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559 F.3d 1374 (2009)
E-PASS TECHNOLOGIES, INC., Plaintiff-Appellant,
v.
3COM CORPORATION (also known as 3Com, Inc.), Palm, Inc., palmOne, Inc. and HandSpring, Inc., Defendants-Appellees, and
Visa International Service Association and Visa U.S.A., Inc., Defendants-Appellees, and
Access Systems Americas, Inc. (formerly PalmSource, Inc.), Defendant-Appellee.
Nos. 2008-1144, 2008-1145, 2008-1146, 2008-1470, 2008-1471, 2008-1472.
United States Court of Appeals, Federal Circuit.
March 20, 2009.
*1375 Daniel M. Cislo, Cislo & Thomas, LLP, of Santa Monica, CA, argued for plaintiff-appellant. With him on the brief were Kelly W. Cunningham and Mark D. Nielsen.
Edward H. Sikorski, DLA Piper U.S. LLP, of San Diego, CA, argued for defendants-appellees 3Com Corporation, et al. With him on the brief were Vincent S. Lam; and M. Elizabeth Day, of East Palo Alto, CA.
Madison C. Jellins, Alston and Bird LLP, of Palo Alto, CA, argued for defendants-appellees Visa International Service Association, et al. With her on the brief was Julie J. Han, Townsend and Townsend and Crew LLP, of Palo Alto, CA.
Andrew T. Oliver, Townsend and Townsend and Crew LLP, of Palo Alto, CA, argued for defendant-appellee Access Systems Americas, Inc. With him on the brief was Mark D. Rowland, Ropes & Gray LLP, of Palo Alto, CA.
Before BRYSON, LINN, and PROST, Circuit Judges.
Opinion for the court filed by Circuit Judge LINN. Dissenting opinion filed by Circuit Judge BRYSON.
*1376 LINN, Circuit Judge.
On the merits in this appeal, E-Pass Technologies, Inc. ("E-Pass") challenges two final determinations of the U.S. District Court for the Northern District of California (i) concluding that three related cases filed by E-Pass were exceptional under 35 U.S.C. § 285 and (ii) awarding attorneys' fees. E-Pass Techs., Inc. v. 3Com Corp., Nos. 00-CV-2255, 03-CV-4747, 04-CV-0528 (N.D.Cal. Nov. 21, 2006) ("Decision"); E-Pass Techs., Inc. v. 3Com Corp., Nos. 00-CV-2255, 03-CV-4747, 04-CV-0528, 2007 WL 4170514 (N.D.Cal. Nov. 14, 2007). We affirm those rulings today in a separate Judgment under Federal Circuit Rule 36. This opinion addresses Access Systems Americas, Inc.'s (formerly known as PalmSource, Inc.) ("PalmSource") motion for sanctions, in which it argues that E-Pass's appeal is frivolous as it pertains to PalmSource. We agree. Consequently, we grant the motion, but award a different sanction than the one requested.
I. BACKGROUND
E-Pass is the assignee of U.S. Patent No. 5,276,311 ("the '311 patent"), which is directed to a "method and device for simplifying the use of a plurality of credit cards, or the like." This litigation commenced in February 2000, when E-Pass filed suit against 3Com Corporation and Palm, Inc. (collectively, "the Palm Defendants"),[1] alleging infringement of the '311 patent. During the course of the litigation, the district court construed the term "electronic multi-function card" and granted summary judgment of non-infringement based on that construction. E-Pass appealed. We reversed the district court's grant of summary judgment, substituted a construction for the "electronic multi-function card" limitation, and remanded for further proceedings in light of the new construction. E-Pass Techs., Inc. v. 3Com Corp., 343 F.3d 1364, 1365 (Fed.Cir.2003) ("E-Pass I").
E-Pass filed two new related suits in the same court following E-Pass I. In October 2003, it filed suit against Visa International and Visa U.S.A. for infringement of the '311 patent. In February 2004, it also filed suit against PalmSource for infringement of the '311 patent. The district court grouped these cases together as related, and subsequently granted summary judgment of non-infringement for all defendants. E-Pass again appealed the district court's grant of summary judgment. This time we affirmed, agreeing with the district court that E-Pass failed to provide evidence showing that any defendant practiced all the steps of the claimed method. See E-Pass Techs., Inc. v. 3Com Corp., 473 F.3d 1213, 1221 (Fed.Cir.2007) ("E-Pass II").
Following entry of judgment but prior to E-Pass II, the district court, on the defendants-appellees' motions, deemed each of the three actions exceptional under 35 U.S.C. § 285 and awarded attorneys' fees. Although the district court analyzed separately why each of the three actions filed and maintained by E-Pass was exceptional, its ultimate rationale centered on the adequacy of E-Pass's pre-filing investigations and its repeated misconduct throughout the litigation. E-Pass's appeal on the merits challenged the district court's exceptionality findings and awards of attorneys' fees. PalmSource argues that E-Pass's appeal is frivolous as it relates to PalmSource based on E-Pass's failure to identify a reversible error of the district *1377 court and its repeated misrepresentations to this court.
II. DISCUSSION
"If a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee." Fed. R.App. P. 38. An appeal can be "frivolous as filed" and/or "frivolous as argued." An appeal is frivolous as filed "when an appellant grounds his appeal on arguments or issues that are beyond the reasonable contemplation of fair-minded people, and no basis for reversal in law or fact can be or is even arguably shown." Abbs v. Principi, 237 F.3d 1342, 1345 (Fed.Cir.2001) (internal quotations omitted). An appeal is frivolous as argued "when an appellant has not dealt fairly with the court, [or] has significantly misrepresented the law or facts." Id.
We consider this appeal, as it relates to PalmSource, frivolous. Although there is a host of reasons that collectively support our reaching this conclusion, we focus our discussion on two. First, E-Pass "fail[s] to explain how the trial court erred or to present cogent or clear arguments for reversal." See id. at 1345; see also Refac Int'l, Ltd. v. Hitachi, Ltd., 921 F.2d 1247, 1256 (Fed.Cir.1990) (sanctioning party that failed to point to any basis for reversal in the lower court's decision). Second, E-Pass has made significant misrepresentations of the record and the law to the court. See Abbs, 237 F.3d at 1345; see also Romala Corp. v. United States, 927 F.2d 1219, 1224 (Fed.Cir.1991) (sanctioning party for, among other things, distorting the lower court's decision). We address each in turn.
We begin by noting E-Pass's failure to clearly or cogently identify a ground for reversal of the district court's decision as to PalmSource. The district court found, after concluding that there was no evidence to support E-Pass's case against the Palm Defendants, see Decision at 40-41, that E-Pass's case against PalmSource was even weaker:
The direct case against the Palm OS software[[2]] has the same failures [as the case against Palm Defendants]. Any notion that Palm OS'[s] role as an enabler provides indirect evidence as to its indirect infringement is an even greater failure as it has never been suggested that Palm OS software somehow enables the instruction materials for the PalmOne devices.
Id. at 41. After summarizing the litigation record, the district court found that "[t]he nonexistence of any direct infringement evidence to be presented at the time of summary judgment leads inexorably to the conclusion that there was no such evidence known to [E-Pass] at the time these cases were filed." Id. at 44. The district court also found, as it did with respect to each of the cases on appeal, that E-Pass engaged in litigation misconduct. Among other things, the district court found E-Pass guilty of misconduct in the case against PalmSource based on its ever-changing allegations of infringement, id. at 29, its refusal to supplement infringement contentions, id. at 30-31, and its opposition to summary judgment on the basis of lack of discovery and its subsequent failure to take the discovery it had requested and received, id. at 32; see also id. at 40 ("Reviewing the entire history of the litigation, it is clear to this Court that E-Pass's strategy was to delay and obfuscate in an *1378 attempt to keep the case alive as long as possible and to stave off summary judgment."). The totality of these circumstances i.e., the inadequacy of E-Pass's pre-filing investigation and misconduct during the ensuing litigationled the district court to find the action against PalmSource exceptional and award attorneys' fees.
Despite appealing the district court's exceptionality determination as to PalmSource, E-Pass virtually ignores PalmSource on appeal. Its brief focuses almost entirely on the other defendants-appellees, and in particular, whether the district court erred in finding that infringement did not occur by virtue of two eventsi.e., the January 2001 CES demonstration and the March 2001 Visa in-house demonstrationboth of which occurred before PalmSource existed, and neither of which were asserted in E-Pass's brief to apply to PalmSource.[3] Indeed, E-Pass's brief leaves the inescapable conclusion that its strategy is to impugn PalmSource by association. It repeatedly makes generalized accusations against the "Defendants" or "Appellees" without acknowledging, as the district court correctly did, that the infringement allegations against these parties were different. Moreover, nowhere does E-Pass specifically challenge any finding of the district court relating to litigation misconduct in the case against PalmSource. Notably, even after PalmSource put E-Pass on notice of the alleged frivolousness of E-Pass's appeal by requesting sanctions in its brief, E-Pass still failed to clearly or cogently explain in its reply brief why the district court's findings in the PalmSource litigation were clearly erroneous or an abuse of discretion. The dissent finds that E-Pass raised at least one reasonable ground for appeal against PalmSourcethe award of fees for periods prior to litigation misconduct. With all due respect to our colleague in dissent, we view the record differently. E-Pass failed to challenge any of the district court's factual findings, and identified no other basis for finding an abuse of discretion in calculating fees. Those findings included the conclusion that E-Pass's case against PalmSource had "a litigation history of questionable pre-filing investigation," Decision at 45, which supports an award of fees from the beginning of the case.
We next note E-Pass's multiple misrepresentations to the court. The first significant misrepresentation relates to the record. As we discussed above, the district court's determination that the case against PalmSource was exceptional was based in part upon its finding that there was at least "a serious question" as to E-Pass's pre-filing investigation. See Decision at 40-41; see also id. at 44 ("The non-existence of any direct infringement evidence to be presented at the time of summary judgment leads inexorably to the conclusion that there was no such evidence known to [E-Pass] at the time these cases were filed."). Nevertheless, in its opening brief E-Pass boldly contended that "[t]he District Court specifically found that E-Pass's pre-filing investigation was sufficient to avoid making the case exceptional." *1379 E-Pass's Opening Br. at 19; see also id. at 25, 29 (repeating this assertion). This particular statement appears in the "Statement of Facts" section in a discussion that does not distinguish between any of the defendants-appellees, but collectively refers to them all as the "Defendants." Notwithstanding E-Pass's representations to the contrary, the district court did not, in fact, find that E-Pass's pre-filing investigation was sufficient as to PalmSource or for that matter, the Palm Defendants, or even Visa U.S.A. Rather, the district court found, solely with respect to Visa International (one of seven defendants-appellees), in a section of the decision entitled "Visa International," that "[w]hile E-Pass'[s] minimalist pre-filing investigation in and of itself, may not make the case exceptional, when combined with its litigation misconduct, this case becomes one which is meritorious of an award of attorney fees." Decision at 26.
This misrepresentation of the district court's decisionexacerbated by repetitionspeaks for itself. It is worth observing, however, that not only does E-Pass attempt to paint the district court's finding as applying to all defendants-appellees when it clearly does not, it also mischaracterizes the finding itself. The district court did not, as E-Pass argues, "specifically f[i]nd" that E-Pass's pre-filing investigation was sufficient as to any defendant-appellee, including Visa International. Rather, the district court merely found that whether or not the "minimalist pre-filing investigation" conducted was sufficient, any question as to its sufficiency was overcome by E-Pass's numerous acts of litigation misconduct.
Another misrepresentation relates to the legal standard for exceptionality identified by E-Pass. In its opening brief, E-Pass argued that the cases it filed against the defendants-appellees were not exceptional because its claims of infringement were "at least reasonably disputable." E.g., E-Pass's Opening Br. at 29. In its reply brief, however, E-Pass went further, arguing that the cases were not exceptional because it did not bring the litigation in bad faith and the litigation was not objectively baseless. In support of its argument, E-Pass stated unequivocally that "[t]he standard for an exceptional case finding is whether the case was brought in subjective bad faith and the litigation was objectively baseless." E-Pass's Reply Br. at 29 (citing Serio-US Indus., Inc. v. Plastic Recovery Techs. Corp., 459 F.3d 1311, 1322 (Fed.Cir.2006)); see also id. at 30 ("Therefore, any shift in legal theory itself does not make this case exceptional since it was not done in subjective bad faith nor was it objectively baseless."). This is not the law. Serio-US Industries, cited by E-Pass for this erroneous proposition, actually begins with an important condition: "Absent misconduct in the litigation or in securing the patent, a trial court may only sanction the patentee if both the litigation is brought in subjective bad faith and the litigation is objectively baseless." 459 F.3d at 1322 (emphasis added). E-Pass made this same misrepresentation earlier, in its opening brief, by citing Brooks Furniture Manufacturing, Inc. v. Dutailier International, Inc., 393 F.3d 1378, 1384 (Fed.Cir.2005), for the proposition that an infringement action is not exceptional so long as the infringement "can reasonably be disputed." E-Pass's Opening Br. at 28. However, E-Pass omits Brooks' recitation of the same condition stated in Serio-US Industries, of "[a]bsent misconduct in conduct of the litigation." Brooks, 393 F.3d at 1381.
E-Pass's omission of this condition might be of lesser consequence if litigation misconduct were not at issue in this case. But litigation misconduct is a central issue the district court specifically concluded that E-Pass had engaged in repeated *1380 litigation misconduct, including, in particular, its shifting legal theories. See, e.g., Decision at 29 ("E-Pass's allegations of inducing infringement against PalmSource have also changed over time."); id. at 33 ("Throughout the litigation, defendants were forced to expend resources merely to attempt to have E-Pass clearly define its claims."). It is difficult to view E-Pass's omission of the critical portion of the legal standard applicable to it as anything other than an attempt to mislead the court. Like E-Pass's misrepresentation of the district court's findings, this selective citation of the law is exacerbated by repetition.
For all of the reasons set forth above, taken collectively, we conclude that E-Pass's appeal as to PalmSource is frivolous. Assuming for the sake of argument that E-Pass did make a non-frivolous (yet ultimately unmeritorious) argument, it would not change our determination that the appeal as a whole is frivolous. "We have held that even the presence of a few non-frivolous arguments does not prevent an appeal as a whole from being deemed frivolous." Romala, 927 F.2d at 1224 (citing In re Perry, 918 F.2d 931, 934-35 (Fed.Cir.1990) ("When an appeal is a `complete loser,' most of which is `patently groundless,' sanctions should be imposed under Rule 38.")). The tactics employed by E-Pass in this appeal, including both the misrepresentations made and the failure to cogently identify any reversible error of the district court, far outweigh any non-frivolous argument that may be lurking in its briefs.
Consequently, we grant PalmSource's motion for sanctions, although not the amount requested by PalmSource.[4] Rather, we impose a sanction equal to the amount of fees PalmSource incurred in defending this appeal, including the filing of the motion for sanctions. Accordingly, PalmSource is directed to file with this court a claim for reasonable attorneys' fees incurred in the defense of this appeal, including the motion for sanctions, together with supporting documentation, within fifteen (15) days of the date of this opinion. E-Pass shall have five (5) days from the date PalmSource files its submission with the court to file any objection thereto. "[S]ince our conclusion of frivolity rests not only on the filing of the appeal but also on the frivolous nature of the advocacy in support of it, we consider the attorney who wrote and signed the briefs to be equally responsible." State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1582 (Fed. Cir.1991). As a result, we hold E-Pass's counsel jointly and severally liable for the sanctions.
III. CONCLUSION
PalmSource's motion for sanctions is GRANTED, and a sanction of PalmSource's reasonable attorneys' fees is awarded against E-Pass and its counsel, jointly and severally.
BRYSON, Circuit Judge, dissenting.
While I do not take issue with most of the majority's criticisms of the appellant's presentation in this court, I would not impose sanctions. It is true that E-Pass did not do a good job of identifying those *1381 issues on appeal that apply to Palmsource or explaining why particular issues apply to Palmsource despite its seeming lack of involvement in the underlying transactions. However, there is at least one issue as to which E-Pass specifically named Palmsource and as to which it is reasonable for E-Pass to pursue an appeal against Palmsource. That is the issue of whether the district court abused its discretion in awarding fees for periods prior to the alleged misconduct by E-Pass on which the fee award was based. On page 37 of its opening brief, E-Pass asserted that "[t]he District Court's award of PalmSource's and the Visa Defendants' attorneys' fees starting from the inception of their respective cases was unreasonable and an abuse of discretion." Instead of that fee award, E-Pass argued (page 38), "[t]he District Court should have apportioned the fees and awarded only those fees incurred after E-Pass should have dropped the suit, presumably once E-Pass failed to uncover instances of direct infringement." I disagree with the majority to the extent that it charges that E-Pass failed to identify any reasonable ground for appeal as to Palmsource. As the above-quoted passage indicates, E-Pass identified one such ground. Although we ultimately rejected that argument on the merits, I do not regard it as so frivolous that it warrants the imposition of sanctions.
As to the misrepresentations in E-Pass's brief, I agree that certain statements in the brief strayed beyond the limits of fair advocacy and into the realm of falsehood. In particular, the district court's comment, with respect to Visa International, that "E-Pass' minimalist pre-filing investigation in and of itself, may not make this case exceptional" cannot fairly be characterized as a finding by the court that, as E-Pass puts it, "E-Pass's pre-filing investigation was sufficient to avoid making the case exceptional." The mischaracterization is particularly problematic because, even though the district court's statement applied only to Visa International, E-Pass at one point included its characterization of the district court's statement in a passage that references both Palmsource and the Visa defendants.
The other instances of misleading conduct pointed out by the majority are not as serious. The majority faults E-Pass for providing the court with a truncated version of the standard to be used in determining whether a district court may sanction a party by imposing attorney fees. It is true that at page 29 of its reply brief E-Pass used a shorthand version of the standard that omitted an important condition. But earlier in the same reply brief (page 15) E-Pass cited the same authority, and in that reference it set forth the standard with the condition expressly included. It plainly would have been preferable to include the condition in both places, but the inclusion of the condition in connection with the first reference to the cited authority mitigates the effect of omitting it in the later reference.
The majority asserts that E-Pass made the same mistake on page 28 of its opening brief when it argued that "[s]o long as the infringement `can reasonably be disputed,' the infringement action is not exceptional in terms of section 285." That proposition was included in a portion of E-Pass's opening brief that was directed to the question whether litigation was brought in bad faith, and E-Pass cited a case that addressed that issue. See Brooks Furniture Mfg., Inc. v. Dutailier Int'l, Inc., 393 F.3d 1378, 1381 (Fed.Cir. 2005). In the portion of that case cited by E-Pass, we stated: "Bringing an infringement action does not become unreasonable in terms of [section] 285 if the infringement can reasonably be disputed." Id. at 1384. Although it is true that the Brooks Furniture case articulated the complete *1382 exceptional case standard including the "[a]bsent misconduct in the litigation" conditiona few pages before the passage quoted by E-Pass, I do not consider E-Pass's citation to Brooks Furniture in the context of the issue being discussed at that point in the brief to be misleading. That is particularly so inasmuch as E-Pass's opening brief elsewhere (pages 24 and 37) acknowledged that litigation misconduct is a proper basis for an exceptional case determination and cited another one of our cases, Beckman Instruments, Inc. v. LKB Produktor AB, 892 F.2d 1547 (Fed.Cir.1989), for that proposition.
As I see it, then, the question for us is whether sanctions should be imposed because of an unduly aggressive characterization of a comment by the district court, a failure to provide the full text of an applicable legal test on the second occasion that the test was set forth, and a failure to explain whether only one issue on appeal was applicable to Palmsource, or if more than one issue was applicable to Palmsource, what the legal basis for PalmSource's liability would be. Accepting that in those regards E-Pass's briefs on appeal fell short of the standards we expect of counsel in this court, I nonetheless conclude that the shortfall is not so egregious as to call for the imposition of sanctions.
NOTES
[1] The Palm Defendants also include palmOne, Inc. and HandSpring, Inc., which were later sued in the action involving PalmSource.
[2] Palm OS is software owned by PalmSource and licensed for use in the Palm handheld devices alleged to infringe the '311 patent.
[3] In response to PalmSource's motion for sanctions, E-Pass argued, for the first time, that "the 2001 CES demonstration relates to PalmSource since PalmSource admits that, upon its formation in 2001, it obtained from Palm `substantially all' of the liabilities related to Palm's then-existing operating system and software business." E-Pass's Resp. to PalmSource's Mot. for Sanctions at 5. It is not entirely clear how this helps E-Pass, nor why if it was so important, E-Pass failed to raise it in its briefs. Because E-Pass failed to raise it in its opening brief, we deem the issue waived. SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed.Cir.2006) ("[A]rguments not raised in the opening brief are waived.").
[4] PalmSource requests "an amount equal to the amount that E-Pass has paid its attorneys since the date upon which PalmSource's judgment would have become final and unappealable absent this appeal." PalmSource's Motion for Sanctions at 3-4. Whatever the motivation might have been for PalmSource to make such an unusual request, we see no valid reason here to award a sanction based on fees paid to opposing counsel. See State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1581 (Fed.Cir.1991) (noting amount of sanction under Rule 38 is within our discretion).
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413 F.2d 148
UNITED STATES of America, Appellee,v.Michael Leon DAVIS, Appellant.
No. 12915.
United States Court of Appeals Fourth Circuit.
Argued March 3, 1969.
Decided July 22, 1969.
George S. Daly, Jr., Charlotte, N. C., Court-appointed counsel, for appellant.
William Medford, U. S. Atty. (Joseph R. Cruciani, Asst. U. S. Atty., on brief), for appellee.
Before WINTER, CRAVEN and BUTZNER, Circuit Judges.
CRAVEN, Circuit Judge:
1
Michael Leon Davis was tried by the district court, without a jury, under an indictment for violation of 50 U.S.C. App. § 462 and, upon conviction of the offense of refusing induction into the Armed Services, was sentenced by the district judge to two years' imprisonment. From the judgment and sentence he appeals, and presents for our consideration ten questions that are said to arise on the record. We think we need decide only two:
2
(1) Whether Davis lost his right to contest the validity of his 1-A classification in the district court by failing to appeal that classification to the Appeals Board;
3
(2) Whether he was entitled as a matter of right to trial by jury.
4
Davis, a member of the Jehovah's Witness sect, registered with Local Board No. 61 at Charlotte, North Carolina, on September 12, 1966, at which time he filled out SSS Form 100 claiming that he was a minister and entitled to the ministerial exemption. He later completed SSS Form 150 claiming the status of conscientious objector. On March 16, 1967, Davis was classified 1-A, and according to the testimony of the executive secretary of the local board a Notice of Classification, SSS Form 110, was mailed to the registrant. Ten days earlier, on March 6, 1967, Local Board Memorandum No. 82 was issued to local draft boards by General Hershey. This memorandum provided that the board shall, at the time the Notice of Classification is mailed, notify the registrant of the name of the government appeal agent and inform him that the appeal agent is available to advise him on matters relating to his legal rights, including his right of appeal.1
5
The testimony of the board's executive secretary at the trial tended to establish that the board had not complied with this memorandum directive and that SSS Form 110 mailed to Davis did not advise him of the available assistance of an appeal agent.
6
Davis did not appeal his classification, and after passing his physical examination, he was, on May 10, 1968, ordered to report for induction. He reported as ordered on May 27, 1968, refused to step forward, and stated that he was refusing induction.
7
At the trial below, the registrant attempted to direct the court's attention to his selective service file and the material contained in it tending to support both conscientious objector status and ministerial status. Counsel for the registrant urged upon the district court the failure of the local board to comply with Memorandum No. 82 and urged that in these circumstances the court was under a duty to examine the file to consider whether the 1-A classification had some "basis in fact." Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59 (1947); Estep v. United States, 327 U. S. 114, 66 S.Ct. 423, 90 L.Ed. 567 (1946). The district judge accepted the position taken by the Assistant United States Attorney that "this court does not examine the file to determine whether or not there was a basis in fact for the classification."
8
Whichever the reason, whether the court believed it never had a duty to review selective service files, or whether it thought Davis was not entitled to the limited review permitted by Estep v. United States, supra, because of his failure to appeal his classification administratively, we think it was error to refuse to examine the file. In our view, the local board's non-compliance with Memorandum No. 82 presented exceptional circumstances excusing Davis' failure to appeal administratively.
9
Some of the sanctity that the inferior federal courts have seemed to put around the judge-made doctrine of exhaustion of administrative remedies has, in the context of selective service cases, been removed by the very recent opinion of the United States Supreme Court in McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (May 26, 1969).
10
McKart held that a registrant claiming the status of "sole surviving son" is entitled to challenge in the district court the validity of his 1-A classification by the board although he failed to appeal his classification and failed to offer any excuse whatsoever for his disregard of the administrative appeal procedure. Although McKart indicated that cases involving ministerial or conscientious objector claims "may well have to be pursued through the administrative procedures provided by the Selective Service laws,"2 we think what was said there is not without application here.3
11
Mr. Justice Marshall speaking for a unanimous Court said: "In Selective Service cases, the exhaustion doctrine must be tailored to fit the peculiarities of the administrative system Congress has created."4 And speaking of Falbo v. United States, 320 U.S. 549 (1944), and Estep v. United States, supra, insofar as they concern the exhaustion doctrine, Mr. Justice Marshall went on to say: "Neither those two cases, nor any of the other cases decided by this Court, stand for the proposition that the exhaustion doctrine must be applied blindly in every case."5
12
Mr. Justice White, concurring in the result in McKart, made it quite plain, we think, that the inferior federal courts are not to blindly or automatically refuse judicial review of the scope permitted by Estep v. United States, supra, without considering the special circumstances of each case that may excuse a registrant's failure to exhaust appellate remedies within the Selective Service System. He noted that omission of the administrative appellate step is not at all the same thing as permitting a registrant to by-pass consideration of his contention by his local board. "Undoubtedly, Congress could require such exhaustion [of appellate remedies] as a prerequisite to judicial review, see, e. g., Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944), but Congress has not chosen to do so."6
13
We think McKart undermines the rule in this and other circuits that in conscientious objector and ministerial status cases the district court ordinarily need not examine the selective service file to determine whether or not there exists a basis in fact for the 1-A classification unless the registrant has appealed to the Administrative Appeal Board.7 However that may be, it is now well established that special circumstances may excuse the registrant from the ordinary consequences of his failure to administratively appeal and that the district court must consider whether the omission should be excused.8
14
We hold that where a registrant has not been afforded by the board information or assistance required to be given him to assist him in deciding whether to appeal administratively, he is not subsequently barred in a criminal prosecution from questioning the classification.
15
We think that the failure of the board to inform Davis that a Government Appeal Agent was available to advise him on matters relating to his legal rights, including his right of appeal, and that the board clerk would arrange a meeting with the Appeal Agent if Davis desired it, denied Davis a substantial right, the value of which is not now ascertainable. We cannot assume that the advice of an Appeal Agent would have been worthless to Davis, and without that assumption we cannot hold the failure to advise him harmless. If an Appeal Agent does nothing more than advise a registrant that he may lose his right to contest his classification when he is criminally prosecuted in the district court by failure to administratively appeal, it would seem to be worthwhile. Notice of Classification Form SSS 110 did not here so advise the registrant.
16
Since Davis was denied the assistance and advice that he was entitled to have under Local Board Memorandum 82, we think the government is estopped to insist that his failure to do the very thing he should have been advised about (appeal) bars his right to judicial review of his classification. Under the circumstances, Davis did not forfeit his right in the criminal proceeding in the district court to have the district judge examine the file to see whether there was a basis in fact for the 1-A classification.9
17
One of the essential elements of guilt in refusing induction is the validity of the 1-A classification. When that classification is assailable, as here, it is the duty of the district judge to examine the file to see if it is founded upon some basis in fact. He may, of course, be assisted by the United States Attorney and defense counsel, who may quickly, in most cases, direct his attention to those parts of the file germane to the contention. Where no such examination occurs in the district court in a case where it is required, as here, the validity of the 1-A classification is simply undetermined, and since that validity is one of the essential elements of the offense charged, the conviction cannot stand.
18
We have carefully considered whether we ought to grant Davis a new trial and remand to the district court with instructions to the district judge to examine the file to determine whether a basis in fact exists for the classification. But for two reasons we are persuaded it is better to reverse and remand for entry of a judgment of acquittal: (1) A new trial will not accord Davis the benefit he was entitled to have under Memorandum No. 82. He cannot now be given the benefit of the advice of an Appeals Agent and the possible benefit of resort to the administrative appeal. From the cases which have come before us, the possibility has been ofttimes demonstrated that the Appeal Board may conclude differently from the local board upon a record on which, under our limited scope of review, we would be required to sustain either classification. (2) From the point of view of the government, no special benefit flows from the right to try Davis again on this indictment, for he may at any time again be reclassified10 and, if there should be a basis in fact for a 1-A classification, may be again ordered to report for induction and, upon refusal, may be reindicted.
19
At arraignment Davis, through his counsel, asked the court for trial by jury. Apparently on the theory that it had never been done before, the request was denied. Davis did not waive trial by jury, either informally or in accordance with Rule 23 of the Federal Rules of Criminal Procedure which requires that any such waiver be in writing. The Sixth Amendment provides that an accused shall enjoy the right to trial by an impartial jury in all criminal prosecutions. Whatever may be the difficulty in drawing the line between petty misdemeanors, misdemeanors and felonies, we think it beyond argument that one who is accused of a felony for which the punishment may be as much as five years' imprisonment and $10,000 fine may not be denied the right to trial by jury.
20
The government urges, however, that there is nothing for a jury to try. Davis, through his counsel in open court, stipulated that he failed and refused to step forward and refused induction into the Armed Forces. The answer to the conceptual difficulty — the contention that there is nothing for a jury to try — is that there is always the issue of guilt. Moreover, we anticipate no great increase in demands for jury trials in such cases. Because the question of the validity of a classification is not for jury determination, Cox v. United States, supra, the district judge may peremptorily instruct the jury that they will not consider the question of classification, and that if they believe the stipulation or the testimony, as the case may be, as to refusal of induction, it would be their duty to return a verdict of guilty. Even so, Davis and others like him are entitled to hear, if they wish, the verdict from a jury of their peers rather than from the court and to hope, however irrationally, for acquittal.
21
Reversed.
Notes:
1
The entire memorandum reads as follows:
"LOCAL BOARD MEMORANDUM NO. 82
"ISSUED: March 6, 1967
"SUBJECT: NOTICE TO REGISTRANTS RE GOVERNMENT APPEAL AGENTS.
"1. Whenever a local board places a registrant in either Class I-A, I-A-O, or I-O, it shall, at the time the Notice of Classification (SSS Form 110) is mailed, also notify the registrant of the name of the Government Appeal Agent and inform the registrant that the Government Appeal Agent is available to advise him on matters relating to his legal rights, including his right of appeal.
"2. If the registrant desires to consult the Government Appeal Agent, he should notify the local board clerk, who will arrange a time and place for such meeting.
"3. When the Government Appeal Agent is not available at the time, and the registrant wishes advice, the local board clerk will arrange a meeting with an Associate Government Appeal Agent or an Advisor to Registrants."
/s/ "Lewis B. Hershey,
"Director"
2
McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194
3
We recently refused to consider a registrant's claim to conscientious objector status because of failure to administratively appeal and failure to offer any excuse for such failure. Our decision was vacated with instructions to reconsider in the light ofMcKart. United States v. McNeil, 401 F.2d 527 (4th Cir.), vacated and remanded, 395 U.S. 463, 89 S.Ct. 2025, 23 L.Ed.2d 446 (June 9, 1969).
4
McKart v. United States,supra, at 195, 89 S.Ct., at 1663.
5
Id. at 200, 89 S.Ct., at 1666.
6
Id., at 206, 89 S.Ct., at 1669.
7
United States v. Crowley, 405 F.2d 400 (4th Cir. 1968); United States v. Grundy, 398 F.2d 744 (3d Cir. 1968); Mahan v. United States, 396 F.2d 316 (10th Cir. 1968); Campbell v. United States, 396 F.2d 1 (5th Cir. 1968); Edwards v. United States, 395 F.2d 453 (9th Cir. 1968); DuVernay v. United States, 394 F.2d 979 (5th Cir. 1968); United States v. Dyer, 390 F.2d 611 (4th Cir. 1968); Dunn v. United States, 383 F.2d 357 (1st Cir. 1967); Thompson v. United States, 380 F.2d 86 (10th Cir. 1967)
8
McKart v. United States, 395 U.S. 185, 89 S.Ct. 1657, 23 L.Ed.2d 194 (concurring opinion of Mr. Justice White); Lockhart v. United States, 1 S.S.L.R. 3204 (9th Cir. No. 21,311, October 23, 1968); Mahan v. United States,supra; Thompson v. United States, supra; Osborn v. United States, 319 F.2d 915 (4th Cir. 1963); Donato v. United States, 302 F.2d 468 (9th Cir. 1962).
9
"[It] is fully established that we may make our own independent examination of the record to ascertain the existence of a basis in fact for the classification." United States v. James (4th Cir. No. 12,919 June 26, 1969). Although we think it unnecessary to disposition of this case, we note that the file discloses nothing that remotely suggests lack of good faith in Davis' claimed status as a conscientious objector. Nor do we find any indication of board rejection of credibility
10
We think reclassification necessary in order to protect his right to an administrative appeal and the assistance of a government appeal agent — in the event his claimed status should be again denied by his local board
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373 F.Supp.2d 873 (2005)
UNITED STATES of America Plaintiff,
v.
Brian QUALLS Defendant.
No. 03-CR-194.
United States District Court, E.D. Wisconsin.
June 11, 2005.
*874 Daniel H. Sanders, Erica N. O'Neil, United States Department of Justice, Milwaukee, WI, for Plaintiff.
Kathleen M. Quinn, Hunt & Quinn SC, Milwaukee, WI, for Defendant.
SENTENCING MEMORANDUM
ADELMAN, District Judge.
Defendant Brian Qualls pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine. 18 U.S.C. §§ 841(a)(1), (b)(1)(C) & 846. The pre-sentence report (PSR) calculated his base offense level ("OL") as 30 based on drug weight and his criminal history category ("CHC") as IV under the sentencing guidelines. However, because he had two prior drug trafficking convictions, the PSR designated defendant a career offender under U.S.S.G. § 4B1.1, which raised his base OL to 34 and his CHC to VI. Following a reduction for acceptance of responsibility, § 3E1.1, the imprisonment range was 188-235 months.[1] Neither side objected to these guideline calculations. However, defendant requested a non-guideline sentence of 108 months, while the government requested a sentence at the low end of the range.[2]
I. SENTENCING PROCEDURE
In imposing sentence, I consider the factors set forth in 18 U.S.C. § 3553(a), which include:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the advisory guideline range;
(5) any pertinent policy statements issued by the Sentencing Commission;
(6) the need to avoid unwarranted sentence disparities; and
(7) the need to provide restitution to any victims of the offense.
My task is to "impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)." United States v. Galvez-Barrios, 355 F.Supp.2d 958, 960 (E.D.Wis.2005). I typically group the § 3553(a) factors *875 into three categories: the nature of the offense, the history of the defendant, and the needs of the public and any victims. I analyze each category and in so doing consider the specific statutory factors under § 3553(a), including the advisory guidelines. United States v. Ranum, 353 F.Supp.2d 984, 989 (E.D.Wis.2005).
II. APPLICATION
A. Nature of Offense
Defendant was involved in selling cocaine over a period of about three years. Although the overall conspiracy of which he was a member was large, with about 20 members, and moved over 150 kilograms of cocaine, defendant dealt solely with a single co-defendant, Darylvocia Greer, and not any of the others. He was in the second lowest tier as far as drug weight is concerned, with relevant conduct of 3.5 to 5 kg of cocaine. There was no indication that he possessed a weapon or engaged in any violence in connection with the offense. Neither was there evidence that he recruited anyone else to join the conspiracy. Rather, it appeared that he bought cocaine from Greer and had just a few regular customers of his own. Thus, although the offense was serious, it was not aggravated.
Further, when confronted by the police defendant admitted his activities, assisted officers in their search of his residence, and later provided the names of his customers and a previous source of cocaine.[3] In his post-arrest statement, defendant indicated that he was glad he was arrested because it removed a huge burden. He further stated that he had been doing positive things, trying to obtain his high school degree, and attempting to get out of the drug lifestyle.
B. Character of Defendant
Defendant was 28 years old and had a serious criminal record. He was convicted of drug dealing in state court in 1995, 1999 and 2004, although the 2004 conviction was considered "part of the instant offense." See U.S.S.G. § 4A1.2(a)(1). He had various loitering convictions suggesting further involvement in the drug trade, though these did not score criminal history points. He also had a felony bail jumping conviction, as well as two pending criminal cases, hit & run of an occupied vehicle and felon in possession of a firearm. He was at the time of sentencing serving an eight year state prison term on the latest drug case, to be followed by eight years of extended supervision, with a one year consecutive confinement term and two years of extended supervision on the bail jumping conviction.
Defendant had little employment record to speak of. He reported several jobs, but the PSR writer was unable to confirm them.
Defendant also had a problem with marijuana abuse. However, he was given a chance to deal with that problem while on parole on his second state drug case but was terminated from the program for poor attendance.
Defendant was not married but was in a long term relationship with Tionne Reed, who had positive things to say about him. He had a nine year old child from a previous relationship and owed $22,694 in back child support. Defendant appeared to be trying to maintain contact with his son, which is commendable, though, as he admitted, it is hard to be much of a father from prison.
*876 On the positive side, defendant continued his efforts to obtain his HSED while incarcerated in the state prison system. He was also taking computer classes and working as a janitor at New Lisbon Correctional Center. This suggested that he was thinking about the future.
C. Needs of Public
There was no evidence that defendant was physically dangerous. However, there was a clear risk of recidivism. There was also a need for a substantial period of confinement to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; and to protect the public from further crimes of the defendant. His educational or vocational training needs could be, and apparently were being met, in a confined setting. He failed in addressing his issues in the community. There was no restitution due.
D. Consideration of Guidelines and Imposition of Sentence
The guidelines called for a term of 188-235 months, with an adjustment to award credit for time served under U.S.S.G. § 5G1.3(b). I concluded that, under all of the circumstances, this range was somewhat greater than necessary to satisfy the purposes of sentencing. However, I did not believe that the 108 month sentence defendant suggested was sufficient.
Defendant first noted that he was already serving a lengthy state sentence based in part on the same conduct. That was true, but the instant offense encompassed more conduct than did the state case, and defendant was under the guidelines entitled to an adjustment and a fully concurrent sentence to account for the overlap. See U.S.S.G. § 5G1.3(b) & cmt. n. 2. I could not agree that the lengthy period of extended supervision that would follow defendant's release from state prison was sufficient to protect the public had I imposed the nine year sentence defendant requested. Defendant failed in the community before.
Neither did I believe it appropriate to impose a non-guideline sentence to avoid disparity with the two co-defendants who had already been sentenced. It was true that co-defendant Fred Mitchell, who received a 135 month sentence, had a higher drug weight, but he had no prior record and an otherwise pro-social background. This defendant, conversely, had a serious record and lacked Mitchell's employment record and other positive characteristics. Co-defendant Josiphus Wilder had both a lower drug weight and a less severe record, so his sentence of 84 months, the low end of the advisory guidelines, could not be compared to defendant's.
However, there were some positive aspects of defendant's case. Defendant's sincere expression of remorse, cooperation with the police[4] and his efforts to better himself suggested that he was thinking about the future. Further, the guidelines produced an extremely high sentence given defendant's peripheral involvement in this conspiracy. The guideline range was high because defendant qualified as a career offender. There may well be cases in which the career offender guideline creates sentences far greater than necessary, such as where the qualifying offenses are designated crimes of violence but really do not suggest a risk justifying such a sentence, fleeing and walk away escape cases, for *877 instance. See, e.g., United States v. Rosas, 401 F.3d 843 (7th Cir.2005). In the present case the priors were drug trafficking offenses, so I did not believe a significant reduction from the range was warranted. However, the two predicate offenses from 1995 and 1999 involved very small amounts (about 2 grams in the first case and less than ½ gram in the second), and the sentences were 14 months and 20 months, respectively,[5] making the guideline range applicable to the instant offense a colossal increment. It is appropriate for a court, when considering the type of sentence necessary to protect the public and deter future misconduct, to note the length of any previous sentences imposed. Generally, a lesser period of imprisonment is required to deter a defendant not previously subject to lengthy incarceration than is necessary to deter a defendant who has already served serious time yet continues to re-offend. Further, it is appropriate for a court considering the career offender guideline to analyze whether, under § 3553(a)(1), the guideline produces a sentence "reasonably related in severity to the level of sentence appropriate for the offense of current conviction." ABA Standards for Criminal Justice Sentencing § 18-3.5 at 59-60 (3d ed.1994). In the present case, I concluded that a sentence of 188 months, nearly 10 times higher than any previous, unrelated sentence, and nearly twice the otherwise applicable range, was greater than necessary. See id. at 63 ("The precipitous effect of a habitual offender statute with mandated additional penalties will seldom coincide with the more flexible scheme of presumptive sentences, and will introduce gross disparities into sentencing patterns and distortions into the policy objectives the sentencing agency is seeking to implement.").
Therefore, I exercised my discretion to, in effect, reduce the sentence by slightly more than one level to 160 months. Under all of the circumstances, I found this sentence sufficient but not greater than necessary to satisfy the purposes of sentencing. This sentence hewed closely to the guidelines, thus avoiding unwarranted disparity, and also recognized that career offenders should receive substantial prison terms.
Defendant was entitled to a 20 month adjustment under § 5G1.3(b) to account for the discharged portion of the sentence in State of Wisconsin Case No. 03-CF-6133. The state sentence was imposed on February 3, 2004, a little over 16 months before the instant sentence, and the state judge gave him 107 days credit. Thus, I adjusted this sentence by 20 months, rounded off, to account for the time spent in state custody.
Therefore, I committed defendant to the custody of the Bureau of Prisons for 140 months to run concurrent to the sentence he was serving in State of Wisconsin Case No. 03-CF-6133. Based on his financial situation, I determined that defendant did not have the ability to pay a fine and thus waived the fine. Upon release, I ordered defendant to serve a six year term of supervised release, the conditions of which appear in the judgment.
SO ORDERED.
NOTES
[1] Absent the career offender designation, defendant's range was 100-125 months.
[2] Both sides agreed that defendant qualified for an adjustment of the sentence to credit him for the discharged portion of a state sentence he was serving arising out of the same criminal conduct. See U.S.S.G. § 5G1.3(b).
[3] The government indicated that this information had not yet proven useful, entitling defendant to a motion under U.S.S.G. § 5K1.1.
[4] The government objected to any sentence below the guideline range based on defendant's cooperation. I agreed that in this case such a reduction would not be appropriate absent a government motion. However, I did consider defendant's efforts to cooperate as a sign of positive character development.
[5] Defendant actually served about 22 months in prison on these two cases.
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46 So.2d 760 (1950)
217 La. 532
STATE ex rel. MARTIN
v.
GARZA et al.
No. 39054.
Supreme Court of Louisiana.
March 20, 1950.
Rehearing Denied April 24, 1950.
Julian E. Bailes, Natchitoches, J. Vance Thompson, Alexandria, for relatrix-appellant.
John G. Gibbs, J. E. Pierson, Natchitoches, for respondent-appellee.
FOURNET, Chief Justice.
The relatrix, Mrs. Elva V. Welborn Martin, is appealing from a judgment recalling a writ of habeas corpus previously issued, directed to the respondents Sam Aaron Garza and Stella Garza, commanding them to produce the relatrix' minor child, Hershel Schmeleberger, and rejecting her demand to have the custody of the child restored to her.
The relatrix instituted these proceedings to recover her 20-month-old son, born of her marriage to John Schmeleberger, alleging that the subject child was being unlawfully detained by the respondents in that he was being held without her consent; that at the time she left the child with the respondents on April 7, 1947, she did so because of illness and financial inability to care for him, with the understanding that the respondents would care for the child until such time as she recovered; that her signature to a purported consent to the adoption of the child was obtained by the respondents without relatrix being informed of the import thereof, and under the representation of the respondents that the purpose of her signature to the instrument was to keep anyone else from getting the child; that soon thereafter she regained her health and obtained employment, but upon calling for the child the respondents refused to surrender him unless *761 $700 was paid to them; that this amount was later reduced to $500; and that though she made several demands for her child they still persisted in keeping it, although she is willing to pay all reasonable expenses incurred by the respondents for his upkeep. She further alleged that she is now married to and living with her second husband, Aubrey Martin, has a good home and is able to take care of the child, and that respondents are not fit persons to care for him.
The respondents first filed a motion for bond for costs and a plea of vagueness, and on the return day filed an answer, admitting that they had possession of the child and that the matter of surrendering the child upon payment of a stipulated sum of money had been discussed, but denied that the child was surrendered to them due to any misrepresentation, averring that on the contrary it was due to the serious illness of the child and of the mother, for which her own conduct was responsible, and that it was to the best interest of the child that he should remain with them.
Before undertaking the trial of the habeas corpus proceeding, the trial judge recessed as the Tenth Judicial District Court and reconvened as the Tenth Juvenile Court, in order to dispose of the proceeding there instituted on the 22d day of September, 1947, by the Garzas, respondents herein, for the adoption of the child, the relatrix here having appeared therein for the purpose of withdrawing her consent to the adoption and seeking to have revoked the interlocutory decree granting temporary custody of the child to the Garzas. After a hearing was had on the motion to revoke the interlocutory decree which not only showed relatrix' withdrawal of her consent to the adoption of her child by the respondents but affirmatively showed that the child's father was not dead, as alleged in their petition, but that he was living in New York and had visited in Natchitoches since the filing of the adoption proceedings and that his consent to such adoption was lackingthe court recessed as the Tenth Juvenile Court, reconvened as the Tenth Judicial District Court, and proceeded to trial on the merits of the habeas corpus proceeding. After the relatrix was called to the stand to testify on her own behalf, the respondents objected to the introduction of any evidence on the ground that the district court was without jurisdiction in the matter since the juvenile court had already assumed jurisdiction of the subject child. The objection was overruled and after a trial on the merits, the court being of the opinion that the sole issue was the welfare of the child, concluded that since the respondents had nursed the child back to health from the time they had assumed the responsibility for his care and custody, he thought it to the child's best interest and welfare that he should remain with them, and accordingly rendered judgment rejecting the demands of relatrix, from which judgment she prosecutes this appeal.
The respondents have filed an answer here to the appeal, urging that their plea to the jurisdiction of the district court should have been sustained by the trial judge. The record reveals that no such plea was ever formally filed, but instead, as above stated, the plea was offered by way of objection to the evidence, and was overruled by the trial judgeand we think correctly so.
While the Tenth Juvenile Court was vested with jurisdiction in the proceedings for the adoption of the subject child, La. Constitution, Art. 7, Sec. 52, those proceedings were properly disposed of by the trial judge upon the showing made. Green v. Paul, 212 La. 337, 31 So.2d 819, and authorities therein cited; Owles v. Jackson, 199 La. 940, 7 So.2d 192; Revised Statutes, Sec. 2328, Dart's La.Gen.Stats. Sec. 4839.8. The Tenth Judicial District Court was the proper forum to determine the issues raised on the writ of habeas corpus, that is, whether the child was being illegally detained by the respondents. La. Constitution, Art. 7, Sec. 2; State ex rel. Simpson v. Salter, 211 La. 918, 31 So.2d 163; State ex rel. Fazzio v. Triolo, 156 La. 824, 101 So. 211; State ex rel. Billington v. Sacred Heart Orphan Asylum, 154 La. 883, 98 So. 406.
In such cases the sole question for the court's consideration is whether the *762 parent by his or her conduct has forfeited his or her parental right to the child, for it is the well settled jurisprudence of this state that the courts are not authorized to interfere with a parent's authority over his or her children, except if the court is satisfied that he, or she, will neglect them, or expose them to improper influences, in which case the paramount interest which society has in seeing to it that they be well taken care of and properly brought up would justify the court in making some other disposition of them, Ex parte Lincoln, 128 La. 278, 54 So. 818; State ex rel. Martin et al. v. Talbot et ux, 161 La. 192, 108 So. 411; State ex rel. Bethany v. Corley et ux, 172 La. 266, 134 So. 87, and the burden is on those resisting the parent's right to show his or her disqualification or unfitness to have the custody of the child. State ex rel. Burleigh v. Savoie, 185 La. 985, 171 So. 98; State ex rel. Perdue v. Carkuff, 182 La. 920, 162 So. 729; Heitkamp v. Ragan, 142 La. 81, 76 So. 247. In the case of Heitkamp v. Ragan, supra, this Court quoted with approval the holding in Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L.R.A. 839, as follows: "And while we are bound also to regard the permanent interests and welfare of the child, it is to be presumed that its interests and welfare will be best promoted by continuing that guardianship which the law has provided until it is made plainly to appear that the father [or mother] is no longer worthy of the trust. The breaking of the ties which bind the father [or mother] and the child can never be justified without the most solid and substantial reasons." (Brackets ours.) 142 La. at page 84, 76 So. at page 248.
We think, therefore, that the trial judge erroneously based his decision in the matter (apparently reluctantly) on his appreciation of the best interest of the child, without giving consideration to the paramount right of the mother to her child, nor did he give consideration to the attempt made by the respondents to establish the relator's unfitness to have the custody of her child.
We have carefully studied and analysed the evidence in this case, and without detailing the same, suffice it to say that the respondents have totally failed to carry the burden that was theirs to prove that relatrix by her conduct has forfeited her right to her child, or that she is otherwise disqualified to have custody of the child. We are convinced from the evidence that the relatrix never intended to abandon her child or to permanently part with his custody when she surrendered him to the respondents. On the contrary, the overwhelming preponderance of the evidence shows that she did so because at the time she was ill and financially unable to care for the child, who was also ill and required medical attention in addition to ordinary care. As soon as relatrix recovered her health she immediately secured employment, and within three or four months after the child had been left with the respondents she called for him. In spite of the fact that her earnings were very meager at the time she employed an attorney and paid him a fee of $35 (although the record does not show what action was taken by this attorney); she also sought assistance of the attorney who was the notary before whom her purported consent to the adoption had been executed, and he testified to having accompanied the relatrix at her request to the home of the respondents, where the matter of the payment of a reasonable consideration to the respondents for the care of the child was discussed and was recommended by the attorneywhich, however, relatrix was unable to pay. Her earnestness and desire to secure the custody of her child is revealed not only by the repeated efforts and demands made by the relatrix, but the record further discloses that her anxiety to recover the custody of the child, with the attendant worry connected therewith, caused her to nearly collapse with a nervous breakdown, forcing her to discontinue the work she was pursuing. After recovering from this condition she was married to Aubrey Martin, who assisted her with the necessary finances for instituting these proceedings and appeared in the trial of the case to support the allegations of the petition that not only did he consent to relatrix bringing the child into their home but also *763 that he was able and willing to care for him.
The suggestion by the respondents that they have given the child care and attention, have treated him as their own, learned to love him, and that the child has learned to know and love them as his parents, beside the fact that they own their own home and are better able to care for the child than the relatrix, does not authorize the court to deprive the mother of her parental right and authority over the care and custody of her child. State ex rel. Perdue v. Carkuff, supra; Heitkamp v. Ragan, supra. In the latter case this Court aptly observed: "A judge has some discretion over the care and custody of children; but it has to be exercised on solid and substantial grounds. Nor can the fact that other people are attached to the child, or that the child is attached to other people, or that the ability of other people can better provide for the care, etc., of the child deprive the father [or mother] of his [or her] parental right and authority to have the care and custody of his [or her] own child. * * * `The discretion to be exercised is not an arbitrary one, but in the absence of any positive disqualification of the father [or mother] for the proper discharge of his [or her] parental duties, he [or she] has, as it seems to us, a paramount right to the custody of his [or her] infant child, which no court is at liberty to disregard. * * *'" (Brackets ours.) 142 La. at page 83, 76 So. at page 247. See, also, Ozanne v. Delile, 5 Mart.,N.S., 21.
For the reasons assigned, the judgment of the lower court is annulled and set aside; and it is now ordered, adjudged and decreed that the respondents, Sam Aaron Garza and Stella Garza are hereby ordered and directed to surrender the custody of the minor child, Hershel Schmeleberger, to his mother, Mrs. Elva V. Welborn Martin; all costs to be paid by respondents.
HAMITER, J., concurs in the decree.
HAWTHORNE, J., concurs and assigns written reasons.
MOISE, J., takes no part.
HAWTHORNE, Justice (concurring).
I am in full accord with the decree in this case awarding custody of the minor child, Hershel Schmeleberger, to his mother and with the reasons given therefor.
I concur in the opinion insofar as it holds that the district court was the proper forum to determine the issues raised in the habeas corpus proceeding for the reason that the judge of the district court, before undertaking the trial of the habeas corpus matter, opened the juvenile court for the purpose of passing upon a motion filed in an adoption proceeding pending in that court at the time the habeas corpus suit was filed. This motion had been filed in the juvenile court in behalf of relatrix to revoke the interlocutory decree of adoption and dismiss the adoption proceeding in which the temporary custody of the child had been granted to the respondents herein.
On the trial of the motion it was shown that the relatrix had withdrawn her consent to the adoption, and that the child's father was not dead, as alleged, and had not consented to the adoption. On this showing it was entirely proper for the judge of the juvenile court to dismiss the adoption proceeding pending in the juvenile court, and this is, in effect, exactly what he did; otherwise the district court was without jurisdiction. This court should notice ex proprio motu the lack of jurisdiction under the well settled rule of law that, when two courts have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdiction and possession of the res retains it to the end of the controversy to the exclusion of all others. See State ex rel. Terry v. Nugent et ux., 212 La. 382, 31 So.2d 834.
That the district judge was familiar with this rule of law and the holding of this court in the Nugent case, supra, is established beyond any doubt by the fact that, prior to proceeding with the trial of the habeas corpus suit, he opened the juvenile *764 court for the purpose of disposing of the motion to dismiss the adoption proceeding pending therein. There was no reason otherwise for him to convene the juvenile court and try the motion. In his written reasons for judgment the district judge states that the respondents in the habeas corpus proceeding pleaded that the district court was without jurisdiction, since the juvenile court had first obtained jurisdiction in the adoption proceeding. I am unable to find a plea to the jurisdiction of the district court in the record. If any such plea was made, I think the judge was correct in overruling it, for, as I interpret the record as made up, he had previously sustained relatrix' motion in the juvenile court to revoke the interlocutory order of adoption and dismiss the adoption proceeding.
Furthermore, I am unable to reconcile the opinion of this court in the Nugent case with the opinion in the case of State ex rel. Simpson et al. v. Salter et al., 211 La. 918, 31 So.2d 163, 165. In each of these cases a proceeding for adoption of a child was pending in the juvenile court at the time the habeas corpus proceeding was filed in the district court. In the Simpson case, which was decided first, this court awarded custody of the minor to the relatrix in the habeas corpus proceeding in the district court, stating: "The plea of lis pendens is not well founded for the reason that the cause of actions [causes of action] are entirely different and are not such that present concurrent jurisdiction. In the first place the Juvenile Court has exclusive jurisdiction in adoption proceedings of children under seventeen years of age and in the second place the civil district court has exclusive jurisdiction over a contest between a parent and a third person for the custody of a minor." (All italics mine.)
In the Nugent case, however, this court dismissed the habeas corpus proceeding in the district court, saying in the course of that opinion:
"The issue in contest is the right to custody of the child, Allen Reed. If, as an incident to his adoption, the Juvenile Court acquire[d] jurisdiction to determine the question of custody, the Civil District Court was without jurisdiction under the well-settled rule that, when two courts have concurrent jurisdiction over the same subject matter, the court which first obtains jurisdiction and possession of the res retains it to the end of the controvery to the exclusion of all others. See Geilinger v. Philippi, 133 U.S. 246, 247, 10 S.Ct. 266, 33 L.Ed. 614; Lake Bisteneau Lumber Co. v. Mimms, 49 La.Ann. 1283, 22 So. 730 and cases there cited. Hence, since the adoption proceeding was filed in the Juvenile Court prior to the filing of the instant suit, the only inquiry in the case is whether adoption proceedings filed under Act No. 154 of 1942 vest the Juvenile Courts with jurisdiction over the children sought to be adopted.
"We experience no difficulty in answering the query in the affirmative. * * *" [212 La. 382, 31 So.2d 835.]
In the Simpson case, therefore, the basis of the decision was that the courts did not have concurrent jurisdiction, and the basis of the decision in the Nugent case was that they did.
I do not agree with the holding in the Simpson case, and for that reason dissented from the refusal to grant a rehearing. I concurred in the decree in the Nugent case for the reason that in the course of the opinion in that case this court concluded that the holding therein was not in conflict with that of the Simpson case. I do not agree with that conclusion. In distinguishing the two cases the court stated in the Nugent case: "The difference between the Simpson case and the instant one is apparent. There, although the jurisdiction of the Juvenile Court attached, it was subsequently divested by the refusal of the mother to give her consent to the adoption proceedings, or rather, the withdrawal by her of the consent previously given. * * *"
An examination of the opinion in the Simpson case will disclose that the parents of the child filed in the juvenile court an opposition to the adoption proceeding which was not ruled upon by that court, and this opposition was pending in that court at the time the habeas corpus proceeding was filed and tried in the district court. I do not *765 understand how the mere filing of this opposition, whatever the basis for it, whether the withdrawal of consent for adoption or otherwise, could ipso facto divest the juvenile court of jurisdiction and vest jurisdiction in the district court of the habeas corpus proceeding filed therein. The Simpson and Nugent cases, therefore, in my opinion cannot be distinguished.
For these reasons I respectfully concur.
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARYLOU PRIMIANO; CHARLES
PRIMIANO, No. 06-15563
Plaintiffs-Appellants, D.C. No.
v. CV-03-00373-
JCM/PAL
YAN COOK; STRYKER CORPORATION;
ROBERT J. TAIT M.D.,
ORDER
Defendant, AMENDING
OPINION AND
HOWMEDICA OSTEONICS AMENDED
CORPORATION, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted February 13, 2008
Submission Withdrawn and Supplemental Briefing
Requested March 3, 2008
Resubmitted July 15, 2009
San Francisco, California
Filed March 10, 2010
Amended April 27, 2010
Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Kleinfeld
6281
6284 PRIMIANO v. HOWMEDICA OSTEONICS
COUNSEL
Peter C. Wetherall, Las Vegas, Nevada, for plaintiffs-
appellants Marylou and Charles Primiano.
Frederick D. Baker (argued), Wayne A. Wolff, San Francisco,
California; Ralph A. Campillo, Los Angeles, California, for
defendant-appellee Howmedica Osteonics Corporation.
ORDER
The opinion filed on March 10, 2010, and appearing at 598
F.3d 558 (9th Cir. 2010), is amended as follows:
1. At page 563, after the sentence “We review
summary judgment de novo.” and footnote 5,
PRIMIANO v. HOWMEDICA OSTEONICS 6285
add the sentence “We review rulings on the
admissibility of expert testimony under Federal
Rule of Evidence 702 for abuse of discretion.”
2. At page 563, at the end of the newly added sen-
tence, append a new footnote 6 with the follow-
ing text in the footnote: “Cabrera v. Cordis
Corp., 134 F.3d 1418, 1420 (9th Cir. 1998).”
Renumber the remaining footnotes accordingly.
With this amendment, the panel has unanimously voted to
deny the petition for rehearing. Judge Kleinfeld has voted to
deny the petition for rehearing en banc, and Judges D.W. Nel-
son and Hawkins so recommend. No further petitions for
rehearing will be entertained.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on the
petition for rehearing en banc. Fed. R. App. P. 35.
The petition for panel rehearing and the petition for rehear-
ing en banc are DENIED.
OPINION
KLEINFELD, Circuit Judge:
We address admissibility under Daubert1 of medical testi-
mony.
I. Facts
Marylou Primiano has suffered a miserable ordeal since she
had elbow surgery. The question raised by her litigation2 is
1
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993).
2
The complaint also names Mr. Primiano as a plaintiff, for his deriva-
tive claim for loss of consortium etc., and names Stryker Corporation as
6286 PRIMIANO v. HOWMEDICA OSTEONICS
whether her ordeal resulted from a defective product, the arti-
ficial elbow Howmedica Osteonics Corporation manufac-
tured. The district court granted summary judgment against
her and dismissed her case, but that result could not have
occurred had her medical expert’s testimony been considered.
His testimony would have established a genuine issue of
material fact, because he thought the plastic bearing between
the metal parts of the artificial elbow wore out so quickly that
it must have been defective. The district court ruled that his
testimony was inadmissible, leaving Primiano with inade-
quate evidence to establish a genuine issue of fact. The ques-
tion before us is whether excluding Primiano’s expert’s
testimony was an abuse of discretion.
Ms. Primiano, an active 36-year-old woman, fell in her
kitchen and broke her elbow. The injury, serious for anyone,
was especially serious for her, because she has had rheuma-
toid arthritis for years. Unlike osteoarthritis, a degenerative
process of wear and tear on the joints, rheumatoid arthritis is
a chronic inflammatory disease of the connective tissue in the
joints.3 Her physician, Robert J. Tait, M.D., performed sur-
gery April 18, 2000, two days after her fall. He replaced her
elbow joint with a device made by the defendant, How-
medica, consisting of titanium pieces to replace the bone and
polyethylene components to prevent the metal from rubbing
against metal.
Two thirds of the way through surgery, Dr. Tait discovered
that Howmedica had made a mistake in the packing and ship-
ping, so even though he was replacing Ms. Primiano’s right
elbow, the humeral component (the humerus is the arm bone
owner of Howmedica Osteonics Corporation, Robert J. Tait M.D., the sur-
geon who operated on Ms. Primiano, and Yan Cook, a Howmedica sales
representative. Only the Primianos’ appeal challenging the summary judg-
ment and exclusion of evidence in favor of Howmedica is before us.
3
Blakiston’s Gould Medical Dictionary 1353 (3d ed. 1972).
PRIMIANO v. HOWMEDICA OSTEONICS 6287
running from the elbow to the shoulder) sent to him was
labeled for the left arm. He consulted Howmedica’s represen-
tative (“Did I kill him? No, I didn’t.”) with Ms. Primiano’s
arm open on the table and was told that the components are
symmetrical, identical in every respect except that the locking
pin goes in the opposite side of the left humeral component,
so the component he had could be used. The hole had to be
drilled in Ms. Primiano’s bone from the inside instead of the
outside, but the artificial joint would be equally functional.
Dr. Tait completed the operation, and it appeared to be a suc-
cess.
But by July, Ms. Primiano’s elbow squeaked, and by
December, Dr. Tait could hear the metal-on-metal contact,
which he confirmed in an x-ray. In February, Dr. Tait per-
formed a second surgery addressing the evident failure of the
implant and risk of metallosis (a destructive immune response
of the body to flecks of metal shaved off by metal-on-metal
contact), replacing the humeral component with a longer one.
He used Howmedica’s left arm humeral component again,
though the long instead of the standard, to avoid having to
redrill the remaining bone. He observed massive metallosis
and “severe polyethylene wear” on the bearing surrounding
the pin. Again, the surgery appeared to go fine. But the next
month, Ms. Primiano was having trouble controlling her arm
and the joint had a “cracking” sound. She obtained a second
opinion from an orthopedic surgeon who concluded that the
components appeared “to be adequately fixed and in good
position.” But in June her problems with the joint had not
gone away, so she consulted a third orthopedic surgeon, who
recommended a third surgery. In July this surgeon replaced
her Howmedica device with one from its competitor, Zimmer.
That surgeon performed a fourth surgery the next April to cor-
rect loosening. A pin backed out of position, so she needed
yet another surgery, her fifth, in September.
Primiano sued Howmedica, Dr. Tait, and others in state
court for negligence, strict liability, breach of warranty, and
6288 PRIMIANO v. HOWMEDICA OSTEONICS
loss of consortium.4 Howmedica removed the case to federal
court based on diversity. All that is before us now is the prod-
ucts liability case.
In the summary judgment papers, Howmedica’s experts, an
orthopedic surgeon and a chemist, provided opinions that the
polyethylene was as it should be, and the rapid failure of the
prosthesis and excessive wear on the polyethylene compo-
nents resulted from “malalignment of the prosthesis” along
with increased risk of complication because of Ms. Primi-
ano’s rheumatoid arhtritis and her age. The product literature
distributed to physicians said that the prosthesis would not
restore function to the level expected with normal healthy
bone, and was vulnerable to excessive loading from activity.
Evidently, younger patients such as Ms. Primiano may do
worse because they are more active. The manufacturer’s liter-
ature says “[w]hile the expected life of the total elbow
replacement components is difficult to estimate, it is finite.”
Primiano’s expert witness, Arnold-Peter Weiss, M.D.,
declared that the polyethylene bushing had worn through in
less than eight months, “not a usual or expected circum-
stance.” Though finite, the typical lifespan of elbow prosthe-
ses “far exceeds” how long this one lasted. Dr. Weiss testified
in his deposition that although wear starts immediately, elbow
prostheses last as long as ten or fifteen years, even twenty,
and the earliest he had seen them wear out was around five
to eight years, varying with the patient’s activity level.
Though misalignment could cause excessive wear, he had
looked at the x-rays and found no significant misalignment.
Nor would ordinary daily activity produce such extraordinar-
ily rapid wear. Nor could he find technically inappropriate use
of the prosthesis by Dr. Tait. His opinion was that the extraor-
dinarily rapid wear was caused by abrasive wear and genera-
tion of debris from movement of the titanium against the
4
Primiano’s complaint says that she is not suing Dr. Tait for malprac-
tice, just as an agent of Howmedica in selling the prosthesis.
PRIMIANO v. HOWMEDICA OSTEONICS 6289
polyethylene. And he concluded that the prosthesis failed to
perform in a manner reasonably to be expected by a surgeon
using it, because it failed too early.
The district court granted defendants’ motion to exclude
Dr. Weiss’s testimony as not meeting the Daubert standard
and granted summary judgment. The court concluded that Dr.
Weiss’s testimony would not be helpful to the jury. The judge
reasoned: “Well, I mean it’s like res ipsa loquitur, the elbow
failed. Now, why did it fail? Maybe it was malpractice,
maybe it was Dr. Tait.” The evidence of rapid wear “doesn’t
make it defective.” “I think [Dr. Weiss’s] opinion is weak-
ened by the fact that he didn’t see the plaintiff. He didn’t
examine her. He didn’t talk to her.” “[T]here’s no peer review
. . . no publication . . . there’s got to be an objective source
that he relies on.” The court rejected plaintiff’s argument, that
testimony that the premature failure was not attributable to
overuse, medical malpractice, “her physiology,” or other fac-
tors external to the device, would assist the jury.
