplace or residence of that individual;
d. entering onto or remaining on property owned, leased, or occupied by that individual;
e. contacting that individual by telephone;
f. sending mail or electronic communications to that individual; or
g. placing an object on, or delivering an object to, property owned, leased or occupied by that individual.
¶3 Upon my review of the record and applicable law, I find sufficient evidence to support a finding of stalking under § 60.1(2)'s "alternate" definition. I therefore concur with the majority opinion.
FOOTNOTES
1 For instance, this Court issued Spielmann v. Hayes, 2000 OK CIV APP 44, 3 P.3d 711, in which we held a teacher had standing under the Act to obtain a protective order against a student for harassment. That opinion was issued at a time in which the Act did not require a family or personal relationship to exist between the parties. Because of amendments to the Act, were the same facts in Spielmann before this Court today, the teacher would have no standing to prosecute a claim of harassment, though she might have a claim for stalking.
Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Criminal Appeals Cases CiteNameLevel 1994 OK CR 76, 886 P.2d 496, STATE v. SAUNDERSDiscussedOklahoma Court of Civil Appeals Cases CiteNameLevel 1994 OK CIV APP 171, 895 P.2d 731, 66 OBJ 1695, Weeks v. Cessna Aircraft Co.Discussed 2008 OK CIV APP 27, 179 P.3d 1285, TRIPLETT v. MILLERDiscussed 2000 OK CIV APP 44, 3 P.3d 711, 71 OBJ 1342, SPIELMAN v. HAYESDiscussed 1984 OK CIV APP 25, 686 P.2d 990, Marquette v. MarquetteDiscussedOklahoma Supreme Court Cases CiteNameLevel 1992 OK 31, 829 P.2d 15, 63 OBJ 682, TRW/Reda Pump v. BrewingtonDiscussed at Length 1993 OK 85, 859 P.2d 1081, 64 OBJ 2009, Kluver v. Weatherford Hosp. AuthorityDiscussed 2009 OK 5, 213 P.3d 550, CURRY v. STREATERDiscussed at LengthTitle 22. Criminal Procedure CiteNameLevel 22 O.S. 1, Title - Code of Criminal Procedure of the State of OklahomaCited 22 O.S. 60.1, DefinitionsDiscussed at Length
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4292
_____________________________
ABDULLAH HAKEEM,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Angela M. Cox, Judge.
June 11, 2019
PER CURIAM.
AFFIRMED.
RAY, BILBREY, and JAY, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and Steven L. Seliger, Assistant
Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
2
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794 So.2d 1094 (2001)
Kenneth M. MORRIS, d/b/a Morris Pest Control
v.
Roger A. LASTER and Lola Laster.
S.E.C.U.R.E. Underwriters Risk Retention Group
v.
Roger A. Laster et al.
1990386 and 1990401.
Supreme Court of Alabama.
April 6, 2001.
*1096 Robert V. Wood, Jr., and Jonathan B. Medlock of Spurrier, Rice, Wood & Hall, Huntsville; and Rebecca A. Walker of Torbert, Torbert & Walker, L.L.C., Gadsden, for appellant Morris Pest Control.
L. Tennent Lee III of Burr & Forman, L.L.P., Huntsville, for appellant S.E.C.U.R.E. Underwriters Risk Retention Group.
David H. Marsh, Nat Bryan, and Thomas M. Powell of Marsh, Rickard & Bryan, P.C., Birmingham, for appellees.
Michael L. Roberts of Cusimano, Keener, Roberts, Kimberley & Miles, P.C., Gadsden, for amicus curiae Alabama Trial Lawyers Ass'n in support of application for rehearing.
On Application for Rehearing
PER CURIAM.
Kenneth M. Morris, doing business as Morris Pest Control (a sole proprietorship owned and operated by Kenneth M. Morris) appeals from a judgment entered on a jury verdict against him in the Marshall Circuit Court (appeal no. 1990386). We reverse and remand. S.E.C.U.R.E.[1] Underwriters Risk Retention Group is the liability-insurance carrier for Morris; it also appeals, complaining of certain provisions of that judgment as they relate to its coverage obligations (appeal no. 1990401). Because we reverse the judgment against Morris, we dismiss S.E.C.U.R.E.'s appeal as moot.
I. Factual Background
This case resulted from the sale of a home to Roger A. Laster and his wife Lola Laster. The contract of sale provided that at the closing of the purchase of the home, the Lasters would receive an "Official Alabama Wood Infestation Inspection Report," commonly referred to as a "termite letter," from the sellers, Barry Aaron and Paula Aaron. The listing agent for the sale of the Aarons' home was Bud Moore, of the Graben Real Estate company. Graben Real Estate is a franchisee of a nationwide real-estate firm, Coldwell Banker.
Apparently Moore, or one of his employees, contacted Morris Pest Control a few days before the closing and asked Morris to inspect the home and to provide a termite letter to document what the inspection *1097 revealed.[2] Morris conducted the inspection. He noted on the Official Alabama Wood Infestation Inspection Report the presence of both previous and active wood-decaying fungus, and he noted on it that he had subsequently treated the home. According to Morris's own testimony, the fungus he discovered was "devastating" and "severe."
However, Morris failed to note on the report the presence of either powder-post-beetle holes or termite trails, two signs of different kinds of wood infestation. Another pest-control company had inspected the Aarons' home two days before Morris inspected it, and that company had discovered extensive evidence of prior termite and powder-post-beetle infestation, as well as rot damage from the wood-decaying fungus. However, only the Morris report was shown to the Lasters on the day of the closing.
After the Lasters discovered the damage to the home they had recently purchased, they contacted, among others, the Alabama Department of Agriculture and Industries. The Department sent an employee to inspect the Lasters' home. The state inspector discovered significant damage to the home from wood-decaying fungus, powder-post beetles, and subterranean termites. Approximately two months later, the Lasters filed a lawsuit in the Marshall Circuit Court against Coldwell Banker; Coldwell Banker Residential Affiliates; Graben Real Estate; Bud Moore and Jan Miller, acting as agents and employees of Coldwell Banker and Graben; Barry Aaron and Paula Aaron; and Morris, doing business as Morris Pest Control. The Lasters later amended the complaint to name Cook's Pest Control company as an additional defendant. The Lasters alleged that the defendants were liable for misrepresentation and/or suppression of material facts; fraud in the inducement of a contract to purchase the home; breach of an express or implied warranty of habitability; negligence and/or wantonness; and deceit.
The trial court entered a summary judgment in favor of Cook's Pest Control, and the Lasters agreed to a pro tanto settlement of $510,000 with all of the other defendants except Morris; the Lasters reserved their claims against Morris, who was not a party to the settlement. The claims against Morris proceeded to trial, with the jury ultimately returning a verdict for $19,000 in compensatory damages and $400,000 in punitive damages. The court entered a judgment on the verdict. Morris filed a series of postjudgment motions, including a motion for a new trial. S.E.C.U.R.E. was allowed to intervene to resolve a question of liability-insurance coverage arising from the circumstances of this case.
Morris raises 11 issues on appeal. These can be grouped into three main categories: 1) whether the trial court properly ruled on certain evidentiary matters; 2) whether the charges to the jury were properly stated; and 3) whether the trial court properly applied this Court's standards for reviewing punitive-damages awards. We conclude that the trial court erred by admitting improper "pattern-or-practice" testimony and in publishing information about the pro tanto settlement to the jury, over Morris's objection. Because *1098 of these errors in the trial court's evidentiary rulings, we reverse the judgment. We pretermit discussion of the other issues Morris raises on appeal. S.E.C.U.R.E. contends on appeal that it is not responsible for paying the punitive-damages award against Morris. Thus, because we remand the case for a new trial, S.E.C.U.R.E.'s appeal is moot; that appeal is dismissed.
II. Pattern or Practice Testimony
Morris argues that the trial court improperly admitted testimony from five particular witnesses, each of whom spoke about various aspects of Morris's past behavior. We review the admissibility of "pattern-or-practice" evidence on a fraud claim by an abuse-of-discretion standard. "[R]ulings on the admissibility of evidence are within the sound discretion of the trial judge and will not be disturbed on appeal absent an abuse of that discretion." Bama's Best Party Sales, Inc. v. Tupperware, U.S., Inc., 723 So.2d 29, 32 (Ala. 1998) (citing Preferred Risk Mut. Ins. Co. v. Ryan, 589 So.2d 165 (Ala.1991)).
Any analysis of "pattern-or-practice" evidence must begin with this controlling rule of evidence:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...."
Ala.R.Evid. 404(b).
The basic intent of Rule 404(b) is to exclude collateral character evidence, which ordinarily is likely to prejudice the jury and confuse the issues. However, this Court has long held that evidence of past unrelated acts, so-called pattern-or-practice evidence, may be admissible in certain circumstances when fraud is alleged. See Great American Ins. Co. v. Dover, 221 Ala. 612, 130 So. 335 (1930); Nelms v. Steiner Bros., 113 Ala. 575, 22 So. 435 (1897). In order for the patternor-practice evidence to be relevant and admissible, the collateral acts of fraud must be "substantially of the same character [and] contemporaneous in point of time, or nearly so." Life Ins. Co. of Georgia v. Smith, 719 So.2d 797, 808 (Ala.1998) (citing Great American Ins. Co. v. Dover, 221 Ala. at 614, 130 So. at 336). Given the potential for prejudice and the general policy of preclusion, we have required high levels of similarity between the past acts and the present behavior. See Massachusetts Mut. Life Ins. Co. v. Collins, 575 So.2d 1005 (Ala.1990), cert. denied, 499 U.S. 918, 111 S.Ct. 1306, 113 L.Ed.2d 240 (1991). The acts must be both similar in nature and of substantially the same character. See Bama's Best Party Sales, Inc., 723 So.2d at 33.
It is important to note that external factors have affected the standard for admitting pattern-or-practice testimony during the past two decades. Even though Alabama has long recognized an exception for fraud claims, that exception, which had been narrow, expanded in the late 1980s as a consequence of the Legislature's first attempt at placing a cap on punitive damages.
"Section 6-11-21 was enacted as part of a `package of bills' collectively called `the Alabama Tort Reform Act.' L. Nelson, Tort Reform in Alabama: Are Damages Restrictions Unconstitutional? 40 Ala.L.Rev. 533, 533 (1989); Act No. 87-185, § 2, 1987 Ala. Acts 251. The section provides:
"`An award of punitive damages shall not exceed $250,000.00, unless it *1099 is based upon one or more of the following:
"`(1) A pattern or practice of intentional wrongful conduct, even though the damage or injury was inflicted only on the plaintiff....'"
Henderson v. Alabama Power Co., 627 So.2d 878, 880 (Ala.1993).
Because the admission of pattern-or-practice evidence was critical to an order upholding an award of punitive damages in excess of the statutory cap, courts tended to allow a broader range of such evidence. However, with the repeal of the old statutory cap on punitive damages and the substitution of a new series of restrictions, see § 6-11-21, Ala.Code 1975, we no longer have a basis for a broad reading of the pattern-or-practice exception by which evidence of other "intentional wrongful conduct" is made admissible.
Morris objected, both by two motions in limine and at trial, to the testimony of five witnesses; those witnesses were allowed to testify about various bad experiences they claimed to have had with Morris Pest Control.
The Lasters' theory to which they claimed these witnesses' testimony was relevant was the theory that Morris falsified termite letters so as to facilitate the financing or sale of homes. The Lasters argue that the real-estate transfer-and-financing market was the bread and butter of Morris's business and that Morris would not jeopardize its relationships with people involved in the industry by truthfully reporting a termite infestation or other problem in a home he inspected. It is this theory that must provide the basis for an evaluation of pattern-or-practice testimony. The trial court essentially framed the query as whether the proffered testimony would speak to the "honesty of the business." Such a liberal interpretation of the pattern-or-practice evidentiary standard permits the admission of far too much extraneous and potentially highly prejudicial testimony, and such an interpretation would defeat the fundamental purpose of Ala. R. Evid. 404(b) by allowing an unbridled exception.
The Lasters first called Ray Edgeworth as a witness, for the purpose of establishing that Morris had a pattern or practice of failing to give truthful reports of termite infestation. Edgeworth testified that in order to refinance his home, he had needed to obtain termite treatment and to obtain a termite bond. According the Edgeworth's testimony, Morris sent Edgeworth a bill for termite treatment and for a bond, but apparently never performed the treatment and never furnished the bond. Approximately a year and a half later, Edgeworth testified, he discovered swarms of active termites in his son's bedroom; he said that upon being confronted about the problem, Morris simply refunded the money Edgeworth had paid for the treatment.
The Lasters then called a second witness, Reid Morgan, to testify to an alleged pattern or practice. Morgan testified that before he bought a home he obtained the services of Morris Pest Control and Morris issued a termite letter, representing that Morris had conducted an inspection and had detected no problems with the home. A month later, another termite inspection company found active infestations in several areas of Morgan's home. Again, we note that Morris's conduct alleged by Morgan is similar to conduct by Morris the Lasters allege as the basis of their fraud claim.
The Lasters next called as a witness Perry Broome. He testified that before the closing on the purchase of Broome's home, Morris provided a termite letter. Soon afterwards, Broome testified, *1100 Broome found evidence of active termites; termite damage eventually forced him to replace a bathroom floor. He further stated that Morris said he would have to cut a hole in the floor to treat certain areas, even though previously Morris had apparently said he had visually inspected these areas. We see significant similarities between the facts alleged by the Lasters and the facts testified to by Broome. The question whether the testimony of Edge-worth, Morgan, and Broome showed that Morris had carried on a pattern or practice of making inaccurate inspections and keeping incorrect records was a question proper for the jury to consider.
The Lasters next called Jim Franklin to testify as to his experience with Morris Pest Control. Franklin testified that he had hired Morris to "pretreat" a home Franklin was building; that although Franklin had not suffered any infestation, Morris apparently used too little of the required chemicals; that Morris also agreed to return to perform follow-up visits every year; and that Franklin believed Morris did not make those follow-up visits. Here, Franklin's testimony, supposedly offered to prove a pattern or practice by Morris, devolves into a more general assault upon Morris's business and professional practices. The plaintiff and the defense attorneys had stipulated to Morris's standing objection to the introduction of this evidence, an objection based upon a lack of similarity. If Franklin's testimony is true, then Morris may be poor at pest control, but the conduct Franklin testified to does not parallel the alleged conduct made the basis of the Lasters' action or the conduct described by the other pattern-or-practice witnesses.
The final witness called by the Lasters was Jerry Maynor, a former employee of Morris Pest Control. Morris objected to Maynor's testimony, on two grounds. First, Morris argued Maynor's testimony was not within the narrow exception for pattern-or-practice evidence. Second, Morris argued that Maynor was a surprise witness. We find the first argument convincing. The Lasters wanted Maynor to testify as to Morris's alleged pattern or practice of falsifying termite letters so as to appease real-estate agents. The trial court did not allow the Lasters to call Maynor as a direct witness, because they claimed to have "found" Maynor only one day earlier. The trial court properly recognized the difficult position in which Maynor's testimony would place defense counsel. However, the trial court allowed the Lasters to call Kenneth Morris, the owner of Morris Pest Control, and ask him a series of questions about his past professional relationship with Maynor. The Lasters asked Morris general questions about fraudulent practices and specifically inquired of him about a particular client Morris might have had eight years earlier. Morris denied ever falsifying any termite letters himself and denied instructing Maynor to falsify any letters. The questioning of Morris was brief and perfunctory.
The Lasters then called Maynor to the stand, ostensibly as a rebuttal witness. His testimony briefly rebutted Morris's assertions that Morris had good business practices and then it proceeded to meander through a litany of allegations regarding frauds that Maynor claims to have seen while he was employed by Morris. The substance of Maynor's testimony spoke to an alleged pattern or practice of fraud and was only thinly veiled as rebuttal testimony. Much of his testimony would not have been admissible under pattern-or-practice standards that adhered to the requirement that the pattern-or-practice evidence indicate conduct that had a substantial similarity to the conduct now *1101 alleged. Maynor spoke at length regarding allegations that Morris had used improper pest-control chemicals and an allegation that Morris had by deceit induced an elderly couple to purchase an unnecessary termite bond from Morris. Morris objected to Maynor's testimony both because of the Lasters' failure to disclose Maynor as a potential witness and because, he claimed, the conduct it indicated lacked the similarity required of pattern-or-practice testimony. By its nature and its substance, Maynor's testimony as to conduct lacking the requisite similarity was prejudicial, and the admission of that testimony was beyond the discretion afforded the trial court to admit evidence of "other ... acts" as an exception to Ala. R.Evid. 404(b).
III. Publication of Pro Tanto Settlement
The second ground for reversal is the trial court's improper publication to the jury of the pro tanto settlement. Morris filed a motion to take a postjudgment credit with respect to the pro tanto settlement reached between the Lasters and several codefendants originally named in the lawsuit. The trial court denied the motion and related the substance of the settlement to the jury, with the instruction that the jury "determine from the evidence the total amount of damages suffered by the plaintiffs and then give credit for the $510,000 which the plaintiff [sic] has already been paid by the other parties. And render verdicts for the plaintiff [sic] for the balance remaining." The sum of the instruction closely follows the suggested language of Instruction 11.30, Alabama Pattern Jury Instructions: Civil (2d ed.1993).[3]
Morris contends that he should be given the option to inform the jury of the settlement amount or, at his sole election, not to inform the jury of any settlement that will be set off and instead have the judge perform a postverdict calculation, subtracting any pro tanto settlement amount from any verdict.
Alabama law has long recognized the principle that a plaintiff injured by joint tortfeasors may accept a partial satisfaction and release from one or more of the tortfeasors and still maintain an action against the remaining tortfeasors. See, e.g., Williams v. Colquett, 272 Ala. 577, 133 So.2d 364 (1961); Steenhuis v. Holland, 217 Ala. 105, 115 So. 2 (1927). The remaining defendants may either plead the release as a bar to recovery or place the release in evidence to show payment for the injury. See Anderson v. Kemp, 279 Ala. 321, 184 So.2d 832 (1966). This Court has previously held that for a defendant to assert a set-off defense arising from a pro tanto settlement, he must interpose this defense with specificity at the first opportunity, because it is an affirmative defense. See Hardman v. Freeman, 337 So.2d 325 (Ala.1976); Wylam Ice Co. v. King, 293 Ala. 359, 362, 304 So.2d 1, 3 (1974). If a joint tortfeasor is put to trial and fails to raise this defense at trial, he "is not entitled to [postjudgment] relief [because] he did not raise the defense of pro tanto settlement at his first opportunity." Miller v. Dacovich, 355 So.2d 1109, 1110 (Ala. 1978). However, if no pro tanto settlement is entered until after a judgment has been entered against a defendant, or if other conditions are present that preclude the defendant from pleading or proving a pro tanto settlement as a set-off, a set-off *1102 against the plaintiff's judgment against the remaining defendant is appropriate as soon as the settlement is completed. See Hardman, 337 So.2d at 326-27. Any amount recovered by the plaintiff in a pro tanto settlement thus reduces the amount owed by the remaining defendant, because there can be only one satisfaction of a claim. See Williams, 272 Ala. at 582, 133 So.2d at 368.
"While apprising the jury as to the amount of a pro tanto settlement is a matter of right, the manner and remaining content of that apprisal is discretionary with the trial court." Charles W. Gamble, McElroy's Alabama Evidence, § 188.06 (5th ed. 1996). The defendant must move to admit a pro tanto settlement in order for a jury to consider it. However, after the defendant asserts his right to admit the settlement, the trial court has discretion on how to convey the particulars of the settlement to the jury. See Bucyrus-Erie Co. v. Von Haden, 416 So.2d 699, 702 (Ala.1982); Instruction § 11.30, Alabama Pattern Jury Instructions: Civil (2d ed.1993). "[T]he Court, in lieu of allowing the defendant to place the pro tanto settlements into evidence, could instruct the jury on the total amount of the settlements...." Tatum v. Schering Corp., 523 So.2d 1042, 1045-46 (Ala.1988).
We have held that a trial court must enforce a set-off of a pro tanto settlement no matter when the settlement is reached. In Campbell v. Williams, 638 So.2d 804 (Ala.), cert. denied, 513 U.S. 868, 115 S.Ct. 188, 130 L.Ed.2d 121 (1994), the settlement between the plaintiff and several defendants was not made final until after the jury had returned its verdict. In that case, the defendant, Campbell, argued that because he was unable to plead or prove the settlement to the jury, the verdict was invalid. 638 So.2d at 812. This Court concluded that the trial court must give effect to a pro tanto settlementreducing the damages assessed against the remaining defendantand if that cannot be accomplished by having the defendant plead or prove the settlement, other means are acceptable.
"[T]he defendant did not have the opportunity to place the pro tanto settlement before the jury; therefore, the trial judge simply allowed a set-off of the amount of the pro tanto settlement against the amount of the general verdict in lieu of the settlement being pleaded before the jury. Dr. Campbell received the relief to which he would have been entitled if the pro tanto settlement had been known."
Id. at 812.
The question presented for our review is whether the defendant has a right to prevent the jury from hearing any information about a pro tanto settlement and to elect to have the trial court calculate the set-off. We find authority for this not only in Campbell, but also in the language of Works v. Allstate Indemnity Co., 594 So.2d 60 (Ala.1992); which presented a conflict closely resembling the conflict between Morris and the Lasters. In Works, the defendant, Allstate, made a motion in limine to preclude Works from mentioning to the jury a pro tanto settlement and release Works had entered with another defendant. This Court held that it was not reversible error for a trial court to grant a defendant's request not to publish information to the jury about a pro tanto settlement. Id. at 64. Both Campbell and Works support Morris's proposition that the defendant has a right not to inform the jury of any pro tanto settlements but rather to have the trial court set off the settlement amount post-judgment.
Whether a defendant wants to inform a jury about a settlement the plaintiff has made with a third party is a key strategic *1103 element of trial practice. We have previously explicitly extended to the defendant the option of pleading a settlement as an affirmative defense or allowing the defense to admit the settlement as evidence. See Anderson, 279 Ala. 321, 184 So.2d 832 (1966). Because the choice of how to raise a settlement as a defense rests squarely with the defendant, we think the defendant must be allowed the election of either informing the jury of the settlement or choosing a postjudgment set-off performed by the trial court. Because the defendant must move to admit evidence of the settlement, as a corollary he should be able to choose not to admit the evidence and to have the trial court give effect to the pro tanto settlement after the verdict is returned. By the same token, to keep a pro tanto settlement from the jury when to do so serves the plaintiff's interest is just as compelling as the converse. The details of a pro tanto settlement should not be published to the jury unless both sides agree for it to be. The trial court, when it published to the jury the details of the settlement between the Lasters and various defendants, did so over the objection of Morris. Its doing so was reversible error.
IV. Conclusion
Because the trial court erred in admitting the testimony of two of the pattern-orpractice witnesses and improperly notified the jury of the pro tanto settlement over the defendant's objection, we reverse the judgment against Morris and remand the cause for a new trial to be conducted in a manner consistent with this opinion.
APPLICATION OVERRULED; OPINION OF DECEMBER 29, 2000, WITHDRAWN; OPINION SUBSTITUTED;
1990386REVERSED AND REMANDED.
1990401DISMISSED AS MOOT.
MOORE, C.J., and HOUSTON, SEE, BROWN, WOODALL, and STUART, JJ., concur.
LYONS, J., concurs specially.
HARWOOD, J., concurs in part and dissents in part as to the rationale; concurs in the judgment; and dissents from the denial of rehearing.
JOHNSTONE, J., dissents.
LYONS, Justice (concurring specially).
Keeping a pro tanto settlement from the jury when doing so serves the plaintiff's interest appears to me to be just as compelling as the converse. The question whether the details of a pro tanto settlement should be withheld from the jury unless both sides consent to disclose it must await another day and another case.
HARWOOD, Justice (concurring in part and dissenting in part as to the rationale; concurring in the judgment; and dissenting from the denial of rehearing).
Because I would grant the application for rehearing, I dissent from the order overruling that application. I concur in Part II of the opinion, "Pattern or Practice Testimony," but I dissent from Part III, "Publication of Pro Tanto Settlement." Because I agree that the holding as to Part I necessitates a reversal and remand, I concur in the judgment in case 1990386; and, as to the appeal by S.E.C.U.R.E. (case 1990401), I concur that it should be dismissed as moot.
My disagreement with Part III of the opinion, concerning what recognition a pro tanto settlement should be given at trial, is the statement therein that "the choice of how to raise [such] a settlement as a defense rests squarely with the defendant," with the result that "the defendant must be allowed the election of either informing *1104 the jury of the settlement or choosing a postjudgment set-off performed by the trial court." 794 So.2d at 1103. Concluding that the approach the trial judge used in this caseof publishing to the jury the details of the pro tanto settlement after the defendant had filed a motion to take a postjudgment credit with respect to the settlementwas wrong, the majority reverses. I do not believe the trial judge abused his discretion in handling the pro tanto settlement issue. I do not agree that our caselaw establishes that "the defendant has a right to prevent the jury from hearing any information about a pro tanto settlement and to elect to have the trial court calculate the set-off." 794 So.2d at 1102. The majority opinion rightfully points out that a defendant must plead a set-off defense arising from a pro tanto settlement, assuming he has a fair opportunity to do so, because it is an affirmative defense; it cannot be relied on to supply any credit against an ultimate adverse judgment if it is not timely raised. Once the defense has been raised, a fair interpretation of existing caselaw would allow the trial judge to exercise his or her discretion in determining how to accommodate the defense.
JOHNSTONE, Justice (dissenting).
I respectfully dissent from the holding, unprecedented in Alabama, that the trial judge erred to reversal in submitting the pro tanto settlement to the jury for a setoff over the defendant's objection that the judge should have concealed the pro tanto settlement from the jury and should have effected the set-off himself. I further respectfully dissent from the holding, also unprecedented in Alabama, granting to the defendant the unilateral "strategic option" either to exploit a prior pro tanto settlement by presenting it to the jury or to conceal the pro tanto settlement from the jury and to require the trial judge to set the pro tanto settlement off against any jury verdict without the knowledge of the jurors. The legitimate reason for allowing a defendant a set-off for the plaintiffs pro tanto settlement with a third party is to prevent a double recovery by the plaintiff. The legally recognized purpose has never been to allow the defendant to shift blame from itself or to suggest greed in the plaintiff or otherwise to prejudice the plaintiff in the minds of the jurors.
I have found no Alabama case reversing a trial judge for submitting a pro tanto settlement to a jury for a set-off. Certainly no case cited in the main opinion reverses a trial judge for this procedure. The general rule in Alabama is that the trial judge does submit a pro tanto settlement to the jury for a set-off if the pro tanto settlement has been reached in time for the trial judge to do so. All of the cases cited in the main opinion are in accord with this observation. Indeed, Alabama Pattern Jury Instruction: Civil 11.30 is written to effectuate this procedure, and this instruction is used for this purpose by trial courts throughout this state probably every judicial workday.
Today's decision, changing the law and granting to both (or all) sides equal rights to veto the submission of a pro tanto settlement to the jury for the set-off, is fair to the extent that it will operate prospectively. In no event, however, should we use a change in the law on this topic to deprive the plaintiffs of their judgment in this case. Rather, in all fairness, the change should be prospective only.
The main opinion relies on three cases for the proposition that the trial judge in the case before us erred to reversal in not according the non-settling defendant the "strategic option" and in submitting the pro tanto settlement to the jury for the set-off over the defendant's objection that *1105 the trial judge should have confined the set-off duty to himself. None of the three, Anderson v. Kemp, 279 Ala. 321, 323, 184 So.2d 832 (1966), Works v. Allstate Indemnity Co., 594 So.2d 60 (Ala.1992), or Campbell v. Williams, 638 So.2d 804 (Ala.1994), stands for this proposition. I will state each case to demonstrate.
In Anderson, the plaintiff reached a pro tanto settlement with some but not all defendants on the day of trial before striking the jury, and the judge instructed the jury to set the pro tanto settlement off against any damages it found. The jury assessed $750 in damages against the settling defendants and $750 in damages against the non-settling defendants; and the trial judge, apparently interpreting this verdict as a specification of the set-off, simply entered judgment in favor the plaintiff for the $750 assessed against the non-settling defendants. The plaintiff appealed and argued that the trial judge had erroneously instructed the jury to apportion damages among joint tort-feasors. Affirming the trial court, this Court held that the non-settling defendants were entitled to the set-off of the pro tanto settlement. The meaning of the discussion in Anderson, supra, is that the non-settling defendants may plead a pro tanto settlement if it occurs soon enough to be pleaded, or, if it occurs too late to be pleaded, may prove it to the jury without pleading. Anderson does not hold that pleading a pro tanto settlement forecloses the disclosure of the settlement to the jury. The Anderson Court did not address any such contention, and no party advanced any such contention. The Anderson discussion merely relaxes the requirement for pleading a pro tanto settlement in the case of a settlement too late in the litigation for normal pleading. The non-settling defendants in Anderson did not interpose any objection at all to the disclosure of the pro tanto settlement to the jury, and the Supreme Court affirmed the disclosure. Thus Anderson hardly stands for the proposition that a trial judge errs in submitting a pro tanto settlement to a jury for a setoff.