II. Analysis
We review summary judgment de novo.5 We review rulings
on the admissibility of expert testimony under Federal Rule of
Evidence 702 for abuse of discretion.6 The substantive ques-
tion the jury would have to answer, in this diversity case aris-
ing out of state tort law, is established by Nevada law. The
question whether evidence is admissible, though, is governed
by federal law. The Federal Rules of Evidence “govern pro-
ceedings in the courts of the United States.”7 That is generally
true in diversity cases because the Federal Rules of Evidence
are statutes enacted by Congress.8 Though there are excep-
5
Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1029 (9th
Cir. 2001).
6
Cabrera v. Cordis Corp., 134 F.3d 1418, 1420 (9th Cir. 1998).
7
Fed. R. Evid. 101.
8
Sims v. Great Am. Life Ins. Co., 469 F.3d 870, 878-79 (10th Cir. 2006).
6290 PRIMIANO v. HOWMEDICA OSTEONICS
tions, such as state substantive law in the guise of an evidenti-
ary rule,9 no exception applies here.
[1] Ms. Primiano’s burden was to establish a defect in the
manufacture of the artificial elbow. In Nevada, “those prod-
ucts are defective which are dangerous because they fail to
perform in the manner reasonably to be expected in light of
their nature and intended function.”10 A plaintiff need not
“produce direct evidence of a specific product defect [or]
negate any alternative causes of the accident.”11 An “unex-
pected, dangerous malfunction” suffices.12
[2] Federal Rule of Evidence 702 controlled admissibility
of Dr. Weiss’s opinion. That rule establishes several require-
ments for admissibility: (1) the evidence has to “assist the
trier of fact” either “to understand the evidence” or “to deter-
mine a fact in issue”; (2) the witness has to be sufficiently
qualified to render the opinion:
If scientific, technical, or other specialized knowl-
edge will assist the trier of fact to understand the evi-
dence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in
the form of an opinion or otherwise, if (1) the testi-
mony is based upon sufficient facts or data, (2) the
testimony is the product of reliable principles and
9
See Feldman v. Allstate Ins. Co., 322 F.3d 660, 666 (9th Cir. 2003);
Wray v. Gregory, 61 F.3d 1414, 1417 (9th Cir. 1995) (per curiam).
10
Allison v. Merck & Co., 878 P.2d 948, 952 (Nev. 1994) (internal quo-
tation marks omitted); Ginnis v. Mapes Hotel Corp., 470 P.2d 135, 138
(Nev. 1970) (internal quotation marks omitted).
11
Stackiewicz v. Nissan Motor Corp., USA, 686 P.2d 925, 927 (Nev.
1984).
12
Id. at 928.
PRIMIANO v. HOWMEDICA OSTEONICS 6291
methods, and (3) the witness has applied the princi-
ples and methods reliably to the facts of the case.13
Though Daubert is sometimes loosely spoken of as though it
established the court’s “gatekeeping” function, that is not
quite right. Trial courts have always had a gatekeeping func-
tion for opinion evidence. Daubert held that Federal Rule of
Evidence 702 replaces the old Frye14 gatekeeping test, “gen-
eral acceptance in the particular field,” with a different test
which is, in some respects, more open to opinion evidence.15
[3] The requirement that the opinion testimony “assist the
trier of fact” “goes primarily to relevance.”16 For scientific
opinion, the court must assess the reasoning or methodology,
using as appropriate such criteria as testability, publication in
peer reviewed literature, and general acceptance, but the
inquiry is a flexible one.17 Shaky but admissible evidence is
to be attacked by cross examination, contrary evidence, and
attention to the burden of proof, not exclusion.18 In sum, the
trial court must assure that the expert testimony “both rests on
a reliable foundation and is relevant to the task at hand.”19
Kumho Tire Co. v Carmichael holds that the Daubert frame-
work applies not only to scientific testimony but to all expert
testimony.20 It emphasizes, though, that the “test of reliability
is ‘flexible’ and Daubert’s list of specific factors neither nec-
13
Fed. R. Evid. 702.
14
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
15
Daubert, 509 U.S. at 588 (“Nothing in the text of [Rule 702] estab-
lishes ‘general acceptance’ as an absolute prerequisite to admissibility.”);
id. at 589 (“That austere standard, absent from, and incompatible with, the
Federal Rules of Evidence, should not be applied in federal trials.”).
16
Id. at 591.
17
Id. at 592-4.
18
Id. at 596.
19
Id. at 597.
20
Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999); see also
White v. Ford Motor Co., 312 F.3d 998, 1007 (9th Cir. 2002).
6292 PRIMIANO v. HOWMEDICA OSTEONICS
essarily nor exclusively applies to all experts or in every case.”21
The “list of factors was meant to be helpful, not definitive,”22
and the trial court has discretion to decide how to test an
expert’s reliability as well as whether the testimony is reliable,23
based on “the particular circumstances of the particular case.”24
[4] We further interpreted Daubert on remand.25 In that
case, the evidence proffered was scientific epidemiological
evidence, of insufficient reliability for admissibility. We took
pains to point out that the problem was methodology, not the
conclusion to which the evidence would lead. “[T]he test
under Daubert is not the correctness of the expert’s conclu-
sions but the soundness of his methodology.”26 Under
Daubert, the district judge is “a gatekeeper, not a fact finder.”27
When an expert meets the threshold established by Rule 702
as explained in Daubert, the expert may testify and the jury
decides how much weight to give that testimony.
Testimony by physicians may or may not be scientific evi-
dence like the epidemiologic testimony at issue in Daubert.
The classic medical school texts,28 Cecil29 and Harrison,30
explain that medicine is scientific, but not entirely a science.
21
Kumho Tire, 526 U.S. at 141.
22
Id. at 151.
23
Id. at 152.
24
Id. at 150.
25
Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1313
(9th Cir. 1995).
26
Id. at 1318.
27
United States v. Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir.
2006).
28
Jock Murray, Neurology Texts for Internists, 123 Annals of Internal
Med. 477, 477-79 (1995).
29
Cecil Textbook of Medicine 1 (James B. Wyngaarden & Lloyd H.
Smith Jr. eds., 17th ed. 1985).
30
Harrison’s Principles of Internal Medicine 3 (Dennis L. Kasper et al.
eds., 16th ed. 2005).
PRIMIANO v. HOWMEDICA OSTEONICS 6293
“[M]edicine is not a science but a learned profession, deeply
rooted in a number of sciences and charged with the obliga-
tion to apply them for man’s benefit.”31 “Evidence-based
medicine” is “the conscientious, explicit and judicious use of
current best evidence in making decisions about the care of
individual patients.”32 “Despite the importance of evidence-
based medicine, much of medical decision-making relies on
judgment—a process that is difficult to quantify or even to
assess qualitatively. Especially when a relevant experience
base is unavailable, physicians must use their knowledge and
experience as a basis for weighing known factors along with
the inevitable uncertainties” to “mak[e] a sound judgment.”33
When considering the applicability of Daubert criteria to
the particular case before the court, the inquiry must be flexi-
ble. Peer reviewed scientific literature may be unavailable
because the issue may be too particular, new, or of insuffi-
ciently broad interest, to be in the literature.34 Lack of cer-
tainty is not, for a qualified expert, the same thing as
guesswork.35 “Expert opinion testimony is relevant if the
knowledge underlying it has a valid connection to the perti-
nent inquiry. And it is reliable if the knowledge underlying it
has a reliable basis in the knowledge and experience of the
relevant discipline.”36 “[T]he factors identified in Daubert
may or may not be pertinent in assessing reliability, depend-
ing on the nature of the issue, the expert’s particular expertise,
and the subject of his testimony.”37 Reliable expert testimony
31
Cecil Textbook of Medicine, supra, at 1.
32
Harrison’s Principles of Internal Medicine, supra, at 3.
33
Id.
34
Clausen v. M/V New Carissa, 339 F.3d 1049, 1056, 1060 (9th Cir.
2003).
35
Id. at 1059.
36
Sandoval-Mendoza, 472 F.3d at 654 (internal quotation marks and
citation omitted).
37
White v. Ford Motor Co., 312 F.3d 998, 1007 (9th Cir. 2002) (internal
quotation marks omitted).
6294 PRIMIANO v. HOWMEDICA OSTEONICS
need only be relevant, and need not establish every element
that the plaintiff must prove, in order to be admissible.38
[5] We have some guidance in the cases for applying Dau-
bert to physicians’ testimony. “A trial court should admit
medical expert testimony if physicians would accept it as use-
ful and reliable,” but it need not be conclusive because “medi-
cal knowledge is often uncertain.”39 “The human body is
complex, etiology is often uncertain, and ethical concerns
often prevent double-blind studies calculated to establish sta-
tistical proof.”40 Where the foundation is sufficient, the liti-
gant is “entitled to have the jury decide upon [the experts’]
credibility, rather than the judge.”41 We held in United States
v. Smith that even a physician’s assistant was qualified based
on experience to offer his opinion.42
[6] Other circuits have taken similar approaches focusing
especially on experience. The Sixth Circuit held that a district
court abused its discretion by excluding a physician’s testi-
mony based on extensive, relevant experience even though he
had not cited medical literature supporting his view.43 Like-
wise the Third Circuit pointed out that a doctor’s experience
might be good reason to admit his testimony.44 Thus under our
precedents and those of other circuits, the district court in this
case was pushing against the current, but that alone does not
imply an abuse of discretion.
38
See Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187, 1192 (9th Cir.
2007).
39
Sandoval-Mendoza, 472 F.3d at 655.
40
Id.
41
Id. at 656.
42
520 F.3d 1097, 1105 (9th Cir. 2008).
43
Dickenson v. Cardiac & Thoracic Surgery of E. Tenn., 388 F.3d 976,
982 (6th Cir. 2004).
44
Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 406-07
(3d Cir. 2003).
PRIMIANO v. HOWMEDICA OSTEONICS 6295
[7] A close look at the foundation for Dr. Weiss’s opinion,
the nature of medical opinion, and the question posed by
Nevada law does. Dr. Weiss is a board certified orthopedic
surgeon and a professor at Brown University School of Medi-
cine in the Division of Hand, Upper Extremity and
Microvascular Surgery, department of Orthopedics. He has
published over a hundred articles in peer-reviewed medical
journals including several specifically on the elbow and at
least one somewhat related to this case, “Capitellocondylar
Total Elbow Replacement: A Long-Term Follow-up Study.”45
He has years of experience implanting various elbow prosthe-
ses and has performed five to ten revisions of total elbow
replacements that had been performed by other physicians. He
has examined the various types of prosthetics available, and
has maintained familiarity with the peer-reviewed literature.
He testified that the very short lifespan of Ms. Primiano’s arti-
fical elbow is “outside of my review of the known literature.”
He conceded on cross examination that there was “no pub-
lished peer-reviewed article that [I’m] aware of that states a
strict minimum lifespan of a polyethylene component in a
total elbow system,” but explained that “I wouldn’t expect
any literature, because you don’t see it. It’s hard to write a
paper about something that doesn’t occur. I mean, this is
really bizarre.”
[8] A court would have to find that Dr. Weiss is “qualified
as an expert by knowledge, skill, experience, training, or educa-
tion”46 to render an opinion on elbow replacements. The dis-
trict court appears to have rejected the opinion based in part
on two elements of Rule 702, whether his opinion would
assist the trier of fact, and whether it was based upon suffi-
cient facts or data.
45
Andrew J. Weiland, Arnold-Peter C.Weiss, Robert P. Wills & J. Rus-
sell Moore, Capitellocondylar Total Elbow Replacement: A Long-Term
Follow-up Study, 71 J. of Bone & Joint Surgery, 217, 217-22 (1989).
46
Fed. R. Evid. 702.
6296 PRIMIANO v. HOWMEDICA OSTEONICS
[9] The district court thought Dr. Weiss’s opinion would
not assist the jury because Dr. Weiss could not say why the
plastic part of the artificial elbow failed so quickly. The “will
assist” requirement, under Daubert, “goes primarily to rele-
vance.”47 What is relevant depends on what must be proved,
and that is controlled by Nevada law. Nevada law establishes
that “those products are defective which are dangerous
because they fail to perform in the manner reasonably to be
expected in light of their nature and intended function.”48 In
Nevada, a plaintiff need not “produce direct evidence of a
specific product defect [or] negate any alternative causes of
the accident.”49 An “unexpected, dangerous malfunction” suf-
fices.50 Since Dr. Weiss, with a sufficient basis in education
and experience, testified that the artificial joint “fail[ed] to
perform in the manner reasonably to be expected in light of
[its] nature and intended function,” that was enough to assist
the trier of fact. He did not have to know why it failed.
[10] The district court’s other concerns, that Dr. Weiss
never saw or talked to Ms. Primiano, and there was no publi-
cation supporting his opinion that the device failed extraordi-
narily early, both might be useful to the jury as impeachment,
but neither furnished an adequate basis for excluding his opin-
ion. What he most needed to see was what was inside her arm,
not outside it, and he did. He saw the x-rays. He also saw the
polyethylene from the implant installed in Primiano’s first
surgery. As for lack of a publication backing his opinion up,
Daubert offers several reasons why an opinion unsupported
by peer-reviewed publication may be admissible,51 and Dr.
47
Daubert, 509 U.S. at 591.
48
Allison v. Merck & Co., 878 P.2d 948, 952 (Nev. 1994) (internal quo-
tation marks omitted); Ginnis v. Mapes Hotel Corp., 470 P.2d 135, 138
(Nev. 1970) (internal quotation marks omitted).
49
Stackiewicz v. Nissan Motor Corp., USA, 686 P.2d 925, 927 (Nev.
1984).
50
Id. at 928.
51
Daubert, 509 U.S. at 593.
PRIMIANO v. HOWMEDICA OSTEONICS 6297
Weiss furnished another one, that the phenomenon is so
extraordinary that the specialists who publish articles do not
see it in their practices.
[11] Dr. Weiss’s background and experience, and his
explanation of his opinion, leave room for only one conclu-
sion regarding its admissibility. It had to be admitted. Once
admitted, the opinion precluded summary judgment, because
if the jury accepted it, then the Howmedica prosthesis “fail-
[ed] to perform in the manner reasonably to be expected.”52
His methodology, essentially comparison of what happened
with Ms. Primiano’s artificial elbow with what surgeons who
use artificial elbows ordinarily see, against a background of
peer-reviewed literature, is the ordinary methodology of evi-
dence based medicine: “not a science but a learned profession
deeply rooted in a number of sciences,”53 “the conscientious,
explicit and judicious use of current best evidence in making
decisions about the care of individual patients”54 and “rel[y-
ing] on judgment—a process that is difficult to quantify or
even to assess qualitatively. Especially when a relevant expe-
rience base is unavailable, physicians must use their knowl-
edge and experience as a basis for weighing known factors
along with the inevitable uncertainties” to “mak[e] a sound judg-
ment.”55
[12] The jury may reject Dr. Weiss’s opinion. It may con-
clude that Ms. Primiano’s level of activity, or error by Dr.
Tait in performing the surgery, caused the failure. Or it may
conclude that the negligence that matters was in the packing
and shipping department of Howmedica, when they sent the
wrong pieces to the hospital. But those possibilities bear on
52
Allison, 878 P.2d at 952.
53
Cecil Textbook of Medicine 1 (James B. Wyngaarden & Lloyd H.
Smith Jr. eds., 17th ed. 1985).
54
Harrison’s Principles of Internal Medicine 3 (Dennis L. Kasper et al.
eds., 16th ed. 2005).
55
Id.
6298 PRIMIANO v. HOWMEDICA OSTEONICS
the merits of Ms. Primiano’s claim, not the admissibility of
Dr. Weiss’s opinion. Given that the judge is “a gatekeeper,
not a fact finder,”56 the gate could not be closed to this rele-
vant opinion offered with sufficient foundation by one quali-
fied to give it.
REVERSED.
56
Sandoval-Mendoza, 472 F.3d at 654.
| {
"pile_set_name": "FreeLaw"
} |
510 F.2d 495
UNITED STATES of America, Appellee,v.Henry JENKINS, Appellant.
No. 521, Docket 74--2257.
United States Court of Appeals,Second Circuit.
Argued Jan. 6, 1975.Decided Feb. 10, 1975.
Sheila Ginsberg, New York City (William J. Gallagher, The Legal Aid Society, Federal Defender Services Unit, New York City), for appellant.
V. Thomas Fryman, Jr., Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., S.D. New York, John D. Gordan, III, Asst. U.S. Atty., of counsel), for appellee.
Before SMITH, OAKES and TIMBERS, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
1
Henry Jenkins seeks to upset his conviction for possession of stolen mail in the district court for the Southern District of New York. The indictment charged the defendant with 16 violations of 18 U.S.C. § 1708,1 one count for each of 16 checks mailed by the New York City Department of Social Services and then allegedly illegally possessed by the defendant. After one mistrial, a second jury returned a verdict of guilty on six counts.2 The court, Judge Lee P. Gagliardi, entered judgment on the verdict on September 11, 1974, and sentenced the defendant to concurrent six-month prison terms with a three-year probation period to follow. On appeal, Jenkins contends that Judge Gagliardi committed reversible error in three respects: the court failed to submit the issue of venue to the jury; it prohibited the jury from inferring that the negative of an incredible witness' testimony represented the truth; and it restricted the defense's cross-examination of a key government witness. Since we conclude that none of these grounds for reversal is meritorious, we affirm the judgment below.
2
At trial the prosecution relied heavily on a statement signed by Jenkins after its dictation by a postal inspector to whom (with another inspector present) Jenkins confessed his participation in a check-stealing and -cashing arrangement. According to the statement, the appellant received Social Services checks from a post office employee, brought the checks to one Vincent Cartiglia to be cashed, and then returned to the postal employee with roughly half the cash value of the checks (from which Jenkins would at that time be given his commission). The government supported the statement's reliability with testimony by the two postal inspectors regarding the circumstances of its rendition. Although the defense sought to undermine the prosecution's case by vigorous cross-examination, it produced no witnesses of its own to rebut the charges.
I. VENUE
3
The appellant contends that his conviction is defective because it is unsupported by a jury finding that the offense charged in fact transpired in the Southern District of New York, the judicial district in which the trial was held. At trial the defense asked the court to instruct the jury that to convict it must find beyond a reasonable doubt that venue is proper in the Southern District of New York. Quite correctly, United States v. Catalano, 491 F.2d 268, 276 (2d Cir.), cert. denied, 419 U.S. 825, 95 S.Ct. 42, 42 L.Ed.2d 48 (1974), the court refused to incorporate this burden of proof standard in its charge. Neither did the court instruct the jury, however, that the government must show proper venue by a preponderance of the evidence. Rather, the court's only reference to the venue issue in the charge was made in passing when it read the indictment to the jurors:
4
'On or about the 16th day of April, 1973, in the Southern District of New York'--and for our purposes the Southern District of New York encompasses Manhattan and Bronx Counties--'Henry Jenkins, the defendant, did unlawfully, wilfully and knowingly have in his possession the contents of certain letters. . . .'3
5
The parties strenuously debate in their briefs whether venue is an issue for the jury or, instead, for the court. Since resolution of this question of considerable significance to the administration of justice is unnecessary to the disposition of the venue claim before us, we do not now pass upon it.4 This question's purely academic interest in this context derives from two sources. First, although the court might have charged the point more clearly, it almost certainly did, in the above-quoted portion of its charge, submit the venue issue to the jury. The defendant has already received, then, the benefit of the doubt on this question. Our finding as to the adequacy of the charge on venue, it should be noted, is buttressed by the defendant's failure to request a proper charge on venue after the court's denial of his unfounded request for a 'beyond a reasonable doubt' instruction on the issue. By neglecting to specify that the jury cannot return a guilty verdict unless it finds by a preponderance of the evidence that venue is proper, moreover, the court could only have helped the defendant: The court's silence on burden of proof left the jury free to make the perhaps natural assumption that the government had to prove venue with the same cogency as, the jury was instructed, it must prove the other elements of the offense--i.e., by beyond a reasonable doubt. Nor can the defendant complain of the court's equation of the Southern District with Manhattan and Bronx Counties, for the underinclusiveness of the geographic description could only have redounded to his favor.
6
Secondly, whether or not the court actually submitted the venue issue to the jury would not be decisive under the circumstances in any event. For the overwhelming evidence presented at trial of the commission of the crime in the Southern District would render harmless any error which may inhere in failing to submit the issue of venue to the jury. Circumstantial evidence of venue abounded: Jenkins owned a Manhattan luncheonette; Cartiglia's meat market was also in Manhattan; Jenkins repeatedly mentioned Cartiglia and his Manhattan market in tandem; within two hours of Jenkins' delivery of the checks to Cartiglia, the latter would return to Jenkins with the proceeds;5 and all the payees of the checks resided in the Bronx.
7
The court's charge to the jury on venue, therefore, was almost certainly adequate. To the extent that the court may be felt to have erred in this regard, the strong evidence on the record of proper venue requires treating any such error as harmless.
II. INFERENCES FROM FALSE TESTIMONY
8
The appellant also faults the court's instruction insofar as it precluded the jurors from taking as true the negative of an incredible witness' assertions and denials. In relevant part, the court charged:
9
Should you find that all or any part of a particular witness' testimony was false, you may not of course infer that the opposite of that testimony is the truth unless there is other evidence to that effect. Any testimony rejected by you as false is no longer in the case insofar as any finding that you may make is concerned.
10
You will recall that I told you that an inference is a conclusion which reason or common sense leads you to draw from the facts which you find have been proved. Thus a finding of fact may not be established merely by a negative inference arising from your disbelief and rejection of any testimony.6
11
According to Jenkins, this instruction wrongfully abetted his conviction by immunizing the two postal inspectors' testimony from negative inference: The jury should have been free, the appellant contends, not only to disbelieve the inspectors' testimony regarding the circumstances of the confession but also to believe the very opposite of their sworn statements.
12
Authority for permitting juries to deaw negative inferences from disbelieved testimony indeed lies, as the appellant asserts, in Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir. 1952):
13
(T)he denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.
14
Judge Learned Hand goes on in his Dyer opinion, however, to qualify this allowance for jury inference:
15
Nevertheless, although it is therefore true that in strict theory a party having the affirmative might succeed in convincing a jury of the truth of his allegations in spite of the fact that all the witnesses denied them, we think it plain that a verdict would nevertheless have to be directed against him.
16
Id. In effect, therefore, by proscribing a negative inference 'unless there is other evidence to that effect,' the district court has simply stated the Dyer rule in the converse. Perhaps Dyer's teaching, that a jury may infer the negative of disbelieved testimony except where that inferred lacks independent support in the evidence,7 may be limited to instances in which the party urging the inference bears the burden of proof. This case does not require us to decide that question, however, for the court's compliance with Dyer is of no actual moment here: Given the government's burden of proving guilt beyond a reasonable doubt, it is highly dubious that a jury which found guilt could simultaneously have disbelieved the government witnesses upon whose word the prosecutorial value of the defendant's confession would rise or fall. Any deviation from Dyer, therefore, would almost certainly be unimportant under the circumstances of this case.
17
Finally, since the defendant failed to object in the district court to this portion of the charge, we would recognize the alleged defect in the charge only if it constituted plain error. Fed.R. Crim.P. 52(b); United States v. Clark, 475 F.2d 240, 250--51 (2d Cir. 1973). And to the extent that the court may have erred in this respect, its error was clearly not of the gravity needed to trigger the operation of the plain error exception.
18
The appellant has no cause for complaint in the trial court's instruction to the jury on inferences which may permissibly be drawn from the testimony of a disbelieved witness. Any possible deficiencies in the charge in this respect are shielded from successful attack by the harmless and plain error doctrines.
III. SCOPE OF CROSS-EXAMINATION
19
The appellant's third ground for reversal focuses on a ruling by the court circumscribing the defense's cross-examination of one of the postal inspectors. The trial court curtailed inquiries into the inspector's failure to record the confession electronically or employ any other method of memorializing the confession than that actually used. (The inspector dictated a statement ostensibly summarizing the confession, which statement the defendant then signed.) These inquiries were apparently designed to undermine simultaneously the inspector's credibility and the confession's inculpatory force.
20
An appellate court must review rulings of this sort with great deference: An abuse of discretion must be found for a ruling on the extent of cross-examination to warrant reversal. Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 75 L.Ed. 624 (1931). In the instant case, the trial court may be charged with no such abuse, for its ruling represented a reasonable resolution of the competing needs to avoid detours in the trial and to allow the defendant a fair opportunity to present his defense. Cf., United States v. Dorfman, 470 F.2d 246, 248 (2d Cir. 1972), cert. denied, 411 U.S. 923, 93 S.Ct. 1561, 36 L.Ed.2d 317 (1973). More specifically, as the questioning shifted the trial's focus to the presence of recording equipment in the building where the confession was rendered, the district court could quite properly have concluded that the inquiry stood to district the jurors and consume the court's time more than its possible value to the defense warranted--a value probably already realized in full since the defense had effectively raised the possibility that the inspectors might have memorialized the confession in a manner less open to suspicion than that employed.
21
The trial court acted well within its discretion in limiting the scope of the defendant's cross-examination of a government witness. The trial below was free from reversible error in the court's instructions to the jury on venue and permissible inferences from disbelieved testimony. We therefore affirm the conviction.
22
Affirmed.
1
§ 1708. Theft or receipt of stolen mail matter generally
Whoever steals, takes, or abstracts, or by fraud or deception obtains, or attempts so to obtain, from or out of any mail, post office, or station thereof, letter box, mail receptacle, or any mail route or other authorized depository for mail matter, or from a letter or mail carrier, any letter, postal card, package, bag, or mail, or abstracts or removes from any such letter, package, bag, or mail, any article or thing contained therein, or secretes, embezzles, or destroys any such letter, postal card, package, bag, or mail, or any article or thing contained therein; or
Whoever steals, takes, or abstracts, or by fraud or deception obtains any letter, postal card, package, bag, or mail, or any article or thing contained therein which has been left for collection upon or adjacent to a collection box or other authorized depository of mail matter; or
Whoever buys, receives, or conceals, or unlawfully has in his possession, any letter, postal card, package, bag, or mail, or any article or thing contained therein, which has been so stolen, taken, embezzled, or abstracted, as herein described, knowing the same to have been stolen, taken, embezzled, or abstracted--
Shall be fined not more than $2,000 or imprisoned not more than five years, or both.
2
At the first trial, two of the 16 counts were dropped on the prosecution's motion
3
Transcript at 212
4
The government contends that United States v. Gillette, 189 F.2d 449 (2d Cir.), cert. denied, 342 U.S. 827, 72 S.Ct. 49, 96 L.Ed. 625 (1951), which indisputably holds that venue is a jury issue, was probably wrong when decided and, in any event, is no longer recognized as sound authority. Without rejecting the government's position, we do note that: Gillette was decided by a unanimous and distinguished panel of this court (L. Hand, Ch. J., Swan, Frank, JJ.); subsequent cases in this circuit appear to recognize tacitly that venue is a jury issue, United States v. Catalano, supra, 491 F.2d 268 at 276; United States v. Provoo, 215 F.2d 531, 537 (2d Cir. 1954); and at least one other circuit has since joined the Gillette court in requiring submission of the venue issue to the jury, Green v. United States, 309 F.2d 852 (5th Cir. 1962)
5
From this information one might infer that the transaction transpired locally, the checks probably being delivered and cashed in Manhattan during business hours
6
Transcript at 220
7
Since the defendant failed to offer any evidence in his own defense, such independent support for a negative inference would almost necessarily have been lacking
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833 F.2d 1008
Mitchellv.Lynaugh*
NO. 87-2270
United States Court of Appeals,Fifth Circuit.
OCT 29, 1987
1
Appeal From: E.D.Tex.
2
REVERSED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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538 U.S. 1006
LOVEJOYv.UNITED STATES;RODRIGUEZv.UNITED STATES;HERAS-JIMENEZv.UNITED STATES;SUAREZ-GARCIAv.UNITED STATES;SIMMSv.UNITED STATES; andCAMBRAYv.UNITED STATES.
No. 02-9571.
Supreme Court of United States.
April 28, 2003.
1
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.
2
C. A. 5th Cir. Certiorari denied. Reported below: 54 Fed. Appx. 796 (first and fourth judgments), 797 (third judgment), and 798 (second and fifth judgments); 61 Fed. Appx. 121 (sixth judgment).
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362 F.3d 874
UNITED STATES of America, Appellee,v.Jerale I. MANNING-ROSS, Defendant, Appellant.
No. 02-1984.
United States Court of Appeals, First Circuit.
Heard March 1, 2004.
Decided March 30, 2004.
Juan F. Matos-de Juan, Assistant Federal Public Defender, with whom Joseph C. Laws, Jr., Federal Public Defender, and Joannie Plaza Martínez, Assistant Federal Public Defender, were on brief, for appellant.
CPT Corey Jack Marks, Office of the Staff Judge Advocate, with whom H.S. García, United States Attorney, was on brief, for appellee.
Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and SELYA, Circuit Judge.
TORRUELLA, Circuit Judge.
1
Magistrate Judge Arenas found defendant-appellant, Jerale I. Manning-Ross ("Manning"), guilty of driving under the influence of alcohol on a federal military base and fined him $500. Manning appealed his conviction and fine, in the first instance, to this court. We dismiss the appeal for lack of jurisdiction.
2
The parties now believe, as does this panel, that this court lacks jurisdiction over this appeal. "In all cases of conviction by a United States magistrate an appeal of right shall lie from the judgment of the magistrate to a judge of the district court of the district in which the offense was committed." 18 U.S.C. § 3402. It is well established that "[t]his language indicates that a defendant challenging a conviction or a sentence rendered by a Magistrate Judge must do so in the first instance in the district court." United States v. Jones, 117 F.3d 644, 645 (2d Cir.1997) (citing United States v. Baxter, 19 F.3d 155, 156-57 (4th Cir.1994); United States v. Smith, 992 F.2d 98, 99 (7th Cir.1993); United States v. Soolook, 987 F.2d 574, 575 (9th Cir.1993); Midway Mfg. Co. v. Kruckenberg, 720 F.2d 653, 654 (11th Cir.1983)). To appeal the Magistrate Judge's decision, Manning should have appealed to the district court. This court has jurisdiction to entertain an appeal only after the district court renders a final judgment. See 28 U.S.C. § 1291.
3
Courts confronting similar situations have noted that although the notice of appeal "identified this court rather than the district court as the reviewing body, that error does not deprive the lower court of jurisdiction" to review the conviction and the fine if notice of the appeal was timely filed and the appellee will not suffer undue prejudice. Smith, 992 F.2d at 100; see also Jones, 117 F.3d at 645-46; Soolook, 987 F.2d at 575.
4
Thus, we dismiss the appeal. Had we jurisdiction over this case, we would have dismissed it in its entirety. We became aware of the fact that this court lacked jurisdiction after reading the briefs, researching the case law, and hearing oral arguments. By that point, it was clear that Manning's contention that there was insufficient evidence to support a conviction lacked merit. It was also clear that the fine imposed by the Magistrate Judge was appropriate, as the Puerto Rico Penal Code contains a catchall penalty provision that prescribes a penalty when one is not established by the other sections of the Code. See 33 P.R. Laws Ann. § 3045.
5
Appeal dismissed.
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387 F.Supp.2d 770 (2004)
Max MAY, et al., Plaintiffs,
v.
NATIONAL BANK OF COMMERCE, a banking corporation organized under the laws of the United States of America, in its corporate capacity and as Trustee of the Memphis Equipment Company Employee Stock Ownership Plan, and Lawrence Scott, an individual resident of Cordova, Shelby County, Tennessee, Defendants.
No. 03-2122 M1/P.
United States District Court, W.D. Tennessee, Western Division.
October 21, 2004.
*771 *772 *773 John J. Heflin, III, Kenneth P. Jones, Bourland Heflin Alarez & Minor, Memphis, TN, for Plaintiffs.
Bobby M. Leatherman, Jr., Leatherman Law Office, Memphis, TN, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
MCCALLA, District Judge.
Before the Court is Plaintiffs' Motion for Partial Summary Judgment, filed April 14, 2004.[1] Defendant Lawrence Scott responded in opposition on May 20, 2004. Plaintiffs move for partial summary judgment as to liability for claims brought under Tennessee Law and the Employee Retirement Income Security Act. For the following reasons, the Court GRANTS in part and DENIES in part Plaintiffs' motion for partial summary judgment.
I. Background
This case concerns the conduct through which Defendant Lawrence Scott ultimately obtained ownership of the Memphis Equipment Company, Inc. ("MEC") following a stock purchase transaction in January, 1999. Plaintiffs brought claims against Scott alleging Scott improperly acted without approval of MEC's Board of Directors, breached his fiduciary duties as a director and officer of the company and wrongfully converted company funds for his own personal use. Plaintiffs also brought claims against Scott under the Employee Retirement Income Security Act alleging he engaged in a prohibited transaction, breached his fiduciary duties and failed to properly disclose information regarding the ESOP.
The following facts are undisputed in this case. Defendant Scott was the President of MEC and served on its Board of Directors. MEC maintained an Employee Stock Ownership Plan ("MEC ESOP") which, prior to the January 1999 stock purchase transaction, held all of the stock of MEC. Scott served as a member of the Administrative Committee of the MEC ESOP. Plaintiffs Max May and Billy Thompson were the other two members serving on MEC's Board of Directors and the Administrative Committee of the MEC ESOP. At all relevant times, the National Bank of Commerce ("NBC") was the trustee of the MEC ESOP.
Scott had thought about purchasing MEC's stock for almost ten years before the January 1999 stock purchase transaction. Southard Financial ("Southard") performed valuation reports for either the minority interests in the MEC stock held in the MEC ESOP or of the stock alone from August 31, 1990 through August 31, 1996.[2] Throughout that time, Scott repeatedly *774 sought a lower valuation from Southard.
For several years before the stock purchase transaction, MEC maintained a banking relationship with SouthTrust Bank ("SouthTrust"). At a time no later than the spring of 1998, Scott began negotiations with SouthTrust for a loan to MEC which would be secured by MEC's assets. On June 18, 1998, Scott signed a commitment letter from SouthTrust accepting its offer to make a loan to MEC. In order to close the loan, SouthTrust required a Certified Corporate Resolution. Plaintiff Thompson signed, without reading, the Certified Corporate Resolution, authorizing Scott to conduct the loan transaction with SouthTrust on behalf of MEC. (Pl.'s Statement of Uncontroverted Facts in Support of Mot. for Partial Summ. J. ¶ 57.) (Def.'s Resp. to Pl.'s Statement of Uncontroverted Facts p. 4) Thompson signed the resolution after he was told by Scott that his signature was required on a document required to execute a routine business matter with SouthTrust. Id. SouthTrust then made a loan to MEC of $2,300,000, which was based on the value of MEC's assets and its ability to repay the loan. Scott does not dispute that Plaintiffs May and Thompson never knew, discussed or approved the SouthTrust loan to MEC.
Scott provided David Lynch, an employee at NBC supervising the MEC ESOP, a new Trust Agreement dated July 1, 1998, to replace the original Trust Agreement previously entered between MEC and Union Planters. The new Trust Agreement was entered into between MEC and NBC. (Pl.'s Ex. 15) Both Trust Agreements provided that pursuant to the directions of the Administrative Committee, the Trustee would carry the responsibility of administering the MEC ESOP. The new Trust Agreement, however, contained an added provision stating:
Notwithstanding any provision in the Plan or this Trust Agreement to the contrary, in the event that the Trust has an opportunity to sell substantially all of the Company Stock it holds to any person or persons, then the investigation, negotiation, and investment decision with respect to such potential sale shall be performed by the Trustee in its sole discretion, without any direction or instruction from the Committee, the Company, or any other party. In addition, the Committee may authorize the Trustee to act on any other matter or class of matters with respect to which direction or instruction to the Trustee by the Committee is called for hereunder without specific direction or other instruction from the Committee.
(Pl.'s Ex. 15). Lynch signed the new Trust Agreement. Although Plaintiff May's signature appeared on the new Trust Agreement, Scott does not dispute that he did not tell May about the added provision regarding the Trustee's powers to sell company stock. Scott also does not dispute that May and Thompson were never told of this change and that they never discussed or approved the new Trust Agreement.
On January 19, 1999, Lynch executed a letter of intent that described an agreement by NBC to sell all but one share of MEC stock to MEC and to sell the remaining one share of MEC stock to Scott for a price of $7.78 per share. Lynch then executed a Stock Purchase Agreement on January 21, 1999 whereby MEC would *775 redeem all but one share of MEC stock at a price of $7.78 per share and Scott would purchase the remaining share of MEC stock at the same price. Scott did not inform May and Thompson about the stock purchase transaction and has admitted that he bought the stock of MEC without the knowledge of Plaintiffs May and Thompson or the other MEC ESOP plan participants. He does not dispute that he told his ex-wife, Jolynne Scott, who is also employed by MEC, that he owned MEC, that others were unaware of his ownership and that he wanted to keep that fact a secret. Scott does not remember any costs he personally paid to obtain ownership of MEC except for the $7.78 he paid to acquire one share of MEC stock. He does not dispute that MEC paid the remaining costs of the stock purchase transaction.
Scott and NBC's trust department prepared the Summary Annual Reports given to MEC ESOP participants. The Annual Report for the MEC ESOP which was filed with the United States Department of Labor for the year ending August 31, 1999, disclosed that there was a "sale, exchange, or lease of any property between the plan and the employer, any fiduciary, any of the five most highly paid employees of the employer, any owner of a 10% or more interest in the employer, or relatives of such persons ..." for $2,302,608.00.[3] (Pl.'s Ex. 182). However, the Summary Annual Reports for the years ending August 31, 1999 or thereafter did not disclose the stock purchase transaction.
May and Thompson did not suspect that the company's stock originally held by the ESOP had been sold until either October or November of 2002. When Thompson later went to Scott and asked him whether there was a change in ownership, Scott replied that nothing had changed. At some point following that conversation, Scott told Thompson that he lied and that he purchased the company.[4]
Before the January 1999 stock purchase transaction, Scott also used MEC funds for his own personal use. In December 1997, Scott bought a Honda 4-wheeler for $5,981.40. Additionally, in August 1999, Scott bought, with company funds, a 1999 Toyota Camry for his ex-wife for $18,342.00.
II. Standard of Review
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper "if ... 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(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The Supreme Court has explained that the standard for determining whether summary judgment is appropriate is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
*776 So long as the movant has met its initial burden of "demonstrat[ing] the absence of a genuine issue of material fact," Celotex, 477 U.S. at 323, 106 S.Ct. 2548, and the nonmoving party is unable to make such a showing, summary judgment is appropriate. Emmons v. McLaughlin, 874 F.2d 351, 353 (6th Cir.1989). In considering a motion for summary judgment, "the evidence as well as all inferences drawn therefrom must be read in a light most favorable to the party opposing the motion." Kochins v. Linden-Alimak, Inc., 799 F.2d 1128, 1133 (6th Cir.1986); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
III. Analysis
Plaintiffs move for partial summary judgment against Defendants as to claims brought under Tennessee state law and the Employee Retirement Income Security Act ("ERISA"). The Court will analyze each aspect of Plaintiffs' motion for partial summary judgment.
A. Tennessee Law Claims
Plaintiffs allege Scott's conduct did not satisfy the requirements of several provisions of the Tennessee Code. Plaintiffs specifically allege that Scott, without the knowledge or consent of the Board of Directors, entered into the following transactions in violation of § 48-22-101 and § 48-18-202 of the Tennessee Code: (1) the 1998 Trust Agreement with NBC; (2) the loan from SouthTrust Bank; (3) the redemption where MEC redeemed all but one share of its stock; and (4) Scott's purchase of the remaining share of MEC stock. Plaintiffs also allege that Scott violated § 48-18-301 and § 48-18-302 of the Tennessee Code by failing to act in good faith and by engaging in self dealing. Finally, Plaintiffs claim that Scott wrongfully converted corporate property under Tennessee law.
Defendant Scott contends that Plaintiffs' state law claims regarding the transactions leading to the stock purchase are preempted by ERISA.[5]
1. ERISA Preemption
ERISA preempts state law claims that "relate to" an employee benefit plan covered under ERISA. 29 U.S.C. § 1144(a); Davies v. Centennial Life Ins. Co., 128 F.3d 934, 939 (6th Cir.1997). An ESOP is a plan covered under ERISA. Benefits Comm. Of Saint-Gobain Corp. v. Key Trust Co. of Ohio, N.A., 313 F.3d 919, 925 (6th Cir., 2002). A state law claim will "relate to" an employee benefit plan if "it has a connection with or reference to such a plan." Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983). The Sixth Circuit has noted that "only those state laws and state law claims whose effect on employee benefit plans is merely tenuous, remote or peripheral are not preempted." Cromwell v. Equicor-Equitable HCA Corp., 944 F.2d 1272, 1276 (6th Cir.1991). "It is not the label placed on a state law claim that determines whether it is preempted, but whether in essence such a claim is for the recovery of an ERISA plan benefit." Id.
The Court concludes that under the reasoning of Cromwell, Plaintiffs claims under Section 48-22-101 and Section 48-18-202 regarding Scott's conduct of entering into various transactions without the knowledge or approval of MEC's Board of Directors *777 are not preempted by ERISA.[6] Plaintiffs assert these state law claims not to recover benefits under the MEC ESOP, but instead as a basis to reverse the transactions in which Scott was involved.
The Court finds that Plaintiffs' state law claims for breach of fiduciary duty are similarly not preempted by ERISA. Although some state law claims of breach of fiduciary duty are preempted by ERISA, Perry v. P*I*E Nationwide, Inc., 872 F.2d 157, 161 (6th Cir.1989) (concluding claim of breach of fiduciary duty was preempted where plaintiffs alleged employer fraudulently induced participation in a newly established benefit plan because ERISA provided a specific remedy for such a claim.); Smith v. Provident Bank, 170 F.3d 609, 613 (1999) (concluding common law breach of fiduciary duty claim was preempted by ERISA where former trustee of an ERISA plan committed errors in transferring the assets held in a plan participant's account.), Cromwell counsels in favor of the opposite result here. Plaintiffs state law breach of fiduciary duty claims do not seek the recovery of an ERISA benefit under the MEC ESOP. Rather, the claims are asserted by Plaintiffs as a basis to void Scott's transactions. Moreover, Plaintiffs' state law breach of fiduciary duty claims allege that Scott's transactions should be voided because as a Director and Officer of MEC, he violated his fiduciary duties to the company in general rather than to the MEC ESOP.
2. Tennessee Code § 48-22-101
Plaintiffs allege that the loan transaction executed by Scott with SouthTrust Bank did not follow the requirements established in § 48-22-101(a)(2) of the Tennessee Code. Section § 48-22-101(a) provides in pertinent part:
A corporation may, on the terms and conditions and for the consideration determined by the board of directors:
(2) Mortgage, pledge, dedicate to the repayment of indebtedness (whether with or without recourse), or otherwise encumber any or all of its property whether or not in the usual and regular course of business; ...
Tenn.Code Ann. § 48-22-101(a)(2).
Scott does not dispute that Plaintiffs May and Thompson did not know, discuss, or consent to Scott's loan transaction with SouthTrust. Although Plaintiff Thompson signed, without reading, the Certified Corporate Resolution required by SouthTrust to close the loan which gave Scott the authority to conduct the loan transaction with SouthTrust on behalf of MEC, Scott does not dispute Thompson signed the resolution after he was told by Scott that his signature was required to execute a routine matter concerning MEC's banking relationship with SouthTrust. Under these facts, the Court finds that as a matter of law, Scott's loan transaction with SouthTrust did not satisfy the requirements of Section 48-22-101(a)(2). Therefore, the Court GRANTS Plaintiffs' motion for summary judgment as to Scott's liability under Section 48-22-101(a)(2).
3. Tennessee Code § 48-18-202(a)
Plaintiffs allege that Scott, without conducting a meeting of the Board of Directors, *778 executed the 1998 Trust Agreement with NBC, the loan transaction with SouthTrust, the redemption by MEC of all but one of its shares from the MEC ESOP and his own individual purchase of the remaining share of stock. Section 48-18-101(b) of the Tennessee Code provides that "[a]ll corporate powers shall be exercised by or under the authority of, and the business and affairs of the corporation managed under the direction of, its board of directors, subject to any limitations set forth in the charter." Tenn.Code Ann. § 48-18-101(b). Section 48-18-202(a) of the Tennessee Code addresses actions taken by the Board of Directors without a meeting and provides:
(a) Unless the charter or bylaws provide otherwise, action required or permitted by chapters 11-27 of this title to be taken at a board of directors' meeting may be taken without a meeting. If all directors consent to taking such action without a meeting, the affirmative vote of the number of directors that would be necessary to authorize or take such action at a meeting is the act of the board. The action must be evidenced by one (1) or more written consents describing the action taken, signed by each director in one (1) or more counterparts, indicating each signing director's vote or abstention on the action, and shall be included in the minutes or filed with the corporate records reflecting the action taken.
Tenn.Code Ann. § 48-18-202(a).
In the case at bar, the undisputed facts reveal that both May and Thompson did not consent to the transactions undertaken by Scott without a meeting of the Board of Directors. For instance, Scott executed the new trust agreement with NBC without the knowledge or consent of May and Thompson. Although, May's signature appears on the new trust agreement, Scott did not tell May about the changes made to that agreement which gave NBC as trustee the sole discretion to sell company stock. As noted above, Scott also entered into the loan transaction with SouthTrust without May and Thompson's consent or knowledge. Scott has also admitted that he purchased the stock of the MEC ESOP without the knowledge of Plaintiffs May and Thompson or the other plan participants. He also does not dispute that he told his ex-wife that he owned MEC, that others were unaware of his ownership, and that he wanted to keep that fact a secret.
Scott contends that he had the authority to enter into all the business transactions on behalf of MEC. The Court finds this argument unavailing, because Scott's conduct in entering into the above transactions nevertheless failed to comply with the requirements listed in the statute. The Court therefore GRANTS Plaintiffs' motion for summary judgment as to Scott's liability under Section 48-18-202(a) of the Tennessee Code.
4. Tennessee Code § 48-18-301 and § 48-18-302
Plaintiffs contend that Defendant Scott, by changing the terms of the 1998 Trust Agreement, obtaining the loan from SouthTrust to finance the stock purchase, and entering into the stock purchase transaction with NBC breached his fiduciary duties under § 48-18-301 and § 48-18-302 of the Tennessee Code. Section 48-18-301(a) of the Tennessee Code governs General Standards of Conduct for Directors and provides:
(a) A director shall discharge all duties as a director, including duties as a member of a committee:
(1) In good faith;
(2) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and
*779 (3) In a manner the director reasonably believes to be in the best interests of the corporation.
Tenn.Code Ann. § 48-18-301(a). Section 48-18-403 of the Tennessee Code provides essentially the same language regarding the standard of conduct for officers. Tenn.Code Ann. § 48-18-403 (Supp.2002). Section 48-18-302(a) of the Tennessee Code governs conflict of interest transactions by directors and officers and specifically provides:
(a) A conflict of interest transaction is a transaction with the corporation in which a director or officer of the corporation has a direct or indirect interest. A conflict of interest transaction is not voidable by the corporation solely because of the director's or officer's interest in the transaction if any one (1) of the following is true:
(1) The material facts of the transaction and the director's or officer's interest were disclosed or known to the board of directors or a committee of the board of directors and the board of directors or committee authorized, approved, or ratified the transaction;
(2) The material facts of the transaction and director's or officer's interest were disclosed or known to the shareholders entitled to vote and they authorized, approved, or ratified the transaction; or
(3) The transaction was fair to the corporation.
Tenn.Code Ann. § 48-18-302(a).
Directors and officers of a corporation are fiduciaries to the corporation and its shareholders. Johns v. Caldwell, 601 S.W.2d 37, 41 (Tenn.Ct.App.1980). Specifically, a director or officer of the corporation must act in good faith and remain loyal to the corporation and its shareholders. Hayes v. Schweikart's Upholstering Co., 55 Tenn.App. 442, 402 S.W.2d 472, 483 (1965). Directors and officers "are not permitted to deal with the corporation or its assets for their own private gain and cannot deal for themselves and for the corporation at one and the same time..." Central Bus Lines v. Hamilton Nat., Bank, 34 Tenn.App. 480, 239 S.W.2d 583, 585 (1951).
The Court concludes that Scott breached his fiduciary duties as a director and officer of MEC under Tennessee law and finds Scott's arguments to the contrary unavailing.[7] Scott was a member of MEC's Board of Directors and also served as the company's President. For almost ten years prior to the stock purchase transaction in January 1999, he had thought about purchasing MEC stock from the ESOP. Southard Financial performed valuation reports of MEC from August 31, 1990 through August 31, 1996. Scott repeatedly sought a lower valuation from Southard.
*780 Scott obtained a loan from SouthTrust for $2,300,000 secured by MEC's assets. Scott does not dispute that the Board of Directors never knew, discussed or approved the loan. Although Plaintiff Thompson signed, without reading, the Certified Corporate Resolution authorizing Scott to conduct the loan transaction with SouthTrust on behalf of MEC, Scott does not dispute that Thompson signed the resolution after Scott told him that his signature was needed on a normal banking document for a routine business matter with SouthTrust.
On July 1, 1998, Scott executed a new Trust Agreement. The new Trust Agreement contained an added provision giving NBC, as Trustee of the MEC ESOP, sole discretion to sell company stock without direction or instruction from the Administrative Committee. Although Plaintiff May's signature appeared on this agreement, Scott did not tell May about the change regarding the Trustee's powers. Moreover, May and Thompson never discussed or approved the new Trust Agreement.
Scott has also admitted that he bought the stock of MEC in January, 1999, without the knowledge of Plaintiffs May and Thompson or the other ESOP plan participants. Moreover, he told his ex-wife that he owned MEC, that others were unaware of his ownership and that he wanted to keep that fact a secret. Scott does not remember any costs he personally paid to obtain ownership of MEC except for the $7.78 he paid to acquire one share of stock. He does not dispute that MEC paid the remaining costs of the stock purchase transaction. May and Thompson did not learn that MEC's stock was sold out of the ESOP until October or November, 2002. When Thompson later confronted Scott and asked him whether there was a change in ownership, Scott replied that nothing had changed. It was only at some point following that conversation that Scott told Thompson that he lied and that he purchased the Company.
Based on these facts, the Court finds as a matter of law that Scott did not conform to the standards of conduct outlined in Section 48-18-301(a) of the Tennessee Code. Scott's conduct in orchestrating the purchase of the company was not made in good faith. An ordinarily prudent person acting in Scott's position as a director and President of the company would not have obtained ownership in the above manner. Moreover, Scott's conduct shows that he could not have been reasonably acting in the best interests of the company. The Court also finds that the undisputed facts show Scott had a direct or indirect interest in the above transactions and concludes that those transactions constituted conflict of interest transactions under Section 48-18-302(a) of the Tennessee Code. Therefore, the Court GRANTS Plaintiffs' motion for summary judgment as to Scott's liability under § 48-18-301 and § 48-18-302 of the Tennessee Code.
5. Wrongful Conversion
"A conversion ... is the appropriation of the thing to the party's own use and benefit, by the exercise of dominion over it, in defiance of plaintiff's right." Barger v. Webb 216 Tenn. 275, 391 S.W.2d 664, 665 (1965). Plaintiffs allege Scott is liable for converting MEC funds for his own personal use and state that they will prove the specific amount of company funds converted at trial. Specifically, Plaintiffs allege that in December, 1997, Scott bought a Honda 4-wheeler for $5,981.40 with MEC funds. Plaintiffs also allege that following the stock purchase sale, Scott, in August 1999, bought with company funds a Toyota Camry for his ex-wife for $18,342.00.[8]
*781 Scott does not dispute that he used MEC funds to purchase the 4- wheeler for his own personal use. Scott alleges, however, that he was under the belief he repaid the company for the expenses associated with the purchase. The Court therefore finds that there is an issue of material fact and therefore DENIES Plaintiffs' motion for summary judgment as to their claim that Scott converted MEC assets for his personal use in purchasing the Honda 4- wheeler.
Scott contends that Plaintiffs' claims of conversion with respect to conduct after January 29, 1999 must fail because Plaintiffs lacked standing after that time. He specifically argues that under § 48-17-401 of the Tennessee Code, which states the procedures required in derivative proceedings, Plaintiffs are not shareholders. Section 48-17-401(a) of the Tennessee Code provides:
(a) A person may not commence a proceeding in the right of a domestic or foreign corporation unless the person was a shareholder of the corporation when the transaction complained of occurred or unless the person became a shareholder through transfer by operation of law from one who was a shareholder at that time.
Tenn.Code Ann. § 48-17-401(a) (Supp.2002). Scott contends Plaintiffs are not shareholders under the statute because they do not fall into either of the categories listed in § 48-17-401(e) which states:
(e) For purposes of this section, "shareholder" includes a beneficial owner whose shares are held in a voting trust or held by a nominee on the beneficial owner's behalf.
Tenn.Code Ann. § 48-17-401(e) (Supp.2002). According to Scott, because Plaintiffs do not meet either of these categories, they lack standing to bring a derivative claim for conversion.
The Court finds this argument unavailing, as the plain meaning of the statute does not lead to such an interpretation. The statute does not state that a shareholder is only someone who falls into the categories listed under § 48-17-401(e). Instead, it states that a shareholder includes a person who falls into one of the two categories listed in § 48-17-401(e).
Scott alternatively argues that Plaintiffs' lack standing to assert claims for conversion with respect to conduct occurring after the stock purchase sale in January 1999 because Scott thereafter owned 100% of the shares of MEC stock. Until the stock purchase transaction is voided, Scott argues Plaintiffs cannot assert derivative rights for conduct that occurred following the stock purchase sale. The Court concludes that it must reserve resolving this issue pending final determination as to whether Scott's transactions are voidable. The Court therefore DENIES Plaintiffs' motion for summary judgment as to its claim for conversion regarding Scott's August 1999 purchase of the Toyota Camry using MEC funds.
B. ERISA
Plaintiffs contend that Defendant Scott violated several provisions of ERISA. Plaintiffs specifically allege Scott engaged in a prohibited transaction under 29 U.S.C. § 1106. Plaintiffs also claim Scott failed to disclose the stock purchase transaction with NBC under 29 U.S.C. § 1023(b) and 29 U.S.C. § 1024(b). Plaintiffs finally allege *782 Scott breached his fiduciary duties under 29 U.S.C. § 1104 and 29 U.S.C. § 1109.
1. Scott's liability under 29 U.S.C. § 1106, 29 U.S.C. § 1104 and 29 U.S.C. § 1109 for conduct surrounding the stock purchase transaction
29 U.S.C. § 1106 prohibits transactions between a plan and a party in interest or fiduciary.[9] 29 U.S.C. § 1104 states the duties of an ERISA fiduciary. 29 U.S.C. § 1104. Defendant Scott contends he is not subject to liability under 29 U.S.C. § 1106 and 29 U.S.C. § 1104 because he was not a fiduciary with respect to the stock purchase transaction under the statute. He specifically contends he possessed no control over NBC's decision to sell company stock. Plaintiffs, on the other hand, claim Scott is a fiduciary under the above statutes because he was a member of the Administrative Committee of the MEC ESOP, a member of the MEC Board of Directors and the President of the company.
ERISA provides the following definition for a fiduciary:
[A] person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets, ... or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan.
29 U.S.C. § 1002(21)(A). "ERISA defines `fiduciary' not in terms of formal trusteeship, but in functional terms of control and authority over the plan..." Mertens v. Hewitt Assocs., 508 U.S. 248, 262, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). In Hunter v. Caliber System, Inc., 220 F.3d 702, 718 (6th Cir.2000), the Court of Appeals stated that:
We have recognized that employers who are also plan sponsors wear two hats: one as a fiduciary in administering or managing the plan for the benefit of participants and the other as employer in performing settlor functions such as establishing, funding, amending, and terminating the trust.
Id. As explained by the Sixth Circuit in Hamilton v. Carell, 243 F.3d 992, 998 (6th Cir.2001), the Hunter Court emphasized the necessity of looking at the conduct at issue to determine whether someone is an ERISA fiduciary. Id. The Hunter Court specifically stated that:
The fiduciary obligations imposed by ERISA are implicated only where an employer acts in its fiduciary capacity. Thus, we must examine the conduct at issue to determine whether it constitutes "management" or "administration" of the plan, giving rise to fiduciary concerns, or "merely [a] `business decision []' that ha[s] an effect on an ERISA plan" not subject to fiduciary standards.
Hunter, 220 F.3d at 718 (quoting Sengpiel v. B.F. Goodrich Co., 156 F.3d 660, 665 (6th Cir.1998)). ERISA is not designed to regulate purely corporate behavior. Akers v. Palmer, 71 F.3d 226, 229 (6th Cir.1995).
Plaintiffs allege Scott breached his fiduciary duties to the ESOP by engaging in the following conduct: executing the stock purchase transaction with MEC; changing the terms of the MEC ESOP *783 Trust Agreement; fraudulently obtaining May's signature on the amended Trust Agreement; concealing the stock purchase transaction from the Officers, Board of Directors and plan beneficiaries; manipulating information given to those who conducted valuations of MEC stock and NBC; and concealing the stock purchase transaction from Thompson and May after it occurred.
Based on the above conduct, the Court cannot conclude as a matter of law that Scott is an ERISA fiduciary. Although Scott changed the terms of the trust agreement giving NBC the sole discretion to sell company stock in the ESOP, under Hunter, such a change of terms does not impose ERISA's fiduciary obligations. Moreover, the other instances of conduct by which Scott is alleged to have breached his fiduciary duties do not reveal that he had any discretionary authority or control over the management or administration of the plan. Instead, the Court finds that Scott's above conduct constituted corporate business decisions made in an effort to obtain ownership of the company. Accordingly, the Court DENIES Plaintiffs' motion for summary judgment as to Scott's liability under 29 U.S.C. § 1106. The Court also DENIES Plaintiff's motion for summary judgment as to Scott's liability under 29 U.S.C. § 1104 with respect to the above conduct.
2. Failure to Disclose
Plaintiffs move for summary judgment as to Scott's liability for failure to disclose the stock purchase transaction in the Summary Annual Reports provided to the MEC ESOP plan participants under 29 U.S.C. § 1023(b), 29 U.S.C. § 1024(b) and the fiduciary duty provisions of 29 U.S.C. § 1104 and 29 U.S.C. § 1109. Scott argues that the information disclosed in the Summary Annual Reports satisfied the requirements of Section 1023(b) and Section 1024(b).
29 U.S.C. § 1023 requires an employee benefit plan covered by ERISA to have an annual report published and filed with the Secretary of Labor. 29 U.S.C. § 1023. Under Section 1023(b), the annual report must include a financial statement. 29 U.S.C. § 1023(b). Section 1023(b)(3) further provides that the financial statement must have attached certain information in separate schedules including:
(A) a statement of the assets and liabilities of the plan aggregated by categories and valued at their current value, and the same data displayed in comparative form for the end of the previous fiscal year of the plan;
(B) a statement of receipts and disbursements during the preceding twelve-month period aggregated by general sources and applications;...
(D) a schedule of each transaction involving a person known to be party in interest, the identity of such party in interest and his relationship or that of any other party in interest to the plan, a description of each asset to which the transaction relates; the purchase or selling price in case of a sale or purchase, the rental in case of a lease, or the interest rate and maturity date in case of a loan; expense incurred in connection with the transaction; the cost of the asset, the current value of the asset, and the net gain (or loss) on each transaction;
29 U.S.C. § 1023(b)(3).
Under 29 U.S.C. § 1024(b), the publication of summary plan descriptions and annual reports must be made to plan participants and beneficiaries. 29 U.S.C. § 1024(b). Section 1024(b)(1) requires the administrator to provide each participant and each beneficiary receiving plan benefits "all modifications and changes referred *784 to in section 1022(a)" and specifically provides the following disclosure requirements regarding modifications to a plan:
If there is a modification or change described in section 1022(a) of this title (other than a material reduction in covered services or benefits provided in the case of a group health plan (as defined in section 1191b(a)(1) of this title)), a summary description of such modification or change shall be furnished not later than 210 days after the end of the plan year in which the change is adopted to each participant, and to each beneficiary who is receiving benefits under the plan.
29 U.S.C. § 1024(b)(1). Section 1022(a) provides in pertinent part:
A summary of any material modification in the terms of the plan and any change in the information required under subsection (b) of this section shall be written in a manner calculated to be understood by the average plan participant and shall be furnished in accordance with section 1024(b)(1) of this title.
29 U.S.C. § 1022(a) (emphasis added). Additionally, Section 1024(b)(3) states:
Within 210 days after the close of the fiscal year of the plan, the administrator shall furnish to each participant, and to each beneficiary receiving benefits under the plan, a copy of the statements and schedules, for such fiscal year, described in subparagraphs (A) and (B) of section 1023(b)(3) of this title and such other material (including the percentage determined under section 1023(d)(11) of this title) as is necessary to fairly summarize the latest annual report.
29 U.S.C. § 1024(b)(3).
In the case at bar, Plaintiffs do not specifically state what information Scott failed to disclose to the Department of Labor in violation of Section 1023(b) of ERISA. Rather, Plaintiffs state as undisputed that Scott disclosed the stock purchase transaction to the Department of Labor for the fiscal year ending August 31, 1999. The Court therefore DENIES Plaintiffs' motion for summary judgment as to Scott's liability under Section 1023(b) of ERISA.
Similarly, the Court concludes that Plaintiffs are not entitled to judgment as a matter of law as to Scott's liability for failing to disclose the stock purchase transaction under Section 1024(b)(1). As noted, if there is a modification as defined under Section 1022(a), Section 1024(b)(1) requires an administrator to provide to the ESOP plan participants a summary description of modifications. In the case at bar, the Plaintiffs allege the stock purchase transaction was a material modification to a plan. The Court notes, however, that Section 1022(a) refers to "any material modification in the terms of the plan." 29 U.S.C. § 1022(a). The stock purchase transaction was not a material modification in the terms of the plan, but was rather a modification in the type of assets contained in the plan. Accordingly, the Court DENIES Plaintiffs' motion for summary judgment as to Scott's liability under Section 1024(b)(1) of ERISA.
The Court, however, finds that Scott is liable under Section 1024(b)(3) of ERISA. Scott was an administrator of the ESOP under ERISA. Section 1002(16)(A)(i) defines an administrator as "the person specifically so designated by the terms of the instrument under which the plan is operated." The 1998 Trust Agreement states that pursuant to the directions of the MEC ESOP Administrative Committee, the Trustee is responsible for the administration of the plan. Scott was a member of the Administrative Committee.
*785 It is undisputed that Scott and the NBC trust department prepared the Summary Annual Reports to the ESOP plan participants. As noted above, Scott disclosed the stock purchase transaction in the annual report for the year ending August 31, 1999, that was filed with the Department of Labor. However, the Summary Annual Reports provided for the ESOP plan participants for the years ending August 31, 1999, or thereafter did not disclose the January 1999 stock purchase transaction. Under 29 U.S.C. § 1024(b)(3), a plan administrator must provide to plan participants "such other material as is necessary to fairly summarize the latest annual report." 29 U.S.C. § 1024(b)(3). The Court finds that the stock purchase transaction constituted such necessary material and Scott's failure to disclose it was a violation of the statute. The Court therefore GRANTS Plaintiffs' motion for summary judgment as to Scott's liability under Section 1024(b)(3) of ERISA.
Scott's failure to disclose the stock purchase transaction to the ESOP participants also constituted a violation of the breach of fiduciary duty provisions listed in 29 U.S.C. § 1104. Section 1104(a)(1) provides in pertinent part:
(1) ... [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and-
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims;
(C) by diversifying the investments of the plan so as to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subchapter and subchapter III of this chapter.
29 U.S.C. § 1104(a)(1). "ERISA imposes high standards of fiduciary duty upon administrators of an ERISA plan." Krohn v. Huron Memorial Hosp., 173 F.3d 542, 547 (6th Cir.1999). There are three components to ERISA's fiduciary duty:
The first element is a "duty of loyalty" pursuant to which "all decisions regarding an ERISA plan `must be made with an eye single to the interests of the participants and beneficiaries.'" Second, ERISA imposes a "prudent man" obligation, which is "an unwavering duty" to act both "as a prudent person would act in a similar situation" and "with single-minded devotion" to those same plan participants and beneficiaries. Finally, an ERISA fiduciary must "`act for the exclusive purpose'" of providing benefits to plan beneficiaries.
Gregg v. Transp. Workers of America Int'l., 343 F.3d 833, 840-41 (6th Cir.2003) (internal citations omitted) (quoting Kuper v. Iovenko, 66 F.3d 1447, 1458 (6th Cir.1995)). 29 U.S.C. § 1109 describes the liability stemming from a breach of fiduciary duty and specifically provides:
(a) Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable to make good to such plan any losses to the plan resulting from each such breach, *786 and to restore to such plan any profits of such fiduciary which have been made through use of assets of the plan by the fiduciary, and shall be subject to such other equitable or remedial relief as the court may deem appropriate, including removal of such fiduciary. A fiduciary may also be removed for a violation of section 1111 of this title...
29 U.S.C. § 1109(a).
In the case at bar, Scott's failure to disclose the stock purchase transaction in the Summary Annual Reports to the ESOP plan participants under Section 1024(b)(3) was a decision that was not in the best interests of the plan participants. Moreover, a prudent person acting in Scott's position would not fail to mention the stock purchase transaction when preparing the Summary Annual Reports for the plan participants. Because the Court concludes that Scott breached his fiduciary duties under Section 1104, Scott is also liable to the plan under Section 1109.
IV. Conclusion
For the foregoing reasons, the Court GRANTS Plaintiffs' motion for summary judgment as to Scott's liability under § 48-22-101(a)(2), § 48-18-202(a), § 48-18-301 and § 48-18-302 of the Tennessee Code. The Court GRANTS Plaintiffs' motion for summary judgment as to Scott's liability under 29 U.S.C. § 1024(b)(3), 29 U.S.C. § 1104 and 29 U.S.C. § 1109 for failure to disclose. The Court DENIES Plaintiffs' motion for summary judgment as to Scott's liability for converting MEC funds to purchase the Honda 4- wheeler and the 1999 Toyota Camry. The Court DENIES Plaintiffs' motion for summary judgment as to Scott's liability under 29 U.S.C. § 1106, 29 U.S.C. § 1104 and 29 U.S.C. § 1109 for conduct surrounding the stock purchase transaction. Finally, the Court DENIES Plaintiffs' motion for summary judgment as to Scott's liability for failure to disclose under 29 U.S.C. § 1023(b) and 29 U.S.C. § 1024(b)(1).
NOTES
[1] The Court received a Notice of Settlement between Plaintiffs and Defendant National Bank of Commerce on October 13, 2004. Pending before the Court is Plaintiffs' Combined Motion and Memorandum for Expedited Hearing for Court Approval of Resolutions of Memphis Equipment Company Board of Directors and Administrative Committee of Memphis Equipment Company Employee Stock Ownership Plan Relating to Proposed Settlement and Release of Claims Against Defendant National Bank of Commerce, filed October 19, 2004. The Court will therefore not address any of the issues raised by Plaintiffs against Defendant National Bank of Commerce.
[2] Plaintiffs specifically allege that Southard performed valuations of the minority interests in the MEC stock held in the MEC ESOP. Scott, on the other hand, contends that Southard performed valuations of the stock held by the MEC ESOP.
[3] It is undisputed that Thompson signed the Annual Report given to the Department of Labor. Scott does not dispute, however, that Thompson signed the Annual Report without studying it because he relied on Scott to correctly complete the reports.
[4] The parties dispute the specific time Scott communicated to Thompson that he purchased the company. Plaintiffs specifically allege that Scott communicated this information within a few days after Thompson asked Scott whether there was a change in ownership. Scott, on the other hand, contends that he informed Thompson about his purchase of the company the day after Thompson asked him whether there was a change in ownership.
[5] Scott, in his Memorandum in opposition to Plaintiff's Motion for Partial Summary Judgment, also mentions that Plaintiff's state law claims are barred by the statute of limitations. Scott, however, does not move the Court for relief with respect to the statute of limitations defense. Therefore, the Court does not find it necessary to consider this argument.
[6] The Court does not interpret Defendant Scott to be arguing that Plaintiffs' state law claims for wrongful conversion are subject to ERISA preemption. In his response in opposition to Plaintiffs' motion for summary judgment, Scott argues that Plaintiffs' state law claims seeking to reverse the Scott/MEC restructuring transaction are preempted by ERISA. Moreover, Scott separately briefs the state law claim of wrongful conversion in another section of his response.
[7] Scott contends that summary judgment as to Plaintiffs' claims for breach of fiduciary duty under Tennessee Code § 38-18-301 and § 38-18-302 is inappropriate because he did not cause NBC, as Trustee of the MEC ESOP, to sell him company stock. The Court disagrees. Scott executed the 1998 Trust Agreement giving the Trustee the sole discretion to sell company stock without direction or instruction from the Administrative Committee of the ESOP thereby facilitating his purchase of MEC stock. The Court also finds Scott's attempts to distinguish cases relied upon by Plaintiffs in arguing Scott breached his fiduciary duties unavailing. Finally, Scott contends that summary judgment is inappropriate because NBC received fair value for the stock and was not harmed by the stock purchase transaction. The Court notes the question of harm is irrelevant, as Plaintiffs do not assert claims under the Tennessee Code as a basis to obtain damages, but rather to void the transactions at issue.
[8] Plaintiffs also allege "Scott has admitted taking funds from MEC, the unpaid balance of which he claims totals approximately two hundred thousand dollars ($200,000)." (Pl.'s Mem. in Support of Mot. for Partial Summ. J. p. 43). Plaintiffs, however, do not cite the portion of the record supporting this allegation. Accordingly, the Court cannot consider this specific allegation for purposes of summary judgment.
[9] ERISA broadly defines a party in interest "to include any fiduciary, a person providing services to the plan, an employer whose employees are covered by the plan, and certain shareholders and relatives." Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir.2002) (citing 29 U.S.C. § 1002(14)(A)-(F)).
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IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs December 6, 2005
STATE OF TENNESSEE v. JASPER L. VICK
Direct Appeal from the Criminal Court for Shelby County
No. 02-09113 Arthur T. Bennett, Judge
No. W2005-00467-CCA-R3-CD - Filed March 22, 2006
Following a jury trial, Defendant was convicted of one count of especially aggravated kidnapping,
a Class A felony, two counts of aggravated kidnapping, a Class B felony, and one count of sexual
battery, a Class E felony. The trial court merged Defendant’s two convictions for aggravated
kidnapping into his conviction for especially aggravating kidnapping. The trial court sentenced
Defendant as a Range II, multiple offender, to thirty-six years for his especially aggravated
kidnapping conviction and four years for his sexual battery conviction. The trial court ordered the
sentences to be served consecutively, for an effective sentence of forty years. Defendant does not
challenge the imposition of consecutive sentencing. In his appeal, Defendant argues (1) that the
evidence is insufficient to support his convictions; (2) that the trial court erred in denying
Defendant’s motion for a continuance; (3) that the trial court erred in classifying Defendant as a
Range II multiple offender; and (4) that the trial erred in its application of enhancement factors.
After a thorough review, we affirm Defendant’s convictions of especially aggravated kidnapping and
sexual battery. However, we remand the case to the trial court for resentencing in accordance with
this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed as to
Convictions; as to Sentencing, Judgments are Reversed and Remanded for Resentencing
THOMAS T. WOODALL, J., delivered the opinion of the court, in which ALAN E. GLENN and ROBERT
W. WEDEMEYER , JJ., joined.
Robert L. Parris, Memphis, Tennessee, for the appellant, Jasper L. Vick.
Paul G. Summers, Attorney General and Reporter; Renee W. Turner, Assistant Attorney General;
William L. Gibbons, District Attorney General; Lee Coffee, Assistant District Attorney General; and
Christopher Scruggs, Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
I. Background
Earline Holt testified that Defendant began living with her in her apartment in December
1999. At the time of the offenses, Ms. Holt was seven and one-half months pregnant with
Defendant’s child. Ms. Holt said that Defendant took her to work on February 14, 2001, between
5:15 a.m. and 5:30 a.m., in Ms. Holt’s red, 1989 Oldsmobile Cutlass. Ms. Holt’s mother arrived at
her place of employment around 8:15 a.m., and told Ms. Holt that she needed to go home. When
Ms. Holt arrived, the police were at her apartment.
Ms. Holt identified the comforter that was on the bed of her daughter, the victim in this case.
Ms. Holt said that she never used the comforter after Defendant began living with her. Ms. Holt said
that she and Defendant had sexual intercourse about a week before the offenses, but not on her
daughter’s bed.
On cross-examination, Ms. Holt said she had a “nice relationship” with Defendant. She
acknowledged, however, that she called the police in July 2000, when Defendant got upset and
struck his daughter who was visiting them. Ms. Holt said that Defendant never took the victim to
school, because the school was located across the street from their apartment. Ms. Holt said that
sometimes her brother and his girlfriend spent the night in the victim’s bedroom. She denied that
her sister and her boyfriend had sexual intercourse in the victim’s bedroom.
Ms. Holt acknowledged that her daughter did not suffer any physical injuries during the
incident, and Ms. Holt did not take her daughter to Child Advocacy until the day after the offenses.
The victim testified that she was fourteen years old at the time of the offenses. She said that
Defendant took her mother to work on February 14, 2001, while she was still asleep. When
Defendant returned, he came into her bedroom and showed her a “crack pipe” fashioned like a sex
toy. The victim said that she told Defendant to leave her alone, and he told her it was time to get up
for school. The victim got up and went into the bathroom. Defendant was still sitting on her bed
when she returned. The victim said that Defendant did not have a shirt on, but that was not unusual.
Defendant told the victim to turn off the light and close the bedroom door. She refused. Defendant
stood up, and the victim saw that he was naked. The victim asked him what he was doing, and
Defendant told her that he was going to “have sex” with her because her mother would not. The
victim kept telling Defendant, “no.”
The victim could not remember how her clothes were removed. The victim refused
Defendant’s advances, and Defendant started choking her. Defendant then rubbed his “private on
[her] private.” Defendant continued touching her for about ten to fifteen minutes, and then he told
the victim to go take a shower. The victim said she showered and got dressed. Defendant would not
let her answer the telephone which had been ringing on and off that morning. The victim said it was
her cousin, Shameka Fifer, calling because the young women always walked to school together.
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The victim said she and Defendant left the house. Defendant was carrying a kitchen knife
with a black handle and told the victim not to “act stupid.” The victim interpreted this to mean that
she was not to run or scream. The victim said she was afraid that Defendant was driving her
somewhere to kill her. Defendant and the victim left the apartment complex in Ms. Holt’s car.
Defendant placed the knife in the cup holder in the front seat armrest while he drove on the
interstate. The victim said she kept talking, trying to calm Defendant down because he was acting
“agitated, real easy to get mad.”
After awhile, Defendant turned the car around and drove the victim to Shameka Fifer’s
second floor apartment. Defendant stood at the bottom of the staircase, and watched as the victim
ran up to her cousin’s apartment. The victim said Ms. Fifer was waiting for her at the top of the
stairs, and the two young women went inside the apartment. The victim was crying. Shameka
Fifer’s mother, Stephanie Fifer, asked the victim what was wrong, and the victim said she could not
tell her. Stephanie Fifer asked the victim if Defendant had done something to her, and the victim
nodded. Stephanie Fifer called the victim’s grandmother. The victim identified the comforter which
was introduced as an exhibit at trial as the comforter which was on her bed when Defendant accosted
her.
On cross-examination, the victim acknowledged that she did not have any bruising on her
neck after Defendant choked her. She said that Defendant never touched her with the knife’s blade,
but he kept the knife pointed in her direction. The victim agreed that the comforter was on her bed
when her uncle and his girlfriend spent the night.
Shameka Fifer testified that the victim usually called her in the morning when she was ready
to leave for school. Ms. Fifer said that when the victim did not call her on February 14, 2001, Ms.
Fifer started calling the victim’s apartment. Ms. Fifer said she was just starting to go over to the
victim’s apartment when Defendant and the victim arrived. Ms. Fifer said that Defendant waited at
the bottom of the stairs until the victim reached the top landing.
Michael Redd testified that he was the groundskeeper for the victim’s apartment building and
lived on the premises. Mr. Redd said that he was friendly with Defendant. He saw Defendant leave
the apartment complex at approximately 8:00 a.m. in Ms. Holt’s Oldsmobile on February 14, 2001,
but Defendant did not speak to him. Defendant drove toward Interstate 240.
Rachel Copeland, a forensic nurse examiner with the Memphis Sexual Assault Resource
Center, testified that she attempted to take a blood sample from Defendant for DNA sampling.
Defendant told her she would need a court order. A court order was obtained, and Defendant again
refused to cooperate. The trial court conducted a hearing and again ordered Defendant to give a
blood sample. When he continued to resist, Defendant was sedated and a blood sample drawn.
Officer Carl Martin with the Memphis Police Department interviewed the victim on February
14, 2001. Officer Martin said the victim had been crying and was sometimes unresponsive to his
questioning. The victim told him, however, that Defendant accosted her when she got up to get
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ready for school. The victim told Officer Martin that Defendant rubbed his penis on her vagina.
Defendant made the victim take a shower and then get into the car. Officer Martin said the victim
told him that Defendant drove around for awhile, and then returned to the apartment complex.
Special Agent Donna Nelson, a forensic scientist with the TBI, cut seven swatches of
material from the victim’s comforter. The first four swatches showed the presence of semen from
two unidentified individuals. The semen sample from the last three swatches matched Defendant’s
DNA. On cross-examination, Agent Nelson testified that it was impossible to date the semen stains.
Defendant called Alice Faye Robinson as a witness. Ms. Robinson said that she lived in
Cotton Plank, Arkansas, which was about sixty miles from Memphis. Ms. Robinson had known
Defendant for about twenty-five years. Ms. Robinson testified that Defendant spent the night with
her on February 13, 2001. The following morning, Ms. Robinson said that she, Defendant, and Ms.
Robinson’s granddaughter shopped for most of the day. Defendant gave Ms. Robinson a wrist watch
for Valentine’s Day.
Defendant testified that he was in Cotton Plank, Arkansas on February 13 and February 14,
2001. He said that he and Ms. Holt had an argument about Ms. Holt’s cocaine use on the morning
of February 13, and he drove to Arkansas around 4:00 p.m. to avoid further arguing. Defendant said
that Ms. Holt had “a habit of calling the police” when she was angry. Defendant said that Ms. Holt
called the police in July 2000 when he got angry because the victim had kept his daughter out past
the time Defendant’s daughter was supposed to go back to her mother’s house. Defendant said that
he was charged with public intoxication and disorderly conduct on that occasion.
Defendant said that he was not surprised that some of the semen stains on the victim’s
comforter matched his DNA because he and Ms. Holt had previously had sexual intercourse on the
comforter.
On cross-examination, Defendant said that Ms. Holt knew where he was going when he left
Memphis on February 13, 2001. Defendant said that he paid the note on the Oldsmobile while he
lived with Ms. Holt and considered the car as a joint asset. Defendant acknowledged that he was
arrested on the current charges in Arkansas on January 26, 2002, after a routine traffic stop. He said
he was not driving the Oldsmobile at that time because the car had been impounded by then.
The State recalled Ms. Holt as a rebuttal witness. Ms. Holt testified that she had bought the
Oldsmobile Cutlass about a year before she met Defendant, and that the car was hers alone. Ms.
Holt said that she never made arrangements for Defendant to keep the car in Arkansas.
II. Motion for a Continuance
On the morning of trial, defense counsel moved for a continuance to allow time for
Defendant to be mentally evaluated. Defense counsel acknowledged that he had not observed any
cognitive problems or any signs of psychotic behavior. He became concerned, however, when
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Defendant continued to resist providing a DNA sample and seemed unable to comprehend certain
aspects of the trial process.
Debra Nichols, a social worker with the Mid-Town Mental Health Clinic, testified at the
hearing on Defendant’s motion for a continuance. She said that she attempted to interview
Defendant twice prior to the hearing, but Defendant refused to answer any questions other than
biographical information. Ms. Nichols said that she was unable from her brief observations to make
a finding as to Defendant’s mental state.
On cross-examination, Ms. Nichols said that Defendant responded appropriately to questions
about his birth. She said that Defendant purposefully declined to answer any further questions
because he did not believe the questions were relevant to his case.
The trial court found that Defendant was capable of understanding the proceedings and
competent to stand trial. Accordingly, the trial court denied Defendant’s motion for a continuance.
The decision to grant a motion for a continuance is left to the trial court’s discretion, and a
denial of the requested continuance will not be overturned on appeal absent a clear showing of an
abuse of that discretion. State v. Russell, 10 S.W.3d 270, 275 (Tenn. Crim. App. 1999) (citing State
v. Melson, 638 S.W.2d 342, 359 (Tenn. 1982); Baxter v. State, 503 S.W.2d 226, 230 (Tenn. Crim.
App. 1973)). Requiring an accused to plead to an offense or stand trial while insane or mentally
incompetent violates the Fourteenth Amendment to the United States Constitution and article I,
section 8 of the Tennessee Constitution. Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 837,
15 L. Ed. 2d 815 (1966); State v. Blackstock, 19 S.W.3d 200, 205 (Tenn. 2000). When there is a
question about a defendant’s competency to stand trial, the trial court, on its own motion or upon the
request of the district attorney general or defense counsel, may order the defendant’s mental
evaluation after a hearing. Tenn. Code Ann. § 33-7-301(a)(1); Berndt v. State, 733 S.W.2d 119, 122
(Tenn. Crim. App. 1987). A defendant is competent to stand trial if he or she has “the capacity to
understand the nature and object of the proceedings against him, to consult with counsel and to assist
in preparing his defense.” Mackey v. State, 537 S.W.2d 704, 707 (Tenn. Crim. App. 1975). In
determining whether a trial court should have sua sponte ordered a competency hearing, “an
appellate court may only consider those facts which were before the court when the trial commenced
or the pleas were entered.” Berndt, 733 S.W.2d at 122. The standard of review is “‘whether a
reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing
is being reviewed, should have experienced doubt with respect to [a defendant’s] competency to
stand trial’” or enter a plea of guilty. Id. (quoting Williams v. Bordenkircher, 696 F.2d 464, 467 (6th
Cir. 1983)). The burden is on the defendant to prove his incompetency by a preponderance of the
evidence, and the trial court’s findings are conclusive on appeal unless the evidence preponderates
otherwise. State v. Oody, 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991).
The trial court found that although Defendant had shown a persistent lack of cooperation
throughout his case, Defendant had not engaged in any course of activity the trial court had not
observed before, and noted that Defendant was not the only person to refuse to give a DNA sample
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when requested to do so. The trial court found that Defendant’s prior counsel had given no
indication that Defendant was incompetent to stand trial. In determining whether a competency
hearing is required, the trial court may consider the defendant’s behavior and demeanor at trial as
well as any prior medical opinion on competency. Drape v. Missouri, 420 U.S. 162, 180, 95 S. Ct.
896, 908, 43 L. Ed. 2d 103 (1975). Ms. Nichols attempted to interview Defendant twice concerning
his mental competency prior to trial, but Defendant refused to answer her questions on either
occasion and told her he did not think the questions were relevant to his case. See Stone v. State, 521
S.W.2d 597, 599 (Tenn. Crim. App. 1974) (A trial court’s denial of the defendant’s request for
further mental evaluation was not error when the defendant had refused to cooperate with the first
evaluation).
The trial court was in the best position to observe Defendant’s demeanor and behavior during
his trial. Based on these observations, the trial court concluded that Defendant was capable of
understanding the proceedings. We find no abuse of discretion in the trial court’s denial of
Defendant’s motion for a continuance. Defendant is not entitled to relief on this issue.
III. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient to support his convictions of especially
aggravated kidnapping and sexual battery. Specifically, Defendant contends that his alibi testimony
coupled with the inconsistencies in the testimony of the State’s witnesses undermines the sufficiency
of the convicting evidence.
When a defendant challenges the sufficiency of the convicting evidence, we must review the
evidence in a light most favorable to the prosecution in determining whether a rational trier of fact
could have found all the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S.307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Once a jury finds a
defendant guilty, his or her presumption of innocence is removed and replaced with a presumption
of guilt. State v. Black, 815 S.W.2d 166, 175 (Tenn. 1991). The defendant has the burden of
overcoming this presumption, and the State is entitled to the strongest legitimate view of the
evidence along with all reasonable inferences which may be drawn from that evidence. Id.; State
v. Tuggle, 639 S.W.2d 913, 914 (Tenn. 1982). The jury is presumed to have resolved all conflicts
and drawn any reasonable inferences in favor of the State. State v. Sheffield, 676 S.W.2d 542, 547
(Tenn. 1984). Questions concerning the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues raised by the evidence are resolved by the trier of fact and not this
court. State v. Bland, 958 S.W.2d 651, 659 (Tenn. 1997). These rules are applicable to findings of
guilt predicated upon direct evidence, circumstantial evidence, or a combination of both direct and
circumstantial evidence. State v. Matthews, 805 S.W.2d 776, 779 (Tenn. Crim. App. 1990).
As relevant here, the offense of sexual battery is defined as “unlawful sexual contact with
a victim by the defendant” accompanied by force or coercion, or without the consent of the victim,
and the defendant knows or has reason to know that the victim did not consent to the unlawful
contact. Tenn. Code Ann. § 39-13-505(a)(1) and (2). “‘Sexual contact’ includes the intentional
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touching of the victim’s . . . intimate parts, or the intentional touching of the clothing covering the
immediate area of the victim’s . . . intimate parts, if that intentional touching can be reasonably
construed as being for the purpose of sexual arousal or gratification.” Id. § 39-13-501(6).
Viewing the evidence in a light most favorable to the State, the victim testified that
Defendant accosted her in her bedroom and told her he was going to have sex with her because her
mother refused to do so, that the victim repeatedly told Defendant “no,” that Defendant choked the
victim with one hand when she continued to resist, and that Defendant rubbed his penis on the
victim’s vagina. Based on the foregoing, we conclude that the evidence was sufficient for a rational
trier of fact to find beyond a reasonable doubt that Defendant was guilty of sexual battery.
The offense of especially aggravated kidnapping, as relevant here, is defined as the false
imprisonment of another “accomplished with a deadly weapon.” Id. § 39-13-305(a)(1). “A person
commits the offense of false imprisonment who knowingly removes or confines another unlawfully
so as to interfere substantially with the other’s liberty.” Id. § 39-13-302(a). The victim testified that
after she took a shower and got dressed, Defendant made the victim stay close to him so that she
would not answer the ringing telephone. She and Defendant then left the house and got into Ms.
Holt’s car. Defendant kept a knife pointed at the victim as they walked to the car and told her not
to “act stupid.” Defendant placed the knife in the cup holder of the car’s armrest as he drove on the
interstate. We conclude that the evidence was sufficient for a rational trier of fact to find beyond a
reasonable doubt that Defendant was guilty of especially aggravated kidnapping.
Like any other fact at trial, an alibi defense presents an issue of fact to be weighed and
determined by the jury. Cole v. State, 187 Tenn. 459, 215 S.W.2d 824, 825 (1948); Smith v. State,
566 S.W.2d 553, 556 (Tenn. Crim. App. 1978). Likewise, the credibility of eyewitness testimony
identifying the defendant as the person who committed the crime is a question of fact for the jury.
See State v. Strickland, 885 S.W.2d 85, 87 (Tenn. Crim. App. 1993). The credible testimony of one
identification witness is sufficient to support a conviction if the witness viewed the accused under
such circumstances as would permit a positive identification to be made. State v. Radley, 29 S.W.3d
532, 537 (Tenn. Crim. App.1999) (citing Strickland, 885 S.W.2d at 87-88).
The jury heard the testimony of the victim, Ms. Holt, Shameka Fifer, and Mr. Redd who all
stated that Defendant was at the victim’s apartment complex on the morning of February 14, 2001.
The jury also heard Defendant’s and Ms. Robinson’s testimony that Defendant was in Cotton Plank,
Arkansas on the day of the offenses. The jury was not obligated to accept Defendant’s alibi defense
over the positive identification by the victim of Defendant as the perpetrator of the offenses, the
corroborating testimony of the other witnesses as to Defendant’s presence at the apartment complex
shortly after the offenses occurred, and the forensic evidence showing Defendant’s semen on the
victim’s comforter. Defendant is not entitled to relief on this issue.
IV. Sentencing Issues
Defendant argues that the State failed to establish beyond a reasonable doubt that he had the
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requisite prior felony convictions to support a Range II, multiple offender classification.
Specifically, Defendant contends that the State failed to prove that he had been convicted of
aggravated assault in Tennessee in 1990, or that his 1973 South Carolina conviction for the offense
of “assault and battery of a high and aggravated nature” was the equivalent of a Class C felony in
Tennessee. Defendant also argues that the trial court erred in its application of enhancement factors.
When a defendant challenges the length, range, or manner of service of a sentence, this Court
conducts a de novo review with a presumption that the determinations made by the trial court are
correct. Tenn. Code Ann. § 40-35-401(d). This presumption is “conditioned upon the affirmative
showing in the record that the trial court considered the sentencing principles and all relevant facts
and circumstances.” State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991). Because the record reflects
that the trial court failed to follow the analysis required by Tennessee Code Annotated section 40-35-
106(b)(5) in determining Defendant’s range classification, erred in its application of some of the
enhancement factors, and failed to make the requisite findings to support a finding that Defendant
is a dangerous offender, our review is de novo without a presumption of correctness. Tenn. Code
Ann. § 40-35-401(d).
The Sentencing Commission Comments provide that the burden is on the defendant to show
the impropriety of the sentence. Id. § 40-35-401, Sentencing Commission Comments. In conducting
a de novo review of a sentence, we must consider: (1) the evidence, if any, received at the trial and
sentencing hearing; (2) the pre-sentence report; (3) the principles of sentencing and arguments of
counsel relative to sentencing alternatives; (4) the nature and characteristics of the offense; (5) any
mitigating or enhancing factors; (6) any statements made by the defendant in his own behalf; and (7)
the defendant’s potential for rehabilitation or treatment. Id. §§ 40-35-102, -103, and -210; State v.
Smith, 735 S.W.2d 859, 863 (Tenn. Crim. App. 1987).
A. Sentencing Hearing
The State based its request for an enhanced range of punishment on Defendant’s prior
conviction of aggravated assault in Tennessee in 1990, and his 1973 South Carolina conviction of
the offense of assault and battery of a high and aggravated nature. For the 1990 Tennessee assault
conviction, the State acknowledged that the presentence report did not show a disposition of this
charge. The State, however, informed the trial court that it had verified with the Shelby County
criminal court clerk that Defendant had entered a plea of guilty to the offense of aggravated assault
in indictment number 90-11602, and received a sentence of three years. The State also introduced
a Shelby County probation investigation report prepared by Shelby County dated May 16, 2002,
reflecting that Defendant was convicted of aggravated assault in 1990 and was sentenced to three
years. Defense counsel contended at the sentencing hearing that Defendant did not remember
“getting three years” for this offense, but offered no corroborating evidence.
For the South Carolina conviction, the State introduced non-certified copies of Defendant’s
indictment in the Hampton County, South Carolina General Sessions Court in 1973 for the offense
of assault and battery with intent to kill, and a judgment form showing that Defendant entered a plea
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of guilty to the lesser included offense of assault and battery of a high and aggravated nature, for
which he received a sentence of eight years. Because the offense of assault and battery of a high and
aggravated nature is a common law offense in South Carolina, the State also introduced a copy of
the annotations from South Carolina Code Annotated section 16-3-620 (2003) which lists several
cases setting forth the elements of the offense. See, e.g., State v. Hill, 175 S.E.2d 227, 230 (S.C.
1970). The State primarily based its argument that the South Carolina assault and battery conviction
was the equivalent of a Class C felony in Tennessee on the length of Defendant’s sentence for this
offense. Based on Defendant’s 1990 Tennessee aggravated assault conviction and his 1973 South
Carolina conviction of assault and battery of a high and aggravated nature, the trial court declared
Defendant to be a Range II, multiple offender, for sentencing purposes. See Tenn. Code Ann. § 40-
35-106(a)(1).
At the sentencing hearing, the State introduced Defendant’s presentence report into evidence.
In addition to the convictions relied upon to support Defendant’s range classification, the presentence
report showed that Defendant has numerous misdemeanor convictions in Tennessee including
disorderly conduct, disturbing the peace, a weapons offense, driving under the influence, simple
assault, shoplifting, and malicious mischief. Defendant was also convicted of grand larceny in
Oklahoma in 1979 and was sentenced to one hundred eighty days. Based on these misdemeanor
convictions, the trial court applied enhancement factor (2), Defendant has a previous history of
criminal convictions or criminal behavior in addition to those necessary to establish the appropriate
range. See id. § 40-35-114(2).
In addition, the trial court found that enhancement factor (5), the victim was particularly
vulnerable because of age or physical or mental disability, was appropriate based on the victim’s age
as well as her small stature. See id. § 40-35-114(5). Because Defendant was the victim’s mother’s
live-in boyfriend, the trial court found that Defendant violated a position of private trust. See id. §
40-35-114(16).
The trial court considered Defendant’s release of the victim as a mitigating factor, but found
that the enhancement factors outweighed the mitigating circumstance. See id. § 39-13-305(b)(2).
The trial court sentenced Defendant to thirty-six years for his especially aggravated kidnapping
conviction and four years for his sexual battery conviction. The trial court ordered the sentences to
be served consecutively based on its finding that Defendant has an extensive record of criminal
activity and was a dangerous offender. See id. § 40-35-115(b)(2) and (4).
B. Classification as a Range II offender
The trial court may sentence a defendant as a Range II offender when it finds beyond a
reasonable doubt that the defendant is a multiple offender. A multiple offender is a defendant who
has received “[a] minimum of two (2) but not more than four (4) prior felony convictions within the
conviction class, a higher class, or within the next two (2) lower felony classes.” Tenn. Code Ann.
§ 40-35-106(a)(1). “Prior convictions include convictions under the laws of any other state . . .
which, if committed in this state, would have constituted an offense cognizable by the laws of this
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state. In the event that a felony from a jurisdiction other than Tennessee is not a named felony in this
state, the elements of the offense shall be used by the Tennessee court to determine what
classification the offense is given.” Id. § 40-35-106(b)(5) (emphasis added). The appropriate
analysis of prior out-of-state convictions is under Tennessee law as it existed at the time of the out-
of-state conviction. State v. Brooks, 968 S.W.2d 312, 313-14 (Tenn. Crim. App. 1997).
The trial court must find that a defendant is a multiple offender beyond a reasonable doubt
before ordering a sentence within Range II. Tenn. Code Ann. § 40-35-106(c). Defendant’s 1990
aggravated assault conviction in Tennessee is a Class C felony and may be used to support range
enhancement for both of his convictions. See id. § 39-13-102(b) (1990). In order to be classified
as a multiple offender for his especially aggravated kidnapping conviction, Defendant’s 1973 South
Carolina conviction must rise to the level of at least a Class C felony. For his sexual battery
conviction, the 1973 South Carolina conviction must rise to the level of at least a Class E felony.
The State has the burden of proving beyond a reasonable doubt the requisite number of prior
felonies to establish a defendant’s sentencing range. See State v. Charles Eberhardt, No. 03C01-
9307-CR-00230, 1994 WL 46511, *2 (Tenn. Crim. App., Knoxville, Feb. 17, 1994), no perm. to
appeal filed. The State must file a written notice of intent to seek an enhanced range of punishment
ten days before trial setting forth the nature of the prior convictions, the dates of the convictions, and
the identity of the courts in which the convictions occurred. Tenn. Code Ann. § 40-35-202(a). For
range enhancement purposes, a “certified copy of the court record of any prior felony conviction,
bearing the same name as that by which the defendant is charged in the primary offense, is prima
facie evidence that the defendant named therein is the same as the defendant before the court, and
is prima facie evidence of the facts set out therein.” Id.
The rules of evidence apply to sentencing hearings, but an exception is made for reliable
hearsay. Tenn. Code Ann. § 40-35-210(b)(2); State v. Taylor, 744 S.W.2d 919, 921 (Tenn. Crim.
App. 1997). However, before “reliable hearsay” may be introduced by the State, the defendant must
be afforded a fair opportunity to rebut the proffered evidence, and the evidence must have the indicia
of reliability. Taylor, 744 S.W.2d at 921. At the sentencing hearing, Defendant challenged his 1990
and 1973 prior convictions, but he did not offer any proof to rebut the convictions. Although clearly
hearsay, the trial court found that the Shelby County probation investigation report and the
documents from the Hampton County General Sessions Court had the indicia of reliability. Based
on our review, we conclude that the State offered sufficient proof to establish Defendant’s prior
convictions of aggravated assault in Tennessee and of aggravated assault of a high and aggravated
nature in South Carolina.
Merely establishing the existence of Defendant’s prior South Carolina conviction, however,
is not sufficient to satisfy the State’s burden of proof under Tennessee Code Annotated section 40-
35-106(b)(5). The South Carolina offense of assault and battery of a high and aggravated nature is
not a named felony in Tennessee. Thus, in order to use this conviction to elevate Defendant’s range
classification, the trial court was required to analyze the elements of the out-of-state offense in order
to determine whether the offense of assault and battery of a high and aggravated nature was
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analogous to a felony offense under Tennessee’s law as it existed at the time the offense was
committed. See id. § 40-35-106(b)(5); Brooks, 968 S.W.2d at 313-14.
The trial court did not, however, compare the elements of the South Carolina offense to a
comparable offense in Tennessee, but concluded that the South Carolina offense would have been
a Class C felony in Tennessee based apparently on the offense’s name and the length of Defendant’s
sentence for that offense.
The length of sentence a defendant receives for an out-of-state conviction, however, is not
determinative of what grade of felony the out-of-state offense might be assigned under Tennessee
laws, and, as in the case sub judice, may even be misleading. The common law offense of assault
and battery of a high and aggravated nature is a misdemeanor in South Carolina. Hill, 175 S.E.2d
at 231-32. Although sentences for misdemeanor convictions in Tennessee may not exceed eleven
months, twenty-nine days, the South Carolina misdemeanor assault and battery offense is punishable
by up to ten years in prison. See State v. Fennell, 531 S.E.2d 512, 516 (S.C. 2000).
Nor is the name of the South Carolina offense particularly helpful. The offense of assault
and battery of a high and aggravated nature is defined by South Carolina courts as “‘an unlawful act
of violent injury to the person of another, accompanied by circumstances of aggravation, such as the
use of a deadly weapon, the infliction of serious bodily injury, the intent to commit a felony, the great
disparity between the ages and physical conditions of the parties, a difference in the sexes, indecent
liberties or familiarities with a female, the purposeful infliction of shame and disgrace, resistance
of lawful authority, and others.’” Hill, 175 S.E.2d at 230 (quoting State v. Johnson, 198 S.E.2d 1,
2 (S.C. 1938)). Thus, the offense may be committed in any number of ways, some of which would
constitute less than a Class C felony if committed in Tennessee. See, e.g., Tenn. Code Ann. § 39-
3104 (repealed 1989) (Resisting officer serving process is a misdemeanor offense); Pope v. State,
528 S.W.2d 54, 56 (Tenn. Crim. App. 1975) (Common law offense of interfering with an officer
while performing his duties is a misdemeanor).
The record does not indicate the particular aggravating circumstance which supported
Defendant’s South Carolina conviction for assault and battery of a high and aggravated nature.
Without such factual findings by the trial court, it is impossible to know whether Defendant’s
criminal conduct in South Carolina would have constituted a felony in Tennessee, or, if so, whether
the offense was of a sufficient grade to elevate Defendant’s range classification. See, e.g., Reese v.
State, 457 S.W.2d 877, 880-81 (Tenn. Crim. App.1970) (noting distinctions between felonious
assault with intent to kill and misdemeanor assault and battery).
At the time of Defendant’s conviction in 1990, the offense of aggravated assault in Tennessee
was a Class C felony and may be considered in determining Defendant’s range classification. See
Tenn. Code Ann. § 39-13-102(b) (1990). Based on the foregoing with regard to the South Carolina
conviction, however, we reverse the judgments insofar as they impose Range II sentencing, and
remand for a new sentencing hearing. Before imposing a Range II sentence based in part upon
Defendant’s South Carolina conviction, the trial court must determine the specific elements of the
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crime for which Defendant was convicted in South Carolina, and from that determine correctly that
the classification is no less serious than a Class C felony in Tennessee. The determinative factor is
the elements of the conviction offense, not the facts or the elements of the originally charged offense.
C. Enhancement Factors
Relying on Blakely v. Washington, 542 U.S. 246, 124 S. Ct. 2531 (2004), Defendant argues
that the trial court erred in applying enhancement factors (2), (5), and (16) because Defendant neither
admitted nor did the jury find the presence of these enhancement factors. In State v. Gomez, 163
S.W.3d 632, 651 n.16 (Tenn. 2005), the Tennessee Supreme Court concluded that Blakely does not
apply to Tennessee’s sentencing scheme because “the Tennessee Criminal Sentencing Reform Act
does not authorize a sentencing procedure which violates the Sixth Amendment right to jury trial.”
Alternatively, Defendant argues that the victim was not particularly vulnerable simply
because she was fourteen-years-old at the time of the offense. See Tenn. Code Ann. § 40-35-114(5).
Defendant also contends that there was no evidence that Defendant “gained any advantage over the
victim because he happened to be the boyfriend of the victim’s mother.” See id. § 40-35-114(16).
Although Defendant does not challenge the application of enhancement factor (2), we
conclude that the record supports application of this enhancement factor based on Defendant’s prior
criminal record in addition to the two convictions used by the trial court for range classification
purposes. See id. § 40-35-114(2).
With respect to enhancement factor (5), the State bears the burden of establishing that a
victim is particularly vulnerable due to age or physical or mental disability. State v. Walton, 958
S.W.2d 724, 729 (Tenn. 1997). A victim’s “age alone may have little or no bearing on size, strength
or vitality. Thus, unless the State produces evidence of physical or mental limitations at the time of
the offense, along with proof of the victim’s age, it cannot be presumed that the victim was
particularly vulnerable based solely on [his or] her age.” State v. Poole, 945 S.W.2d 93, 98 (Tenn.
1997); see State v. Hunter, 926 S.W.2d 744, 748 (Tenn. Crim. App. 1995) (Fourteen-year-old rape
victim’s age alone not sufficient to support application of enhancement factor (5)).
In determining whether the State carried its burden of establishing enhancement factor (5),
the trial court was required to consider “(1) whether the victim because of age or mental physical
attributes, was particularly unable to resist the crime, summon help, or testify at a later date; (2)
whether [the] victim’s age (extremely old or extremely young) is entitled to additional weight; and
(3) whether the vulnerability of the victim made the victim more of a target for the offense, or,
conversely, whether the offense was committed in such a manner as to render the vulnerability of
the victim irrelevant.” Walton, 958 S.W.2d at 729 (citing Poole, 945 S.W.2d at 96-97).
A victim’s small size in comparison to the defendant’s stature may render him or her
particularly unable to resist the crime. See State v. William Ray Rhodes, No. 02C01-9406-CC-
00124, 1995 WL 425046, *6 (Tenn. Crim. App., at Jackson, July 19,1995), perm. app. denied (Tenn.
-12-
Nov. 27, 1995). In the instant case, other than an observation by the trial court at the sentencing
hearing that the jury would have observed that the victim was “very small,” the record does not
contain any evidence concerning either the defendant’s size or the victim’s size at the time of the
offense. See State v. Edward Talmadge McConnell, No. E1998-00288-CCA-R3-CD, 2000 WL
688588, *15 (Tenn. Crim. App., at Knoxville, May 30, 2000), perm. app. denied (Jan. 28, 2001)
(Although victim testified that she weighed between one hundred and one hundred and ten pounds
at the time of the offense, there was no evidence pertaining to the defendant’s size in comparison to
the victim’s). Based on the foregoing, we conclude that the trial court erred in applying enhancement
factor (5).
We conclude, however, that the trial court properly applied enhancement factor (16) based
on Defendant’s abuse of a position of private trust. Defendant was the live-in boyfriend of the
victim’s mother. Defendant told the victim he was going to have sex with her because her mother,
who was more than seven months pregnant, refused to do so. Our courts have previously found on
numerous occasions that the sexual abuse of a child residing in the home of the perpetrator is an
abuse of private trust. State v. Gutierrez, 5 S.W.3d 641, 645 (Tenn. 1999); State v. Carico, 968
S.W.2d 280, 286 (Tenn. 1998); State v. Adams, 864 S.W.2d 31, 34 (Tenn. 1993).
Although not raised by Defendant as an issue on appeal, we note that the trial court failed to
make the requisite findings established in State v. Wilkerson, 905 S.W.2d 933 (Tenn. 1995) to
support its finding that Defendant was a dangerous offender in regard to the imposition of
consecutive sentencing. See Tenn. Code Ann. § 40-35-115(b)(4). When a defendant is convicted
of multiple crimes, the trial court, in its discretion, may order the sentences to run consecutively if
it finds by a preponderance of the evidence that a defendant falls into one of seven categories listed
in Tennessee Code Annotated section 40-35-115. In this instance, the trial court found as one of the
factors that Defendant was “a dangerous offender whose behavior indicates little or no regard for
human life, and no hesitation about committing a crime in which the risk to human life is high.”
Tenn. Code Ann. § 40-35-115(a)(4). If the trial court rests its determination of consecutive
sentencing on this category, the court must make two additional findings. State v. Imfeld, 70 S.W.3d
698, 708 (Tenn. 2002). First, the trial court must find that an extended sentence is necessary to
protect the public from further criminal conduct by Defendant, and, second, it must find consecutive
sentencing to be reasonably related to the severity of the offenses. Wilkerson, 905 S.W.2d at 939.
The trial court, however, also considered Defendant to be an offender whose record of
criminal activity is extensive to support the imposition of consecutive sentencing. See Tenn. Code
Ann. § 40-35-115(b)(2). It is necessary to find the presence of only one of the statutory categories
listed in Tennessee Code Annotated section 40-35-115(b) to support the imposition of consecutive
sentences. See State v. Adams, 973 S.W.2d 224, 231 (Tenn. Crim. App. 1997). We see no error in
the application of this statutory factor. Accordingly, we conclude that consecutive sentencing was
properly imposed.
-13-
CONCLUSION
Based on the foregoing, we affirm Defendant’s convictions of sexual battery and especially
aggravated kidnapping. We remand, however for resentencing to determine Defendant’s range
classification in accordance with the provisions of Tennessee Code Annotated section 40-35-
106(b)(5).
___________________________________
THOMAS T. WOODALL, JUDGE
-14-
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376 B.R. 382 (2007)
Ivan Acosta RIVERA and Ana A. Balseiro Chacon, Appellants,
v.
Wifredo Segarra MIRANDA and Nancy Pujals, Appellees.
Civil No. 07-1301 (GAG), Bankruptcy No. 06-0559 (SEK).
United States District Court, D. Puerto Rico.
October 12, 2007.
*383 Ivan Acosta-Rivera, Arecibo, PR, pro se.
*384 Ana A. Balseiro-Chacon, Arecibo, PR, pro se.
Noemi Landrau-Rivera, San Juan, PR, for Appellees.
Nancy Pujals, San Juan, PR, for U.S. Trustee.
OPINION AND ORDER
GUSTAVO A. GELPI, District Judge.
Debtors Ivan Acosta Rivera ("Acosta") and Ana A. Balseiro Chacon ("Balseiro") moved to dismiss their Chapter 7 petition pursuant to 11 U.S.C. § 521(i)(1) and 521(i)(2) on the ground that they had failed to make certain required filings. The United States Bankruptcy Court for the District of Puerto Rico ("Bankruptcy Court") entered an order nunc pro tune excusing the `debtors from the filing requirements and finding moot the debtors' dismissal request. The debtors now appeal before this court. For the reasons set forth below, the court REVERSES the judgment of the Bankruptcy Court and REMANDS the case for the entry of dismissal.
I. Relevant Background
According to the Bankruptcy Court docket ("BD"), the facts and travel of the case are as follows. On March 2, 2006, married debtors Acosta and Balseiro filed a Chapter 13 voluntary petition with the Bankruptcy Court. BD 1. At the time, the debtors failed to schedule a suit they had filed in local court against Acosta's former employer for unpaid wages and damages ("the suit"). On May 17, 2006, the debtors converted their case to Chapter 7. BD 21. On September 8, 2006, the debtors scheduled the suit for the first time, but listed its value as unknown. BD 43. The debtors amended their schedules two more times on October 11 and 13, 2006, asserting varying valuations of the suit. BD 56, 57. On October 16, 2006, the Chapter 7 trustee moved for authorization to settle Acosta's suit. BD 61. On November 15, 2006, the Chapter 7 trustee amended its motion for authorization to settle the suit. BD 71.
On November 30, 2006, the debtors filed a motion pro se to dismiss their Chapter 7 case pursuant to 11 U.S.C. § 521(i)(1) and 521(i)(2). BD 85. In this motion, the debtors argued that dismissal was appropriate because they had failed to file their payment advices and a statement of their monthly net income. Id. The Chapter 7 Trustee opposed the debtors' motion to dismiss on December 8, 2006. BD 86. On December 11, 2006, the debtors filed another request for dismissal. BD 89. On December 21, 2006, the debtors moved for the third time to dismiss their Chapter 7 case. BD 95. The U.S. Trustee opposed the debtors' dismissal requests on December 26, 2006. BD 94. On January 25, 2007, the debtors replied to the U.S. Trustee's opposition. BD 102. On February 1, 2007, creditors BBVA and Eurobank opposed the debtors' dismissal requests. BD 103, 105. On March 7, 2006, the debtors replied to BBVA and Eurobank's oppositions. BD 111. On March 8, 2007, the Bankruptcy Court held a hearing to address, inter alia, the debtors' requests for dismissal. BD 110. On March 20, 2007, the Bankruptcy entered an order nunc pro tunc "excusing Debtors from filing the payment advices mentioned in 11 U.S.C. § 521(a)(1)(B)(iv)" and finding moot the debtors' motions to dismiss. BD 114. The debtors now appeal this order.
II. Jurisdiction
This court has jurisdiction to hear bankruptcy appeals from "final judgments, orders, and decrees" pursuant to 28 U.S.C. 158 § (a)(1) or "with leave of the court, from interlocutory orders and decrees" *385 pursuant to 28 U.S.C. § 158(a)(3). The First Circuit has recognized that "`finality' is to be given a flexible interpretation in bankruptcy." In re Harrington, 992 F.2d 3, 5 (1st Cir.1993) (quoting G.S.F. Corp., 938 F.2d 1467, 1472-73 (1st Cir. 1991)). "A bankruptcy order need not dispose of all aspects of a case in order to be final; an order which disposes of a `discrete dispute within the larger case' will be considered final and appealable," In re Am. Colonial Broad. Corp., 758 F.2d 794, 801 (1st Cir.1985) (quoting In re Saco Local Dev. Corp., 711 F.2d 441, 444 (1st Cir.1983)). In this case, the Bankruptcy Court determined that the debtors' failure to make certain filings did not trigger the automatic dismissal provision of 11 U.S.C. § 521(i). Because that decision disposed of a discrete dispute within the larger case, the court concludes that the Bankruptcy Court's order denying the debtors' motions to dismiss is a final decree and that this court's jurisdiction has been properly invoked pursuant to 28 U.S.C. § 158(a)(1).
III. Standard of Review
Appellate courts reviewing a bankruptcy appeal generally apply the "clearly erroneous" standard to findings of fact and de novo review to conclusions of law. TI Fed. Credit Union v. DelBonis, 72 F.3d 921, 928 (1st Cir.1995); In re Savage Indus.; Inc., 43 F.3d 714, 719-20 n. 8 (1st Cir.1994). Where the issue on appeal is essentially one of statutory interpretation, appellate courts review the issue de novo. In re San Miguel Sandoval, 327 B.R. 493, 506 (1st Cir. BAP 2005) (citing Jeffrey v. Desmond, 70 F.3d 183, 185 (1st Cir.1995)). In addition to the clearly erroneous and de novo standards of review, "[t]he appellate court in a bankruptcy appeal may apply an abuse of discretion standard of review of a decision or action by a Bankruptcy Court when such decision is within the discretion of the Bankruptcy Court." Id. (quoting 9E Am.Jur.2d Bankruptcy § 3512 (2004)).
IV. Discussion
In 2005, Congress enacted the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"). See 11 U.S.C. § 521. BAPCPA imposed a host of new requirements on debtors. Relevant to this suit, Section 521(a)(1)(B) provides that' a debtor is required to file certain documents, including copies of all payment advices received within 60 days before the petition's filing date and a statement of monthly net income, unless otherwise ordered by the court. 11 U.S.C. § 521(a)(1)(B)(iv) and (v). In this case, there is no dispute that the debtors did not file their payment advices and a statement of their monthly net income. The main issue on this appeal is whether the Bankruptcy Court erred when it excused the debtors from filing this required information more than 45 days after they filed their bankruptcy petition.
Section 521(i)(1) states that, subject to paragraphs (2) and (4), if a debtor fails to file all of the information required by section 521(a)(1) within 45 days after filing the petition, "the case shall be automatically dismissed effective on the 46th day after the filing of the petition." 11 U.S.C. § 521(i)(1). This command is "clear and unmistakable." In re Bonner, 374 B.R. 62, 64 (Bkrtcy.W.D.N.Y.2007). Here, the debtors failed to file their payment advices and a statement of their monthly net income within 45 days of filing their bankruptcy petition. Moreover, the debtors did not request an extension of time within the same 45-day period to file this information. See 11 U.S.C. § 521(i)(3). The majority of courts which have construed Section 521(i) have concluded that there is no discretion to avoid the automatic dismissal consequence of non-compliance with *386 the 45-day deadline. See Bonner, 374 B.R. at 64-65 (holding that court could not retroactively relieve debtor of obligation to file copy of final payment advice or reinstate the debtor's case once it was automatically dismissed); In re Calhoun, 359 B.R. 738, 740-41 (Bkrtcy.E.D.Mo.2007) (holding that court had no discretion to extend 45-day period specified in Section 521(i)(1) for filing of payment, advices once this 45-day period expired with no filing of payment advices, with no request for extension by debtor, and with no motion by trustee); In re Spencer, 2006 WL 3820702 *1 (Bkrtcy.D.Dist.Col.2006) (holding that debtor's case was automatically dismissed because debtor did not file a statement of current monthly income and means test calculation within the 45-day period after she filed her petition and because no motions were filed under Section 521(i)(3) or (4)); In re Young, 2006 WL 3524482 *3 (Bkrtcy.S.D.Tex.2006) (noting that Section 521(i) contains no language of discretion and that if the filing requirements of Section 521(a)(1) are not timely met, the case is automatically dismissed); In re Lovato, 343 B.R. 268, 270 (Bkrtcy.D.N.M.2006) (dismissing debtor's case because debtor failed to timely submit payment advices and because BAPCPA left the court with no discretion); In re Conner, 2006 WL 1548620 *1 (Bkrtcy.N.D.Fla.2006) (noting that there is no provision that allows reinstatement of a debtor's case upon that debtor's tardy compliance with the filing requirements of Section 521(a)(1)); In re Fawson, 338 B.R. 505, 514 (Bkrtcy.D.Utah 2006) (holding that debtors' cases were automatically dismissed because debtors failed to file their payment advices within 45 days of the petition date or request an extension of time and that court had no discretion to extend the 45-day period); In re Ott, 343 B.R. 264, 266-67 (Bkrtcy. D.Colo.2006) (holding that court has no discretion to enlarge the time limitations set forth in Section 521(i)(1) after expiration of those time limitations); In re Williams, 339 B.R. 794, 795 (Bkrtcy. M.D.Fla.2006) (holding that court has no discretion to extend filing deadline on motion to extend that was no filed until after this 45-day deadline had expired). Appellees ask the court to adopt the minority view espoused by some courts which have held that there is no requirement that the order excusing the debtor from filing the documents under Section (a)(1)(B) be entered prior to the expiration of the 45-day period. See In re Withers, 2007 WL 628078 *4 (Bkrtcy.N.D.Cal.2007); In re Parker, 351 B.R. 790, 801 (Bkrtcy.N.D.Ga. 2006). Because allowing the Bankruptcy Court to retroactively relieve the debtors from filing the required information under Section (a)(1)(B) would render the automatic dismissal provision in Section 521(i)(1) meaningless, the court will not adopt this minority view. Moreover, a major goal of Congress in enacting the BAPCPA was to replace judicial discretion with specific statutory standards and formulas. In re Nance, 371 B.R. 358, 366 (Bkrtcy.S.D.Ill.2007). In light of the above, the court holds that Bankruptcy Court erred as a matter of law when it excused the debtors from filing their payment advices more than 45 days after the debtors filed their bankruptcy petition.
The court recognizes the Bankruptcy Court's concern that the debtors sought dismissal after the trustee moved to settle Acosta's suit in local court. However, when Congress enacted BAPCPA, it "created a law that is sometimes self-executing, inflexible, and unforgiving. Title 11 U.S.C. § 521(i) is just one of those provisions." Ott, 343 B.R. at 266. "After the expiration of the specified period set forth in 11 U.S.C. § 521(i)(1), there are no exceptions, no excuses, only dismissal and the consequences that flow therefrom." *387 Id. at 268. BAPCPA left the court with no discretion to fashion any reasonable or equitable solution. Lovato, 343 B.R. at 270. Section 521(i)(4) provides the only statutory basis upon which the court may decline to enter an order of dismissal. In re Hall, 368 B.R. 595, 598 (Bkrtcy.W.D.Tex.2007); Brickey, 363 B.R. at 64-65. The trustees in this case did not take advantage of this provision. They did not move the Bankruptcy Court to retain the case after the debtors moved to dismiss it.
Because (1) the debtors failed to file their payment advices and a statement of their monthly net income within 45 days of filing their bankruptcy petition, (2) the debtors did not request an extension of time within the same 45-day period to file this information, and (3) the Trustee did not file a motion under 11 U.S.C. § 521(i)(4) to retain the debtors' case in Bankruptcy Court, the court finds that the debtors' case should have been automatically dismissed pursuant to Section 521(i)(1).
V. Conclusion
For the foregoing reasons, the judgment of the Bankruptcy Court is hereby REVERSED and the case is REMANDED for the entry of dismissal.
SO ORDERED.
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36 P.3d 1145 (2001)
2001 WY 132
Henry CLARK, Appellant (Petitioner),
v.
STATE of Wyoming, ex rel., WYOMING WORKERS' SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
No. 01-26.
Supreme Court of Wyoming.
December 21, 2001.
*1146 Donald L. Painter, Casper, WY, Representing Appellant.
Gay Woodhouse, Attorney General; Gerald W. Laska, Senior Assistant Attorney General; and David L. Delicath, Assistant Attorney General, Cheyenne, WY, Representing Appellee.
Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
VOIGT, Justice.
[¶ 1] In February 1999, appellant, Henry Clark, was injured in a work-related accident. The Wyoming Workers' Safety and Compensation Division (the Division) paid appellant benefits for an injury to his left foot, but denied benefits for a claimed back injury. Following a hearing, the hearing examiner found that appellant was not a credible witness, that any back injury was pre-existing at the time of appellant's accident, and that appellant failed to prove that his employment materially aggravated such injury. Appellant petitioned the district court to review the hearing examiner's findings. In a December 2000, order, the district court affirmed the hearing examiner's determination and this appeal followed. We affirm.
ISSUE
[¶ 2] Appellant raises a single issue on appeal:
Whether the evidence and law support the Hearing Examiner's finding that Appellant's back condition was due to a pre-existing condition that began before this employment and that there had been no material aggravation of that pre-existing condition resulting in a new injury.
The Division, as appellee, phrases the issue in substantially the same manner.
FACTS
[¶ 3] Appellant began his employment with Western Technology Services, Inc. (WOTCO) in 1974. In February 1999, appellant was employed as a saw operator; as *1147 such, he carried twenty-foot long steel "bar stock," weighing approximately 210 pounds, from its rack to a saw two hundred feet or so away. He then used the saw to cut the bar stock to a specified length. Appellant testified that at 8:00 a.m. on February 22, 1999, as he reached down to grab the last bar, the "bar came right back off that balance point, right down on my foot." Appellant claimed that he then fell backwards or "stacked up" onto his "posterior" and then his back, and landed on some steel plates, where he lost his hard hat. After lying on the ground for five minutes, appellant slowly "got up" and called the foreman. His foot was red, but "not bruised. It wasn't broke and it wasn't bleeding." He experienced "excruciating" left leg pain, but no back pain. According to appellant, he had experienced right leg pain for a year prior to February 22, 1999, but not pain in his left leg.
[¶ 4] Appellant filled out an accident report dated March 1, 1999, stating that the "bar rolled off the rack and bounced off my left foot," but did not mention falling on his posterior or back. Appellant testified that he did not "put it down" because he did "a lot of falling backwards" and, despite including the term "over" and continuing his handwritten account on an additional sheet of paper that remained three-quarters blank, claimed not to have had "enough space to write all that story in there." The report also states that appellant experienced pain in the back of his left leg and, toward the end of the day, the small of appellant's back began to hurt and he could "barely walk."
[¶ 5] Appellant's treating physician was Dr. Johnny Tooke. Dr. Tooke's September, October, and November 1994 records indicate that appellant was experiencing left knee and left leg pain. His February 4, 1998, and February 2 and 12, 1999, notations state appellant had cramps in his "legs." The records note that appellant was seen February 22, 1999,[1] for back pain and further indicate that on February 26, 1999, appellant complained of periodic "sciatica" down the left leg and back pain, was unable to bend over, and could "hardly walk." Appellant was scheduled to undergo a lumbar spine MRI on March 4, 1999. It was not until March 12, 1999, that Dr. Tooke's records note appellant's accident at work, stating that appellant continued to experience leg pain with "lifting minimum weight," refer to a "disc prob in Back" and that appellant "picked up heavy Bar @ work & that was when Back began working." Dr. Tooke referred appellant to Dr. Robert Narotzky, a neurosurgeon.
[¶ 6] Appellant saw Dr. Narotzky on March 17, 1999. Dr. Narotzky noted in the "history" section of his dictation that appellant was referred for
evaluation of left leg pain. He has had difficulty for the past year. This began while he was at work at WOTCO, Inc. when he was lifting steel bars. These weigh anywhere from 2 pounds to close to 100 pounds. He has continued with pain that radiates from his lower back into his left buttock, posterior thigh and calf.
The doctor testified in a deposition that he understood "difficulty for the past year" to mean that appellant had experienced lower back and "leg" symptoms for the prior year. According to Dr. Narotzky, appellant did not mention falling onto his posterior or back after the bar fell on his left foot.
[¶ 7] After reviewing the findings from the MRI and a subsequent myelogram, Dr. Narotzky ultimately opined that appellant suffered from stenosis (narrowing of the spinal canal) at the L4-5 and "L6-S1" level, as well as a disk protrusion at the L5-6 level. According to the doctor, the stenosis was caused by degenerative conditions such as normal wear and tear, arthritis in appellant's back, and thickening ligaments, in conjunction with the protruding disk. Dr. Narotzky further testified as follows:
Q. [Appellant's counsel] Okay. I'm going to give you a hypothetical set of facts here for these next couple questions. Mr. *1148 Clark tells me that he had not had any previous injury or problem with his low back until February of this year, when heand it was at the steel mill where he works, the fabrication shop. And a steel bar fell toward him, and in an effort to get himself out of the way, he fell backward on his butt. And from then on, he had the symptoms that he reported to you.
With that history, do you have an opinion on the relationship, if any, between the fall as I've described it to you and the surgicalthe condition for which you did the surgery in Marchor May? I'm sorry.
A. I don't think the fall caused the degenerative problems in his low back. I think it may well have caused the disk protrusion which, combined with the degenerative changes, resulted in spinal stenosis.
Q. Okay. Is there any particular cause for stenosis, or is that just one of the degenerative changes you're talking about?
A. It's wear and tear changes. But other things can contribute to it, like a disk protrusion.
Q. When youin any of the times you've met with or taken care of Mr. Clark, have you seen any evidence that any of this low back problem was pre-existing as far asand I know these degenerative changes come on for years. But
A. Not by what Mr. Clark related to me; no.
He could not ascertain when appellant's disk protrusion occurred.
[¶ 8] Dr. Narotzky successfully performed a decompressive lumbar laminectomy in May 1999, from which appellant appears to have fully recovered. The doctor did not feel it was necessary to remove appellant's protruding disk during the surgery. Appellant informed Dr. Narotzky that, following the surgery, his "legs" felt "better than they have in years."
[¶ 9] On September 1, 1999, appellant returned to work with lifting restrictions. On September 28, 1999, appellant retired from his employment with WOTCO.
[¶ 10] The Division paid benefits for appellant's foot injury, but denied benefits for the claimed back injury because (1) it did not arise out of and in the course of employment (Wyo.Stat.Ann. § 27-14-102(a)(xi) (Michie Supp.1998)); (2) it was a pre-existing injury or condition at the time of employment (Wyo. Stat.Ann. § 27-14-102(a)(xi)(F)); and (3) it resulted from the natural aging process or the normal activities of day-to-day living (Wyo.Stat.Ann. § 27-14-102(a)(xi)(G)).
[¶ 11] Following a contested case hearing, the hearing examiner first concluded that appellant was not a credible witness because his accident report did not mention a fall as described in appellant's testimony and neither Dr. Tooke's nor Dr. Narotzky's medical records referred to such a fall. The hearing examiner additionally found that, based on the records and testimony regarding appellant's degenerative back condition, appellant had a "pre-existing lower back condition at the time of the injury" and had not presented sufficient evidence that he "suffered a material aggravation" of that condition by virtue of the accident.
[¶ 12] Appellant petitioned the district court to review the hearing examiner's determination. The district court affirmed the hearing examiner's decision, and this appeal followed.
STANDARD OF REVIEW
[¶ 13] We accord no special deference to the district court's decision and will consider the case as if it came directly from the agency. In re Jensen, 2001 WY 51, ¶ 9, 24 P.3d 1133, 1136 (Wyo.2001). Our review is limited to a determination of the factors specified in Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2001). The reviewing court shall:
Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
* * *
(E) Unsupported by substantial evidence in a case reviewed on the record *1149 of an agency hearing provided by statute.
Wyo. Stat. Ann. § 16-3-114(c)(ii)(A) and (E).
[¶ 14] The interpretation and correct application of the provisions of the Wyoming Worker's Compensation Act are a question of law over which our review authority is plenary. In re Jensen, 2001 WY 51, ¶ 10, 24 P.3d at 1136. We affirm an administrative agency's conclusions of law only if they are in accord with the law. We do not afford any deference to the agency's determination, and we will correct any error made by the agency in either interpreting or applying the law. Id.
[¶ 15] In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency's findings. Id. If the agency's decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency's conclusion. It is more than a scintilla of evidence. Id.
[¶ 16] The findings of fact may include determinations of witness credibility, as the hearing examiner is charged with determining the credibility of the witnesses. Roberts v. R & S Well Service, 2001 WY 117, ¶ 10, 35 P.3d 1219, 1222 (Wyo.2001) (quoting Carrillo v. State ex rel. Wyoming Workers' Safety and Compensation Div., 987 P.2d 690, 692-93 (Wyo.1999)). That "judgment is given deference in the reviewing court." Pederson v. State ex rel. Wyoming Workers' Compensation Div., 939 P.2d 740, 742 (Wyo.1997); Matter of Corman, 909 P.2d 966, 971 (Wyo. 1996). Indeed, we will not overturn the hearing examiner's determinations regarding witness credibility unless they are clearly contrary to the overwhelming weight of the evidence. Roberts, 2001 WY 117, ¶ 10, 35 P.3d at 1222 (quoting Carrillo, 987 P.2d at 692-93). Demonstrating evidentiary contradictions in the record does not establish the irrationality of the ruling, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Ikenberry v. State ex rel. Wyoming Workers' Compensation Div., 5 P.3d 799, 802 (Wyo.2000) (quoting Pederson, 939 P.2d at 742).
DISCUSSION
[¶ 17] Appellant argues that, especially considering Dr. Narotzky's testimony, there is no evidence to support the hearing examiner's finding that appellant's back injury was a pre-existing condition. Appellant further argues that even assuming that his back injury was a pre-existing condition, Wyo. Stat. Ann. § 27-14-102(a)(xi)(F) mandates that the condition exist at the "time of employment." According to appellant, there is no evidence that his back injury existed in 1974 when his employment commenced, and he therefore need not demonstrate that his employment materially aggravated the condition.
[¶ 18] Wyo. Stat. Ann. § 27-14-102(a)(xi) defines "injury" as
any harmful change in the human organism other than normal aging and includes damage to or loss of any artificial replacement and death, arising out of and in the course of employment while at work in or about the premises occupied, used or controlled by the employer and incurred while at work in places where the employer's business requires an employee's presence and which subjects the employee to extrahazardous duties incident to the business. "Injury" does not include:
* * *
(F) Any injury or condition preexisting at the time of employment with the employer against whom a claim is made;[2]
(G) Any injury resulting primarily from the natural aging process or from *1150 the normal activities of day-to-day living, as established by medical evidence supported by objective findings[.]
(Emphasis added.)
[¶ 19] A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence, including that the claimed injury arose out of and in the course of employment. Roberts, 2001 WY 117, ¶ 11, 35 P.3d at 1223. We note that there were apparently no eyewitnesses to appellant's accident. The testimony of "an injured worker alone is sufficient to prove an accident if there is nothing to impeach or discredit the worker's testimony and the worker's statements are corroborated by surrounding circumstances." Ikenberry, 5 P.3d at 803. "Moreover, the occurrence of injuries resulting from accidents to which there are no eyewitnesses does not prevent fair inferences from being drawn and findings of facts from being made." Id.
[¶ 20] The cause of appellant's claimed back injury is premised on his testimony as to how the accident occurred, as is Dr. Narotzky's deposition opinion testimony. Indeed, appellant's counsel stated at the contested case hearing that "[o]ur position is that . . . the fall caused a disc protrusion which with degenerative changes caused the spinal stenosis . . . ." The hearing examiner found that appellant was not a credible witness in this respect, in essence finding that appellant's claimed back injury did not "[arise] out of and in the course of [his] employment while at work" as the statute requires.
[¶ 21] Appellant testified that, after a bar fell on his foot, he fell backwards onto his posterior and back, and landed on some steel plates. The first time this particular version of appellant's accident appears in the record firsthand is his testimony at the contested case hearing held January 18, 2000.[3] Appellant did not include these details in his handwritten account of the accident contained in the report he filed soon after the accident. His explanation for not doing so was that, despite the additional page that admittedly remained three-quarters blank, he did not have "enough space to write all that story in there." In the weeks after the accident, appellant did not inform Dr. Narotzky of any such fall or a foot injury, and Dr. Tooke's records do not refer to a fall or a foot injury. Rather, Dr. Narotzky's dictation refers to appellant "lifting steel bars" and Dr. Tooke's notes refer to appellant picking up a "heavy" bar. The report from appellant's MRI similarly references a "lifting injury." It was not until March 12, 1999, after at least two or three visits to Dr. Tooke's office and a lumbar spine MRI, that appellant's medical records refer to a work-related accident.[4]
[¶ 22] Dr. Narotzky opined that appellant suffered from stenosis due to a degenerative back condition in conjunction with a protruding disk, which necessitated the decompressive lumbar laminectomy. In a hypothetical question, appellant's counsel then asked Dr. Narotzky to assume appellant had fallen *1151 backwards on his posterior and to render an opinion regarding the relationship of the fall to appellant's claimed back injury. The doctor responded that a fall "may" have caused the disk protrusion, but did not cause the degenerative condition. The doctor could not determine when the disk protrusion occurred. Absent credible testimony from appellant, or some corroboration from the surrounding circumstances, regarding such a fall, Dr. Narotzky's opinion as to the cause of appellant's protruding disk is meaningless in proving that the disk protrusion arose out of and in the course of appellant's employment.
[¶ 23] In Pederson, 939 P.2d at 741, Della Pederson, a seventeen-year employee of the Sheridan County School District, testified that she injured her foot when her ankle "snapped" while moving a loaded mixing bowl. Pederson did not state in her accident report[5] that her ankle snapped, nor did she mention it to the podiatrist she saw the next day. Id. at 741-42. The podiatrist diagnosed Pederson as having a progressive foot condition related to her diabetes, and Pederson had seen the podiatrist for symptoms in the same foot three days prior to the claimed accident. Id. Pederson also had been treated two years before the claimed accident for foot problems, and had fallen on the same foot the previous spring. Id.
[¶ 24] The hearing examiner found that, despite her testimony, Pederson did not suffer any "snap" or trauma to her foot at work. Id. at 742. On appeal, Pederson argued that no evidence was presented to show that she suffered an injury other than at work. We concluded that Pederson's "failure to tell her doctor about the claimed injury and her failure to set it forth on her Report of Injury, both events occurring within days of the claimed incident, provided a rational basis for the hearing officer to disbelieve her later testimony." Id.
[¶ 25] As in Pederson, we find that the referenced evidence provided a rational basis for the hearing examiner to disbelieve appellant's testimony and that, based on the state of the particular record before us, such a finding was not clearly contrary to the overwhelming weight of the evidence. It would be "improper for us to re-weigh the evidence under the circumstances" or substitute our judgment for that of the hearing examiner, especially considering the applicable standard of review. Id. at 742-43. See also Carrillo, 987 P.2d at 693-94. We affirm the hearing examiner's denial of benefits on this basis.