In Works, supra, the plaintiffs, a father and son, sued a defendant motor-vehicle driver for negligently injuring the plaintiffson and sued the father's own insurer for underinsured motorist benefits. The plaintiffs reached a pro tanto settlement with the defendant-driver; the other defendant, the plaintiff-father's own underinsured-motorist-coverage carrier, filed a motion in limine to prevent the plaintiffs from disclosing the pro tanto settlement to the jury; and the trial court granted the motion in limine. The jury, trying the issue of what, if anything, the defendant-insurer owed on account of the defendant-driver's alleged negligence, returned a verdict for the defendant-insurer. The plaintiffs appealed the adverse judgment and assigned the ruling on the motion in limine as error. This Court affirmed on the rationale that disclosing the pro tanto settlement to the jury would have insinuated negligence on the part of the defendant-driver, the very issue to be tried between the plaintiffs and the defendant-underinsured-motorist-coverage carrier. The distinguishing feature of the Morris Pest Control case presently before us is that the guilt of the settling defendants here, even if invalidly inferred by the jury, would not imply the existence of any element of the plaintiffs' claim against the non-settling defendant Morris. Noteworthily, the Works Court did not say that the trial judge would have committed error by denying the motion in limine and submitting the pro tanto settlement to the jury for the set-off.
In Campbell, supra, after the jury returned a verdict against two defendants, one of them completed a pro tanto settlement *1106 with the plaintiff, and the trial judge set it off against the verdict. By postjudgment motion, the non-settling defendant complained that he should have been allowed to plead and to prove the pro tanto settlement to the jury. The trial judge denied the postjudgment motion. The non-settling defendant appealed, and this Court affirmed on the rationale that, because the non-settling defendant received from the judge acting without the jury all the relief the non-settling defendant could have obtained by presenting the pro tanto settlement to the jury, neither the trial judge's procedure nor the pro tanto settlement itself was inherently unfair. The trial judge in Campbell, supra, was affirmed for setting off the postverdict pro tanto settlement against the verdict against the non-settling defendant without jury intervention instead of reconvening the jury, or a jury, postverdict, to allow the non-settling defendant to exploit the pro tanto settlement before the jury. The Campbell trial judge was affirmed, not reversed. Neither the trial judge nor the Supreme Court recognized any "strategic option" in the defendant in Campbell.
As demonstrated, these cases do not support reversing the trial judge for submitting the pro tanto settlement to the jury for the set-off. This Court should not reverse the trial judge for following this established and accepted procedure.
I further respectfully dissent from the holding that the trial judge abused his discretion in admitting some of the plaintiffs' pattern and practice evidence. The rationale of the main opinion is that the testimony of Jerry Maynor and Jim Franklin was not sufficiently similar to constitute "pattern and practice" evidence of the fraud committed by Morris Pest Control and Morris.
The law governing what collateral acts may constitute "pattern and practice" evidence of fraud is explained in Life Insurance Co. of Georgia v. Smith, 719 So.2d 797 (Ala.1998):
"Under well-established Alabama practice, `[e]vidence of similar fraudulent acts [is] admissible to prove an alleged fraudulent scheme.' Ex parte Georgia Cas. & Sur. Co., 531 So.2d 838, 841 (Ala.1988). Otherwise stated, evidence of collateral fraudulent acts is relevant and admissible for punitive damages purposes to demonstrate `a pattern or practice of fraud.' Foremost Ins. Co. v. Parham, 693 So.2d [409] at 428 [(Ala. 1997)]; Valentine v. World Omni Leasing, Inc., 601 So.2d 1006 (Ala.Civ.App. 1992); see, also, Ex parte State Farm Mut. Auto. Ins. Co., 452 So.2d 861, 863 (Ala.1984); Dorcal, Inc. v. Xerox Corp., 398 So.2d 665, 671 (Ala.1981) (`In fraud cases, where intent, knowledge and scienter constitute essential elements of the offense, evidence of similar frauds and misrepresentations [is] commonly admissible.').
"This is true, provided, of course, that the collateral acts evidencing a pattern or practice are `substantially of the same character [and] contemporaneous in point of time, or nearly so.' Great American Ins. Co. v. Dover, 221 Ala. 612, 614, 130 So. 335, 336 (1930) (emphasis added). Thus, Alabama practice does not require that the collateral acts be functionally identical to the conduct or misrepresentation forming the basis of the action. Ex parte Rowland, 669 So.2d 125, 127 (Ala.1995); Valentine, 601 So.2d at 1009; Shoals Ford, Inc. v. McKinney, [605 So.2d 1197 (Ala.1992)]. `"[C]onduct forms a pattern if it embraces criminal acts that have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are *1107 not isolated events."' Youngblood v. Lawyers Title Ins. Corp., 746 F.Supp. 71, 72 (S.D.Ala.1989) (emphasis added), rev'd on other grounds, 923 F.2d 161 (11th Cir.1991)."
719 So.2d at 808. The conduct of Morris Pest Control and Morris himself that the main opinion holds dissimilar embraces acts with the same or similar purposes, results, victims, and methods of commission or acts that "otherwise are interrelated by distinguishing characteristics and are not isolated events"that is, interrelated acts of getting money from customers by misrepresenting the presence, absence, risk, or eradication of termites or powder post beetles.
In the case before us, although the real estate agent asked Morris and Morris Pest Control to perform an inspection of the house, the Lasters paid for the inspection. Morris failed to note in his inspection report the presence of powder post beetles and termite trails. Although Morris claims to have "missed" the presence of powder post beetles and termite trails, the presence of powder post beetles and termite trails was noted on an inspection report prepared by a representative of another pest control company who inspected the house several days before Morris.
As pattern and practice evidence, Jerry Maynor, a former employee of Morris Pest Control, testified that Morris and Morris Pest Control performed many inspections for various real estate agencies and that Morris Pest Control and its employees usually performed the inspection just before the real estate closing on the property to be conveyed. He testified that, on more than one inspection report, he had seen Morris mark "No" to the question whether there was termite infestation when in fact termites were infesting the house. Maynor testified that he asked Morris why "he was putting `No' on infestation when [he] and [Morris] had just seen it." Maynor stated that Morris said "It's just, ah, that's just business, dude," and "We'll, we'll talk about all that later." Maynor testified further that Morris became angry with him when he noted infestations on inspection reports because "we can't make these people [(real estate agents)] mad at us. This is our bread and butter, dude." Maynor further testified that, after he had completed inspection reports to note infestations, Morris had changed those inspection reports to say no infestation.
Maynor testified also that Morris had instructed him to use in a restaurant a pesticide restricted from use in restaurants and that Morris had instructed him to falsify his records concerning his use of the restricted pesticide. He related another incident wherein he accompanied Morris on an inspection of an elderly couple's home. Maynor testified that underneath the home he and Morris had found minimal damage from a previous termite infestation. He stated that Morris told the elderly couple that they had a "bad" infestation of termites and that "one day [the floor] would just fall out from under them." Morris then quoted a price to the elderly couple. Maynor stated that when he and Morris returned to the office he confronted Morris about lying to the elderly couple.
Jim Franklin testified that he contracted with Morris Pest Control to pretreat his newly built home and to inspect and to treat his house every year thereafter. He stated that one year an employee of Morris Pest Control left a bill on his front door for the inspection and treatment of his home. Franklin testified that he told someone at Morris Pest Control that, because he, Franklin, works next door to his own home, he would have seen anyone from Morris Pest Control who had been at his home treating it. The next year, *1108 Franklin insisted that he accompany the employee of Morris Pest Control to his home for the inspection and treatment. Franklin specifically asked that Morris Pest Control notify him when the next inspection and treatment were to be performed. Again, Franklin received a bill on his front door after having not seen anyone from Morris Pest Control inspecting or treating his home. Suspicious that Morris Pest Control was not inspecting and treating his home, Franklin painted over the latch of the door to the crawl space under his home. He painted the latch completely so that the latch could not be opened without chipping the paint. Thereafter, he received a bill on his front door from Morris Pest Control. He checked the latch, found it had not been moved, and telephoned Morris Pest Control. Franklin testified that he told the woman who answered the telephone for Morris Pest Control that he was not paying for an inspection that he had not received, and that the woman stated that whether or not Morris Pest Control did the inspection did not matter so long as he paid for his termite bond, because Morris Pest Control had insurance and would pay to have his home fixed if it became damaged by termites.
The defendants' variations on their pervasive and chronic theme of termite and beetle fraud merely demonstrate their ingenuity in pursuing the same general pattern and practice they successfully used on the Lasters. The variations do not warrant a reversal of the trial judge's admission of this evidence.
NOTES
[1] Some documents in the record carry the name "Secure Underwriters Risk Retention Group," but other documents in the record carry the name "S.E.C.U.R.E. Underwriters Risk Retention Group," and the notice of appeal carries the name "SECURE Underwriters Risk Retention Group."
[2] An "Official Alabama Wood Infestation Inspection Report" states that a "qualified inspector" is to "determine the presence or previous presence of an infestation of the listed organism" and that "[i]f visible evidence of active or previous infestation of listed organisms is reported, it should be assumed that some degree of damage is present." The form provides space for the inspector to identify the presence of subterranean termites, powder-post beetles, wood-boring beetles, dry-wood termites, and wood-decaying fungus.
[3] Contrary to the implication made in Justice Johnstone's dissent, the fact that the Committee on Pattern Jury Instructions has written a pattern jury instruction regarding publication of a pro tanto settlement to a jury in no way suggests that every settlement should be published to the jury.
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296 F.2d 925
62-1 USTC P 9178
Theodore F. APPLEBY and Marie W. Appleby, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 13690.
United States Court of Appeals Third Circuit.
Argued Dec. 22, 1961.Decided Jan. 10, 1962.
Robert V. Carton, Asbury Park, N.J. (Durand, Ivins & Carton, Asbury Park, N.J., on the brief), for petitioners.
Douglas A. Kahn, Washington, D.C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, A. F. Prescott, Attorneys, Department of Justice, Washington, D.C., on the brief), for respondent.
On Petition for Review of the Decision of the Tax Court of the United States.
Before McLAUGHLIN, KALODNER and HASTIE, Circuit Judges.
PER CURIAM.
1
The decisive fact issue here is whether petitioners have met the 'active business' requirement of Section 355 of the Internal Revenue Code of 1954, 26 U.S.C.A. Sec. 355 so as to have the distribution of the stock of the wholly owned subsidiary qualify as a non-taxable distribution. While the Tax Court decision could have gone the other way there is ample evidence in the record to support it; certainly we cannot say that it is clearly wrong.
2
The decision of the Tax Court, 35 T.C. 755, will be affirmed.
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591 F.2d 301
PENNZOIL COMPANY, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
No. 78-1564.
United States Court of Appeals,Fifth Circuit.
March 15, 1979.
Baker & Botts, Stephen M. Hackerman, John M. Young, Pennzoil Co., Houston, Tex., for petitioner.
Robert R. Nordhaus, Gen. Counsel, Howard E. Shapiro, Sol., M. Frazier King, Jr., F. E. R. C., Washington, D. C., for respondent.
Petition for Review of Order of Federal Energy Regulatory Commission.
Before BROWN, Chief Judge, COLEMAN and TJOFLAT, Circuit Judges.
JOHN R. BROWN, Chief Judge:
1
At issue in this case is the validity of an August 25, 1977 order of the Federal Energy Regulatory Commission (FERC) that summarily rejected a portion of a September 23, 1976 Pennzoil rate filing. FERC's order limited the requested increase to that authorized by the 1976 national rate opinions, thereby rejecting Pennzoil's addition of a gathering allowance of approximately 5 cents per Mcf. FERC denied rehearing and reconsideration, and this petition for review followed. We enforce the order of the Commission.
2
* Since 1930, Pennzoil has been selling to Consolidated Gas Supply Corporation gas produced from numerous leases scattered throughout West Virginia. This gas is sold under Pennzoil's FERC Rate Schedule 10. Some of the gas is produced by Pennzoil, and some of it is purchased by Pennzoil from various small independent producers for resale to Consolidated. At considerable cost Pennzoil operates an extensive gathering system to collect the gas from the widely dispersed leases.
3
On October 2, 1970, the Commission issued Order No. 411, 44 F.P.C. 1112, which set forth maximum and minimum just and reasonable rates for the Appalachian and Illinois Basin Areas. The order provided that producers selling to nonaffiliated intermediate gas purchasers which includes the small producers who sell to Pennzoil for resale to Consolidated would not be entitled to the minimum price, but stated that
4
If there are instances where a producer should receive some relief from unreasonably low contract prices for a sale to an independent intermediate buyer such situations should be brought to our attention through a petition for special relief.
5
44 F.P.C. at 1127.
6
Pursuant to this direction, Richter Oil Company, a small West Virginia producer who sells to Pennzoil for resale to Consolidated, filed a petition for special relief on October 30, 1970. Forty-two other similarly circumstanced small producers filed special relief petitions shortly thereafter. These petitions requested relief from contracts with fixed rates ranging from 12 to 15 cents per Mcf at 15.325 psia and sought a minimum rate of 25 cents per Mcf. Pennzoil initially opposed these petitions, asserting that the price it was receiving from Consolidated was such that it could not pay anything more to the small producers.
7
On July 1, 1971, while the small producer petitions were still pending, Pennzoil and Consolidated amended their contract to (i) increase the base price for the gas to that of the Appalachian area ceiling rate set forth in Order No. 411, and (ii) provide for a gathering allowance to be charged over and above the area ceiling rate. Order No. 411 had set the gathering allowance for the Appalachian area at 1 cent per Mcf at 15.025 psia, but had stated:
8
(I)n the event the gathering performed by an individual producer in this area is of such magnitude that special consideration is required then that producer may file a request for special relief.
9
44 F.P.C. at 1123. The contract amendment provided that the amount of the gathering allowance was to be that authorized by the Commission, but was not in any event to exceed 5 cents per Mcf.1
10
On July 14, 1971, Pennzoil filed the contract amendment with the Commission as a supplement to its Rate Schedule 10. Based on the authority provided by this contract, Pennzoil simultaneously (i) filed for an increase in the base price to the area ceiling rate an increase from 25 cents per Mcf to 29.58 cents per Mcf at 15.025 psia and (ii) filed a petition for special relief. The special relief petition cited that portion of Order No. 411 just quoted (44 F.P.C. at 1123), included data showing that Pennzoil's gathering costs were 13.81 cents per Mcf at 15.025 psia, and requested special relief "because of its (Pennzoil's) excess gathering costs(,) to the extent that it will be allowed to collect 35 cents per Mcf at 15.025 psia for gas sold to Consolidated." Pennzoil stated in both of these filings that it would pass on to the small producers any increases granted it.
11
On August 11, 1971, the Commission accepted the contract amendment for filing and authorized the increase in the base price to the area ceiling rate. On April 6, 1972, the Commission acted on both Pennzoil's and the small producers' petitions for special relief. This order is reported as Area Rates for the Appalachian and Illinois Basin Areas, Docket No. R-371, 47 F.P.C. 994. In the order the Commission first chronicled the history of the pending petitions. It then reviewed the gathering cost data submitted by Pennzoil and found "that Pennzoil has demonstrated that its gathering functions are of such magnitude as to require special consideration." The Commission therefore held that it would "grant the relief requested." Finally, the Commission disposed of the petitions for special relief filed by the small producers. It noted Pennzoil's representation that it would increase the price paid the small producers by the amount of the increase granted it on its sales to Consolidated. The small producers had been receiving 12 to 15 cents per Mcf at 15.325 psia from Pennzoil. Since the increase to the area ceiling rate previously approved (from 25 to 29.58 Mcf at 15.025 psia) had raised by a like amount the price the small producers received from Pennzoil, and since the granting of Pennzoil's petition to charge a rate 5.42 cents Mcf at 15.025 psia above the area ceiling rate (from 29.58 to 35.0 cents per Mcf) would also raise by a like amount the price the small producers would receive, the Commission concluded that "by granting Pennzoil's petition, we have in effect granted the petitions for special relief filed by (the small producers), because all of them will be receiving at or about 25.0 cents per Mcf at 15.025 psia." The Commission therefore terminated the special relief proceedings filed by the small producers.
12
This state of affairs Pennzoil charging Consolidated 35 cents per Mcf and paying the small producers approximately 25 cents per Mcf apparently continued until the issuance of the national rate opinions by the Commission in 1976.2 These opinions set national base rates for sales of natural gas, rates higher than the Appalachian area rates set in Opinion No. 411, and also provided for tax, quality, and gathering adjustments. The gathering allowance for the Appalachian-Illinois Basin Areas was set at 1.0 cent per Mcf at 14.73 psia. On September 23, 1976, shortly after the effective date of the national rates, Pennzoil filed notices of changes in rates. The filed rates reflected (i) an increase in the base rate to the national rate; (ii) tax and quality adjustments; and (iii) a "gathering adjustment" of 4.9018 cents per Mcf at 14.73 psia. The filing stated that the gathering adjustment was authorized by the April 6, 1972 order granting Pennzoil's petition for special relief.
13
By letter order of August 25, 1977, FERC accepted Pennzoil's rate filings but limited the increases to those authorized by the national rate opinions. FERC rejected that portion of the gathering adjustment above the area rate of 1.0 cent per Mcf, stating: "The April 6, 1972 order granting the underlying special relief rate of 35.0cents does not provide a basis for the 5.0cents gathering allowance proposed by Pennzoil." Pennzoil's petition for rehearing was denied, as was its subsequent petition for reconsideration.
II
14
Pennzoil's basic argument is that the April 6, 1972 order constituted a determination under § 4 of the Natural Gas Act, 15 U.S.C.A. § 717c, that a gathering allowance of approximately 5 cents per Mcf, in addition to and separate from the applicable ceiling rate, is "just and reasonable" in view of the nature and extent of the gathering services performed by Pennzoil. Since, as provided in § 5(a), 15 U.S.C.A. § 717d(a), a rate previously deemed just and reasonable under § 4 can be reduced only after a hearing and specific findings based on the evidence presented, see State Corporation Commission of Virginia, 1955, 14 F.P.C. 805, the Commission cannot summarily eliminate the 5 cents per Mcf gathering allowance.
15
In its order denying rehearing, FERC rejected Pennzoil's argument, stating that the April 6, 1972 order "did not purport to authorize Pennzoil to collect a rate 5 cents in excess of any ceiling which might otherwise become applicable at some time in the future based on its gathering operations." Rather, FERC held, the order granted Pennzoil special relief from the then-applicable Appalachian area rate "in the form of a total rate of 35 cents per Mcf." The Appalachian area rate set in Order No. 411 having been superseded by the national rate opinions, the April 6, 1972 order has also been superseded, and Pennzoil cannot file for any rate above that authorized by the national rate opinions. The Commission therefore limited the gathering allowance to 1.0 cent per Mcf at 14.73 psia. FERC also noted that Pennzoil has filed a petition for special relief seeking an increase in the gathering allowance applicable to the sales involved, Docket No. RI77-111, and stated that the "result in this case is without prejudice" to that petition.
16
Much of the argument presented by both parties has centered on the evidence presented in the proceedings leading to the issuance of the April 6, 1972 order. Pennzoil asserts that the only evidence before the Commission concerned Pennzoil's cost of gathering, so that the Commission must have authorized a gathering allowance. FERC counters that data on the aggregate production costs of the small producers was in the record, as that data was contained in the small producers' petitions for special relief also disposed of by the order, and argues that the order must therefore have authorized an aggregate rate of 35 cents per Mcf based on the aggregate costs of production and gathering. Much argument has also been presented on the nature of special relief proceedings: FERC arguing that special relief can be granted only upon a showing of aggregate costs, and Pennzoil arguing otherwise. Again, the purpose of these arguments is evidently to demonstrate what the Commission Must have done in its April 6 order.
17
All this has been very interesting, but what we find most helpful is the order itself. In the opinion accompanying the order, the Commission stated that it was granting "the relief requested" which was, as stated in Pennzoil's Petition for Special Relief, that Pennzoil "be allowed to collect 35 cents per Mcf at 15.025 psia." In the ordering paragraphs the Commission stated that Pennzoil's petition "is granted to the extent that a rate of 35.0 cents per Mcf . . . shall apply to its sales of natural gas to Consolidated." The Commission also ordered Pennzoil to "increase the price it pays to the small producers" by an amount equal to the authorized increase.
18
While the issue is not free from doubt, we find it difficult to read this order as authorizing Pennzoil to collect a 5 cent gathering allowance over and above any rate ceiling that might sometime become applicable. The accompanying opinion, though by no means a model of clarity, indicates that the Commission's action was influenced by a number of considerations, including Pennzoil's gathering costs, the data contained in the small producers' petitions for special relief, the then-applicable area ceiling rates, the price the small producers were receiving from Pennzoil, and Pennzoil's representation that it would pass on any increases granted it. It would seem, then, that what the Commission did was what it said it did in the ordering paragraphs authorize Pennzoil to collect a total rate of 35 cents per Mcf at 15.025 psia instead of the then-applicable area ceiling rate.3
19
In sum, we uphold the Commission's construction of the April 6, 1972 order. That order granted Pennzoil special relief from the then-existing area rate. Since Pennzoil was never granted a 5 cents per Mcf gathering allowance, it was not error for the Commission to reject it.
III
20
Pennzoil also argues that the rate filed on September 23, 1976 became effective 30 days after its filing under § 4(d) of the Natural Gas Act, 15 U.S.C.A. § 717c(d),4 and that, therefore, the Commission had no authority to issue the August 23, 1977 letter order in which it eliminated the gathering allowance and thereby summarily reduced the filed rate.
21
We have recently reviewed the operation of the 30-day waiting period prescribed in § 4(d).
22
Section 4(d) provides that a thirty-day notice of any rate change shall be given by filing new schedules. The Supreme Court has interpreted this provision as "providing . . . for the earliest effectuation of contractually authorized or otherwise permissible rate changes consistent with appropriate Commission review." United Gas Pipe Line Co. v. Memphis Light, Gas & Water Division, 358 U.S. 103, 114, 79 S.Ct. 194, 200, 3 L.Ed.2d 153 (1958). As a result, in a typical filing, a rate change would become effective after thirty days if no action has been taken by the Commission under section 4(e), 15 U.S.C.A. § 717c(e). Thereafter, the Commission must determine that the rates are unjust under section 5 of the Act, 15 U.S.C.A. § 717d, in order to reject them.
23
The thirty-day limit does two things: first, it sets the time when the producer can start collecting a rate for a filing properly filed; second, it sets the time within which the Commission must act if it chooses to contest the amount of the rate as unjust and unreasonable. For the filing automatically to be effective after thirty days if the Commission does not act, it must be filed by a producer who has the legal right to file. If the producer has no legal right to file, the filing is a nullity and the Commission may reject it at any time.
24
Construing section 4(d) in a case where a producer sought to change its contract simply by filing a rate change, the Supreme Court stated that the section says "only that a change Cannot be made without the proper notice to the Commission; it does not say under what circumstances a change Can be made." The Court found "no basis in the language of § 4(d) for inferring that the mere imposition of a filing-and-notice requirement was intended to make effective action which would otherwise be of no effect at all." United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U.S. 332, 339, 76 S.Ct. 373, 378, 100 L.Ed. 373 (1956). Indeed, if the Commission fails to reject an improperly filed rate, it may be required to do so by a court. See City of Cleveland v. FPC, 174 U.S.App.D.C. 1, 525 F.2d 845 (1976) (construing identical section of Federal Power Act, 16 U.S.C.A. § 824d(d): if rate filed deviated from actual agreement of parties, Commission must adjust purported rate notwithstanding expiration of thirty-day period). Cf. Indiana & Michigan Electric Co. v. FPC, 163 U.S.App.D.C. 334, 502 F.2d 336 (1974) (Agency regulation under 16 U.S.C.A. § 824d(d): agency's substitution of sixty-day period for statutory thirty-day period invalid).
25
Phillips v. FERC, 5 Cir., 1978, 586 F.2d 465, 467-68.
26
In denying rehearing, FERC rejected Pennzoil's § 4(d) objection. The national rate opinions permit the filing of rates above the ceiling only if the Commission has previously granted special relief. 18 C.F.R. § 2.56a(g).5 Since it had "never found that a gathering allowance of 5.0 cents was a just and reasonable rate" and thus had never granted Pennzoil "authority to charge or collect a rate above the applicable national rates" the Commission reasoned, Pennzoil's filing for a gathering allowance above that authorized by the national rate opinions was "void ab initio." Under United Gas, supra, therefore, the Commission concluded that it had properly rejected that portion of the filed rate which related to the 5.0 cents per Mcf gathering allowance.
27
Pennzoil presents two arguments in opposition to the Commission's reasoning. The first is that the April 6, 1972 order did grant it special relief authorization to charge a rate 5.0 cents per Mcf above the applicable base ceiling rate. We rejected this argument in Part II of this opinion. The second applies only to that portion of the gas which Pennzoil purchases from the small producers and resells to Consolidated. 18 C.F.R. § 157.40(f)(1) provides:
28
A large producer . . . may file for the price specified in its related contract for the resale of any natural gas sold to it by a small producer pursuant to the exemption authorized hereunder. In determining whether to accept or suspend such a filing, the Commission shall be guided by the rate level sought and the size of the differential between the purchase and resale price.
29
Pennzoil argues that its filing, with respect to the gas it purchases from the small producers, was in compliance with this regulation because the filing reflected the price specified in its contract with Consolidated.
30
Pennzoil did not argue the applicability of § 157.40(f)(1) to the Commission. It did present a § 4(d) objection on rehearing, but it grounded the objection solely upon its reading of the April 6, 1972 order. FERC argues that under § 19(b) of the Natural Gas Act, 15 U.S.C.A. § 717r, Pennzoil's failure to present the § 157.40(f)(1) argument to the Commission precludes it from raising the argument here. Section 19(b) provides that "no objection to the order of the Commission shall be considered by the court unless such objection shall have been urged before the Commission in the application for rehearing." Pennzoil contends that its general § 4(d) objection satisfied the requirements of § 19 such that it can now argue any theory in support of that objection. We agree with the Commission.
31
An error asserted in the petition for review need not follow precisely the objection asserted on rehearing so long as the Commission was adequately apprised of the petitioner's contentions. See People of State of California v. FPC, 9 Cir., 1965, 353 F.2d 16; Natural Gas Pipeline v. FPC, 7 Cir., 1941, 120 F.2d 625, Rev'd on other grounds, 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037. In such circumstances, as noted in People of State of California, supra, 353 F.2d at 18, "the purpose of the rule is satisfied." But that does not mean, as Pennzoil apparently contends, that the petitioner can advance any theory in support of a general objection even though that theory was not presented to the Commission. The purpose of § 19 is "to insure that the Commission has an opportunity to deal with the difficulties presented by its action before the reviewing court intervenes." Rhode Island Consumers Council v. FPC, 1974, 164 U.S.App.D.C. 134, 143, 504 F.2d 203, 212. Where, as here, the theory now urged in support of the objection was not argued to the Commission and it is not reasonable to expect the Commission to have divined the argument from the general objection,6 that purpose is not satisfied. For these reasons, we hold that the argument, whatever its merits,7 cannot be considered here.
32
ENFORCED.
1
Pennzoil and Consolidated executed a new contract on August 19, 1976. The 1976 contract also provides for a separate gathering allowance to be added to the base price up to the amount authorized by the Commission but does not contain the 5 cent limitation
2
Just and Reasonable National Rates for Sales of Natural Gas from Wells Commenced prior to January 1, 1973, Docket No. R-478, Opinion No. 749 issued December 31, 1975; modified, Opinion No. 749-A issued February 27, 1976; modified, Opinion No. 749-B issued March 31, 1976; rehearing denied, Opinion No. 749-C issued July 19, 1976; Aff'd in part, set aside in part, Tenneco Oil Co. v. FERC, 5 Cir., 1978, 571 F.2d 834, Pet. for cert. dismissed, --- U.S. ----, 99 S.Ct. 43, 58 L.Ed.2d 94. National Rates for Jurisdictional Sales of Natural Gas Dedicated to Interstate Commerce on or After January 1, 1973, for the Period January 1, 1973 to December 31, 1976, Docket No. RM75-14, Opinion No. 770 issued July 27, 1976; rehearing denied, Opinion No. 770-A issued November 5, 1976; Aff'd sub nom. American Public Gas Association v. FPC, 1977, 186 U.S.App.D.C. 23, 567 F.2d 1016, Cert. denied, 435 U.S. 907, 98 S.Ct. 1456, 55 L.Ed.2d 499. Opinion No. 749-A is codified as § 2.56b of the Commission's General Policy and Interpretations, 18 C.F.R. § 2.56b; Opinion No. 770 as § 2.56a, 18 C.F.R. § 2.56a
3
Now that new and higher rates have become applicable to Pennzoil's sales to Consolidated see note 2, Supra ; Natural Gas Policy Act of 1978, P.L. 95-621, 92 Stat. 3350 the question naturally arises whether, in view of Pennzoil's overall costs (including its gathering costs), those new rates are just and reasonable. But that question was not before the Commission in the proceedings under review. Presumably, Pennzoil will have an opportunity in the special relief proceedings now pending before the Commission to demonstrate that the new rates are not just and reasonable
4
This section provides, in pertinent part:
(d) Unless the Commission otherwise orders, no change shall be made by any natural-gas company in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days' notice to the Commission and to the public.
5
This regulation provides in pertinent part:
(g) Special relief. Prior to the establishment of rates for the 1977-78 biennium . . . , any seller seeking to charge a rate in excess of the adjusted national rates . . . or requesting a change in either the base national rates . . . or the adjusted national rates . . . must file a petition seeking special relief . . . fully justifying the relief sought in light of this order. Such seller may not file for any rate increase which results in a rate in excess of the adjusted national rates . . . unless and until the Commission grants such petition for special relief.
6
This is especially so because another plausible theory was argued to the Commission
7
We do observe, however, that Pennzoil's argument is by no means air tight. For one thing, neither the 1930 nor the 1976 Pennzoil-Consolidated contracts appear to set forth a rate to be paid Pennzoil as a gathering allowance except insofar as a gathering allowance has been authorized by the Commission. See text and note at note 1, Supra. Since, under the view we have taken of the April 6, 1972 order, the Commission has never authorized such an allowance, it is somewhat difficult to see how Pennzoil's filing is authorized by § 157.40(f)(1)'s permission to file for the rate specified in the contract for resale
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389 N.W.2d 585 (1986)
PRODUCTION CREDIT ASSOCIATION OF MINOT, a corporation, Plaintiff and Appellee,
v.
Thelma LUND and Kelly D. Lund, Personal Representative of the Estate of Arnold R. Lund, Deceased, Defendants and Appellants.
Civ. No. 11135.
Supreme Court of North Dakota.
June 9, 1986.
Malcolm H. Brown, of Bair, Brown & Kautzmann, Mandan, for plaintiff and appellee.
*586 Lyle G. Witham (argued) and Robert J. Lamont, of Lamont Law Office, Minot, for defendants and appellants.
Nicholas J. Spaeth, Atty. Gen., and Steven E. Noack (argued) and Sarah M. Vogel, Asst. Attys. Gen., Bismarck, for amicus curiae State.
Keith C. Magnusson, Bismarck, for amicus curiae North Dakota Bankers Assn.
Nancy J. Hellerud, Minot, and James Fitzsimmons, New Town, for amicus curiae Farm Law Project, sponsored by North Dakota Legal Services and Legal Assistance of North Dakota.
VANDE WALLE, Justice.
Thelma Lund and Kelly Lund, personal representative of the estate of Arnold Lund, appealed from an amended judgment of the district court foreclosing two mortgages held by the plaintiff, Production Credit Association of Minot (PCA), and denying the Lunds' request to reopen the judgment under Rule 60(b), N.D.R.Civ.P. We reverse that part of the amended judgment denying the Lunds' motion to vacate the judgment, and we remand for further proceedings.
During September 1983, the Lunds borrowed $150,000 from PCA. They secured the loan with two mortgages in the amount of $150,000 each on two separate farmland properties which the Lunds were purchasing under separate contracts for deed. Asserting that the Lunds had defaulted on the loan, PCA filed an action to foreclose the mortgages. When the Lunds did not file a timely answer, PCA moved for a default judgment. The Lunds did not respond to the motion, and default judgment of foreclosure was entered by the court.
The Lunds filed a motion to reopen the judgment under Rule 60(b), N.D.R.Civ.P., or, in the alternative, for relief from the judgment under the provisions of Section 28-29-04, N.D.C.C. The district court denied the Lunds' request for relief on the ground that Section 28-29-04, N.D.C.C., had "self terminated once the price of farm products equalled the cost of production." The district court entered an amended judgment allowing PCA to correct a legal description in the original judgment and denying the Lunds' request to reopen the judgment.
The Lunds raise the following issues, the resolution of which are necessary to disposition of this appeal:
(1) Whether the confiscatory-price defense provision, Section 28-29-04, N.D.C.C., has terminated by its own terms;
(2) Whether Section 28-29-04, N.D.C.C., affords post-judgment relief to a party whether or not that party is entitled to relief from the judgment under Rule 60(b), N.D.R.Civ.P.; and
(3) Whether a statement in the complaint that the PCA "may" seek a deficiency judgment satisfies the notice requirement under Section 32-19-04, N.D. C.C.
Section 28-29-04, N.D.C.C., was enacted by the Legislature in 1933 together with two other provisions, Sections 28-29-05 and 28-29-06, N.D.C.C., in an attempt to deal with issues of foreclosure, farm debt, farm debtor relief, and low farm prices during an agricultural and economic crisis. See Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D.1985). These provisions have been collectively referred to as the confiscatory-price defense statutes. See Folmer v. State, 346 N.W.2d 731 (N.D. 1984). The Lunds assert that the district court erred in concluding that Section 28-29-04, N.D.C.C., no longer is in effect. We agree.
The primary purpose of statutory construction is to ascertain the intent of the Legislature. Hammond v. North Dakota State Personnel Board, 332 N.W.2d 244 (N.D.1983). Generally, the legislative intent must be sought first from the language of the statutory provision. Grace Lutheran Church v. North Dakota Employment Security Bureau, 294 N.W.2d 767 (N.D.1980). In construing a statutory provision we consider the entire enactment of which it is a part and, to the extent possible, interpret the provision consistent *587 with the intent and purpose of the entire Act. Payne v. Board of Trustees, 76 N.D. 278, 35 N.W.2d 553 (1948); Coverston v. Grand Forks County, 74 N.D. 552, 23 N.W.2d 746 (1946); In re Berg's Estate, 72 N.D. 52, 4 N.W.2d 575 (1942). Thus, in determining whether Section 28-29-04, N.D.C.C., has expired by its own terms, it is helpful to review the language of all three provisions of the 1933 Act:
"28-29-04. Power of courts when prices are confiscatory.Until the price of farm products produced in this state shall rise to a point to equal at least the cost of production, in comparison with the price of other commodities in general, entering into the business of agriculture, the supreme court of this state and all district and county courts in this state shall have power, when it is deemed for the best interests of litigants, to extend the time for serving and filing all papers requisite and necessary for the final determination of any cause. Any such court, in like manner, may stay the entry of judgment or the issuance of execution thereon, or may defer the signing of any order for judgment, or may defer terms of court, whenever in the judgment of the court the strictly legal procedure in any cause will confiscate or tend to confiscate the property of any litigant by forcing the sale of agricultural products upon a ruinous market." [Emphasis added.]
"28-29-05. Courts may delay orders in foreclosures.Whenever any foreclosure proceeding is pending in any court in this state and the amount of the debt is less than the value of the property involved, and when any order for judgment will have the force and effect of depriving a defendant of his home and confiscating his property, the court may construe further proceedings to be unconscionable, and may delay the signing of such order to such time as it shall deem it advisable and just to enter the same." [Emphasis added.]
"28-29-06. Public policy.Any court mentioned in section 28-29-04 may take judicial notice of the situation of producers and laborers when prices of farm products are confiscatory, and upon the ground of public policy may do all things necessary to be done lawfully to carry out the provisions of sections 28-29-04 and 28-29-05." [Emphasis added.]
The district court determined that the phrase within Section 28-29-04, N.D. C.C., "[u]ntil the price of farm products ... shall ... equal at least the cost of production" resulted in a self-termination of the provision when the economic depression of the 1930's ended and farm prices rose above the cost of production. That phrase, when construed together with all provisions of the 1933 Act, expresses a legislative intent that the remedies provided by the Act are to remain in effect and available whenever the stated confiscatory conditions trigger its application. Thus, we believe that a fair and reasonable interpretation of Section 28-29-04, N.D.C.C., is that "whenever" legal procedure will result in the confiscation of property "by forcing the sale of agricultural products upon a ruinous market" the courts, within their discretion, may act as authorized under the provision "until farm products ... equal at least the cost of production." Likewise, Section 28-29-05, N.D.C.C., authorizes the courts to take certain actions "whenever" and Section 28-29-06, N.D.C.C., authorizes certain court actions "when" the triggering conditions arise.
Our interpretation that the Legislature did not intend that these provisions self-terminate is supported by the Legislature's enactment of other laws dealing with the agricultural economic crises during the depression era of the 1930's which included express repeal language. The 1933 Legislature enacted an extension of the redemption period under mortgage foreclosures and in that Act expressly stated that it would "take effect and be in force for a period of two years only." 1933 N.D.Sess. Laws, Ch. 157, § 5. During 1935, the Legislature enacted a law providing relief from mortgage foreclosures and other related activities and in that enactment expressly provided that the authority of the courts *588 would not extend "beyond July 1, 1937." 1935 N.D.Sess.Laws, Ch. 242, §§ 6 and 9. During the 1937 legislative session, the Legislature declared "a public economic emergency" and provided relief from mortgage foreclosures and other related activities. Once again, the Legislature in that enactment provided an express termination date which stated that the court's authority to act did not extend "beyond July 1, 1939." 1937 N.D.Sess.Laws, Ch. 161, §§ 6 and 9. During 1939, the Legislature again enacted a moratorium on mortgage foreclosures and other related activities under which it expressly limited the effective date of the provision for two years not to extend "beyond July 1, 1941." 1939 N.D.Sess.Laws, Ch. 165, §§ 5 and 8. The 1939 moratorium provision was amended and reenacted by the 1941 Legislature which extended the authority of the courts to act for an additional two years but not "beyond July 1, 1943." 1941 N.D.Sess.Laws, Ch. 190, §§ 1, 5 and 8.
The foregoing enactments clearly demonstrate that when the Legislature intended that a depression-era remedial statute should terminate within a specified time period it manifested its intent with express language to that effect. The confiscatory-price defense provisions as enacted by the 1933 Legislature, in contrast to the foregoing redemption extension and moratorium provisions, do not contain such express termination language. We believe the absence of such language demonstrates the Legislature's intent that those provisions have continued validity.
In support of our determination that the confiscatory-price defense statutes are currently in effect, we also recognize that they were recodified as part of the Revised Code of 1943 [1943 N.D.Sess.Laws, Ch. 201] and were reenacted in 1961 as part of the North Dakota Century Code [1961 N.D. Sess.Laws, Ch. 96]. The recodification or reenactment of a statutory provision reaffirms the continuing validity of the provision. See, Sutherland Stat. Const., § 23.28 (4th Ed. 1985).
We conclude, therefore, that the district court erred in concluding that Section 28-29-04, N.D.C.C., has self-terminated and no longer is in existence.
The Lunds assert that because the confiscatory-price defense provisions of Sections 28-29-04, 28-29-05 and 28-29-06, N.D.C.C., authorize post-judgment relief they should be allowed to present the merits of their defense under those provisions whether or not they are able to raise adequate grounds for relief from the judgment under Rule 60(b), N.D.R.Civ.P. We disagree. Where, as in this case, a party has failed to present a timely answer or a timely response to a motion for default judgment and has not raised the confiscatory-price defense provisions until after a default judgment has been entered, that party must proceed under Rule 60(b), N.D.R. Civ.P. In First Federal Savings and Loan Ass'n v. Hulm, 328 N.W.2d 837 (N.D. 1982), we stated in relevant part:
"This Court has consistently followed a policy of liberally construing Rule 60(b), N.D.R.Civ.P., for purposes of vacating a default judgment to permit a case to be heard and decided on its merits.... Nevertheless, in each case in which this Court has set aside a default judgment under Rule 60(b), N.D.R.Civ.P., the movant provided an explanation for having permitted the entry of the default judgment which, in the court's opinion, constituted a sufficient justification for setting aside the default judgment to allow the case to be heard on its merits." 328 N.W.2d at 840.
The Lunds, to be entitled to present the merits of their confiscatory-price defense, must justify reopening the judgment under Rule 60(b), N.D.R.Civ.P.
Because the trial court based its denial of the motion to reopen the judgment on the erroneous belief that Section 28-29-04, N.D.C.C., had self-terminated, it must now make a redetermination of the request to vacate the judgment under the grounds for relief of Rule 60(b), N.D.R.Civ.P.
*589 In its complaint, the PCA stated that it "may" seek a deficiency judgment in a separate action. The Lunds assert that the PCA failed to meet the notice requirement of Section 32-19-04, N.D.C.C., by not stating in the complaint that it "shall" seek a deficiency judgment. Section 32-19-04, N.D.C.C., provides in relevant part:
"The plaintiff shall also state in his complaint whether he will in a later and separate action demand judgment for any deficiency which may remain due to him after sale of the mortgaged premises against every party who is personally liable for the debt secured by the mortgage."
The Lunds' interpretation of this provision is unpersuasive. The obvious intent of the statute is to require notice to the defendant in a foreclosure action that he is subject to personal liability for the balance of the debt remaining after sale of the mortgaged premises. The statement in PCA's complaint that it may seek a deficiency judgment in a separate action provided the Lunds with precisely the notice contemplated and required by Section 32-19-04, N.D.C.C. The PCA's use of the term "may" instead of "shall" did not render the notification less effective, and very possibly it constituted the more accurate statement of the two alternatives. Accordingly, we conclude that the deficiency notification provided by PCA in its complaint complied with Section 32-19-04, N.D.C.C.
In view of our determination that this case must be remanded for reconsideration by the trial court of the Lunds' request to reopen the judgment, we conclude that it is unnecessary to discuss or resolve other issues raised in this appeal. Accordingly, we reverse that part of the amended judgment denying the Lunds' motion to reopen the judgment, and we remand for reconsideration of that motion.
ERICKSTAD, C.J., GIERKE and LEVINE, JJ., and PEDERSON, Surrogate Justice, concur.
PEDERSON, Surrogate Justice, sitting in place of MESCHKE, J., disqualified.
LEVINE, Justice, specially concurring.
The trial judge's reading of the statute is precisely the same as mine would have been, were I sitting in his place. But unlike the trial court, I have had the benefit of the majority's thoughtful and persuasive analysis. Like the trial court, I too believed that when the 1933 legislature bestowed upon the courts the authority to massage time constraints "until" the price of farm products equaled the cost of production, it meant "until" that event occurred and not thereafter. The majority, by changing the emphasis and order of the words of the statute, has also changed my mind.
Any doubt is further assuaged by force of the legal imperative that we uphold the validity of a statute when possible and apply the construction supporting its validity rather than the alternative that would defeat it. The majority has convincingly accomplished the feat.
While I acknowledge that the action of a subsequent legislature does not generally indicate the intent of an earlier legislature, I still find comfort in abandoning my errant view for the majority's construction when I consider that the 1985 legislature could have acted in response to our Folmer and Heidt decisions as well as the seminal law review article on the subject: Vogel, The Law of Hard Times: Debtor and Farm Relief Actions of the 1933 North Dakota Legislative Session, 60 N.D.L.R. 489 (1984). That it did nothing fortifies my conclusion that the majority has correctly divined the legislative intent in its construction while paying heed most certainly to the spirit of the statute and with certainty enough to the letter of the law.
I thus concur in the rationale and result.
PEDERSON, Surrogate Judge, concurring specially.
I agree that Justice VandeWalle reached the proper answers to the questions before this court on this appeal. Because of my concern that the confiscatory-price defense statutes have been repeatedly argued *590 on appeals in which this court has been prevented from reaching the troublesome merits, I make an additional suggestion to the trial court: Until hearings are held and arguments heard on all issues, it is not possible for the trial court or this court to determine whether any of the powers apparently granted to the courts by these statutes will permit the court to provide any litigant any real benefit that does not violate constitutional rights of other litigants.
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226 Or. 344 (1961)
359 P.2d 1104
RICHARDSON
v.
DOHERTY MOTOR COMPANY
Supreme Court of Oregon.
Argued January 19, 1961.
Affirmed March 8, 1961.
*345 Carrell F. Bradley, Hillsboro, argued the cause and filed a brief for appellant.
Roland F. Banks, Jr., Portland, argued the cause for respondent. With him on the brief were Gordon Moore and Mautz, Souther, Spaulding, Kinsey & Williamson, Portland.
Before McALLISTER, Chief Justice, and WARNER, SLOAN, O'CONNELL and LUSK, Justices.
AFFIRMED.
SLOAN, J.
Plaintiff brought this action against defendant, his former employer, to recover commissions for the sale of automobiles. The particular sales occurred after plaintiff's employment with defendant terminated. He alleged the sales resulted from his efforts during the term of his employment by defendant. The case was tried to a jury. When the parties rested both of them moved for a directed verdict. The court directed a verdict for plaintiff. Later, on motion, the court awarded a judgment n.o.v. in favor of defendant. Plaintiff appeals. The issue is primarily factual.
While he was employed by defendant, plaintiff learned that an eastern concern, Peterson, Howell & Heather, bought and leased a large number of automobiles to business organizations doing business in Oregon. For instance, Swift and Company, for one, leased automobiles from Peterson, Howell & Heather for use by its employees in Oregon. Plaintiff conceived *346 the idea of selling the cars to the lessor company. With the advice and consent of his employer plaintiff opened negotiations with Peterson, Howell & Heather which eventually culminated in a contract between that firm and defendant. Both plaintiff and the managing officer of defendant participated in the negotiations. The contract, not in evidence, apparently obligated the leasing company to purchase an undetermined number of automobiles from defendant. The contract was renewable each year. It appears that the price to be paid per car was below established retail price. When the contract was entered into neither defendant nor plaintiff knew how many cars would be sold to the leasing company nor how much profit would be made on each sale. Accordingly, plaintiff and defendant at that time did not agree as to the commission plaintiff would receive on the sales that would result from the contract.
Later, however, plaintiff and defendant did agree that plaintiff should receive a commission of $25.00 on each car sold to Peterson, Howell & Heather. The agreement was evidenced by a letter memorandum which read:
"This is to confirm the commission arrangement between yourself and Doherty Motor Company with reference to deliveries of automobiles for the account of Peterson, Howell & Heather.
"Your commission will be $25.00 per unit, payable at the end of the month in which deliveries are made."
This memorandum made no provision with respect to its termination as and when plaintiff's employment terminated. This provides the issue in the case.
This arrangement continued for about four years when plaintiff and defendant parted company. Defendant *347 thereafter refused to pay the commissions on the cars sold after the employment terminated so plaintiff filed this action.
1. The trial court correctly ruled that if the evidence disclosed that plaintiff had a continuing obligation to service the account and perform any duties that might arise, he could not recover. But if plaintiff had performed all of his obligations when the first contract was entered into between defendant and Peterson, Howell & Heather, then plaintiff could recover. Flaherty v. Bookhultz et al, 1956, 207 Or 462, 480, 291 P2d 221, 297 P2d 856; Home News, Inc. v. Goodman, 1943, 182 Md 585, 597, 35 A2d 442; 1 Mechem, Agency, (2d ed, 1914) § 1532; Restatement, Agency (2d ed, 1958) § 445. No issue was made that either party wrongfully terminated the employment. The trial court's ultimate finding was that plaintiff had been obligated to perform additional services in addition to the original solicitation of the business.
2, 3. The rule is: When both plaintiff and defendant move for a directed verdict the trial court's decision will not be upset if there is evidence to support it. Conger v. Eugene Plywood Co. et al, 1948, 184 Or 649, 200 P2d 936. "If the evidence is conflicting on material issues then the findings of the trial judge are conclusive here." 184 Or at 654.
The procedure followed in this case was unusual. Accordingly, we must examine the record to see at what stage of the proceedings we should accept the trial court's findings when he directed the verdict for plaintiff or entered judgment n.o.v. for defendant.
The record discloses that the problem is not difficult. When the trial court was confronted with the *348 mutual motions for a directed verdict he explained his uncertainty as to what the evidence established and stated:
"* * * I still have an open mind on this question, and if you want to move for a Judgment Notwithstanding the Verdict, which you'd have a right to do, and I'll anticipate that you will, then at the same time you do that, you submit a brief to me and I'll extend the opportunity write to the plaintiff to submit their brief, and then I'll exhaustively study this question; but I have got to get the case in the posture now where I can do something with the jury. I'll either have to have them bring in a verdict for the plaintiff or the defendant and I choose to do it in favor of the plaintiff."
4. We note here that when both parties move for a directed verdict the correct procedure is for the court to discharge the jury and decide the case. Hudelson v. Sanders-Swafford Co., 1924, 111 Or 600, 227 P. 310. It was not necessary to direct the jury to return a verdict.
In his memorandum deciding the invited motion for judgment n.o.v. the court said that he had examined the transcript and concluded that:
"* * * The evidence indicates that at the time the parties arrived at their agreement for the plaintiff's compensation, it was expected and understood that the plaintiff would perform certain incidental services in connection with the delivery of the automobiles and the servicing of the account. While it is true that in practice the account with Peterson, Howell & Heather came to be handled as a matter of routine by the defendant's office staff and the plaintiff was not required to do much of anything in connection with the account or with the delivery of the cars, nevertheless his obligation to do so was never terminated."
*349 5. The only testimony presented was that of plaintiff and defendant's managing officer. Plaintiff, of course, bore the burden of proof. The testimony was conflicting in part. It was necessary to weigh the evidence and, to a definite extent, test the credibility of the two witnesses. There was evidence from which the court could have found a custom or usage in the trade that affected the rights of the parties. The trial court resolved these questions in favor of defendant. His initial decision was admittedly uncertain and largely expedient. We think his ultimate conclusion is the only one in which he weighed the evidence. We are bound by his determination. Munly v. Jones, 1929, 130 Or 252, 255, 279 P 630. The judgment is affirmed.
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822 P.2d 736 (1991)
110 Or.App. 358
STATE of Oregon, Respondent,
v.
Mark Dean DAVIS, Appellant.
89-C-21124; CA A68012.
Court of Appeals of Oregon.
Argued and Submitted September 27, 1991.
Decided December 18, 1991.
*737 David K. Allen, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Cynthia A. Forbes, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before WARREN, P.J., and RIGGS and DE MUNIZ, JJ.
DE MUNIZ, Judge.
Defendant was convicted of assault in the second degree and possession of a weapon by an inmate. ORS 163.175; ORS 166.275. He appeals, contending that the trial court erred by denying his request for substitute counsel and refusing to permit him to represent himself.[1] We reverse.
A week before his trial was scheduled to begin, defendant asked the court to appoint substitute counsel because,
"I don't feel I'm being accurately [sic] represented. * * * I've been trying to have this man do things for me, and he doesn't seem to want to help me out * * *."
The court responded, "I wouldn't have appointed [your lawyer] unless I was confident that he could adequately represent you. Your request is denied." A court may not presume that a defendant's claim of ineffective counsel is meritless. It has an affirmative duty to determine, on the record, the merits of such a claim. State v. Heaps, 87 Or. App. 489, 742 P.2d 1188 (1987). The court failed to make that determination.
Defendant then asked if he could represent himself. Again, the court summarily denied defendant's request. A criminal defendant has a constitutional right to waive counsel and to represent himself. State v. Boswell, 92 Or. App. 652, 656, 760 P.2d 276 (1988); State v. Verna, 9 Or. App. 620, 624, 498 P.2d 793 (1972). However, that right is not absolute. When a defendant asks to represent himself, the court must determine, on the record, whether his decision is an intelligent and understanding one. The court has a duty to make sure that the defendant understands the nature of the charge against him, the elements of the offense, the possible punishment he faces and the advantages of having an attorney versus the disadvantages of self-representation. See State v. Carter, 107 Or. App. 48, 810 P.2d 872 (1991); State v. Meyrick, 106 Or. App. 682, 809 P.2d 710, rev. allowed 311 Or. 643, 815 P.2d 1273 (1991); State v. Boswell, supra. The court must also determine whether granting the defendant's request would disrupt the judicial process. See State v. Verna, supra, 9 Or. App. at 627, 498 P.2d 793.
The state opines that granting defendant's request a week before trial "quite possibly would have necessitated a continuance." Defendant did not ask for a continuance when he asked to proceed pro se. We are unpersuaded by mere speculation. The state also contends that "the possibility of disruptive behavior on the part of defendant" justified the court's refusal to permit him to represent himself. The state correctly points out that the court heard evidence that would have supported a conclusion that defendant was prone to behave disruptively at trial. However, the court heard that evidence in a pretrial hearing 10 days after denying defendant's request to represent himself. That evidence played no part in the court's decision on the motion.
Reversed and remanded for a new trial.
NOTES
[1] He also claims that the court abused its discretion by ordering him shackled during the trial. Because we conclude that the two errors that we discuss require reversal, we need not address that issue.
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853 F.2d 926
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.Dennis Lee MAXBERRY, Plaintiff-Appellant,v.FIFTH THIRD BANK; West Shell Realtors, Defendants-Appellees,State of Ohio, Defendant.
No. 87-3546.
United States Court of Appeals, Sixth Circuit.
Aug. 4, 1988.
Before MERRITT and KRUPANSKY, Circuit Judges, and BAILEY BROWN, 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 briefs, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Plaintiff filed a 42 U.S.C. Sec. 1983 complaint alleging that the defendants refused to give him a loan and lease him property. The district court dismissed the complaint as frivolous pursuant to 28 U.S.C. Sec. 1915(d).
3
Upon consideration, we affirm for the reasons set forth in the district court's order filed May 8, 1987. Rule 9(b)(5), Rules of the Sixth Circuit.
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Filed
Washington State
Court of Appeals
Division Two
November 10, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
DAN ALBERTSON, as Limited Guardian ad No. 45748-2-II
Litem for A.R.B.,†an incapacitated minor,
Appellant,
v.
STATE OF WASHINGTON acting through its PUBLISHED OPINION
DEPARTMENT OF SOCIAL & HEALTH
SERVICES,
Respondent.
SUTTON, J.— ARB, through his guardian ad litem, Dan Albertson, sued the Department of
Social and Health Services (DSHS) for negligent investigation of alleged abuse by his father, Jacob
Mejia. A jury found that DSHS was negligent in its investigation of ARB’ s injuries, but that its
actions were not a proximate cause of ARB’ s injuries. ARB appeals the judgment in favor of
DSHS based on several alleged evidentiary errors and the trial court’ s jury instructions on
superseding cause. DSHS cross-appeals, asserting that the trial court erred by instructing the jury
on DSHS’ s duty to ARB and denying DSHS’ s CR 50 motions to dismiss.
It is appropriate to provide some confidentiality in this case. Accordingly, it is hereby ordered
that initials will be used in the case caption and in the body of the opinion to identify the minor
involved.
No. 45748-2-II
We hold that (1) the trial court erred by instructing the jury on superseding cause, ( 2) the
trial court’ s jury instruction misstated DSHS’ s duty to ARB, and (3) the trial court did not err in
denying DSHS’ s CR 50 motions to dismiss. Therefore, we reverse and remand for a new trial.1
FACTS
I. ARB’ S NOVEMBER 18 AND DECEMBER 22 INJURIES
ARB was born in late 2008 to Sarah Tate and Mejia. ARB’s birth was unremarkable and
he had no signs of trauma or physical injury as a newborn. Tate and Mejia lived with Mejia’ s
parents. Mejia was attending high school when ARB was born. Tate had already graduated from
high school, and she was ARB’s primary caregiver. Five days after ARB’s birth, he was a healthy
baby.
On the morning of November 18, Tate found that ARB’s left arm was limp. Mejia had fed
ARB, changed him, swaddled him, and placed him back into bed two hours earlier. Tate, Mejia,
and Mejia’ s mother brought ARB to Harrison Medical Center’ s emergency room that night.
X-rays showed that ARB’ s left humerus bone was broken. The break was a spiral fracture,
which typically requires a twisting, pulling, or jerking motion with greater than normal force
required to accomplish. Tate and Mejia first told the emergency room doctor, Dr. William Moore,
that the injury could have been caused at a wedding three days beforehand when ARB was passed
around. Later, Tate explained that she noticed ARB’ s limp arm after Mejia swaddled him that
morning. Dr. Moore suspected that ARB’s injury was caused from abuse and he contacted law
1
ARB also argues that ( 1) we should hold that DSHS’ s negligence was a proximate cause of
ARB’ s injury as a matter of law and ( 2) the jury’s verdict was inconsistent. Because we reverse
and remand for a new trial, we do not address these issues, nor do we address his challenge to the
trial court’ s evidentiary rulings.
2
No. 45748-2-II
enforcement, who placed ARB into protective custody with Child Protective Services ( CPS).
Nicole Miller, a social worker at Harrison Medical Center, referred ARB’s case to DSHS after she
interviewed the family.
ARB was transferred to Mary Bridge Children’ s Hospital, where he was placed on a
hospital hold.2 The emergency room physician at Mary Bridge, Dr. Jeffrey Bullard-Berent,
ordered a skeletal survey and a CT scan of ARB’ s head. Those studies did not show any other
fractures, but did find a subscleral hemorrhage.
Dr. Bullard-Berent was concerned that ARB had been abused because ARB had two
abnormal” injuries, a broken humerus and the hemorrhage. Clerk’ s Papers (CP) at 4068. He did
not believe that Tate and Mejia’ s explanation for ARB’s broken bone, swaddling, was consistent
with the injury. Dr. Victoria Silas, a pediatric orthopedic specialist who examined and treated
ARB’ s broken arm at Mary Bridge, was also concerned that ARB’s broken arm had been caused
by non-accidental trauma.