NOTES
[1] The notation is handwritten, initialed "KF," and appears next to notations dated March 12, 1999. There are no notations in the medical records for February 22, 1999. Appellant testified that he did not see Dr. Tooke on February 22, 1999, but saw the doctor for the first time February 26, 1999. Appellant's accident report states that he saw Dr. Tooke on February 26, 1999. Appellant apparently also saw someone in Dr. Tooke's office on March 1, 1999.
[2] A pre-existing condition may be compensable if the employment aggravated, accelerated, or combined with the pre-existing condition to produce the disability for which the employee is seeking benefits. Bright v. Sheehan Pipeline, 960 P.2d 1009, 1010 (Wyo.1998). The burden remains on the claimant to prove that the injury is compensable. Brees v. Gulley Enterprises, Inc., 6 P.3d 128, 131 (Wyo.2000).
[3] A May 11, 1999, letter from Dr. Tooke addressed to the Division states merely that appellant's most recent injury was "his lower back resulting from a fall on February 22, 1999." The letter, dated nearly three months after the accident, contains no further detail, and does not refer to the source of this information. A handwritten notation states "letter to Henry" and "not sent to comp."
The only other references include a September 27, 1999, deposition wherein appellant's counsel first asked Dr. Narotzky whether appellant had informed him of the alleged fall, to which the doctor replied "not that I have recorded in my record; no," and later posed the hypothetical question asking Dr. Narotzky to assume appellant "fell backward on his butt" to "get himself out of the way" as a "steel bar fell toward him," and a September 30, 1999, disclosure statement.
[4] Appellant testified that he had not ever had left leg pain prior to February 22, 1999, and appeared to indicate that he similarly did not experience back pain immediately prior to that date. According to Dr. Narotzky, appellant stated that he had lower back and leg symptoms for a year prior to the accident, and Dr. Tooke's records reflect that appellant had cramps in his "legs" immediately prior to February 22, 1999. Appellant informed Dr. Narotzky that, after the surgery, his "legs" felt better than they had in years.
In addition, appellant testified that he did not experience back pain on February 22, 1999. However, the accident report states that by the end of that day, the small of appellant's back began to hurt and he could barely walk.
[5] Pederson's accident report stated that "I went to work. My foot hurt some. As morning progressed, my foot got extremely bad. I could not handle pain and I had to go home." Pederson, 939 P.2d at 741.
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997 P.2d 107 (2000)
2000 MT 40
STATE of Montana, Plaintiff and Respondent,
v.
Jay Michael CLARK, Defendant and Appellant.
No. 98-152.
Supreme Court of Montana.
Submitted on Briefs October 14, 1999.
Decided February 15, 2000.
*108 Rebecca T. Dupuis and C. Edward Hayes; Polson, Montana, for Appellant.
Hon. Joseph P. Mazurek, Attorney General; Michael S. Wellenstein, Assistant Attorney General; Helena, Montana, Kim Christopher, Lake County Attorney; Robert Long, Deputy County Attorney; Polson, Montana, for Respondent.
Justice JIM REGNIER delivered the opinion of the Court.
¶ 1 Jay Michael Clark appeals from the judgments entered by the Twentieth Judicial District Court, Lake County, in cause Nos. DC-97-54 and DC-97-59. We affirm in part, reverse in part, and remand.
¶ 2 The issues presented on appeal are as follows:
¶ 3 1. Whether the District Court erred when it denied Clark's motion in limine with respect to a witness' identification testimony?
¶ 4 2. Whether the District Court erred when it denied Clark's motions for substitution of prosecuting attorney?
¶ 5 3. Whether the District Court erred when it denied Clark's motions to dismiss the charges of driving while license suspended or revoked?
¶ 6 4. Whether the sentences imposed by the District Court constitute cruel and unusual punishment?
BACKGROUND
¶ 7 On June 14, 1994, the county attorney's office in Lake County filed a Complaint in Justice Court, alleging that Jay Michael Clark had committed the following misdemeanor traffic offenses on June 13, 1994: (1) Count I: Driving While Under the Influence of Alcohol (third offense) in violation of § 61-8-714(3), MCA; (2) Count II: Accident Involving Damage to Vehicle in violation of § 61-7-104, MCA; (3) Count III: Driving While License Suspended or Revoked in violation of § 61-5-212, MCA. Count I was amended at Clark's initial appearance for driving while under the influence (third offense) to negligent endangerment in violation of § 45-5-208, MCA.
¶ 8 On September 5, 1995, Clark was also cited for numerous misdemeanor traffic offenses. Clark failed to present himself at the *109 trials, relating to both the June 13, 1994, and the September 5, 1995 charges, conducted by the Justice Court. Clark was convicted in absentia of all charges filed against him. Subsequently, Clark filed a petition for writ of habeas corpus with the District Court, which was granted. The District Court concluded that Clark was denied his constitutional and statutory rights when he was tried in absentia without counsel, vacated the judgments entered by the Justice Court, and ordered new trials in both causes. Afterward, Clark filed a complaint against the prosecuting deputy county attorney and the county attorney for Lake County with the Commission on Practice, alleging a violation of Rule 3.8 of the Rules of Professional Conduct that requires a prosecutor to make reasonable efforts to assure that a defendant has been given a reasonable opportunity to obtain counsel.
¶ 9 Clark failed to show up for the second Justice Court trial on the charges stemming from June 13, 1994, and was convicted in absentia. Upon retrial of the charges stemming from September 5, 1995, Clark was convicted of all but two of the eight charges filed against him. Clark appealed his convictions to the District Court.
¶ 10 Clark filed a motion for substitution of prosecuting attorney with the District Court in both causes, alleging prosecutorial vindictiveness and conflict of interest. After considering the briefs filed by the parties on this issue and determining good cause therefore, the District Court denied Clark's motions.
¶ 11 In cause No. DC-97-54, relating to the charges stemming from June 13, 1994, Clark filed a motion in limine requesting an order precluding identification testimony from a particular witness. The basis for Clark's motion in limine was that the witness' identification testimony was derived from impermissibly suggestive methods employed by the State, giving rise to a substantial likelihood of misidentification. After the matter had been fully briefed by the parties and the District Court determining good cause therefore, the District Court denied Clark's motion in limine.
¶ 12 With regard to cause No. DC-97-54, Clark pled guilty to Count I negligent endangerment; Count II damage to a vehicle and leaving the scene of an accident; and entered into a stipulation regarding the facts and requested dismissal of Count III driving while license suspended or revoked. With regard to cause No. DC-97-59, relating to the charges stemming from September 5, 1995, Clark pled guilty to four of the six remaining charges; proceeded to trial on Count V, driving while under the influence (third offense); and entered into a stipulation regarding the facts and requested dismissal of Count IV, driving while license suspended or revoked. At the conclusion of the trial, the District Court found Clark guilty of driving while under the influence (third offense).
¶ 13 After the issue concerning dismissal of the charge of driving while license suspended or revoked had been fully briefed by the parties and the District Court determining good cause therefore, the District Court denied Clark's motion to dismiss. Upon its ruling, the District Court conducted a sentencing hearing with regard to Clark's convictions. Following sentencing, the District Court entered a judgment in both causes setting forth Clark's convictions and the corresponding sentences. Clark appeals from the judgments entered by the District Court.
STANDARD OF REVIEW
¶ 14 We have previously stated that "[a] motion in limine to prevent an in-court identification is essentially a motion to suppress." State v. Greywater (1997), 282 Mont. 28, 36, 939 P.2d 975, 980 (citation omitted). "The standard of review for a district court's denial of a motion to suppress is whether the court's findings of fact are clearly erroneous, and whether those findings were correctly applied as a matter of law." State v. Williams (1995), 273 Mont. 459, 462, 904 P.2d 1019, 1021 (citation omitted).
¶ 15 "The grant or denial of a motion to dismiss in a criminal case is a question of law." State v. Weaver, 1998 MT 167, ¶ 43, 290 Mont. 58, ¶ 43, 964 P.2d 713, ¶ 43 (citations omitted). Our standard of review of a district court's conclusions of law is plenary and we will review the court's conclusions *110 of law to determine whether those conclusions are correct. See Weaver, ¶ 43 (citations omitted).
¶ 16 We review sentences for legality only and will not disturb a district court's sentencing decision absent a showing that the district court abused its discretion. See State v. Hurlbert (1988), 232 Mont. 115, 123, 756 P.2d 1110, 1115 (citation omitted).
ISSUE 1
¶ 17 Whether the District Court erred when it denied Clark's motion in limine with respect to a witness' identification testimony?
¶ 18 Clark argues that a due process violation occurs when evidence derived from suggestive identification procedures are admitted at trial. The State contends that had Clark gone to trial, the witness' identification of him would have been reliable and there was not a substantial likelihood of irreparable misidentification. After the matter had been fully briefed by the parties, the District Court, finding good cause therefore, denied Clark's motion in limine.
¶ 19 We apply the two-prong test set forth in Neil v. Biggers (1972), 409 U.S. 188, 198, 93 S.Ct. 375, 381, 34 L.Ed.2d 401, 411, to determine if an in-court identification based upon a pretrial identification is admissible:
First, we must determine whether the pretrial identification procedure was impermissibly suggestive; and second, if impermissibly suggestive, did the procedure have such a tendency to give rise to a substantial likelihood of irreparable misidentification that to allow the witness to make an in-court identification would violate due process, under the totality of the circumstances.
State v. Schoffner (1991), 248 Mont. 260, 265-66, 811 P.2d 548, 552 (citations omitted).
¶ 20 In September 1997 the county attorney's office sent a letter to the witness along with two photographs of Clark in jailhouse attire. Moreover, the State affirmatively identified the person in the photos to be Clark and asked the witness to notify the county attorney's office if the photos did not depict the person she saw in the car on June 13, 1994. We have previously recognized the suggestive nature of this type of identification procedure and the State concedes that this identification procedure was impermissibly suggestive, satisfying the first prong of the test.
¶ 21 "Under the second prong of the test, we must determine whether, under the totality of the circumstances, the identification procedure gave rise to a substantial likelihood of irreparable misidentification." Schoffner, 248 Mont. at 266, 811 P.2d at 552. The factors to be considered in evaluating the likelihood of misidentification are as follows:
1. The opportunity of the witness to view the criminal at the time of the crime;
2. The witness' degree of attention;
3. The accuracy of the witness' prior description of the criminal;
4. The level of certainty demonstrated by the witness at the confrontation; and
5. The length of time between the crime and the confrontation.
See Schoffner, 248 Mont. at 266, 811 P.2d at 552 (citing Biggers, 409 U.S. at 199-200, 93 S.Ct. at 382, 34 L.Ed.2d at 411).
¶ 22 On June 13, 1994, the witness was traveling northbound on Highway 93 when she observed a vehicle that was traveling southbound enter her lane of traffic, causing her to take evasive action. After taking evasive action, the witness pulled off the side of the road, parked her car, and approached the vehicle that had come to rest in a turnout after hitting a guardrail. The witness looked inside the vehicle, observing the driver slumped over toward the passenger side and a pistol located on the car seat. The witness watched the driver push himself up and noticed that he appeared to be drunk, but did not talk to him. Then the witness became concerned about the pistol and left to notify the police. When the witness returned, a highway patrol officer was on the scene and the driver and the pistol were gone.
¶ 23 The officer noticed a wallet on the car seat, entered the car, and retrieved it. The officer located a driver's license in the wallet and showed it to the witness, who *111 identified the person depicted on the license, Clark, as the person who had been driving the vehicle. Later, upon Clark's motion to suppress, the District Court ordered Clark's driver's license and the identification of Clark by the witness from the driver's license suppressed.
¶ 24 Now, we turn our attention to the second prong of the test and analyze the five factors for evaluating the likelihood of misidentification. First, the witness had ample opportunity to observe Clark while she stood next to his car for a few minutes, attempting to determine if he was injured. She watched while Clark pushed himself up from a slumped over position and noticed that he appeared to be drunk. Second, while the witness may have noticed a pistol on the car seat, her attention was focused on Clark and whether he was injured. Third, there is no mention in the record of any descriptions of Clark provided by the witness. Fourth, while Clark does not refute the certainty of the witness' identification of him from the photographs, he argues that her certainty should be given little weight due to the impermissibly suggestive nature of the photos. As pointed out by the State, Clark's argument addresses the first prong of the test, the suggestive nature of the pretrial identification, which has already been conceded by the State.
¶ 25 Finally, Clark argues that substantial weight should be given to the amount of time between the witness' observation of Clark at the accident scene in 1994 and the identification of Clark from the photographs in 1997. In most cases, such a lapse in time would be a seriously negative factor. See Neil, 409 U.S. at 201, 93 S.Ct. at 383, 34 L.Ed.2d at 412. However, the procedural history of this case makes this lapse in time less significant. It was not until after two Justice Court trials and an appeal to District Court that Clark moved to suppress his driver's license and the witness' identification from the license. Immediately following entry of the District Court's suppression order, the prosecutor sent the photos to the witness. The witness' ability to identify Clark at trial would not have been rendered unreliable in light of the witness' observation of Clark in broad daylight only a few feet away at the accident scene. Thus, considering the totality of the circumstances, we conclude that while the identification procedure was impermissibly suggestive, it did not create a substantial likelihood of misidentification. Therefore, the District Court did not err when it denied Clark's motion in limine with respect to the witness' identification testimony.
ISSUE 2
¶ 26 Whether the District Court erred when it denied Clark's motions for substitution of prosecuting attorney?
¶ 27 Clark contends that the District Court erred when it denied his motions for substitution of prosecuting attorney, which were based on claims of prosecutorial vindictiveness and conflict of interest. The State argues that Clark waived his right to appeal any nonjurisdictional claims when he pled guilty to many of the offenses charged. With regard to the remaining charges, the State asserts that Clark's claims of prosecutorial vindictiveness and conflict of interest are unpersuasive. After considering the briefs filed by the parties on this issue and determining good cause therefore, the District Court denied Clark's motions.
¶ 28 Clark's argument with respect to prosecutorial vindictiveness is based on an incident that allegedly occurred during the State's sentencing recommendations in the Justice Court proceeding. There is no record of the sentencing hearing conducted by the Justice Court. Moreover, as the State correctly points out, Clark's appeal to the District Court for a trial de novo began a new proceeding against him. See City of Billings v. Smith (1997), 281 Mont. 133, 141, 932 P.2d 1058, 1063. Due to the lack of a record in Justice Court and the trial de novo conducted by the District Court, Clark cannot establish that a violation of his due process rights occurred as a result of prosecutorial vindictiveness.
¶ 29 Clark's argument for substitution of prosecuting attorney due to a conflict of interest was based on the fact that he had *112 filed a complaint with the Commission on Practice against the prosecuting deputy county attorney and the county attorney, following the District Court's grant of his petition for writ of habeas corpus. Clark asserts that the filing of the complaint with the Commission on Practice created a reasonable possibility that the deputy county attorney and the county attorney would not deal evenhandedly with him. To the contrary, the record reflects the prosecutor's willingness to enter into a stipulation of facts regarding the status of Clark's driver's license, establishing Clark's completion of an addiction treatment program.
¶ 30 Similar to the defendant in State v. Dahms (1992), 252 Mont. 1, 9-10, 825 P.2d 1214, 1219, Clark presents little authority in support of his position and no evidence demonstrating that his prosecution was handled any differently because of his pending complaint to the Commission on Practice. Accordingly, we conclude that the District Court did not err when it denied Clark's motions for substitution of prosecuting attorney, which were based on prosecutorial vindictiveness and conflict of interest.
ISSUE 3
¶ 31 Whether the District Court erred when it denied Clark's motions to dismiss the charges of driving while license suspended or revoked?
¶ 32 Clark claims that his driver's license was improperly re-revoked when the counselor for the addiction treatment program failed to notify the court of his completion of the program. The State argues that it is irrelevant whether Clark completed the treatment program because he failed to pay the mandatory license reinstatement fee and thus, his license was still revoked on June 13, 1994, and September 5, 1995. After the matter had been fully briefed by the parties, the District Court, finding good cause therefore, denied Clark's motions to dismiss.
¶ 33 In 1993 and 1995, § 61-2-107(1), MCA, stated:
Notwithstanding the provisions of any other law of the state, a driver's license that has been suspended or revoked under 61-5-205 or 61-8-402 must remain suspended or revoked until the driver has paid to the department a fee of $100 in addition to any other fines, forfeitures, and penalties assessed as a result of conviction for a violation of the traffic laws of the state.
(Emphasis added). We have previously interpreted this statute to mean that "a period of suspension or revocation continues until a defendant pays the required fee." State v. Cooney (1997), 284 Mont. 500, 510, 945 P.2d 891, 897.
¶ 34 Here, the parties entered into stipulations indicating that Clark's license had been revoked in December 1992 pursuant to § 61-5-205, MCA (1991), for one year and that no reinstatement fee had been paid as of June 13, 1994, or September 5, 1995. As a result, we conclude that Clark's license was still revoked on June 13, 1994, and September 5, 1995. Therefore, the District Court did not err when it denied Clark's motions to dismiss the charges of driving while license suspended or revoked.
ISSUE 4
¶ 35 Whether the sentences imposed by the District Court constitute cruel and unusual punishment?
¶ 36 Clark contends that while he was sentenced within the maximum sentences allowed by law for the offenses for which he was convicted, the sentences are so greatly disproportionate to the sentences imposed against other defendants for the same offenses that it shocks the conscience and outrages the moral sense of the community and justice. The State asserts, inter alia, that Clark's criminal history and the facts surrounding his offenses clearly justify his sentences and belie any claim of cruel and unusual punishment. Moreover, it is important to begin our analysis of this issue with a reminder that we review sentences for legality only.
¶ 37 The applicable statutes and the District Court's sentencing are as follows:
1. Under § 45-5-208, MCA (1993), a person convicted of the offense o negligent *113 endangerment shall be fined an amount not to exceed $1,000 or imprisoned in the county jail for a term not to exceed 1 year, or both. The District Court sentenced Clark to 1 year in the Lake County jail with 6 months suspended and fined Clark $1,000 with $500 suspended.
2. Under §§ 61-7-104 and 61-7-118, MCA (1993), a first offender convicted of an accident involving damage to vehicle shall be punished by a fine of not less than $10 or more than $100 or by imprisonment for not more than 10 days. The District Court sentenced Clark to serve 10 days in the Lake County jail and fined Clark $100.
3. Under § 61-5-212, MCA (1993), a person convicted of the offense of driving while license suspended or revoked shall be punished by imprisonment for not less than 2 days or more than 6 months and may be fined not more than $500. The District Court sentenced Clark to 6 months in the Lake County jail with 3 months suspended and fined Clark $500 in cause number DC-97-54.
4. Under § 61-6-304, MCA (1993), a third or subsequent conviction of operating a vehicle without valid liability insurance is punishable by a fine of $500 or by imprisonment in the county jail for not more than 10 days, or both. The District Court sentenced Clark to 6 months in the Lake County jail with all suspended but 30 days and fined Clark $300.
5. Under § 61-5-212, MCA (1993), a person convicted of the offense of driving while license suspended or revoked shall be punished by imprisonment for not less than 2 days or more than 6 months and may be fined not more than $500. The District Court sentenced Clark to 6 months in the Lake County jail with 2 months suspended and fined Clark $500 in cause number DC-97-59.
6. Under § 61-8-714(3), MCA (1993), a third or subsequent conviction of driving under the influence of alcohol or drugs is punishable by imprisonment for not less than 30 days or more than 1 year and by a fine of not less than $500 or more than $1,000. The District Court sentenced Clark to 6 months in the Lake County jail with 3 months suspended and fined Clark $300.
7. Under § 61-8-715(2), MCA (1993), a person convicted of reckless driving shall be punished by imprisonment in the county or city jail for not less than 10 days or more than 6 months to which may be added at the discretion of the court a fine of not less than $300 or more than $500. The District Court sentenced Clark to 6 months in the Lake County jail with 3 months suspended and fined Clark $500.
8. Under § 61-8-304, MCA (1993), Clark was convicted of a basic rule violation for speeding and fined $49.
While the second incident occurred on September 5, 1995, the 1995 statutes did not come into effect until October 1, 1995. Thus, since the law in effect at the time the defendant commits the crime controls sentencing, the 1993 statutes apply to the sentencing related to the offenses stemming from September 5, 1995, and June 13, 1994. See State v. Wilson (1996), 279 Mont. 34, 38, 926 P.2d 712, 715 (citation omitted).
¶ 38 The general rule with regard to sentencing is that a sentence within the maximum statutory guidelines does not violate the Eighth Amendment prohibition against cruel and unusual punishment. See Dahms, 252 Mont. at 13, 825 P.2d at 1221. The District Court properly based its sentencing on the factors listed in § 46-18-101(3), MCA (1993), and all but two of the sentences imposed are within the legal limits as set forth in the applicable statutes.
¶ 39 The District Court incorrectly applied the 1995 statute in sentencing Clark to 6 months in the Lake County jail for his conviction of operating a vehicle without valid liability insurance in violation of § 61-6-304, MCA. The maximum sentence allowed under § 61-6-304, MCA (1993), was 10 days. In addition, the District Court sentenced Clark to 10 days imprisonment and fined him $100 for his conviction relating to an accident involving damage to a vehicle. However, § 61-7-118, MCA (1993), allows for the imposition *114 of imprisonment or a fine upon a first conviction, but not both. Thus, we conclude that the District Court erred as a matter of law when it incorrectly sentenced Clark with regard to his convictions for operating a vehicle without valid liability insurance and an accident involving damage to a vehicle.
¶ 40 Accordingly, we affirm in part and reverse in part the decisions of the District Court. We affirm the District Court's denial of Clark's motion in limine concerning witness identification testimony, the District Court's denial of Clark's motions to dismiss the charges of driving while license suspended or revoked, and the District Court's denial of Clark's motions to substitute prosecuting attorney. We reverse the District Court's sentencing on two of the counts: operating a vehicle without valid liability insurance and an accident involving damage to a vehicle. We remand this matter to the District Court for resentencing of those two counts consistent with the applicable statutes and this opinion.
J.A. TURNAGE, C.J., WILLIAM E. HUNT, SR., JAMES C. NELSON, and TERRY N. TRIEWEILER, JJ., concur.
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16 A.3d 975 (2011)
BROWN
v.
U.S.
No. 10-CM-62.
District of Columbia Court of Appeals.
March 1, 2011.
Decision Without Published Opinion
Affirmed.
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670 F.Supp.2d 1199 (2009)
Blair ROWLEY, as Personal Representative of the Estate of Christopher Rowley, Deceased,
v.
USAA LIFE INSURANCE COMPANY, Defendant.
Case No. C08-1311 MJP.
United States District Court, W.D. Washington, at Seattle.
November 17, 2009.
*1200 Jeffrey I. Tilden, Mark A. Wilner, Gordon Tilden Thomas & Cordell LLP, Seattle, WA, for Plaintiff.
Timothy David Wackerbarth, June K. Campbell, Lane Powell PC, Seattle, WA, for Defendant.
ORDER ON SUMMARY JUDGMENT
MARSHA J. PECHMAN, District Judge.
This matter comes before the Court on Defendant USAA Life Insurance Company's motion for summary judgment. (Dkt. No. 24.) Having reviewed the motion, Plaintiff's response (Dkt. No. 29), USAA's reply (Dkt. No. 39), and all papers submitted in support thereof, the Court DENIES USAA's motion. The Court also DENIES Plaintiff's motion to strike Michael Patterson's testimony.
Background
In 2005, Christopher Rowley ("Plaintiff") obtained a life insurance policy valued at $500,000 from USAA Life Insurance Company ("USAA"), prior to his death in June 2006. USAA contested Plaintiff's estate's claim for benefits, and denied policy benefits on the basis that Plaintiff made false statements and concealed materially adverse information about his health from USAA. Plaintiff's estate filed suit against USAA for breach of contract, negligent claims handling, bad faith, violating the Washington Consumer Protection Act, and violating the Washington Insurance Fair Conduct Act. (Dkt. No. 2 at 9.)
Plaintiff applied three times for life insurance with USAA. In 2000, Plaintiff contacted USAA, but did not obtain life insurance. (Wilner Decl. Ex. J at 4-5.) USAA created a "risk profile" for him, but no documentation explains why the policy was not obtained. (Id.) On July 15, 2004, Plaintiff again contacted USAA and expressed an interest in obtaining life insurance. (Id. at 6.) USAA created a new "risk profile" for Plaintiff and entered in a note on July 15, 2004, that Plaintiff took "meds for upper back pains/as needed." (Wilner Decl. Ex. K at 1.) As part of this application, Plaintiff filled out a form Medical Health Questionnaire ("MHQ") with the assistance of Ralph Franklin on August 23, 2004. Plaintiff disclosed that he had seen Dr. "Ronald King" for at least one year for "pain in [his] neck" and that he was given a "muscle relaxer Cycobenzophine."[1] (Wackerbarth Decl. Ex. C at 1.) Plaintiff answered affirmatively that he had a "disorder of the back or spine muscles or bones." (Id.) The word "muscles" is circled on the form. (Id.) Elaborating on this disclosure, Plaintiff stated that his neck pain was "stress related" and that he was "followed by Dr. King." (Id. at 2.) Plaintiff reported that "[t]his is a disorder that has been on/off for @ least 5 yr," that he was taking a muscle relaxer, and that treatment was ongoing. (Id.)
*1201 In the 2004 MHQ, Plaintiff also answered "no" to whether he had "[a]ny other mental or physical condition not listed." (Id.) He also answered "no" to the question of whether he had been "advised to have any diagnostic test, hospitalization, or surgery which was not completed." (Id.) He answered "no" to a question of whether he took any narcotics without a physician's advice, having any injury or illness, and having any diagnostic tests. (Id.) Although Plaintiff filled out the MHQ, he never completed his 2004 application for life insurance.
On January 24, 2005, Plaintiff successfully applied for a life insurance policy from USAA, and the policy became effective on October 3, 2005. (Blair Rowley Decl. Ex. A at 3, 17.) On August 2, 2005, Plaintiff filled out another MHQ, this time with the aid of Elda Pascual, an employee of American Para Professional Services. (Pascual Dep. at 32.) In the MHQ, Plaintiff stated that he had seen Dr. Ronald Kane in 2004 for migraine headaches and was prescribed Maxalt. (Wackerbarth Decl. Ex. E at 1.) Plaintiff answered "yes" to whether he had ever been "treated for or consulted with a heath advisor for . . . [a]rthritis, gout, or disorder of the back or spine, muscles or bones." (Id.) In elaborating on this response, Plaintiff stated that he had a bunionectomy in 1997 and was fully recovered. (Id. at 3.) Plaintiff also disclosed that he had a history of migraine headaches. (Id.) He answered "yes" to whether he was "now under regular observation, receiving treatment or taking medication," stating that as of July 27, 2005 he was taking Amoxicillin for a mucocele inside of his mouth in anticipation of a surgical procedure to be performed on August 3, 2005 by Dr. Jonov. (Id. at 2.) He also answered affirmatively that within the past five years he had "[b]een advised to have any diagnostic test, hospitalization, or surgery which was not completed." (Id.) He explained that this was related to the mucocele procedure, for which he was taking "HC-Ibuprofen 7.5mg." (Id.)
Plaintiff was again asked whether he had been "treated for depression or anxiety, or other mental disorder." (Wackerbarth Decl. Ex. E at 1.) He was also asked whether he had "ever used any intravenous drugs, narcotics, barbiturates, excitant drugs, marijuana, hallucinogens, or tranquilizers unless on the advice of a physician." (Id.) The MHQ asked further whether he had "an electrocardiogram, X-ray, or other diagnostic test." (Id.) It also asked whether he had "had a checkup, consultation, illness, injury or operation" in the last five years." (Id.) Plaintiff answered "no" to all of these questions.
The 2004 MHQ was not presented to Ms. Pascual at the time she administered the 2005 MHQ. However, an internal record from USAA shows that the information was retained by USAA and was part of the "risk profile" it created for Plaintiff. An entry dated July 12, 2005, from Claire Chapman, a USAA employee, notes in Plaintiff's risk profile that Plaintiff had "meds for upper back pains/as needed." (Wilner Decl. Ex. K at 2.) Plaintiff's father also testifies that the policy he found in his son's records contains the 2004 MHQ as part of the bound policy issued by USAA. (Blair Rowley Decl. ¶ 3.) Having reviewed this evidence and construing it in favor of Plaintiff, the Court finds that USAA had the 2004 disclosures were part of the policy issued in 2005.
In September 2005, Plaintiff contacted Sandra Osborne, an employee of Insulink Services, to follow up on disclosures he made to USAA. Plaintiff explained that he was calling because he applied for insurance and that USAA "had a migraine headache question." (Lucien Decl. Ex. A at 2.) Plaintiff disclosed that he "had some back pain." (Id. at 3.) Ms. Osborne then *1202 asked a compound question "referencing the back and neck condition." (Id. at 4.) Plaintiff stated that he had middle back pains that occurred when he was 14 or 15 years old, due to playing football in high school. (Id. at 4-5.) He reported that his last symptom was in 1982 and that this condition did not affect any job duties, daily or leisure activities. (Id. at 5.) He stated further that his most recent doctor visit in relation to this condition was in 1982, where only hands-on diagnostics were used. (Id. at 7.) Ms. Osborne never followed up on questions about his neck pain.
Plaintiff died on June 2, 2006 of a hypertensive crisis and a right adrenal pheochromocytomaa large adrenal gland tumor. (Wackerbarth Decl. Ex. L at 1.) Doctor Howard Miller, Plaintiff's expert, explained that the tumor was "huge" and "rare" and that it was never diagnosed prior to death. (Miller Dep. at 34, 37.) The death certificate states that an "[a]cute intoxication due to the combined effects of methamphetamine, cocaine, methadone, hydrocodone, and cyclobenzaprine" also contributed to Plaintiff's death (Id.) The death certificate lists "how injury occurred" as "Substance abuse." (Id.)
USAA denied Plaintiff's estate's claim for benefits, invoking its right to contest whether Plaintiff misrepresented his health in applying for the policy. USAA stated that:
If Mr. Rowley's history of cervical and lumbar disc disease, history of depression, and substance use (methadone, recreational cocaine and marijuana use), had been fully, truthfully and accurately provided to us, we would not issued [sic] the life insurance policy to Mr. Rowley.
(Wilner Decl. Ex. E at 3.) USAA has moved for summary judgment, arguing that the evidence supports a finding that Plaintiff knowingly misrepresented his medical condition with an intent to deceive and that this materially affected USAA's assumption of risk.
Discussion
A. Standard
Summary judgment is appropriate when, viewing the evidence in the light most favorable to the nonmoving party, there exists "no genuine issue as to any material fact" such that "the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Genuine issues of material fact are those for which the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Because a mere scintilla of evidence is insufficient to create a factual dispute, the non-moving party must set forth specific facts demonstrating a genuine issue of fact for trial. Id. at 252, 106 S.Ct. 2505. In ruling on summary judgment, the court does not weigh evidence to determine the truth of the matter, but "only determine[s] whether there is a genuine issue for trial." Crane v. Conoco, Inc., 41 F.3d 547, 549 (9th Cir.1994).
B. Contestability Standard
Under RCW 48.18.090(2), the falsity of any statement by the insured "shall not bar the right to recovery under the contract unless such false statement was made with actual intent to deceive or unless it materially affected either the acceptance of the risk or the hazard assumed by the insurer." To succeed on its motion, USAA must demonstrate that Plaintiff: (1) made a false statement, (2) and that the statement (a) was made with an intent to deceive or (b) materially affected the acceptance of the risk or hazard USAA assumed. RCW 48.18.090(2).
Proof that a material false statement was made knowingly raises the presumption *1203 that it was made with the intent to deceive. See Music v. United Ins. Co. of Am., 59 Wash.2d 765, 769, 370 P.2d 603 (1962). Plaintiff must provide some credible evidence that the false representations were not made with the intent to deceive to overcome this presumption. See Kay v. Occidental Life Ins. Co., 28 Wash.2d 300, 301, 183 P.2d 181 (1947). A mere denial is not sufficient. Am. Fidelity & Cas. Co. v. Backstrom, 47 Wash.2d 77, 84, 287 P.2d 124 (1955).
C. Contestability
USAA denied coverage for three reasons: the failure to disclose (1) cervical and lumbar degeneration, (2) a history of depression, and (3) illegal narcotic use. (See Wilner Decl. Ex. D at 22-23.) Plaintiff provides credible evidence that he disclosed his back and neck condition, had no history of depression, used marijuana and methadone with a physician's prescription, and had no history of cocaine use. Disputed issues of material fact on all three issues bar summary judgment.
1. Cervical and Lumbar Degeneration
USAA contends that Plaintiff knowingly concealed his history of ongoing and chronic neck and back pain and his related pharmaceutical treatment, surgery recommendation, and diagnostic tests. (Dkt. No. 24 at 17); see Music, 59 Wash.2d at 769, 370 P.2d 603. Plaintiff's medical records show a substantial amount of treatment for his back and neck conditions that he did not disclose to USAA. Whether his failure to disclose this was done with an intent to deceive or whether it materially affected USAA's assumption of risk raises questions for the jury.
USAA submits evidence showing that Plaintiff suffered from cervical and lumbar disc degeneration and had other treatments not disclosed to USAA. In the middle of 2000, Plaintiff's physician, Dr. Kane, assessed that Plaintiff had "[c]ervical muscular strain with stress as a contributing factor," for which he gave Plaintiff a referral to a massage therapist. (Kane Dep. at 24.) Dr. Kane also prescribed Effexor for the pain. This largely accords with Plaintiff's disclosure to USAA. However, Plaintiff also had an MRI of his lower back performed on January 2, 2002, from which Dr. Kane assessed that Plaintiff had mild lumbar disk disease and cervical disk disease. (Id. at 42.) Plaintiff also received two epidural injections related to his neck pain in 2002. (Dr. Vladimir Fiks Dep. at 33.) In 2002, he was also prescribed Bextra, a non-steroidal anti-inflammatory drug. (Id. at 35.) This information was not disclosed to USAA.
Plaintiff did not disclose that he had further MRI studies performed and that he received a recommendation for surgery. On Dr. Kane's referral, Plaintiff saw Dr. Jeffrey Garr, an orthopedic surgeon specializing in spine surgery. (Garr Dep. at 4-5.) Dr. Garr saw Plaintiff twice, on June 24 and August 5, 2003. Dr. Garr examined Plaintiff and found his cervical range of motion limited in all planes and that his arm pain "was coming from his neck rather than his arm." (Id. at 8-9.) Dr. Garr took x-rays on June 24, 2003, which revealed "[s]light degenerative changes . . . at C5-6." (Id. at 9.) Dr. Garr also obtained an MRI of Plaintiff on June 25, 2003, which showed "left C5-6 and C6-7 stenosis and compression of both C6 and C7." (Id. at 11.) Dr. Garr recommended that Plaintiff undergo a surgical procedure to fuse part of his spine. (Id.)
Plaintiff was also prescribed methadone and had nerve studies conducted, which he did not disclose to USAA. On March 21, 2005, Plaintiff saw Dr. Natlia Tishkevich, a rheumatologist. (Wackerbarth Decl. Ex. S at 1.) He presented with a "history of chronic neck pain, for which he is on methadone." (Id.) He reported "thoracic *1204 spine pain for which he has been seeing a chiropractor." (Id.) He also stated that he started developing neck pain in 1998, for which he had EMG and nerve conduction velocity studies done. (Id.) He described having taken OxyContin in 2000 without positive response and that he had been taking methadone daily on the advice of Dr. Brown for 4 years. (Id. at 2.) Dr. Tishkevich noted his past medical history included chronic neck pain and narcotic use. (Id.) Dr. Tishkevich recommended that Plaintiff "proceed with neurologic evaluation by obtaining EMG, nerve conduction velocity studies to evaluate for the presence of neuropathy." (Id. at 3.)
USAA argues that Plaintiff's failure to disclose the full extent of his degenerative disc condition shows that he knowingly made false statement with a presumed intent to deceive. (Dkt. No. 24 at 15-18.) However, in 2004 Plaintiff disclosed to USAA that he had been suffering from a neck condition for five years, that he was taking cyclobenzaprine, and that he was being followed by Dr. Kane for continuing treatment. (Wackerbarth Decl. Ex. E at 1-2.) At the time USAA issued Plaintiff the policy, USAA's risk profile for Plaintiff showed that Plaintiff was using "meds for upper back pains/as needed." (Wilner Decl. Ex. K at 2.) That Plaintiff made no mention of his neck condition in the 2005 MHQ does not show unequivocally that he knowingly made a false statement. Rather, as Plaintiff has argued, he already disclosed this condition to USAA, which formed a part of his "risk profile" and the policy, and about which USAA made no subsequent inquiry. Plaintiff also points out that in light of the alleged discrepancy between the 2004 and 2005 disclosures, USAA failed to ask sufficient questions about his neck condition. Plaintiff has submitted credible evidence that he did not act to deceive USAA. See Kay, 28 Wash.2d at 301, 183 P.2d 181 (requiring credible evidence to overcome the presumption of deceit). Summary judgment on this issue is DENIED.
Further, because USAA knew of Plaintiff's his neck condition at the time it issued the policy, a dispute exists as to whether it considered the condition to be material. See Levy v. N. Am. Co. For Life & Health Ins., 90 Wash.2d 846, 852, 586 P.2d 845 (1978) (where the plaintiff revealed his condition but not the full extent of his treatment, and the insurer "failed to pursue the matter," a question for the jury remains). Plaintiff disclosed that he had an ongoing neck condition in the MHQ, and Ms. Osborne failed to fully investigate the neck issue in her telephone call with Plaintiff. Plaintiff's expert, Tim Terry, states that there was enough evidence for USAA to have known the full extent of the condition and that it simply failed to conduct an adequate investigation. (Terry Decl. Ex. B at 2.) Moreover, USAA's underwriting guidelines stated that an attending physician's statement and medical records should be obtained to "[c]larify a health disorder when an MHQ is insufficient" or to "verify member statements, if suspicious." (Wilner Decl. Ex. DD at 1.) Plaintiff also authorized USAA to contact his physician to follow up on his disclosures. If USAA considered this condition to be material, it should have followed its underwriting guidelines and obtained more information. Whether this information materially affected the risk assumed by USAA is for the jury to resolve. Cutter & Buck, Inc. v. Genesis Ins. Co., 306 F.Supp.2d 988, 1003 (W.D.Wash.2004) (noting that materiality is a question for the jury). Summary judgment on this issue is DENIED.
2. Depression
USAA charges Plaintiff with having failed to disclose a "history of depression." Plaintiff responds by attacking the existence *1205 of his depression. While Plaintiff made no disclosure of depression, there exists disputed evidence as to whether he was ever treated for depressionthe only question he was required to answer. (Wackerbarth Decl. Ex. E at 1.)
USAA states that it relied on only two documents to conclude that Plaintiff had an unrevealed history of depression: (1) a March 2, 2001 letter from Dr. Daniel Melber to Dr. Kane and (2) Dr. Kane's June 1, 2001 notes. (Monica Murray Dep. at 42.) First, in his letter, Dr. Melber states that Plaintiff's social history includes "depression as above." (Wilner Decl. Ex. O.) This does not show any treatment for depression, and it does not support USAA's position. Second, Dr. Kane's note from June 1, 2001 states that Plaintiff's parents took him to a psychiatrist "as they were concerned about depression and the doctor Rx'd some Tegretol." (Wilner Decl. Ex. P at 1.) Although Dr. Kane assessed Plaintiff with "[b]ipolar disorder," he did not diagnose him with the disorder. (Kane Dep. at 60.) There is no evidence that Plaintiff ever received a diagnosis of depression at all. (Kane Dep. at 59-60.) The only fact in the record supporting USAA's position is Dr. Kane's notes that Plaintiff's self-reported he was prescribed Tegretol, a drug that may be prescribed for back and neck pain. (Wilner Decl. Ex. T at 4.) This is in insufficient to show Plaintiff actually received treatment for depression, given that he never had a diagnosis of depression or obtained any actual treatment. As Plaintiff's expert, Dr. Howard Miller, explained, "lots of people might feel depressed without necessarily having the medical diagnosis of depression." (Miller Decl. Ex. B at 2.) The Court DENIES summary judgment on this issue.
3. Drug Use
USAA also denied policy benefits on the basis that Plaintiff failed to disclose his cocaine, methadone, and marijuana use. The record does not support USAA's denial on these bases. First, Plaintiff had no history of cocaine use. Second, Plaintiff was not required to disclose his methadone use because it was "on the advice of a physician." (See Wackerbarth Decl. Ex. E at 2.) Third, a material issue of fact exists as to whether he ever took marijuana without a physician's advice and whether he used marijuana at the time he applied filled out the MHQs. These purported omissions do not support summary judgment.
a. Cocaine
There is no evidence showing that Plaintiff failed to disclose any use of cocaine to USAA when he applied for insurance. The only evidence in the record is that he died with cocaine in his body. (Wackerbarth Decl. Ex. L at 1.) He underwent three drug tests from USAA, in 2004 and 2005, which showed no evidence of cocaine use. (Wilner Decl. Exs. Z, AA, CC). USAA's 30(b)(6) deponent, Monica Murray, confirmed that there is no evidence of cocaine use, except the death certificate. (Murray Dep. at 50, 52-53.) USAA lacks an evidentiary basis on which to sustain its claim that Plaintiff failed to disclose his use of cocaine. This was not a valid basis on which to deny benefits and summary judgment is DENIED on this issue.
b. Methadone
The evidence shows that Plaintiff only used methadone on advice of a physician. An internal email from USAA states that Dr. Brown prescribed Plaintiff with methadone for his back and neck pain. (Wilner Dec. Ex. X at 3.) Dr. Sam Cullison, USAA's expert, confirmed that "the only evidence in the record is that [Plaintiff] did use methadone on the advice of the physician in connection with pain treatment." (Cullison Dep. at 80.) Because Plaintiff took methadone on advice of a physician, he was not required to disclose this use *1206 based on the question asked in the MHQ. (Wackerbarth Decl. Ex. E. at 1.) Moreover, while Plaintiff was asked to divulge whether he was "taking medication" at the time he filled out the MHQ, there is insufficient evidence showing he was actually taking the drug in August of 2004 and 2005. While a drug test in January 2005 shows the presence of methadone, there is no evidence that at the time he filled out the MHQ he was also taking methadone. (Wilner Decl. Ex. CC.) A material fact then exists as to whether he made a false statement in the first instance. Summary judgment on this issue is DENIED.
c. Marijuana
USAA claims that Plaintiff failed to disclose his history of marijuana use. Plaintiff argues that his marijuana use was only on advice of a physician. The evidence shows a list of prescriptions for medical marijuana dating from March 2003 through 2004. (Wackerbarth Decl. Ex. K.) This supports Plaintiff's position that he never took marijuana except on advice of a physician. However, Dr. Melber's notes show that Plaintiff admitted to using marijuana in 2001, before the 2003 prescription. (Melber Dep. at 132.) While this may be probative of his use of non-medical marijuana, there is a dispute over whether another prescription may have existed. The parties agree that a fire destroyed many of Plaintiff's records, which may have contained the prescription. (Blair Rowley Decl. ¶¶ 2-3; Murray Dep. at 16.) Moreover, USAA's own expert admitted that "I don't think that we can make a strong case that the use of marijuana was not at the advice of a physician." (Wilner Decl. Ex. Y.) Whether Plaintiff should have disclosed any non-prescribed marijuana use turns on disputed factual issues.
Moreover, while Plaintiff was required to disclose any prescribed marijuana use at the time of his applications, there is nothing in the record showing he was using marijuana in August of 2004 and August of 2005. The prescriptions for medical marijuana do not refer to any use at the time he filled out the MHQs. (See Wackerbarth Decl. Ex. K.) No other evidence shows contemporaneous use. Summary judgment is DENIED on this issue.
4. Alcoholism and migraines
USAA contends that Plaintiff made false statements about his history of alcoholism and migraines. However, because neither of these purported conditions formed the basis of USAA's denial of coverage, they do not support USAA's motion under RCW 48.18.090. Moreover, disputed issues of fact remain as to whether Plaintiff had a history of alcoholism and whether his disclosures about his migraines were in any way false or misleading as to a material fact. Summary judgment on these issues is DENIED.
D. Post-claim Underwriting
Plaintiff argues that USAA engaged in post-claim underwriting when it used "the 20-20 vision of hindsight to seek out prior health problems in order to try and defeat the claim" for benefits. Uslife Credit Life Ins. Co. v. McAfee, 29 Wash.App. 574, 581, 630 P.2d 450 (1981). Uslife involved a situation where the insurer denied coverage based on information not requested of the plaintiffs at the time of application. Id. Here, however, Plaintiff was asked questions about the medical conditions that USAA used as the basis to deny benefits. Whether USAA simply failed to follow up on these disclosures and instead relied on hindsight to defeat the claim involves the same disputed issues of material fact discussed above. Indeed, Plaintiff's argument on post-claim underwriting goes to the heart of his claims against USAA that cannot be resolved at summary judgment. *1207 This serves as another reason to deny summary judgment.
E. Motion to strike
Plaintiff moves to strike the testimony of Michael Patterson regarding the propriety of USAA's underwriting and claims handling. The Court does not rely on Mr. Patterson's report and therefore DENIES the motion as moot.
Conclusion
Disputed issues of material fact preclude a grant summary judgment in favor of USAA. A jury must determine whether Plaintiff acted with an intent to deceive USAA as to his neck and back conditions and whether this materially affected the risk USAA insured. Disputed facts also exist as to whether Plaintiff had any history of depression or drug use that he should have disclosed to USAA. Whether USAA engaged in post-claim underwriting is yet another question to be resolved at trial. Summary judgment is therefore DENIED. The Court DENIES the motion to strike as moot.
The Clerk is directed to send a copy of this order to all counsel of record.
NOTES
[1] This appears to be a misspelling of cyclobenzaprine, given that there is no drug called cycobenzaphine. Moreover, Dr. King was likely a misspelling of Dr. Ronald Kane, Plaintiff's physician.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Powell and Senior Judge Clements
ADEVIJA JUSIC
MEMORANDUM OPINION *
v. Record No. 1023-09-2 PER CURIAM
SEPTEMBER 1, 2009
CAPTIVE PLASTICS, INC. AND
LIBERTY MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Adevija Jusic, pro se, on brief).
(Laura W. Hays; Daniel E. Lynch & Associates, on brief), for
appellees.
Adevija Jusic appeals a decision of the Workers’ Compensation Commission denying her
claim for benefits because she failed to prove she sustained an injury by accident arising out of
and in the course of her employment on either January 1, 2007 or May 20, 2007. We have
reviewed the record and the commission’s opinion and find that this appeal is without merit.
Accordingly, we affirm for the reasons stated by the commission in its final opinion. See Jusic v.
Captive Plastics, Inc., VWC File Nos. 233-61-42 and 234-57-12 (April 3, 2009). We dispense
with oral argument and summarily affirm because the facts and legal contentions are adequately
presented in the materials before the Court and argument would not aid the decisional process.
See Code § 17.1-403; Rule 5A:27.
Affirmed.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20356
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MANUEL ALVARADO-DERAS,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-801-1
--------------------
April 11, 2002
Before SMITH, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Jose Manuel Alvarado-Deras appeals his conviction for
illegal reentry after deportation. 8 U.S.C. § 1326. Alvarado-
Deras contends that the district court erred in not suppressing
evidence of his deportation because the deportation proceedings
violated his right to due process. He concedes that this issue
is foreclosed by United States v. Benitez-Villafuerte, 186 F.3d
651, 659-60 (5th Cir. 1999). He raises the issue to preserve it
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 01-20356
-2-
for Supreme Court review. The district court's judgment is
AFFIRMED.
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369 F.2d 698
Stokely CARMICHAEL et al., Appellants,v.CITY OF GREENWOOK, MISSISSIPPI, Appellee.
No. 22289.
United States Court of Appeals Fifth Circuit.
Oct. 28, 1966.
Appeal from the United States District Court for the Northern District of Mississippi; Claude F. Clayton, Chief Judge.
Benjamin E. Smith, New Orleans, La., L. H. Rosenthal, Jackson, Miss., for appellants.
Hadry Lott, Greenwood, Miss., for appellee.
Before RIVES, BROWN and WISDON, Circuit Judges.
PER CURIAM:
1
Subsequent to our order of September 30, 1965, 352 F.2d 86, reversing and remanding the case to the District Court for further proceedings, this Court twice stayed the mandate pending final disposition by the Superme Court of the case of City of Greenwood v. Peacock (Peacock v. City of Greenwood, Mississippi), 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944. Decided June 20, 1966. In Peacock, the Supreme Court held that grounds for removal of civil rights cases to the United States District Court under 28 U.S.C. 1443 do not include such grounds as are alleged in this case. Therefore, as in Miller v. State of Mississippi, 5 Cir., 1966, 363 F.2d 878,1 the Appellee's petition for rehearing is granted and the judgment of the District Court
2
Affirmed.
1
See also Boynton v. State of Alabama, 5 Cir., 1966, 366 F.2d 511; Collins v. City of Jackson, 5 Cir., 1966, 363 F.2d 873; Crawford v. State of Mississippi, 5 Cir., 1966, 363 F.2d 874; Dunlap v. City of Vicksburg, 5 Cir., 1966, 363 F.2d 873
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IN THE SUPREME COURT OF IOWA
Nos. 15–1373 & 16–0988
Filed June 1, 2018
TSB HOLDINGS, L.L.C. and 911 N. GOVERNOR, L.L.C.,
Appellants,
vs.
BOARD OF ADJUSTMENT FOR THE CITY OF IOWA CITY,
Appellee.
------------------------ ------------------
TSB HOLDINGS, L.L.C. and 911 N. GOVERNOR, L.L.C.,
Appellants,
vs.
CITY OF IOWA CITY, IOWA,
Appellee.
On review from the Iowa Court of Appeals.
Appeals from the Iowa District Court for Johnson County,
Mitchell E. Turner and Chad Kepros, Judges.
Developers seek further review of a court of appeals decision
affirming the district court’s orders denying them relief in certiorari
proceedings against a municipality. DECISION OF COURT OF APPEALS
VACATED; DISTRICT COURT JUDGMENT IN NO. 15–1373 AFFIRMED;
DISTRICT COURT JUDGMENT IN NO. 16–0988 REVERSED AND CASE
REMANDED WITH DIRECTIONS.
2
Charles A. Meardon of Meardon, Sueppel & Downer P.L.C., Iowa
City, and James W. Affeldt of Elderkin & Pirnie, P.L.C., Cedar Rapids, for
appellants.
Elizabeth J. Craig and Sara Greenwood Hektoen, Assistant City
Attorneys, Iowa City, for appellee.
3
MANSFIELD, Justice.
Relying on a 1987 court order, developers sought the right to build
apartments on certain adjoining properties they owned in Iowa City. After
the City denied their site plans, the developers brought separate actions
against the City and its Board of Adjustment. The district court ruled
against the developers in both actions. The developers appealed. The
court of appeals affirmed both judgments on the ground that enforcement
of the 1987 order was barred by Iowa Code section 614.1(6) (2013), which
provides that actions “founded on a judgment of a court of record” may
only be brought within twenty years after the cause of action accrues. See
Iowa Code § 614.1, .1(6). The developers asked for further review, which
we granted.
On further review, we find the Board of Adjustment should have
permitted the developers to proceed in accordance with the 1987 decree.
We conclude the statute of limitations does not bar enforcement of the
decree. We further conclude the developers are entitled to enforce the
decree as “successors and assigns.” Additionally, we reject the Board of
Adjustment’s argument that the decree had expired by its terms because
“a use [had] been developed or established” on the properties. Therefore,
we vacate the decisions of the court of appeals, reverse the district court
judgment in favor of the Board of Adjustment, and remand with directions
to enter judgment in favor of the developers in that proceeding.
I. Background Facts and Proceedings.
A. The Kempf Decision and the Resulting Remand Order. The
properties at issue are six numbered, adjoining lots in Iowa City. 1 Lots
1We realize Kempf v. City of Iowa City, 402 N.W.2d 393, 395 (Iowa 1987), states
there are seven numbered lots. However, upon examination of the record in this case,
we believe there are six lots.
4
49–51 on the west front on North Dodge Street. Lots 8–10 on the east
front on North Governor Street.
These properties were the subject of our decision in Kempf v. City of
Iowa City, 402 N.W.2d 393 (Iowa 1987). Wayne Kempf and his partners 2
bought a four-acre tract in the near north side of Iowa City. Id. at 395–96.
At the time of Kempf’s purchase, the City had zoned the properties as R3B,
a classification that permits office buildings and high density, multifamily
residential housing. Id. at 395.
Kempf planned to build one office building and five apartment
buildings on the lots, and invested $114,500 to purchase the whole tract
and develop it for construction. Id. at 395–96. Kempf had completed
construction of the office building on lots 8 and 9. See id. at 396. This
building is located at 911 North Governor Street. Kempf then began
construction of a twenty-nine unit apartment building on a part of lot 50.
See id. This building is located at 902 North Dodge Street. Following
vigorous neighborhood protests against the construction of the apartment
building, the City revoked Kempf’s building permit. Id. at 396–97.
Kempf commenced litigation. Id. at 397. The district court ordered
the City to reissue the building permit and enjoined the City from
preventing further construction. Id. After the completion of the apartment
building in 1977, the City imposed a moratorium on all construction with
the exception of single-family and duplex development. Id. In 1978, the
City rezoned Kempf’s tract and other tracts in the area. Id.
Kempf filed an amended petition, arguing the City’s rezoning was
arbitrary, capricious, and discriminatory, and the rezoning was an
2We refer to these plaintiffs collectively as Kempf except where otherwise stated.
5
unconstitutional taking. Id. at 398. Litigation between the parties
culminated in our Kempf decision.
First, we held the application of the rezoning to the lots and portions
of lots in the remaining 2.12 acres of the tract would be unreasonable. Id.
at 400–01. We reasoned overwhelming evidence showed it would be
economically unfeasible because “the cash flow income would not retire
the debt[,]” “lending agencies [would not] be willing to loan for such
purposes in these circumstances[,]” and “there would be no market for
single-family or duplex residences on the remaining Kempf tract.” Id. at
398, 400.
Second, we considered the present and future status of the
remaining lots. Id. at 401. We held
ordinances numbered 78-2901 through 78-2906 may apply to
the Kempf property, provided, however, that Kempf shall be
permitted to proceed with the development of apartment
buildings, as shown by the record in this case, to the extent
that such buildings conform to the ordinances in effect prior
to the 1978 rezoning . . . . The [C]ity shall be enjoined from
prohibiting this use of the property by Kempf. Further
development or redevelopment of the property beyond that
contemplated by Kempf as shown by this record and noted in
this opinion, whether carried out by Kempf or future owners,
will be subject to the amended ordinances above designated.
Id.
We remanded the case to the district court to enter a ruling
consistent with our opinion. Id.
On remand, the district court issued an order that described the
undeveloped 2.12 acres of the Kempf tract, specifically lots 10, 49, a part
of 50, and 51. The court further provided,
The owner or owners of said properties, and their
successors and assigns, shall be permitted to develop those
properties with multiple dwellings (apartments) in accordance
with the provisions applicable to the R3B zone in effect on May
6
30, 1978, prior to the rezoning of said real estate[,] which was
finalized on June 28, 1978.
. . . The City is and shall be enjoined from interfering
with development of those properties as herein provided.
Once a use has been developed or established on any of
the above-described properties, further development or
redevelopment of that property shall be subject to the zoning
ordinances in effect at the time such further development or
redevelopment is undertaken.
All parties, including the City, approved this language prior to the court
entering its decree. 3
After entry of the remand order, Kempf constructed a twelve-unit
apartment building on a part of lot 50. This building is located at 906
North Dodge Street. Kempf also granted the local energy company an
electrical easement across parts of lots 49 and 50 to provide utilities to the
new apartment building. 4 Other than the twelve-unit apartment building
and the electrical easement, Kempf did not further develop the properties.
B. Events Leading Up to the Current Litigation. Over time,
Kempf and his partners divested themselves of the properties. In 2005,
AB Investments, L.L.C., a Kempf-related entity, sold lots 49–51 to Main
Street Partners. Later that year, Main Street Partners conveyed the lots to
Iowa-Illinois Square, L.L.C., a company owned by the Clark family. In
2009, Iowa-Illinois Square, L.L.C. sold the lots to TSB for $3.4 million.
Thus, TSB has acquired lots 49–51, although it did not acquire them
directly from Kempf.
3In Iowa, when we “remand[] for a special purpose, the district court, upon the
remand, is limited to do the special thing authorized by this court in its opinion, and
nothing else.” See Kuhlmann v. Persinger, 261 Iowa 461, 468, 154 N.W.2d 860, 864
(1967). Regardless, both Kempf and the City approved the remand order entered by the
district court. Neither party challenged the propriety of the remand order below. Thus,
the remand order provides the applicable law in this case.
4Accordingto the March 28, 2016 district court order in the action against the
Board of Adjustment, the parties agree the electrical easement runs through lots 49 and
50.
7
In addition to the land itself, TSB now owns the twenty-nine unit
apartment building situated on lot 50 whose address is 902 North Dodge
Street and the twelve-unit apartment building situated on lot 50 whose
address is 906 North Dodge Street.
In 2012, AB Investments, L.L.C. sold lots 8–10 to 911 North
Governor, L.L.C. The sale included the office building that Kempf had built
on lots 8 and 9 in the early 1970s. TSB has since acquired 911 North
Governor, L.L.C. 5 Therefore, through series of transactions, TSB now
owns or controls the lots that are the subject of the Kempf litigation and
the remand order.
In November 2012, the City amended its comprehensive zoning plan
to designate properties in the area, including the properties at issue in this
case, as single family and duplex residential properties. On March 19,
2013, the City rezoned the properties to comply with the comprehensive
zoning plan by passing ordinance 13–4518. This ordinance provides in
relevant part,
WHEREAS, the City of Iowa City has initiated a rezoning
of property located at 906 North Dodge Street from Multi-
family (R3B) to High-Density Single-Family Residential (RS-
12); property located [at] 911 North Governor Street from
Commercial Office (CO-1) to High-Density Single-Family
Residential (RS-12); property located at 902 and 906 North
Dodge Street from Multi-family (R3B) to Medium-Density
Multi-Family Residential (RM-20) in order to bring the
properties into compliance with the City’s Comprehensive
Plan; and
WHEREAS, City plans and policies, including the
Comprehensive and Strategic Plan, have changed
considerably in the last 40 years, with the current
Comprehensive Plan and Historic Preservation Plan
containing policies to encourage preservation of the single
family character of the City’s older single family
neighborhoods and policies that serve to stabilize these
5From this point forward, we refer to TSB Holdings, L.L.C. and 911 N. Governor,
L.L.C. collectively as TSB.
8
neighborhoods by encouraging a healthier balance of rental
and owner-occupied housing rather than redevelopment for
housing that serves primarily short-term residents; and
WHEREAS, the Central District Plan indicates that R3B
zoning is obsolete and the properties with this designation
should be rezoned to a valid zoning designation;
....
WHEREAS, the Comprehensive Plan policies in place
during the 1960s that led to the R3B zoning on Dodge Street
encouraged demolition and redevelopment of older
neighborhoods at higher densities; and
WHEREAS, the City’s Zoning Code no longer includes
the R3B zoning designation due to its inconsistency with the
City’s current comprehensive planning goals and polices; . . . .
Iowa City, Iowa, City Code § 13–4518 (2013). The ordinance went into
effect on March 28.
On January 10 of that same year, before ordinance 13–4518 had
been published, TSB submitted a site plan to obtain the City’s approval
for development on 902 and 906 North Dodge Street. Julie Tallman, the
City’s regulation specialist, evaluated the site plan under the Kempf
remand order and noted various deficiencies with it.
On January 22, the City announced the rezoning and imposed a
moratorium to prevent the approval of any site plan in light of the
anticipated rezoning. Nevertheless, on January 31, TSB submitted a
revised site plan that proposed developing lots 9, 10, 49, 51, and a portion
of lot 50, and demolishing the existing parking area on lots 9, 10, 49, and
a portion of lot 50.
Kempf had not developed lots 10, 49, and 51, and they had no
buildings on them at the time TSB submitted this site plan. Kempf had
developed only a very small portion of lot 50, with substantially all of lot
50 remaining vacant at the time TSB submitted its site plan.
9
On February 7, without evaluating the implications of the Kempf
remand order on the site plan, Tallman denied the site plan on the ground
that multifamily dwellings (apartment buildings) did not comply with the
existing commercial office (CO-1) zone or the proposed high-density single-
family residential (RS-12) rezone.
On April 18, TSB submitted a new site plan, which proposed
construction of apartment buildings on lots 10, 49, and 51 only. Tallman
denied this plan on April 29, viewing it as materially identical to the
January 31 site plan. The City also noted the March 28 effective date of
ordinance 13–4518 did not alter the situation because the moratorium had
been in effect at the time of the January 31 site plan, and the moratorium
mandated compliance with the proposed rezoning.
C. Action Against the City. In February 2013, after ordinance 13–
4518 had been proposed but before it had been adopted, TSB filed a
petition for declaratory relief and temporary injunction against the City.
In count I, TSB requested “a declaratory decree adjudging the [City] may
not alter the zoning of the propert[ies], and that if the [City] does so, that
the altered regulation is, to the extent it applies to the propert[ies],
unconstitutional and void.” In count II, TSB sought a temporary
injunction that would restrain the City from rezoning the properties until
a hearing.
In April, following the approval of ordinance 13–4518, TSB also filed
a petition for writ of certiorari against the City directly challenging the
legality of ordinance 13–4518. Specifically, TSB alleged
[t]he change i[n] the zoning classification was improper,
unreasonable, arbitrary and capricious, illegal, contrary to
prior rulings of the Supreme Court of Iowa and of the Johnson
County District Court, and would result in an
unconstitutional taking of [TSB]’s property.
10
TSB requested the court to issue a writ of certiorari annulling the City’s
rezoning. On July 16, 2014, the court consolidated the two actions against
the City.
Both parties filed motions for summary judgment. The court
granted the City’s summary judgment motion on all claims and denied
TSB’s summary judgment motion. First, the court found ordinance 13–
4518 did not violate Kempf and the remand order because the City had
legislative authority to rezone the properties. Second, the court found the
City acted legally when adopting ordinance 13–4518.
TSB filed a rule 1.904(2) motion requesting clarification as to
whether the court intended to dismiss TSB’s takings claim. Resisting the
rule 1.904(2) motion, the City argued TSB’s takings claim did not meet
notice-pleading requirements. The court enlarged its summary judgment
ruling to find TSB failed to plead adequately a takings claim.
TSB appealed, claiming the court erred not only in entering
summary judgment against it but also in failing to enter summary
judgment in its favor. We transferred the case (No. 15–1373) to the court
of appeals.
D. Action Against the Board of Adjustment. Meanwhile, the
Board of Adjustment (Board) had upheld Tallman’s denial of a site plan.
The Board specifically denied TSB’s request for a variance from ordinance
13–4518. In January 2014, TSB filed a petition for writ of certiorari
against the Board, challenging the Board’s refusal to approve the site plan.
This case went to trial in January 2016. Approximately three months
before trial, the Board unsuccessfully attempted to amend its answer to
raise the statute of limitations as a defense to enforcement of the Kempf
remand order. The district court denied the motion as untimely.
11
On March 28, the district court rendered its written decision in the
case against the Board. It determined that TSB could not enforce the
Kempf remand order because it was not a “successor” or “assign” within
the meaning of that order. It also concluded that a “use” had been
“developed or established” on the properties and that TSB’s proposals
involved “further development or redevelopment,” which under the order
would be “subject to the zoning ordinances in effect.” Finally, it found that
TSB’s requested relief would violate public policy.
TSB appealed this ruling. Additionally, the Board cross-appealed
the denial of its motion to amend its answer to raise the statute of
limitations. The Board argued that the Kempf remand order would have
been unenforceable anyway based on Iowa Code section 614.1(6). We
transferred this appeal (No. 16–0988) to the court of appeals.
E. Decisions of the Court of Appeals. While both appeals were
pending, we rendered the decision in Dakota, Minnesota, & Eastern
Railroad v. Iowa District Court, 898 N.W.2d 127 (Iowa 2017). In Dakota,
we held a contempt proceeding to enforce a 1977 injunction was barred by
the statute of limitations set forth in Iowa Code section 614.1(6). Id. at
135–39.
After receiving supplemental briefs, the court of appeals rendered a
single panel decision covering both appeals. In No. 15–1373, the court
generally affirmed summary judgment in favor of the City on the basis of
Dakota. However, on TSB’s takings claim, the court of appeals held the
district court erred in determining that the takings claim did not meet
notice-pleading requirements when the City had notice of the facts giving
rise to the claim and the general nature thereof. Thus, the court of appeals
12
reversed on that issue and remanded. In No. 16–0988, the court of
appeals also affirmed the district court judgment in reliance on Dakota. 6
TSB asked for further review in both cases. 7 We granted the
requests and now consolidate the two appeals (No. 15-1373 and No. 16-
0988) for purposes of our decision.
II. Scope of Review.
We review orders granting summary judgment for correction of
errors at law. Johnson Propane, Heating & Cooling, Inc. v. Iowa Dep’t of
Transp., 891 N.W.2d 220, 224 (Iowa 2017). Summary judgment is
appropriate if the record, shows “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.” Iowa R. Civ. P. 1.981(3).
With a certiorari proceeding, the district court finds the facts anew
only to determine if there was illegality not appearing in the record made
before the board. Bontrager Auto Serv. v. Iowa City Bd. of Adjustment, 748
N.W.2d 483, 494–95 (Iowa 2008). Fact-findings or issues that were before
the board for decision are “reviewed under the substantial evidence
standard.” Id. at 495. “We are bound by the district court’s findings if
supported by substantial evidence.” Baker v. Bd. of Adjustment, 671
N.W.2d 405, 414 (Iowa 2003). “However, we are not bound by erroneous
legal rulings that materially affect the court’s decision.” Id.
III. Whether TSB’s Claims Based on the 1987 Kempf Remand
Order Are Barred by the Statute of Limitations.
In Dakota, this court concluded unanimously that when twenty
years have passed from the entry of an injunction, a contempt proceeding
6Two special concurrences were filed in the court of appeals panel decision. Both
concurrences expressed doubts as to whether Dakota was correctly decided, while
recognizing the court of appeals was bound by the decision.
7The City also asked for further review in No. 15–1373 on the takings issue.
13
to enforce that injunction is barred by the statute of limitations unless the
injunction has been renewed. 898 N.W.2d at 135–39. Our decision was
based on the wording of Iowa Code section 614.1(6). Id. Upon further
reflection, we believe we erred.
We begin again with the text of Iowa Code section 614.1(6). The
relevant part of the statute provides,
Actions may be brought within the times herein limited,
respectively, after their causes accrue, and not afterwards,
except when otherwise specially declared:
....