On November 19, Dr. Yolanda Duralde, a child abuse and neglect medical specialist and
the medical director of child abuse intervention at MultiCare Health Systems, interviewed Tate
and Mejia at the request of Heather Lofgren, the CPS social worker assigned to investigate whether
ARB had been abused. Dr. Duralde also examined ARB. Dr. Duralde reported to Lofgren that
Tate and Mejia were appropriately concerned and remorseful about ARB’s injury and interacted
with him well. During the interview, Mejia demonstrated how he swaddled ARB using a doll.
Mejia put the doll’ s left arm behind its back, used a small blanket to swaddle it, and rotated the
2
Under RCW 26.44.056, a hospital may hold a child provided that within 72 hours CPS makes
contact with the child and determines whether or not it is safe for the child to return home.
3
No. 45748-2-II
doll’ s arm forward so that the arm was on its side again. According to Dr. Duralde, Mejia’ s
demonstration was consistent with ARB’s injury. Dr. Duralde did not contact Dr. Silas about
ARB, but she was aware that doctors at Harrison and Mary Bridge were concerned that ARB’s
broken arm was caused by abuse. Based on Dr. Duralde’ s opinion that ARB’s injury was
accidental, DSHS returned him to Tate and Mejia’ s care on November 19.
In the early morning hours of December 23, ARB’s parents brought him to Harrison again.
ARB’ s skull was fractured and his brain tissue had been injured. He was experiencing seizures
and had bleeding on his brain. ARB had multiple other skeletal fractures, including rib fracture,
clavicular fracture, and a fracture to his right humerus.
Tate and Mejia said that ARB had been lying on the couch that evening, December 22,
when their dog jumped onto the furniture, bouncing ARB onto the floor. Dr. Duralde concluded
that ARB’ s December 22 injuries were caused in part by shaking and were probably caused by
non-accidental trauma. As a result of the injuries, ARB is permanently physically and cognitively
disabled and will need 24-hour care for the rest of his life.
II. DSHS’ S INVESTIGATION OF ARB’ S NOVEMBER 18 INJURY
At the time she was assigned to investigate ARB’ s case, Lofgren had recently completed
her social worker education and training. After she received Dr. Duralde’ s report on November
19, Lofgren and her supervisor removed the hospital hold on ARB, which allowed Tate and Mejia
to take him home. Dr. Duralde’ s opinion was the sole reason for Logren’ s determination that ARB
was not at risk of harm in the care of his parents.
On November 19 and 20, Lofgren completed several tasks to conduct her investigation
after ARB was returned to Tate and Mejia’ s care. Lofgren contacted Tate and Mejia’ s high school,
4
No. 45748-2-II
which did not report any concerns about either of them. Lofgren also completed a background
check on all the family members living with ARB, which did not uncover any criminal history or
CPS referrals for child abuse. 3
Lofgren conducted a home visit at the Mejias’ house the day after ARB was released to
Tate and Mejia’ s care. She interviewed Tate, Mejia, and Mejia’ s father about the home
environment and their plans for the future. At this home visit, Lofgren did not interview Tate and
Mejia separately, even though she knew that they had provided inconsistent stories about how
ARB’ s arm had been injured.
During this home visit, Lofgren formulated a safety plan with Tate and Mejia.4 The safety
plan provided for a public health nurse, who would visit ARB in his home once or twice a month.
The safety plan stated that Lofgren would follow up on retaining the service of a public health
nurse, but she did not do so because she believed that the responsibility belonged to a person in
another department. The safety plan also provided that Tate and Mejia would find parenting
classes and contact Lofgren if they could not find one close to their home, but neither of them
contacted Lofgren after the home visit. Lofgren did not follow up with them about the parenting
class requirement. Although Mejia’ s father was the only other family member present during the
home visit and he did not sign the document, the safety plan also provided that “[ a] ll family
members agree to call CPS if they have concerns [ regarding] care of [ARB].” CP at 182.
3
Tate had one referral history in the CPS database, but she was the alleged victim of child abuse
and not the suspected perpetrator.
4
CPS policy required Lofgren to formulate a safety plan because her safety assessment concluded
that ARB was at risk of harm. A safety assessment is a tool CPS investigators use to determine
whether a child is safe in the home and whether specific services need to be provided.
5
No. 45748-2-II
Lofgren concluded that the November 18 injury was accidental. But she did not obtain the
medical records from Harrison, Mary Bridge, or ARB’s pediatrician. Lofgren explained that she
did not contact any other doctor besides Dr. Duralde because CPS policy directed her to rely on
Dr. Duralde’ s opinion as a child abuse expert, and she expected Dr. Duralde to complete a full
assessment, including reviewing medical records.
There is no record of any DSHS employee having any contact with Tate or Mejia between
November 21 and December 23, 2008, and DSHS did not provide any of the services that Tate and
Mejia agreed to complete in the safety plan. Because Lofgren did not believe that ARB was in
imminent risk of harm, she did not seek court intervention to require Tate or Mejia to engage in
any services by filing a dependency petition, nor did she seek Mejia’ s voluntary separation from
ARB because Lofgren determined that the November 18 injury, though serious, was accidental.
III. PROCEDURE
Following ARB’ s December 22 injuries, DSHS initiated a dependency petition on
December 23. DSHS then initiated a termination petition, and after trial the trial court terminated
Tate’ s and Mejia’ s parental rights of ARB. Arthur and Melissa Barnum, as the guardians of ARB,
sued DSHS for conducting a negligent investigation. 5
At trial, DSHS moved to dismiss ARB’s claims under CR 50 after ARB rested his case and
again before the trial court submitted the case to the jury. DSHS argued that ARB did not establish
5
The Barnums also brought claims against Dr. Duralde and Mary Bridge, but they voluntarily
dismissed these claims after the trial court granted those parties’ motions for partial summary
judgment.
6
No. 45748-2-II
any legal or factual basis that would allow the jury to find that DSHS breached a duty to ARB that
proximately caused his injuries. The trial court denied both motions.
A. JURY INSTRUCTIONS
On DSHS’ s duty to ARB, the trial court instructed the jury that “[ t]he State of Washington
through its divisions or departments, must conduct a reasonable investigation of a report of
potential child abuse. A claim against Defendant DSHS for negligent investigation is available
when DSHS conducts a negligent investigation that results in a harmful placement decision.” CP
at 3969 (Jury Instruction 10). DSHS objected to this instruction because it was inconsistent with
the Washington Supreme Court’ s most recent opinion on DSHS’ s duty in a negligent investigation
claim, M.W. v. Department of Social & Health Services, 149 Wn.2d 589, 70 P.3d 954 (2003).
On the issue of superseding cause, the trial court gave the jury three instructions. First, the
trial court instructed the jury that “[ DSHS] claims as a defense that if there are injuries as claimed,
only . . . Mejia caused injury to [ARB].” CP at 3962 (Jury Instruction 3). Second, the trial court
instructed the jury that proximate cause means “ a cause which in a direct sequence unbroken by
any superseding cause produces the injury complained of and without which such injury would
not have occurred.” CP at 3973 ( emphasis added) ( Jury Instruction 14). Third, the trial court
instructed the jury on the definition of “superseding cause,”
A superseding cause is a new independent cause that breaks the chain of
proximate causation between a defendant’ s negligence and an injury.
If you find that the defendant was negligent, but that the sole proximate
cause of the injury was a later independent intervening act of a person not a party
to this action that the defendant, in the exercise of ordinary care, could not
reasonably have anticipated, then any negligence of the defendant is superseded
and such negligence was not a proximate cause of the injury. If, however, you find
that the defendant was negligent and that in the exercise of ordinary care, the
defendant should reasonably have anticipated the later independent intervening act,
7
No. 45748-2-II
then that act does not supersede defendant’ s original negligence and you may find
that the defendant’ s negligence was a proximate cause of the injury.
It is not necessary that the sequence of events or the particular resultant
injury be foreseeable. It is only necessary that the resultant injury fall within the
general field of danger which the defendant should reasonably have anticipated.
CP at 3975 (Jury Instruction 16). ARB objected to jury instructions 14 and 16 on the basis that
instructing the jury on superseding cause was inappropriate in this case.
B. CLOSING ARGUMENT
During closing argument, ARB argued that DSHS negligently investigated ARB’s injuries
because DSHS (1) conducted a faulty safety plan, failed to follow up, and failed to obtain ARB’s
medical and law enforcement records, ( 2) returned ARB to his parents’ care without restrictions
or separation from Mejia in violation of its own policies and procedures, ( 3) did not institute a
child protection team (CPT),6 and (4) took no action to keep ARB safe between November 21 and
December 23, 2008.
In response, DSHS argued to the jury that its investigation was reasonable. DSHS also
argued that if the jury found that it conducted a negligent investigation, DSHS’ s negligence was
not a proximate cause of ARB’ s injuries because Mejia was “ the sole proximate cause and a
superseding cause in this case.” 17 Verbatim Report of Proceedings (VRP) at 2057.
C. JURY VERDICT
The jury found that DSHS was negligent in its investigation, but that its negligence was
not a proximate cause of ARB’ s injury. The trial court entered judgment in favor of DSHS.
ARB appeals. DSHS cross-appeals.
6
RCW 74.14B.030 requires a CPT, a team of multidisciplinary professionals, to be available for
consultation on all cases where there is risk of serious harm to the child.
8
No. 45748-2-II
ANALYSIS
ARB argues that the trial court erred in instructing the jury on superseding cause in its
proximate cause jury instructions. DSHS argues that the trial court erred in instructing the jury on
DSHS’ s duty to ARB and erred in denying its motions to dismiss. We agree with both parties’
claims relating to the trial court’ s jury instructions, but disagree that the trial court erred in denying
DSHS’ s motions to dismiss.
I. STANDARD OF REVIEW ON JURY INSTRUCTIONS
We review a challenge to a jury instruction de novo if it is based upon a matter of law .
Kappelman v. Lutz, 167 Wn.2d 1, 6, 217 P.3d 286 (2009). Jury instructions are sufficient if they
allow each party to argue its case, are not misleading, and properly inform the jury of the applicable
law when read as a whole. Rekhter v. Dep’ t of Soc. & Health Servs., 180 Wn.2d 102, 117, 323
P.3d 1036 (2014).
An erroneous jury instruction is reversible error only if the error was prejudicial. Anfinson
v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851, 860, 281 P.3d 289 ( 2012). The party
challenging the jury instruction bears the burden to demonstrate prejudice. Fergen v. Sestero, 182
Wn.2d 794, 803, 346 P.3d 708 ( 2015). We presume prejudice, however, if a jury instruction
clearly misstates the law. Keller v. City of Spokane, 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002).
9
No. 45748-2-II
II. PROXIMATE CAUSE: SUPERSEDING CAUSE JURY INSTRUCTIONS
ARB challenges the trial court’ s instructions to the jury on superseding cause because the
instructions allowed the jury to find that Mejia was a superseding cause of ARB’ s injuries. We
agree. 7
To be liable for negligence, a defendant’ s actions must be a proximate cause of the
plaintiff’ s injury. Hartley v. State, 103 Wn.2d 768, 777, 698 P.2d 77 (1985). Proximate cause has
two elements: ( 1) cause in fact and ( 2) legal causation. Hartley, 103 Wn.2d at 777. An act
generally is a proximate cause of an injury if it produces the injury. Riojas v. Grant County Pub.
Util. Dist., 117 Wn. App. 694, 697, 72 P.3d 1093 ( 2003). However, if a new, independent
intervening act breaks the chain of causation, it supersedes the defendant’ s original act and is no
longer the proximate cause of the injury. Campbell v. ITE Imperial Corp., 107 Wn.2d 807, 813,
733 P.2d 969 (1987).
Whether an act may be considered a superseding cause sufficient to relieve a defendant
of liability depends on whether the intervening act can reasonably be foreseen by the defendant;
7
DSHS argues that ARB did not preserve this claim of error because (1) ARB argued at trial only
that his injury was foreseeable as a matter of law, ( 2) ARB’ s objection related only to the
segregation of damages jury instruction, citing Rollins v. King County Metro Transit, 148 Wn.
App. 370, 199 P.3d 499 ( 2009), and ( 3) on appeal, ARB raises a new objection based on
foreseeability. The record demonstrates that ARB’s objection referred to the superseding cause
instructions and that this objection sufficiently appraised the trial court of the nature of his
objection. Washburn v. City of Federal Way, 178 Wn.2d 732, 747, 310 P.3d 1275 ( 2013) (“ So
long as the trial court understands the reasons a party objects to a jury instruction, the party
preserves its objection for review.”).
DSHS also argues that ARB did not preserve the error because he did not propose a special
verdict form that differentiated between a jury finding of no proof of proximate cause versus a jury
finding that Mejia’ s abuse was a superseding cause. Because we hold that instructing the jury on
superseding cause was error and we reverse for a new trial, we do not reach this issue.
10
No. 45748-2-II
only intervening acts which are not reasonably foreseeable are deemed superseding causes.’”
Rioja, 117 Wn. App. at 697 ( internal quotation marks omitted) ( quoting Cramer v. Dep’ t of
Highways, 73 Wn. App. 516, 520, 870 P.2d 999 (1994)); see also Campbell, 107 Wn.2d at 813.
Reasonable foreseeability does not require that the precise manner or sequence of events in which
a plaintiff is harmed be foreseeable. Anderson v. Dreis & Krump Mfg. Corp., 48 Wn. App. 432,
443, 739 P.2d 1177 ( 1987). Rather, as the Restatement ( Second) of Torts explains, “‘[ I]f the
likelihood that a third person may act in a particular manner is . . . one of the hazards which makes
the [ defendant] negligent, such an act whether innocent, negligent, intentionally tortious, or
criminal does not prevent the [ defendant] from being liable’” for the injury caused by the
defendant’ s negligence. Campbell, 107 Wn.2d at 813 ( some alterations in original) ( quoting
RESTATEMENT (SECOND) OF TORTS § 449 (1965)).
We analyze whether an intervening force is a superseding cause according to several
factors: ( 1) whether the intervening force brings about a different kind of harm that would have
otherwise resulted from the defendant’ s negligence, ( 2) whether the intervening act was
extraordinary or its consequences were extraordinary, and (3) whether the intervening act operated
independently of a situation created by the defendant’ s negligence. Campbell, 107 Wn.2d
at 812-13 (citing RESTATEMENT ( SECOND) OF TORTS § 442). It is reversible error where the trial
court erroneously instructs the jury on superseding cause. Campbell, 107 Wn.2d at 817.
Here, the trial court’ s instructions on superseding cause allowed DSHS to argue that
Mejia’ s subsequent abuse of ARB on December 22 was “ a superseding cause” of ARB’s injuries
and broke the causal chain between DSHS’ s negligence and ARB’s injuries, even if the jury found,
as it did, that DSHS was negligent. Thus, these jury instructions allowed the jury to consider
11
No. 45748-2-II
whether Mejia’ s abuse of ARB on December 22 was a superseding cause of DSHS’ s alleged
negligence.8 This was error.
Mejia’ s abuse of ARB on December 22 was precisely the kind of harm that would
ordinarily occur as a result of a faulty or biased investigation of child abuse that results in a harmful
placement decision by DSHS—further child abuse by the abuser. Campbell, 107 Wn.2d
at 812-13. We cannot say that Mejia’ s abuse of ARB was “‘ so highly extraordinary or
improbable’” that no reasonable person could be expected to anticipate it. Seeberger v. Burlington
N. R.R. Co., 138 Wn.2d 815, 823, 982 P.2d 1149 (1999) ( quoting McLeod v. Grant County Sch.
Dist. No. 128, 42 Wn.2d 316, 323, 255 P.2d 360 (1953)). Mejia’ s abuse of ARB is “‘ one of the
hazards’” that DSHS’ s duty to investigate allegations of child abuse is designed to prevent.
Campbell, 107 Wn.2d at 813 (quoting RESTATEMENT ( SECOND) OF TORTS § 449). Mejia’ s abuse
of ARB did not act “ independently of any situation” created by DSHS’ s alleged negligence.
RESTATEMENT ( SECOND) OF TORTS § 442(c). We cannot say that Mejia’ s abuse of ARB was not
reasonably foreseeable. Thus, we hold that the trial court erred in instructing the jury on the issue
of superseding cause and we reverse accordingly. Campbell, 107 Wn.2d at 817.
III. DSHS’ S DUTY TO ARB: NEGLIGENT INVESTIGATION JURY INSTRUCTION
DSHS argues the trial court’ s jury instruction 10 on its duty to ARB was error because it
was inconsistent with the limitation of DSHS’ s duty to ARB as set out in M.W. DSHS also argues
8
Contrary to DSHS’ s argument that the jury’s verdict could reflect that it found lack of evidence
of proximate cause rather than finding superseding cause, DSHS never argued that ARB had failed
to present evidence that it was the proximate cause of ARB’ s injuries. Rather, during closing
argument DSHS argued that if the jury found it conducted a negligent investigation, DSHS’ s
negligence was not a proximate cause of ARB’s injuries because Mejia was “ the sole proximate
cause and a superseding cause in this case.” 17 VRP at 2057.
12
No. 45748-2-II
that its proposed jury instructions on its duty to ARB correctly stated the law, and the trial court
erred by rejecting those proposed instructions. We agree.
To prove a negligence claim, the plaintiff must show (1) that the defendant owed a duty to
him or her, (2) that the defendant breached that duty, (3) injury resulting from the breach, and (4)
proximate cause between the defendant’ s breach of duty and the plaintiff’ s injury. Hartley, 103
Wn.2d at 777. Whether the defendant owes a duty to the plaintiff is a question of law that we
review de novo. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
ARB brought his cause of action against DSHS under former RCW 26.44.050,9 which
provides that when DSHS receives a report of possible child abuse or neglect it “must investigate”
that report and “ where necessary to refer such report to the court.” CP at 26-27; RCW 26.44.050.
Under RCW 26.44.050, DSHS has a statutory duty to investigate reports of child abuse. The
purpose of RCW 26.44.050 is to protect children and to preserve the integrity of the family. Tyner
v. Dep’ t of Soc. & Health Servs., 141 Wn.2d 68, 80, 1 P.3d 1148 (2000); RCW 26.44.010.10
9
Former RCW 26.44.050, amended by LAWS OF 2012, ch. 259, § 5. We will refer to the current
version of RCW 26.44.050, as the 2012 amendment is irrelevant to this opinion.
10
RCW 26.44.010, the legislature’ s declaration of the purpose of chapter 26.44, provides,
The bond between a child and his or her parent . . . is of paramount importance, and
any intervention into the life of a child is also an intervention into the life of the
parent . . . where a child is deprived of his or her right to conditions of minimal
nurture, health, and safety, the state is justified in emergency intervention based
upon verified information; and therefore the Washington state legislature hereby
provides for the reporting of such cases to the appropriate public authorities. It is
the intent of the legislature that, as a result of such reports, protective services shall
be made available in an effort to prevent further abuses, and to safeguard the general
welfare of such children.
13
No. 45748-2-II
Washington law does not recognize a general tort claim for negligent investigation. M.W.,
149 Wn.2d at 601. A plaintiff does not have an actionable breach of duty claim against DSHS
every time the state conducts an investigation that falls below a reasonable standard of care by,
for example, failing to follow proper investigative procedures.” Petcu v. State, 121 Wn. App. 36,
59, 86 P.3d 1234 (2004). In other words, the statutory cause of action for negligent investigation
under RCW 26.44.050 does not include “protecting children from all physical or emotional injuries
that may come to them directly from the negligence of DSHS investigators.” M.W., 149 Wn.2d at
598. Instead, a claim for negligent investigation against DSHS is available “ only when DSHS
conducts a biased or faulty investigation that leads to a harmful placement decision, such as placing
the child in an abusive home, removing the child from a nonabusive home, or failing to remove a
child from an abusive home.” M.W., 149 Wn.2d at 591.
ARB relies on Yonker v. Dep’ t of Soc. & Health Servs., 85 Wn. App. 71, 80-81, 930 P.2d
958 (1997) for the proposition that RCW 26.44.050 imposes a duty on DSHS “ to provide services
during the report and investigation of suspected abuse.” Reply Br. of Appellant at 42. However,
Yonker specifically stated that it did not address “ the scope or intensity of the investigation
required” of DSHS after it receives a report of child abuse because that issue was not before
Division One of this court on appeal. Yonker, 85 Wn. App. at 81. Likewise, the legislature’ s
express purpose provided in RCW 26.44.010, that “ protective services shall be made available”
when DSHS receives a report of child abuse, does not delineate the scope of DSHS’ s duty to
investigate claims of child abuse under RCW 26.44.050. Rather, under a negligent investigation
cause of action like ARB’ s, DSHS’ s duty as clarified by M.W. is a duty to not conduct “ a biased
or faulty investigation that leads to a harmful placement decision.” M.W., 149 Wn.2d at 591.
14
No. 45748-2-II
Absent such “ a biased or faulty investigation that leads to a harmful placement decision,”
DSHS is not liable for a plaintiff’ s claim of damages for an alleged negligent investigation. M.W.,
149 Wn.2d at 591. Contrary to ARB’s arguments, DSHS’ s statutory duty to investigate a report
of child abuse or neglect does not necessarily include a duty to, for example, offer and implement
a voluntary safety plan for the family or initiate a dependency proceeding or other legal action to
protect the child. DSHS’ s failure to take these actions does not constitute a negligent investigation
under RCW 26.44.050 absent a faulty or biased investigation that leads to a harmful placement
decision under M.W.11
The trial court’ s jury instruction 10 told the jury that DSHS had a duty to “ conduct a
reasonable investigation of a report of potential child abuse.” CP at 3969. This instruction allowed
the jury to find DSHS negligent for merely conducting an unreasonable investigation and did not
limit DSHS’ s duty to conducting an investigation that was not biased or faulty and leading to a
harmful placement decision under RCW 26.44.050. Thus, the trial court’ s jury instruction 10 was
legally erroneous because it misstated the law as articulated in M.W.
DSHS proposed two jury instructions relating to its duty to ARB, which were consistent
with M.W., but which the trial court rejected. DSHS’ s proposed jury instruction 20 provided,
The Department of Social and Health Services may only be liable for a
negligent investigation if:
1) DSHS received a report of child abuse and neglect,
2) DSHS gathered incomplete or biased information investigating the
report, and
3) The investigation resulted in a harmful placement decision.
11
ARB also argues that DSHS had undertaken a “ rescuer” role toward ARB when Lofgren created
a safety plan with Tate and Mejia, so DSHS assumed a duty toward him. Reply Br. of Appellant
at 46-47. ARB did not raise this argument below, and thus, we do not address it. RAP 2.5(a).
15
No. 45748-2-II
A harmful placement decision must be either:
1) Removal of a child from a non-abusive parent, guardian, or legal
custodian,
2) Placement of a child in an abusive home, or
3) Allowing a child to remain in an abusive home.
The Department of Social and Health Services does not have a duty to
protect children from all forms of abuse and neglect.
CP at 2376. DSHS’ s proposed jury instruction 37 provided,
A State statute provides that upon receipt of a report concerning the possible
occurrence of abuse or neglect of a child the Defendant DSHS must investigate. A
claim against the Defendant DSHS for negligent investigation is only available
when DSHS conducts a biased or incomplete investigation that results in a harmful
placement decision.
CP at 3897. These proposed jury instructions correctly state DSHS’ s duty to ARB under M.W.
Thus, the trial court erred in rejecting DSHS’ s proposed jury instructions 20 and 37 and giving
jury instruction 10.
IV. DSHS’ S CR 50 MOTIONS TO DISMISS
DSHS also argues that the trial court erred in denying its CR 50 motions to dismiss because
ARB did not establish a legal or factual basis that would have allowed DSHS to remove ARB from
his parents’ care or to prevent ARB’s injury. We disagree.
If a party has presented all of its evidence and the trial court has not yet submitted the case
to the jury, the trial court may grant a motion for judgment as a matter of law if there is no legal
16
No. 45748-2-II
basis on which a reasonable jury could find for the nonmoving party. CR 50(a). We review a trial
court’ s denial of a motion for judgment as a matter of law using the same standard as the trial
court. Mega v. Whitworth College, 138 Wn. App. 661, 668, 158 P.3d 1211 (2007). “‘ Granting a
motion for judgment as a matter of law is appropriate when, viewing the evidence most favorable
to the nonmoving party, the court can say, as a matter of law, there is no substantial evidence or
reasonable inference to sustain a verdict for the nonmoving party.’” Mega, 138 Wn. App. at 668
quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 ( 1997)). A motion for
judgment as a matter of law admits the truth of the opponent’ s evidence and all reasonable
inferences from the evidence. Mega, 138 Wn. App. at 668.
Here, each party presented the testimony of an assistant attorney general who represented
DSHS in dependency proceedings to support its case theory. Catherine Cruikshank testified on
behalf of ARB that DSHS’ s failure to complete an adequate safety plan and to follow up with the
family caused ARB’s injuries. Barbara Bailey testified on behalf of DSHS and stated that even if
Lofgren had sought additional information that ARB argued Lofgren should have sought in her
investigation, that additional information would not have been sufficient for DSHS to file a
dependency action.
Taken in the light most favorable to ARB, the non-moving party, Cruikshank’ s and
Bailey’ s conflicting testimony created an issue of fact on causation for the jury. Thus, the trial
court properly denied DSHS’ s motions to dismiss.
17
No. 45748-2-II
CONCLUSION
We hold that (1) the trial court erred by instructing the jury on superseding cause, ( 2) the
trial court’ s jury instruction misstated DSHS’ s duty to ARB, and (3) the trial court did not err in
denying DSHS’ s CR 50 motions to dismiss. Therefore, we reverse and remand for a new trial.
SUTTON, J.
We concur:
MAXA, P.J.
LEE, J.
18
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826 F.2d 1064
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.Dennis Lee MAXBERRY, Plaintiff-Appellant,v.OHIO BOARD OF REGENTS, Defendant-Appellee.
No. 87-3141
United States Court of Appeals, Sixth Circuit.
Aug. 10, 1987.
ORDER
Before KENNEDY, MILBURN and NORRIS, Circuit Judges.
1
This matter is before the court upon consideration of plaintiff's appeal from the district court's judgment sua sponte dismissing his civil action as frivolous under 28 U.S.C. Sec. 1915(d). The matter has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the certified record and the parties' briefs, the panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
2
Plaintiff alleged in the district court that defendant deprived him of his entitlement to student financial assistance.
3
Upon consideration this court affirms the district court's judgment for reasons stated in the district court's order of dismissal dated January 30, 1987. Rule 9(b)(5), Rules of the Sixth Circuit.
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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antoine Turay, F.D., :
: No. 924 C.D. 2016
Petitioner : Submitted: October 28, 2016
:
v. :
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Funeral Directors, :
:
Respondent :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: March 28, 2017
Antoine Turay, F.D. (Petitioner) petitions for review from an order of
the Bureau of Professional and Occupational Affairs, State Board of Funeral
Directors (Board), dated May 12, 2016, revoking his funeral director license under
the Funeral Director Law (Law)1 and fining him $10,000.00 under Section 5(b)(4)
of the statute commonly referred to as the Licensing Boards and Commissions Law
(Act 48),2 63 P.S. §2205(b)(4). We affirm.
1
Act of January 14, 1952, P.L. 1898 (1951), as amended; 63 P.S. §§479.1-479.22.
2
Act of July 2, 1993, P.L. 345, as amended, 63 P.S. §§2201-2207.
At all times pertinent in this case, Petitioner held a license to practice
as a funeral director in the Commonwealth of Pennsylvania and was the sole
proprietor of Turay Memorial Chapel. Board Findings of Fact (F.F.) Nos. 1, 3, 10.
In 2014, Petitioner was charged with various crimes based on
allegations that, during the years 2009 through 2013 he, without authority:
accessed the bank accounts of an 89-year-old woman with cognitive impairment;
added himself to her accounts; prepared checks in her name for his personal use;
transferred money into his own personal accounts; transferred her money into an
account for Turay Memorial Chapel; and transferred title to the victim’s home to
himself. In total, Petitioner was charged with stealing more than $300,000.00 from
the victim. F.F. Nos. 7-9, 11, 12.
On or about June 11, 2015, Petitioner pled guilty in the Court of
Common Pleas of Philadelphia County, at CP-51-CR-0009115-2014, to the
following first degree misdemeanors: (1) theft by unlawful taking–movable
property;3 (2) theft by deception–failure to correct;4 (3) theft by failure to make
required disposition of funds;5 and (4) tampering with records or identification–
writing.6 F.F. No. 5.
On October 6, 2015, the Commonwealth of Pennsylvania
(Commonwealth) filed a one-count Order to Show Cause, alleging that the Board
was authorized to discipline Petitioner. On November 12, 2015, Jack McMahon,
3
18 Pa. C.S. §3921(a).
4
18 Pa. C.S. §3922(a)(3).
5
18 Pa. C.S. §3927(a).
6
18 Pa. C.S. §4104(a).
2
Esquire, entered his appearance on behalf of Petitioner, which triggered all
subsequent notices and pleadings regarding Petitioner’s case to be sent to counsel
instead of Petitioner. Petitioner, by his counsel, filed an Answer and New Matter
and the Board scheduled a formal hearing to be held on January 14, 2016;
Petitioner requested a continuance and the hearing was rescheduled for February
18, 2016. On January 19, 2016, the Board issued an order correcting the time of
the February 18 hearing from 11:00 p.m. to 11:00 a.m. All hearing notices were
served on Petitioner’s attorney. F.F. Nos. 15-20.
The hearing was held, as scheduled, on February 18, 2016; however
neither Petitioner nor his counsel appeared. The hearing was officially called to
order at 11:23 a.m. at which time the Commonwealth presented its case. Neither
Petitioner nor his attorney attempted to contact the Board either by mail, email or
phone to alert the Board that they would not be present for the hearing or to request
another continuance. F.F. Nos. 21-24.
The Board concluded that Petitioner was subject to disciplinary action
under Section 11(a)(3) of the Law based on his convictions for crimes involving
moral turpitude.7 Consequently, the Board revoked Petitioner’s funeral director
7
Section 11(a)(3) of the Law provides:
(a) The board, by majority vote thereof, may refuse to grant, refuse
to renew, suspend or revoke a license of any applicant or licensee,
whether originally granted under this act or under any prior act, for
the following reasons:
***
(3) The conviction of a crime involving moral turpitude, in this or
any other State or Federal court or pleading guilty or nolo
contendere to any such offense.
(Footnote continued on next page…)
3
license, effective June 13, 2016, and ordered Petitioner to cease and desist from
practice as a funeral director. The Board also levied a civil penalty of $10,000
under Act 48.8
On appeal to this Court,9 Petitioner argues that his due process rights
were violated because the Board denied him a continuance of his hearing and,
therefore, he was not granted a full and fair hearing on the revocation of his funeral
director license. Petitioner further asserts that he was denied the opportunity to
testify on his own behalf and present witnesses in support of his defense. We
disagree.
“There are two essential elements of due process in administrative
proceedings: notice and opportunity to be heard.” Kiehl v. Unemployment
Compensation Board of Review, 747 A.2d 954, 957 (Pa. Cmwlth. 1999) (citing
(continued…)
63 P.S. §479.11(a)(3).
8
As an alternative to the civil penalties authorized by Section 17(b) of the Law, 63 P.S.
§479.17(b), Section 5(b)(4) of Act 48 permits the Board to “levy a civil penalty of not more than
$10,000 per violation on any licensee . . . who violates any provision of the applicable licensing
act or board regulation.” 63 P.S. §2205(b)(4). The Board must choose between levying civil
penalties under the Law or Act 48; it may not impose penalties under both for the same violation.
Section 5(c) of Act 48, 63 P.S. §2205(c).
9
This Court's scope of review is limited to determining whether the Board committed
violations of an appellant’s constitutional rights, whether errors of law, or whether any necessary
findings of fact are supported by substantial evidence. Section 704 of the Administrative
Agency Law, 2 Pa. C.S. §704. As the ultimate finder of fact, the Board makes all credibility
determinations and this Court is bound by those determinations as well as the facts derived
therefrom. Department of Transportation, Bureau of Driver Licensing v. Boucher, 691 A.2d
450, 453 (Pa. 1997); Toms v. Bureau of Professional and Occupational Affairs, 800 A.2d 342,
347 (Pa. Cmwlth. 2002).
4
Jennings v. Unemployment Compensation Board of Review, 675 A.2d 810 (Pa.
Cmwlth. 1996)). Beyond the bare assertion that his due process rights were
violated, however, Petitioner fails to develop his argument as to how the Board
denied him either notice or an opportunity to be heard. “At the appellate level, a
party’s failure to include analysis and relevant authority results in waiver.”
Browne v. Department of Transportation, 843 A.2d 429, 435 (Pa. Cmwlth. 2004);
Pa. R.A.P. 2119. Consequently, Petitioner’s argument in this regard fails.
Substantively, we conclude that Petitioner’s appellate claims are also
without merit. Regarding the first element of due process, notice must reasonably
inform interested parties of the pending action as well as the information necessary
to allow either party to present objections. Wills v. State Board of Vehicle
Manufacturers, Dealers and Salespersons, 588 A.2d 572, 573 (Pa. Cmwlth. 1991).
Petitioner filed an Answer and New Matter in response to the Order to Show Cause
and requested a continuance of the original hearing, demonstrating his receipt of
both notices by counsel. The rescheduled hearing notice and time correction were
sent to the same address as those previously received notices. Petitioner does not
allege that he did not receive notice of the new hearing date.
Regarding the second element, a party who elects by his own actions
to fail to appear at his revocation hearing after receiving notice thereof cannot later
claim to have been denied due process. Gutman v. State Dental Council and
Examining Board, Bureau of Professional Affairs, 463 A.2d 114, 115 (Pa. Cmwlth.
1983). A hearing was held as scheduled on February 18, 2016, at which time
Petitioner could have testified on his own behalf or presented witnesses in support
of his defense. Neither Petitioner nor his attorney attended the hearing. He and his
counsel also failed to, at a minimum, alert the Board as to their inability to attend.
5
Petitioner offers no explanation for these failures. After careful review, it is clear
from the record that Petitioner had both notice and an opportunity to be heard.
Petitioner also argues that the Board abused its discretion in levying
an unduly harsh punishment by revoking his funeral director license. He
emphasizes the fact that he had no prior incidents of misconduct and otherwise
conducted himself in a reputable manner. Petitioner requests a remand for a full
hearing. Because Petitioner did not raise this argument in the Statement of
Questions Involved portion of his appellate brief he has waived this argument as
well. 10
Moreover, this argument is devoid of merit. Our Supreme Court long
ago established that:
[C]ourts will not review the actions of governmental
bodies or administrative tribunals involving acts of
discretion, in the absence of bad faith, fraud, capricious
action or abuse of power; they will not inquire into the
wisdom of such actions or into the details of the manner
adopted to carry them into execution.
***
That the court might have a different opinion or judgment
in regard to the action of the agency is not a sufficient
ground for interference; judicial discretion may not be
substituted for administrative discretion.
Blumenschein v. Housing Authority of Pittsburgh, 109 A.2d 331, 335 (Pa. 1954)
(emphasis in original). The Board determined that Petitioner’s convictions
10
“No question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.” Pa. R.A.P. 2116(a).
6
constituted a violation of Section 11(a)(3) of the Law. A careful review of the
record demonstrates that the Board’s findings are supported by substantial
evidence. As long as it is in accordance with the law, the Board’s penalty is
reasonable. Slawek v. State Board of Medical Education and Licensure, 586 A.2d
362, 365 (Pa. 1991). As a result, we conclude that the Board did not abuse its
discretion when it revoked Petitioner’s license for violations of the Law.
Accordingly, the Board’s order is affirmed.
MICHAEL H. WOJCIK, Judge
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Antoine Turay, F.D., :
: No. 924 C.D. 2016
Petitioner :
:
v. :
:
Bureau of Professional and :
Occupational Affairs, State :
Board of Funeral Directors, :
:
Respondent :
ORDER
AND NOW, this 28th day of March, 2017, order of the Bureau of
Professional and Occupational Affairs, State Board of Funeral Directors, dated
May 12, 2016, is AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge
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702 F.Supp. 641 (1988)
Roy A. FACCHINA, Plaintiff,
v.
NECA-IBEW LOCAL 176 HEALTH AND WELFARE FUND, Defendant.
No. 87 C 7686.
United States District Court, N.D. Illinois, E.D.
September 13, 1988.
*642 Bennett J. Braun, Roman R. Okrei, Stefanich, McGarry, Wols & Okrei, Ltd., Joliet, Ill., for plaintiff.
Bernard M. Baum, Alan H. Auerbach, James M. Neuman, Baum & Sigman, Chicago, Ill., for defendant.
ORDER
NORGLE, District Judge.
After a bench trial on August 29, 1988, the court ordered both parties to submit proposed findings of fact and conclusions of law. Having considered these submissions, and the evidence presented at trial, the court finds as follows:
FINDINGS OF FACT
1. Plaintiff Roy Facchina brought this action against the trustees of NECA-IBEW Local 176 Health and Welfare Fund. The trustees were dismissed as parties upon the motion of the defendant and the Health and Welfare Fund was substituted in as the sole defendant in this cause.
2. Plaintiff's one count complaint alleges violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. Plaintiff asserts that he was arbitrarily or capriciously denied medical benefits to which he was entitled. He seeks the payment of certain medical bills incurred for testing for male impotence and treatment by surgical implantation of a penile prosthesis.
3. The court has jurisdiction over this case pursuant to 29 U.S.C. Section 1132(e)(1).
4. In 1960, plaintiff became a member of IBEW Local 176 and later became a participant in its Health and Welfare Fund ("the Plan"). Facchina was a participant in the Plan at the time he applied for payment of the above noted benefits. At all times pertinent to this case, plaintiff was eligible for medical benefits under the Plan.
5. The Plan is an employee welfare benefit Plan within the meaning of Section 3(1) of ERISA, 29 U.S.C. § 1002(1).
6. The Plan is administered by six trustees, three of whom are appointed by union management and three of whom are selected by participating employers. The trustees hear claims appeals. Appeals are typically heard by two-man committees selected by the full board of trustees. The claimant may present his appeal to the two-man committee, which summarizes the appeal to the full board. The full board then issues a final decision.
7. The surgical expense benefits section of the "Summary Plan Description" booklet distributed to participants states: "[w]hen as a result of an accident or sickness, Surgical Benefits are payable for surgical fees charged by a legally qualified physician or surgeon, when the Employee or dependent is eligible, up to the amounts set forth in the Schedule of Surgical Benefits, but not to exceed the maximum for all operations performed. Surgical procedures may be performed in a hospital, doctor's office or elsewhere."
*643 The exclusions and general limitations section of the Summary Plan Description states the Plan does not cover, inter alia, any of the following:
"(5) Accidents or sicknesses resulting directly or indirectly from self-induced drugs, barbiturate consumption, illness or injury;
(9) Elective sterilization procedures such as tubal ligation, vasectomies or newborn circumcisions;
(13) Injury or sickness which arises out of or in the course of any occupation of employment for wage or profit;
(14) Cosmetic surgery, except for treatment of an injury sustained in an accident while coverage was in force."
8. In 1973, Facchina suffered aortic valve damage from bacterial endocarditis, a bloodstream infection which affects the heart and surrounding tissues. In 1981, surgery was performed for the implantation of artificial heart valves to replace those damaged by the infection.
9. In the spring of 1986, Facchina obtained a routine "cardio checkup" at the Mayo Clinic in Rochester, Minnesota, and at that time complained of impotence. He was examined by a doctor at the clinic, who indicated that Facchina should undergo further testing to determine the cause of this problem.
10. In May, 1986, Facchina, while undergoing other procedures at Mayo Clinic, was given a series of tests to determine the causes of the impotence and at that time psychological and drug-induced causes were ruled out. Facchina was informed that his cardiac output was the primary cause of the impotence and that one form of treatment is the implantation of a penile prosthesis.
11. Facchina informally discussed with a co-worker, Lloyd Gadbois, who is also a trustee of the Plan, whether the cost of the procedure would be covered under the Plan's provisions.
12. Gadbois told Facchina that the procedure probably would not be covered, but that he should submit his materials anyway.
13. Prior to undergoing the actual implant procedure, Facchina submitted various materials to Gadbois.
14. Mr. C. Michael Becker, the Plan's consultant, was requested to prepare a memorandum regarding the penile prosthesis procedure and its coverage status under the terms of the Plan. He prepared such a memorandum, which was dated August 21, 1986.
15. The memorandum indicated that a trustee had requested that the topic of penile prosthesis and its eligibility under the Plan be placed on the Board agenda and also indicated that although an actual claim had not yet been made for benefits, an eligible participant had consulted with his physicians and intended to undergo the implant surgery.
16. Facchina underwent the penile implant surgery in early September, 1986 and submitted his actual claim for benefits to the Fringe Benefit Funds Office in late September, 1986.
17. Prior to Facchina's submission of his claim, the Board of Trustees met on September 10, 1986, to discuss the penile implant procedure and whether benefits would be considered payable for such a procedure. Becker's memorandum and the materials plaintiff submitted to Gadbois were given to the Board members. The Board decided that the procedure did not meet the qualifications established by the Plan and was therefore not reimbursable under the Plan. It then directed the Fringe Benefit Fund office to deny any claims for penile implant surgery.
18. Subsequent to Facchina's return to work after the penile implant surgery of early September, two cartoons authored by Trustee Gadbois, depicting plaintiff and the penile implant, were copied and circulated at a job site where plaintiff was working. *644 The cartoons depict claimant's serious health problem in a mocking, demeaning manner. [See Appendix.]
19. On October 3, 1986, the Fringe Benefit Funds Claim Office, by mailed notice, informed Facchina that his claim for benefits for the implant surgery and treatment was denied for reason that: "no illness present for elective surgery to be performed."
20. Facchina then appealed the claim denial to the full Board of Trustees, submitting as written documentation a summary of his appeal, a description of his medical history, a description of the testing for the cause of the impotence, the second opinion of Dr. A. Razma, copies of all relevant bills, and a letter from Dr. John W. Joyce of Mayo Clinic stating that the surgery was needed as a result of organic illness and not psychological problems. He also requested that he be allowed to appear personally at the December 10, 1986 Board meeting.
21. Facchina appeared at the Claims Appeal Committee meeting on December 9, 1986. At that time the Claims Appeal Committee consisted of Lloyd Gadbois (the author of the two cartoons noted above) and Harvey Shriver. Facchina and the two members of the committee discussed the implant procedure and the documentation Facchina submitted.
22. On December 10, 1986, the members of the Appeals Committee were present at a full Board meeting of the trustees and stated that they had reviewed his appeal of the denial of benefits for hospital, surgical and medical expenses related to the penile implant treatment. At that time, the Board of Trustees tabled the final decisions on the matter until the next Board of Trustees meeting.
23. The next meeting was held on March 4, 1987. At that meeting, the full Board of Trustees found that the disease may have been a contributing factor in addition to Mr. Facchina's age (59 years), but decided that the procedure in question was designed to improve function rather than treat a disease which threatened the health of the participant. By a voice vote of five to one the Board decided that the expenses in question were not compensable as Plan benefits, and thus denied plaintiff's claim.
24. At the hearings before the trustees, the only medical evidence considered was the reports of the claimant's physicians. That evidence was all favorable to the claimant. The reports of Dr. John Joyce of the Mayo Clinic, Dr. William Furlow of the Mayo Clinic, and Dr. A. Razma, of Wilmington, Illinois, in substance state claimant suffers from "organic vasculogenic impotence, and is a suitable candidate for implantation of a penile prosthesis." The reports further indicate the "reason for the surgery was for organic illness and not a psychological reason." The parties now do not dispute that Facchina's impotence is the result of decreased cardiac output caused by aortic valve damage.
25. On March 10, 1987, the Fund's advisor, Michael Becker, wrote plaintiff to inform him that his appeal had been denied. Becker stated that the "Fund was created to provide Health Care Benefits which are medically necessary to treat disease or accidental injury or to maintain health." Becker further stated that plaintiff's operation was designed to improve function, not to treat a disease which threatens health. Becker is not a physician and has no formal medical training.
26. The Plan provides no definitions of illness, disease, what is necessary to maintain health, or prosthetic device. No medical definitions and no reasonably workable layman's definitions of these terms have been articulated.
27. None of the Trustees has any medical background or medical training.
28. Each Trustee subjectively establishes his or her own definition for terms such as illness, disease or that which is necessary to maintain health.
*645 CONCLUSIONS OF LAW
1. The standard of review of claims decided pursuant to the Employee Retirement Income Security Act of 1974 requires the court to decide whether the denial of plaintiff's claim by the Board of Trustees was arbitrary or capricious. Wardle v. Central States, 627 F.2d 820, 824 (7th Cir.1980), cert. denied, 449 U.S. 1112, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981).[1]
2. Each of the two trustees called to testify, Gadbois and Shriver, agreed that the penile prosthesis would maintain health. Yet each of these individuals voted to deny coverage of the penile prosthesis, despite the fact that the Plan's advisor stated that one purpose of the fund is to maintain health.
3. The only probative evidence before the Board of Trustees and the Claims Appeal Committee indicates that plaintiff was treated for vascular organic impotence. There appears to be no provision in the Plan which excludes treatment of this from payment.
4. The Trustees denied plaintiff's claim on the grounds that his impotence was a condition, not an illness.
5. The Trustees as decision-makers overlooked or seriously erred in appreciating the significance of the only medical evidence presented during the hearing, that the surgically accomplished penile implantation was directly related to organic vasculogenic impotence.
6. Trustee Gadbois, when asked to define "illness," stated that "illness" is "something that stops you from doing a normal days work, daily functions without discomfort." He further agreed that under that definition, plaintiff's impotence was an illness. It is arbitrary to agree that plaintiff's problem was an illness and yet vote to deny coverage on the ground that the problem was a condition rather than an illness.
7. Because the Plan does not define illness, the six trustees operated using as many as six different definitions of illness. Likewise, had plaintiff submitted his claim on a different date, when the Board of Trustees had different members, the Board of Trustees might have utilized definitions of illness different from those used in reviewing plaintiff's claim. The failure to define such a critical term as "illness" resulted, in this case, in an arbitrary decision that impotence is never an illness.
8. This arbitrariness is highlighted by the fact that Trustees Gadbois and Shriver and Trustee Advisor Becker agreed that an artificial foot (a prosthetic device) would be covered under the Plan, as would an artificial eye following removal due to diabetes. No principled reason why the absence of a foot requiring the remedy of a prosthetic device is an illness covered by the Plan while impotence caused by a disease and requiring the remedy of a prosthetic device is not an illness has been articulated.
9. The trustees acted arbitrarily when in denying benefits, without any evidence to support their conclusions, they stated, "... the particular procedure in question is designed to improve function rather than treat a disease which threatens the health of the participant."
10. Trustee Gadbois, by drawing cartoons ridiculing plaintiff's prosthetic device, demonstrated arbitrariness. The cartoons indicate that Gadbois found humor in plaintiff's situation and thus did not hear plaintiff's claim with sincerity.
*646 11. The court has discretion to award attorneys' fees to the prevailing party in an ERISA action. See 29 U.S.C. § 1132(g)(1). The factors to be considered are: the degree of the opposing party's culpability, the relative merits of the parties' positions, whether the party requesting fees sought to benefit all beneficiaries of the plan or to resolve a significant legal question, whether an award of fees would deter others from acting similarly, and the ability of the opposing party to pay attorney's fees. Central States Pension Fund v. 888 Corp., 813 F.2d 760, 767 (6th Cir. 1987).
12. Based on these factors, plaintiff should be awarded reasonable attorney's fees. The degree of defendant's arbitrariness was severe, plaintiff was in no way culpable, and plaintiff has brought to light a significant defect in the Plan's interpretation which could impact other beneficiaries.
In sum, the decision of the trustees denying plaintiff's claim was arbitrary. Therefore, plaintiff's claim for benefits shall be paid by defendant. Plaintiff is awarded $9515.11, plus costs and attorneys' fees. Plaintiff is granted leave to file a detailed schedule of costs and attorneys' fees within 14 days. Defendant must file any objections to those fees and costs no more than 7 days thereafter.
IT IS SO ORDERED.
*647 APPENDIX
NOTES
[1] In Wardle, the phrase "arbitrary and capricious" is used. However, in the same paragraph, reference to the origin of the standard indicates a standard of arbitrary or capricious. The court finds that demonstration of arbitrariness is enough to justify reversal. Because arbitrariness is demonstrated in this case, the court does not reach the question of capriciousness, i.e., malice, in defendant's decision.
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535 U.S. 991
SIMPSONv.ILLINOIS.
No. 01-7582.
Supreme Court of the United States.
April 15, 2002.
1
Sup. Ct. Ill. Certiorari denied.
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<html>
<head>
<title></title>
</head>
<body text="#000000" link="#0000ff" vlink="#551a8b" alink="#ff0000" bgcolor="#c0c0c0">
<p><font size="+1"><strong><center>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</strong></font></center>
<br wp="br1"><br wp="br2">
<br wp="br1"><br wp="br2">
<p><hr align="center" width="26%">
<strong><center>NO. 03-<a name="1">00</a>-00<a name="2">584</a>-CV</center>
</strong>
<p><hr align="center" width="26%">
<strong><center><a name="3">City of San Angelo</a>, Appellant</center>
</strong>
<br wp="br1"><br wp="br2">
<p><strong><center>v.</center>
</strong>
<br wp="br1"><br wp="br2">
<p><strong><center><a name="4">The Honorable John Cornyn, Attorney General of Texas</a>, Appellee</center>
</strong>
<br wp="br1"><br wp="br2">
<br wp="br1"><br wp="br2">
<p><strong><hr size="3">
<center>FROM THE DISTRICT COURT OF <a name="5">TRAVIS</a> COUNTY, <a name="6">200TH</a> JUDICIAL DISTRICT</center>
</strong>
<p><strong><center>NO. <a name="7">99-11140</a>, HONORABLE <a name="8">JOHN K. DIETZ</a>, JUDGE PRESIDING </center>
</strong>
<p><strong><hr size="3">
</strong><strong>PER CURIAM</strong>
<br wp="br1"><br wp="br2">
<p> Appellant City of San Angelo and appellee The Honorable John Cornyn, Attorney
General of Texas, have filed an agreement seeking to dismiss the appeal. We dismiss the appeal.
Tex. R. App. P. 42.1(a)(2).
<br wp="br1"><br wp="br2">
<p>Before Chief Justice Aboussie, Justices B. A. Smith and Patterson
<p>Dismissed on Joint Agreement
<p>Filed: December 7, 2000
<p>Do Not Publish
</body>
</html>
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7 So.3d 1097 (2009)
ESQUIVEL
v.
STATE.
No. SC09-67.
Supreme Court of Florida.
April 1, 2009.
Decision without published opinion. Rev.denied.
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 17, 2005
Charles R. Fulbruge III
Clerk
No. 04-40169
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN RODRIGUEZ-MENDEZ,
also known as Gregorio Hernandez-Martinez,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-824-1
--------------------
Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Juan Rodriguez-Mendez appeals his sentence imposed following
his guilty plea conviction for illegal reentry into the United
States following deportation. Rodriguez argues for the first
time on appeal and pursuant to Apprendi v. New Jersey, 530 U.S.
466 (2000) that the sentencing provisions of 8 U.S.C. § 1326(b)
are unconstitutional. He concedes that this issue is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224 (1998), and
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40169
-2-
he raises it solely to preserve its further review by the Supreme
Court.
Rodriguez also argues that he was sentenced under the
unconstitutional mandatory guidelines system and that the error
constitutes plain error in light of Booker. Rodriguez further
argues that he should not be required to show a reasonable
probability of prejudice because a Booker error is structural and
insusceptible of harmless error analysis. Rodriguez contends
that even if the error was not structural, it affected his
substantial rights and the fairness and integrity of the judicial
proceeding.
We review for plain error. Sentencing a defendant pursuant
to a mandatory guidelines scheme, without an accompanying Sixth
Amendment violation, constitutes “Fanfan” error. See United
States v. Villegas, 404 F.3d 355, 364 (5th Cir. 2005).
The court has rejected the argument that Fanfan error is
structural and presumptively prejudicial error, holding that it
is instead subject to the same plain error analysis set forth in
United States v. Mares, 402 F.3d 511, 520-21 (5th Cir. 2005),
petition for cert. filed (Mar. 31, 2005)(No. 04-9517). See
United States v. Martinez-Lugo, 411 F.3d 597, 601 (5th Cir.
2005).
Rodriguez has met the first two prongs of the plain error
test because Fanfan error is “error” that is “plain.” See United
States v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir.
No. 04-40169
-3-
2005), petition for cert. filed (July 25, 2005) (No. 05-5556).
In order to meet the third prong of the analysis and show that
the error affected his substantial rights, Rodriguez bears the
burden of showing “that the sentencing judge--sentencing under an
advisory scheme rather than a mandatory one--would have reached a
significantly different result.” Mares, 402 F.3d at 520-21.
Rodriguez has failed to make that showing and, thus, has failed
to show plain error. See United Stares v. Bringier, 405 F.3d
310, 317 n.4 (5th Cir. 2005), petition for cert. filed (July 26,
2005) (No. 05-5535).
AFFIRMED.
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236 P.2d 113 (1951)
LOMBARDI
v.
PEOPLE.
No. 16620.
Supreme Court of Colorado, en Banc.
September 24, 1951.
Lansford F. Butler, Robert J. Kirschwing and F. J. Kretschmer, all of Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.
KNAUSS, Justice.
Plaintiff in Error, to whom we hereafter refer as defendant, was convicted of burglary with force. The jury found him not guilty of larceny of liquor, with which he was charged in the second count of the information, which liquor it was alleged he had stolen during the burglary.
Error is assigned to the court's ruling on defendant's motion for a directed verdict of not guilty on the burglary charge. On this motion the only question was as to the identity of the person, or persons, who forcibly broke into and entered Mr. Bacher's store in Jefferson county on February 6, 1949.
The evidence offered by the District Attorney to link defendant with this burglary was the testimony of two young men, Ralph Acierno and Joe Accoroso; Bacher, the complaining witness; the Sheriff of Jefferson county, and police officers.
Acierno testified that he had known defendant several years, and on the night of February 8, 1949 defendant told him he had some liquor and requested the witness to pick him up the next morning, which the witness did, and some liquor was put in the Acierno automobile. Defendant and Acierno went to see Joe Accoroso to whom the witness and the defendant showed the whiskey and Accoroso purchased some of it. The parties then went back to defendant's residence and Accoroso purchased some other liquor from the defendant. Defendant gave Acierno two bottles of whiskey. Later Acierno was arrested for a traffic law violation and the two bottles of liquor he had received from defendant were found in his automobile. Acierno testified that he did not notice whether there were any liquor stamps on the two bottles that were found in his car; that he did not do anything to the bottles other than put them in his automobile; and that he did not know what brand of liquor it was.
Accoroso tetified that after he learned that the detectives were looking for some liquor he had, he scratched the stamps off the bottles and then took them down to the city hall in Denver. He also testified that "the liquor was mostly off-brands."
Bacher testified that when he went to his place of business on February 6, 1949 at 11 o'clock A.M., he found that the store *114 had been broken into and called the police. He testified that some fifteen cases of whiskey had been taken, and that a Motorola record changer and a Bendix radio also were removed from the premises, owned by him; that he did not know who broke into his store, and denied that any of the liquor taken was "off-brands".
A basket of whiskey and a box of whiskey were marked as People's Exhibits "A" and "B", but these exhibits were never offered or received in evidence. This was the liquor turned over to the police by Accoroso.
The Sheriff of Jefferson county testified that on four or five occasions he had conversations with the defendant in the county jail. We quote the following from his evidence: "On Saturday afternoon, June 4, 1949, I had Mr. Lombardi brought into the office * * * for further questioning in connection with the burglary. After a few minutes of questioning, Mr. Lombardi stated to myself and the District Attorney that on this particular night in question that he had been in the Hillcrest Liquor Store sometime after 12:00 that night. He also stated and described in detail, how this burglary had been committed, how it was broken into, as he observed it at that time. Immediately after that he stated that he was in there, but didn't take anything. Someone had been there before he had, and he stuck to that story persistently after that, that he did not take anything. However, he did describe, in detail, and say that he was on the inside of the store after 12:00 on the particular night of the burglary."
The Sheriff on cross-examination testified in part as follows:
"Q. * * * but on many occasions he stated he didn't take anything from the place, and he didn't break in, isn't that true? A. Yes.
"Q. That has been his statement to you since he was confined? A. Yes, that is as far as we ever got with him.
* * * * * *
"Q. According to your statement he went into it after it was broken into? A. That is right, that is the statement he made.
"Q. That is the only statement that he made? A. That is right.
* * * * * *
"Q. And he has maintained that he has never taken anything out of there, isn't that right? A. He has, yes.
"Q. And that he did not break into the place? A. He told me he was in the place after it was broken into on the same night of the burglary."
Nowhere in the evidence was any of the liquor marked as Exhibits "A" and "B", or the two bottles of liquor in the car of witness Acierno, identified as having come from the store of the complaining witness, Mr. Bacher.
Another witness, Police Officer Krieg, of the Golden, Colorado, police department, testified that he discussed the matter of this burglary several times with the Defendant and he also on interrogation, gave the following testimony:
"Q. At any time during those times did he ever tell you that he was in this liquor store, or was anywhere near it at the time of the alleged breaking in? A. No, sir. He never told me that.
"Q. Never made any statement to you that way? A. No, sir.
"Q. Did he maintain he had nothing to do with it at all times? A. He told me that, yes."