6. Judgments of courts of record. Those founded on a
judgment of a court of record, whether of this or of any other
of the United States, or of the federal courts of the United
States, within twenty years, except that a time period
limitation shall not apply to an action to recover a judgment
for child support, spousal support, or a judgment of
distribution of marital assets.
Iowa Code § 614.1(6) (emphasis added).
In Dakota, we considered the issue of whether a 1977 judgment
granting an injunction against the former owner of a railroad right-of-way
was enforceable almost forty years later against a subsequent purchaser.
898 N.W.2d at 129. We held the 1977 judgment was unenforceable
because of Iowa Code section 614.1(6). Id. at 138.
In 1977, the district court had issued an injunction against the
then-owner of the railroad right-of-way. Id. at 132. This injunction
directed the owner to reconstruct a dike designed to channel creek water
under the railroad bridge and away from adjacent farmland. Id. Nearly
forty years later, the court found a subsequent purchaser of the right-of-
way in contempt for failing to reconstruct and maintain the dike. Id. at
134. The subsequent purchaser filed an application for interlocutory
14
review and alternatively a petition for certiorari, seeking review of the
court’s order finding contempt. Id. We granted certiorari review. Id.
In the certiorari proceeding, we stated the “[plaintiff]’s application
for order to show cause filed in February 2013 was an action seeking
enforcement of the judgment entered in 1977” and “was therefore an action
subject to the twenty-year statute of limitations on enforcement of
judgments under Iowa Code section 614.1(6).” Id. at 138. Overlooking the
accrual language in section 614.1, we first concluded “[t]he twenty-year
period commenced when the judgment was entered.” Id. We then
concluded, “Because the 1977 judgment was not renewed, it expired in
1997, well before the attempt to enforce it against [the subsequent owner]
was commenced.” Id. Thus, we held the contempt proceeding against the
subsequent owner was an untimely action to enforce the 1977 judgment.
Id. at 140.
In retrospect, instead of focusing on the language of Iowa Code
614.1(6), we should have considered the larger context of the statute,
including the preceding language in section 614.1 which explicitly uses
accrual terminology. Compare Iowa Code § 614.1 (“Actions may be
brought within the times herein limited, respectively, after their causes
accrue, and not afterwards . . . . (Emphasis added.)), with id. § 624.23(1)
(“Judgments in the appellate or district courts of this state, or in the circuit
or district court of the United States within the state, are liens upon the
real estate owned by the defendant at the time of such rendition, and also
upon all the defendant may subsequently acquire, for the period of ten
years from the date of the judgment.” (Emphasis added.)). Until a cause of
action accrues, the statute of limitations does not commence. Huerta–
Orosco v. Cosgrove, 979 F. Supp. 2d 974, 979 (N.D. Iowa 2013).
15
Not all causes of action accrue on the date of judgment entry. The
case at hand illustrates this point. The 1987 remand order prohibits the
City from interfering with the development of the properties subject to the
remand order. TSB sustained injury in 2013 when the City denied and
the Board affirmed the denial of TSB’s site plans based on ordinance 13–
4518. Thus, TSB’s cause of action seeking to enforce the remand order
accrued or matured in 2013.
We distinguished a statute of repose from a statute of limitations in
Bob McKiness Excavating & Grading, Inc. v. Morton Buildings, Inc.,
507 N.W.2d 405, 408–09 (Iowa 1993). We stated,
A statute of limitations bars, after a certain period of time, the
right to prosecute an accrued cause of action.
By contrast, a statute of repose “terminates any right of
action after a specified time has elapsed, regardless of whether
or not there has as yet been an injury.”
A statute of repose period begins to run from the
occurrence of some event other than the event of an
injury that gives rise to a cause of action and, therefore,
bars a cause of action before the injury occurs.
Under a statute of repose, therefore, the mere passage of time
can prevent a legal right from ever arising.
Id. at 408 (citation omitted) (quoting Hanson v. Williams County, 389
N.W.2d 319, 321 (N.D. 1986)). Stated differently, “a statute of limitations
affects only the remedy, not the right, . . . whereas a statute of repose
affects the right itself, extinguishing existing rights or preventing rights
from arising.” See Albrecht v. Gen. Motors Corp., 648 N.W.2d 87, 91 (Iowa
2002) (citation omitted).
In Bob McKiness, we examined the language of section 614.1(11)
(1991) and concluded it was a statute of repose as opposed to a statute of
limitations. 507 N.W.2d at 408. Section 614.1(11) at the time provided,
16
In addition to limitations contained elsewhere in this section,
an action arising out of the unsafe or defective condition of an
improvement to real property based on tort and implied
warranty and for contribution and indemnity, and founded on
injury to property, real or personal, or injury to the person or
wrongful death, shall not be brought more than fifteen years
after the date on which occurred the act or omission of the
defendant alleged in the action to have been the cause of the
injury or death.
Id. at 409 (emphasis added) (quoting Iowa Code § 614.1(11) (1991)). We
stated the fifteen-year period of repose commenced from the date of the
defendant’s act or omission alleged to have been the cause of the plaintiff’s
complaint. Id.
We further noted that “the plain language of the statute evinces a
legislative policy decision to close the door after fifteen years on certain
claims arising from improvements to real property.” Id.; accord Albrecht,
648 N.W.2d at 91 (“[S]tatutes of repose ‘reflect the legislative conclusion
that a point in time arrives beyond which a potential defendant should be
immune from liability for past conduct.’ ” (quoting 51 Am. Jur. 2d
Limitation of Actions § 18, at 463 (2000))). Thus, in declining to apply the
discovery rule to section 614.1(11), we rejected the argument that
plaintiff’s cause of action accrued in 1991 when the plaintiff first
discovered the design defects of the first building. 507 N.W.2d at 409.
Rather, we held the statute of repose began to run from the respective
completion dates of the two buildings in 1971 and 1974. Id.
In Albrecht, we built upon our analysis in Bob McKiness. We
emphasized section 614.1 states “[a]ctions may be brought within the
times herein limited, respectively, after their causes accrue[,] and not
afterwards, except when otherwise specially declared.” 648 N.W.2d at 91
(first alteration in original) (quoting Iowa Code § 614.1 (1975)). We stated
the “otherwise specially declared” language applies to statutes of repose.
Id. at 92. We held section 614.1(2A)(a) is a statute of repose in which the
17
limitations period commenced from the date the aggrieved party first
purchased the product or installed it for use. Id.
We should have concluded in Dakota that Iowa section 614.1(6) is a
statute of limitations, not a statute of repose. This section provides that
actions run from the accrual of the aggrieved party’s claim, not necessarily
the date of judgment entry. See Weiser v. McDowell, 93 Iowa 772, 777, 61
N.W. 1094, 1096 (1895) (“[P]laintiff’s cause of action is not barred until
twenty years from the time at which the action could have been
commenced . . . .”).
Of course, in some instances those dates are one and the same. An
obligation to pay money typically arises when the money judgment is
entered. Therefore, a cause of action to enforce a money judgment
(including an obligation to pay money within an equitable decree) usually
arises when the judgment is entered. See Miller v. Rosebrook, 136 Iowa
158, 164, 113 N.W. 771, 773 (1907) (deciding that with respect to a money
judgment, “the statutory period within which an action may be brought on
such judgment commences to run from the date of the entry thereof by the
clerk of the district court, and extend[s] for twenty years”). 8 That is why
section 614.1(6) was amended in 1997 to expressly exempt “an action to
recover a judgment for child support, spousal support, or a judgment of
distribution of marital assets” from the twenty-year bar. See 1997 Iowa
Acts ch. 175, § 235; see also State ex rel. Holleman v. Stafford, 584 N.W.2d
242, 247 (Iowa 1998) (finding that “collection of [child support] payments
due more than twenty years prior to July 1, 1997, [was] barred by the
statute of limitations”).
8This would not be true if the judgment provided for a deferred payment.
18
Dakota was also inconsistent with Bear v. Iowa District Court, where
we said that permanent injunctions are “unlimited in respect of time.” 540
N.W.2d 439, 441 (Iowa 1995). We added, “The mere passage of time . . .
does not invalidate a permanent injunction.” Id. As we pointed out in
Dakota, the results in the two cases can be reconciled. See 898 N.W.2d at
139. Yet the reasoning in the two cases cannot be. 9
The legislature has used the appropriate language when it intends
to regulate the duration of judgments as opposed to when “[a]ctions may
9There is another potential reason why we may have erred in Dakota. Historically,
an action founded on a judgment as used in Iowa Code section 614.1(6) and its
predecessors referred to an action on a money judgment. Thus, in Morrison v. Springfield
Engine & Thresher Co., 84 Iowa 637, 640, 51 N.W. 183, 184 (1892), we found that an
action to enforce a judgment requiring the return of a thresher or a payment of its value
in money was not time-barred by the predecessor to section 614.1(6). We explained,
[T]he action in this case is not really upon a judgment. The order in
reference to the thresher is conditional. It provides for the return of the
machine or the payment of the value of it, and it fixes the value. It is not
in such condition that an execution could be issued thereon to collect the
money. It was in the alternative.
Id.
It is true that Kramer v. Rebman, 9 Iowa 114, 118 (1859), which we cited in
Dakota, indicates in dictum that “judgment” as used in section 614.1(6)’s predecessor
includes both judgments at law and judgments at equity. But Kramer doesn’t address
what constitutes an action “founded on a judgment” and whether that term encompasses
proceedings to enforce purely equitable provisions in a decree. See Iowa Code § 614.1(6)
(2013).
Dakota also did not discuss Iowa Code section 614.3, which provides,
No action shall be brought upon any judgment against a defendant
therein, rendered in any court of record of this state, within nine years
after the rendition thereof, without leave of the court for good cause shown
....
Iowa Code § 614.3. If Dakota were correct, then no contempt action could be brought to
enforce an injunction during the first nine years after its entry—unless an action “brought
upon any judgment” and an action “founded . . . on a judgment” were two different things.
That is troubling.
We do not reach a definitive conclusion on these points. For today, we hold only
that a proceeding to enforce an injunction cannot be barred by the statute of limitations
in Iowa Code section 614.1(6) if it was brought within twenty years of the accrual of the
cause of action, which in a proper case may be when the violation of the injunction first
occurred.
19
be brought . . . after their causes accrue” to enforce judgments. Iowa Code
§ 614.1 (2013); see Exceptional Persons, Inc. v. Iowa Dep’t of Human Servs.,
878 N.W.2d 247, 251 (Iowa 2016) (“[W]e may consider those things the
legislature said in one provision, but not in another.”). Consider chapter
615, which the legislature titled as “Limitations on Judgments.” Iowa Code
ch. 615. Section 615.1 plainly provides that certain judgments related to
real estate expire after two years. Id. § 615.1 (“After the expiration of a
period of two years from the date of entry of judgment, . . . a judgment
entered in any of the following actions shall be null and void . . . .” ). In
yet another example, section 664A.5 specifically limits the duration of a
permanent no-contact order to “five years from the date the judgment is
entered or the deferred judgment is granted.” Id. § 664A.5. From these
sections, it appears the legislature knew exactly how to limit the duration
of judgments. However, the legislature chose not to do so in section
614.1(6).
In sum, we overrule Dakota and hold that the limitations period in
Iowa Code section 614.1(6) runs from the date when the cause of action
accrues, which in the case of an injunction may be the date when the
violation of the injunction occurs. This does not mean that all injunctions
are permanent. Dakota may have reached the correct result on its facts
because it appears the relevant portions of the injunction were not
permanent. They required specific action at the time—“continuing to allow
the flowage of Whiskey Creek upon plaintiffs’ land” and “reconstruct[ing]
the collapsed dike in order to channel the Creek under Bridge 110”—not
forever. Dakota, 898 N.W.2d at 132. Thus, contempt was improper not
because the statute of limitations for contempt had run, but because the
underlying provisions that were the basis for contempt had expired.
20
We conclude that proceedings in these cases were not barred by
Iowa Code section 614.1(6). TSB alleges that the City’s adoption of
ordinance of 13–4518 and the Board’s denial of a variance for the amended
site plan both violated the Kempf remand order. Those two actions
occurred in 2013. Thus, TSB’s cause of action to enforce the Kempf
remand order accrued or matured in 2013.
IV. Whether the Kempf Remand Order Allows TSB to Develop
the Properties with Apartments.
We now address two arguments. First, does the City’s passage of
ordinance 13–4518 violate the Kempf remand order? Second, does the
Kempf remand order prohibit the City from enforcing ordinance 13–4518
so as to interfere with TSB’s alleged development rights? Otherwise stated,
does it allow TSB to develop the properties despite ordinance 13–4518?
A. Did the City’s Passage of Ordinance 13–4518 Violate the
Kempf Remand Order? Zoning decisions are an exercise of police powers
the state delegates to municipalities. Anderson v. City of Cedar Rapids,
168 N.W.2d 739, 742 (Iowa 1969). The City has statutory authority to
pass zoning laws “[f]or the purpose of promoting the health, safety, morals,
or the general welfare of the community.” Iowa Code § 414.1(1).
“A zoning ordinance, including any amendments to it, carries a
strong presumption of validity.” Neuzil v. City of Iowa City, 451 N.W.2d
159, 163 (Iowa 1990); see also Residential & Agric. Advisory Comm., LLC
v. Dyersville City Council, 888 N.W.2d 24, 43 (Iowa 2016) (“Zoning
regulations carry a strong presumption of validity.”). The challenger must
rebut and overcome the strong presumption that the rezoning is valid. See
Shriver v. City of Okoboji, 567 N.W.2d 397, 401 (Iowa 1997). The
challenger “must show the ordinance is unreasonable, arbitrary,
21
capricious or discriminatory, with no reasonable relationship to the
promotion of public health, safety, or welfare.” Id.
“If the reasonableness of a zoning ordinance is fairly debatable, we
will not substitute our judgment for that of the legislative body.” Molo Oil
Co. v. City of Dubuque, 692 N.W.2d 686, 691 (Iowa 2005); see also
Residential & Agric. Advisory Comm., 888 N.W.2d at 43.
If an ordinance “has any real, substantial relation to the public
health, comfort, safety, and welfare, including the maintenance of property
values,” it is valid. Neuzil, 451 N.W.2d at 164. We apply this test by
primarily considering the ordinance’s general purpose and not the
hardship it may impose in an individual case. Id. “We do not focus on
individual hardships because property owners in the area affected by a
zoning ordinance, as well as adjacent landowners, have no vested right to
the continuation of the current zoning.” Shriver, 567 N.W.2d at 401. We
will therefore not strike down an ordinance for the sole reason that the
ordinance adversely affects a particular property owner. Id. Zoning is
dynamic and changing, with “any existing restrictions being always
subject to reasonable revisions [in light of] changing community conditions
and needs as they appear.” Anderson, 168 N.W.2d at 743.
In appeal No. 15–1373, TSB argues that the City’s passage of
ordinance 13–4518 was unlawful. Yet in its resistance to the City’s motion
for summary judgment below, TSB conceded that “the injunction in the
[r]emand [o]rder does not specifically state that the City may not rezone
the [p]ropert[ies].” Moreover, TSB has stated “[it] does not ask that the
City be permanently enjoined from rezoning the [p]ropert[ies].”
Nothing in the language of our Kempf decision or the district court’s
remand order prevents the City from rezoning the properties under
scrutiny. In fact, we did not void the rezoning ordinance in Kempf but
22
rather held the ordinance was not applicable to Kempf’s development
plans. See 402 N.W.2d at 401 (reversing the district court’s ruling to the
extent it voided the 1978 zoning ordinance).
On appeal, TSB admits “[t]his case is not about a challenge to the
City’s power to rezone property.” So what exactly is TSB arguing? TSB
reframes the issue as whether the City intentionally violated the remand
order by passing ordinance 13–4518. In other words, TSB is not alleging
ordinance 13–4518 is illegal on the ground that Kempf and the remand
order precluded rezoning of the properties. Instead, TSB is claiming
ordinance 13–4518 is illegal because the City’s purpose was to interfere
with TSB’s alleged development rights.
When a zoning authority adopts a new zoning regulation designed
to frustrate a particular applicant’s plans for development, it can be
discerned that an improper purpose exists. Geisler v. City Council of Cedar
Falls, 769 N.W.2d 162, 169 (Iowa 2009).
Yet we find no improper purpose on the part of the City in passing
ordinance 13–4518. Before TSB submitted its site plans in 2013, the City
was already contemplating zoning changes in 2008, at which time the City
adopted a central district plan. According to this plan, TSB’s properties
lie within an “area [that] has the greatest diversity of housing types and
the widest range of zoning designations, from medium density single-
family to high density multi-family.” The plan states this mix “has been
an ongoing challenge to maintain a balance between the different housing
types and mix of residents within [the area].” The plan cites several
reasons: absentee landlords, a large number of inexperienced young
renters, problems with property maintenance, loud and disorderly
conduct, yard upkeep, and snow removal.
23
In 2012, the City amended its comprehensive zoning plan to
designate the area as single family and duplex residential. The resolution
amending the comprehensive plan stated,
City policies, including the [c]omprehensive and [s]trategic
plan, have changed considerably in the last 50 years, and now
contain policies promoting neighborhood stabilization rather
than high-density redevelopment, which has proven to have a
destabilizing effect on single-family residential
neighborhoods.
The resolution noted that the central district plan seeks “to achieve
a healthier balance of rental and owner-occupied housing in the district’s
older neighborhoods to promote long-term investment, affordable housing
opportunities, and preservation of historic homes and neighborhoods.”
After considering the proposed rezoning three times, the City
approved ordinance 13–4518 a year later. This ordinance incorporates the
same goals and justifications as the 2012 amendment to the
comprehensive plan.
Reviewing this sequence of events, we cannot find the City adopted
the ordinance in bad faith or to block TSB from developing the relevant
properties. The City sought to ensure compatibility of future development
and redevelopment with the surrounding neighborhoods and encourage
stabilization of the neighborhood. The chronology of the passage of
ordinance 13–4518 tends to negate any arguments that the City was
engaged in spot zoning. See id. at 169 n.3 (“Unlike [in] situations where
bad faith [is] found when the governing body [seeks] to change the rules in
response to a particular request, the result may be different where a zoning
change is already being contemplated before the particular request is
made.”). Accordingly, we hold the district court did not err in granting
summary judgment to the City in No. 15–1373 and determining that
ordinance 13–4518 was lawful.
24
B. Does the Kempf Remand Order Prohibit the City from
Enforcing Ordinance 13–4518 as to the Properties TSB Seeks to
Develop? We now address whether the Kempf remand order precludes
the application of ordinance 13–4518 to TSB’s amended site plan, such
that TSB should have been granted a variance. This issue is raised in
No. 16–0988—the case against the Board. The district court found that
TSB did not have rights to proceed with the apartment project under the
Kempf remand order.
We interpret court decrees like any other written instrument.
Waters v. State, 784 N.W.2d 24, 28 (Iowa 2010). In construing court
decrees, the determining factor is the intent of the court as gathered from
all parts of the judgment. Id. If possible, we strive to effectuate every word
“to give the judgment as a whole a consistent, effective[,] and reasonable
meaning.” In re Marriage of Lawson, 409 N.W.2d 181, 182–83 (Iowa 1987).
Moreover, we seek to give force to those matters that are clearly implied,
as well as expressed. Rinehart v. State, 234 N.W.2d 649, 656 (Iowa 1975).
We resort to the pleadings and other proceedings if the meaning of the
decree is ambiguous. Waters, 784 N.W.2d at 28.
1. Owners, successors, and assigns. TSB contends the district
court erred in concluding that it did not qualify as a “successor[] and
assign[]” to Kempf.
An “assign,” otherwise known as “assignee,” is not the same as a
“successor.” See Ostrem v. Prideco Secure Loan Fund, LP, 841 N.W.2d 882,
899 (Iowa 2014). An assignment occurs when an assignor transfers to its
assignee “the whole of any property or right in the property” such that “the
assignee assumes the rights, remedies, and benefits of the assignor,” and
“also takes the property subject to all defenses to which the assignor is
subject.” Red Giant Oil Co. v. Lawlor, 528 N.W.2d 524, 533 (Iowa 1995).
25
We have stated that
[assign] does not mean just a single person, but also
comprehends a line or succession of persons. It is often
written “assignees.” An “assignment” has been defined as “a
transfer or making over to another of the whole of any
property, real or personal, in possession or in action, or of any
estate or right therein.” . . . “The word ‘assigns’ is a term of
well-known signification, comprehending all those who take
immediately or remotely from or under the assignor, whether
by conveyance, devise, descent, or act of law . . . .
Reichard v. Chi., B. & Q. R.R., 231 Iowa 563, 583, 1 N.W.2d 721, 733
(1942) (citation omitted).
The district court found that TSB was not a successor or assign
because (1) Kempf did not sell the lots directly to TSB and (2) the lots were
sold piecemeal and not as a single package. The first point does not matter
because assign includes “a line or succession of persons” and
encompasses “all those who take immediately or remotely from or under
the assignor, whether by conveyance, devise, descent, or act of law.” Id.
(emphasis omitted). The second point does not matter because the lots
themselves were not subdivided, and the Kempf remand order applied lot
by lot. Notably, the order begins by using plural nouns. It refers to “the
owner or owners” of the “properties,” i.e., the lots, as well as “their
successors and assigns.” Then, it continues,
Once a use has been developed or established on any of
the above-described properties, further development or
redevelopment of that property shall be subject to the zoning
ordinances in effect at the time such further development or
redevelopment is undertaken.
(Emphasis added.) Thus, development rights are provided for each lot. In
any event, TSB now owns the whole Kempf tract: lots 8–10 and 49–51.
This is not a case like Ross v. First Savings Bank of Arlington, which
involved loan participation agreements. See 675 N.W.2d 812 (Iowa 2004).
Unlike the lead bank in Ross, which sold shares in a pool of loans, id. at
26
817, Kempf transferred and TSB eventually acquired all the rights to each
lot. TSB is an assignee within the contemplation of the 1987 remand
order.
The Board relies on Sun Valley Iowa Lake Ass’n v. Anderson to argue
that TSB is not a successor to Kempf. See 551 N.W.2d 621 (Iowa 1996).
We need not resolve whether TSB is a successor because we have already
determined that it is an assign. In any event, Sun Valley does not support
the Board’s position. In that case, we found that the entity that had
purchased property from the developer was a “successor developer” within
the meaning of a covenant document, and the entity’s two shareholders
were not. Id. at 639–40. We quoted a Texas case for the proposition that
the exact meaning of the word “successor” “must depend largely on the
kind and character of the contract, its purposes and circumstances, and
the context.” Id. at 640 (quoting Enchanted Estates Cmty. Ass’n v.
Timberlake Improvement Dist., 832 S.W.2d 800, 802 (Tex. App. 1992)). We
quoted further from the same case that “[t]he term ‘successor’ has also
been defined as ‘one who takes the place that another has left, and
sustains the like part or character.’ ” Id. (emphasis omitted). We found
that the new developer, not its shareholders, “took the place” of the
previous developer and “sustain[ed] the like part or character.’ ” Id.
(alteration in original).
Here TSB “took the place” that Kempf “left” and is seeking to
“sustain[] the like part or character.” See id. TSB’s amended site plan
calls for apartments to be built on lots 10, 49, and 51. At the time we
decided Kempf, Kempf’s plan based on the record of that case was to
develop four more apartment buildings. 402 N.W.2d at 395. Kempf built
one apartment building following the remand order. TSB now seeks to
pick up where Kempf left off by erecting three more apartment buildings.
27
2. Whether a use has been developed or established on the
properties. TSB next contends the district court erred in concluding that
the type of “use” contemplated in Kempf and the remand order “had been
developed or established” on the relevant lots.
The remand order not only benefits “successors and assigns” to
Kempf, it also permits the development to occur with “multiple dwellings”
(apartments) in general and not specifically Kempf’s planned four
apartment buildings.
The question then is whether, per the remand order, “a use has been
developed or established on any of the above-described properties.” As we
have already noted, the remand order takes a micro approach as opposed
to a macro approach. Specifically, the remand order dictates that “[o]nce
a use has been developed or established on any of the above-described
properties, further development or redevelopment of that property shall be
subject to the zoning ordinances in effect at the time” such action is taken.
(Emphasis added.)
At this point, TSB seeks to build apartment buildings only on lots
10, 49, and 51. No building has ever been erected on those lots. Following
remand, Kempf constructed the twelve-unit apartment development on a
portion of lot 50 that is located at 906 North Dodge Street and granted the
local energy company an electrical easement running through lots 49 and
50 to provide utilities to the new apartment development. The grant of an
electrical easement on lot 49 is irrelevant because a “use” contemplates
the construction of a building.
The Board also urges that TSB’s plans involve “further development
or redevelopment” of the lots in question. We disagree. A use has not been
established on lots 10, 49, and 51. Thus, TSB’s construction of
28
apartments on these lots would not amount to “further development or
redevelopment.”
Developing apartments on lots 10, 49, and 51 necessarily entails
concomitant burdens, such as relocating a sewer line or moving an
easement to provide utilities to the new buildings. TSB would have to
move utility lines and renegotiate the electrical easement Kempf had
granted to the local energy company. However, Tallman herself testified
that moving water lines, sewer lines, and utility lines do not constitute a
change in the use of the property. Rather, according to Tallman, the City
considers an actual change in use of the property, such as from single-
family dwelling units to multifamily dwelling units, to be a change in land
use. Based on Tallman’s testimony, we decline to categorize these
concomitant burdens as “further development or redevelopment.”
TSB intends to demolish the office building on lots 8 and 9 and put
in a larger parking lot, but these lots are not subject to the remand order.
We need not address this proposed demolition further.
Accordingly, we conclude that TSB can build apartment buildings
on lots 10, 49, and 51 subject to the remand order. 10
V. Conclusion.
For the foregoing reasons, we overrule Dakota and vacate the
decisions of the court of appeals. We affirm the district court’s grant of
summary judgment to the City in No. 15–1373. We reverse the district
10The district court also found that enforcement of the 1987 decree would violate
public policy because “the City has changed in the nearly thirty years since Mr. Kempf
last was involved with the property, and there have been challenges to regulating
standards applicable to the various neighborhoods in the City.” However, the City has
not sought to modify that order based on changed conditions.
29
court’s ruling in favor of the Board in No. 16–0988 and remand for further
proceedings consistent with this opinion. 11
DECISIONS OF COURT OF APPEALS VACATED; DISTRICT
COURT JUDGMENT IN NO. 15–1373 AFFIRMED; DISTRICT COURT
JUDGMENT IN NO. 16–0988 REVERSED AND CASE REMANDED WITH
DIRECTIONS.
All justices concur except Hecht and Wiggins, JJ., who take no part.
11In No. 15–1373, the court of appeals reversed and remanded the dismissal of
TSB’s takings claim. We determine that claim is now moot in light of our overall
disposition of this appeal.
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936 P.2d 42 (1997)
86 Wash.App. 266
Ernest WARD and Patti Ward, Appellants,
v.
The BOARD OF COUNTY COMMISSIONERS, SKAGIT COUNTY, Respondent.
No. 38057-5-I.
Court of Appeals of Washington, Division 1.
May 5, 1997.
*44 Paul William Taylor, Mount Vernon, for Appellants.
John Roberts Moffat, Deputy Pros. Atty., Mount Vernon, for Respondent.
*43 ELLINGTON, Judge.
Property owners Ernest and Patti Ward ("the Wards") sought a variance and special use permit to operate a business from their residence. The Superior Court dismissed their land use petition for failure to exhaust administrative remedies. We reject the Wards' contention that applicants and owners of land need not exhaust their administrative remedies prior to filing a land use petition under the Land Use Petition Act (LUPA), RCW 36.70C.005 et seq., and affirm the trial court's decision.
FACTS
On April 20, 1995, the Wards filed applications for a variance and a special use permit with the Skagit County Department of Planning and Community Development. The Wards sought the special use permit to allow the operation of an electrical service, construction, and design business from their residence as a home occupation, and they sought the variance to permit up to 25 employees at that location.[1] After a public hearing, the Skagit County Hearing Examiner issued a decision dated August 7, 1995 denying the Wards' applications. The decision states that it "shall become final fourteen (14) days from the date of this decision unless appealed in accordance with Section 14.04.240(16) of the Skagit County Code." That section of the county code provides that any person aggrieved by a decision of the hearing examiner must submit a written appeal to the Board of County Commissioners ("the Board") "within fourteen (14) days of the date of the Examiner's written decision, or decision after reconsideration, requesting a review of the Examiner's decision." The section goes on to enumerate the items which must be included in the request for appeal.
The Wards filed their appeal of the hearing examiner's decision on August 22, 15 days after the date of the decision. By letter dated September 6, 1995, the Board notified the Wards' counsel that the appeal was not timely and was "invalid."
On September 20, 1995, the Wards filed a land use petition under LUPA. The trial court entered an order dismissing the Wards' petition for failure to exhaust administrative remedies, and denied their subsequent motion for reconsideration. The Wards appeal.
DISCUSSION
Exhaustion of Remedies Under LUPA
The Wards contend that LUPA does not require a property owner to exhaust his *45 or her administrative remedies prior to filing a petition, pointing to the provision in LUPA governing standing to bring a land use petition. That provision states as follows:
Standing to bring a land use petition under this chapter is limited to the following persons:
(1) The applicant and the owner of property to which the land use decision is directed;
(2) Another person aggrieved or adversely affected by the land use decision, or who would be aggrieved or adversely affected by a reversal or modification of the land use decision. A person is aggrieved or adversely affected within the meaning of this section only when all of the following conditions are present:
(a) The land use decision has prejudiced or is likely to prejudice that person;
(b) That person's asserted interests are among those that the local jurisdiction was required to consider when it made the land use decision;
(c) A judgment in favor of that person would substantially eliminate or redress the prejudice to that person caused by the land use decision; and
(d) The petitioner has exhausted his or her administrative remedies to the extent required by law.
(Emphasis added.) RCW 36.70C.060.
The Wards claim that since only subsection (2), and not subsection (1), of the foregoing statute specifically requires exhaustion of administrative remedies, only aggrieved parties other than the owner or applicantthe parties covered by subsection (2)are required to exhaust their administrative remedies, and that owners are therefore exempt from the exhaustion requirement. We disagree. The simple definition of "land use decision" requires exhaustion of administrative remedies.
The purpose of LUPA is "to reform the process for judicial review of land use decisions made by local jurisdictions." RCW 36.70C.010. Under LUPA, a "land use decision" is "a final determination by a local jurisdiction's body or officer with the highest level of authority to make the determination, including those with authority to hear appeals," on, inter alia, "an application for a project permit or other governmental approval required by law before real property may be improved, developed, modified, sold, transferred, or used[.]" RCW 36.70C.020(1)(a). In order to obtain a final determination of the local governmental body with the highest level of authority to make the determination, one must, by necessity, exhaust his or her administrative remedies. Thus, exhaustion of administrative remedies is a necessary prerequisite to obtaining a decision that qualifies as a "land use decision" subject to judicial review under LUPA, whether the party seeking review is an owner, applicant, or other aggrieved party.
Under the Skagit County Code, the hearing examiner has the authority to hear and decide applications for variances and special use permits. Skagit County Code §§ 14.04.223 (variances); 14.04.150(4) (special use permits). The decision of the hearing examiner is a final decision, subject to appellate review by the Board. Skagit County Code § 14.04.240(16). Under the Code, there is no body with authority to review a determination of the Board. Thus, in Skagit County, the Board is the body with the highest level of authority to make a determination on an application for a variance or special use permit. A decision of the Board on such an application therefore constitutes a "land use decision" under RCW 36.70C.020(1), while a decision of a hearing examiner does not.
The doctrine of exhaustion of administrative remedies is well established in Washington. In general, agency action cannot be challenged on review unless all rights of administrative appeal have been exhausted. South Hollywood Hills Citizens v. King County, 101 Wash.2d 68, 73, 677 P.2d 114 (1984). The Legislature's awareness of the doctrine is beyond debate. Had the Legislature intended the result urged by the Wardscomplete abrogation of established common law principlessome clear expression of that intent would likely appear in the statute and legislative history. State v. Strauss, 119 Wash.2d 401, 418, 832 P.2d 78 (1992) ("The court will not assume that the Legislature would attempt to effect a significant *46 change in the law by mere implication.") No such expression exists here.
We also note that there is logic in the standing statute's enumeration of the exhaustion requirement for non-owners. Many could be "aggrieved" by a land use decision. The Legislature sensibly confined the category of non-owners eligible to seek judicial review of such decisions to those who participated in the administrative process to the extent allowed. This approach vests greatest discretion in local decisionmakers, and is thus consistent with the Legislature's policy to accord deference to local government and allow only limited judicial interference. RCW 36.70C.130. Specific enumeration of the exhaustion requirement for non-owners carries no inference that it has been abrogated for owners.
The Wards failed to file a timely appeal with the Board and did not obtain a final determination of the Board on their applications. Consequently, they failed to exhaust their administrative remedies and failed to obtain a "land use decision" subject to judicial review under LUPA. The trial court was therefore correct in dismissing the Wards' petition under LUPA.
Skagit County Proceedings Were Not Unfair
The Wards contend that considerations of fairness require that they not be held to an exhaustion requirement. First, they claim that they were not afforded a fair opportunity to exhaust their administrative remedies. This is a recognized exception to the exhaustion requirement. For example, in Gardner v. Board of Commissioners, 27 Wash.App. 241, 617 P.2d 743 (1980), the applicable ordinance required that an appeal of the county environmental official's determination of negative environmental impact be made to the board of commissioners 10 days before the hearing on a preliminary plat. However, the petitioner did not receive notice of the determination of negative environmental impact until the day of the hearing before the board of commissioners, at which time the determination became part of the record. The court held that, under those circumstances, to refuse judicial review on the basis of the petitioner's failure to exhaust administrative remedies would be unreasonable and unfair. Gardner, 27 Wash.App. at 243, 617 P.2d 743.
In the present case, the Wards were denied appellate review of the hearing examiner's decision by the Board solely due to the failure of their counsel to timely file the appeal. It is undisputed that the appeal was filed a day late because of a calendaring error in counsel's office. It is also undisputed that counsel received the hearing examiner's decision on August 8, one day after it was signed. Under the circumstances, it was not unreasonable or unfair for the trial court to have held the Wards to the exhaustion requirement. In contrast to Gardner, no action on the part of Skagit County, except for the Board's adherence to the deadlines in the ordinance, contributed to the Wards being denied review by the Board. Thus, the Wards were not denied a fair opportunity to exhaust their administrative remedies by any governmental body.
The Wards also seek relief from the exhaustion requirement on grounds that resort to administrative procedures would be futile. See Zylstra v. Piva, 85 Wash.2d 743, 745, 539 P.2d 823 (1975). The futility exemption is intended to apply in situations such as where the validity of the remedy itself is challenged. Zylstra, 85 Wash.2d at 745, 539 P.2d 823. The Wards do not claim that the Board of Commissioners could not provide them an adequate remedy. Rather, they appear to argue that the Board's insistence on compliance with the filing deadline indicates that the Board was predisposed to rule against them on their applications. The Wards' assertion is purely speculative and is without any support in the record. We find that the Wards have no grounds for an exemption from the exhaustion requirement.
LUPA Does Not Preempt All Local Procedures
The Wards next argue that LUPA preempts county ordinances and was intended to replace, supersede, and eliminate all prior statutes, ordinances, and prior case law in order to create a one uniform procedure *47 for all land use decisions in Washington. Therefore, they claim, the 14-day appeal period in the section 14.04.240(16) of the Skagit County Code is of no effect, and LUPA's 21-day deadline for judicial review applies. RCW 36.70C.040.[2] We disagree.
The Wards base this contention entirely upon RCW 36.70C.010, which provides:
The purpose of this chapter is to reform the process for judicial review of land use decisions made by local jurisdictions, by establishing uniform, expedited appeal procedures and uniform criteria for reviewing such decisions, in order to provide consistent, predictable, and timely judicial review.
Although this provision shows a legislative intent to create uniformity in the review of land use decisions, the review to which the provision refers is review by state courts of local governmental land use decisions. No preemption language appears anywhere in the statute, and we find nothing in LUPA or its legislative history to indicate that deadlines for LUPA review supersede ordinances establishing deadlines for local governmental agencies deciding applications under local zoning codes.
Other Issues
The Wards also challenge the constitutionality of the ordinance pursuant to which the Board dismissed their appeal as untimely. They do not claim that a 14-day appeal period is invalid on its face. Rather, they claim that the ordinance, which requires an appeal of the hearing examiner's decision to be filed with the Board within 14 days of the date of the decision, violates the state due process clause because it provides no procedure for an extension of the 14-day requirement, and because if there is a delay in mailing the hearing examiner's decision, the owner or applicant may be unable to timely file an appeal. The Wards contend that without provisions in the ordinance to rectify the situation, such as those found in CR 60, the ordinance violates due process. We reject this argument.
By the Wards' counsel's own admission, he received the hearing examiner's decision the day after it was signed. Therefore, the situation which the Wards claim would violate due process did not occur. Moreover, no action on the part of any governmental entity caused the Wards to miss the appeal deadline. The 14-day appeal period provided an opportunity for the Wards to be heard and did not deprive them of due process. A mistake or oversight by their attorney does not amount to a denial of due process by the county. We decline to reach hypothetical issues not raised by the facts presented. First United Methodist Church of Seattle v. Hearing Examiner, 129 Wash.2d 238, 245, 916 P.2d 374 (1996) (a justiciable controversy must exist before the court will review a constitutional challenge to an ordinance; a hypothetical or speculative disagreement is not a justiciable controversy). We therefore reject the Wards' constitutional challenge to Skagit County Code § 14.04.240(16).[3]
Finally, the Wards claim that their appeal to Superior Court was filed within the prescribed LUPA time period and should have been heard on its merits. But the trial court did not dismiss their land use petition because the Superior Court filing was untimely. The petition was dismissed because the Wards failed to exhaust their administrative remedies prior to filing the petition. The timeliness of their petition under LUPA is not relevant to the issues raised here.
The decision of the trial court is affirmed.
AGID and BECKER, JJ., concur.
NOTES
[1] Under the county code, a home occupation requires a special use permit and may be carried on by members of the family residing in the home and up to three additional employees. Skagit County Code §§ 14.04.150(2)(i); 14.04.30(40)(a).
[2] Under RCW 36.70C.040(3), a land use petition is timely if filed and served on all parties within 21 days of the issuance of the land use decision. That section then sets forth the method for determining when a land use decision is issued. RCW 36.70C.040(4).
[3] The Wards also claim that the ordinance violates due process because it fails to provide a means to appeal a decision by an entity with appellate authority that an appeal to that entity was untimely. The Wards provide no authority to support this argument and we find it without merit.
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820 F.Supp.2d 639 (2011)
Sarah LOWENSTEIN, Plaintiff,
v.
CATHOLIC HEALTH EAST, St. Mary Medical Center and Claire Shanks, Defendants.
Civil Action No. 11-4689.
United States District Court, E.D. Pennsylvania.
October 26, 2011.
*641 Robert P. Maizel, Maizel Legal Associates Inc, Philadelphia, PA, for Plaintiff.
James A. Johnston, Post & Schell PC, Philadelphia, PA, for Defendants.
MEMORANDUM
DuBOIS, Judge.
I. INTRODUCTION
In this employment discrimination action, plaintiff Sarah Lowenstein alleges that defendants unlawfully denied her medical leave and discriminated against her based on her medical condition. Presently before the Court is defendants' Motion to Dismiss. For the reasons that *642 follow, the Court grants the motion in part and denies it in part.
II. BACKGROUND[1]
Defendant St. Mary Medical Center ("SMMC") is a Pennsylvania corporation. (Compl. ¶ 3.) Catholic Health East ("CHE"), also a defendant, is SMMC's parent company. See Regional Health Corporations, Catholic Health East, http:// www.che.org/regional/ (listing SMMC as a Regional Health Corporation and explaining that each Regional Health Corporation "has CHE as its sole member").
SMMC hired plaintiff Sarah Lowenstein ("Lowenstein") as a "staff or pool [p]harmacist" in April 2009. (Compl. ¶ 19.) Shortly thereafter, plaintiff informed defendant Claire Shanks ("Shanks"), a benefits manager in SMMC's human resources department, that she had "an autoimmune disorder with associated morbidities" that would sometimes require her to miss work. (Id. ¶ 24.) Plaintiff requested a "reasonable accommodation for absences related to her medical conditions." (Id. ¶ 25.) Shanks told plaintiff she would "take care of it" as long as plaintiff notified her when she needed to miss work and provided a doctor's note when she returned. (Id. ¶¶ 25-26.) In August 2009, plaintiff submitted a Family and Medical Leave Act ("FMLA") application, which SMMC provided to her, but it was denied because she had not worked at SMMC long enough. (Id. ¶¶ 28-29.)
Plaintiff alleges that, despite Shanks's promise to "take care of" the issue, Shanks either rebuffed or ignored her each time she sought approval for illness-related absences. (Id. ¶¶ 27-38.) Once, Shanks simply did not return plaintiff's phone calls about the matter. (Id. ¶ 35.) On other occasions, she told plaintiff she was too busy to discuss it. (Id. ¶¶ 36-37.) Between August and December 2009, plaintiff received numerous warnings for her absences, despite providing doctor's notes explaining that the absences were related to her medical condition. (Id. ¶¶ 30-31, 33-38.) Plaintiff's supervisor, Suzette Cuncelli ("Cuncelli"), allegedly told plaintiff in late 2009 that "hospitalization [was] not an excuse for missing a day of work." (Id. ¶ 39.)
On March 15, 2010, Cuncelli terminated plaintiff because of her absences. (Id. ¶ 41.) Cuncelli retracted the termination, however, when plaintiff told her the absences were because of her medical condition. (Id.) Plaintiff provided Shanks with another doctor's note explaining why she had been missing work, but Shanks told her the letter did not conform to SMMC's requirements. (Id. ¶ 43.) Plaintiff produced notes from four more doctors, but Shanks said they were all unacceptable. (Id. ¶ 44.)
Plaintiff missed work on April 16, 2010, because of emergency surgery and provided a doctor's note. (Id. ¶ 45.) On about April 21, 2010, SMMC and Shanks gave plaintiff information on how to reapply for FMLA benefits, stating the application was "necessary in order to approve special accommodation for any absence prior to April 27, 2010." (Id. ¶¶ 46-47.) Plaintiff submitted the application. (Id. ¶ 48.) Nonetheless, on May 5, 2010, before plaintiff received a response, Cuncelli and another SMMC employee notified her that she had been terminated "for violating SMMC's absenteeism policy." (Id. ¶ 49.)
III. LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that, in *643 response to a pleading, a defense of "failure to state a claim upon which relief can be granted" may be raised by motion to dismiss. To survive a motion to dismiss under Rule 12(b)(6), a civil plaintiff must allege facts that "`raise a right to relief above the speculative level.'" Victaulic Co. v. Tieman, 499 F.3d 227, 234 (3d Cir.2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A complaint must contain "sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). To satisfy the plausibility standard, a plaintiff's allegations must show that defendant's liability is more than "a sheer possibility." Id. "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955).
In Twombly, the Supreme Court used a "two-pronged approach," which it later formalized in Iqbal. Iqbal, 129 S.Ct. at 1950; Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir.2009). Under this approach, a district court first identifies those factual allegations that constitute nothing more than "legal conclusions" or "naked assertions." Twombly, 550 U.S. at 555, 557, 127 S.Ct. 1955. Such allegations are "not entitled to the assumption of truth" and must be disregarded. Iqbal, 129 S.Ct. at 1950. The court then assess "the `nub' of the plaintiff['s] complaint the well-pleaded, nonconclusory factual allegation[s]. . . to determine" whether it states a plausible claim for relief. Id.
IV. DISCUSSION
Plaintiff's Complaint asserts that she is entitled to relief under the FMLA, the Americans with Disabilities Act ("ADA"), and the Pennsylvania Human Relations Act ("PHRA"). With respect to the FMLA, plaintiff alleges that defendants CHE, SMMC, and Shanks unlawfully denied her FMLA benefits and interfered with the exercise of her FMLA rights. With respect to the ADA and PHRA, plaintiff alleges that because of her medical condition, defendants subjected her to a hostile work environment, harassed her, retaliated against her, and wrongfully terminated her.
In her response to defendants' Motion to Dismiss, plaintiff voluntarily withdrew four of her claims. First, plaintiff has withdrawn her claim for compensatory damages under the FMLA. (Pl.'s Br. Opp'n 5.) Second, plaintiff has conceded that "she does not have a viable hostile work environment claim under the FMLA." (Id.) Third, plaintiff has withdrawn her claims against defendant Shanks under the ADA. (Id.) Fourth, plaintiff has withdrawn her claim for compensatory damages under the ADA's anti-retaliation provision. (Id.)
Defendants' Motion to Dismiss is granted as to those claims withdrawn by plaintiff: (1) the compensatory damages claim under the FMLA, (2) the hostile work environment claim under the FMLA, (3) the claims against defendant Shanks under the ADA, and (4) the claim for compensatory damages under the ADA's anti-retaliation provision. Defendants' Motion to Dismiss is also granted as to plaintiff's claims against CHE. As to all other claims, the Court denies defendants' motion.
A. Claims Against CHE
Defendants argue that plaintiff has failed to state a valid claim against CHE, SMMC's parent company. It is well settled that "a parent corporation, like any stockholder, is not normally liable for the wrongful acts . . . of a subsidiary even if or *644 simply because the parent wholly owns the subsidiary." Jean Anderson Hierarchy of Agents v. Allstate Life Ins. Co., 2 F.Supp.2d 688, 691 (E.D.Pa.1998); see also Pearson v. Component Tech. Corp., 247 F.3d 471, 484 (3d Cir.2001). "[P]arental liability for a subsidiary's acts is appropriate either when a subsidiary is not a separate and independent corporation, but rather the alter ego of the parent company, or if the subsidiary is an agent for the parent in a specific transaction." Berk v. J.P. Morgan Chase Bank, N.A., No. 11-2715, 2011 WL 4467746, at *7 (E.D.Pa. Sept. 26, 2011) (citing Phoenix Can. Oil Co. v. Texaco, Inc., 842 F.2d 1466, 1476-77 (3d Cir.1988)).
In this case, plaintiff has alleged merely that (1) CHE is a Pennsylvania corporation, (Compl. ¶ 3), and (2) SMMC is a "Regional Health Corporation of CHE," (id. ¶ 5). These allegations, even if true, are insufficient to hold CHE liable for SMMC's actions. The Court thus grants defendants' Motion to Dismiss with respect to all of plaintiff's claims against CHE.
B. Claims Under the FMLA Against SMMC and Shanks
As stated above, plaintiff withdrew her claims for compensatory damages and hostile work environment under the FMLA in her response to the motion to dismiss. The Court accordingly grants defendants' Motion to Dismiss as to those claims. Defendants' motion does not address any of plaintiff's other allegations under the FMLA.
C. Claims Under the ADA Against SMMC and Claims Under the PHRA Against SMMC and Shanks
Plaintiff alleges that defendants subjected her "to a hostile work environment, harassment, retaliation, and termination because of her medical condition" in violation of the ADA and the PHRA. (Compl. ¶¶ 99, 118.) Plaintiff withdrew her claims against Shanks under the ADA and her claim for compensatory damages under the ADA's anti-retaliation provision. The Court accordingly grants defendants' Motion to Dismiss as to those claims.
Defendants make four arguments in support of their contention that additional parts of plaintiff's ADA and PHRA claims should be dismissed. The Court finds none of those arguments persuasive.
1. Administrative Exhaustion: Hostile Work Environment and Retaliation Claims Under the ADA and PHRA Against SMMC and Shanks
"Once a charge of some sort is filed with the EEOC, . . . the scope of a resulting private civil action in the district court is `defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination. . . .'" Hicks v. ABT Assocs., Inc., 572 F.2d 960, 966 (3d Cir.1978) (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99 (3d Cir.1976)). EEOC charges are given a "fairly liberal construction," and "the failure to check a particular box on an EEOC charge . . . is not necessarily indicative of a failure to exhaust the mandatory administrative remedies." Schouten v. CSX Transp., Inc., 58 F.Supp.2d 614, 616 (E.D.Pa.1999). "[T]he purpose of the filing requirement is to enable the EEOC to investigate and, if cause is found, to attempt to use informal means to reach a settlement of the dispute." Anjelino v. N.Y. Times Co., 200 F.3d 73, 94 (3d Cir.1999) (citing Hicks, 572 F.2d at 963).
In this case, defendants assert that plaintiff failed to exhaust her administrative remedies with respect to her hostile work environment and retaliation claims because she did not mention them in her EEOC filing and failed to check the pertinent boxes on the EEOC form. (Defs.' Mot. Dismiss 10-11.) Defendants cite *645 Barzanty v. Verizon PA, Inc., 361 Fed. Appx. 411, 413-14 (3d Cir.2010), to support their contention. (Defs.' Mot. Dismiss 11.) In Barzanty, the Third Circuit granted summary judgment against a plaintiff's hostile work environment claim, holding that the claim was "not within the scope" of the plaintiff's EEOC charge. 361 Fed. Appx. at 413-14. The plaintiff in that case "provided no facts that suggest[ed] a hostile work environment, and she did not check the box indicating that her charge was a `continuing action.'" Id. at 414. Moreover, her discrimination claim and her hostile work environment claim involved "separate occurrences"; the facts underlying the claims were unrelated. Id.
Defendants are correct that the present case resembles Barzanty in some aspects. Plaintiff's Complaint alleges in conclusory language that she "complied with all jurisdictional prerequisites and was issued a Notice of Right to Sue by the Equal Employment Opportunity Commission on April 27, 2011." (Compl. ¶ 18.) However, her EEOC charge states that the discrimination at issue occurred only on May 10, 2010, the day she was terminated.[2] (Defs.' Mot. Dismiss Ex. B, at 2.) As in Barzanty, plaintiff did not check the box indicating that hers was a "continuing action," and the summary of the particulars of her case is mostly devoted to her termination. (Id.)
There are, however, important differences between this case and Barzanty. Unlike Barzanty, the EEOC charge in this case refers to "time and attendance issues" and having been denied a reasonable accommodation. (Id.) These statements should have provided notice to the EEOC that the termination arose from ongoing issues. Moreover, plaintiff's claims in this case arose from a series of related events that allegedly ended in her termination.
The purpose of the exhaustion requirement is satisfied as long as "the EEOC had cognizance of the full scope of the situation during its settlement efforts." Anjelino, 200 F.3d at 94. The Court concludes that plaintiff's administrative filing provided the EEOC with sufficient notice of her hostile work environment and retaliation claims under the ADA and PHRA against SMMC and Shanks.
The Court thus denies this part of defendants' Motion to Dismiss.
2. Administrative Exhaustion: Claims Under the ADA and PHRA Against Defendant Shanks
Defendants raise a second exhaustion argument. They contend that plaintiff failed to exhaust her administrative remedies with respect to defendant Shanks because the EEOC charge does not mention her. (Defs.' Mot. Dismiss 9-10.) This argument is also unavailing.
Under the ADA and PHRA, a plaintiff generally may only bring a civil suit against defendants she named in her EEOC charge. Glus v. G.C. Murphy Co., 562 F.2d 880, 888 (3d Cir.1977). An exception exists, however, "when the unnamed party received notice and when there is a shared commonality of interest with the named party." Schafer v. Bd. of Pub. Educ. of Sch. Dist. of Pittsburgh, 903 F.2d 243, 252 (3d Cir.1990). In Glus, the Third Circuit identified four factors relevant to the inquiry:
*646 1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar [to] the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; [and] 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.
Glus, 562 F.2d at 888.
Plaintiff's EEOC charge does not mention Shanks by name. Nonetheless, the Schafer and Glus factors favor allowing plaintiff's claims against her to proceed. Both Schafer factors favor plaintiff on the present state of the record. Since SMMC can be held liable for its employees' discriminatory conduct, SMMC and Shanks shared a common interest in defending against plaintiff's allegations. See Duffy v. Se. Pa. Transp. Co., No. 94-4260, 1995 WL 299032, at *2 (E.D.Pa. May 12, 1995) ("Because SEPTA is liable for the discriminatory acts of its employees, one could reasonably expect SEPTA to represent the individuals' interests regarding voluntary conciliation and compliance efforts."). There is a factual question as to whether Shanks received notice of the EEOC investigation, although she may have, since she had an important role in the events at issue.
Likewise, most of the Glus factors favor plaintiff. The second and third Glus factors, similarity of interests and actual prejudice, are satisfied on the present state of the record. As stated above, SSMC and Shanks had similar interests in defending against plaintiff's claims. There is no allegation (or evidence) that plaintiff's failure to include Shanks's name on the EEOC charge prejudiced Shanks's interests. There is currently no allegation (or evidence) as to the fourth Glus factor. The only Glus factor that does not favor plaintiff is the first: plaintiff's knowledge of the role of the unnamed party. When plaintiff filed her EEOC charge, she knew that Shanks had an important role in the events at issue. However, since most of the Schafer and Glus factors favor plaintiff, the Court concludes that plaintiff exhausted her administrative remedies with respect to defendant Shanks.
The Court thus denies this part of defendants' Motion to Dismiss.
3. Failure to State a Claim: Hostile Work Environment Claims Under the ADA and PHRA Against SMMC and Shanks
Defendants also contend that plaintiff failed to state a hostile work environment claim under the ADA and PHRA. (Defs.' Mot. Dismiss 11-13.) To state a prima facie hostile work environment claim under the ADA or PHRA,[3] a plaintiff must allege that: (1) she is a qualified individual with a disability under the ADA, (2) she was subject to unwelcome harassment, (3) the harassment was based on her disability or request for an accommodation, (4) the harassment was sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment, and (5) the employer knew or should have known of the harassment and failed to take prompt, effective remedial *647 action. Walton v. Mental Health Ass'n of Se. Pa., 168 F.3d 661, 667 (3d Cir.1999).
Defendants contest only the fourth Walton element. In evaluating the fourth element, the district court must "consider all the circumstances, including `the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'" Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Defendants contend that although plaintiff used the conclusory phrase "hostile work environment" in her Complaint, she failed to allege that she suffered "sufficiently severe or pervasive" harassment to state a prima facie claim. (Defs.' Mot. Dismiss 12.)
The Court disagrees. Plaintiff avers that she made earnest efforts to comply with SMMC's requirements but was nonetheless disciplined repeatedly and eventually terminated. She received warnings for at least six absences in a nine-month period, even though Shanks and others at SMMC knew about her medical condition. (Compl. ¶¶ 31, 33, 38.) She provided five doctors' notes in March 2010 alone, but Shanks rejected them all as "unacceptable." (Id. ¶ 43-44.) This repeated discipline and continued refusal to cooperate is sufficient to state a claim. The Court thus denies this part of defendants' Motion to Dismiss.
4. Argument: Failure to Consider FMLA Application Does Not Violate the ADA
Defendants also contend that their alleged failure to consider plaintiff's application for FMLA leave did not violate the ADA. (Defs.' Mot. Dismiss 14-15.) In making this argument, defendants rely on Trevino v. United Parcel Service, No. 08-0889, 2009 WL 3423039 (N.D.Tex. Oct. 23, 2009), a case in which a plaintiff brought a failure-to-accommodate claim against her employer under the ADA. The plaintiff's claim in that case was based entirely on her allegation that the employer had repeatedly "denied or delayed" approving her requests for FMLA leave. Id. at *12. The court held that an ADA failure-to-accommodate claim could not redress wrongful denial of FMLA leave; FMLA leave is "a right enforceable under a separate statutory provision." Id. Since the plaintiff in Trevino failed to present any other evidence that the defendant had "denied any accommodation request or . . . refused to engage in good faith negotiations related to accommodation of her disabilities," the court granted the defendant's motion for summary judgment as to the failure-to-accommodate claim under the ADA. Id. at *13.
The Court rejects this argument as inapplicable to this case. First, plaintiff's response clarifies that the reasonable accommodation she sought was "extra sick days," not FMLA leave. (Pl.'s Br. Opp'n 11.) Moreover, defendants' alleged mishandling of plaintiff's FMLA requests is one of many examples of discriminatory conduct that support plaintiff's ADA claim. Indeed, plaintiff devotes twenty-three paragraphs of her Complaint to her ADA claim, and only two of those paragraphs allude to the FMLA leave denials. (Compl. ¶¶ 101, 116.) Finally, plaintiff does not contend that denial of FMLA leave is a per se violation of the ADA. The Court thus denies this part of defendants' Motion to Dismiss.
V. CONCLUSION
For the foregoing reasons, the Court grants defendants' Motion to Dismiss as to plaintiff's claims against CHE and the claims plaintiff withdrew in her response to the Motion to Dismiss. Plaintiff withdrew *648 the following by response: (1) her compensatory damages claim under the FMLA, (2) her hostile work environment claim under the FMLA, (3) her claims against defendant Shanks under the ADA, and (4) her claim for compensatory damages under the ADA's anti-retaliation provision.
The Court denies defendants' Motion to Dismiss in all other respects. That leaves the following for adjudication: (1) claims against SMMC and Shanks for denial of FMLA benefits and interference with the exercise of FMLA rights, with the parties agreeing that compensatory damages are not available; (2) claims against SMMC under the ADA for harassment, hostile work environment, retaliation, and wrongful termination, with the parties agreeing that compensatory damages are not available as to the retaliation claim; and (3) claims against SMMC and Shanks under the PHRA for harassment, hostile work environment, retaliation, and wrongful termination.
The denial of defendants' Motion to Dismiss is without prejudice to their right to raise their arguments on motion for summary judgment or at trial. An appropriate Order follows.
ORDER
AND NOW, this 26th day of October, 2011, upon consideration of Defendants Catholic East, et al. Motion to Dismiss (in Part) the Complaint (Document No. 6, filed September 26, 2011); and Plaintiff Sarah Lowenstein's Answer in Opposition to Defendants' Motion to Dimiss [sic] in Part (Document No. 13, filed October 14, 2011), for the reasons set forth in the Memorandum dated October 26, 2011, IT IS ORDERED that Defendants Catholic East, et al. Motion to Dismiss (in Part) the Complaint is DENIED IN PART and GRANTED IN PART, as follows:
1. Those parts of defendants' motion that relate to plaintiff's claims against defendant Catholic Health East are GRANTED;
2. Those parts of defendants' motion that relate to plaintiff's withdrawn claims(1) plaintiff's claims against defendant Claire Shanks ("Shanks") under the Americans with Disabilities Act ("ADA"), (2) plaintiff's claim for compensatory damages under the Family and Medical Leave Act ("FMLA"), (3) plaintiff's claim for compensatory damages under the anti-retaliation provision of the ADA, and (4) plaintiff's hostile work environment claim under the FMLAare GRANTED; and
3. The motion is DENIED in all other respects.[1]
IT IS FURTHER ORDERED that the denial of defendants' Motion to Dismiss, in part, is without prejudice to defendants' right to raise the issues presented by motion for summary judgment or at trial.
NOTES
[1] As required on a motion to dismiss, the Court takes all plausible factual allegations contained in plaintiff's complaint to be true.
[2] The Court may consider the EEOC charge at the motion-to-dismiss stage because it is "an undisputedly authentic document" on which "plaintiff's claims are based." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993); see also Mulholland v. Classic Mgmt., No. 09-2525, 2010 WL 2470834, at *4 & n. 6 (E.D.Pa. June 14, 2010) (examining an EEOC charge in an analogous setting). Both parties attached the EEOC charge to their motion papers.
[3] The ADA and PHRA are "interpreted coextensively." Castellani v. Bucks Cnty. Municipality, 351 Fed.Appx. 774, 777 (3d Cir.2009).
[1] Remaining for adjudication are (1) plaintiff's claims against St. Mary Medical Center ("SMMC") and Shanks for denial of FMLA benefits and interference with the exercise of FMLA rights, with the parties agreeing that compensatory damages are not available; (2) claims against SMMC under the ADA for harassment, hostile work environment, retaliation, and wrongful termination, with the parties agreeing that compensatory damages are not available as to the retaliation claim; and (3) claims against SMMC and Shanks under the Pennsylvania Human Relations Act for harassment, hostile work environment, retaliation, and wrongful termination.
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83 Mich. App. 686 (1978)
269 N.W.2d 481
WILLIAMS
v.
AMERICAN TITLE INSURANCE COMPANY
Docket No. 77-1210.
Michigan Court of Appeals.
Decided June 5, 1978.
Perica, Breithart, Gallagher, Viviano, Graham, Nitz & Carmody, P.C., for plaintiffs.
Rowe, Talon & Jones, P.C., for defendant.
Before: BASHARA, P.J., and J.H. GILLIS and N.J. KAUFMAN, JJ.
N.J. KAUFMAN, J.
The facts pertinent to this appeal are compiled from the record and briefs as well as the decision of Williams v Polgar, 43 Mich *689 App 95; 204 NW2d 57 (1972), and the appeal of that case to the Michigan Supreme Court, 391 Mich 6, 10; 215 NW2d 149 (1974), from which we note that:
"Plaintiffs Williams purchased certain property situated in the City of Warren, Macomb County, from defendant Polgar on a land contract dated August 1, 1959. At the time of purchase, as provided in the land contract, defendants furnished to plaintiffs an abstract of title certified to July 15, 1959 by Abstract and Title Guaranty Company. This abstract was originally issued on February 4, 1926 by the Macomb County Abstract Company and was extended by said company in 1936, 1937, 1943, 1944, 1945, 1946, 1948, 1951 and 1952. Defendant American Title Insurance Company is the successor in interest to Macomb County Abstract Company.
"The abstract of title failed to include a deed dated May 1, 1926 which was recorded on May 24, 1926 in Liber 242 of Deeds at page 174 of Macomb County records. This deed conveyed the southerly 60 feet of the property in question to the Macomb County Board of Road Commissioners.
"After execution of the land contract on August 1, 1959, plaintiffs learned, allegedly for the first time, of the existence of this omitted deed. As the result thereof, plaintiffs claim they were required to completely remove a building and that certain other damages were incurred."
Plaintiffs Williams sought damages in the amount of $150,000 to compensate them for a building which was torn down and $50,000 in lost rentals. Plaintiff Whiteway, Inc., sought damages in the amount of $100,000 for the loss of fixtures, equipment and improvements, and $100,000 in lost profits.
A nonjury trial was held which resulted in a judgment for plaintiffs Williams in the amount of $54,531.50, and for plaintiff Whiteway, Inc., in the *690 amount of $1,950.60.[1] On April 18, 1977, plaintiffs appealed of right. Defendant cross-appealed on
*691 April 29, 1977.
At trial, Walter Williams testified that he and his wife had leased a restaurant at the corner of Ten Mile and Mound Road in Macomb County from Ms. Polgar prior to 1959. In August of 1959, they entered into a land contract with Ms. Polgar. Prior to signing of the land contract, Ms. Polgar acquired an abstract of title for the property. She gave it to Mr. Williams, who took it to his attorney George Parris. Mr. Williams asked Mr. Parris for his opinion as to the sufficiency of the abstract. At the end of July, Mr. Parris wrote to Mr. Williams[2] advising him that his examination of the *692 *693 abstract of title indicated that title to the property was vested in Mr. and Mrs. Polgar, that there were no mortgages on the property, that the taxes had been paid through 1958, and that no restrictions appeared in a plat recorded April 16, 1937. Attached to the letter, and referred to in the letter, was a form advising Mr. Williams to check "additional matters outside of the records which should be considered by every purchaser or mortgagee". The purchaser was advised, for example, to inquire at the proper offices to determine if "any proceedings are contemplated or in progress as to road street widening". Mr. Williams made no inquiry as to possible road widening at that time. It was not until 1969 or 1970, when the city started building a sidewalk through the parking lot on the property, that Mr. Williams first inquired about road widening.
The Williamses operated a 24 hour fast-food restaurant on the property. The city's sidewalk was to go through the parking lot on the Ten Mile side of the property and run straight through the building.
Mr. and Mrs. Williams used to operate the restaurant in their individual capacities. In the late 1960's, they decided, for business and tax reasons, to incorporate the business as Whiteway, Inc. Mr. and Mrs. Williams were the sole shareholders and directors. Whiteway became the tenant of Mr. and Mrs. Williams and paid rent to them. Whiteway owned and operated the restaurant as well as other restaurants. The Williams continued to own the property. There was no written lease with the corporation.
After 1959, as owners, Mr. and Mrs. Williams made several improvements in the building. They installed a new bathroom, new windows, new *694 arches, new floors, new equipment. They remodeled the outside of the building. The corporation itself also made improvements, including installing new fixtures counters, stools, grills, refrigerators, and electrical equipment.
When it was apparent that plaintiffs did not agree with the road commission's project, the road commission began proceedings for possession which resulted in the State of Michigan ordering plaintiffs to vacate the building on August 21, 1970. Corporate plaintiff Whiteway, Inc., stopped business on August 19, 1970, and moved its equipment out. The plaintiffs Williams dismantled the building.
Mr. Williams decided against rebuilding the hamburger restaurant. After the building had been torn down, Mr. Williams' application for a Class C liquor license was approved. He built a bar and restaurant on the property. The new business opened on April 17, 1973, 2-1/2 years after the original building had been torn down. The bar is doing a profitable business.
After the fixtures and equipment had been removed from the hamburger restaurant, they were put in storage by Mr. and Mrs. Williams. Some were stored in a Detroit warehouse. Another part was stored in a building owned by Mr. Williams which was located on Nine Mile Road. A garage across from Mr. Williams' home was also used. The equipment included cooking equipment, refrigerating equipment, counters, stools and signs, etc. The property belonged to Whiteway, Inc. No attempt was made to sell the property or to use it in one of the other six restaurants owned by Mr. and Mrs. Williams. Mr. Williams testified that the property was not needed in the other restaurants which were already in operation. The property was *695 stored until three or four months before the trial began, at which time it was sold to A.J. Marshall Co. for $400. Marshall Co. had originally sold the property to plaintiff. The property sold to Marshall Co. included cigarette and juke machines owned by the individual plaintiffs. Mr. Williams testified about the profits which they shared with the corporation.
On cross-examination, Mr. Williams stated that he had heard, prior to the execution of the land contract, of proposals to widen Mound Road. He had not, however, heard of any proposals with regard to widening Ten Mile Road.
Alvin Barbret, A.J. Marshall Co. sales manager, testified that his company was in the bar and restaurant business. He testified that his company had held the equipment for plaintiffs for a long time and that the accrued storage charges had become enormous. Plaintiffs, according to Mr. Barbret, finally decided to sell the property to the company. Since the equipment had been built for a particular building, and since the health codes had changed since the time it was built, the equipment was worth very little at the time of sale to A.J. Marshall Co. as it was not saleable in most of Michigan. He testified, however, that the fact that the property had been stored for so long had an effect on the price paid for it by A.J. Marshall Co. in 1976.
Qualified as an expert, Ross Strevel testified as to the value of the restaurant, prior to, and subsequent to the ascertainment and enforcement of the legal rights of the road commission.