The evidence, that soon after a store was broken into and robbed, defendants were found in possession of goods similar to those taken, but which no one could identify as those taken, is insufficient to sustain a conviction. State v. Martin, 118 S.C. 21, 110 S.E. 78.
The Attorney General contends that the statement attributed to defendant by the Jefferson county sheriff inevitably leads to only one inference, namely, that the defendant was "a wrongdoer" when he was at Bacher's store. In Cobianchi v. People, 111 Colo. 298, 141 P.2d 688, 692, we said: "The circumstance indicated by the statement attributed to defendant, while consistent with guilt, is equally consistent with innocence. There can be no question that when such is the fact and circumstantial evidence alone is relied upon, a circumstance or circumstances consistent with *115 guilt, but equally consistent with innocence, does not constitute sufficient proof to sustain a conviction."
It cannot successfully be contended that defendant by any statement to the sheriff or to Officer Krieg, admitted any burglary with force, or the intent necessary to constitute that crime. In fact, his statement was that the place already had been burglarized, and such statement is equally consistent with his innocence as it is with his guilt; hence it was not sufficient proof to sustain a conviction of burglary with force.
There was insufficient evidence to warrant the submission of the case to the jury. Other errors assigned need not be discussed. The judgment is reversed, and the cause remanded with directions to the trial court to discharge the defendant.
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95 U.S. 539 (____)
CLARK
v.
UNITED STATES.
Supreme Court of United States.
*540 Mr. Enoch Totten for the appellant.
The Solicitor-General, contra.
*541 MR. JUSTICE BRADLEY delivered the opinion of the court.
The first objection made to the claim is, that the contract was not in writing, as required by the act of June 2, 1862, entitled "An Act to prevent and punish fraud on the part of officers intrusted with the making of contracts for the government." 12 Stat. 411. This act provides:
"SECT. 1. That it shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior, immediately after the passage of this act, to cause and require every contract made by them severally on behalf of the government, or by their officers under them appointed to make such contracts, to be reduced to writing, and signed by the contracting parties with their names at the end thereof, a copy of which shall be filed by the officer making and signing the said contract in the `returns office' of the Department of the Interior (hereinafter established for that purpose), as soon after the contract is made as possible, and within thirty days, together with all bids, offers, and proposals to him made by persons to obtain the same, as also a copy of any advertisement he may have published inviting bids, offers, or proposals for the same; all the said copies and papers in relation to each contract to be attached together by a ribbon and seal, and numbered in regular order numerically, according to the number of papers composing the whole return."
The act further provides that the officer shall affix an affidavit to his return, and makes it a misdemeanor to neglect making his return, and directs the heads of departments to furnish printed instructions and forms of contracts, &c.
It is contended on the part of the government that this act is mandatory and binding both on the officers making contracts and on the parties contracting with them; whilst the claimant insists that it is merely directory to the officers of the government, and cannot affect the validity of contracts actually made, though not in writing. The Court of Claims has heretofore held the act to be mandatory, and as requiring all contracts made with the departments named to be in conformity with it. The arguments by which this view has been enforced by that court are of great weight, and, in our judgment, conclusive. The facility with which the government may be pillaged by the presentment of claims of the most extraordinary character, *542 if allowed to be sustained by parol evidence, which can always be produced to any required extent, renders it highly desirable that all contracts which are made the basis of demands against the government should be in writing. Perhaps the primary object of the statute was to impose a restraint upon the officers themselves, and prevent them from making reckless engagements for the government; but the considerations referred to make it manifest that there is no class of cases in which a statute for preventing frauds and perjuries is more needed than in this. And we think that the statute in question was intended to operate as such. It makes it unlawful for contracting officers to make contracts in any other way than by writing signed by the parties. This is equivalent to prohibiting any other mode of making contracts. Every man is supposed to know the law. A party who makes a contract with an officer without having it reduced to writing is knowingly accessory to a violation of duty on his part. Such a party aids in the violation of the law. We are of opinion, therefore, that the contract itself is affected, and must conform to the requirements of the statute until it passes from the observation and control of the party who enters into it. After that, if the officer fails to follow the further directions of the act with regard to affixing his affidavit and returning a copy of the contract to the proper office, the party is not responsible for this neglect.
We do not mean to say that, where a parol contract has been wholly or partially executed and performed on one side, the party performing will not be entitled to recover the fair value of his property or services. On the contrary, we think that he will be entitled to recover such value as upon an implied contract for a quantum meruit. In the present case, the implied contract is such as arises upon a simple bailment for hire; and the obligations of the parties are those which are incidental to such a bailment. The special contract being void, the claimant is thrown back upon the rights which result from the implied contract. This will cast the loss of the vessel upon him. A bailee for hire is only responsible for ordinary diligence and liable for ordinary negligence in the care of the property bailed. This is not only the common law, but the *543 general law, on the subject. See Jones, Bailm., p. 88; Story, Bailm., sects. 398, 399; Domat, Lois Civiles, lib. 1, tit. 4, sect. 3, pars. 3, 4; 1 Bell, Com., pp. 481, 483, 7th ed.
As negligence is not attributed to the employés of the government in this case, the loss of the vessel, as before stated, must fall on the owner.
Of course, the claimant is entitled to the value of the use of his vessel during the time it was in the hands of the government agents, which, as shown by the findings, was the period of eight days. This value, in the absence of any other evidence on the subject, may be fairly assumed at what was stipulated for in the parol contract. Though not binding or conclusive, it may be regarded as admissible evidence for that purpose. Neither party thought fit to adduce any other. The cases bearing on this subject are collected in Browne's Treatise on the Statute of Frauds, sects. 117-130; but they mostly refer to the question whether the contract, though void by the Statute of Frauds, can be regarded as conclusive evidence of the quantum meruit. Whether or not it is admissible as some evidence, though not conclusive on either party, is apparently not much discussed; though it seems to us that it may fairly be deduced from the tenor of the cases that the evidence is admissible. At all events, that is our view. As a declaration of the parties, it is entitled to some credence.
The stipulation in this case, as appears by the findings, was for $150 per day. This would make the amount of the claim $1,200. For this amount the claimant is entitled to a decree.
If objected that the petition contains no count upon an implied contract for quantum meruit, it may be answered, that the forms of pleading in the Court of Claims are not of so strict a character as to preclude the claimant from recovering what is justly due to him upon the facts stated in his petition, although due in a different aspect from that in which his demand is conceived.
The other objection relied on by the government in this case is, that the claimant had no valid title to the steamer as against the United States, having obtained her from the Confederate government, in 1863, in payment for supplies furnished to the *544 Quartermaster's Department of that government. This objection cannot be sustained. When the contract was made with the claimant, the vessel was in Mexican waters, and not subject to the jurisdiction of the United States. The claimant was applied to for its use. It was agreed that he should be compensated. No question was made about his title, and it is not suggested that he was guilty of any concealment or suppression of the truth in regard to it. Under these circumstances, it would be bad faith on the part of the government, after getting possession of the steamer and getting it within its jurisdiction, under pretence of hiring it of the claimant, to set up that he had no title to it. This is so obviously in accordance with the justice of the case, that we deem it unnecessary to make any further observations on the subject.
The decree of the Court of Claims must be reversed, and the cause remanded with directions to enter a judgment in accordance with this opinion; and it is
So ordered.
MR. JUSTICE MILLER, with whom concurred MR. JUSTICE FIELD and MR. JUSTICE HUNT, dissenting.
While I agree to the reversal of the judgment in this case, and to so much of the opinion as gives compensation for the use of the vessel before she was destroyed, I cannot agree to the more important part of the opinion, which holds the contract void because it was not reduced to writing.
The act of June 2, 1862, which is interpreted by the court to be a statute of frauds, making all contracts of the Departments of War, Navy, and Interior void which are not reduced to writing and signed by the parties, is not, in my judgment, properly construed.
It cannot be doubted that it was competent for Congress to impose upon the officers of these departments the duty of having all their contracts made in writing and filed in the proper office, without making absolutely void a parol contract made on a fair consideration and within the scope of their authority. In other words, Congress had a right to give such directions to those officers as would secure a statement in writing of the contract itself, for the use of the proper officers of the government, without making it obligatory on the individual contracting with *545 the government, so that his contract, otherwise valid, would be void for want of that formality.
Looking at sect. 1 of the statute, as it is cited in the opinion of the court, it will be found wanting in the essential words of all known statutes of fraud.
There is no declaration that a parol contract shall be void, or that it shall not be enforced, or that no suit may be sustained on it.
There is no language in it addressed to the party contracting with the government. It is obvious that the primary purpose of the statute in my judgment, the only one is to secure authentic and perfect statements of such contracts, and of the proposals, advertisements, bids, and all the papers relating to them, to be filed in an office at Washington, where they can be inspected by any one having an interest, and especially by those superior officers whose approval or rejection may affect their validity. The statute seems in terms to apply to contracts in existence when it was passed as well as to those to be made in future. Returns of all contracts are to be made and filed in the office created for that purpose, within thirty days, together with bids, advertisements, &c.
The second section requires the officer making these returns to verify them by affidavit; and the object of this undoubtedly was to have evidence on which the government could rely, of the precise nature of the contract, and of the circumstances under which it was made.
The third section imposes a penalty on the officer for failing to make returns to the proper office, as required by the statute, by a fine; but no penalty for making a contract not in writing and signed by the parties.
In short, I cannot conceive, looking to the whole statute, that Congress intended any thing more than to regulate the conduct of its own officers, in compelling them to furnish all the evidence in their power of the contract and the circumstances attending its negotiation; and it seems to me to be going a long way to hold that it was the purpose to establish an entirely new rule as to the validity of contracts, at variance with any law heretofore known in this country, or, perhaps, any other.
*546 If that was the purpose, it is hard to see why contracts in the three departments mentioned are selected for the operation of the rule, while the far more numerous and equally important contracts of the Post Office, the Attorney-General's Office, the Treasury and the State Departments are left to be controlled by the law as it stood before.
If there is any branch of the public service where contracts must often be made speedily, and without time to reduce the contract to writing, it is in that of the army. Sudden occasions for supplies, for the occupation of buildings, for the transportation of food and munitions of war, are constantly arising, and in many of them it is impossible to do more than demand what is wanted, and agree to pay what it is worth. Did Congress intend to say that the patriotic citizen, who said "take of mine what is necessary," is to lose his property for want of a written contract, or be remitted to the delays of an act of Congress?
It seems to me that if Congress had been intending to enact a statute of frauds, they would have made some limitation of its operation to cases of future delivery of property or future performance of service, and would not have passed a statute like this, which, if its effect is such as the court declares, renders void all contracts for compensation for the thousand small services and supplies which are daily needed by those in the employment of the government for its use.
I think the construction given by the court unwarranted and unfortunate, and of sufficient importance to record my dissent from it.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00216-CR
The State of Texas, Appellant
v.
Kathryn Lankford, Appellee
FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT
NO. A-00-0867-S, HONORABLE THOMAS J. GOSSETT, JUDGE PRESIDING
The State of Texas appeals from the trial court’s order granting Kathryn Lankford a
new trial. We will reverse and remand.
Lankford was charged with aggravated sexual assault of a child. See Tex. Penal Code
Ann. § 22.021(a)(1)(B)(i), (2)(B) (West Supp. 2001). It was alleged that Lankford “intentionally and
knowingly caused the penetration of the female sexual organ of A.M., a child who was then and there
younger than 14 years of age and not the spouse of the Defendant, by means of encouraging and
aiding S.K. to have sexual intercourse with the said A.M.” Lankford entered a guilty plea pursuant
to a plea-bargain agreement; she was granted deferred adjudication for a term of five years and placed
on community supervision.
While still represented by trial counsel, Lankford sent a letter to the trial judge
requesting the court’s permission to appeal. The trial court set and conducted a hearing on the
defendant’s motion requesting permission to appeal. At the hearing, the trial court admonished
Lankford concerning her right and the limitations of an appeal. In addition, the trial court told
Lankford that if she requested a new trial, it would be granted. Lankford orally requested a new trial.
Over the State’s objection, the court granted Lankford a new trial. The State gave notice of appeal.
The State presents four points of error: (1) the trial court had lost jurisdiction of the
case and therefore could not grant a new trial; (2) the trial court abused its discretion by sua sponte
granting a new trial after soliciting an oral motion for new trial from the defendant; (3) the trial judge
abused his discretion by failing to adhere to the procedural and notice requirements of Rules 21.5 and
21.7 of the Texas Rules of Appellate Procedure; and (4) the trial judge abused his discretion by
granting a new trial based on an oral, unsworn motion, unsupported by affidavit. Lankford, in her
appellate brief, opposes each of the State’s points of error.
Both parties and the trial court have overlooked this Court’s decision that motions for
new trial cannot be granted to defendants who have received deferred adjudication. See Hammack
v. State, 963 S.W.2d 199 (Tex. App.—Austin 1998, no pet.); accord State v. Davenport, 866 S.W.2d
767 (Tex. App.—San Antonio 1993, no pet.).
[W]hen in the judge’s opinion the best interest of society and the defendant will be
served, the judge may, after receiving a plea of guilty, . . . hearing the evidence, and
finding that it substantiates the defendant’s guilt, defer further proceedings without
entering an adjudication of guilt, and place the defendant on community supervision.
Tex. Code Crim. Proc. Ann. art. 42.12, § 5(a) (West Supp. 2001) (emphasis added). “New trial
means the rehearing of a criminal action after the trial court has, on the defendant’s motion, set aside
a finding or verdict of guilt.” Tex. R. App. P. 21.1 (emphasis added). In Davenport, the court noted:
2
“We, however, find no provision in article 42.12 or elsewhere that gives a defendant placed on
deferred adjudication . . . the right to pursue a motion for new trial.” Davenport, 866 S.W.2d at 770.
Lankford was not entitled to move for a new trial following the district court’s
decision to defer adjudication, and her motion for new trial was a nullity. See Hammack, 963 S.W.2d
at 200-01; Davenport, 866 S.W.2d at 770. Because a recipient of deferred adjudication is not entitled
to pursue a motion for new trial, the trial court abused its discretion in granting Lankford’s motion
for new trial.
The trial court’s order granting Lankford a new trial is reversed and the cause is
remanded to the district court for proceedings consistent with this opinion.
Carl E. F. Dally, Justice
Before Justices B. A. Smith, Puryear and Dally*
Reversed and Remanded
Filed: August 30, 2001
Do Not Publish
3
*
Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
Tex. Gov’t Code Ann. § 74.003(b) (West 1998).
4
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407 Pa. 115 (1962)
Denawetz, Appellant,
v.
Milch.
Supreme Court of Pennsylvania.
Argued September 29, 1961.
March 20, 1962.
*116 Before BELL, C.J., MUSMANNO, JONES, COHEN, EAGEN and ALPERN, JJ.
Carl E. Glock, with him Robert F. Banks, and Reed, Smith, Shaw & McClay, for appellant.
John A. Metz, Jr., with him Benjamin R. Rothman, Guy L. Warman, and Metz, Cook, Hanna & Kelly, and Rothman, Gordon & Foreman, for appellees.
OPINION BY MR. JUSTICE COHEN, March 20, 1962:
In 1947, Joseph Milch, defendant-appellee, and John Denawetz formed a partnership named Denny-Mills Company for the purpose of engaging in the wholesale *117 distribution of ladies', children's and infants' ready-to-wear and general merchandise. By the time of Denawetz's death in 1954, Denny-Mills had become the sole distributor in the greater Pittsburgh area of several name-brand lines.
The Milch-Denawetz partnership agreement granted Rose Denawetz, plaintiff-appellant, the option, upon her husband's death, to become a partner with Milch in the business, or to be paid in cash the value of her husband's interest in the partnership. Appellant elected to become Milch's partner, and the partnership business continued normally until 1959, with Milch acting as the managing partner directing the operations of the firm.
After protracted negotiations to decide who was to buy out the other's interest in the business, in 1959, Milch and Mrs. Denawetz executed a written agreement under which Milch was to "sell, assign, transfer and set over" to appellant, for $100,000, "all of my right, title and interest as a partner in the firm of Denny-Mills Co., and in all its money and other assets and all of my rights under the Agreement of Partnership dated June 9, 1947. . . ." Simultaneously, Milch executed and delivered to appellant a bill of sale wherein he granted to her "all the right, title and interest of JOSEPH MILCH as a partner in the firm of Denny-Mills Co., and all its money and other assets of any and every kind."[1]
On the day following this transaction, Milch opened his own storeroom and began to engage in a virtually identical business to his prior one under the name of Joseph Milch Company. The other defendant-appellants, *118 his sons, Jerome and Morton, and his nephew, Martin Abramson, all of whom had previously worked for Denny-Mills, came to work for the new enterprise. Shortly thereafter, as a result of soliciting the suppliers, the Milch Company became either the sole or primary distributor in the Pittsburgh area of almost every important brand hitherto distributed exclusively by Denny-Mills. In addition, as a result of direct solicitation, Milch Company has acquired the bulk of Denny-Mills' customers.
Appellant brought two actions in equity; the first against Joseph Milch to enjoin him from competing with Denny-Mills by prohibiting him from dealing with the latter's customers and suppliers for a period of two years, and the second against Jerome H. Milch, Morton H. Milch and Martin Abramson to enjoin their participation in the new venture. These two actions were consolidated for trial. The final decrees of the lower court dismissed both complaints and these appeals followed.
Two questions are presented for our determination: Where neither a partnership agreement nor an agreement of dissolution make a disposition of good will or contain a restrictive covenant concerning competition by the partners, upon dissolution, may one partner immediately thereafter go into the same business and directly solicit the suppliers and customers of the old firm to the financial detriment of his former partner trading under the name of the old enterprise? Secondly, may employees of the old firm, who neither were under contract with it nor had signed a restrictive covenant, go to work with the new competitor and solicit customers and suppliers of their former employer?
Appellant does not argue that Milch was not permitted originally to compete with Denny-Mills after the dissolution. Rather, she contends that since, for two years after the dissolution, Milch engaged in unfair competition (i.e., direct solicitation of former customers *119 and suppliers), he now should be barred from competing with Denny-Mills in any manner.
As authority for her position appellant cites Wentzel v. Barbin, 189 Pa. 502, 42 Atl. 44 (1899). In Wentzel v. Barbin, we held that where one person sold to another "all his right, title and good-will" to a paper route, he was bound to carry out his contract in good faith, and that he violated his contract by calling on subscribers, inducing them not to take from his vendee and persuading them to take again from him all the papers mentioned in the agreement.
Wentzel v. Barbin, however, is not applicable here since it arose out of a buy-sell agreement rather than out of a partnership dissolution such as we have here. The implications of a partnership dissolution differ greatly from those of a commercial buy-sell agreement, although the two are frequently confused by both attorneys and judges, and the rules governing the former are not necessarily applicable to the ordinary sale of a business. Moreover, in Wentzel v. Barbin, the list of route customers was the sole property involved, while in the present case, Mrs. Denawetz received substantial assets upon dissolution of the partnership.
Rather, the present case is governed by White v. Trowbridge, 216 Pa. 11, 64 Atl. 862 (1906) which arose in the partnership context. In White v. Trowbridge, we held that the mere transfer by one partner of his interest in the good will of the business to his co-partners, upon dissolution of the partnership, does not preclude him from entering into a similar business in the same town, and prosecuting it in competition with the old firm of which he had been a vendor. The court went on to say, moreover "`the doctrine that a retiring partner who has conveyed his interest in an established business, whether the good will be included or not, cannot personally solicit the old customers of the firm, has no support in principle.'" (Emphasis supplied).
*120 The court concluded its discussion of this point with the following: "An agreement to retire from business, and not to resume it again, is in restraint of trade, and cannot rest upon mere inference. . . . So long as the defendant does not attempt to sell his goods as those of the old firm, or represent that his business is a continuation of the old firm, he is at liberty to engage under his own name, honestly and in good faith, in the same line of business and in the same locality.
". . . . In other words, what the plaintiffs really desire is protection from the business competition of the defendant, carried on openly and frankly by him under his own name. As we have already seen, this was something which they did not provide for under the terms of the written agreement when they purchased from him his interest in the business, and they cannot now be permitted indirectly to attain this end which they failed to stipulate expressly for in negotiating the purchase, and which presumably was not included in fixing the amount of the consideration. . . ." (216 Pa. at 20-22).
This is still the law today. Unless the partnership articles or the dissolution agreement expressly restricts the right of a former member of a dissolved partnership from competing against the ex-partners by engaging in the same line of business, or by soliciting old customers or suppliers, he may engage in these activities. The courts, however, will not imply such restrictions into agreements.
Accordingly, we affirm the lower court's proper refusal to enjoin Joseph Milch from dealing with the customers and key suppliers of Denny-Mills Company.
Since we have held that Joseph Milch did not, by his direct solicitation of customers or suppliers, act in contravention of the agreement of dissolution, the action against the other defendants also fails. We will not prevent these defendants from engaging in the same *121 activities. Milch's sons and nephew were under no contract to Denny-Mills. It is unreasonable on the part of appellant to expect them not to assist their father and uncle respectively in his new business activity and, in so doing, not to draw upon the experience and information they had acquired through their years in the business. Courts are even less disposed to sustain an agreement which forms part of a contract of employment to refrain from subsequently engaging in a competitive occupation than where a similar agreement is attached to a bill of sale. 5 Williston, Contracts § 1643, pp. 4606-4607 (Rev. Ed. 1937). Where there is no restrictive provision at all, we will not imply one.
Regarding the customer lists, they were not in the nature of route listings which could be assembled only with great difficulty and which were the direct results of the solicitor's efforts and experience as in Morgan's Home Equipment Corp. v. Martucci, 390 Pa. 618, 136 A. 2d 838 (1957). The lists here could be compiled from telephone books and from the numerous credit and trade publications freely available to all those interested. Indeed, the chancellor found that, after dissolution of Denny-Mills, appellant's daughter assisted defendants in compiling a list of suppliers. The customer and supplier lists did not constitute trade secrets. Equity will not protect mere names and addresses easily ascertainable by observation or by reference to directories. See Spring Steels, Inc. v. Molloy, 400 Pa. 354, 162 A. 2d 370 (1960).
The lower court, therefore acted properly in dismissing the actions against the several defendants.
Decrees affirmed at appellant's costs.
NOTES
[1] Although both parties treat the transaction in question as an ordinary buy-sell agreement, what we actually have here is the dissolution of a partnership, with Milch receiving cash and notes as his share of the assets and Mrs. Denawetz retaining real estate, fixtures, furniture, inventory and cash as her distributive share.
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912 F.Supp. 497 (1996)
UNITED STATES of America, Plaintiff,
v.
Manuel CORONADO-CERVANTES, Defendant.
Criminal No. 94-CR-235 MV.
United States District Court, D. New Mexico.
January 9, 1996.
*498 Kelly H. Burnham, Asst. U.S. Atty., Las Cruces, New Mexico, for plaintiff.
Kurt J. Mayer, Asst. Federal Public Defender, Las Cruces, New Mexico, for defendant.
MEMORANDUM OPINION AND ORDER
VAZQUEZ, District Judge.
This matter is before the Court for a determination as to the admissibility at trial of DNA (deoxyribonucleic acid) evidence pursuant to Fed.R.Evid. 702. The United States submitted its Notice of Intent to Use DNA evidence on October 13, 1994. The government filed a pre-hearing memorandum in support of the admissibility of DNA identification evidence on May 17, 1995. Defendant filed a preliminary response on June 6, 1995. The Court conducted hearings on June 6, 1995, July 7, 1995, and August 14 and 15, 1995. Testimony and affidavits were submitted by experts on behalf of both parties. The government and the Defendant filed post-hearing briefs on September 20, 1995.
FACTUAL BACKGROUND
Defendant Manuel Cervantes was indicted on April 20, 1994, under 18 U.S.C. §§ 1153, 2241(a) and 2245(2)(A) and (B)[1] for aggravated sexual abuse. The crime involved an alleged sexual assault that occurred on February 22, 1994, on the Mescalero Apache Indian Reservation in New Mexico. The alleged victim, Virginia Gaines, a 75-year-old member of the Mescalero Apache Tribe, reported on February 24, 1994, that she had been sexually assaulted by her son, the Defendant in this case. A tribal police officer then went with Mrs. Gaines to her house and collected as evidence, her nightgown, camisole and slip, as well as a mattress cover, sheet and blanket from her bed. These items were submitted to the Federal Bureau of Investigation (FBI) laboratory on April 25, 1994.
Preliminary tests by FBI Agent Audrey Lynch revealed the presence of semen on the nightgown, slip and sheet. A sample of Defendant's blood was also submitted at that time. Further evaluation and testing of this evidence revealed that DNA profiles developed from the semen found on those items matched those of Defendant's blood.
Special Agent Lynch computed the likelihood that someone other than the Defendant could have been the source of the evidentiary materials as 1 in 750,000 in Caucasians, 1 in 200,000 in Blacks, 1 in 45,000 in Hispanics and 1 in 10,000 in American Indians.[2] June 6, 1995, Hrg.Tr. at 63.
In a recent comprehensive and well-written opinion, fellow District Court Judge Santiago Campos (D.N.M.) detailed the science and technology of DNA evidence using the RFLP technique, explained the FBI's use of the fixed-fin method of developing population databases and its use of the product rule to estimate the statistical significance of a match of DNA patterns in various population databases and applied the standard enunciated in Daubert v. Merrell Dow Pharmaceuticals, *499 Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) for determining the admissibility of the DNA evidence. United States v. Peters, Doc. No. 91-CR-395 (D.N.M., Sept. 7, 1995). The Court adopts the extensive explanation in Peters of the underlying scientific procedures at issue in this case and will refer to the Peters opinion throughout its ruling. The Court does, however, independently apply Daubert to the facts before it.
In this case, as in Peters, a Native American defendant stands accused of a sexual crime occurring on an Indian reservation and the validity of the FBI's frequency computation is challenged. Like the defendant in Peters, Defendant Cervantes argues that the FBI lacks adequate Native American databases from which to calculate the expected frequency of his DNA pattern.
Under Daubert, the admissibility of scientific evidence is a preliminary question to be determined by the Court under Fed. R.Evid. 104(a). 509 U.S. at ___, 113 S.Ct. at 2796. The government bears the burden of proof by a preponderance of the evidence. Id. at ___ n. 10, 113 S.Ct. at 2796 n. 10.
The government introduced the expert testimony of Dr. Harold A. Deadman in forensic DNA analysis; Dr. Ranajit Chakraborty, in the area of human population genetics; and FBI Special Agent Audrey Lynch in DNA profiling.[3] The defense presented expert testimony of Dr. Diane K.J. Lavett in molecular biology and Dr. Jeffrey C. Long in anthropology and human genetics.[4]
There are two distinct processes involved in DNA profiling: (1) the Restriction Fragment Length Polymorphism (RFLP) analysis, which is the process by which a laboratory technician analyzes a DNA sample collected at the crime scene and compares its DNA profile with that of the suspect's; and (2) the methodology by which experts estimate the statistical probability of a coincidental match.
This circuit, interpreting Daubert, enunciated a two-prong test for determining the admissibility of scientific evidence that considers first whether the reasoning or methodology are scientifically valid, and second, whether that reasoning or methodology properly can be applied to the facts in issue, that is, whether it is relevant and of assistance in determining a fact in issue. United States v. Davis, 40 F.3d 1069, 1074 (10th Cir.1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1806, 131 L.Ed.2d 732 (1995) (citing Daubert, 509 U.S. at ___, 113 S.Ct. at 2796). The Court finds that this test must be independently applied to each of the two processes involved in DNA profiling.
(1) RFLP technique.
In pre- and post-hearing briefs filed with the Court, Mr. Cervantes does not raise any specific challenges to the underlying scientific validity of the RFLP analysis.[5] Thus, the Court adopts the analysis and conclusion in Peters and finds that the reasoning and methodology involved in the RFLP technique are scientifically valid and reliable, satisfying Daubert's first prong. See Peters slip op. at 47; See also, United States v. Jakobetz, 955 F.2d 786, 800 (2d Cir.1992); United States v. Martinez, 3 F.3d 1191 (8th Cir.1993) (courts may take judicial notice of the reliability of the underlying theories and techniques involved in DNA profiling using the RFLP process).
Applying Daubert's second prong to the RFLP process, the Court must determine whether the reasoning or methodology properly can be applied to the facts at issue in this case. The inquiry is one of relevance. An obvious fact in issue in this case will be whether the Defendant raped his mother. The Court finds that the DNA evidence will *500 assist the trier of fact and is relevant to this inquiry in that it has "a tendency" to show that the Defendant may be the source of the sperm found at the crime scene.
This circuit has intimated that under Daubert's "relevance" prong, it may be necessary to inquire into whether standard protocol, in the DNA context, was followed in a particular case. United States v. Davis, 40 F.3d 1069, 1074-75 (10th Cir.1994). The Davis court, having found that protocol was followed in that case, expressly declined to address the split in the circuits over whether compliance with protocol is an issue of admissibility or weight. Id. However, the court opined that the examination of protocol should properly fall under Daubert's second prong, explaining "if the offering party does not follow protocol, the scientific evidence may not be relevant under Daubert's second prong because improperly applied science cannot assist the trier of fact." Davis, 40 F.3d at 1074 n. 6.