The trial court found that defendant could reasonably have foreseen that both plaintiffs Williams and plaintiff Whiteway, Inc., would rely on the accuracy of the abstract furnished to Ms. Polgar *696 by defendant. Plaintiffs were therefore entitled to recover against defendant. Because of the lack of a written lease between Whiteway and plaintiffs Williams, the trial court concluded that Whiteway was at most a tenant from month to month. The award of damages went as follows: as to plaintiffs Williams, $53,500 for property and building and removal, $344 for one month's lost profits on a cigarette and juke machine, and $687.50 for lost rent for one month; plaintiff Whiteway, Inc.: $1,606.60 for one month's profit lost and $344 for one month's profit lost on cigarette and juke machines. Plaintiffs were also awarded interest, taxable costs and taxable appeal expenses including proper attorney fees. The court expressly stated that it had not considered the 34 month lapse between the time the original building was torn down and the new business was opened. The court explained that it did not award damages to plaintiff Whiteway for loss of equipment because Mr. Williams testified that he had made no attempt to sell the equipment on behalf of the corporation.
On appeal, plaintiff Whiteway, Inc., claims that the trial court erred in awarding no damages for loss of equipment, fixtures, and improvements, allegedly totaling $100,000. In discussing this claim, the trial court noted that the equipment "was not disposed of and no attempt was made to dispose of it". It was placed in storage from 1970 until 1976.
We do not believe the trial court's findings to be clearly erroneous. As noted by the Supreme Court in Tuttle v Dep't of State Highways, 397 Mich 44, 46; 243 NW2d 244 (1976):
"Under GCR 1963, 517.1, an appellate court will set aside the findings of fact of a trial court sitting without a jury when such findings are clearly erroneous."
*697 In both contract and tort actions, the injured party must make every reasonable effort to minimize damages suffered. It is the burden of the defendant, however, to show that the plaintiff has not used every reasonable effort within his or her power to minimize damages. Froling v Bischoff, 73 Mich App 496, 499; 252 NW2d 832 (1977).
Mr. Williams' total failure to even make an effort to find a use for or market for the equipment constituted a breach of the duty to mitigate damages.
The second claim of error raises a rather unique question of law. Appellant Whiteway, Inc., claims that the trial court clearly erred in finding that corporate plaintiff was only a month-to-month tenant of the individual plaintiffs and in therefore awarding only one month's lost profit, despite the fact that the individual plaintiffs are the sole shareholders and directors of the corporation.
The parties frame this issue in terms of piercing the corporate veil for the benefit of plaintiffs Williams, the sole shareholders and directors of Whiteway, Inc. It was undisputed that Whiteway operated plaintiffs' restaurant and leased the building from them.
As noted by appellant, ordinarily a corporate veil will not be pierced absent fraud, sham or other improper use of the corporate form. Gottlieb v Arrow Door Co, 364 Mich 450, 452; 110 NW2d 767 (1961), Paul v University Motor Sales Co, 283 Mich 587, 602; 278 NW 714 (1938). The notion of separate corporate identity is, however, merely a fiction:
"`The doctrine, however, that a corporation is a legal entity existing separate and apart from the persons composing it is a mere fiction, introduced for purposes *698 of convenience and to subserve the ends of justice. This fiction cannot be urged to an extent and purpose not within its reason and policy, and it has been held that in an appropriate case, and in furtherance of the ends of justice, a corporation and the individual or individuals owning all its stock and assets will be treated as identical.' 7 R.C.L. p 27." Montgomery v Central National Bank & Trust Co of Battle Creek, 267 Mich 142, 147-148; 255 NW 274 (1934). (Emphasis added.)
Thus, complete identity of interest between the sole shareholders and the corporation may lead courts to treat them as one for certain purposes. See: Pettaway v McConaghy, 367 Mich 651; 116 NW2d 789 (1962), L A Walden & Co v Consolidated Underwriters, 316 Mich 341; 25 NW2d 248 (1946).
While Brown Brothers Equipment Co v State Highway Comm, 51 Mich App 448; 215 NW2d 591 (1974), does allow the corporate veil to be pierced by other than a creditor of a corporation, it goes on to say:
"In ascertaining whether the separate corporate entity should be disregarded each case is sui generis and must be decided in accordance with its own underlying facts. In the case at bar, defendant continuously treated both corporations as one and entered the settlement contract for the purpose of keeping Brown Brothers' manufacturing business in operation. Defendant was also aware that the continuation of that enterprise was the motivation for plaintiff agreeing to the state taking possession of its land. To now accept defendant's contention of `separate corporate entity' would work an injustice on plaintiff and deny it the benefit of its contract. Defendant has shown no surprise, disadvantage, or objection at trial in plaintiff's use of Brown Brothers, Inc., books for evidence of loss for breach of contract. Equitable principles require this Court to disregard the legal fiction of separate corporate entity and approve the trial court's action." 51 Mich App at 452-453.
*699 In the case at bar we do not believe that the plaintiffs should be allowed to raise the question of piercing the corporate veil. They are the ones that set it up; they had the advantage of the corporation status for many years. Cf. Clement, Bane & Co v Michigan Clothing Co, 110 Mich 458; 68 NW 224 (1896). However, now that the shoe is on the other foot, plaintiffs want to set that status aside. We conclude that the trial court's ruling was proper, in the interest of justice.[3]
At the beginning of trial, cross-appellant moved for summary judgment, GCR 1963, 117.2(1), for failure of plaintiffs to allege facts as to the basis of cross-appellant's duty toward plaintiff Whiteway, Inc. Plaintiffs responded that defendant had been on notice as to Whiteway's claim. No specific statement had been sought. Amendment of the complaint was possible. The trial court responded that it would allow no amendment of the complaint. It referred to GCR 1963, 111, and noted that, although Whiteway's claim had not been apparent at the beginning of the suit, the claim was clear now. In response to the court's inquiry, defendant admitted that it had learned the substance of Whiteway's claim in the deposition of Mr. Williams. The trial court took the motion for summary judgment under advisement. The trial court never expressly addressed the motion again.
In light of the notice function of Michigan pleading rules, and especially since cross-appellant never denied that it had notice as to the basis of Whiteway, Inc.'s, claim, we find no error in the *700 failure of plaintiffs' complaint to allege any facts as to the status of Whiteway, Inc.
Cross-appellant further claims that plaintiffs should have known of the abstracter's negligent misrepresentation at the time they entered into a land contract for the sale of the property. American Title argues that at the time plaintiffs bought the property from Ms. Polgar, their attorney told them to check about possible road widening. Plaintiffs admitted that they made no attempt to follow up. Therefore, American Title contends that plaintiffs' negligent reliance on the abstract precludes recovery. We cannot agree.
The form that plaintiffs received from their attorney refers to future condemnation proceedings. It is entirely possible that plaintiffs may have decided not to pursue the matter in view of the constitutional guarantee of compensation:
"Private property shall not be taken for public use without just compensation therefor being first made or secured in a manner prescribed by law. Compensation shall be determined in proceedings in a court of record." Const 1963, art 10, § 2.
Reliance on the Michigan Constitution will not preclude recovery for negligent misrepresentation.
Finally, cross-appellant argues that, in a case of negligent misrepresentation of an abstract company as to chain of title for failure to discover a deed conveying part of the property, damages should be based on the value of the property at the time of the conveyance in this case, the value of the property at the date of the conveyance from Ms. Polgar to plaintiffs. Cross-appellant notes that when owners of property breach covenants of title, the breach occurs at the time of the conveyance *701 and damages are awarded based on the value of the property at that date.
The general rule in cases based on negligence is that persons who acquire property about which false representations as to value, quality or condition have been made are entitled to damages equal to the difference between the actual value of the property at the time of the contract and the value it would have had if the representations had been true. D'Alessandro v Vander Hooning, 365 Mich 66; 112 NW2d 114 (1961), Paquin v Van Houtum, 343 Mich 111, 123; 72 NW2d 169 (1955).
Here, Ross Strevel testified that, before the road commission complication arose, the plaintiffs' property was worth $161,500. Plaintiffs' property as it remained after the road commission's rights had been proven and enforced was worth $111,000. To the $50,500 difference was added the $3,000 cost of removing plaintiffs' restaurant. The trial court adopted Mr. Strevel's opinion that $53,500 was just compensation.
In Williams v Polgar, supra, this Court adopted the "date of discovery" statute of limitations rule for negligent misrepresentation.
The finding of fact by the trial court was not clearly erroneous, GCR 1963, 517.1.
Affirmed. No costs, neither side having prevailed in full.
NOTES
[1] "OPINION OF THE COURT
"For a complete statement of the pertinent facts in this case, with one exception, this Court refers to the opinions appearing in Williams v. Polgar, 43 Mich App 95 and in Williams v. Polgar, 391 Mich 6. The exception is that at trial on the issue of liability and damages stipulation was executed by all parties dismissing Polgar from this litigation. Since that trial this Court has been favored with excellent Briefs by both parties and this Court is satisfied that both plaintiffs Williams and Whiteway, Inc. fall within the category referred to in the Supreme Court opinion and as such are permitted to recover from the sole remaining defendant, American Title Insurance Company.
"Plaintiffs Walter E. Williams and Violet V. Williams are the sole owners of Whiteway, Inc. The business operation prior to the taking of the property by the County Road Commission was operated by Whiteway, Inc. The testimony revealed that there was no written lease between Williams and Whiteway. Whiteway, therefore, was at most a tenant from month to month and is so treated in the findings of this Court.
"This Court finds for plaintiffs and awards damages as follows:
WILLIAMS
Property and Building and removal $53,500.00
Cigarette and juke machine (1 month) 344.00
Rent (1 month) 687.50
__________
$54,531.50
WHITEWAY, INC.
Profit loss (1 month) $ 1,606.60
Cigarette and juke machine (1 month) 344.00
__________
$ 1,950.60
In addition thereto plaintiffs are entitled to interest, taxable costs and taxable appeal expenses including proper attorney fee.
"Although this Court is aware that there was a lapse of 34 months between the eviction of plaintiffs from the property and the opening of the new business which now includes a Class C license, this Court did not consider that lapse of time. Another problem which has caused some confusion involves the equipment and the loss thereof by plaintiff Whiteway. However, the testimony is that it had a depreciated value of $21,000.00. It was not disposed of and no attempt was made to dispose of it. It was placed in storage and this Court cannot in good conscience award damages therefor in view of the testimony of Mr. Williams who stated that he had made no attempt to sell the equipment on behalf of the Corporation.
"Judgment may enter. Judgment may be presented consistent herewith.
/s/
Howard R. Carroll
Circuit Judge
"Dated: March 3, 1977."
[2] "July 31, 1959
"Mr. and Mrs. Walter E. Williams
2016 Goulson
Warren, Michigan
"Dear Sir and Madam:
"I herewith submit to you may [sic] opinion of the Abstract of Title to the land located in the City of Warren, Macomb County, Michigan, described as follows:
Lot 40, except the Northerly 60 feet and also except the Westerly 45 feet thereof, of Supervisor's Plat of Heath Acres, being a part of the Southeast quarter (1/4) of Section 20, Town 1 North, Range 12 East, Warren, Township, Macomb County, Michigan, Liber 18 of Plats, page 11, Macomb County Records,
based upon an examination of the Abstract of Title of the Abstract and Title Guaranty Co., No 45832, certified to July 15, 1959, at 8:00 A.M.
"I. TITLE: Subject to the matter herein contained, title is vested in Zigmond Polgar and Julia Polgar, his wife;
"II. MORTGAGES: None.
"III. TAXES: Paid through year 1958, 1959 not examined.
"IV. RESTRICTIONS: None appear in the plat recorded April 16, 1937.
"Please note attached sheet.
Very truly yours,
PARRIS & FERRIS
/s/
By: GEORGE N. PARRIS
"GNP/sl
Attached Sheet."
"The foregoing entire opinion is based upon the abstract as submitted. Your attention is called to additional matters outside of the records which should be considered by every purchaser or mortgagee.
"POSSESSORY RIGHTS: Your [sic] should make inquiry upon the premises and if you find them occupied by any person other than the owner named, learn the rights of the occupancy claimed, as you are charged with notice of the rights of an occupant, and the rights of the person under whom an occupant claims.
"ENCROACHMENTS: You should examine the premises and adjoining lands and satisfy yourself that the buildings, fenses [sic] and their projections, if any, are located on the proper lot and within correct lines. Encroaching buildings or fences which are allowed to stand for the period prescribed in the statute of limitations can be maintained as a matter of right.
"MECHANICS' LIENS: If the building upon the premises is being repaired or repairs have been made within sixty days, the premises are liable to mechanics' liens. You should protect yourself by inquiry and inspection for this class of claims. Such liens would take priority over subsequent purchasers or mortgagees. You should demand sworn statements and waivers of liens.
"ROAD, PAVEMENTS, DRAINS AND SPECIAL ASSESSMENTS: Roads, pavements, sidewalks, drains and other public improvements are frequently installed by the state, county, township or village and assessed upon the adjoining property. Such assessments are liens upon the property but are not shown in the tax history of the abstract. Such assessments usually are payable in stallments [sic], although the entire assessment is a lien upon the property at the time of assessment. You should make inquiries at the proper offices to ascertain if there are any special assessments and satisfy yourself that they have been paid.
"BUILDING LINES, ZONING LAWS, ROAD WIDENING AND CONDEMNATION PROCEEDINGS: You should also make inquiry at the proper offices to ascertain whether there is any law or regulation restricting or regulating the height, style or type of building or setback lines on such property, or if any proceedings are contemplated or in progress as to road street widening or opening on any of said property for any public use.
"Water bills; You should make investigation to determine whether all of the water bills due against the premises are paid, because delinquent water bills constitute a lien against the premises regardless of the ownership of same.
"DRAIN ASSESSMENT: You should make investigation to determine whether all of the drain assessments against the property have been paid or whether or not there are any drain assessments against the property. Some of these assessments are in litigation at the present time and are subject to reinstatement, and you may be required to pay the same at a later date.
"YOUR ATTENTION is called to the fact that if you have actual notice of any deeds, instruments, conveyances or restrictions upon the property, you take the premises subject to that notice regardless of whether the particular instrument is on record."
[3] Had plaintiff Williams been suing for relocation costs, this Court's opinion in Brown Brothers Equipment Co v State Highway Comm, 51 Mich App 448; 215 NW2d 591 (1974), would have been directly on point. But there was no concrete reference to relocation costs in the complaint. See Ford v Howard, 59 Mich App 548; 229 NW2d 841 (1975).
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814 A.2d 335 (2003)
Manuel THOMAS
v.
RHODE ISLAND INSURERS' INSOLVENCY FUND.
No. 2001-139-M.P.
Supreme Court of Rhode Island.
January 22, 2003.
*336 *337 Present: WILLIAMS, C.J., LEDERBERG, FLANDERS, and GOLDBERG, JJ.
Jack R. DeGiovanni, Jr., Riverside, for Plaintiff.
Howard L. Feldman, for Defendant.
OPINION
WILLIAMS, Chief Justice.
This case came before the Court on a petition for certiorari filed by the Rhode Island Insurers' Insolvency Fund (Insolvency Fund) asking us to review a decree issued by the Appellate Division of the Workers' Compensation Court (Appellate Division). The Appellate Division decree reversed the trial court's dismissal of Manuel Thomas's[1] (employee or Thomas) petition seeking payment of loss of use and disfigurement benefits pursuant to G.L.1956 § 28-33-19. In its petition for certiorari, the Insolvency Fund argues that the Appellate Division erred by reversing the trial court decree. For the reasons stated below, we deny the petition for certiorari, quash the writ previously issued, and affirm the decree of the Appellate Division.
Before turning to the facts and issues raised by this case, we shall provide pertinent background information.
I
Workers' Compensation Benefits
The purpose of the Workers' Compensation Act (the act) is to adequately compensate injured employees "on the basis of a calculation of their actual wages." Bailey v. American Stores, Inc./Star Market, 610 A.2d 117, 119 (R.I.1992). Compensation benefits are not intended to provide full remuneration for work-related injuries, but instead should "afford a limited amount of economic assistance to cushion the financial shock brought about by the absence of a weekly paycheck." Id. (quoting Peloquin v. ITT Hammel-Dahl, 110 R.I. 330, 332, 292 A.2d 237, 239 (1972)).
This Court distinguished the various types of workers' compensation benefits in Rison v. Air Filter Systems, Inc., 707 A.2d 675 (R.I.1998). In Rison, we stated that:
"`weekly benefits' (also referred to as `regular compensation,' `disability benefits,' or `indemnity benefits') are awarded pursuant to [G.L.1956] § 28-33-17 as compensation for an employee's lost wages due to his or her work-related incapacity, whereas `special compensation' or `specific compensation' is awarded pursuant to § 28-33-19 for an employee's specific, scheduled bodily injuries, *338 including disfigurement." Rison, 707 A.2d at 678.
At issue in this case is the availability of specific benefits for disfigurement and loss of use. "[A] disfigurement is `that which impairs or injures the beauty, symmetry or appearance of a person or thing; that which renders unsightly, mis-shapen or imperfect or deforms in some manner.'" St. Laurent v. Kaiser Aluminum & Chemical Corp., 113 R.I. 10, 13, 316 A.2d 504, 506 (1974) (quoting Superior Mining Co. v. Industrial Comm'n, 141 N.E. 165, 166 (1923)). Loss of use is also compensated by specific benefits and is defined as follows:
"Where any bodily member or portion of it has been rendered permanently stiff or useless, compensation in accordance with the schedule contained in this section is paid as if the member or portion of the member had been severed completely * * *." Section 28-33-19(a)(2).
However, specific compensation under § 28-33-19 is "considered * * * `damages' rather than `compensation.'" Rainville v. King's Trucking Co., 448 A.2d 733, 734 (R.I.1982).
An employee is also entitled to "medical expenses" under § 28-33-5, which provides in pertinent part:
"The employer, subject to the choice of the employee as provided in [G.L.1956] § 28-33-8, promptly provides for an injured employee any reasonable medical, surgical, dental, optical, or other attendance or treatment, nurse and hospital service, medicines, crutches, and apparatus for the period that is necessary, in order to cure, rehabilitate or relieve the employee from the effects of his or her injury * * *."
Throughout the history of the act there have been statutory limits on the amount of each class of benefits an injured employee could receive. Generally, an employee's rights under the act "are governed by the law in force on the date of his injury." State v. Healy, 122 R.I. 602, 606, 410 A.2d 432, 434 (1980). In 1974, for example, when respondent suffered his work-related injury,[2] there were limits on the amount of weekly compensation benefits, medical expenses, and specific compensation benefits for disfigurement and loss of use.[3]
*339 To provide a totally disabled employee with a measure of relief "once his [or her] employer's liability therefore had terminated[,] the Legislature established the Rhode Island Workers' Compensation Administrative Fund (WCAF) (formerly known as the Second Injury Indemnity Fund). Healy v. DeSano, 121 R.I. 325, 329, 397 A.2d 1328, 1330 (1979) (citing Cabral v. Hall, 102 R.I. 320, 324, 230 A.2d 250, 253 (1967)). "The [WCAF] is composed of contributions made to it by various insurers and self-insurers in accordance with an assessment formula * * *." Healy, 121 R.I. at 330 n. 4, 397 A.2d at 1331 n. 4. The WCAF must pay continued weekly and medical benefits to injured employees who are totally disabled pursuant to G.L.1956 § 28-37-8, as amended by P.L. 1954, ch. 3297, Art. II-A, § 26. Section 28-37-8 provided that:
"In addition to any other payments authorized to be made from the [WCAF] * * * payments from the [WCAF] shall be made for the continuance of compensation and medical expenses * * * to any employee who subsequent to January 1, 1940 has suffered an injury resulting in his receiving compensation payments for total incapacity and such incapacity has continued or will continue beyond the maximum period of payment for total incapacity provided under this chapter."
Section 28-37-9 sets out the payment procedure for the continued payment of benefits provided under § 28-37-8 through a reimbursement mechanism in which the insurer pays the benefits and is later indemnified by the WCAF.
II
The Insolvency Fund
The Insolvency Fund is entirely different from the WCAF. It was established by the General Assembly "`to provide a mechanism for the payment of covered claims under certain insurance policies' in order to protect both claimants and policyholders from economic harm when an insurer becomes insolvent." McGuirl v. Anjou International Co., 713 A.2d 194, 197 (R.I.1998) (quoting G.L.1956 § 27-34-2). The Insolvency Fund provides protection to injured employees by "stand[ing] in the shoes of the insolvent insurer, and thereby assum[ing] the insurer's obligations." Callaghan v. Rhode Island Occupational Information Coordinating Committee/Industry Educational Council of Labor, 704 A.2d 740, 746 (R.I.1997).
III
Facts and Travel
The employee suffered a work-related injury on August 11, 1974 while employed at Washburn Wire Company (employer) as a crane operator. The employee's injury occurred when his left leg fell through an opening between a platform and the floor of the crane cab. At that time, American *340 Mutual Liability Insurance Company (American Mutual) insured employer for workers' compensation liability. Pursuant to a January 2, 1975 decree of the trial court establishing employer's liability for injury to Thomas's left leg and his total incapacity, American Mutual paid weekly compensation benefits to employee until April 1, 1982. At that point, respondent had received a total of $32,500 in weekly compensation benefits, the maximum allowed under the applicable statute. See § 28-33-17, as amendeded by P.L.1969, ch. 148, § 1.
On June 14, 1983, the trial court found that Thomas continued to be totally incapacitated and that American Mutual must continue to pay him weekly benefits with a right of reimbursement from the WCAF, as provided by § 28-37-8. In March 1989, American Mutual was declared insolvent. See Rhode Island Insurers' Insolvency Fund v. Leviton Manufacturing Co., 763 A.2d 590, 592 (R.I.2000). Thereafter, the Insolvency Fund "stepped into the shoes" of American Mutual and continued to pay weekly compensation benefits and medical expenses to respondent as required by G.L.1956 § 27-34-2.
In 1997, Thomas had surgery on his left knee. In 1998, after the surgery, he filed a petition in the trial court seeking specific benefits, alleging loss of use and disfigurement of the left leg, under § 28-33-19. The trial judge determined that Thomas had no right to receive specific compensation because § 28-37-8 requires the Insolvency Fund to continue paying only weekly compensation benefits and medical expenses. On appeal, the Appellate Division determined that the Insolvency Fund's obligation to pay specific benefits is not extinguished merely because § 28-37-8 does not expressly provide that the Insolvency Fund has a duty to pay specific benefits. Rather, the authority to collect specific benefits derives from § 28-33-19. Thus, the Appellate Division concluded that, because there was no provision expressly eliminating specific compensation benefits, Thomas had a right to receive them. In an order entered on October 2, 2000, the Appellate Division sustained Thomas's appeal and remanded the case for a determination on the merits in accordance with its decision. Thereafter, the Insolvency Fund filed the instant petition.
IV
Benefits Under § 28-33-19
"We review the Appellate Division's decision de novo, pursuant to [G.L.1956] § 28-35-30, for any error of law or equity." Rison, 707 A.2d at 678. (Emphasis added.) The employee suffered his work-related injury on August 11, 1974. At that time, the act limited weekly benefits to five hundred weeks or $32,500. Section 28-33-17, as amended by P.L.1969, ch. 148, § 1. As the Insolvency Fund correctly points out, once the limits of § 28-33-17 are exhausted, an employee who seeks to have those benefits continued must proceed under § 28-37-8. But, we reject the Insolvency Fund's second proposition that because § 28-37-8 makes no provision for specific benefits, Thomas has no entitlement to damages under § 28-33-19. This Court held in Reardon v. Hall, 104 R.I. 591, 596, 247 A.2d 900, 902 (1968), that under § 28-37-8, which mentions only compensation and medical expenses, there is no right to a continuation of specific benefits for disfigurement and loss of use from the WCAF. This is entirely consistent with our holding in Rainville, 448 A.2d at 734, in which we concluded that benefits under § 28-33-19 are to be considered damages rather than true compensation. However, in Reardon, we specifically stated that the employee did not file *341 his petition under § 28-33-19, and therefore, we did not consider "whether [the employee] may bring an action * * * under the provision[s] of § 28-33-19." Reardon, 104 R.I. at 594 n. 2, 247 A.2d at 901 n. 2. Therefore, when an employee seeks disfigurement and loss of use benefits under § 28-33-19, there is no reason why he or she cannot recover those benefits from the WCAF since § 28-37-8 makes no mention of such a limitation.
The Insolvency Fund asks us to find that § 28-37-8 eliminates specific benefits and medical benefits as soon as an employee has exceeded his statutory maximum of weekly benefits. In support of this argument, the Insolvency Fund relies on Bottiglieri v. Caldarone, 486 A.2d 1085 (R.I.1985), where we restated our rule that "a claimant must be totally incapacitated as a direct result of a compensable injury and have exhausted all benefits due him before he can become eligible for [WCAF] payments." Id. at 1087 (citing Healy, 121 R.I. at 325, 397 A.2d at 1328). The Insolvency Fund interprets this language to mean that once an employee exhausts his or her weekly compensation benefits all other benefits are also exhausted. We disagree.
The language in Bottiglieri recites the original statement of law first written by this Court in Ricci v. Hall, 101 R.I. 677, 226 A.2d 692 (1967). In Ricci we stated that, "the mandate of [§ 28-37-8] is to make payments to the injured employee when his total incapacity continues beyond the maximum period for payments of compensation for total incapacity prescribed in the act." Ricci, 101 R.I. at 679, 226 A.2d at 694. However, the maximum period at issue in Ricci was the statutory limit on medical expenses provided in § 28-37-5. Ricci, 101 R.I. at 680-81, 226 A.2d at 694. Therefore, this Court stated that an employee could receive a continuation of medical benefits only when that employee had exceeded his statutory maximum under § 28-37-5. Reading that language together with the language in Bottiglieri, we conclude that medical benefits are continued under § 28-37-8 when they are exhausted under § 28-33-5, and weekly compensation benefits are continued under § 28-37-8 when they are exhausted under § 28-33-17. Loss of use and disfigurement benefits are exhausted only when the employee has reached the limit provided under § 28-33-19, with no right of continuation under § 28-37-8. In other words, the limits on specific compensation benefits are not found in § 28-37-8, but rather are found in the section of the act that grants the particular class of benefits, § 28-33-19.
We therefore agree with the Appellate Division and conclude that Thomas may be entitled to loss of use and disfigurement benefits under § 28-33-19 with the only limitation on those benefits being the maximum provided within that section.
Conclusion
Accordingly, for the reasons stated herein, the Insolvency Fund's petition for certiorari is hereby denied. The writ previously issued is quashed. The decree of the Appellate Division is affirmed. The papers in this case are returned to the Appellate Division with our opinion duly endorsed thereon.
Justice LEDERBERG participated in all proceedings but deceased prior to the filing of this opinion.
NOTES
[1] Manuel Thomas died on November 25, 2002, twenty seven days after this Court heard oral arguments on this case. Due to his death, Rhode Island Insurers' Insolvency Fund filed a motion to dismiss, which this Court denied on December 20, 2002.
[2] We refer to the 1974 version of these provisions without ruling on whether this is, in fact, the applicable law since this case has yet to be adjudicated on the merits and a determination of the applicable law is irrelevant to our conclusions herein.
[3] General Laws 1956 § 28-33-17, as amended by P.L.1969, ch. 148, § 1 required an employer to:
"pay [an] injured employee a weekly compensation equal to sixty-six and two-thirds (66-2/3%) [percent] of his average weekly wages, earnings, or salary * * * and in no case shall the period covered by such compensation be greater than five hundred (500) weeks from the date of the injury nor the amount more than thirty-two thousand five hundred ($32,500.00) dollars."
Section 28-33-5(a), as amended by P.L.1954, ch. 3297, Art. II, § 5(a) provided:
"The employer shall subject to the choice of the employee as provided in paragraph (b), promptly provide for an injured employee such reasonable medical, surgical, dental, optical or other attendance or treatment, nurse and hospital service, medicines, crutches and apparatus for such period as is necessary, in order to cure, rehabilitate or relieve the employee from the effects of his injury, provided, however, that the charges for services and medicines exclusive of hospital services shall not exceed the sum of $300.00 in the case of an employee not receiving hospital services or receiving hospital services for not more than 14 days, and shall not exceed the sum of $600.00 in the case of an employee receiving hospital services for more than 14 days * * *."
Section 28-33-19(n)(2), as amended by P.L.1972, ch. 213, § 1 provided: "For permanent disfigurement about the face, head, neck, hand, or arm, or leg or body the number of weeks which according to the determination of the workmen's compensation commission is a proper and equitable compensation, not to exceed three hundred (300) weeks * * *." (Emphasis added.)
Section 28-33-19(m), as amended by P.L.1967, ch. 166, § 1 provided that: "Where any bodily member or portion thereof has been rendered permanently stiff or useless, compensation in accordance with the above schedule shall be paid as if the member or portion thereof had been severed completely * * *."
Section 28-33-19(b), as amended by P.L.1972, ch. 213, § 1 required compensation: "For loss or severance of either arm above the elbow, or of either leg at or above the knee for a period of three hundred twelve (312) weeks." (Emphasis added.)
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572 S.E.2d 866 (2002)
STATE of North Carolina
v.
Antwane Andre WALKER.
No. COA02-335.
Court of Appeals of North Carolina.
December 17, 2002.
*868 Attorney General Roy Cooper, by Assistant Attorney General W. Wallace Finlator, Jr., for the State.
Jeffrey Evan Noecker, Wilmington, for defendant-appellant.
CAMPBELL, Judge.
Defendant, Antwane Andre Walker ("Antwane"), appeals from a judgment entered 12 September 2001 convicting him of robbery with a firearm, first degree burglary and possession of a firearm by a felon. On appeal, defendant argues five assignments of error by the lower court: I. The trial court erred by failing to dismiss the charge of possession of a handgun by a convicted felon and in instructing the jury on constructive possession based on lack of sufficient evidence; II. The trial court erred by failing to dismiss the charges of first degree burglary and armed robbery and by instructing the jury on acting in concert in relation to these offenses based on lack of sufficient evidence; III. The trial court erred by refusing to instruct the jury as to the lesser included offenses of armed robbery and first degree burglary; IV. The trial court committed plain error by failing to sever the possession of a handgun case from defendant's other cases and in admitting details of defendant's prior felony; and V. The trial court committed plain error by determining that defendant had ten prior record level points.
The relevant facts to this appeal are as follows: On 9 May 2000, Sybreina Jones ("Ms.Jones") and her three sons, Antonio, 13, Ricardo, 9, and Christian, 5, were all inside their Wilmington home when they heard a loud noise. Ms. Jones walked out of her room and saw three black men approaching her. All three men had guns and one of them asked, "Where's the money? Where's the jewelry? Where's the drugs?" The men rummaged through the house, overturning furniture and looking through cabinets. Only three men were in the room where they told Ms. Jones and her boys to get down on the floor and stay. Ms. Jones testified, however, that she heard a great deal of noise in the back of the house, through which someone had rummaged. She testified that Ricardo told her, "Mommy, there's someone else in the house.... Mommy, it's Antwane." Ricardo told his mother that he recognized defendant's white Reeboks and baggy jeans. Ricardo said Antwane had "a pillowcase over his face." Defendant is Ms. Jones' nephew and the boys' cousin.
Captain David Smithey ("Captain Smithey"), of the New Hanover County Sheriff's Office, testified that when he arrived home from an outing the evening of 9 May 2000, he saw an unknown car in front of his house. He asked a neighbor about the car, but the neighbor knew nothing. While Captain Smithey was walking to ask a second neighbor, he saw a black male walk hurriedly towards the car and enter the car. Then three more black males did the same. Captain Smithey took down the license plate number on the car and called it in to 911. Detective Kevin *869 Hargrove ("Detective Hargrove"), of the City of Wilmington Police Department, heard the call over his police radio regarding a suspicious vehicle. Detective Hargrove located the vehicle, a burgundy Ford Taurus, "occupied by four males ... [with] the same tag that [he] heard over the radio." Detective Hargrove followed the car to an apartment complex and called for backup. Detective Hargrove observed as all four men entered an apartment. One of the men exited the apartment and left the area. Detective Hargrove looked in the Taurus and found a loaded "Cobray 9mm Mac 11 handgun." Captain Smithey and other backup arrived on the scene and went to the apartment door, where Diane Flemming allowed them to enter the apartment.
The officers found two men downstairs and defendant upstairs wearing baggy blue jeans and white Reeboks. The keys to the Ford Taurus were in a room across the hall from where defendant was sitting.
Detective Hargrove arrested the three men and took them to the Sheriff's Department, where he found a woman's Larex watch in one of the co-defendant's pockets. Detective Hargrove did not know about the burglary and robbery at the time he made the arrests. When he learned of the break-in at Ms. Jones' house, he returned a few days later to the apartment where he made the arrests, the Flemming residence, and recovered two handguns from upstairs that matched the description given by Ms. Jones, Antonio, and Ricardo of the guns used in the burglary.
Diane Flemming, who was babysitting her daughter's three children on 9 May 2000, testified that between 10:30 and 11:00 p.m., "[f]our young men came [into the residence]... [and] they were acting kind of nervous." Defendant was one of the men. About ten minutes later the police knocked on the door and asked to search the house.
We will consider defendant's five assignments of error in turn.
I. Failing to dismiss the charge of possession of a handgun by a convicted felon and in instructing the jury on constructive possession.
"In ruling upon a motion to dismiss, the trial court must determine if the State has presented substantial evidence of each essential element of the offense." State v. Reid, 151 N.C.App. 379, 565 S.E.2d 747 (2002) (citation omitted). "Whether the evidence presented is substantial is a question of law for the court." State v. Siriguanico, 151 N.C.App. 107, 564 S.E.2d 301 (2002) (citing State v. Stephens, 244 N.C. 380, 384, 93 S.E.2d 431, 433 (1956)). "Evidence is substantial if it is relevant and adequate to convince a reasonable mind to accept a conclusion." State v. Robinson, 355 N.C. 320, 336, 561 S.E.2d 245, 255 (2002), cert. denied, ___ U.S. ___, 123 S.Ct. 488, 154 L.Ed.2d 404 (2002) (citing State v. Vick, 341 N.C. 569, 583-84, 461 S.E.2d 655, 663 (1995)). When considering a criminal defendant's motion to dismiss, the trial court must view all of the evidence presented "in the light most favorable to the State, and the State is entitled to all reasonable inferences which may be drawn from the evidence." State v. Davis, 130 N.C.App. 675, 679, 505 S.E.2d 138, 141 (1998) (citation omitted). The trial court correctly denies a motion to dismiss "[if] there is substantial evidence of every element of the offense charged, or any lesser offense, and of defendant being the perpetrator of the crime." State v. Ramseur, 338 N.C. 502, 507, 450 S.E.2d 467, 471 (1994) (citation omitted).
Defendant moved to dismiss the charge of possession of a handgun by a convicted felon at the close of the State's evidence and at the close of all the evidence. Defendant does not challenge the evidence that establishes him being a convicted felon. Defendant's contention is that there is insufficient evidence to show that he possessed a handgun during the commission of the burglary and armed robbery of Ms. Jones. The handgun which defendant is charged with possessing is the 9 millimeter Mac 11 found by Detective Hargrove in the backseat of the Taurus. Defendant argues that no evidence links him to having constructive possession of this handgun. We disagree. Our state Supreme Court has recently reaffirmed the doctrine of acting in concert as:
[I]f `two persons join in a purpose to commit a crime, each of them, if actually or *870 constructively present, is not only guilty as a principal if the other commits that particular crime, but he is also guilty of any other crime committed by the other in pursuance of the common purpose ... or as a natural or probable consequence thereof.'
State v. Mann, 355 N.C. 294, 355 N.C.App. 294, 560 S.E.2d 776, 784 (2002), cert. denied, ___ U.S. ___, 123 S.Ct. 495, 154 L.Ed.2d 403 (2002) (quoting State v. Barnes, 345 N.C. 184, 233, 481 S.E.2d 44, 71 (1997), cert. denied, 522 U.S. 876, 118 S.Ct. 196, 139 L.Ed.2d 134 (1997), and cert. denied, 523 U.S. 1024, 118 S.Ct. 1309, 140 L.Ed.2d 473 (1998) (citations omitted)). Defendant concedes that there is substantial evidence that he was present at the scene of the burglary and robbery. Defendant contends, however, that the evidence is insufficient to connect him to a common plan or scheme to break into Ms. Jones' house and to commit armed robbery of the occupants. Defendant's argument is without merit. To find that the trial court erred in failing to grant defendant's motion to dismiss based on insufficient evidence, this Court would have to find that defendant's presence at Ms. Jones' house at the time of the burglary and armed robbery was coincidental to and ignorant of the co-defendants' presence. We find that defendant acted in concert with the other three men to commit burglary and armed robbery. Therefore, possession of the gun found in the Taurus that fits the description of one of the guns used by a co-defendant is imputed to defendant through his acting in concert to commit burglary and armed robbery. Accordingly, the trial court did not err, as defendant further argues, in instructing the jury on constructive possession. We dismiss this assignment of error.
II. Failing to dismiss the charges of first degree burglary and armed robbery and by instructing the jury on acting in concert.
Defendant argues that there is insufficient evidence to convict him of first degree burglary and armed robbery because he was merely present at the crime scene and there is no evidence that defendant knew that any of the co-defendants were armed. Per the discussion above regarding acting in concert, we find this argument to be without merit.
III. Refusing to instruct the jury as to the lesser included offenses of armed robbery and first degree burglary.
Defendant argues that a trial court must instruct a jury as to the lesser included offenses of a charge against a defendant if the State fails to produce strong evidence of one or more of the elements of the offense charged. While this is true, we find it an inapplicable argument to this case. The State presented ample evidence at trial of all seven elements of armed robbery, such that a jury could find that defendant had knowledge that his accomplices had guns. See N.C. Gen.Stat. § 14-87 (2001). Defendant further raises issue with the requisite element of armed robbery that the life of the victim be threatened or endangered. Defendant contends that no threats of harm were ever communicated to Ms. Jones or her children. Antonio testified that his brother, Ricardo, "tried to run and the man grabbed him and put the gun to his head.... And he told him to be quiet and put a hand over his mouth." Antonio said that he "screamed and told [the man] to get off [his] brother." Then Antonio testified, another "little short guy came in, and he pushed me on the ground ... and put my hands behind my back and put the gun on my back." Ricardo testified, "I tried to run, and then [the man] grabbed me and put me under his leg and put the gun to my head." This is sufficient evidence to satisfy the requisite element of armed robbery that the life of the victim be threatened.
The State also presented sufficient evidence to establish all the elements of first degree burglary. See N.C. Gen.Stat. § 14-51 (2001). Defendant contends that the trial court should have instructed the jury on second degree burglary because there was insufficient evidence of an intent on defendant's part to commit armed robbery at the time of the breaking and entry. Having established that defendant was acting in concert with the co-defendants, he is guilty of the principal crime committed. Second degree burglary requires that the dwelling place be unoccupied at the time of the crime. As the house was occupied by four people, *871 there was sufficient evidence of the elements of first degree burglary. This assignment of error is dismissed.
IV. Failing to sever the possession of a handgun case from defendant's other cases and admitting details of defendant's prior felony.
Defendant argues that the trial court committed plain error by failing to sever the trial for the possession of a handgun by a convicted felon offense from the burglary and armed robbery offenses. We disagree. Defendant, as he concedes, did not object to the trial court's consolidation of the three charges and therefore, we can only consider this argument under a plain error standard. "Plain error is `fundamental error' amounting to a miscarriage of justice or having a substantial and prejudicial impact on the jury verdict." State v. Bartlett, Sr., ___ N.C.App. ___, 571 S.E.2d 28 (2002) (citing State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 120 S.Ct. 808, 145 L.Ed.2d 681 (2000)). "Under this standard, defendant is entitled to relief if he can show "`(i) that a different result probably would have been reached but for the error or (ii) that the error was so fundamental as to result in a miscarriage of justice or denial of a fair trial.'" " State v. O'Hanlan, ___ N.C.App. ___, 570 S.E.2d 751 (2002) (citation omitted). Defendant has failed to show that the jury may have reached a different result or that the trial court not severing the trials ex mero motu was so fundamental an error as to deny him a fair trial.
Defendant argues, in the alternative to the trial court committing plain error by not severing the trials sua sponte, that he received ineffective assistance of counsel. We find that defendant cannot show that by failing to object to the joinder that his counsel was so deficient that it prejudiced his defense.
V. Determining that defendant had ten prior record level points.
Defendant argues that the State mistakenly counted a prior class 2 misdemeanor as a point when only class A1 and 1 non-traffic misdemeanors should count as points. In turn, defendant's sentence was decided according to him having ten points instead of nine. The State agrees that it miscalculated defendant's prior points and the correct number is nine. The miscalculation, however, was harmless because defendant remains a level IV offender, which requires nine to fourteen points. Since defendant still has nine points after correcting the State's error and his sentence would remain the same, we dismiss this assignment of error.
No error.
Judges WALKER and McCULLOUGH concur.
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948 F.2d 1276
Foremanv.U.S.
NO. 91-2172
United States Court of Appeals,Second Circuit.
AUG 26, 1991
1
Appeal From: S.D.N.Y.
2
AFFIRMED.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-7037
STEPHEN SATCHER,
Petitioner - Appellant,
v.
LEONARD ODDO, Warden,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. John Preston Bailey,
District Judge. (2:14-cv-00092-JPB-RWT)
Submitted: January 20, 2017 Decided: January 25, 2017
Before KING, DUNCAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Stephen Satcher, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen D. Satcher, a federal prisoner, appeals the
district court’s order accepting the recommendation of the
magistrate judge and denying relief on his 28 U.S.C. § 2241
(2012) petition. We have reviewed the record and find no
reversible error. Accordingly, we affirm for the reasons stated
by the district court. Satcher v. Oddo, No. 2:14-cv-00092-JPB-
RWT (N.D. W. Va. June 30, 2016). We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
2
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544 U.S. 1051
DUNLAPv.HATHAWAY, JUDGE, CIRCUIT COURT OF MICHIGAN, THIRD CIRCUIT.
No. 04-9221.
Supreme Court of United States.
May 23, 2005.
1
Ct. App. Mich. Certiorari denied.
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12 F.Supp.2d 982 (1998)
UNITED STATES of America, Petitioner,
v.
U.S. BANCORP (formerly First Bank System, Inc.), Respondent.
No. 97-71 (DSD/JMM).
United States District Court, D. Minnesota.
August 3, 1998.
*983 Rachel D. Cramer, Nanci S. Bramson, U.S. Dept. of Justice, Tax Div., Washington, DC, for Petitioner.
Lydia R.B. Kelly, David J. Duez, McDermott, Will & Emery, Chicago, IL, John C. Childs, McDermott Will & Emery, Minneapolis, MN, for Respondent.
ORDER
DOTY, District Judge.
This matter is before the court on the objections of respondent U.S. Bancorp to the Report and Recommendation of United States Magistrate Judge John M. Mason dated February 10, 1998.[1] In his report, the magistrate judge recommended that: (1) the petition of the government for enforcement of the Internal Revenue Service ("IRS") summonses be granted except to the extent that the summonses seek the creation of new documents or materials not yet in existence; (2) respondent's "Motion for Discovery, Evidentiary Hearing and Partial Sealing of the Record" (Docket No. 15) be denied without prejudice in its entirety, except that all those portions of the record which pertain to respondent's confidential security procedures for its customer credit card files may be sealed upon application to the magistrate judge specifying the specific documents; and (3) respondent's objections based upon Section 7609 of the Internal Revenue Code of 1986, the Taking Clause of the Fifth Amendment of the United States Constitution, irrelevancy, and overbreadth, be overruled.[2]
*984 Respondent has filed timely objections to the Report and Recommendation, arguing that: (1) the summonses should not be enforced because the Right to Financial Privacy Act (hereafter "RFPA"), 12 U.S.C. § 3401, et seq., applies to the disclosures requested in the IRS summonses despite the RFPA's exception for procedures authorized by Title 26, the Internal Revenue Code; (2) a conformity election in accordance with Treasury Regulation § 1.166-2(d)(3) is sufficient to prevent the enforcement of the summonses; and (3) the court should conduct an evidentiary hearing to allow respondent to prove both compliance with the conformity election provision of Treasury Regulation § 1.166-2(d)(3) and the irrelevancy of the summonsed information.
FACTS
The facts underlying this action are not in dispute. Petitioner brought this proceeding seeking judicial enforcement of three IRS summonses. The petition alleges that the IRS issued summonses to respondent on March 17, 1997, and October 21, 1996, and to FBS Information Services Corporation, a member of respondent's consolidated group, on December 11, 1996. The petition further alleges that the summonses issued to respondent sought books, papers, and other records relating to bad debt deductions claimed on respondent's consolidated tax returns for the years 1993 and 1994. The summons issued to FBS Information Services Corporation sought similar information relating to computer records dealing with commercial loans, credit cards and installment loans for the years 1993 and 1994, and specifically demanded the production of respondent's "Credit Card (Master File)"[3] for the years 1993 and 1994. The petition asserts that respondent and FBS Information Services Corporation failed to comply with the summonses, refused to produce loan files and documents relating to the charge-offs which comprised the bad debt deductions, and refused to produce all of the documents and data requested in the summons issued to FBS Information Services Corporation. The petition seeks enforcement of the summonses.
DISCUSSION
a. Right to Financial Privacy Act
In his report, the magistrate judge correctly cited the general rule that the RFPA prohibits financial institutions from providing the government with information concerning their customers' financial records, unless the customer authorizes the disclosure of such information or the government obtains a valid subpoena or warrant. 12 U.S.C. § 3402; Neece v. I.R.S., 96 F.3d 460, 462 (10th Cir.1996); U.S. v. Frazin, 780 F.2d 1461, 1465 (9th Cir.1986), cert. denied, 479 U.S. 844, 107 S.Ct. 158, 93 L.Ed.2d 98 (1986). The magistrate judge also noted that the RFPA provides an exception to this general rule for information requested by the IRS under Title 26, the Internal Revenue Code: "Nothing in this chapter prohibits the disclosure of financial records in accordance with the procedures authorized by Title 26." 12 U.S.C. § 3413(c). The court has reviewed the cases cited by the magistrate judge applying this exception, and agrees that the RFPA is not applicable to properly issued IRS summonses. See Report and Recommendation (Docket No. 26) at 8-9 (citing relevant cases). Only where the IRS fails to comply with Title 26 do the procedural protections of the RFPA apply. U.S. v. Kao, 81 F.3d 114, 118 (9th Cir.1996) (noting that where the third-party recordkeeper privacy protections of 26 U.S.C. § 7609 were applicable but not followed the RFPA applies). The magistrate judge found that in this case the IRS properly complied with 26 U.S.C. § 7602 in issuing the summonses, and the procedural protections of the RFPA do not apply.
Respondent argues in its objections, however, that the exception in the RFPA for procedures authorized by Title 26 is limited by precedent and legislative history to only those procedures authorized by 26 U.S.C. § 7609. When applicable, § 7609 provides procedures analogous to those contained in the RFPA which limit the disclosure of financial records held by third-party recordkeepers, such as respondent. Because the summonses in this case were issued under *985 § 7602, respondent argues that the protective provisions of the RFPA still apply.
The court, however, finds that the plain language and legislative history of § 3413(c) of the RFPA, making the RFPA inapplicable to disclosures of financial records made according to procedures authorized by Title 26, covers § 7602 as well as § 7609. As amended and enacted, the exception reads:
(c) Nothing in this title prohibits the disclosure of financial records in accordance with procedures authorized by the Internal Revenue Code.
12 U.S.C. § 3413(c); 124 Cong. Rec. 33,838 (1978). Prior to its amendment, the exception excluded from the RFPA's coverage only procedures authorized under § 7609:
(c) Nothing in this title prohibits the disclosure of financial records information in accordance with the procedures set out in section 1205 of the Tax Reform Act of 1976[.][4]
124 Cong. Rec. 33, 832 (1978). The amendment was intended to expand the scope of the exception to cover all procedures under Title 26. Mr. LaFalce, Congressman from New York and offeror of the Amendment, stated in its support that "it is necessary to exempt all procedures carried out under the Internal Revenue Code which has its own privacy protection provisions." 124 Cong. Rec. 33,839 (1978).
The case of Neece v. I.R.S., 922 F.2d 573 (10th Cir.1990), is consistent with this reading. In Neece, the IRS was investigating a bank's customer, not the bank itself. In that case, the IRS could properly request the records only under the Internal Revenue Code's procedures in § 7609 for obtaining third-party financial records. The IRS did not follow the summons procedures of § 7609, but instead informally accessed the customer's records with the voluntary cooperation of the bank. In contrast, the IRS in this case has issued its summonses as part of an investigation of respondent itself and has complied with the procedures of 26 U.S.C. § 7602.
The court therefore concludes that precedent and the legislative history of the RFPA do not limit the RFPA's exception for procedures authorized by Title 26 to § 7609, and overrules respondent's objection.
b. Treasury Regulation § 1.166-2(d)(3)
Respondent next argues that it made a valid conformity election in accordance with Treasury Regulation § 1.166-2(d)(3), thereby making the information sought by petitioner irrelevant. This regulation details circumstances in which bad debt charge-offs made by a bank subject to a regulatory authority yield a conclusive presumption for tax purposes of the worthlessness of those debts. This conclusive presumption, however, does not make information regarding those debts irrelevant to the legitimate determination of respondent's tax liabilities and the accuracy of respondent's consolidated tax returns. The test to determine relevancy is:
[A] court must enforce a section 7602 summons if the IRS shows: (1) that the investigation is for a legitimate purpose; (2) that the requested material is relevant to the investigation; (3) that the material is not already in the agency's possession; and (4) that the proper administrative steps have been followed.
U.S. v. Norwest Corp., 116 F.3d 1227, 1233 (8th Cir.1997) (citing U.S. v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964)). Respondent does not allege that the IRS investigation of respondent is not for a legitimate purpose, that the material is already in the possession of the IRS, or that the IRS has failed to follow the procedures of § 7602. The only issue here is relevancy. Whether material is relevant under the Powell test is judged with a deferential standard. Norwest, 116 F.3d at 1231 (citing Powell, 379 U.S. at 57-58, 85 S.Ct. 248). To establish relevance it is enough to determine "merely whether that information might shed some light on the tax return." Norwest, 116 F.3d at 1233 (citing U.S. v. Arthur Young & Co., 465 U.S. 805, 813-14 & n. 11, 104 S.Ct. 1495, 79 L.Ed.2d 826 (1984)).
In this case, several relevant uses for the information exist. Not only may the summonsed information "shed some light" on the accuracy of respondent's consolidated tax *986 returns, but, as the magistrate judge correctly noted, the summonsed information may also be used to determine compliance with the tax regulations allowing the conformity election itself:
[T]he Commissioner may revoke an election as of the beginning of any taxable year for which the Commissioner determines that a bank has taken charge-offs and deductions that, under all facts and circumstances existing at the time, were substantially in excess of those warranted by the exercise of reasonable business judgment in applying the regulatory standards of the bank's supervisory authority as defined in paragraph (d)(3)(III)(D) of this section.
Treasury Regulation § 1.166-2(d)(3)(iv)(D). The summonsed information is therefore relevant under the Powell test, and respondent's conformity election does not preclude enforcement of the summonses.
c. Evidentiary Hearing
Finally, respondent argues that the court should conduct an evidentiary hearing to allow review of evidence regarding respondent's conformity election and the irrelevance of the summonsed information to the IRS in verifying the accuracy of the respondent's tax returns. As already discussed, the information is relevant under the deferential Powell standard; therefore, there is no need to conduct an evidentiary hearing. See Norwest, 116 F.3d at 1233 ("[T]he judiciary should not go beyond the requirements of the statute and force [the] IRS to litigate the reasonableness of its investigative procedures.") (quotation and citation omitted); U.S. v. National Bank of South Dakota, 622 F.2d 365, 367 (8th Cir.1980) ("An evidentiary hearing is necessary only where substantial deficiencies in the summons proceedings are raised by the party challenging the summons.") (citation omitted). See also Alphin v. United States, 809 F.2d 236, 238 (4th Cir.1987), cert. denied, 480 U.S. 935, 107 S.Ct. 1578, 94 L.Ed.2d 768 (1987) ("In order to be entitled to a hearing, the party challenging the summons must allege specific facts in its responsive pleadings, supported by affidavits, from which the court can infer a possibility of some wrongful conduct by the IRS.") (citation omitted); United States v. Will, 671 F.2d 963, 968 (6th Cir.1982) ("[T]he use of discovery devices in summons enforcement proceedings should be limited to those cases where the taxpayer makes a preliminary and substantial demonstration of abuse.") (citation omitted).
CONCLUSION
Therefore, based on a de novo review of the file, record, and proceedings herein, IT IS HEREBY ORDERED that:
1. The court adopts the Report and Recommendation of United States Magistrate Judge John M. Mason dated February 10, 1998;
2. The objections of respondent U.S. Bancorp based upon the Right to Financial Privacy Act, 12 U.S.C. § 3401, et seq., Section 7609 of the Internal Revenue Code of 1986, the Taking Clause of the Fifth Amendment of the United States Constitution, Treasury Regulation § 1.166-2(d)(3), irrelevancy, and overbreadth, are overruled;
3. The objections of respondent U.S. Bancorp are sustained to the extent that the summonses seek the creation of new documents or materials not yet in existence;
4. Enforcement of said summonses is proper in all other respects;
5. In light of the stipulation of the parties filed May 26, 1998, the court need not address the issue of a protective order and the parties' arguments for and against the necessity of such an order;
6. Respondent's Motion for Discovery, Evidentiary Hearing, and Partial Sealing of the Record is denied without prejudice in its entirety, except that all those portions of the record which pertain to respondent's confidential security procedures for its customer credit card files may be sealed upon application to Magistrate Judge John M. Mason specifying the specific documents.
LET JUDGMENT BE ENTERED ACCORDINGLY.
NOTES
[1] Petitioner United States of America also objected to Magistrate Judge Mason's recommendation that enforcement of any Internal Revenue Service (IRS) summonses, to the extent that they seek production of credit card records, be denied absent the entry of a protective order conditioning the IRS's access to the records. By stipulation received by the Clerk of Court on May 26, 1998, the parties informed the court that they have resolved their differences concerning the security of credit card computer files summonsed by the IRS, and that respondent withdraws its motion for entry of a protective order. The court therefore need not address petitioner's objections to Magistrate Judge Mason's recommendation that enforcement of any summonses be denied absent the entry of a protective order.
[2] Excluding irrelevancy, respondent did not object to this last group of recommendations. The court therefore adopts them without discussion. The court discusses respondent's irrelevancy objection below.
[3] This is a computer tape containing over one million names of respondent's customers and their credit card numbers and credit card histories.
[4] Section 1205 of the Tax Reform Act of 1976 is codified at 26 U.S.C. § 7609.
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166 F.3d 352
U.S.v.Ruoss*NO. 97-5781
United States Court of Appeals,Eleventh Circuit.
December 18, 1998Rehearing Denied March 11, 1999.
1
Appeal From: S.D.Fla. , No.97-00575-CR-JAL
2
Affirmed.
*
Fed.R.App.P. 34(a); 11th Cir.R. 34-3
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21 Cal.Rptr.3d 226 (2004)
124 Cal.App.4th 198
The PEOPLE, Plaintiff and Appellant,
v.
Bridget Marie CALLAHAN, Defendant and Respondent.
No. B167543.
Court of Appeal, Second District, Division Six.
November 18, 2004.
As Modified on Denial of Rehearing December 16, 2004.
*228 Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert M. Snider, Michael A. Katz, Deputy Attorneys General, for Plaintiff and Appellant.
Kay Duffy, under appointment by the Court of Appeal, for Defendant and Respondent.
*227 PERREN, J.
Recently, the California Supreme Court held that "when a trial court, after examining all the relevant circumstances, grants a new trial in a criminal case on grounds that proven misconduct was prejudicial, that determination is not subject to independent or de novo review on appeal, but may be affirmed unless it constituted an abuse of discretion." (People v. Ault (2004) 33 Cal.4th 1250, 1255, 17 Cal.Rptr.3d 302, 95 P.3d 523 (Ault).) Although Ault concerned the grant of a new trial based on juror misconduct, we conclude that the principle of deference to orders granting a new trial applies with equal force to the granting of a new trial on the ground of ineffective assistance of counsel, as we previously held in People v. Andrade (2000) 79 Cal.App.4th 651, 659-662, 94 Cal.Rptr.2d 314 (Andrade). We further conclude that not only is the trial court's determination of prejudice in granting a new trial motion subject to the abuse of discretion standard of review, but also that the court's determination whether counsel's representation was deficient is subject to the same standard of review and not to independent review, as urged by the People. This result is consistent with the recognition that trial courts are uniquely qualified to evaluate the performance of trial counsel. Deference to the trial court's decision to grant a new trial is also necessary to vindicate the judge's duty to ensure that all trials are "`conducted with solicitude for the essential rights of the accused.' [Citations.]" (People v. Fosselman (1983) 33 Cal.3d 572, 582, 189 Cal.Rptr. 855, 659 P.2d 1144.)
After a jury convicted Bridget Marie Callahan of the first degree murder of Nichole Hendrix (Pen.Code, § 187, subd. (a)), the trial court granted her motion for a new trial on the ground that her trial attorney had provided constitutionally ineffective assistance of counsel. Specifically, the court found that trial counsel was ineffective for (1) failing to sufficiently impeach the testimony of the two witnesses who supported the prosecution's theory that Callahan drugged the victim; (2) failing to call Callahan to testify for that purpose; and (3) failing to offer expert testimony to support a duress defense. Because we conclude that the trial court's determinations of error and prejudice are both reviewed for an abuse of discretion, and that the court did not abuse its discretion in making those findings here, we affirm the court's order granting a new trial.
FACTS AND PROCEDURAL HISTORY
I.
The Trial and Conviction[1]
On the afternoon of October 15, 1998, 17-year-old Nichole Hendrix, her boyfriend *229 Russell Nething, Stacey Warnock, and Jasmine Guinn were arrested at the La Quinta Inn in Ventura. Warnock telephoned Callahan from jail and told her they had been arrested because Hendrix had "ratted" on them. Callahan subsequently asked David Ziesmer and Michael Bridgeford to assist her in obtaining money for Warnock's bail. Ziesmer and Bridgeford were both members of the Skin Head Dogs (SHD), a male White supremacist gang.
Shortly thereafter, Hendrix telephoned Callahan and asked if she would assist her in making Nething's bail. Hendrix, Ziesmer, and Bridgeford subsequently met Callahan at her house. After Hendrix arrived, she ingested two pills from a prescription bottle on Callahan's dresser. Callahan later told the police that Nichole took the pills to alleviate the withdrawal symptoms of other drugs she had taken. Callahan also told the police she had warned Hendrix that the pills were strong, and that she would probably pass out if she took them.
Nicole Echols testified that she, Ziesmer, Bridgeford, and Jennifer Pinger had driven together to Callahan's house that day, and that she and Pinger had visited her cousin across the street while Ziesmer and Bridgeford were in Callahan's house. When Ziesmer and Bridgeford returned, Bridgeford joined Echols and Pinger in the passenger compartment, while Ziesmer sat in the truck bed. According to Echols, Callahan approached the open window on the passenger side of the truck and said, "I gave her the pills; she should be out in a couple hours." On cross-examination, Echols admitted that Bridgeford had been her boyfriend and that she had visited him and Ziesmer in jail and prison on several occasions. By the time of trial, however, she had disassociated herself from both of them.
Pinger essentially corroborated Echols's version of the events, except she recalled that Callahan had been at the driver's side window when she made the comment about Hendrix. She also recalled that the passenger side window was up. She also testified that Ziesmer had slapped Callahan on the back of the head and told her, "Don't be talking like that in front of my sister." On cross-examination, Pinger admitted that she had written and visited Ziesmer in jail and in prison, and that Ziesmer referred to her as his "little sister." She also conceded that the district attorney had promised to secure her services under the witness protection program in exchange for her testimony.
In her pretrial interview, Callahan recounted that she and Hendrix proceeded to Nething's father's house, where they picked up stolen electronic equipment that they intended to sell for bail money. The two subsequently met up again with Ziesmer *230 and Bridgeford, and the four drove together in Nething's truck to the City Center Motel in Ventura. By the time they arrived at the motel, Hendrix was asleep. Callahan told Ziesmer and Bridgeford that Hendrix had agreed to sell the stolen equipment in order to obtain bail money for both Nething and Warnock. After Callahan rented a room in her own name, several individuals stopped by and purchased the equipment. While Ziesmer and Bridgeford were outside, Hendrix awoke and asked Callahan how she had gotten there. Callahan explained what had happened and told Hendrix to go back to sleep because "... I knew they weren't gonna give her the money for Russell's bail, they were gonna use it on Stacy's bail...." With Callahan's permission, Hendrix called her mother on the telephone.
While Hendrix was on the telephone, Ziesmer and Bridgeford returned to the room. Ziesmer "started flippin' out" because he feared that Hendrix was going to report them to the police for stealing the electronic equipment. Callahan and Bridgeford told Ziesmer he should allow Hendrix to leave if she wanted, but Ziesmer refused. Instead, he took Hendrix to the bathroom and ordered Bridgeford to accompany him. Shortly thereafter, Ziesmer and Bridgeford came out of the bathroom and Ziesmer said, "we have to kill her or she's gonna tell on us...."
Callahan and Bridgeford continued to argue with Ziesmer to let Hendrix leave. Ziesmer refused, and ordered Callahan to join Hendrix in the bathroom so that Hendrix "wouldn't leave" through the window. As Hendrix sat in the bathtub, Callahan hugged her and kissed her on the forehead. Callahan told Hendrix, "there was nothing I could do, you know there was no way I could stop what was gonna happen." When Callahan left the bathroom, she told Ziesmer she had been "talking shit" to Hendrix because "... I was afraid if I told him what I did tell her, that something was gonna happen to me too, that I wasn't cooperating."
Callahan told the police she "knew that there was no way in hell" that Ziesmer was going to let Hendrix go. Ziesmer and Bridgeford went into the bathroom for what "seemed liked forever," while Callahan rocked in a chair and stared at a crack in the window. Ziesmer eventually emerged from the bathroom with a knife in his hand, and Bridgeford came out with a flashlight. Callahan went into the bathroom and found Hendrix dead in the bathtub with a slashed throat. Ziesmer returned to the bathroom with duct tape, which he used to stop Hendrix's body from bleeding. He then wrapped Hendrix's body in bed sheets, and he and Bridgeford carried the body to Nething's truck.
Ziesmer told Callahan to drive because neither he nor Bridgeford knew how to use a stick shift. After Ziesmer asked Callahan where they should "ditch" the body, she drove to the mountains near Santa Barbara. Ziesmer did not want to leave the body there, so they went to an associate's house in Santa Barbara, where they obtained a tarp to cover the body and the remaining stolen equipment.
The following day, Callahan, Ziesmer and Bridgeford went to "J.R.'s" house in Oxnard, where they stayed for two days and used drugs. During that period, Ziesmer and Bridgeford sold some of the remaining stolen equipment. The three of them also went to the Home Depot and bought cement, a trashcan, and a chain saw. Ziesmer and Bridgeford placed Hendrix's body in the trash can with the cement, and left it outside J.R.'s house.
Callahan spent the following day or two in Ventura with Ziesmer and Bridgeford. During that period, Ziesmer and Bridgeford *231 were arrested for assault. A couple of days later, another SHD member, J.D. Bowman, called Callahan to convey Ziesmer's demand that the two of them go to J.R.'s house and get rid of the body. Callahan, Bowman, and another individual, Roy Ashlock, retrieved the trashcan containing Hendrix's body and dumped it in the mountains near the Pine Mountain sign in northern Ventura County. Hendrix's remains were discovered six months later.
Jessica Riessen and Jasmine Guinn both testified in Callahan's defense that SHD members were very controlling of the women who associated with them. Riessen also recounted an incident in which Ziesmer had grabbed Callahan by the throat. She also claimed that Ziesmer had put a "hit" on Callahan while he was in jail.
Dr. Katherine Emerick, a psychologist, testified that Callahan had a severe methamphetamine addiction at the time of the murder that would have prevented her from "think[ing] her way out of a wet paper bag." Emerick further opined that Callahan had suffered from dissociation, which had caused her to "more or less stick her head in the sand" in stressful situations.[2]
At the conclusion of the trial, the jury was instructed on the prosecution's proffered theories of felony murder (CALJIC Nos. 8.21 (mod.), 9.40), aiding and abetting the robbery, kidnapping, and murder (CALJIC Nos. 3.00, 3.01), and robbery-murder and kidnapping-murder special-circumstance allegations (CALJIC No. 8.81.17). Callahan's request for a duress instruction (CALJIC No. 4.40) was refused. During deliberations, the jury requested a readback of Pinger's and Echols's testimony. The jury subsequently convicted Callahan of first degree murder, and found true the special circumstances allegations (§ 190.2, subd. (a)(17)(A), (B)). The jury also found true the allegation that the murder was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).
After Callahan's trial attorney filed a motion for new trial, the trial court granted her motion to substitute new counsel for the purpose of filing another new trial motion. On March 4, 2003, substitute counsel filed a motion for new trial claiming that her trial attorney, Joseph O'Neill, provided ineffective assistance of counsel. The motion claimed, among other things, that counsel was ineffective for: (1) failing to sufficiently impeach Pinger's and Echols's testimony; (2) failing to call Callahan to testify on her own behalf; and (3) failing to offer expert testimony to support a duress defense to the underlying robbery and kidnapping.
II.
The Motion for New Trial
A.
District Attorney Investigator Mark Volpei
Volpei testified in support of Callahan's claim that her trial attorney provided ineffective assistance of counsel by failing to adequately cross-examine Pinger and Echols. According to Volpei, Pinger and Echols did not become involved in the case until he received a telephone call from Ziesmer's girlfriend, Kellie Rangel, near the conclusion of the grand jury proceedings. Volpei thought that Rangel's call "seemed a little orchestrated." Later, as he was interviewing Echols in *232 person, she received a telephone call from Pinger. Volpei overheard the conversation and thought it was "cryptic." The circumstances surrounding Pinger's and Echols's disclosures led Volpei to wonder whether he was being "duped." Volpei also noted Pinger had stated during a taped interview that Ziesmer had prompted her to come forward. Pinger also told Volpei she believed that if Ziesmer went "down" for Hendrix's murder, then Callahan should too. Volpei also testified he felt guilty about Callahan's conviction because he had told her "she could trust law enforcement and at the end she had handcuffs slapped on her.... I never had the chance to sit and tell her ... what just transpired was completely taken out of my hands."
B.