In the absence of clear directive from the Tenth Circuit, this Court finds that under Daubert's second "relevance" prong, compliance with standard protocol in applying the RFLP technique is essential and goes to admissibility, rather than merely to the weight of DNA evidence as urged by the government. This is so because failure to follow standard protocol in applying the RFLP technique may yield an unacceptably high risk of false positive error. See United States v. Martinez, 3 F.3d 1191 (8th Cir. 1993); see also United States v. Galbreth, 908 F.Supp. 877 (1995) (Daubert analysis applied to polygraph evidence).
In any event, Defendant does not specifically challenge the FBI's compliance with standard protocol in this case and testimony revealed that standard protocol in the RFLP process was followed here. Agent Lynch testified on behalf of the government about the FBI's protocol for DNA testing, the quality control techniques used to ensure accurate results, the specific analysis performed on the semen samples obtained in this case from the victim's clothing, and the test samples taken from the Defendant. Thus, the Court finds the RFLP process satisfies both prongs of Daubert, as it is both scientifically valid and relevant to the facts at issue in this case.
(2) Statistical probability of coincidental match.
When the laboratory work is completed and a DNA profile from a suspect has been declared to match the DNA profile of the perpetrator, it means the suspect cannot be excluded as a possible contributor of the DNA found at the crime scene. Statistics must then be generated to give significance to the match by demonstrating how probable it is that a random match could occur, i.e., that the suspect's DNA profile and the perpetrator's DNA profile would match if they were not the same person.
The FBI develops population databases using "fixed bins" which is a procedure the FBI uses to statistically analyze the data. See Peters, slip op. at 61-64 for detailed explanation of the FBI's fixed-bin methodology. The FBI utilizes what is known as the product rule in estimating the frequencies with which a coincidental match may occur. The validity of the use of the product rule in the probability calculation depends on the independence of the bands whose frequencies are being multiplied. See Peters, at 23-24.
The Defendant's challenges to the DNA evidence in this case center on this second part of the DNA process where experts estimate the statistical probability of a coincidental match. The government seeks to introduce Agent Lynch's statistical probability calculations generated in this case from the FBI's Caucasian, Black, Hispanic and American Indian population databases.
Defendant urges that the FBI's methods for calculating population frequencies for Native Americans fail to meet Daubert requirements. He maintains the FBI relies on an inadequate and unreliable database, which fails to separate individual Indian populations, is not suited to Southwest Indians, and fails to produce conservative results.
The FBI's Native American database consists of approximately 200 individuals, approximately 100 of whom are Sioux and the other 100 are from various tribes. June 6, *501 1995, Hrg.Tr. at 56. Additional precautions are taken by the FBI when using its Native American database due to its relatively small size, in order to further ensure very conservative results. Peters, slip op. at 63-64; June 6, 1995, Hrg.Tr. at 60, ln. 2-8.
Defense witness Dr. Long testified that frequency calculations will be underestimated if an incorrect data base is used because certain sub-populations have higher frequencies of DNA. July 7, 1995, Hrg.Tr. at 193-201.[6]
Dr. Chakraborty has tested and rejected this concern of critics like Dr. Long, that intertribal DNA differences are possibly much larger in Indian communities, which are small, compared to differences among larger subgroups of Caucasians or Blacks. June 6, 1995, Hrg.Tr. at 128. While acknowledging the existence of intertribal DNA differences, he determined the differences "are at best equal to that of the ethnic populations within a broad racial group" and that the differences "do not result into a wrong forensic inference." June 6, 1995, Hrg.Tr. at 129 & 140. Dr. Chakraborty testified that the FBI's frequency computation is valid to provide a conservative estimate. June 6, 1995, Hrg.Tr. at 131-32.
The Court finds the FBI's method of frequency calculations satisfies Daubert's first prong, as it is based upon scientific knowledge and is grounded in the methods and procedures of science. Moreover, the fixed-bin method produces conservative results in that it overestimates the actual frequency of alleles in a population. See June 6, 1995, Hrg.Tr. at 56, ln. 22-25. The methodology sufficiently compensates for any substructuring that may exist in its databases.
In applying Daubert's second "relevance" prong to the probability calculations, the Court finds that it is appropriate to present to the jury only frequency calculations derived from the Native American database. In this case, the victim has accused her son, a Native American, of committing the rape. Thus, the issue before the Court in this case is whether the son committed the crime. The statistical probability calculations involving the Native American database will assist the jury in making this determination and are, therefore, relevant to the facts at issue in this case. There is no need to examine databases of other various populations because the issue is limited to whether a certain identified Native American individual could have been the perpetrator and, if so, the likelihood that he was the perpetrator. The calculation of statistical probabilities of other populations is irrelevant.
Thus, while the Court rejects the government's assertion that frequency calculations go to weight rather than to admissibility, the Court finds the FBI's probability calculations are sufficiently conservative to be scientifically valid and calculations taken from the FBI's Native American database are relevant to the facts of this case and admissible under Daubert.
In addition, Dr. Chakraborty testified he reviewed the case notes, copies of autoradiographs, notes on the frequency computations and indications of the databases used in frequency computations in this particular case, and concluded the FBI followed standard protocol in this case. June 6, 1995, Hrg.Tr. at 134-36. The Court was persuaded that protocol was followed in this second process of DNA profiling dealing with statistical calculations.
Rule 403 Balancing
Defendant urges that the probative value of the DNA evidence is substantially outweighed by the danger of unfair prejudice. He insists that because he and his mother shared the same house, there are plausible explanations for the alleged presence of semen on her bed and clothing, which render the DNA evidence irrelevant. In addition, the victim has recanted her story on one occasion, stating her son did not rape her and she made up the story because she was mad at him. Defendant also points to this recantation as rendering the DNA evidence irrelevant.
*502 To the contrary, given the possible innocuous explanations for the presence of semen at the crime scene and the recantation by the victim, the DNA evidence is not unduly prejudicial. It is relevant to the extent that it has "a tendency" to show that defendant may be the source of the DNA found at the crime scene, consistent with the victim's original allegation. The jury, charged with making the necessary credibility determinations, will properly resolve these factual issues. Under Rule 403, the existence of Defendant's alternative, innocuous and reasonable explanations mitigate in favor of admitting the evidence.
CONCLUSION
As urged by Defendant, this Court has considered, in examining the validity of the forensic application of scientific knowledge to the facts of this case, the size of the underlying database; conservativeness of the probabilities calculated; the application of statistical techniques; and the assumptions underlying the product rule and the statistical techniques. See Def.'s post-hrg. br. at 7.
From its consideration the Court finds the DNA evidence obtained in this case is based on scientific knowledge, as it is grounded in the methods and procedures of science. Daubert, 509 U.S. at ___, 113 S.Ct. at 2795. Further, it is relevant to the extent that it has a "tendency" to show that the Defendant may be the source of the DNA found at the crime scene.
While the general concerns raised by Defendant regarding the statistical probability calculations of Native Americans are legitimate, the Court was persuaded that the FBI's estimates of DNA print frequencies among Native Americans are sufficiently conservative to overcompensate for any "substructuring" that may exist among ethnic populations and, therefore, finds that such evidence is based on a scientifically reliable principle, will assist the trier of fact, and will not unduly prejudice the Defendant in this case.
Therefore, the DNA evidence will be admitted in this case along with statistical estimates of coincidental matches occurring in the Native American population only.
NOTES
[1] Now codified as 18 U.S.C. § 2246(2)(A).
[2] Dr. Chakraborty explained that the correct way to state the frequencies in this case would be "the frequency is no more common than 1 in 750,000 Caucasians ..." June 6, 1995, Hrg.Tr. at 138.
[3] The expert qualifications of Drs. Deadman and Chakraborty are laid out in detail in the Peters opinion at pages 26-27 and 29-30 respectively. Ms. Lynch has a bachelor's degree in biology and a master's degree in cell biology. She worked as a scientific researcher for twelve (12) years, then joined the FBI and spent five years in its Serology Identification Unit and five years in the DNA Analysis Unit.
[4] The qualifications of Drs. Lavett and Long are laid out in the Peters opinion at pages 30-32.
[5] Although not addressed in Defendant's briefs, the Court notes that various challenges were made by Dr. Lavett to the RFLP process which the Court considered and found unpersuasive and refuted by the Government's experts.
[6] Similar concerns involving the "isolated" location of the tribe and genetic differences among racial groups were raised and discounted in Peters, where the defendant was a member of the Navajo Nation.
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Order entered November 21, 2019
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01370-CR
ALAN MICHAEL SCHUECKLER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F11-72399-R
ORDER
Appellant timely filed his notice of appeal on October 31, 2019, and the record is due
December 14, 2019. Before the Court is counsel’s November 18, 2019 motion to withdraw. We
GRANT the motion and DIRECT the Clerk to remove J. Craig Jett as appellant’s counsel of
record.
We ORDER the trial court to appoint new counsel to represent appellant in this appeal.
We ORDER the trial court to transmit a supplemental clerk’s record containing the order
appointing new counsel to this Court within THIRTY DAYS of the date of this order.
We DIRECT the Clerk to send copies of this order to the Honorable Jennifer Bennett,
Presiding Judge, 265th Judicial District Court; to J. Craig Jett; and to the Dallas County District
Attorney’s Office, Appellate Division.
We ABATE this appeal to allow the trial court to comply with this order. We will
reinstate the appeal when we receive the order appointing new counsel.
/s/ ROBERT D. BURNS, III
CHIEF JUSTICE
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141 F.Supp.2d 113 (2000)
Ellen S. DRIGGIN, et al., Plaintiffs
v.
AMERICAN SECURITY ALARM CO., et al., Defendants
No. CIV 99-368-P-H.
United States District Court, D. Maine.
October 27, 2000.
*114 Leonard M. Gulino, Michael A. Cunniff, Preti, Flaherty, Beliveau, Pachios & Haley, LLC, Portland, ME, for Plaintiffs.
*115 Frederick C. Moore, Thomas R. Kelly, Robinson, Kriger, Mccallum & Greene, P.A., Martha C. Gaythwaite, Melinda P. Shain, Portland, ME, for Defendants.
ORDER ON DEFENDANT PETER GOODALE'S MOTION FOR SUMMARY JUDGMENT
HORNBY, Chief Judge.
This case arises out of a fire that occurred at a restaurant in 1998. The owner of the restaurant property and her husband have asserted that an electrician improperly installed electrical equipment at the property in 1996, causing the fire. They seek to recover uninsured losses, including business interruption loss, lost opportunity costs, unreimbursed renovation costs, and legal fees.
The defendant electrician, Peter Goodale, has moved for summary judgment. I conclude that the husband, Seth Driggin, does not have standing; that the plaintiff Ellen Driggin cannot recover business interruption losses arising out of her decision to terminate the lease in place at the time of the fire; that she can proceed on her request for business interruption losses arising out of her other leasing decisions; that her later transfer of the property to Staco Realty, a Maine limited liability company she wholly owns, does not impair her recovery; and that alleged spoliation of evidence does not justify a sanction of judgment for Goodale or exclusion of the plaintiffs' expert. Therefore, Goodale's motion for summary judgment is GRANTED IN PART AND DENIED IN PART.
I. FACTS
A fire occurred at 125 Shore Road, Ogunquit, Maine, on April 17, 1998. Def.'s Statement of Material Facts Not In Dispute (DSMF) ¶ 1. The plaintiff Ellen S. Driggin was the sole owner of the property at the time of the fire. DSMF ¶ 2. Mrs. Driggin's husband, Seth Driggin, had operated a seasonal restaurant The Compass Rose at the property from 1994 until 1997 through a corporation of the same name. DSMF ¶ 3. Peter Goodale is an electrician who performed electrical work at the property in 1996. Pls.' Statement of Additional Material Facts (PSAMF) ¶ 2. That work included installing an electrical junction box. PSAMF ¶ 5. The plaintiffs allege that Goodale applied an improper level of torque when tightening a split bolt connector in the junction box, and that this caused electrical arcing that ignited the fire. PSAMF ¶¶ 6-10, 13.
Richard Shepard, a Senior Investigator employed by the Maine State Fire Marshal's Office, inspected the property on the date of the fire. DSMF ¶ 28. Shepard was accompanied during his inspection by Kurt Knight, an electrician and firefighter, who was present in his capacity as a fire-fighter for the Town of Ogunquit. PSAMF ¶ 23. Shepard concluded that the fire originated in the "basement crawl space." DSMF ¶ 28. The exact location that he was referring to in using those words is disputed, as discussed in Part II(D), infra.
On April 21, 1998, the day that the State Fire Marshal's Office released the property for inspection by private investigators, Nathaniel Johnson, a fire investigator retained by the plaintiffs' insurer, Peerless Insurance Company ("Peerless Insurance"), inspected the property. DSMF ¶ 21; PSAMF ¶¶ 39, 41.[1] The plaintiffs' *116 claims are based largely on Johnson's report: In it, he concluded that an improper level of torque had been applied to a split bolt connector in a junction box, causing electrical arcing that ignited the fire. Johnson has acknowledged that it was his responsibility to preserve the scene and the physical evidence so that if litigation ensued prospective defendants could conduct independent inspections of the property. DSMF ¶¶ 22-23.
Goodale was sent a notice of claim on April 22, 1998, PSAMF ¶ 25, evidently by an attorney retained by Seth Driggin (although this is not entirely clear). See Goodale Dep. 119:18-121:18. A "a week or two" after he received the notice of claim, on approximately May 6, 1998, Goodale and the expert that Peerless Insurance retained for him, electrical engineer Ronald Goulet, inspected the premises. PSAMF ¶¶ 25, 27. Goodale claims that the scene had been too disturbed for Goulet to complete an effective inspection. The extent of the disturbance is not clear from the record; its impact on Goulet's ability to complete his inspection is disputed. Goulet's affidavit states that his inspection was not as comprehensive as usual because, in his opinion, the fire scene had been disturbed in a manner that prevented him from being able to determine the cause or origin of the fire. Goulet Aff. ¶¶ 4-8. Goodale does not dispute, however, that the junction box containing the split bolt alleged to have started the fire, two circuit breaker panels and their covers, and the fire alarm panel were all still in place at the time of the inspection. PSAMF ¶ 33. Furthermore, "structural members, the wiring, or other potential heat sources such as the furnace and heating system were not destroyed or materially altered," PSAMF ¶ 27, and Goulet did observe the molten remains of the split bolt that allegedly caused the fire. PSAMF ¶ 34. It seems, however, that some of the charred floorboards were no longer in place (the parties do not address this in their statements of fact, but it does not appear to be disputed). See Def.'s Mem. in Supp. of Mot. for Summ. J. at 17; Pls.' Opp'n at 10 (admitting that some of the floorboards had been removed by construction workers prior to Goulet's visit). It is not clear whether the floorboards remained someplace at the property or had been disposed of entirely. In any case, Goodale does not dispute the plaintiffs' assertion that neither of them was involved in decisions regarding the timing or scope of the demolition after the fire.[2] PSAMF ¶ 40; Def.'s Response to PSAMF ¶ 40. While it is Goulet's standard practice to take notes, photos, and sketches during an inspection, PSAMF ¶ 28, he cannot locate any notes, photos, or sketches that he might have taken in this case. PSAMF ¶ 29.
At some point exactly when is not clear from the record Johnson instructed a contractor to cut out of the basement and to store on the first floor of the property the junction box containing the split bolt and its plywood backing, two electrical *117 panels, and a fire alarm panel. DSMF ¶ 23; Pls.' Resp. to DSMF ¶ 23. On June 1, 1998, Johnson returned to the property to retrieve those items. DSMF ¶ 24; Pls.' Resp. to DSMF ¶ 24. Evidently though again, it is not entirely clear from the record the fire alarm panel was no longer there. Johnson did retrieve the junction box and the electrical panels. DSMF ¶ 24; Pls.' Resp. to DSMF ¶ 24. He later discovered, however, that he did not have the split bolt itself.[3] DSMF ¶ 25; Pls.' Resp. to DSMF ¶ 25. Johnson does not know the present whereabouts of the split bolt. DSMF ¶ 25.
Prior to the fire, in early 1998, Ellen Driggin had leased the property to Arthur Pappas, who planned on operating The Compass Rose himself. DSMF ¶ 5. Also prior to the fire, Pappas had defaulted on certain lease obligations. DSMF ¶ 11; Seth Driggin Dep. II at 75-77. The Pappas lease was in effect on the date of the fire. DSMF ¶ 5. After the fire, during the time that the restaurant was closed, Mrs. Driggin terminated the lease with Pappas. Pls.' Resp. to DSMF ¶ 10. She asserts that the fire exacerbated Pappas's difficulties in making lease payments. Pls.' Resp. to DSMF ¶ 11. Three months after the fire, Seth Driggin reopened the restaurant and operated it for the remainder of the 1998 tourist season. DSMF ¶ 9.
On January 6, 1999, Ellen Driggin transferred her ownership interest in the property to Staco Realty, a Maine limited liability company she wholly owns. DSMF ¶ 16; PSAMF ¶ 20. She "did not assign her cause of action against [Goodale] to Staco Realty," PSAMF ¶ 21, and received no consideration for the transfer other than a 100 percent ownership interest in Staco Realty. PSAMF ¶ 20. On January 8, 1999, two days after the transfer, Staco Realty leased the property to Poor Richard's Tavern, Inc., operated by restaurateur Richard Perkins. DSMF ¶ 17.
Ellen Driggin's insurer, Peerless Insurance Company, reimbursed her for property damage and certain lost rents. DSMF ¶ 1. This lawsuit is not a subrogation action, and Mrs. Driggin is not making any claims in this action for damages that Peerless Insurance reimbursed. DSMF ¶ 1.
II. DISCUSSION
Jurisdiction is based upon diversity of citizenship. Maine law applies.
(A) Seth Driggin's Standing
Goodale argues that Seth Driggin has no standing to bring any claims arising out of the fire because, at the time of the fire, he had no ownership interest in the property, DSMF ¶ 6, nor any right to management fees. DSMF ¶ 7. Mr. Driggin disputes these assertions by stating that he had interests in the property through "marital rights," Pls.' Resp. to DSMF ¶ 6, Seth Driggin Dep. I at 95:16, and that he had been paid management fees by the Compass Rose, the corporation through which he had operated the restaurant of the same name prior to the Pappas Lease. Pls.' Resp. to DSMF ¶ 7; Seth Driggin Dep. I at 76:14.
In this case, the fire could not have invaded Mr. Driggin's legally-protected interests in the property because he had no such interests. With respect to any ownership interest, the deposition testimony that Mr. Driggin cites to support his position reveals that his purported "marital rights" in the property are vague and uncertain *118 at best. His statement was: "[T]here probably are a variety of marital or inheritance or other laws that gave me as a spouse some rights to the building." Seth Driggin Dep. I at 95. That statement is insufficient to support an assertion of standing. With respect to any other interests Mr. Driggin might have had in the property, the only evidence he points to that he had received management fees for operating a restaurant on the property prior to the time it was leased to Pappas is simply irrelevant. Mr. Driggin has not asserted that at the time of the fire he had any right whatsoever to management fees. Indeed, Mr. Driggin admits that the property had been leased to Pappas with the hope that he would no longer have any management role. Seth Driggin Dep. I at 85.
Moreover, the fact that Mr. Driggin voluntarily incurred miscellaneous expenses[4] in responding to the fire does not give him standing. He cites Britton v. Dube, 154 Me. 319, 147 A.2d 452 (1958), to support his claim that he is entitled to recover for those expenses. In Britton the court upheld a jury's damage award for a husband's loss of consortium resulting from his wife's inability to perform household duties following an automobile accident in which she was injured. The court held that the husband was entitled to recover for the loss to him of those services, id. at 454, but noted that his recovery "must not include items recoverable by the wife in her action." Id. at 455. The court also stated that the husband was entitled to recover the fair value of the work he performed in caring for his wife. Id.
In this case, the expenses Mr. Driggin incurred are properly his wife's. He voluntarily incurred them, evidently while acting as her agent or employee. The fact that she has not reimbursed him does not give him standing to pursue an action against Goodale in this case. Because the expenses are properly his wife's and possibly recoverable by her, Britton far from offering support actually contradicts Mr. Driggin's argument. The other aspect of Britton that a husband is entitled to the fair value of work performed in caring for his wife is distinguishable as applicable only in the personal injury context and as resting upon the duties associated with a marital or other close family relationship. Mr. Driggin has not offered any case law or rationale to support extending it to other contexts. In this case the marital relationship is purely incidental to what actually seems to be an employer-employee or principal-agent relationship.
Because Mr. Driggin has no standing, Goodale's motion for summary judgment with respect to Seth Driggin is GRANTED.
(B) Proximate Cause
Goodale argues that there is an absence of evidence with respect to three aspects of the plaintiffs' case, all bearing on the proximate cause of Ellen Driggin's business interruption losses: (1) her decision to terminate the lease with Pappas; (2) her decision to have Seth Driggin reopen and operate the restaurant for the remainder of the 1998 season; and (3) her decision to enter a less favorable lease with Perkins. See Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (requiring a demonstration that there is an absence of evidence to support the non-moving party's case).
*119 With respect to Mrs. Driggin's decision to terminate the Pappas lease, Goodale has satisfied the required summary judgment demonstration by showing an absence of evidence linking that decision to the fire. In his Statement of Material Facts, Goodale asserts that the "reason for terminating the lease was not related to the fire," and supports that assertion by citing Mr. Driggin's deposition testimony admitting that Pappas had defaulted on certain lease obligations prior to the fire. DSMF ¶ 11. The plaintiffs counter this by asserting that Pappas's "ability to perform under the lease was inhibited by the fire," Pls.' Opp'n at 4, and also by citing to Mr. Driggin's deposition testimony. The cited testimony states, in full: "I recall he cured some of those defaults and promised to cure other [sic] of those defaults. I think I probably agreed at that time, before the fire, to be somewhat patient and some monetary payments [sic] until he opened and his cash flow improved." Seth Driggin Dep. II at 57:3-7. I construe the testimony in the light most favorable to the plaintiffs. I assume that they hope I will infer from it that because the fire precluded Pappas from opening the restaurant his cash flow did not improve and he could not make the payments, causing Mrs. Driggin to terminate his lease. But the testimony does not actually support that implication. It is simply too attenuated. As such, I conclude that the plaintiffs have not reliably demonstrated that a genuine dispute of material fact exists with respect to whether the fire proximately caused the termination of the Pappas lease. There is no evidence that it did.
Moreover, the plaintiffs have not demonstrated that any knowledge Mr. Driggin might have regarding how the fire affected Pappas's cash flow and therefore his ability to pay rent is based on anything other than conversations Mr. Driggin had with Pappas. As such, it is hearsay evidence, not within any exception, inadmissible at trial, and "cannot be considered on a motion for summary judgment." Garside v. Osco Drug, Inc., 895 F.2d 46 (1st Cir.1990). Therefore, I GRANT Goodale's motion for summary judgment with respect to Ellen Driggin's claims for "business interruption" or financial losses flowing from the termination of the Pappas lease.[5]
With respect to Mrs. Driggin's decision to have Mr. Driggin reopen the restaurant and operate it for what was left of the 1998 season, and her later decision through Staco Realty to lease the property to Perkins, I find that Goodale has not made the showing required of a party moving for summary judgment. Goodale's initial memorandum and his reply memorandum contain nothing more than conclusory assertions that these decisions were not proximately caused by the fire. See Def.'s Mem. in Supp. of Mot. for Summ. J. at 9-10; Def.'s Reply Mem. in Supp. of Mot. for Summ. J. at 3. Nor does his statement of material facts contain anything supporting those assertions. Accordingly, I DENY Goodale's motion for summary judgment with respect to Ellen Driggin's claims for "business interruption" or financial losses flowing from her decision to have her husband reopen and operate the restaurant and her later decision to lease to Perkins.
*120 (C) Damages After the Property Was Transferred to Staco Realty
The injury Ellen Driggin suffered was complete on the date of the fire and at that point she accrued a cause of action to recover any damages caused by the injury, including prospective financial losses. Given that Goodale admits that Mrs. Driggin did not assign her cause of action to Staco Realty, that property transfer does not affect her right to recover damages. See Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490, 496 (Fla.Dist.Ct.App. 1994) ("Where the cause of action arises out of an injury to property, that action is personal to the owner of the property and a party who subsequently takes title to the property, without receiving an assignment of that cause of action, may not pursue that cause of action.").
Events after the transfer are relevant to Mrs. Driggin's claims only with respect to the measurement of her financial losses. The terms of the Perkins lease, for example, may be relevant to determining how much, if at all, the fire reduced the property's rental value. Goodale's fear that he could "be subject to suit by Staco Realty ... after the conclusion of this case" is unfounded. As the plaintiffs note, Staco Realty "suffered no injury based on the conduct of Defendant that is the subject of this case," Pls.' Opp'n at 7, and has not been assigned the plaintiffs' cause of action. As such, Staco Realty would not have standing to bring any claims arising out of the fire. Accordingly, I DENY Goodale's motion for summary judgment on account of the transfer to Staco Realty.
(D) Spoliation
The goals of the spoliation doctrine "are to rectify any prejudice the non-offending party may have suffered as a result of the loss of evidence and to deter any future conduct, particularly deliberate conduct, leading to such loss of evidence." Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 29 (1st Cir.1998).[6] Sanctions for spoliation "may include dismissal of the case, the exclusion of evidence, or a jury instruction on the `spoliation inference.'" Vazquez-Corales v. Sea-Land Serv., Inc., 172 F.R.D. 10, 13 (D.P.R.1997); see also Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 446 (1st Cir.1997) ("Under settled authority, the district court has inherent power to exclude evidence that has been improperly altered or damaged by a party where necessary to prevent the non-offending side from suffering unfair prejudice.").
The First Circuit considers the "prejudice to the non-offending party and the degree of fault of the offending party." Collazo-Santiago, 149 F.3d at 29. Of these, the First Circuit has implied that it weighs prejudice more heavily than bad faith. See Trull v. Volkswagen of Am., 187 F.3d 88, 95 (1st Cir.1999); Sacramona, 106 F.3d at 446 (noting that "[a]lthough deterrence may play a role, the primary aim is remedial, at least absent willful destruction").[7]
*121 (1) Prejudice to the Non-Offending Party
Goodale argues that his ability to develop a defense has been prejudiced because the fire scene had been disturbed in a manner that prevented his expert, Ronald Goulet, from independently determining the cause and origin of the fire, and that Goulet's findings might have been exculpatory. In particular, Goodale argues that Goulet was unable to examine burn patterns because charred floorboards had been removed, was unable to do (or order someone else to do) any testing on the missing split bolt, and was unable to examine the missing fire alarm panel.
As a threshold matter, then, it appears that Goodale has suffered some prejudice. The mere existence of prejudice, however, is an insufficient basis for imposing the relatively severe sanctions for which Goodale has moved. The more important issue in considering the appropriateness of such sanctions is the severity of the prejudice suffered. When Goulet inspected the property on approximately May 6, he did observe the junction box, the circuit breaker panels, the fire alarm panel, structural members, the wiring, and other potential heat sources such as the furnace and heating system. Goodale admits that none of these had been materially altered at the time of Goulet's inspection. PSAMF ¶¶ 27, 33; Def.'s Resp. to PSAMF ¶¶ 27, 33. At that time he also observed the molten remains of the split bolt that allegedly caused the fire. PSAMF ¶ 34; Def.'s Resp. to PSAMF ¶ 34. With respect to the removal of the floorboards, the severity of the prejudice is mitigated by three factors. First, another of Goodale's experts, Kurt Knight, who was on site the day of the fire, did observe the burn patterns on the floorboards. Goodale has designated Knight as an expert who will testify primarily about his observations of the fire scene, but also about his opinions regarding the cause of damage to the junction box. Def.'s Designation of Expert Witnesses at 6-7. Knight was at the fire scene immediately after the fire had been extinguished, he spent time in the basement crawl space, and he observed Maine State Fire Investigator Shepard checking char depths. Knight has personal knowledge of the area where "the most burn occurred," and an opinion as to the cause of damage to the junction box. Second, Goodale's argument raising the possibility that there were burn patterns on the floorboards that were inconsistent with fire investigator Nathaniel Johnson's determination of the cause and origin of the fire rests in significant part on an apparent mischaracterization of Shepard's report. In his report, Shepard states that the fire originated in the crawl space in the basement level of the restaurant. DSMF ¶ 28. Goodale argues that this is inconsistent with Johnson's conclusion that the fire originated in the junction box, which was located just outside of the crawl space. In a subsequent affidavit submitted with the plaintiffs' opposition, however, Shepard states that in his report he "did not mean to suggest or imply that the area of origination might not include the area of the junction box and electrical panels which border the crawl space area of the basement." Shepard Aff. ¶ 11. To the contrary, Shepard's affidavit states that his report is consistent with Johnson's conclusions. Shepard Aff. ¶ 12. Third, Shepard *122 took photographs of the underside of the floorboards. Def.'s Reply Mem. in Supp. of Mot. for Summ. J. at 5. I recognize that the photographs may not be a good substitute for personal inspection by Goulet, but they do nonetheless mitigate the prejudice the floorboard's unavailability caused.