Bridget Callahan
Callahan testified on her own behalf at the hearing. According to Callahan, she wanted to testify at her trial, but O'Neill advised her against it. Had she testified, she would have disputed Pinger's and Echols's testimony because she had not met either of them until after Hendrix was slain. She also claimed that Warnock would have supported her claim that she did not meet Pinger until several days after the murder.
Callahan also testified extensively regarding her recollection of the events leading up to and following Hendrix's murder. That testimony was substantially more detailed than the statements from her police interview that were admitted at trial. For example, she testified that she, Ziesmer and Bridgeford had injected methamphetamine while they were at the City Center Motel, and that she weighed only 82 pounds as a result of her chronic drug use. She also testified that Ziesmer had physically prevented her and Hendrix from leaving the motel room, and that she believed she would be killed if she did not comply with Ziesmer's orders. She also claimed that she had gone into the bathroom to talk to Hendrix, and that, contrary to her police statement, she had merely assumed that Ziesmer wanted to prevent Hendrix from leaving. She also testified extensively regarding the subordinate role of women who are involved with SHD members, and the physical and psychological abuse they face. For example, she stated that SHD members treated their women as "property," and that they were expected to be passive and sexually available.
C.
Failure to Present Sufficient Evidence Supporting a Duress Defense
Emerick, another psychologist, and a criminal defense attorney all testified to their opinions that O'Neill failed to sufficiently explore psychological evidence indicating that Callahan had acted under duress to the extent she participated in the robbery and kidnapping of Hendrix.[3] Emerick also testified that O'Neill had prevented her from interviewing Callahan after an incident during the preliminary hearing when she became physically ill during graphic testimony concerning Hendrix's death, notwithstanding Emerick's representation that she believed it might lead to evidence that would support her defense.
D.
Joseph O'Neill
O'Neill was called by the prosecution. When asked what Callahan could have lost *233 by testifying, O'Neill responded that "any evidence that could be used against her would portray [her] in the worst, absolute worst possible light if we were to put her on the stand...." He also denied that he had prevented Emerick from thoroughly interviewing Callahan, or that he had otherwise failed to sufficiently explore a psychological defense establishing that Callahan acted under duress.
III.
The Trial Court's Ruling
After considering all of the testimony and declarations offered in support of and in opposition to Callahan's motion, the trial court granted her a new trial. The court concluded, "this is the rare case where advice not to testify falls below the Strickland[[4]] standard. [¶] Trial counsel should have known before the trial and certainly knew by the end of the prosecution case that the People's primary theory of liability was felony murder, and that the underlying felonies, robbery and kidnapping, would support both first degree murder and the special circumstances which elevate the penalty to life without parole. Counsel also knew at the time of the pretrial hearings that in California a duress defense will not excuse a murder, but does apply to underlying felonies in a felony murder scenario. He argued strenuously that Dr. Emerick's testimony was relevant to the latter issue. [¶] In other words, once the jury was convinced the defendant freely became a major participant in a robbery or kidnapping which culminated in the murder of Nichole Hendrix, she would almost certainly be spending the rest of her life in prison regardless of her mental state and level of participation in the killing itself. It follows that a competent defense required refuting the Pinger/Echols testimony that the defendant tacitly admitted drugging the victim involuntarily and conspiring with the codefendants to convert the property in the victim's possession to their own uses. The court recalls that the testimony of Pinger and Echols was the only testimony the jury requested be read back during deliberations. A competent defense required making every effort to portray any robbery and kidnapping as beginning inside the motel room, so that a duress jury instruction would be given, and counsel would have had a factual and legal basis to argue against application of the felony murder rule. [¶] As it was, the Pinger/Echols testimony went unrebutted, because it was unknown and not addressed during the pretrial statements of the defendant which were in evidence. The defense's own expert witness testified there was no duress at work before the arrival at the motel room. Consequently, there were no facts to support a duress instruction, and there was no way for counsel to convincingly argue against the felony murder theory, and no logical way for the jury to consider a duress defense. These difficulties were compounded by counsel's failure to impeach Pinger and Echols as fully as he could have. As evidenced by counsel's closing argument to the jury, he was left with very little of substance that he could say."
Regarding counsel's failure to call Callahan to testify, the court concluded, "the defense had no reasonable course other than to call the defendant, and ... it was clear the benefits of that course would clearly outweigh the liabilities. Further, the entirety of defendant's [pretrial] statement was not admitted, since the People only offered excerpts, and the defense relied on questioning of a police detective to bring out portions of defendant's statement *234 favorable to the defense." In concluding that Callahan suffered prejudice as a result of O'Neill's deficient performance, the court reasoned that "... as things stood when the case went to the jury, there was virtually no chance of any result other than first degree murder, absent a sympathy verdict. Had the defendant testified, counsel would have had facts and a jury instruction on which to base a logical argument for a verdict more favorable than first degree murder with special circumstances. The defendant's testimony, more vivid and focused than the piecemeal presentation of her 1999 statements, presumably backed up by one or more forms of expert testimony, would potentially have made an impression on the jury sufficient to change the outcome of the trial." In orally pronouncing its ruling, the court further stated, "It's been an extremely difficult decision for the court. I don't lightly overturn a jury verdict or put the victim's family through yet another trial in these proceedings. It may seem to some that the system has failed in this case up to this point, but I look at it in a different way. [¶] I think a retrial sooner rather than later is the lesser of two evils, and I don't wish to have someone sentenced to life without parole with a substantial cloud of doubt over the case. To me that would be a failure of the system and would result in years of further litigation and uncertainty for all concerned."
DISCUSSION
I.
Standard of Review
This is an appeal from an order granting a new trial on the ground of ineffective assistance of counsel. Although ineffective assistance of counsel is not among the grounds enumerated for ordering a new trial under Penal Code section 1181, motions alleging ineffective assistance are permitted pursuant to "the constitutional duty of trial courts to ensure that defendants be accorded due process of law." (People v. Fosselman, supra, 33 Cal.3d at p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144.) We review such orders for an abuse of discretion. (Andrade, supra, 79 Cal.App.4th at pp. 659-662, 94 Cal.Rptr.2d 314.) While the People correctly note we must independently review trial court determinations whether a defendant was prejudiced by juror misconduct in the context of a new trial motion that is denied (People v. Nesler (1997) 16 Cal.4th 561, 582, 66 Cal.Rptr.2d 454, 941 P.2d 87), our Supreme Court recently clarified that orders granting a new trial on a finding of prejudicial juror misconduct are reviewed for an abuse of discretion (Ault, supra, 33 Cal.4th at p. 1265, 17 Cal.Rptr.3d 302, 95 P.3d 523). Although the court in Ault did not expressly extend this rule to all orders granting a new trial, we discern no reason, and the People offer none, why the same standard of review should not apply to other findings of prejudice that are adjudicated in granting a new trial. (See In re Resendiz (2001) 25 Cal.4th 230, 248-249, 105 Cal.Rptr.2d 431, 19 P.3d 1171 [recognizing that the determination of error and prejudice on an ineffective assistance claim are predominantly legal mixed questions of law and fact].) As the court in Ault recognized, "the long-established rule of deference to trial court orders granting new trials recognizes that those courts are best positioned to determine whether errors or irregularities in proceedings before them were prejudicial. Moreover, when prejudicial errors or irregularities have occurred, the trial court's statutory power to order a new trial before a final judgment is entered promotes judicial efficiency by obviating the need for an appellate reversal or collateral attack." (Ault, supra, at p. 1271, 17 Cal.Rptr.3d 302, 95 P.3d 523.)
*235 Although the People effectively concede that the abuse of discretion standard of review applies to the trial court's finding that Callahan was prejudiced by her trial counsel's deficient performance, they find hope in the Supreme Court's declination to decide whether the same standard applies to the trial court's finding of error that involves a mixed law and fact issue. (Ault, supra, 33 Cal.4th at p. 1267, fn. 9, 17 Cal.Rptr.3d 302, 95 P.3d 523.) The court refrained from addressing that issue in Ault because the parties conceded that jury misconduct had occurred. Here, by contrast, the People contest the trial court's finding that trial counsel erred by, among other things, failing to call Callahan to testify. Buoyed by Ault's reservation of decision on this issue, the People urge us to apply an independent standard of review to the trial court's determination of error, while applying an abuse of discretion standard of review to its determination of prejudice.
Neither Nesler nor Ault compel such a result. On the contrary, part of the rationale underlying the court's decision in Ault applies with at least the same force where we are called upon to decide whether a trial judge erred in finding that any attorney's representation of a criminal defendant was deficient. As the court recognized in Ault, "trial courts have a strong incentive not to crowd their dockets and squander limited judicial resources by ordering unnecessarily that cases over which they presided, and which have already been taken to verdict, be retried. We are confident that motions for such relief are examined with considerable care." (Ault, supra, 33 Cal.4th at p. 1271, 17 Cal.Rptr.3d 302, 95 P.3d 523, fn. omitted.) In support of that statement, the court in Ault quoted Andrade in recognizing that "`[a] trial court serves as a "gatekeeper" on a motion for new trial. It opens the gate only rarely, a testament to the fact that the vast majority of trials resulting in conviction are fairly conducted. In these cases, motions for new trial are routinely made, routinely denied, and are routinely affirmed on appeal.'" (Id., at p. 1271, fn. 14, 17 Cal.Rptr.3d 302, 95 P.3d 523, quoting Andrade, supra, 79 Cal.App.4th at p. 661, 94 Cal.Rptr.2d 314.)
Ault's holding that the standard of review for an order granting a new trial is premised on a truth which goes to the heart of appellate review: "A trial court's finding of prejudice is based, to a significant extent, on `"first-hand observations made in open court,"' which that court itself is best positioned to interpret. [Citations.]" (Ault, supra, 33 Cal.4th at p. 1267, 17 Cal.Rptr.3d 302, 95 P.3d 523.) Moreover, "`the trial court is [also] in the best position to make an initial determination, and intelligently evaluate whether counsel's acts or omissions were those of a reasonably competent attorney.' [Citation.]" (Andrade, supra, 79 Cal.App.4th at p. 660, 94 Cal.Rptr.2d 314.) That truism is particularly apt in this case. Here, the trial judge, having observed Callahan testify at the hearing on the motion for new trial, detailed why he concluded that her attorney had no legitimate tactical reason for failing to call her to testify. The court also had the opportunity to observe the testimony of Pinger and Echols, and concluded that counsel erred in failing to sufficiently impeach them. No matter how carefully we examine the record, no matter how thoughtful our reflections, we cannot evaluate the credibility of any witness to the same degree and with the same insight as the trial judge. In this respect, the trial court's finding of deficient performance was not qualitatively different from its finding of prejudice. In determining whether counsel's performance was deficient, we must accept all factual and credibility findings that are supported by *236 substantial evidence. (People v. Mayfield (1997) 14 Cal.4th 668, 796, 60 Cal.Rptr.2d 1, 928 P.2d 485.) Although the trial court's determination of deficient performance is a mixed question of fact and law (see In re Resendiz, supra, 25 Cal.4th at pp. 248-249, 105 Cal.Rptr.2d 431, 19 P.3d 1171), we defer to that determination where, as here, it is "predominantly factual or credibility based. [Citations.]" (Ault, supra, at p. 1265, fn. 8, 17 Cal.Rptr.3d 302, 95 P.3d 523.)
The cases recognizing the trial court's unique ability to evaluate an attorney's performance are legion. (See, e.g., People v. Fosselman, supra, 33 Cal.3d at p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144 ["It is undeniable that trial judges are particularly well suited to observe courtroom performance and to rule on the adequacy of counsel in criminal cases tried before them"]; Andrade, supra, 79 Cal.App.4th at p. 660, 94 Cal.Rptr.2d 314 ["`the trial court is in the best position to make an initial determination, and intelligently evaluate whether counsel's acts or omissions were those of a reasonably competent attorney'"]; People v. Wallin (1981) 124 Cal.App.3d 479, 483, 177 Cal.Rptr. 303 ["The trial judge is the one best situated to determine the competency of defendant's trial counsel. Where, as here, defendant is represented by different counsel at the motion for a new trial and the issue is called to the trial court's attention, the trial judge's decision is especially entitled to great weight and we defer to his fact finding power"]; People v. Aubrey (1999) 70 Cal.App.4th 1088, 1104, 83 Cal.Rptr.2d 209, disapproved on other grounds in People v. Rubalcava (2000) 23 Cal.4th 322, 334, fn. 8, 96 Cal.Rptr.2d 735, 1 P.3d 52.) Were we to second-guess the trial court's findings in this regard, we would emasculate the constitutional protections conferred in the exercise of the trial court's duty to ensure that all criminal trials are "`conducted with solicitude for the essential rights of the accused.' [Citations.]" (Fosselman, supra, at p. 582, 189 Cal.Rptr. 855, 659 P.2d 1144.)
Accordingly, we reject an interpretation of Nesler or Ault that would require us to deviate from the rule that the trial court's decision to grant a new trial on the ground of ineffective assistance of counsel must be affirmed on appeal absent a clear abuse of discretion. (Andrade, supra, 79 Cal.App.4th at pp. 659-662, 94 Cal.Rptr.2d 314.) A party seeking to overturn a court's decision in this regard "has the burden to demonstrate that the trial court's decision was `irrational or arbitrary,' or that it was not "`grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue." [Citation.]' [Citations.]" (Id., at p. 659, 94 Cal.Rptr.2d 314.) This burden is a heavy one: "`Where the motion is made on a proper ... ground, and the record contains some showing in support of it, the judge's discretion in granting is almost invariably upheld; i.e., the appellate court gives the order all of the presumptions in favor of any appealable judgment.'" (Ibid., quoting 6 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Appeal, § 3084, p. 3806.)[5] As we will explain, the People fail to meet that burden here.
II.
Ineffective Assistance of Counsel
"A new trial may be granted where the trial court finds that the defendant *237 received ineffective assistance of counsel. [Citations.] To prevail on this ground, a defendant must show both that his counsel's performance was deficient when measured against the standard of a reasonably competent attorney and that counsel's deficient performance resulted in prejudice to defendant in the sense that it `so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.]" (Andrade, supra, 79 Cal.App.4th at pp. 659-660, 94 Cal.Rptr.2d 314.)
Because we are reviewing trial counsel's conduct in hindsight, we hesitate to "second-guess" his tactical decisions. But, "[w]e are equally, if not more reluctant, to second-guess the trial court's discretionary ruling that defense counsel's tactical decisions made before it resulted in an unfair trial, i.e., a miscarriage of justice." (Andrade, supra, 79 Cal.App.4th at p. 660, 94 Cal.Rptr.2d 314.) This is because, as we have already noted, "`the trial court is in the best position to make an initial determination, and intelligently evaluate whether counsel's acts or omissions were those of a reasonably competent attorney.' [Citation.]" (Ibid.)
"The primary purpose of the requirement that counsel render effective assistance is, `to ensure a fair trial....' [Citation.] Thus, `[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' [Citations.]" (Andrade, supra, 79 Cal.App.4th at p. 660, 94 Cal.Rptr.2d 314.)
The People's attack on the trial court's order is essentially three fold. First, they contend the court erred as a matter of law in concluding that Callahan's attorney could have succeeded in offering admissible evidence that she was suffering from battered women's syndrome at the time of the murder, and that such evidence would have been admissible to prove she was acting under duress to the extent she participated in the kidnapping and robbery of the victim.[6] Second, they claim that Callahan's pretrial "confession" to robbery was sufficient to support her conviction even in the absence of Pinger and Echols's testimony, and that in any event trial counsel's cross-examination of those witnesses was sufficient. Third, the People contend the court abused its discretion in finding that trial counsel's advice to Callahan to refrain from testifying was not a reasonable tactical decision. None of these contentions is persuasive.
Notwithstanding the People's lengthy discussion in its briefs regarding the application of battered women's syndrome to this case, the trial court's order is not premised on trial counsel's purported failure to develop and offer evidence indicating that Callahan was a battered woman. Although the syndrome was discussed by the experts who testified at the hearing on the new trial motion, in granting a new trial the court merely posited that if Callahan had testified regarding her fear of being killed if she did not comply with Ziesmer's orders, counsel may have succeeded in bolstering that testimony with an expert who could have opined that Callahan's fear was reasonable under the circumstances. Had this evidence been presented, *238 Callahan would have been entitled to a duress instruction on the underlying felonies. "If one is not guilty of the underlying felony due to duress, one cannot be guilty of felony murder based on that felony." (See People v. Anderson, supra, 28 Cal.4th at p. 784, 122 Cal.Rptr.2d 587, 50 P.3d 368.)
Regarding the People's claim that Callahan "confessed" to robbery, only a strained interpretation of the record would support such a conclusion. Callahan merely told the police in her pretrial interview that she was "sure" the robbery "[was her] fault." As she explained in her testimony at the new trial hearing, she only meant that she felt guilty for allowing Ziesmer and Bridgeford to become involved in the effort to sell the stolen equipment. Even without Callahan's explanation, no reasonable juror would have construed her remark as a confession to robbery.
We also reject the People's attack on the finding that trial counsel failed to sufficiently impeach Pinger and Echols. Their testimony was the only evidence offered to prove that Callahan had intentionally drugged the victim. Although counsel succeeded in establishing that Pinger and Echols were involved with Ziesmer and Bridgeford, the jury never heard about the suspicious circumstances under which these witnesses came forward. Moreover, Callahan not only disputed Pinger's and Echols's version of the events, but also denied she had met either of them prior to the murder. As the trial court noted, Pinger's and Echols's testimony was the only evidence the jury requested be read back. Because their testimony was so damning and was pivotal to the felony-murder theories upon which Callahan was convicted, the trial court did not abuse its discretion in faulting counsel for failing to sufficiently impeach that testimony, or in concluding that counsel's failure to do so undermined confidence in the verdict.
Finally, the People's contention that counsel was not ineffective for failing to call Callahan to testify is premised in large part on a factual assertion that is not supported by the record. According to the People, Callahan's testimony would not have made a difference in the outcome of the trial because she "bragged" during her pretrial statement that she had committed perjury in another case. A review of the portion of the record the People cite in support of this allegation reflects that Callahan merely said she had moved out of California after Assistant District Attorney Ron Bamieh had threatened to charge her with committing perjury in the grand jury proceedings of another SHD member.
The remainder of the People's attack on Callahan's testimony ignores the proper standard of review in this case. As we have already noted, the trial court found that Callahan's testimony at the new trial motion hearing was "more vivid and focused than the piecemeal presentation" of her pretrial statement to the police. The court also had the opportunity to view Callahan's demeanor on the stand, and concluded that her testimony would have placed her in a better light than what was conveyed on the tapes that were played to the jury. Although the People correctly note that the court did not expressly find that Callahan "[made] a good appearance on the stand" as the trial court did in Andrade, supra, 79 Cal.App.4th at page 658, 94 Cal.Rptr.2d 314, such a conclusion is implicit in the court's ruling.
An appeal from an order granting a new trial in a criminal case is warranted only under limited circumstances, for example, when the trial court's ruling is premised on an erroneous interpretation of a statutory scheme. (Andrade, supra, 79 Cal.App.4th at p. 655, fn. 3, 94 Cal.Rptr.2d 314.) Here, the trial judge determined that justice had not been served based on his observations *239 throughout the proceedings. In granting a new trial, the court stated, "I don't wish to have someone sentenced to life without parole with a substantial cloud of doubt over the case. To me that would be a failure of the system and would result in years of further litigation and uncertainty for all concerned." Based on the record before us, it cannot be said that the trial court abused its discretion in ordering a new trial under the circumstances.
CONCLUSION
Callahan's trial attorney prevented her from telling the jury why she acted as she did. As the trial court noted, without that evidence she effectively had no defense to the charged crimes. Absent a credible explanation of her conduct, an explanation that only she could offer, Callahan's concededly peripheral involvement in Hendrix's death allowed her to be drawn into a felony-murder conviction by the current of the felony-murder rule. The trial judge concluded that this missing link was sufficient to undermine confidence in the verdict, such that a new trial was necessary to prevent a miscarriage of justice. As the court in Ault noted, "the consequence of a deferential affirmance is only that the party who opposed the new trial motion will have to retry the matter under correct rules of law." (Ault, supra, 33 Cal.4th at p. 1267, fn. 9, 17 Cal.Rptr.3d 302, 95 P.3d 523.) Our deference to the trial court's order merely ensures that the jury deciding Callahan's fate will hear the entirety of the matter, as it should have in the first trial.
The order granting Callahan's motion for a new trial is affirmed.
We concur: GILBERT, P.J., and COFFEE, J.
NOTES
[1] In late 1999, former Senior Deputy District Attorney Ron Bamieh, District Attorney Investigator Mark Volpei, and Officer Bill Gentry of the Ventura County Sheriff's Department extensively interviewed Callahan regarding her involvement in this case. Selective portions of the taped interview, which accounted for the majority of evidence offered against Callahan at trial, were played to the jury over her objection. Prior to trial, Callahan unsuccessfully moved to suppress the interview on the ground that the district attorney made representations prior to the interview had led her to believe she would be immune from prosecution. As a result of that dispute, the Attorney General took over prosecution of the case. The propriety of the procedures employed by the district attorney, the Attorney General's decision to prosecute Callahan, and the trial court's decision to allow her statements to be used against her, are not before us in this appeal.
[2] Emerick described dissociation as "the capacity of someone to ignore what's going on around them and ... take themselves to another place."
[3] As the trial court correctly ruled prior to trial, duress is a viable defense to the underlying felony of a felony murder. (People v. Anderson (2002) 28 Cal.4th 767, 784, 122 Cal.Rptr.2d 587, 50 P.3d 368.)
[4] Strickland v. Washington (1984) 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
[5] See also Andrade, supra, 79 Cal.App.4th at page 654, footnote 1, 94 Cal.Rptr.2d 314, and cases cited therein.
[6] Evidence Code section 1107 provides in pertinent part: "(a) In a criminal action, expert testimony is admissible by either the prosecution or the defense regarding battered women's syndrome, including the nature and effect of physical, emotional, or mental abuse on the beliefs, perceptions, or behavior of victims of domestic violence, except when offered against a criminal defendant to prove the occurrence of the act or acts of abuse which form the basis of the criminal charge." (See also People v. Brown (2004) 33 Cal.4th 892, 904-908, 16 Cal.Rptr.3d 447, 94 P.3d 574.)
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517 P.2d 182 (1973)
James L. MILLER, Appellant,
v.
The STATE of Nevada, Respondent.
No. 7067.
Supreme Court of Nevada.
December 20, 1973.
Raymond E. Sutton, Las Vegas, for appellant.
Robert List, Atty. Gen., Carson City, Roy A. Woofter, Dist. Atty., and Charles L. Garner, Chief Deputy, Dist. Atty., Las Vegas, for respondent.
OPINION
THOMPSON, Chief Justice:
This appeal is from a final judgment of the district court denying the motion of James L. Miller to withdraw his plea of guilty to a charge of the sale of heroin. His motion to withdraw such plea was made after the imposition of sentence to correct a manifest injustice.[1] It is his contention that he was under the influence of heroin when he pleaded guilty. After an evidentiary hearing the district court found that his plea was entered voluntarily, knowingly and intelligently even though he was to some degree under the influence of heroin. He was represented by counsel when he pleaded guilty.
A conviction of an accused while legally incompetent violates due process and must be set aside. Krause v. Fogliani, 82 Nev. 459, 421 P.2d 949 (1966). It does not inevitably follow, however, that a guilty plea by one under the influence of narcotics is per se invalid. The influence of narcotics must be such as to affect his competency to stand trial or his capacity to understand the nature and consequences of his plea. Grennett v. United States, 131 U.S.App.D.C. 202, 403 F.2d 928 (1968); Holmes v. United States, 323 F.2d 430 (7th Cir.1963); United States ex rel. Fitzgerald v. LaVallee, 461 F.2d 601 (2nd Cir.1972). It is his obligation to persuade the trial court by a preponderance of the evidence *183 that he was so influenced. Grennett v. United States, supra. The record in this case does not allow us to rule that the court below abused its discretion in ruling that Miller failed to sustain his burden of proof. Cf. State v. District Court, 85 Nev. 381, 455 P.2d 923 (1969). Although it is undisputed that he was, to some degree, under the influence of heroin when he pleaded guilty, it also is apparent that the court could find that he fully understood the nature and consequences of his plea.
Affirmed.
MOWBRAY, GUNDERSON, BATJER and ZENOFF, JJ., concur.
NOTES
[1] NRS 176.165. "... a motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."
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16 So.3d 781 (2009)
Sharee SELF, as successor trustee of the revocable trust of Georgia B. Slaughter
v.
Bruce SLAUGHTER, individually and as personal representative of the estate of Georgia B. Slaughter, deceased, and Barbara Slaughter Jones.
1061041.
Supreme Court of Alabama.
December 19, 2008.
Rehearing Denied February 13, 2009.
*782 I. David Cherniak and Rick A. La Trace of Johnstone, Adams, Bailey, Gordon & Harris, L.L.C., Mobile, for appellant.
Joseph D. Steadman of Dodson & Steadman, P.C., Mobile, for appellees.
BOLIN, Justice.
Sharee Self, as the successor trustee of the revocable trust of Georgia B. Slaughter, appeals from the trial court's summary judgment in favor of Bruce Slaughter and Barbara Slaughter Jones, which required Self, in her capacity as trustee, to transfer to Georgia B. Slaughter's estate all assets held by the revocable trust.
Facts and Procedural History
Wright Slaughter and Georgia B. Slaughter (collectively referred to as the "Slaughters") were married for 32 years. There were no children born of their marriage but each had children born of prior marriages. Wright's four children included Bruce Slaughter, Rebecca Slaughter Norwood, Barbara Slaughter Jones, and Wright Slaughter III ("Buddy"). Georgia's two children included Mike Self and Don Self.
In 1998, the Slaughters had assets totaling approximately $1.2 million. The assets were apportioned as follows: Wright had assets totaling $664,464, Georgia had assets totaling $238,194, and they had joint assets totaling $347,229. Additionally, Georgia owned a policy of life insurance that insured Wright's life for $415,986 and that named Georgia as the beneficiary.
In 1998, the Slaughters sought estate-planning advice from attorney Harwell E. Coale, Jr. Coale recommended as part of the Slaughters' estate plan the creation of two separate and equal estates in order to minimize estate taxes by the use of a credit-bypass trust. To this end various assets were transferred between Wright and Georgia so that each individual estate was approximately equal in value to the other. On June 1, 1998, Wright and Georgia executed identical wills that provided for a family-support trust upon the death of the first to die, with the surviving *783 spouse being the lifetime beneficiary of the trust. Upon the death of the surviving spouse, the remaining assets of the family-support trust would be distributed to the Slaughters' children as follows: 22% each to Wright's children Bruce Slaughter, Rebecca Slaughter Norwood, and Barbara Slaughter Jones, and 17% each to Georgia's children Don Self and Mike Self.[1] The wills provided that each spouse would be the other's personal representative and that successor co-personal representatives would be Mike Self and Bruce Slaughter.
On June 1, 1998, Wright also executed an irrevocable trust into which the life insurance policy with death benefits totaling $415,986 was transferred. Georgia was made the life beneficiary of the trust with the remainder being distributed to the Slaughters' children in the same proportions as the remainder of the family-support trust assets was to be distributed under the wills.
At the time the Slaughters executed their wills, Georgia also executed the following agreement:
"I swear before God, the Court, and my husband that I will NOT change my Last Will and Testament executed on June 1, 1998, after my husband, Wright B. Slaughter, becomes physically or mentally ill or dies; and if I do change my said Will for any reason whatsoever, or if I marry again and change my said Will, that will be ample reason to break or disregard any future Will that I make and Harwell Coale will represent this Will in Court."
Wright executed a substantially identical agreement. Coale testified that the Slaughters presented these agreements to him in handwritten form and that he had the agreements typed and notarized. He stated that the Slaughters wanted to execute the agreements to ensure that the surviving spouse could not change his or her will after the other died.
In January 2002, the Slaughters executed identical codicils to their 1998 wills. The Slaughters reduced Rebecca Slaughter Norwood's share from 22% to 17% and increased Bruce Slaughter's and Barbara Slaughter Jones's shares to 24.5%. Georgia's two children, Mike Self and Don Self, did not receive an increased share.
In June 2002, the Slaughters again executed identical codicils to the 1998 wills. The purpose of the codicils was to assure that Georgia would receive monthly income from the family-support trust and to completely remove from the wills Wright's daughter, Rebecca Slaughter Norwood. Pursuant to the codicils executed in June 2002, Rebecca's 17% share was reallocated to Bruce Slaughter and Barbara Slaughter Jones so that their shares under the 1998 wills increased to 33% each. Georgia's two children, Mike and Don, did not receive an increased share. Subsequent to the execution of the 1998 wills and the subsequent codicils, Wright began day-trading on the stock market and lost approximately $203,000 between 2000 to 2005.
Wright died in November 2005. Wright's will was admitted to probate, and his estate passed consistent with the terms of the will to fund the family-support trust for Georgia. Shortly after Wright's death, Georgia discussed with Coale the possibility of changing her will because she felt that the way the assets were to be distributed under the will was unfair to her two children and to Wright's son Buddy. Coale advised Georgia that it would be inappropriate for him to assist her in changing her will because of the agreement that she and Wright had executed in which they *784 each agreed not to change or revoke their 1998 wills subsequent to the other's death. Coale referred Georgia to attorney Greg Watts.
In November 2005, Georgia, Mike Self, and Mike's wife Sharee Self met with Watts to discuss Georgia's will. Georgia informed Watts that the disposition of her estate under her will was not fair to her children and Buddy and that she wanted to change it. Watts recommended to Georgia, Mike, and Sharee that Georgia create a revocable trust that would own all of her assets and would provide for disposition of those assets to her children and Buddy upon her death. Georgia executed the Georgia B. Slaughter Revocable Trust on March 3, 2006. Pursuant to the terms of the revocable trust, Georgia's children Mike and Don were to receive her residence, household effects, furniture, furnishings, silverware, chinaware, art, jewelry, automobiles, and other personal property in equal shares. The balance of the trust was to be distributed to Don, Mike, and Buddy,[2] each receiving 33 1/3%. All Georgia's assets were transferred into the trust during March and April 2006. The effect of establishing the revocable trust and transferring Georgia's assets into it was that there would be no assets to be distributed to the two of Wright's children who were beneficiaries of Georgia's 1998 will Bruce and Barbara. Georgia died on April 13, 2006, shortly after executing the revocable trust. Her will was admitted to probate in July 2006.
On August 11, 2006, Bruce Slaughter, individually and as the personal representative of Georgia's estate, and Barbara Slaughter Jones, individually (collectively referred to hereinafter as "the personal representative"),[3] sued Sharee Self ("the trustee") as the successor trustee[4] of the Georgia B. Slaughter Revocable Trust, seeking a judgment declaring that the transfer of assets into the trust was a nullity and that the assets purportedly transferred into the trust are the property of Georgia's estate. The complaint also sought an attorney fee.
On October 23, 2006, the trustee answered the complaint and asserted a counterclaim, seeking a judgment declaring 1) that the revocable trust is valid and enforceable because, she argued, the execution of the codicils in 2002 served as a revocation of any agreement that may have existed between Wright and Georgia not to change their wills and 2) that the dissipation by Wright of the assets of his estate constitutes an anticipatory breach of the agreement or a failure of consideration for the agreement not to change the wills.
On January 12, 2007, the personal representative moved the trial court for a summary judgment. On March 1, 2007, the trustee amended her answer to add failure of consideration as an affirmative defense. The trustee also on that same day filed her motion in opposition to the personal representative's motion for a summary judgment.
Following a hearing, the trial court, on March 30, 2007, entered a summary judgment in favor of the personal representative, finding that the transfer of Georgia's assets from her estate to the revocable *785 trust breached the agreement executed by her and Wright that the latter of them to die would not change his or her will after the other's death. The trial court ordered the trustee to transfer to Georgia's estate all assets held in the revocable trust; ordered that all attorney fees and expenses be paid out of Mike Self's and Don Self's shares of Georgia's estate; and denied the trustee's counterclaim.
Standard of Review
This Court has stated the applicable standard of review as follows:
"`Summary judgment is appropriate only when "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Rule 56(c)(3), Ala. R. Civ. P., Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala.1996). A court considering a motion for summary judgment will view the record in the light most favorable to the nonmoving party, Hurst v. Alabama Power Co., 675 So.2d 397 (Ala.1996), Fuqua v. Ingersoll-Rand Co., 591 So.2d 486 (Ala.1991); will accord the nonmoving party all reasonable favorable inferences from the evidence, Fuqua, supra, Aldridge v. Valley Steel Constr., Inc., 603 So.2d 981 (Ala.1992); and will resolve all reasonable doubts against the moving party, Hurst, supra, Ex parte Brislin, 719 So.2d 185 (Ala. 1998).
"`An appellate court reviewing a ruling on a motion for summary judgment will, de novo, apply these same standards applicable in the trial court. Fuqua, supra, Brislin, supra. Likewise, the appellate court will consider only that factual material available of record to the trial court for its consideration in deciding the motion. Dynasty Corp. v. Alpha Resins Corp., 577 So.2d 1278 (Ala.1991), Boland v. Fort Rucker Nat'l Bank, 599 So.2d 595 (Ala.1992), Rowe v. Isbell, 599 So.2d 35 (Ala.1992)."'
Ex parte Turner, 840 So.2d 132, 135 (Ala. 2002) (quoting Ex parte Rizk, 791 So.2d 911, 912-13 (Ala.2000)).
Discussion
Contracts not to revoke a will or devise are enforceable under Alabama law. See § 43-8-250, Ala.Code 1975. In Humphries v. Whiteley, 565 So.2d 96, 97 (Ala. 1990), a husband and wife made reciprocal wills that contained the following provisions:
"`THIRD ITEM: At my death I hereby give, devise and bequeath all the rest and residue of my estate, both real and personal, wheresoever situate, unto my spouse in absolute fee simple.
"`. . . .
"`FIFTH ITEM: My spouse and I are executing our wills at or about the same time and such wills are intended to be and should be construed [as] contractual and reciprocal wills. Neither wills [sic] shall be subject to revocation by it's [sic] maker without the consent of the other party.'"
The husband and wife each had children from previous marriages. The wife's will also contained the following provision:
"`[I]n the event my said spouse shall predecease me, then in such event I give, devise and bequeath all my estate, both real and personal, wheresoever situate, of which I may die seized or possessed, or to which I may be or become entitled to have any interest or over which I may have any power of appointment, unto my children, Gwinnette Meads Bates and Travis Humphries, and my husband's children, Morris W. Whiteley, Bobby Whiteley, David Whiteley and Lanny Whiteley, in equal shares, share and share alike, in absolute fee simple, per stirpes and not per capita.'"
*786 Humphries, 565 So.2d at 97. The husband's will contained a similar provision to leave all of his property to all of their children equally in the event that the wife died first.
The husband predeceased the wife, and, under the terms of the husband's will, she took title to all of their property. Subsequently, the wife began making gifts to her children only. By the time the wife died, the estate had been significantly reduced. The wife's children filed a declaratory-judgment action to determine how the wife's estate was to be handled. The husband's children filed a counterclaim, seeking to set aside the gifts the wife had made to her children. The trial court entered a judgment in favor of the husband's children and set aside the gifts. Id.
In affirming the trial court's decision, this Court quoted the following from the trial court's findings of fact and conclusions of law:
"`"`The weight of authority is that a contract to devise does not prevent the making of gifts during the lifetime of the promisor; but such gifts must be reasonable, absolute, bona fide, not testamentary in effect, and not made for the purpose of defeating the contract to devise, nor having such effect.' Skinner v. Rasche, 165 Ky. 108, [112,] 176 S.W. 942, 944 [(1915)]."'"
Humphries, 565 So.2d at 100 (quoting in turn Wagar v. Marshburn, 241 Ala. 73, 78-79, 1 So.2d 303, 307 (1941)).
In this case, it is clear from the record that the creation of the revocable trust and the transfer of Georgia's assets into the trust were for the clear purpose of defeating the contract Wright and Georgia had entered into whereby each agreed not to change his or her 1998 will upon the other's death. Georgia informed Watts in November 2005 that the disposition of her estate under her will was not fair to her children and Buddy and that she wanted to change it. Watts testified in his deposition as follows:
"Q. [By Slaughter and Jones's counsel:] All right. Looking back now at the November 28 memo, in the final paragraph on the first page you have the line: `Georgia Slaughter now believes that the disposition under her will does not treat her children fairly and desires to change her will.' Did she explain to you her thought process as to why she felt it was not fair to her children?
"A. That if the first important thing was that when Rebecca Norwood and Buddy were not provided for, the share for her children should have been higher. She was also concerned at that time that her house would be included in this estate plan, and we had a specific discussion about her jewelry, which she regarded to be hers.
"Q. The next sentence in that same paragraph you have the line: `Unfortunately, Harwell Coale also prepared a contract signed by each of Georgia and Wright Slaughter by which each of them agreed not to change or revoke their 1998 wills.'
"A. Yes.
"Q. Why was it unfortunate?
"A. Because it was a problem to comply with what she wanted to do.
"Q. It stood in the way, so to speak
"A. Yes.
"Q. of her desire to change her will?
"A. Yes.
". . . .
"Q. ... [C]an you tell me, Greg, what the subject matter of the paragraph, redacted paragraph, is?
*787 "A. Different means of accomplishing what she wanted to do without violating that contract.
"Q. That's fair enough. The next line that we have in the memo that's not redacted is: `After an extended discussion, we determined that the cleanest approach would be for me to prepare an inter vivos revocable trust that would own all of [Georgia's] assets and that would provide for disposition of her assets at her death.'
". . . .
"Q. Why was using the inter vivos trust the cleanest approach?
"A. It addressed her concerns across the board as opposed to other alternatives that would involve other alternatives, like payable-on-death designations or life estates in houses. To provide for what she wanted to do was to provide for her property to go to Mike, Don, and set up a trust for [Buddy]. ..."
Watts also testified that he informed Georgia, Sharee, and Mike that agreements not to revoke or change a will were valid and enforceable agreements and that a challenge to the creation of the revocable trust and the transfer of Georgia's assets into the trust was likely.
The trustee testified in her deposition as follows:
"Q. If the Revocable Trust is upheld, there won't be any assets to pass under [Georgia's] 1998 will, right?
"A. That's what I understand.
"Q. And that was the intent, wasn't it, in drafting a Revocable Trust, to have it, in effect, replace [Georgia's] will?
"A. Yes, I would think so."
Here, Georgia and Wright executed a valid and enforceable agreement by which the surviving spouse would not change or revoke his or her will following the other's death. That agreement cannot be circumvented by the creation of the revocable trust and the transfer of Georgia's assets into the trust when it is clear that the sole purpose for creating the revocable trust was to defeat the agreement not to change or revoke the 1998 wills executed by Wright and Georgia.
The trustee argues, however, that the depletion by Wright of his separate estate by day-trading on the stock market constitutes a failure of consideration that renders unenforceable the agreement not to change the wills. We disagree. "Consideration must be present when the contract is made." Fant v. Champion Aviation, Inc., 689 So.2d 32, 37 (Ala.1997). "The requirement of consideration means that a gratuitous promise is not enforceable." Id. The failure of consideration is "`the neglect, refusal and failure of one of the contracting parties to do, perform, or furnish, after making and entering into the contract, the consideration in substance and in fact agreed on.'" Lemaster v. Dutton, 694 So.2d 1360, 1366 (Ala.Civ.App.1996) (quoting 17 C.J.S. Contracts § 129 (1963)). Additionally, a failure of consideration is "`predicated on the happening of events which materially change the rights of the parties, which events were not within their contemplation at the time of the execution of the contract.'" Lemaster, 694 So.2d at 1366 (quoting Contracts § 129).
Wright supplied consideration for Georgia's promise not to change her will when he transferred to Georgia a significant amount of assets titled solely in his name in order to create two separate and equal estates. Before the transfer of assets to Georgia, Wright had titled solely in his name $664,464 of the couple's approximately $1.2 million in total assets (including jointly held assets and Georgia's solely owned assets of $238,194). Thus, a transfer of assets by Wright to Georgia in order *788 to create two separate and equal estates resulted in a significant reduction in the value of Wright's individual estate. Additionally, Wright supplied consideration to Georgia in exchange for her promise not to change or revoke her will when upon his death the balance of his estate passed into the family-support trust for Georgia's benefit.
The trustee contends that the $203,000 diminution in Wright's estate due to losses from day-trading materially altered the amount each child would receive under the wills and that that diminution could not have been contemplated by Georgia at the time she executed her will, the agreement not to change the will, and the codicils. On the contrary, the diminution of the parties' assets was reasonably expected due to several considerations. A diminution of assets would be reasonably contemplated by Wright and Georgia because the couple had been retired for approximately seven years after the estate plan was put in place. Further, because the estate plan called for the creation of the family-support trust upon the death of the first spouse, it was easily within Wright's and Georgia's contemplation that the parties' assets would be reduced because they would have been used for the support of the surviving spouse under the terms of the trust until the death of the surviving spouse. However, this aspect of diminution of the assets is ignored by the trustee in arguing failure of consideration. Rather, the trustee focuses solely on the investment losses suffered by Wright. However, it was certainly within contemplation that Wright, a retiree of significant wealth, would seek investment opportunities on the stock market and that both gains and losses could result from those investments. The assets could have easily increased had Wright been more successful at trading on the stock market. Accordingly, we conclude that there was no failure of the consideration given by Wright in exchange for Georgia's executing the agreement not to change or revoke her will.
The trustee next argues that Georgia agreed only not to change her will and that the inter vivos transfer of her assets into the revocable trust does not constitute a breach of the agreement not to change her will. Here, the parties did indeed use the word change in reaching the agreement at issue, and by creating the revocable trust and transferring the balance of her estate into the revocable trust Georgia did not technically work a change to her will. However, transferring the balance of her estate into the revocable trust had the effect of revoking her will, because upon her death there was nothing left in her estate to be distributed in accordance with the terms of her will. As discussed above, contracts not to revoke a will or devise are enforceable under Alabama law and inter vivos transfers whether to individuals or trusts cannot be used to circumvent such contracts. Indeed, "`such gifts must be reasonable, absolute, bona fide, not testamentary in effect, and not made for the purpose of defeating the contract to devise, nor having such effect.' Skinner v. Rasche, 165 Ky. 108, [112,] 176 S.W. 942, 944 [(1915)]." Humphries, 565 So.2d at 100 (emphasis added). There is a fundamental principle of law that "one cannot do indirectly what one cannot do directly." Blue Cross & Blue Shield of Alabama, Inc. v. Butler, 630 So.2d 413, 416 (Ala.1993). See also Baldwin County v. Jenkins, 494 So.2d 584, 589 (Ala.1986); Sanders v. Cabaniss, 43 Ala. 173 (1869). Accordingly, we conclude that the transfer of the assets of Georgia's estate into the revocable trust, which was created for the purpose of circumventing the terms of her will, constitutes a breach of the agreement not to change or revoke her will.
*789 The trustee next argues that the trial court erred in ordering that all attorney fees and expenses be paid out of Mike Self's and Don Self's shares of Georgia's estate. The personal representative argued in its motion for a summary judgment that the transfer of assets from Georgia's estate to the revocable trust should be set aside and that all attorney fees should be awarded out of Don Self's and Mike Self's shares of Georgia's estate. The trustee argued in response only that genuine issues of material facts existed relating to the enforcement of the agreement not to change the wills and offered nothing in response to the personal representative's argument in support of attorney fees and expenses. Additionally, following the entry of the summary judgment by the trial court, the trustee offered no opposition by way of a postjudgment motion to the trial court's award of attorney fees and expenses. This Court has stated:
"`As a general rule, an appellate court will not reverse a summary judgment on a ground not presented in the trial court.
"`"[T]he appellate court can consider an argument against the validity of a summary judgment only to the extent that the record on appeal contains material from the trial court record presenting that argument to the trial court before or at the time of submission of the motion for summary judgment."
"`Ex parte Ryals, 773 So.2d 1011, 1013 (Ala.2000) (citing Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992)). Put another way, on an appeal from a summary judgment, this Court cannot hold the trial court in error on the basis of arguments made for the first time on appeal. See Barnett v. Funding Plus of America, Inc., 740 So.2d 1069 (Ala.1999); West Town Plaza Assocs., Ltd. v. Wal-Mart Stores, Inc., 619 So.2d 1290 (Ala. 1993).'"
Cain v. Howorth, 877 So.2d 566, 578 (Ala. 2003) (quoting Ex parte Elba Gen. Hosp. & Nursing Home, Inc., 828 So.2d 308, 311-12 (Ala.2001)). Accordingly, because the trustee failed to submit to the trial court her arguments in opposition to the award of attorney fees and expenses, we will not address those arguments, which are presented for the first time on appeal.
AFFIRMED.
COBB, C.J., and LYONS, STUART, and MURDOCK, JJ., concur.
NOTES
[1] No provision was made in these two wills for Buddy Slaughter because Buddy was disabled, on government assistance, and incapable of handling assets.
[2] Buddy's share was not to be distributed to him but was to be held in trust by the trustee of the revocable trust for his benefit during his lifetime.
[3] Mike Self is a co-personal representative of Georgia's estate and agreed that he would not participate in, but would not oppose the filing of, the declaratory-judgment action by the personal representative.
[4] Georgia was the trustee of her revocable trust until her death; Sharee was then named as the successor trustee.
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315 N.E.2d 707 (1974)
Calvin ROGERS, Jr., and Warren Lee Reed, Appellants,
v.
STATE of Indiana, Appellee.
No. 1072S143.
Supreme Court of Indiana.
September 4, 1974.
*708 A. Martin Katz, Gary, for appellants.
Theodore L. Sendak, Atty. Gen. of Indiana, A. Frank Gleaves, III, Deputy Atty. Gen., Indianapolis, for appellee.
*709 ARTERBURN, Chief Justice.
This case is an appeal from a conviction by a jury for a killing in the attempt to perpetrate a robbery. IC 1971, XX-XX-X-X, Burns' Ind. Stat. Ann. § 10-3401 (1973 Supp.). Appellants raise five (5) issues on appeal. First, Appellants question the sufficiency of the evidence. When the sufficiency of the evidence is called into question, the reviewing court will not weigh the evidence nor resolve questions concerning the credibility of witnesses. Instead, the Court will look to that evidence most favorable to the State and the reasonable inferences to be drawn therefrom, and the verdict will be affirmed if, from that point of view, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Blackburn v. State (1973), Ind., 291 N.E.2d 686, and cases cited therein. This principle of appellate review applies to cases, like this one, which involve in some degree or another circumstantial evidence. McAfee v. State (1973), Ind., 291 N.E.2d 554; Stice v. State (1950), 228 Ind. 144, 89 N.E.2d 915; Petillo v. State (1950), 228 Ind. 97, 89 N.E.2d 623. Without this principle the integrity of a jury as the trier of fact would dissolve.
There was testimony at trial which disclosed that at approximately 12:30 a.m. on an August night in 1971, a motorist in Gary heard gunshots and saw a man falling and two other men running to a car. The man seen falling was a security guard at a nearby liquor store. He had been shot, and he subsequently died from the gunshot wounds. The motorist described the car to police who located the car later that morning. A .38 caliber pistol was found on the seat of that car. The bullet which killed the guard had been too damaged for positive identification. However, the ballistic tests did show that the bullet could have been fired from the gun found in the car. Additional testimony revealed that at the time of the shooting five (5) men were out riding around in the car seen by the motorist leaving the scene of the shooting. Appellants were two of these men. The other three occupants of the car were acquaintances of Appellants. The owner and driver of the car, one James Person, testified that earlier in the evening he had given his pistol to Appellant Reed. Eddie Hodge, the fourth occupant of the car, testified that at the scene of the shooting Rogers and Reed had left the car, that the remaining occupants of the car heard gunshots, that he, Hodge, saw Rogers and Reed running toward the car, that Rogers and Reed got back into the car, and the car and its occupants left the area. The fifth occupant of the car, Tavorn, testified that during the time the alleged incident occurred he had passed out from drinking but that he woke up as the car door was closing and then the car drove away. Tavorn further testified that at this time he asked the other occupants what had happened. Tavorn testified that Appellant Reed responded by saying, in Tavorn's words, "they had a shootout." In attempting to clarify, the prosecutor asked Tavorn specifically: "What, if anything, did the Defendant Reed say during the period of time after you woke up and prior to reaching the Yellow Dragon?" The witness Tavorn said: "He just said it was a shootout."
About six months after the shooting, Appellant Reed was arrested in Akron, Ohio. Reed told Akron police officers he was wanted in Gary for murder, and that he was sorry the security guard was dead. Gary policemen went to Akron to pick up Reed. A police officer from Gary testified that on the return trip Reed said to him that "he (Reed) got out of the car to rob" and "a shooting started."
Appellants were charged with killing a "human being ... while perpetrating or attempting to perpetrate a robbery." All participants in a robbery or attempted robbery which results in a killing *710 by one of the robbers are deemed equally guilty of the murder, regardless of which participant actually killed the victim. 15 I.L.E. Homicide § 18 (1959), and cases cited at F.N. 51. Under these principles, we think the jury could have without manifest irrationality inferred that Rogers and Reed left the car in concert, attempted to rob the security guard and in the course of this attempted robbery one of them shot and killed the guard. Consequently, the verdict of guilty as to both Appellants is supported by substantial evidence of probative value.
The second issue raised by the Appellants is that the trial judge committed prejudicial error in allowing the State to question the witness Person about a prior statement Person had given to the police, and that the trial judge further erred to the prejudice of the Appellants in not giving, during the hearing of evidence at Appellants' request, an instruction limiting the effect of that prior statement to the credibility of the witness Person. However, we think that Appellants have misconstrued the nature of what transpired at trial. This State's witness, James Person, showed himself to be a hostile witness. A hostile witness may be asked leading questions and may be cross-examined. It appears that the witness Person had made a formal statement which led the prosecutor to believe that he would be an agreeable witness. However, at trial his hostile or adverse attitude soon became apparent as he frequently responded to questions by saying he did not know or could not remember. Thereupon, the State read questions and answers from the prior extra-judicial statement (which was not admitted into evidence) the witness had signed, and asked the witness if he had answered in the manner indicated by the statement. The witness responded to these leading questions in various ways. Sometimes the witness responded, "yes:" sometimes, "no, I didn't:" and once, "I don't remember giving that answer:" and sometimes with an equivocation, such as, "I didn't say it specifically that way, ... ." It was not an abuse of discretion to permit this kind of questioning of a hostile witness, particularly when, as in this case, he was contradicting himself and making conflicting statements.
The result of this cross-examination was that Person admitted that while riding around in the car with Appellants someone suggested that they rob somebody, that Rogers and Reed got out of the car when they "spotted this man," that Rogers and Reed took Person's gun with them, and that after that Rogers and Reed came back to the car. In other words, Person admitted that he had made a statement that was similar to the testimony of Hodge and Tavorn. Thus, Person's written statement added no new testimony, and we can find nothing prejudicial resulting from the cross-examination using this statement.
Before this questioning got under way the motion at issue was made, by Appellants' attorney, as the following colloquy reveals:
"By Mr. Work
He has a right to impeach him, with the right to go through, but I'm asking of the Court that the Court, before it allows him to go any further with the impeachment, that the Court at this point instructs the Jury that the sole purpose of these questions is to show prior inconsistent statements and that they cannot be the answers to these questions. They cannot be considered by the Jury for any purpose other than to impeach and does nothing. They cannot establish facts on which a verdict could be reached.
By Mr. Kautz:
The Jury was here at your... .
By Mr. Work:
I'm making a motion to instruct the Jury... .
*711 By Mr. Nicholls:
The State's position is that instructions by the Court would be proper at the close of the case and would be covered as tendered instructions by either Defendant or the State not at the present time.
By Mr. Work:
It should be instructed at this time, the Jury should be instructed at this time, as far as my advising of the Jury, you cannot impeach the witness outside of the presence of the Jury. I'll stipulate that you can impeach him right now, without the jury.
By Mr. Nicholls:
We were trying to get over the preliminaries and get to the gist of the matter.
By Mr. Senak:
Why does he do it?
BY THE COURT:
Now, gentlemen, the Reporter cannot hear and take this down if everybody's talking at one time!
By Mr. Work:
You have your motion and three (3) admonishments.
BY THE COURT:
That is denied."
Strictly speaking, what was occurring was not a formal impeachment of the witness since it appears that a proper foundation was not laid for the introduction of the allegedly inconsistent prior statement. The witness was being cross-examined as to this prior statement. The questions were directed to obtaining from the witness himself a change or correction of his testimony and such did happen in some instances. The trial judge and the attorneys did not use the term "impeachment" in its strict and formal sense. No impeaching witness was introduced to testify. In short, impeaching evidence was not introduced; therefore, an instruction to limit the effect of such evidence was not necessary. McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d 671; Davis v. Hardy (1991), 76 Ind. 272; Frick v. Bickel (1944), 115 Ind. App. 114, 54 N.E.2d 436.
"It is, indeed, no more than fair that any witness, friendly or hostile, should have his memory aided by the mention of time, place, and circumstances; for this mention might often prevent mistakes and keep a witness from departing from the truth. To be sure, it would be subversive of principle to permit counsel, under the guise of refreshing the memory of a witness, to suggest the desired answers to a willing or friendly witness; but where the witness is a hostile one, as was Elmer Conway, there is no fear of evil result from suggestive questions.
A hostile witness may, as the authorities all agree, be treated in a very different manner from a friendly one. The method of examination is almost entirely a matter within the discretion of the trial court, and the appellate court will not interfere unless there was a clear abuse of discretion, leading to manifest injustice ... ." (our emphasis)
Conway v. State (1888), 118 Ind. 482, 21 N.E. 285. Normally a trial is interrupted for limiting or cautionary instructions only when improper evidence has been brought to the attention of the jury. That is not what happened here. What happened here was that Appellant asked for an immediate instruction as to the character of the evidence. A trial is not conducted in that fashion. Instructions as to the weight and effect of the evidence are given, as are other kinds of instructions, to the jury at the close of the argument. We find no error in the action of the trial court.
The third issue which Appellants raise is that the admissions to the police officers by Reed were made without a *712 valid waiver of Fifth Amendment rights. Appellant Reed made the admissions on two different occasions. The first was to Akron police officers. The basis of Appellants' contention as to this incident is that Reed was questioned intermittently over a seven-hour period in a small, windowless room. In response, the State points out that Reed called the police officers back after they had left him in order to make his confession. On appeal we do not ordinarily disturb a trial court's ruling as to the admissibility of a confession based on conflicting evidence. It was not an abuse of discretion for the trial court to conclude that under the totality of the circumstances the State met its burden of showing that the defendant knowingly and intelligently volunteered the admissions. Cooper v. State (1974) Ind., 309 N.E.2d 807; Bauer v. State (1973), Ind. App., 300 N.E.2d 364; Lewis v. State (1972), Ind., 288 N.E.2d 138. Similarly, the admissions to the Gary police officer are not vitiated by the fact that the Miranda rights had been read to Reed by the Gary police two days prior to this automobile trip during which the statements occurred, not in response to interrogation, but during casual conversation. The two-day hiatus between the giving of the rights and the occurrence of the admissions does not, standing alone, show that Appellant's will was overbourne. The State carried its burden of proof.
Appellants' next allegation of error is that the trial court erred in admitting into evidence, over objection of Appellant Reed, a social security card seized from Reed in Akron, Ohio. The card was in the name of another person. Assumption of a false name is a form of flight and is therefore relevant as indicative of a consciousness of guilt. Meredith v. State (1966), 247 Ind. 233, 214 N.E.2d 385; State v. Torphy (1940), 217 Ind. 383, 28 N.E.2d 70. The car in which Appellant Reed was riding had been stopped for improper license plate display, and the police officers had then noticed in plain view that the car had been hot wired. Millar v. State (1973), Ind., 295 N.E.2d 814; Alcorn v. State (1970), 255 Ind. 491, 265 N.E.2d 413; Bonds v. State (1973), Ind. App., 303 N.E.2d 686. The police then asked for identification, and Appellant responded with the false social security card. Upon viewing the hot wire their request for identification was reasonable investigative activity. Williams v. State (1974), Ind., 307 N.E.2d 457.
Appellants' final contention is that it was error to allow an Akron police officer to testify after he had violated the Court's order for a separation of witnesses. What had occurred was that during a weekend recess the two Akron police officers had travelled together and conversed about the case. Appellants have not shown nor asserted how they were harmed by this conversation. Therefore, they have not shown an abuse of the trial court's discretionary power to allow a witness who has violated a separation order to testify. McCoy v. State (1960), 241 Ind. 104, 170 N.E.2d 43 and cases cited therein; Marine v. State (1973), Ind. App., 301 N.E.2d 778.
For all of the foregoing reasons, the judgment of the trial court is affirmed.
GIVAN and HUNTER, JJ., concur.
PRENTICE, J., concurs as to appellant Reed.
DeBRULER, J., dissents with an opinion in which PRENTICE, J., joins as to appellant Rogers.
DeBRULER, Justice (dissenting).
When, in a criminal or civil trial a witness is asked whether or not he made a certain statement, and answers in the negative or that he does not remember making that statement, no evidence of the facts asserted in the statement has been heard. And when, in a criminal trial, a prosecution witness merely affirms making the statement *713 without also affirming the truth of the facts asserted in the statement, no evidence of the facts asserted in the statement has been heard, which can serve to carry the State's burden to prove a prima facie case. Crucial evidence against the appellant Rogers, which identified him as one of the two men who committed the crime, placed him in the back seat of the getaway car with the appellant Reed, and described him as leaving the car with Reed to rob a man on the street and returning to the car with Reed on the run after several shots were heard fired. This crucial evidence against Rogers came before the jury in the form of a prior statement, given to the police by the State's witness Person long before the trial, and which statement was read verbatim by the prosecutor before the jury in a long series of questions which took the form of: Were you asked this question ... . and did you give this answer.... The witness Person affirmed giving some of the answers which contained assertions of fact incriminating Rogers, and denied giving others, while, on the witness stand he affirmed the truth of none of these factual assertions pertaining to Rogers contained in the prior questions and answers. Since the witness Person did not affirm the truth of the former statement nor the truth of the facts contained in it, his testimony admitting and denying his former statement is not evidence proving those facts. Such testimony is simply incompetent and unfit for the purpose of proving the facts asserted in the statements.
The questions of the prosecutor described above were clearly posed in the impeachment mode. The record shows that the prosecutor demanded and received only "yes" and "no" answers to his leading questions. After asking this series of leading questions and receiving yes and no answers, the prosecutor promptly ended his examination. Thus the leading questions did not refresh the recollection of the witness nor did it cause him to correct any of his testimony. The purpose of permitting leading questions to be put to the forgetful or recalcitrant witness is to refresh his recollection or to cause him to correct his testimony. Neville v. United States, 272 F.2d 414 (5th Cir., 1959); Hickory v. United States (1894), 151 U.S. 303, 14 S.Ct. 334, 38 L.Ed. 170; Conway v. State (1888), 118 Ind. 482, 21 N.E. 285. The leading questions here were not permitted to serve this purpose which legitimates their use and the discretion of the trial court in permitting them. This case is an example of how the misuse of leading questions can subvert the fairness of a trial.
I would hold in this case, that when a series of leading questions of this nature are asked, and they do not in fact refresh recollection or cause a correction of testimony, the opposing party in the suit is entitled to an immediate instruction to the jury that such questions are not to be considered substantive evidence. In the case on appeal counsel moved for such an immediate instruction to the jury, but the trial court denied the motion. Because of this erroneous ruling, I vote to grant appellant Rogers a new trial. This remedy is not new or unusual in the law. It is the same technique utilized in cases where prior inconsistent statements are admitted for the purpose of impeachment. Glover v. State (1970), 253 Ind. 536, 255 N.E.2d 657; McAdams v. State (1948), 226 Ind. 403, 81 N.E.2d 671; Parker v. State (1925), 196 Ind. 534, 149 N.E. 59; Bridges v. Wixon (1945), 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103. And this same remedy was deemed proper where an illiterate witness' testimony before a coroner's jury was read to him by the prosecution for purposes of refreshing recollection. Harvey v. State (1872), 40 Ind. 516. And this procedure has been incorporated in Rule 106 of the Proposed Rules of Evidence for the United States District Courts and Magistrates, 1971 Revised Draft. That rule provides:
"When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another *714 purpose is admitted, the judge, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly."
I would also grant the appellant Reed a new trial because the incriminating statement which he gave to Officer Bravos of the Gary Police while enroute on January 6, from Ohio to Gary, Indiana, was erroneously admitted in evidence. Officer Bravos testified that he went to Ohio to transport the appellant Reed back to Gary, and he arrived in Ohio on January 4, and sought to question Reed who was in the custody of the Ohio police. Under questioning by the prosecuting attorney Officer Bravos testified as follows:
"Q. Now, you said you had a conversation with the Defendant on that day, namely, January 4th, 1972, at 6 o'clock, p.m., is that right?
A. At that time, yes.
* * * * * *
Q. What questions did you first ask him?
A. I asked him if he had been advised of his rights and he stated yes and that he knew his rights.
Q. After that, you didn't advise him of his rights?
A. Then I advised him of his rights and I pulled out my book and I advised him of his rights again.
* * * * * *
Q. And then what did he say to you, Officer?
A. He stated that he didn't want to talk about the case, that he wanted to get back to Gary and get it over with.
Q. Enroute to the Gary, Lake County area, did you again have a conversation with him in the car?
A. Yes, we were talking in the car.
Q. Did he mention anything about this case to you?
A. Yes, he stated that he got out of the car to rob a man and there was a shootout, a shootout started, and he threw the gun as he turned around and he still kept on running.
* * * * * *
Q. So it was two (2) days later, after, driving to Gary without advising the Defendant of his rights, as to casual conversations with him in the car, that he made this statement to you?
A. I did not advise him of his rights on January 6th, I felt on January 4th was sufficient."
Thereafter defense counsel moved to strike the conversation because of a failure to comply with Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Once the appellant told Officer Bravos that he did not want to talk about the case, the officer was under a constitutional duty to respect that decision and not to converse with the appellant on that subject. In Miranda it is stated:
"Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise." (Emphasis added.) 384 U.S. at 473-474, 86 S.Ct. at 1627.
Under these circumstances, I do not believe that the fact that appellant Reed gave this incriminating statement establishes that appellant voluntarily and intelligently waived his right to remain silent. Dickerson v. State (1972), 257 Ind. 562, 276 N.E.2d 845; Nacoff v. State (1971), 256 Ind. 97, 267 N.E.2d 165; Mims v. State (1970), 255 Ind. 37, 262 N.E.2d 638; Hall v. State (1970), 255 Ind. 606, 266 N.E.2d 16. The *715 erroneous admission of the second incriminating statement was also not harmless beyond a reasonable doubt. Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Kotteakos v. United States (1946), 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557; Vasquez v. State (1970), 254 Ind. 472, 260 N.E.2d 779; Goodloe v. State (1969), 253 Ind. 270, 252 N.E.2d 788; Greer v. State (1969), 252 Ind. 20, 245 N.E.2d 158. In the first statement given to Ohio authorities appellant stated that it was his companion who shot the victim of the robbery. It was not until the second statement that he admitted being armed during the robbery. This added fact obviously had substantial influence upon the acceptance by the jury of the State's factual theory which was that the appellant Reed actually shot the victim. As such the erroneous admission of the second statement cannot be considered harmless constitutional error.
PRENTICE, J., concurs as to appellant Rogers.
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IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. SAY
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DOH SAY, APPELLANT.
Filed April 14, 2020. No. A-19-030.
Appeal from the District Court for Lancaster County: JOHN A. COLBORN, Judge. Affirmed.
Joe Nigro, Lancaster County Public Defender, and Kristi J. Egger for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.
PIRTLE, RIEDMANN, and WELCH, Judges.
RIEDMANN, Judge.
INTRODUCTION
Doh Say appeals from his conviction and sentence in the district court for Lancaster County
for driving under the influence (DUI), greater than .15, third offense. Say argues that the court
erred in overruling his motion to suppress the results of his chemical breath test, that there was
insufficient evidence to convict him of DUI, and that he received an excessive sentence. We affirm.
BACKGROUND
On May 27, 2017, Say was stopped by a Lincoln police officer for making an improper
turn. After stopping Say, the officer noticed a strong odor of alcohol emanating from his vehicle,
and Say was slurring his words. The officer conducted a preliminary breath test, which revealed
Say had a blood alcohol content (BAC) of .331. He was transferred to the county jail, where he
was subjected to a chemical breath test, which was taken on May 28, and revealed he had 0.264
-1-
grams of alcohol per 210 liters of breath. He was subsequently arrested for aggravated third offense
DUI.
Say was initially charged by complaint in the county court for Lancaster County in May
2017 with one count of DUI greater than 0.15 with two prior convictions, in violation of Neb. Rev.
Stat. § 60,6,196 (Reissue 2010) and Neb. Rev. Stat. § 60,6,197.03(6) (Cum. Supp. 2018), a Class
IIIA felony. He was bound over to the district court, where he was charged by information with
the same offense.
In June 2018, Say filed a motion to suppress the results of his chemical breath test. In his
motion, Say alleged that the breath test was not performed according to the methods approved by
the Nebraska Department of Health and Human Services (DHHS). Specifically, Say asserted that
the wet bath simulator solutions which were used to test the DataMaster, the machine used to test
his BAC, were accompanied by faulty certificates of analysis. The initial certificates of analysis
were signed by Alma Palmer, who stated that she tested and supplied the solutions provided.
However, amended certificates of analysis were sent to the Lincoln Police in early May 2018,
which stated Colby Hale, and not Palmer, was the individual who tested the solutions. Thus, Say
contended that the wet bath simulator solutions used to test the DataMaster were not accompanied
by valid certificates of analysis, as required under 177 Neb. Admin. Code, ch. 1, § 008.04A (2016).
A hearing was held on Say’s motion to suppress in August 2018. At the hearing, the State
adduced testimony from Kayla Puhrmann, a maintenance officer for the Lincoln Police
Department who held a permit to operate the DataMaster used to test Say’s BAC. Puhrmann
testified that the DataMaster was checked on May 25, 2017, and June 21, 2017, and was working
correctly on both occasions. As a result of those tests, Puhrmann opined that the DataMaster was
working properly when it was used to test Say’s BAC. She testified that certificates of analysis are
sent from the company which provides the wet bath simulator solutions. Puhrmann indicated that
the amended certificates of analysis were sent after the solutions were received by the police
department. The only difference between the original certificates of analysis and the amended
certificates of analysis was that the original certificates were signed by Palmer, and the amended
certificates were signed by Hale.
Puhrmann opined that the fact that a different tester signed the amended certificates of
analysis did not change her opinion that the DataMaster was working properly when it was used
to test Say’s BAC. She indicated that the same simulator solutions were used across all four
DataMaster machines operated by the Lincoln Police Department, and all tested within the
acceptable range of the target value of the solution. Additionally, the DataMaster was tested against
its own internal settings, and again tested within the appropriate range of error. Puhrmann admitted
on cross-examination that part of the maintenance of the DataMaster machines was relying on the
wet bath simulator solutions to test the internal settings of the machines.