With respect to the missing split bolt, the extent of any prejudice is questionable because it is not clear that any testing that might have been performed on it would have been helpful. Goodale relies on the deposition testimony of one of the plaintiffs' experts, electrician Alan Gray, to support his argument that destructive testing on the split bolt would have been "helpful to determining how the split bolt splice was insulated and what torque was supplied." Def.'s Mem. in Support of Mot. for Summ. J. at 18. In an affidavit submitted with the plaintiffs' opposition, however, Gray states that his deposition testimony assumed that the split bolt was intact, that he subsequently examined photographs of the split bolt, and that given how damaged it actually was he believes that "one could not make a determination of the status of the threads or of the torque applied to the split bolt." Gray Aff. at 2.[8]
With respect to the missing fire alarm panel, Goodale argues that it would have shown "melting and heat or fire patterns," "which connections were intact," and that there is a "reasonable chance that it would give information about the alarm circuits and the telephone wires," which, "in turn, would give valuable information about the sequence of events." Furthermore, Goodale argues, the fire alarm panel's memory would have provided information about the "sequence and timing of each detection zone's activities, thus allowing the parties to tell when and in what zone the fire started and where it spread." Def.'s Reply Mem. in Support of Mot. for Summ. J. at 6-7. This argument has more force because in contrast to the charred floorboards and the split bolt the fire alarm panel and its memory were never examined by either party or any expert, and no substitute photographic evidence is available. But they were available to Goodale's expert Goulet at the time of his first inspection.
Another factor that should be taken into account in assessing the severity of any prejudice is whether the non-offending party bears any responsibility for the prejudice from which he suffers. In this case there are two factors indicating that Goodale bears at least some responsibility for the prejudice. First, Goodale's expert, Goulet, independently curtailed his investigation of the scene at an early date (May 6) after determining that charred floorboards had been removed even though there is no indication in the record that the rest of the scene was disturbed. As noted above, Goodale admits that at the time of Goulet's visit the junction box and electrical control panels remained in place, and the wiring and other potential heat sources had not been materially disturbed. Second, Goulet cannot locate whatever notes, *123 sketches, or photos he may have taken during the investigation that he did undertake.
(2) The Degree of Fault of the Offending Party
This Court cannot ascribe fault to the plaintiffs for any of Johnson's actions because, at the time Johnson investigated the fire, he was not acting on the plaintiffs' behalf, but rather on Peerless Insurance's behalf.[9] There is no indication in the record that the plaintiffs had any authority to control Johnson's investigation in any way, nor that the plaintiffs exerted or attempted to exert any such control. In fact, the plaintiffs did not retain Johnson until October 12, 1999, well over one year after the alleged spoliation occurred. PSMF ¶ 39; Johnson Aff. ¶ 11; Krantz Aff. ¶ 9.
It would be inequitable to sanction a blameless party for another's spoliation of evidence. Bad faith certainly is not required for a sanction to be appropriate. Trull v. Volkswagen of Am., 187 F.3d 88, 95 (1st Cir.1999); Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 447 (1st Cir.1997) (noting that while bad faith is a "proper and important consideration in deciding whether and how to sanction conduct resulting in the destruction of evidence," carelessness is enough for a district court to consider imposing sanctions). A finding of some degree of fault, however be it negligence, recklessness, or actual bad faith certainly makes imposing a sanction more appropriate. Conversely, a finding of no fault makes a sanction less appropriate.
Considering the prejudice to Goodale and the fault of the plaintiffs, I conclude that Goodale has not alleged any facts that would warrant sanctioning the plaintiffs as severely as Goodale has requested. In the course of upholding a district court's denial of a motion to dismiss based on spoliation of evidence, the First Circuit noted that "[a]s a general principle, the court views `dismissal with prejudice as a harsh sanction, which runs counter to our strong policy favoring the disposition of cases on the merits.'" Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 28 (1st Cir.1998) (quoting Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir.1995)) (internal quotations and brackets omitted). In accordance with that policy, courts will impose a sanction only where there is severe prejudice or egregious conduct. Cf. Vazquez-Corales v. Sea-Land Service, Inc., 172 F.R.D. 10, 13 (D.P.R.1997) (noting that dismissal is appropriate "only when a party maliciously destroys relevant evidence for the sole purpose of preventing an adverse party from examining it"); Mayes v. Black & Decker (U.S.), Inc., 931 F.Supp. 80, 83 (D.N.H.1996); N. Assurance Co. v. Ware, 145 F.R.D. 281, 282 n. 2 (D.Me.1993). In this case, I find no such prejudice or conduct. Accordingly, I reject the argument that dismissal is appropriate. Similarly, in light of the considerations discussed above, I conclude that that excluding Johnson's testimony would be too severe a sanction.
It is important to note, however, that my findings with respect to sanctions for spoliation are preliminary. I merely conclude that on the facts presented at this stage in the proceeding the relatively severe sanctions that Goodale has requested are not warranted. I do not rule out the possibility that these or other sanctions such as a negative inference jury instruction or more targeted exclusion of certain aspects of Johnson's testimony may be appropriate at a later stage.
*124 III. CONCLUSION
Goodale's motion for summary judgment is GRANTED as to all claims of Seth Driggin; GRANTED as to the termination of the Pappas lease; and in all other respects is DENIED.
SO ORDERED.
NOTES
[1] Peerless Insurance insured both the plaintiffs and Goodale. The plaintiffs mention this and assert that "[t]o the extent decisions were made by Peerless about the timing and method of demolition, those decisions were made by Goodale's agent and insurer, Peerless Insurance." Pls.' Opp'n to Def.'s Mot. for Summ. J. at 14. The plaintiffs carry that assertion no further, however, and I will not construct an argument for them.
[2] Goodale does note, however that Seth Driggin was involved in construction supervision, and that Ellen Driggin paid him over $25,730 for his efforts. Def.'s Resp. to PSAMF ¶ 40. Apparently, Goodale distinguishes between demolition and construction: he admits that Mr. Driggin was not involved in the demolition, but asserts that he did supervise the construction. Id. It is my understanding that the contractor's relevant activities at the property prior to Goulet's inspection were part of the demolition, that is, activities that Mr. Driggin was not involved in. Virball Aff. ¶¶ 4-5.
[3] It is not clear from the record exactly when the split bolt was lost. Johnson evidently believed he still had it at the time of his first deposition in this case, but at his second deposition he indicated that he could not locate it. See Johnson Dep. II at 4-8.
[4] These included travel expenses, "losses of tenant assigned to Seth Driggin," and "legal fees," evidently referring to legal work performed by Mr. Driggin, who is an attorney. See Pl.'s Answers to Def. Coastal Contractor's Interrogs. ¶ 12.
[5] In light of this Order, I am treating as MOOT both the Defendant's Motion to Exclude the Expert Testimony of Nancy Fannon and the Plaintiffs' Motion to Exclude the Expert Testimony of Mark Carrier. Both experts' testimony regarding Pappas's projected revenues is now irrelevant because I have granted summary judgment in favor of Goodale with respect to claims arising out of Ellen Driggin's decision to terminate the Pappas lease. Therefore, at this point I do not know what will be the nature of any expert testimony.
[6] While Goodale's memorandum states that the Maine Law Court has not addressed the issue of sanctions for spoliation of evidence, Def.'s Mem. at 15, it is in fact federal law that is applicable. N. Assurance Co. v. Ware, 145 F.R.D. 281, 283 n. 3 (D.Me.1993); Headley v. Chrysler Motor Corp., 141 F.R.D. 362, 364-65 (D.Mass.1991).
[7] District courts in the First Circuit have considered the following five factors in determining whether sanctions for spoliation of evidence are appropriate: "(1) whether the defendant was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice can be cured; (3) the practical importance of the evidence; (4) whether the plaintiff was in good faith or bad faith; and (5) the potential for abuse if the evidence is not excluded." N. Assurance, 145 F.R.D. at 283 (internal parentheses omitted); see also Vazquez-Corales, 172 F.R.D. at 13; Mayes v. Black & Decker (U.S.), Inc., 931 F.Supp. 80, 83 (D.N.H.1996); Allstate Ins. Co. v. Creative Env't Corp., 1994 WL 499760, *6, 28 Fed. R. Serv.3d 1352, (D.R.I.1994) (Lovegreen, Mag. J.); Headley, 141 F.R.D. at 365. The First Circuit has not adopted the five factors yet.
[8] Goodale argues that Gray's affidavit contradicts his deposition testimony, and that an "interested witness may not create an issue of material fact in order to defeat a summary judgment motion simply by disputing his own prior sworn testimony." Def.'s Reply Mem. in Supp. of Mot. for Summ. J. at 7. While that may be the general rule, there is a clear exception where the new affidavit is accompanied by a credible explanation for the contradiction. Colantuoni v. Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir.1994); Richardson v. Bonds, 860 F.2d 1427, 1433 (7th Cir. 1988); Martin v. Merrell Dow Pharms., 851 F.2d 703, 706 (3d Cir.1988); Miller v. A.H. Robins Co., 766 F.2d 1102, 1104 (7th Cir. 1985).
[9] See supra note 1 and accompanying text.
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610 F.3d 427 (2010)
UNITED STATES of America, Plaintiff-Appellee,
v.
Anthony WOMACK, Defendant-Appellant.
No. 09-2488.
United States Court of Appeals, Seventh Circuit.
Argued December 11, 2009.
Decided June 25, 2010.
*429 Donald S. Boyce (argued), Office of the United States Attorney, Fairview Heights, IL, for Plaintiff-Appellee.
Justin E. Endres (argued), Young, Lind, Endres & Kraft, New Albany, IN, for Defendant-Appellant.
Before BAUER, RIPPLE and KANNE, Circuit Judges.
RIPPLE, Circuit Judge.
After a three-day jury trial, Anthony Womack was convicted of distributing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The district court calculated Mr. Womack's guidelines sentence by including the career offender enhancement and sentenced Mr. Womack to 360 months' imprisonment. Mr. Womack now appeals the application of the career offender enhancement and contends that the district court should have been free to depart from the resultant guidelines range. For the reasons set forth herein, we conclude that the enhancement was properly applied; however, we remand for resentencing in light of United States v. Corner, 598 F.3d 411, 415-16 (7th Cir.2010) (en banc).
I
BACKGROUND
On December 13, 2007, in Madison County, Illinois, Mr. Womack distributed cocaine base. He was tried and convicted. The Probation Department prepared a Presentence Investigation Report ("PSR") calculating Mr. Womack's base offense level and criminal history points, but ultimately recommended that Mr. Womack be sentenced as a career offender pursuant to the Sentencing Guidelines' career offender enhancement, U.S.S.G. § 4B1.1.[1] The Probation Department concluded that Mr. Womack's prior felony convictions qualified as predicate convictions for purposes of applying the career offender enhancement: a 1994 Illinois controlled substance conviction and a 2005 Illinois conviction under 625 ILCS 5/11-204.1(a)(1) for aggravated fleeing.[2]
Mr. Womack objected, contending that the 1994 controlled substance conviction was too old to qualify as a predicate offense and that the 2005 aggravated fleeing conviction was not a crime of violence. The district court overruled Mr. Womack's objections and accepted the findings and calculations of the PSR. With the application of the career offender enhancement, Mr. Womack's base offense level was 37 and his criminal history category was VI, producing a guidelines range of 360 months' to life imprisonment. After commenting that the "crack powder disparity argument [was] taken away" in this case, the district court sentenced Mr. Womack to 360 months' imprisonment, at the lower end of the guidelines range.[3]
*430 Mr. Womack now appeals the application of the career offender enhancement in the calculation of his guidelines sentence. He also maintains that the district court should have been free to disagree with, and depart from, the guidelines range.
II
DISCUSSION
A.
We review de novo whether a prior conviction qualifies as a predicate conviction for purposes of applying the career offender enhancement. See United States v. Woods, 576 F.3d 400, 408 (7th Cir.2009). We review sentences for reasonableness and presume that a sentence within a correctly calculated guidelines range is reasonable. Gall v. United States, 552 U.S. 38, 46-47, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Panaigua-Verdugo, 537 F.3d 722, 727 (7th Cir.2008). The career offender enhancement applies to any defendant who is at least eighteen years old at the time he committed the offense of conviction, whose offense of conviction is a "crime of violence or a controlled substance offense," and who has at least two prior felony convictions of either a crime of violence or a controlled substance offensei.e., two predicate offenses. See U.S.S.G. § 4B1.1(a). Application of the career offender provision subjects a defendant to an enhanced base offense level and an automatic criminal history category of VI. Id. § 4B1.1(b).
1.
We begin with Mr. Womack's 1994 controlled substance conviction and consider whether it is too old to qualify as a predicate conviction. The career offender provision generally excludes as predicate convictions those that are older than ten years; however, if a prior conviction is within fifteen years of the commencement of the offense of conviction, and if the offender received a sentence of imprisonment in excess of thirteen months for the prior conviction, the prior conviction is included. See U.S.S.G. §§ 4A1.2(e), 4B1.2 n. 3. Mr. Womack's 1994 controlled substance conviction occurred more than ten years, but fewer than fifteen years, prior to his commencement of distributing cocaine base. Thus, if Mr. Womack received a sentence of imprisonment in excess of thirteen months for his 1994 controlled substance conviction, it qualifies as a predicate conviction.
Mr. Womack received a sentence of five years' imprisonment for his 1994 conviction. However, he contends that his actual period of incarceration was much less than five years. He explains that he participated in Illinois's Impact Incarceration Program, a boot camp rehabilitation program, for 121 days; after service in this program, he was released from custody. In United States v. Gajdik, 292 F.3d 555, 558 (7th Cir.2002), we held that the period of imprisonment imposed, not the period served in the Illinois Impact Incarceration Program, shall be considered in determining whether a prior sentence of imprisonment exceeded thirteen months.[4] As such, *431 it would appear that the 1994 conviction indeed received a sentence of imprisonment well in excess of thirteen months and thus qualifies as a predicate conviction. Nevertheless, Mr. Womack contends that Gajdik was wrongly decided and urges us to reconsider its holding. The Government urges us to reaffirm Gajdik because its reasoning is sound.
In Gajdik, we considered whether a defendant's participation in the Illinois Impact Incarceration Program worked to reduce a prior sentence of imprisonment for purposes of calculating criminal history points. We examined the internal workings of U.S.S.G. § 4A1.2 and concluded that "criminal history points are based on the sentence pronounced, not the length of time actually served." Gajdik, 292 F.3d at 558; see also U.S.S.G. § 4A1.2 n. 2. We concluded that the Illinois Impact Incarceration Program did not fall within the exception for suspended sentences, see U.S.S.G. § 4A1.1(b)(2), because the program "more closely resembles a pardon or commutation by the executive," Gajdik, 292 F.3d at 558; see also U.S.S.G. § 4A1.2 n. 10 (explaining that sentences received from a pardoned or set-aside conviction are to be counted). That conclusion was based on our close examination of how the Illinois Impact Incarceration Program functions and also, perhaps more importantly, on the purpose underlying the criminal history provisions.
With regard to how the program functions, we noticed two primary components that served to distinguish the program from typical sentence suspensions. First, we noted that the program does not allow for a probationary period after the inmate completes the program and is released, indicating limited judicial involvement. See Gajdik, 292 F.3d at 558. Second, we noted that the Illinois Department of Corrections, not the sentencing court, determines whether the inmate may participate in the program, whether the inmate successfully completes the program, and thus, ultimately, whether the inmate is released early. Id. at 558-59. We also concluded that construing the Illinois Impact Incarceration Program as akin to an executive pardon comports with the purpose underlying the criminal history provisions. We noted that "[c]riminal history is scored to assess a defendant's likelihood of recidivism by taking into account the seriousness of the defendant's past criminal conduct. None of the eligibility factors listed in the Impact Incarceration statute reflect on the judge's assessment of the seriousness of the crime or likelihood of recidivism." Id. at 560 (internal citations omitted). Thus, we concluded that time served in the program does not reflect the criminal history provisions' focus on judicial determinations of proper sentences. For these reasons, we concluded that time served in the program is a poor substitute for the actual period of incarceration imposed by a sentencing court, and we considered the program to be more comparable to an executive pardon, not a suspended sentence.
Mr. Womack believes that part of our analysis in Gajdik was flawed. He contends that the Illinois Impact Incarceration Program actually does provide for a period of supervised release. See Appellant's *432 Br. 30 (citing 730 ILCS 5/5-8-1.1(g)). Although that may be so, our holding in Gajdik did not depend wholly on that distinction. Nor does the availability of supervised release have any bearing on an inmate's acceptance into the boot camp program. Ultimately, the decision whether or not to accept an inmate into the program is beyond the purview of judicial officers. Primarily for that reason, participation in the program is unlike a suspended sentence. Additionally, our focus on the purpose of the criminal history provisions is unaffected by the supervised release component of the boot camp program. We reiterate that the criminal history provisions focus on determinations by judicial officers of the seriousness of convictions. The Illinois Impact Incarceration Program simply does not fall within that metric.
Furthermore, our general approach in Gajdikfocusing on the purpose of the criminal history provisionsis appropriately applied in this case, where we must interpret § 4B1.1. The career offender enhancement provision reflects Congress's preference that certain "career" offenders receive a sentence of imprisonment "at or near the maximum term authorized." See U.S.S.G. § 4B1.1 background (internal quotation marks and citations omitted).[5] To disqualify a § 4B1.1 predicate conviction merely based on an offender's fortuitous participation in the boot camp program would frustrate Congress's and the Sentencing Commission's goal of categorizing and penalizing these offenders. This goal directly depends on the seriousness of prior offenses because §§ 4B1.1 and 4A1.2 are cross-referenced and criminal history points reflect the seriousness of prior crimes. See Gajdik, 292 F.3d at 560. Because the sentence articulated by the sentencing court is a better reflection of the attendant crime's seriousness, using the sentence imposed helps categorize recidivists. Thus, we believe the better approach when qualifying career offender predicate convictions is to look to the term of imprisonment imposed by a sentencing court in Illinois, even if the inmate participated in the Illinois Impact Incarceration Program.
Finally, Mr. Womack contends that Gajdik conflicts with United States v. Brooks, 166 F.3d 723, 726 (5th Cir.1999), and United States v. Murray, 162 F.3d 1162, 1998 WL 552823, at *1 (6th Cir.1998) (unpublished). However, as Mr. Womack recognizes, both decisions preceded Gajdik, thus we already have considered them. Nor have those decisions influenced other circuits, which predominantly have adopted our approach in various forms. See, e.g., United States v. Chavez-Diaz, 444 F.3d 1223, 1227 (10th Cir.2006); United States v. Brothers, 209 Fed.Appx. 460, 463-64 (6th Cir.2006); United States v. Garcia-Gomez, 380 F.3d 1167, 1172 (9th Cir.2004).[6]
We consider Gajdik to be controlling authority on the question of whether Mr. Womack's 1994 controlled substance conviction qualifies as a career offender predicate conviction. The district court correctly concluded that the conviction qualifies.
*433 2.
Next, we turn to the 2005 Illinois aggravated fleeing conviction under 625 ILCS 5/11-204.1(a)(1),[7] and consider whether it qualifies as a "crime of violence" predicate conviction for purposes of applying the § 4B1.1(a) career offender enhancement. This question has been resolved by our recent decision Welch v. United States, 604 F.3d 408, 415-25 (7th Cir.2010), where we held that a conviction under 625 ILCS 5/11-204.1 constitutes a violent felony within the meaning of the Armed Career Criminal Act ("ACCA"). We interpret coterminously the ACCA and the career offender § 4B1.1 provision. United States v. Templeton, 543 F.3d 378, 380 (7th Cir.2008) (noting that the ACCA "violent felony" provision and the Guidelines' career offender "crime of violence" provision are nearly identical and that we apply the same interpretation to both provisions when determining whether a prior conviction triggers the enhancements); see also United States v. Spells, 537 F.3d 743, 749 n. 1 (7th Cir.2008). Thus, 625 ILCS 5/11-204.1 constitutes a crime of violence, and the district court correctly qualified Mr. Womack's aggravated fleeing conviction as a § 4B1.1(a) career offender predicate conviction.
3.
Because we conclude that the 1994 controlled substance conviction was not too old to qualify as a predicate conviction and that the 2005 aggravated fleeing conviction was a crime of violence, thus qualifying it as a predicate conviction, the district court did not err by applying the career offender enhancement in Mr. Womack's guidelines calculation. The sentence imposed was within a correctly calculated guidelines range.
B.
Mr. Womack raises one last challenge to his sentence. He contends that the district court erred when it stated that *434 it could not consider the sentencing disparity between crack and powder cocaine offenses under the Guidelines because Mr. Womack's guidelines range was based on the career offender enhancement. Our recent decisions support Mr. Womack's position.
In United States v. Corner, 598 F.3d 411, 415-16 (7th Cir.2010) (en banc), we overruled a series of decisions that had held that district courts had no discretion to deviate from guidelines sentences based on the § 4B1.1 career offender enhancement. We recognized that, pursuant to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing guidelinesall guidelinesare advisory only. As such, although "28 U.S.C. § 994(h) requires the Sentencing Commission to ensure that the Guidelines for career offenders are at or near the statutory maximum sentences and the [crack/powder cocaine] conversion ratio affects the statutory maximum (and minimum) sentences under 21 U.S.C. § 841," the § 4B1.1 career offender enhancement is still advisory only. Thus, district courts may disagree with the career offender enhancement on policy grounds related to the crack/powder disparity and impose sentences accordingly.
Given the state of our case law at the time, the district court understandably did not fully appreciate its discretion under the Guidelines when it noted during the sentencing hearing that "the crack powder disparity argument" was foreclosed. At the time of Mr. Womack's sentencing, we had not yet decided Corner. The district court should have felt free to factor policy disagreements with the Guidelines into its consideration of the full panoply of sentencing factors. We express, of course, no opinion as to the length of the sentence given to Mr. Womack.
Conclusion
Accordingly, Mr. Womack's sentence is vacated and the case is remanded for resentencing.
VACATED and REMANDED
NOTES
[1] The PSR utilized the 2008 edition of the United States Sentencing Commission Guidelines Manual.
[2] The district court eventually disqualified one other prior conviction as a predicate offense. We do not disturb that holding.
[3] During the sentencing hearing, the district court stated,
[The] Court will consider the propriety in this case of eliminating in some fashion the disparity between penalties for powder and crack cocaine. One would have to suggest, however, in this case if the Court determines that the defendant is a career offender, that the crack powder disparity argument is taken away. What is left is whether a guideline sentence for this defendant is greater than is necessary.
Tr. at 31-32, June 4, 2009.
[4] United States v. Gajdik, 292 F.3d 555, 558 (7th Cir.2002), interpreted the criminal history category provisions. In this case, we are not concerned with the calculation of Mr. Womack's criminal history points, but rather with whether his prior offenses qualify as career offender predicate convictions. The two inquiries are closely related because the definitions for computing criminal history points, see U.S.S.G. § 4A1.2, also are used to count predicate convictions for purposes of U.S.S.G. § 4B1.1, see U.S.S.G. § 4B1.2 n. 3 ("The provisions of § 4A1.2 (Definitions and Instructions for Computing Criminal History) are applicable to the counting of convictions under § 4B1.1."). Thus, Gajdik is directly relevant to our inquiry.
[5] The Sentencing Commission clearly was concerned with "more precisely" defining "the class of recidivists offenders for whom a lengthy term of imprisonment is appropriate and [avoiding] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct." U.S.S.G. § 4B1.1 background (internal quotation marks and citations omitted).
[6] United States v. Burrell, 303 Fed.Appx. 144, 145 (4th Cir.2008), cited Gajdik as support for the different proposition that "time served in a boot-camp style program counts as a form of imprisonment under the sentencing guidelines."
[7] The specific section of the crime of aggravated fleeing of which Mr. Womack was convicted reads,
(a) The offense of aggravated fleeing or attempting to elude a peace officer is committed by any driver or operator of a motor vehicle who flees or attempts to elude a peace officer, after being given a visual or audible signal by a peace officer in the manner prescribed in subsection (a) of Section 11-204 of this Code [unaggravated fleeing], and such flight or attempt to elude: (1) is at a rate of speed at least 21 miles per hour over the legal speed limit . . . .
625 ILCS 5/11-204.1(a)(1). The statute includes other subsets of conduct that may qualify as aggravated fleeing. However, we need not consider the other subsections of the statute because Mr. Womack was convicted specifically of violating 625 ILCS 5/11-204.1(a)(1).
Because 625 ILCS 5/11-204.1(a) also cross-references 625 ILCS 5/11-204 (the unaggravated version of the offense), we provide the text of that statute as well:
Fleeing or attempting to elude a peace officer. (a) Any driver or operator of a motor vehicle who, having been given a visual or audible signal by a peace officer directing such driver or operator to bring his vehicle to a stop, wilfully fails or refuses to obey such direction, increases his speed, extinguishes his lights, or otherwise flees or attempts to elude the officer, is guilty of a Class A misdemeanor. The signal given by the peace officer may be by hand, voice, siren, red or blue light. Provided, the officer giving such signal shall be in police uniform, and, if driving a vehicle, such vehicle shall display illuminated oscillating, rotating or flashing red or blue lights which when used in conjunction with an audible horn or siren would indicate the vehicle to be an official police vehicle. Such requirement shall not preclude the use of amber or white oscillating, rotating or flashing lights in conjunction with red or blue oscillating, rotating or flashing lights as required in Section 12-215 of Chapter 12 [625 ILCS 5/12-215].
625 ILCS 5/11-204.
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696 F.2d 996
Carpenters Local Union No. 1846 of United Broth. ofCarpenters and Joiners of America, AFL-CIOv.Pratt-Farnsworth, Inc.
81-3222
UNITED STATES COURT OF APPEALS Fifth Circuit
1/5/83
E.D.La., 690 F.2d 489
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807 F.2d 997
*1**Lightseyv.U.S.
86-8019
United States Court of Appeals,Eleventh Circuit.
11/24/86
1
S.D.Ga.
AFFIRMED
*
Fed.R.App.P. 34(a); 11th Cir.R. 23
**
Local Rule: 25 case
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707 F.2d 1394
Oliver, Appeal of
81-2958, 81-2959
UNITED STATES COURT OF APPEALS Third Circuit
12/6/82
W.D.Pa., Teitelbaum, J.
AFFIRMED
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916 F.2d 710Unpublished Disposition
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.John Carl ROES, Plaintiff-Appellant,v.Theodore R. ESCHENBURG, Sr., Associate Judge, Defendant-Appellee.
No. 90-1790.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 1, 1990.Decided Oct. 23, 1990.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Herbert F. Murray, Senior District Judge. (CA-90-697-HM)
John Carl Roes, appellant pro se.
D.Md.
DISMISSED.
Before DONALD RUSSELL and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.
PER CURIAM:
1
John Carl Roes appeals an order of the district court which denied his request for appointment of counsel in this civil rights action. We dismiss the appeal for lack of jurisdiction.
2
Under 28 U.S.C. Sec. 1291 this Court has jurisdiction over appeals from final orders. A final order is one which disposes of all issues in dispute as to all parties. It "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945).
3
As the order appealed from is not a final order, it is not appealable under 28 U.S.C. Sec. 1291. Nor is the order appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
4
Finding no basis for appellate jurisdiction,* we dismiss the appeal as interlocutory. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.
5
DISMISSED.
*
Roes has also failed to file a corporate disclosure statement as parties in civil appeals are required to do. 4th CIR.R. 47(c)
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-38,113-02
EX PARTE ANTRON ROMEL BLAYLOCK, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 13,170 IN THE 115TH JUDICIAL DISTRICT COURT
FROM UPSHUR COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of delivery of a
controlled substance and sentenced to sixty-five years' imprisonment.
Applicant contends that his appellate counsel rendered ineffective assistance because counsel
failed to timely file a notice of appeal. Although counsel filed a timely motion for a new trial, the
notice of appeal was filed after the appellate deadline, and Applicant's appeal was dismissed for
want of jurisdiction. Blaylock v. State, No. 06-05-00210-CR (Tex. App. - Texarkana, September
23, 2005, no pet.).
Applicant has alleged facts that, if true, might entitle his to relief. Strickland v. Washington,
466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). In these
circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294
(Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court
shall provide appellate counsel with the opportunity to respond to Applicant's claim of ineffective
assistance of counsel on appeal. The trial court may use any means set out in Tex. Code Crim.
Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection.
Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If
Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether Applicant was denied his right to
a meaningful appeal because Applicant's appellate counsel failed to timely file a notice of appeal.
The trial court shall also make any other findings of fact and conclusions of law that it deems
relevant and appropriate to the disposition of applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The
issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or
deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall
be returned to this Court within 120 days of the date of this order. Any extensions of time shall be
obtained from this Court.
Filed: January 10, 2007
Do not publish
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947 F.2d 1487
Willisv.Abshire*
NO. 91-1348
United States Court of Appeals,Fifth Circuit.
NOV 01, 1991
1
Appeal From: N.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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