Following the hearing, the district court overruled Say’s motion to suppress. The court
determined that the defect in the initial certificates of analysis was a technique, as defined by 177
Neb. Admin. Code, ch. 1, § 001.21 (2016), and not a method; therefore, the defect affected the
weight and credibility of the test, and not its admissibility. The court found that because there was
sufficient evidence to demonstrate that the DataMaster was working properly when it tested Say’s
BAC the results were admissible.
-2-
A bench trial was held in October 2018. At trial, the State adduced testimony from Grant
Powell, a Lincoln Police officer in charge of maintaining the DataMaster machines. Powell
described how the DataMaster tested a subject’s breath. He explained that the DataMaster
undergoes regularly scheduled testing, which is required under Title 177 of the Nebraska
Administrative Code, and described the testing and when it was performed. After completing the
second round of tests of the Datamasters, Powell was made aware that certificates of analysis
which were initially sent with the solutions were not signed by the person who tested the solution.
Powell received amended certificates of analysis in early May 2018. He confirmed that the only
difference between the certificates of analysis was the name of the tester and stated that difference
did not alter his opinion that the DataMaster was working properly when it was used to test Say’s
BAC on May 28, 2017.
Following the testimony, the court found Say guilty of operating a motor vehicle while
under the influence with a BAC of 0.15 of one gram or more by weight of alcohol per 210 liters
on his breath. The court received evidence indicating that Say had two prior DUI convictions, and
found that the present offense was his third DUI offense. The district court sentenced Say to 365
days in jail, 18 months of postrelease supervision, and suspended his license for 15 years. Say
timely appealed.
ASSIGNMENTS OF ERROR
Say assigns, restated, that the district court erred in (1) overruling his motion to suppress,
(2) determining there was sufficient evidence to find him guilty of DUI, and (3) imposing an
excessive sentence.
STANDARD OF REVIEW
A trial court’s ruling on a motion to suppress evidence, apart from determinations of
reasonable suspicion to conduct investigatory stops and probable cause to perform warrantless
searches, will be upheld unless its findings of fact are clearly erroneous. State v. Manning, 263
Neb. 61, 638 N.W.2d 231 (2002).
The meaning and interpretation of statutes and regulations are questions of law which an
appellate court resolves independently of the lower court’s conclusion. State v. McIntyre, 290 Neb.
1021, 863 N.W.2d 471 (2015).
In reviewing a sufficiency of the evidence claim, the relevant question for an appellate
court is whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017).
An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018).
-3-
ANALYSIS
Motion to Suppress.
Say argues that the district court erred in overruling his motion to suppress his chemical
breath test results. He specifically argues that the State failed to establish the foundational
requirement that the chemical breath test was conducted under the methods required by DHHS.
The four foundational elements which the State must establish for the admissibility of a
breath test in a DUI prosecution are as follows: (1) that the testing device was working properly at
the time of the testing, (2) that the person administering the test was qualified and held a valid
permit, (3) that the test was properly conducted under the methods stated by the DHHS, and (4)
that all other statutes were satisfied. State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017). In his
motion to suppress, and on appeal, Say contends that the third foundational element was not met.
Title 177 of the Nebraska Administrative Code is the governing DHHS regulation on this
issue. Say asserts that the State did not comply with 177 Neb. Admin. Code, ch. 1, § 008.04 (2016).
Section 008.04A states that the wet bath simulator solution or dry gas standard used to calibrate
the DataMaster must be accompanied by a certificate of analysis, which must include, among other
things, the name of the tester of the solution, and a signature of the responsible individual for the
solution. Say argues that because, at the time of his breath test, the certificates of analysis
erroneously identified the individual who tested the simulator solutions, the breath test results are
inadmissible. We disagree.
The Nebraska Supreme Court recently addressed whether a defendant was entitled to a new
trial on the basis of newly discovered evidence which involved similarly defective certificates of
analysis. See State v. Krannawitter, 305 Neb. 66, 939 N.W.2d 335 (2020). In Krannawitter, the
appellant was convicted of aggravated DUI, third offense. Id. Following her trial, it was discovered
that although the original certificates of analysis which accompanied the wet bath simulator
solution used in the DataMaster to test her BAC were signed by Palmer, amended certificates
received after trial verified Hale as the tester. Id. Appellant filed a motion for a new trial based on
the defective certificates of analysis, which was denied by the district court. Id. The district court
found that the amended certificates of analysis were not newly discovered evidence and that even
if they were, the defect in the original certificates would not have rendered the breath test
inadmissible. Id. Krannawitter appealed, and the Supreme Court affirmed. Id.
In reaching its decision, the Krannawitter court determined that the district court erred in
ruling that the amended certificates were not newly discovered evidence; however, it affirmed the
denial of the motion for new trial because had the certificates been offered at trial, the result of
that trial would not have been substantially different. Id. In reaching its decision, it addressed the
same issue that is presently before this court: did the defect in the original certificates render the
chemical breath test results inadmissible for lack of foundation? It concluded that it did not,
stating:
In addition to contributing to the evidence showing that the original certificates were
incorrect, the amended certificates were independent foundation evidence supporting the
admission of those results. And in addition to even these certificates, there was other
-4-
evidence presented at the hearing on the amended motion for new trial that supported the
admissibility of the results.
Id. at 77, 939 N.W.2d at 344.
Although the procedural posture of the case before us differs from that in Krannawitter,
the question is the same. Accordingly, we follow the Supreme Court’s analysis. In the present case,
the amended certificates of analysis were received into evidence at both the hearing on the motion
to suppress and at trial. They provided independent foundational evidence which supported the
admission of Say’s chemical breath test results. Additionally, there was other evidence supporting
the admissibility of Say’s breath test consisting of Powell’s testimony that the DataMaster was
tested on May 25, 2017, and again on June 21, and determined to be working properly and that all
four DataMaster machines operated by the Lincoln Police Department tested within the acceptable
margin of error. Therefore, the deficiency in the original certificates of analysis did not render
Say’s chemical breath test results inadmissible and the court did not err in refusing to suppress
them.
Sufficiency of Evidence.
Say argues that the district court erred in finding that there was sufficient evidence to find
him guilty of DUI. We disagree.
Say’s argument is premised on his previous assertion that the results of his chemical breath
test should have been suppressed. As stated above, however, the district court properly admitted
the results into evidence. It revealed that he had a BAC of 0.264. Say was convicted under
§ 60-6,196 and § 60-6,197.03(6) which makes it unlawful for a person to operate a motor vehicle
when the person has a concentration of .08 of 1 gram or more by weight of alcohol per 210 liters
of his or her breath. Because Say’s breath test revealed he had a BAC of 0.264, there was sufficient
evidence to convict him of DUI, greater than 0.15. The evidence further supports that Say had two
prior DUI convictions. Thus, there is sufficient evidence demonstrating that the present offense
was Say’s third DUI conviction.
Excessive Sentence.
Finally, Say argues that the district court abused its discretion and imposed an excessive
sentence. We disagree.
An abuse of discretion in imposing a sentence occurs when a sentencing court’s reasons or
rulings are clearly untenable and unfairly deprive the litigant of a substantial right and a just result.
State v. Artis, 296 Neb. 172, 893 N.W.2d 421 (2017). When imposing a sentence, a sentencing
judge should customarily consider the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past criminal record or record of law-abiding
conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime. State v. Mora, 298 Neb. 185, 903
N.W.2d 244 (2017). However, the sentencing court is not limited to any mathematically applied
set of factors. Id. The appropriateness of a sentence is necessarily a subjective judgment and
-5-
includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. Id.
Say was convicted of DUI, more than 0.15, with two prior convictions, in violation of
§ 60-6,196 and § 60-197.03(6), a Class IIIA felony. Class IIIA felonies carry a maximum sentence
of 3 years’ imprisonment and 18 months’ postrelease supervision, there is not a minimum sentence;
however, if a term of imprisonment is imposed, 9 months’ postrelease supervision must also be
imposed. Neb. Rev. Stat. § 28-105 (Reissue 2016). Therefore, Say’s sentence of 365 days’
imprisonment and 18 months’ postrelease supervision was within the statutory guidelines for his
offense. Nevertheless, Say asserts that his sentence was excessive because the district court did
not consider his hardworking nature, social background, or the length of time between his first two
DUIs and his present offense.
The record indicates that the district court did not abuse its discretion in sentencing Say.
Prior to announcing its sentence, the court noted that it considered the information contained in
the presentence investigation report (PSR), as well as the circumstances of his offense, his
character and condition, and his prior offenses. Say’s PSR indicates that he has worked at the same
job since 2010, and that he leaves 2 hours early for his job to accommodate for travel. Thus, the
court was aware of Say’s employment and his dedication to his job.
Further, Say’s PSR details his social background. According to his PSR, Say is married
and has two children, aged 13 and 6. Moreover, the PSR details his relationship with his friends,
whom Say states do not use alcohol or drugs. The PSR also notes that he spent 20 years in a refugee
camp prior to moving to the United States. This information reflects Say’s social background, and
therefore was properly considered by the court prior to imposing its sentence.
Finally, the PSR details Say’s criminal history. He received his first DUI offense in 2010,
although he was convicted in 2011. Following this conviction, he initially received probation;
however, his probation was revoked and he spent 7 days in jail. His second DUI conviction
occurred in 2011, and he was sentenced to 30 days of house arrest. In addition to his two previous
DUI convictions, Say has received citations for disturbing the peace and hunting during closed
season. Thus, the district court was aware of the gap between Say’s first two DUI convictions, and
the present offense, which occurred in 2017.
Based upon our review of the record, the district court took the appropriate factors into
consideration in sentencing Say. It cannot be said that the court abused its discretion in sentencing
Say to 365 days’ imprisonment, 18 months’ postrelease supervision, and suspending his license
for 15 years.
CONCLUSION
The district court did not err in admitting the results of Say’s chemical breath test; therefore,
the evidence was sufficient to support his conviction. Further, the court did not impose an
excessive sentence on Say. Accordingly, we affirm his conviction and sentence.
AFFIRMED.
-6-
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54 F.3d 777NOTICE: 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.
UNITED STATES of America, Plaintiff-Appellee,v.Donald Eric GUIMOND, Defendant-Appellant.
No. 95-5476.
United States Court of Appeals, Sixth Circuit.
May 19, 1995.
Before: CONTIE, MILBURN, and SILER, Circuit Judges.
OPINION
1
The defendant appeals the district court's order revoking his pretrial bond and ordering his continued detention pending trial. Before the court are the appellate briefs of both the defendant and the government. The panel is in unanimous agreement that oral argument is not needed in this appeal. Fed. R. App. P. 34(a); Sixth Circuit Rule 9(b).
2
According to the provisions of 18 U.S.C. Sec. 3142(e), a defendant shall be detained pending trial if, after a hearing, the judicial officer finds that no condition or set of conditions will assure the defendant's appearance and the safety of the community. The factors to be considered in determining whether to release a defendant pending trial are set forth in 18 U.S.C. Sec. 3142(g) and include: the nature and circumstances of the offense charged, the weight of the evidence against the person, the history and characteristics of the person, and the nature and seriousness of the danger posed by the defendant's release. Subject to rebuttal by the defendant, there is a presumption in favor of pretrial detention if the judicial officer finds there is probable cause to believe that the person committed an offense for which a potential maximum term of ten years or more is prescribed by the Controlled Substances Act, 21 U.S.C. Sec. 801 et seq. 18 U.S.C. Sec. 3142(e). Such a presumption is present in this case.
3
The defendant presented the testimony of his brother and argues that this evidence of strong family ties, combined with the absence of a prior criminal history, rebuts the presumption that no set of circumstances would assure his presence. Although the magistrate judge initially set a bond and terms of release, the district court judge concluded that nothing would reasonably assure the defendant's appearance if released pending trial given the absence of immediate supervision. Upon review of the materials presented, we conclude that the district court did not err in this conclusion.
4
Therefore, the decision of the district court ordering detention pending trial is AFFIRMED.
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676 N.E.2d 359 (1997)
Gregory D. PARDIECK, Appellant-Respondent,
v.
Julie G. PARDIECK, Appellee-Petitioner.
No. 03A01-9607-CV-219.
Court of Appeals of Indiana.
February 7, 1997.
*360 John A. Stroh, Joan Tupin Crites, Sharpnack, Bigley, David & Rumple, Columbus, James A. Buck, Buck, Berry, Landau and Breunig, Indianapolis, for Appellant-Respondent.
*361 Richard S. Eynon, Eynon & Harmon, P.C., Columbus, for Appellee-Petitioner.
OPINION
NAJAM, Judge.
STATEMENT OF THE CASE
Gregory D. Pardieck ("Gregg") brings this interlocutory appeal from the trial court's order which refused to enforce the antenuptial agreement between him and Julie G. Pardieck ("Julie"). The trial court reasoned that Gregg did not act in good faith during the marriage, having used the antenuptial agreement in an unconscionable fashion to exclude assets from the marital estate. The court concluded that the agreement should be enforced to protect the property Gregg brought into the marriage, but would not be enforced to protect property acquired during the marriage.
We reverse.
ISSUE
The sole issue presented for our review is whether the trial court erred when it refused to enforce the antenuptial agreement according to its terms.
FACTS
When Julie and Gregg first met, in October of 1981, Gregg held an associate's degree in business and marketing and was employed as a sales manager at Arvin Industries, Inc. Julie had obtained both an associate's degree in health information technology as well as a bachelor's degree in health records administration. She was employed by the Jackson County Hospital as an assistant director of medical records. The two were married on April 9, 1983.
Prior to their marriage, Julie was aware that Parkland, Inc. was Gregg's family business and that Gregg owned shares in that business. Julie was also aware that Gregg owned a condominium in the Dominican Republic and that the family owned property called Peak Land.
During their engagement, Gregg proposed that he and Julie enter into an antenuptial agreement and contacted his attorney to draft the agreement. Julie did not want such an agreement. However, after several discussions they both signed an antenuptial agreement on March 4, 1983, a full month before their marriage. The relevant provisions of that agreement follow:
1. It is understood and agreed that each of said parties hereby declares it to be the intent and meaning of this agreement and indenture that during their marriage each of them shall be and continue completely independent of the other as regards the enjoyment and disposal of all property owned by them prior to said marriage, including later replacement property or proceeds or income from prior property, and each of them hereby agrees with the other, in view and consideration of said proposed marriage, that so far as is legally possible by their private act and agreement, all property belonging to either of them at the commencement of the marriage shall be enjoyed by him or her and be subject to his or her disposition as his or her separate property in the same manner as if said proposed marriage had never been celebrated.
2. Each of said parties shall retain all property, including later replacement property and proceeds therefrom, that he or she now has free from all claims of inheritance, distributive share, homestead, support, or any other interest commonly given by law to parties becoming husband and wife, and on the death of either of said parties or on the dissolution of the marriage relationship, all property, real or personal, held by either party at the commencement of the marriage, including later replacement property or proceeds or income from prior property, shall belong to such party, and shall descend according to law to his or her heirs, or be disposed of by will as fully as if no marriage relationship had ever existed between the parties hereto subject only to any other terms of this agreement.
3. It is agreed that each of said parties to this agreement hereby waive, and does hereby waive, all and every right whatsoever which he or she might have or acquire *362 by law by such marriage in any and all property, including later replacement property or proceeds or income from prior property, of every kind and character, real, personal, or mixed, now owned by the other party. . . .
* * * * *
5. Wife specifically agrees that she gives up any right, title or claim to any common or preferred stock, and any appreciation thereof, in Parkland, Inc. acquired by Husband prior to the contemplated marriage.
* * * * *
11. There shall be a community of assets, not to include replacement property or proceeds or income from prior property, and gains between the contracting parties from the date of the celebration of their said marriage to each other, which said community of assets and gains shall embrace all future acquisitions and shall embrace only said future acquisitions, all of their separate property herein specified and set forth to be and remain distinct and separate property and to form no part whatsoever of the said community of assets and gains.
Record at 161.
Exhibit A of the agreement lists Gregg's assets as:
Common stocks Parkland, Inc.
$25,000.00 savings
$50,000.00 D.R. [Dominican Republic]
condominium
$40,000.00 Peak Land
___________
$115,000.00 +
The attachment also disclosed that Gregg expected to inherit one million dollars in property and stocks from his parents, Ralph and Ruth Pardieck. Record at 161.
After the parties were married, Gregg left Arvin Industries to become the vice president of Onyx Paving, Inc. Onyx Paving is a wholly-owned subsidiary of Parkland, Inc. and is estimated to be worth approximately five million dollars. Gregg and Julie also built a home on the Peak Land property, but the deed is in Gregg's, his brother's, and his mother's names.
Julie filed her petition for dissolution on July 1, 1994, and Gregg filed his "Petition for Determination of Validity of Pre-Marital Agreement" on August 26, 1994. Hearings were held before a senior judge on Gregg's petition and the court concluded that Gregg did not act in good faith during the course of the marriage and entered an order which stated:
The pre-marital agreement shall not be invoked to prevent Julie from claiming an interest in the family residence located in Peak Land, and from claiming an interest in the reasonable value of profits, earnings, and capital assets accumulated in Parkland, Inc. and its subsidiaries resulting from Gregory's services to those corporations and his right to receive profits therefrom.
Record at 65. Gregg filed a Motion in Limine in which he asked the court to clarify that ruling. After a hearing, the regular judge of the Bartholomew Circuit Court entered findings and concluded that Gregg had a duty to act in good faith and that he should not be allowed to benefit from violating that duty. The court's order states that:
This court will enforce the Pre-Marital Agreement as it relates to the value of the assets which were listed in the agreement and will set aside to Gregory those values as of the date of the marriage. This Court will not sift through the marriage on a month to month or year to year basis and make a determination as to which acts were in bad faith. Rather, this Court will consider all property acquired during the marriage to be in the marital pot (except perhaps gifts and inheritancesthere hasn't been enough evidence on this issue for the court to make a determination). Therefore, Julie is entitled to discovery which will enable her to value the assets at the time of the marriage so that she can compare this value with the assets at the time of separation.
Record at 13-131. Gregg appeals from that decision.
DISCUSSION AND DECISION
Gregg contends that the trial court erred when it refused to enforce the entire antenuptial *363 agreement between him and Julie.[1] We must agree.
Antenuptial agreements are legal contracts entered into prior to marriage which attempt to settle the interest each spouse has in property of the other, both during the marriage and upon its termination. Rider v. Rider, 669 N.E.2d 160, 162 (Ind.1996). These agreements are to be construed according to principles applicable to the construction of contracts. Ryan v. Ryan, 659 N.E.2d 1088, 1092 (Ind.Ct.App. 1995), trans. denied. To interpret a contract, a court first considers the parties' intent as expressed in the language of the contract. Id. The court must read all of the contractual provisions as a whole to accept an interpretation which harmonizes the contract's words and phrases and gives effect to the parties' intentions as established at the time they entered the contract. Id. Antenuptial agreements must be honored and enforced by the courts as written. In re Marriage of Boren, 475 N.E.2d 690, 694 (Ind.1985).
Here, the trial court determined that the agreement was not unconscionable but that it should not be enforced. Specifically, the court carved out a new exception to the enforcement of antenuptial agreements and concluded that due to Gregg's lack of "good faith" during the marriage, the antenuptial agreement does not prohibit Julie from claiming an interest in the reasonable value of profits, earnings and capital assets accumulated in Parkland, Inc. and its subsidiaries resulting from Gregg's services to those corporations. That conclusion is contrary to the express terms of the antenuptial agreement and Indiana law.
Under the agreement, Gregg retains "all property, including later replacement property and proceeds therefrom," which includes the Parkland common stock, savings, Dominican Republic condominium and Peak Land. Record at 161. Each party is to "retain all property" and "proceeds or income from prior property." Record at 161. Not only did Julie sign the agreement which provided that Gregg would retain any and all proceeds or income from the Parkland stock, she specifically agreed to:
[G]ive up any right, title or claim to any common or preferred stock, and any appreciation thereof, in Parkland, Inc. acquired by Husband if Husband acquires same by gift or inheritance after the contemplated marriage between the parties.
Record at 161.
Julie contends the agreement provides that "there shall be a community of assets" and that Gregg violated this provision by shielding assets within Parkland, Inc. See Record 161, Paragraph 11. However, as indicated above, Julie also agreed to give up her rights to the proceeds from or appreciation in value of the Parkland stock and other assets specifically enumerated in the agreement. The rules of contract construction require the court to construe the provisions of a contract together, and specific terms control over general terms. Arnold v. Burton, 651 N.E.2d 1202, 1205 (Ind.Ct.App.1995), trans. denied.; Fowler v. Campbell, 612 N.E.2d 596, 600 (Ind.Ct.App.1993). The agreement specifically identified the Parkland common stock as Gregg's separate and distinct property, and the agreement also provides that the separate property is "to form no part whatsoever of the said community of assets and gains." Record at 161, Paragraph 11. These specific provisions control over the more general agreement of the parties to build a community of assets. Thus, the disposition of the Parkland common stock is governed by the specific terms of the agreement which provide that Gregg shall retain all rights in the Parkland common stock.
The agreement's terms, "appreciation" and "proceeds," indicate that both parties intended that any increase in the value of the assets listed on Exhibit A, including the Parkland common stock, were to remain Gregg's property. See Kemp v. Kemp, 485 N.E.2d 663, 667 (Ind.Ct.App.1985) (terms *364 "accessions," "increments," and "proceeds" intended to entail increases in initial value of asset). Onyx Paving, Inc. is a wholly owned subsidiary of Parkland, Inc. The increase in the value of Onyx Paving, Inc. also increases the value of the Parkland, Inc. stock owned by Gregg. Under the premarital agreement, Gregg retained any appreciation in the value of that stock.
Still, antenuptial agreements may be set aside by the trial court under two circumstances. First, the agreement may be set aside if at the time the agreement is entered into there is evidence of fraud, duress, or misrepresentation, and the agreement is unconscionable. Rider, 669 N.E.2d at 162. Second, if circumstances change during the course of the marriage, the court may look to circumstances at the time of dissolution to determine the unconscionability of an antenuptial agreement. Id. at 163; Justus v. Justus, 581 N.E.2d 1265, 1274 (Ind.Ct.App. 1991), trans. denied. At the time of dissolution, a court may decline to enforce an antenuptial agreement when enforcement would leave a spouse in the position where she would be unable to support herself. Justus, 581 N.E.2d at 1273. A finding of unconscionability requires a comparison of the situations of the two parties. Rider, 669 N.E.2d at 164. Unconscionability involves a "gross disparity." Id.
Neither party argues that the agreement was unconscionable at the time it was executed. Gregg correctly points out that the only other method for setting-aside the agreement is the second exception, but that the agreement was not unconscionable at the time of dissolution. The court found that Julie has an associate's degree as well as a bachelor's degree. She "earns approximately $27,000 per year at the Columbus Regional Hospital where she is Director of Medical Records." Record at 64. Gregg holds an associate's degree, is employed as the vice president and manager of Onyx Paving, Inc. and "is paid approximately $31,000 per year by Parkland, Inc." Record at 62, 64. To conclude that an antenuptial agreement is unconscionable at the time of dissolution, the evidence must show that one spouse would not have sufficient property to provide for his or her reasonable needs after the dissolution of the marriage. Ryan v. Ryan, 659 N.E.2d 1088, 1094 (Ind.Ct.App.1995), trans. denied. Based upon Julie's education, employment history and salary, we cannot conclude that the agreement was unconscionable at the time of dissolution.
Finally, we address the trial court's creation of a "good faith" exception to the enforcement of an otherwise valid antenuptial agreement. The court concluded that it could set aside the agreement "where one of the parties did not act in good faith throughout the course of the marriage, using the antenuptial agreement in an unconscionable fashion to shield what would normally be marital assets." Record at 127.
Even accepting the trial court's finding that Gregg acted in bad faith during the marriage, we decline to create a new exception to the enforcement of an otherwise valid antenuptial agreement.[2] Indiana law does not require that a general duty of good faith and reasonableness be implied in every contract. See First Federal Savings Bank v. Key Markets, 559 N.E.2d 600, 604 (Ind.1990) (not court's province to require party acting pursuant to unambiguous contract to be "reasonable," "fair," or show "good faith cooperation"). To the contrary, when a court finds a contract to be clear in its terms and the intentions of the parties apparent, the court will require the parties to perform consistently with the bargain they made. Id.[3]
*365 Here, the contract terms are clear and unambiguous. The assets Gregg listed in Exhibit A, including the Parkland, Inc. stock, are his separate property and are not subject to division. As stated earlier, this necessarily includes the assets accumulated by Onyx Paving, Inc. Julie does not have access to the wealth accumulated by her husband under Parkland, Inc. While that result may now seem harsh after 11 years of marriage, Julie freely entered into the antenuptial agreement, and the agreement was not unconscionable at the time of dissolution. As a general rule, the law allows persons of full age and competent understanding the utmost liberty to contract, and their contracts, when entered into freely and voluntarily, are enforced by the courts. Pigman v. Ameritech Publishing Inc., 641 N.E.2d 1026, 1029 (Ind. Ct.App.1994). Thus, we conclude that the trial court erred when it refused to enforce the antenuptial agreement according to its terms.
Reversed.
ROBERTSON and BAKER, JJ., concur.
NOTES
[1] Julie argues that the issue presented to the trial court was whether she would be allowed discovery of the assets acquired by Gregg during the marriage. However, the trial court decided not to enforce the antenuptial agreement but to consider all property acquired during the marriage to be in the marital pot. Because the trial court refused to enforce the terms of the antenuptial agreement, we will consider its validity on this appeal.
[2] The court found that Gregg promised to place Julie's name on the deed to the marital residence, but failed to do so. Record at 127. Gregg also shielded the Onyx Paving, Inc. assets by making it a fully-owned subsidiary of Parkland, Inc. Record at 127.
[3] Julie directs this court to Hamlin v. Steward, 622 N.E.2d 535 (Ind.Ct.App.1993), for the proposition that a duty of good faith must be implied in this contract. In Hamlin, the parties' contract was conditioned upon the promisors' performance of a specific event. We concluded that "we must infer good faith in the performance of the condition in order to give meaning to the intention of the parties." Id. at 541. Without good faith, the mere promise to pay subject to a condition precedent to be performed by the promisor would be an illusory promise. Id. Unlike Hamlin, this case does not involve an illusory promise, and we need not infer good faith. An illusory promise is a promise which by its terms makes performance entirely optional with the promisor. RESTATEMENT (SECOND) OF CONTRACTS § 2 cmt. e (1981). Here, the contractual provision at issue required the creation of a community of assets. Fulfillment of that provision did not rest solely with Gregg, but required the cooperation of both parties to the agreement. Further, the evidence indicates that the parties did create "a community of assets." The two built and furnished a home together, purchased an automobile, maintained a joint account and acquired many other items of personal property. Record at 202.
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145 F.3d 28
Michael F. TERRY, Plaintiff, Appellant,v.BAYER CORPORATION and Bayer Corporation Disability Plan,Defendants, Appellees.
No. 97-2190.
United States Court of Appeals,First Circuit.
Heard March 2, 1998.Decided May 27, 1998.
James B. Krasnoo, with whom Richard Briansky and Law Offices of James B. Krasnoo, were on brief, for appellant.
William J. Klemick, with whom John J. Myers, Treazure R. Johnson, and Eckert Seamans Cherin & Mellott, LLC, were on brief, for appellees.
Before LYNCH, Circuit Judge, COFFIN and BOWNES, Senior Circuit Judges.
BOWNES, Senior Circuit Judge.
1
In this appeal under the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C.A. §§ 1001--1461 (West Supp.1998)("ERISA"), appellant Michael F. Terry challenges the termination of his long-term disability benefits. The district court granted summary judgment to the defendants. We affirm.
I.
2
As required under the summary judgment standard, we recite the following undisputed facts in the light most favorable to the non-movant Terry, drawing all reasonable inferences in his favor. August v. Offices Unlimited, Inc., 981 F.2d 576, 580 (1st Cir.1992).
3
Terry began working at Bayer Corporation ("Bayer") in 1982 as a computer software test auditor.1 At some point during the course of the next several years, Terry was moved to a new position, involving the tracking of rejected computer materials, and reporting his findings to the Bayer engineering and purchasing departments.
4
On or about January 5, 1987, as he exited his apartment building on the way to work, Terry slipped on ice and fell down nine steps, injuring his knee. He continued on to work that day, but on arrival was sent to the hospital by Bayer's nurse. Over the course of the next several weeks, Terry was cared for by both his primary care physician, Dr. Walter H. Jacobs, and an orthopedic surgeon, Dr. George Ousler. Dr. Ousler determined at the time that Terry most likely had suffered a "medial lateral collateral ligament injury strain or an internal derangement of the knee." While Dr. Ousler's treatment plan was originally conservative, in March, 1987, Terry underwent arthroscopic surgery in an attempt to remedy persistent soreness and slight swelling. Pain management and physical therapy ensued for the next several months.
5
Terry returned to work in August 1987. He was promoted in 1988 to a position maintaining desk-top computers. In January 1990, as a result of budget cuts, Bayer transferred Terry to the position of test technician. This position involved the assembly and testing of computer boards, and involved considerably more physical activity than his previous positions; Terry was now required to move containers of computer boards around the workplace. After having been in his new position for approximately one month, Terry's knee buckled and he fell to the ground. This incident occurred outside of the workplace.
6
As a result of this second injury, Terry did not return to work at Bayer. A second arthroscopic surgery was soon performed, and torn cartilage and bone chips were removed from his knee.
7
Terry's primary care physician, Dr. Jacobs, states that Terry suffers from a degenerative knee condition which results in bone-on-bone contact. As a result of the condition, Terry is in almost constant pain, and is unable to stand, sit, or otherwise maintain a single stationary position for any extended period of time. Dr. Jacobs treats Terry's pain with a variety of anti-inflammatories and painkillers.
8
In July, 1990, Bayer approved Terry's application for long-term disability benefits. The Summary Plan Description ("SPD") states that long-term disability benefits are provided under the Bayer Long-Term Disability Plan ("Plan") when a beneficiary is "unable to work at any job for which [they] are qualified by education, training, or experience."
9
As Plan Administrator, Bayer retained Northwestern National Life Insurance Company ("Northwestern") to process and manage claims made under the Plan.2 As part of that service, Northwestern assigned Anne Tacl to Terry's case to serve as rehabilitation case manager. Tacl's job was to monitor Terry's medical condition in order to make sure that he continued to meet the Plan's definition of total disability. Tacl was also charged with attempting to rehabilitate Terry, with the goal of returning Terry to full-time employment. These responsibilities were consistent with Plan provisions. Because Tacl was based in Minnesota, Tacl hired Sandy Lowery to provide local rehabilitation services to Terry.
10
In April, 1991, Tacl received a report from a Dr. Zarins, an orthopedic surgeon whom Terry had consulted prior to the active involvement of Northwestern. That report opined that Terry's accounts of pain did not correspond to the pathology observed in his knee. Dr. Zarins stated that Terry could return to part-time work with certain significant restrictions. Northwestern, however, was unable to locate an appropriate job for Terry at Bayer. Dr. Zarins saw Terry again one year later, in April 1992, and again determined that Terry could perform sedentary work on a part-time basis. Dr. Jacobs, for his part, however, continued to insist that Terry was completely disabled.
11
In November of 1992, Tacl, as authorized by the Plan, scheduled an independent medical evaluation ("IME") in an attempt to resolve the conflicts in medical opinion. The IME was performed by Dr. Thomas King, who determined that Terry's pain was "out of proportion to all physical findings," but wanted to rule out "reflex sympathetic dystrophy" ("RSD").3 Terry was referred to another specialist, who determined that Terry was not suffering from RSD.
12
On the basis of these medical evaluations, Tacl decided that Terry should participate in a work-hardening rehabilitation program, with the goal of returning Terry to full-time employment. Terry was informed, pursuant to a Plan provision, that if he failed to attend a rehabilitation program, his benefits would be terminated. Terry was given a choice among three institutions, and he opted to attend Farnum Industrial Rehabilitation ("Farnum"). Dr. Jacobs eventually signed off on the referral to Farnum, but did not think the program would be helpful to Terry.
13
Dr. Robert Haile, the Medical Director at Farnum, examined Terry upon his entry to the program. Haile opined at the time that,
14
[Terry's] degree of disability ... appears to be out of proportion to the degree of findings in his knee. I believe the patient has developed chronic pain syndrome, which refers primarily to the whole person effect of a chronic painful injury. It involves in addition to local persistent pain the psychosocial effects of chronic pain. I think the patient would be a good candidate for Work Hardening.
15
Dr. Haile did not doubt that Terry's pain was genuine. Although Terry's Farnum experience started out well enough, in the end Terry had completed fourteen rehabilitation sessions and canceled thirteen. Terry states that the cancellations were due primarily to complaints of severe pain, caused by the effort required to attend and participate in the rehabilitation program.
16
At about the same time as he was participating in the Farnum program, Terry was referred by Tacl to Deborah Veatch, a local vocational rehabilitation consultant. Although Terry was initially receptive to Veatch's services, his interest and participation in her services quickly waned. Veatch eventually communicated to Tacl that "[b]ased on Mr. Terry's obvious lack of follow through with treatment and vocational activities, ... Mr. Terry is most likely not an appropriate candidate for vocational rehabilitation services." Veatch did conclude, however, that Terry possessed transferable skills in the computer field.
17
On January 20, 1994, Terry was discharged from the Farnum program. The Program Director, Cheryl Baldwin, reported in the discharge summary: "Mr. Terry is capable of working full time, although the amount of standing needs to be limited. He is able to sit for two to four hours with intermittent stretch breaks. Mr. Terry is currently at Sedentary-Light duty work capacity. He has full, unlimited use of his upper body." Tacl thereafter requested that Dr. Haile complete a Physical Capacities Evaluation. Dr. Haile did so, and released Terry to full-time work with restrictions on continuous time in a sitting or standing position, as well as lifting, bending, and crawling.
18
Terry received a letter dated February 24, 1994 from Tacl indicating that she was recommending that his benefits be terminated. The letter stated that "[b]ecause you have been released to work with restrictions, you no longer meet the [Plan's] definition of total disability." Shortly thereafter, Terry received a termination letter dated March 3, 1994. The letter stated that, "[d]isability is defined as your complete inability to work in any job for which you[ ] are reasonably fitted by education, training, or experience. Based on a review of the medical and vocational information in your file you are no longer totally disabled from performing 'any occupation.' " Terry was advised of certain of his appeal rights, and benefits were terminated retroactively to February 25, 1994. Terry's benefit checks were not continued during the pendency of his appeals.
19
Shortly after Terry's termination, Tacl received a letter from Dr. Haile. Dr. Haile apparently sent the letter after receiving a phone call from Dr. Jacobs. The Haile letter stated that Haile had only been a consultant in a work-hardening program, and if Tacl required a formal "work release," that release would have to come from Dr. Jacobs.
20
Terry requested an appeal from Northwestern's decision. The "Northwestern ERISA Committee" was convened, reviewed his entire file, and upheld the benefits termination. Terry was advised of this by letter dated March 25, 1994. That letter stated that "[a]lthough Dr. Jacobs provided us with a detailed historical account of your problems with knee pain, he did not provide us with objective evidence to support your total disability from all occupations, as your LTD plan requires." Terry was informed in the letter that further requests for appeal should be directed to Bayer.
21
On June 1, 1994, Terry--now represented by counsel--sent a letter to Tacl demanding reinstatement of benefits. Tacl informed Terry that Bayer would handle any further appeal, and notified Bayer of the receipt of the latest request from Terry. By letter dated July 18, 1994, Bayer's Benefits Manager Joyce Fleischer notified Terry of the steps he needed to take in order to perfect an appeal before the Bayer Benefit Administration Committee ("Benefit Committee"). Included in that letter was the requirement that Terry file his appeal within sixty days. A copy of the relevant appeal procedure from the SPD was appended to Fleischer's letter.
22
It was not until August 15, 1995--over one year later--that Terry formally requested an appeal before the Benefit Committee. Additional materials were forwarded to Bayer,4 and Bayer scheduled a meeting of the Committee to decide the appeal. Before the meeting, Bayer requested that Northwestern's ERISA Committee also review the additional materials forwarded by Terry. The Northwestern Committee did so, and again affirmed its decision to terminate benefits. The Bayer Benefit Committee met on December 6, 1995, reviewed Terry's file, and voted to uphold the termination of benefits.
23
Terry was advised of the decision by a letter from Bayer's employee benefits counsel dated December 21, 1995, stating the Benefit Committee's reasons for upholding the termination. First, the Benefit Committee determined that Terry's appeal was untimely, because it was not filed within the sixty-day time period provided for in the Plan and communicated to Terry in the letter from Fleischer. The Committee went on "[a]s a courtesy to [Terry]", to reach the merits of Terry's appeal. The Benefit Committee detailed the following.
24
To assist the Bayer Corporation in making its determination, our agent, [Northwestern], has been extensively involved in evaluating Mr. Terry's medical condition as well as his ability to return to work. With the approval of Dr. Jacobs, Mr. Terry was put in a "work hardening" program--which is an approved rehabilitation program under the terms of the Plan. During the nine week period of the program, he attended fourteen sessions, canceled thirteen sessions and did not complete the program. On February 1, 1994, at the end of the program, he was released to full-time, sedentary work by Dr. Haile. Dr. Haile was the Medical Director and Physiatrist specializing in assessment of functional capacities in the work hardening program. Based on Dr. Haile's release, as well as Mr. Terry's failure to participate to any meaningful extent in the work hardening program, the Committee would uphold the termination of Mr. Terry's benefits under the Plan even if his appeal was timely filed.
25
It is also important to note that the Committee considered the information you supplied from Dr. Jacobs, Dr. Taylor, the Social Security Administration and Paul Blatchford but, as it is permitted to do under the terms of the Plan, concluded that the opinions of Dr. Haile and Debbie Veatch, a vocational expert, were more credible because those opinions are based on the objective medical testing performed during the work hardening program and Mr. Terry's medical status as of February 1, 1994.
26
Dr. Jacobs is not a specialist but rather a generalist who has consistently prescribed narcotic medications to treat the pain associated with Mr. Terry's condition but has not been directly involved in any rehabilitative course of action for Mr. Terry's condition. Although Dr. Taylor is a specialist, his report does not include any information regarding objective testing performed on Mr. Terry in determining his physical capabilities. Also, the information provided by Dr. Taylor is based on his medical condition as of July 10, 1995--approximately seventeen months after his February 1, 1994 release. Similarly, Mr. Blatchford's report is based on Mr. Terry's medical condition as of October 20, 1995--approximately 20 months after his February 1, 1994 release--and is based on subjective medical complaints rather than objective testing.
27
Terry filed suit under ERISA in Superior Court, Essex County, Massachusetts, in February, 1996, alleging that the benefits termination contravenes the Plan language. The Bayer Plan removed to federal court, see Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), and in due course moved for summary judgment. The district court, by margin order, granted summary judgment in defendants' favor on all claims, finding no abuse of discretion in the benefits termination.5 This appeal followed.
28
Our standard of review over the district court's decision on summary judgment is de novo. See Vartanian v. Monsanto Co., 131 F.3d 264, 266 (1st Cir.1997). We are directed to grant summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court has stated that summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Here, Terry bears the burden of making "a showing sufficient to establish" a violation of ERISA, namely, that the benefit termination was unreasonable.
II.
29
ERISA is a "comprehensive and reticulated statute," Nachman Corp. v. Pension Benefit Guar. Corp., 446 U.S. 359, 361, 100 S.Ct. 1723, 64 L.Ed.2d 354 (1980), which governs the rights and responsibilities of parties in relation to employee pension and welfare plans, see generally New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 650-51, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). This federal statute includes a cause of action for plan participants, and other beneficiaries, "to recover benefits due to him [or her] under the terms of his [or her] plan." 29 U.S.C.A. § 1132(a)(1)(B). It is under this statutory provision that claims, such as this one, challenging denials and termination of employer-sponsored disability benefits are brought.
30
Although Terry presents his arguments on appeal in a variety of arrangements, his positions can be effectively stated as follows. First, Terry posits that this court should review the decision of Northwestern, as opposed to that of the Bayer Benefit Committee, in making the determination whether the disability benefits were wrongfully terminated. Next, Terry argues that, regardless of which decision we review, that review should not be conducted pursuant to the abuse of discretion standard adopted by the district court, but instead should be conducted de novo; in other words, Terry asks us to undertake an independent review of the record and decide whether Terry is "disabled" within the meaning of the Bayer Plan. Finally, Terry urges us to determine that, regardless of the standard applied, and regardless of the decision we review, the benefits termination violated ERISA because (1) Terry received defective notice of termination, and (2) he was, and is, totally disabled within the meaning of the Plan. We address each position in turn.A.
31
As we have stated, Bayer contracted with a third party, Northwestern, to provide administrative assistance to the Benefit Committee. The agreement between Bayer and Northwestern, entitled "Administrative Services Only Agreement" ("ASO Agreement"), stipulated that Northwestern was to, among other things, "[i]nvestigate and process claims ... [, e]valuate claims for potential rehabilitation ... [, and u]pon receipt of the Plan Sponsor's final decision on claims appeals, make payment or issue a denial notice in accordance with the Plan Sponsor's decision." ASO Agreement § 1(B)(1). The ASO Agreement specifically disclaimed any responsibility on Northwestern's part as a Plan Administrator. Id. § 5(A). The existence of this contractual arrangement between Northwestern and the Benefit Committee was authorized by the Benefit Committee's governing guidelines. Miles, Inc. (Bayer) Administrative Procedures for the Benefit Administration Committee Art. VII, § 2 ("Admin.Proc.").
32
Terry's argument that we should review the decision of Northwestern, and ignore the later decision by the Benefit Committee, is stated in his brief as follows: "The Plan vests discretionary authority with Bayer Corporation, the Plan's fiduciary. Northwestern, however, not Bayer Corp., made the initial decision to terminate Mr. Terry's benefits. Bayer delegated only its administrative duties to Northwestern, but expressly reserved and thereby intentionally withheld any fiduciary authority from Northwestern." Appellant Br. at 22. Terry argues that, because the Plan itself did not grant Northwestern any discretionary authority to interpret the meaning of the plan, Northwestern's "initial decision" must be considered afresh under Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989).
33
In Firestone, the Supreme Court ended the debate over the proper standard of review that courts should employ when examining the out-of-court decisions of plan administrators to deny benefits. The Court stated that, "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Id. Thus, Terry argues that because the Plan does not grant the decision-maker the necessary authority to resolve disputes, determinations made by that decision-maker are reviewed de novo.
34
In making his argument, however, Terry ignores the fact that the decision of Northwestern was but one step in the process. It was not the final and binding termination decision. In Terry's own words, it was the "initial decision." We must focus, as in the usual case, on the determinations of the final decision-maker, which was the Bayer Benefit Committee.
35
"ERISA contemplates actions against an employee benefit plan and the plan's fiduciaries. With narrow exception, however, ERISA does not authorize actions against nonfiduciaries of an ERISA plan." Santana v. Deluxe Corp., 920 F.Supp. 249, 253 (D.Mass.1996). See Mertens v. Hewitt Assocs., 508 U.S. 248, 262-63, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993); Reich v. Rowe, 20 F.3d 25, 29 (1st Cir.1994) (nonfiduciary liability limited to those "who commit violations of ERISA or who are engaged in an 'act or practice' proscribed by the statute"). Courts have determined that when the plan administrator retains discretion to decide disputes, a third party service provider, such as Northwestern, is not a fiduciary of the plan, and thus not amenable to a suit under § 1132(a)(1)(B). See, e.g., HealthSouth Rehab. Hosp. v. American Nat'l Red Cross, 101 F.3d 1005, 1008-09 (4th Cir.1996), cert. denied, --- U.S. ----, 117 S.Ct. 2432, 138 L.Ed.2d 194 (1997); Harris Trust & Sav. Bank v. Provident Life & Accident Ins. Co., 57 F.3d 608, 613-14 (7th Cir.1995); Kyle Rys., Inc. v. Pacific Admin. Servs., Inc., 990 F.2d 513, 516 (9th Cir.1993); Baker v. Big Star Div. of The Grand Union Co., 893 F.2d 288, 289-90 (11th Cir.1989). An interpretive bulletin issued by the Department of Labor bears this out, stating that an entity which merely processes claims "is not a fiduciary because such person does not have discretionary authority or discretionary control respecting management of the plan." 29 C.F.R. § 2509.75-8, D-2 (1997). Thus, "[t]he proper party defendant in an action concerning ERISA benefits is the party that controls administration of the plan." Garren v. John Hancock Mut. Life Ins. Co., 114 F.3d 186, 187 (11th Cir.1997).
36
Similarly, as we recognized in Rowe, 20 F.3d at 32, ERISA itself significantly limits the liability of service providers in actions under the statute. The Rowe panel refused to exercise its power to fashion a common law remedy to generally extend "the threat of liability over the heads of those who only lend professional services to a plan without exercising any control over, or transacting with, plan assets." Id. Such liability was withheld in Rowe in recognition of, inter alia, the fact that it would likely "deter such [service providers] from helping fiduciaries navigate the intricate financial and legal thicket of ERISA." Id.; see also Buckley Dement Inc. v. Travelers Plan Admins. of Ill., Inc., 39 F.3d 784, 790 (7th Cir.1994)(approving of Rowe reasoning).
37
Terry is correct when he points out that this line of cases is concerned with service provider liability, and as such does not necessarily foreclose the construct he suggests--to review the decision of Northwestern but hold the Plan liable. Nevertheless, we find the precedent compelling. We do not think it supportable or reasonable for a court, when conducting this form of inquiry, to examine an intermediate step in the internal review process de novo. After all, we have determined that a prerequisite to obtaining judicial review under § 1132(a)(1)(B) is that the claimant have exhausted the internal administrative remedies available to him. Drinkwater v. Metropolitan Life Ins. Co., 846 F.2d 821, 825-26 (1st Cir.1988). Thus, if Terry had approached the district court after having received the termination letter from Northwestern, but prior to his appeal to Bayer, his case would likely have been dismissed for failure to exhaust the internal ERISA remedies. See, e.g., Tarr v. State Mut. Life Assur. Co. of Am., 913 F.Supp. 40, 43-45 (D.Mass.1996)(relying on Drinkwater ). It seems an odd proposition to now ignore the results of those mandated internal administrative remedies, and focus de novo review on the intermediate step taken by Northwestern. We reject Terry's argument that we review Northwestern's decision de novo.
38
Terry argues that the fact that his benefits were terminated by Northwestern (subject to appeal to Bayer) means that Northwestern, not Bayer, was the real decision-maker. The balance of the record, however, convinces us otherwise. The record amply demonstrates that Bayer and the Committee retained--by written instrument--the discretion to decide disputed claims. There is nothing to suggest that Northwestern was doing anything other than applying the terms of the Plan as written to Terry's particular situation. Although it may have been imprudent for Northwestern to terminate Terry's benefit checks as soon as it made the initial decision, Terry has not demonstrated that he would not have been entitled to a back payment of his disability benefits if his appeal at Bayer were successful. Indeed, the ASO Agreement specifically requires Northwestern to adhere to the determinations of the Benefit Committee. Therefore, although we recognize the impression generated by Northwestern's immediate termination, the remainder of the record simply does not support the position Terry presses. Bayer's Benefit Committee was the entity with the power to make, and is the entity that actually made, the final decision to terminate Terry's benefits. It is therefore the decision of the Benefit Committee which we shall review.
B.
39
We next turn to the proper standard of review to apply in examining the out-of-court decision of the Benefit Committee. Two issues need to be addressed in formulating the proper standard of review. First we determine whether the Plan expressly grants discretionary authority to the plan administrator to determine a claimant's eligibility. Firestone, 489 U.S. at 115, 109 S.Ct. 948. Second, we decide whether the administrator has properly delegated that discretionary authority to the Benefit Committee. Rodriguez-Abreu v. Chase Manhattan Bank, N.A., 986 F.2d 580, 584 (1st Cir.1993). We address each point in turn.
40
As we have previously outlined in part A, supra, the Supreme Court has determined that "a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone, 489 U.S. at 115, 109 S.Ct. 948; see also Varity Corp. v. Howe, 516 U.S. 489, 513, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996)("At present, courts review [plan coverage] decisions with a degree of deference to the administrator, provided that the benefit plan gives the administrator or fiduciary discretionary authority ....") (internal quotation marks omitted).
41
We have steadfastly applied Firestone to mandate de novo review of benefits determinations unless "a benefits plan ... clearly grant[s] discretionary authority to the administrator." Rodriguez-Abreu, 986 F.2d at 583; see also Diaz v. Seafarers Int'l Union, 13 F.3d 454, 456 (1st Cir.1994); Allen v. Adage Inc., 967 F.2d 695, 697 (1st Cir.1992); Bellino v. Schlumberger Techs., Inc., 944 F.2d 26, 29 (1st Cir.1991). Where the clear discretionary grant is found, "Firestone and its progeny mandate a deferential arbitrary and capricious standard of judicial review." Recupero v. New England Tel. and Tel. Co., 118 F.3d 820, 827 (1st Cir.1997) (internal quotation marks omitted).6
42
The record in this case demonstrates that the Plan grants discretionary authority to the Plan Administrator to make the necessary judgment calls concerning claimant eligibility. First the Plan names "The Company"--Bayer--as Plan Administrator, before going on to state that,
43
The Company shall have the exclusive right to make any finding of fact necessary or appropriate for any purpose under the Plans including, but not limited to, the determination of the eligibility for and the amount of any benefit payable under the Plans. The Company shall have the exclusive discretionary right to interpret the terms and provisions of the Plans and to determine any and all questions arising under the Plans or in connection with the administration thereof, including, without limitation, the right to remedy or resolve possible ambiguities, inconsistencies, or omissions, by general rule or particular decision.
44
Miles Inc. Disability Plans § 8.4 ("Plan"). Rodriguez-Abreu counsels that the grant of discretionary authority must be clear. 986 F.2d at 583. We think the language quoted above admits of no other interpretation. In Cooke v. Lynn Sand & Stone Co., we determined that the plan language was insufficient to satisfy Firestone. 70 F.3d 201, 204 (1st Cir.1995). There, the plan language stated only that the administrator had "exclusive control and authority over administration of the Plan."7 In contrast, Bayer's Plan specifically allocates to the Company the right to find necessary facts, determine eligibility for benefits, and interpret the terms of the Plan.
45
The next step in the process is to determine whether there has been an effective delegation of that discretionary authority from the Plan Administrator to the Benefit Committee. "ERISA allows named fiduciaries to delegate responsibilities," Rodriguez-Abreu, 986 F.2d at 584, by "expressly provid[ing] for procedures ... for named fiduciaries to designate persons other than named fiduciaries to carry out fiduciary responsibilities (other than trustee responsibilities) under the plan," 29 U.S.C.A. § 1105(c)(1)(B). Here, the Bayer Plan states that "The Company may appoint one or more individuals to act on its behalf, in which case every reference herein made to the Company shall be deemed to mean or include the individuals as to matters within their jurisdiction." Plan § 8.3. Bayer took the Plan up on its offer, and formed the "Benefit Administration Committee" which was designed to "act on behalf of the Corporation by assisting the Corporation in fulfilling its administrative duties which are set forth in the employee benefit plans." Admin. Proc. Art. I, § 1. Part of the Committee's duties included responsibility for the initial review of claims (or delegation thereof), and the impartial review of claim denials. Admin. Proc. Art. VII, § 2.
46
We think this constitutes an effective delegation of discretionary authority from the Company to the Benefit Committee. Our conclusion is supported by the fact that vested within the Committee, and pursuant to the Plan, was the responsibility to deny a claim "only if there [was] a reasonable basis for the denial," as well as the responsibility to "conduct a complete and adequate review before making a decision upholding the denial of a claimant's benefit." Id. The Committee had been given the authority to make "reasonable" decisions, an inherently discretionary function. In Rodriguez-Abreu, 986 F.2d at 584, we stated that reliance on "inferences from the circumstances ... [was] insufficient to prove delegation of discretionary authority." No inferences need be drawn where we discern a clear and direct delegation--by written instrument--from the Plan Administrator to the Benefit Committee.
47
What emerges from the record is that: (i) the Plan granted Bayer the discretionary authority to interpret and apply the terms of the Plan; (ii) the Plan authorized Bayer to delegate duties and authority; and (iii) Bayer delegated the discretionary authority to review claims and appeals to the Committee. The decisions of the Committee are, therefore, entitled to deferential review.
48
We reject Terry's argument that the "Limitations" clause of the Administrative Procedures document alters this equation. The clause states that "The Committee and its Members ... shall not have any independent fiduciary duties under the employee benefit plans." Admin. Proc. Art. VII, § 1. Terry argues that this means that the Committee had no fiduciary responsibilities whatsoever, and therefore no discretionary authority attached to its decisions. This argument, of course, ignores the import of the word "independent." That the Committee is deemed not to have any "independent fiduciary duties" does not mean that they have none. Rather, we think the most plausible reading of the Limitations clause is that the Committee's fiduciary responsibilities do not extend beyond those required to carry out the duties assigned to it. This conclusion is supported by the very nature of ERISA fiduciary responsibility. "[F]iduciary status is not an all or nothing proposition; the statutory language indicates that a person is a plan fiduciary only 'to the extent' that he possesses or exercises the requisite discretion and control." Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 18 (1st Cir.1998) (quoting 29 U.S.C. § 1002(21)(A)). As a result, the clause has no effect, for our purposes, on Bayer's delegation to the Committee, and by extension, no effect on the standard of review to be employed.
C.
49
Turning to the merits of the case, Terry first argues that the notice of termination did not comply with ERISA. The statute specifies that a plan "shall provide adequate notice in writing to any participant or beneficiary whose claim for benefits under the plan has been denied, setting forth the specific reasons for such denial, written in a manner calculated to be understood by the participant." 29 U.S.C.A. § 1133(1). The interpretative regulations go on to require that the notice contain,
50
(1) The specific reasons for the denial;
51
(2) Specific reference to pertinent plan provisions on which the denial is based;
52
(3) A description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and
53
(4) Appropriate information as to the steps to be taken if the participant or beneficiary wishes to submit his or her claim for review.
54
29 C.F.R. § 2560.503-1(f). Terry argues that because neither Northwestern nor Bayer ever informed him of the specific documentation or medical reports needed to obtain a favorable decision, both entities failed to comply with ERISA's notice requirements.
55
To be sure, the letters Terry received merely directed him to forward "any information which may affect the decision to terminate your claim." Terry therefore argues that, under 29 C.F.R. § 2560.503-1(f)(3), supra, he was entitled to a more detailed description of materials necessary for a successful appeal. We are not convinced, however, that the regulatory standard quoted above necessarily requires an administrator (or agent thereof) to inform Terry of "what additional information Mr. Terry should include in order to win his appeal." Appellant Br. at 41 (emphasis added). Instead, the regulations mandate that the administrator describe what is required to "perfect the claim." Terry has not convinced us that "perfect the claim" is synonymous with "win the appeal."8 Indeed, it would seem to us that in the instant case, neither Northwestern nor Bayer contended that Terry's claim was deficient. The decision was simply that the lack of objective findings, together with the failure to participate more fully in the work hardening program, did not support a finding of total disability. Regardless, however, of whether Bayer and Northwestern failed to comply formally with the regulations, and we do not imply any such failure, precedent in this circuit and others is to the effect that ERISA's notice requirements are not meant to create a system of strict liability for formal notice failures.
56
This court has recently concluded "that allowing a claim for relief because of inadequacy of formal notice without any showing that a precisely correct form of notice would have made a difference would result in benefit claims outcomes inconsistent with ERISA aims of providing secure funding of employee benefit plans." Recupero, 118 F.3d at 840. Similarly, the Seventh Circuit has stated:
57
Not all procedural defects ... will upset a fiduciary's decision. Substantial compliance with the regulations is sufficient. In determining whether there has been substantial compliance, the purpose of 29 U.S.C. § 1133 and its implementing regulations, 29 C.F.R. § 2560.503-1(f), serves as our guide: "was the beneficiary supplied with a statement of reasons that, under the circumstances of the case, permitted a sufficiently clear understanding of the administrator's position to permit effective review."
58
Donato v. Metropolitan Life Ins. Co., 19 F.3d 375, 382 (7th Cir.1994) (citations omitted)(quoting Halpin v. W.W. Grainger, Inc., 962 F.2d 685, 690 (7th Cir.1992)).
59
The record reveals that Terry was, in fact, "permitted a sufficiently clear understanding of the administrator's position to permit effective review." Id. He submitted additional medical and vocational information to the Benefit Committee which directly addressed the question whether he was disabled from performing "any" job. His actions demonstrate that he was well aware of the reasons for the decision, and was submitting additional evidence on the crucial point. Moreover, he was on notice that a critical issue was the lack of objective medical testing in support of his claim, having been informed of that deficiency in the letter from Northwestern's ERISA Committee. Finally, he has failed to demonstrate the prejudice that Recupero requires. Terry has not presented any evidence that implies that a different outcome would have resulted had the notice been in formal compliance with the regulations. As a result, Terry has not shown that the alleged defect abridged his right to "a full and fair review by the appropriate ... fiduciary." 29 U.S.C.A. § 1133(2).9
60
We now turn to the heart of this appeal, and determine whether the decision of the Benefit Committee was arbitrary and capricious. It is, of course, the hallmark of such review that "a court is not to substitute its judgment for that of the [decision-maker]." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). Rather, in the ERISA context, it has been stated that under the arbitrary and capricious standard, "a fiduciary's interpretation of a plan will not be disturbed if reasonable." DeWitt v. Penn-Del Directory Corp., 106 F.3d 514, 520 (3d Cir.1997).
61
The Benefit Committee gave two reasons for its decision to uphold the termination of benefits. The first was that Terry had failed to perfect his appeal within the proper sixty-day time limit. The second was that Terry no longer met the Plan's definition of disability. Terry fails to present evidence to demonstrate that either decision was unreasonable.
62
It was not improper for the Benefit Committee to have held Terry to the sixty-day appeal period.10 Drinkwater mandates that a claimant must have exhausted the plan's administrative remedies before bringing suit to recover benefits. 846 F.2d at 825-26. This court is not alone in so holding. See, e.g., Communications Workers of Am. v. AT & T, 40 F.3d 426, 431-34 (D.C.Cir.1994); Makar v. Health Care Corp., 872 F.2d 80, 82-83 (4th Cir.1989); Amato v. Bernard, 618 F.2d 559, 566-68 (9th Cir.1980). A claimant is required to attend to the plan's internal appeal process first, unless "the administrative route is futile or the remedy inadequate." Drinkwater, 846 F.2d at 826 (quoting Amato, supra ). Terry has not attempted to make any showing of futility or inadequacy.
63
We have not yet had the opportunity to apply the Drinkwater exhaustion requirement to the situation here where a claimant files an appeal, but does so late. In such a circumstance the claimant, while ostensibly availing himself of the internal review process, has procedurally defaulted as a result of the late filing. The same principles which inform the ERISA exhaustion requirement also counsel that part of that internal administrative process includes the responsibility on the claimant's part to file appeals in a timely fashion. Cf. Counts v. American Gen. Life and Acc. Ins. Co., 111 F.3d 105, 108 (11th Cir.1997) (observing that attorney's letters contesting aspects of benefit denial sent four and ten months after sixty-day appeal period expired constitutes failure to exhaust administrative remedies). As the Fourth Circuit reasoned in Makar,
64
Congress' apparent intent in mandating these internal claims procedures was to minimize the number of frivolous ERISA lawsuits; promote the consistent treatment of benefit claims; provide a nonadversarial dispute resolution process; and decrease the cost and time of claims settlement. It would be anomalous if the same reasons which led Congress to require plans to provide remedies for ERISA claimants did not lead courts to see that those remedies are regularly utilized.
65
872 F.2d at 83 (quotation marks and citations omitted). It would hardly make sense to permit the filing of an appeal over one year late in light of the internal claims procedures' aims of consistency and economy. Haphazard waiver of time limits would increase the probability of inconsistent results where one claimant is held to the limitation, and another is not. Similarly, permitting appeals well after the time for them has passed can only increase the cost and time of the settlement process.
66
This would be, of course, a different case if Terry's procedural default was caused by improprieties on the part of the Plan. Instead, Terry's lapse was egregious because Bayer's Benefits Manager, Ms. Fleischer, took affirmative steps to inform Terry of exactly how to pursue an appeal. A letter was sent to Terry which informed him of the sixty-day time period, appended to which was a copy of the relevant appeal provisions from the SPD. Yet Terry did not bother to request an appeal until over one year later, despite the fact that he was represented by counsel at the time the Fleischer letter was received. We therefore do not think it unreasonable for the Benefit Committee to have denied Terry's appeal on the basis that it was not filed on time.
67
Nor do we think the Benefit Committee would have been unreasonable if its sole basis for rejecting the appeal was that Terry was no longer unable to perform "any job for which [Terry was] qualified by education, training, or experience." There was evidence before the Committee that: (i) several doctors (including Dr. Jacobs) had at various times determined that Terry could perform either part-time or full-time sedentary work; (ii) Terry was trained to be a computer technician; (iii) Terry possessed transferable skills in the computer field; and (iv) based on observations at Farnum (the rehabilitation center), Terry was capable of working full time, so long as his job did not entail certain physical tasks, and he was permitted accommodations to alleviate his knee pain. We also note that Terry failed to participate fully in the work hardening program. On such a record, we think it to be a reasonable interpretation to say that Terry was no longer precluded from performing "any job," as the Plan requires. After all, Terry was trained and experienced in computer technology and software, which can be readily adapted to a sedentary worker's needs. That there were contradictory opinions before the Committee does not render the Committee's decision arbitrary or capricious. The Benefit Committee was charged with the duty of resolving disputes concerning claimant eligibility, and their determination in this regard is supported by substantial evidence. See Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir.1995)(noting that decision unsupported by substantial evidence would be arbitrary and capricious).
68
Finally, Terry asserts that he was "set up" by Northwestern in that Northwestern forced him into a rehabilitation program that was designed to result in a release to work--regardless of his capacity to do so. Thus, the argument goes, the record relied upon by the Benefit Committee (and generated by this "set up") was unreasonably biased against him, and as such failed to afford him an impartial appeal. We fail to see the evidentiary basis for the argument. Our review of the record reveals only good-faith efforts to determine whether Terry continued to meet the Plan's definition of disability. The record discloses that Tacl decided upon the rehabilitation course only after being confronted with conflicting medical opinions concerning the extent of Terry's disability. Both the IME and the rehabilitation program were specifically authorized by Plan documents. See SPD at 11. There is nothing in the record to suggest that the Farnum program was a sham. We therefore do not think Terry has adduced sufficient evidence on this argument to survive summary judgment.
69
On the record before us, we cannot say that the decision of the Benefit Committee to uphold the termination of Terry's long-term disability benefits constitutes an arbitrary or capricious decision. As a result, summary judgment was properly entered against Terry.
70
For the reasons stated, the decision of the district court is affirmed. Costs awarded to appellee.
1
The name of the company for which Terry worked has changed over the years. For simplicity's sake, we refer to his employer solely as Bayer, the various changes in corporate identity having no bearing on Terry's claim. We do note, however, that some of the documents cited infra bear the name of one of Bayer's previous corporate identities--"Miles, Inc."
2
During the pendency of this litigation, Northwestern changed its name to "Reliastar Insurance Company." For simplicity's sake we refer here to this company solely as "Northwestern."
3
Reflex sympathetic dystrophy is a neurologic disorder of "sympathetically mediated pain occur[ring] following injury to bone and soft tissue." The Merck Manual of Diagnosis and Therapy 1418 (16th ed.1992)
4
These materials consisted of (i) an additional report from Dr. Jacobs; (ii) a report from an orthopedist, Dr. Howard Taylor; (iii) a letter from the Social Security Administration ("SSA") granting Terry disability benefits; and (iv) a report from Paul Blatchford, a vocational expert. All these materials, save for the SSA letter, opined that Terry was completely disabled from performing "any job."
5
The district court also granted summary judgment to Bayer Corp. on the basis that the Plan was the only proper party to the action. Terry appeals this decision as well. Because we agree with the district court that the benefits termination was not an abuse of discretion, and thus no violation of ERISA transpired, we need not reach the issue of the proper defendant in this case
6
Although Firestone arguably does not specify the precise standard of review to be used when the discretionary grant is found, most courts pre-Firestone reviewed plan coverage decisions under the arbitrary and capricious standard. Firestone, 489 U.S. at 109, 109 S.Ct. 948. Firestone itself described the proper standard in terms of "arbitrary and capricious," id. at 109-111, 109 S.Ct. 948, and "abuse of discretion," id. at 113-115, 109 S.Ct. 948. We agree with then-Judge Ruth Bader Ginsburg that "there is no need to adopt one phrase and avoid the other. The reasonableness of the Plan Committee's decision is our polestar...." Block v. Pitney Bowes, Inc., 952 F.2d 1450, 1454 (D.C.Cir.1992)
7
Our decision in Cooke does not quote the relevant plan language. We have drawn the quote from the district court opinion in that case. Cooke v. Lynn Sand & Stone Co., 875 F.Supp. 880, 883-84 (D.Mass.1994)
8
"Perfect," when used in this context, usually means "to bring to ... completion." Webster's II New Riverside University Dictionary 873 (1994). Thus, a complete claim is not necessarily the same as a successful claim because even a complete claim can be denied
9
Terry also posits that each of the individual letters he received throughout the termination process constituted insufficient notice. Again, he fails to demonstrate how he was prejudiced by these apparent deficiencies. As we have explained, we think Terry's own actions demonstrate that he was afforded the opportunity for a full and fair review
10
Terry argues that the Plan has waived this argument by proceeding to address, in its letter to Terry, the merits of his appeal. The language of the Benefit Committee's letter clearly disproves this assertion. It expressly rejects the appeal on the basis of timeliness, and only discusses the merits of the appeal as a "courtesy" to Terry
| {
"pile_set_name": "FreeLaw"
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372 F.3d 1010
UNITED STATES of America, Appellee,v.Karl Lynn HUNT, Appellant.
No. 04-1245.
United States Court of Appeals, Eighth Circuit.
Submitted: June 17, 2004.
Filed: June 25, 2004.
Counsel who presented argument on behalf of the appellant was Sheldon Halpern of Royal Oak, MI.
Counsel who presented argument on behalf of the appellee was Clifford D. Wendel, AUSA, Des Moines, IA.
Before MORRIS SHEPPARD ARNOLD, FAGG, and RILEY, Circuit Judges.
FAGG, Circuit Judge.
Iowa troopers stopped a vehicle for speeding. The trooper called a drug dog to the scene, and the dog alerted to the car's trunk. Twenty-five pounds of cocaine were found inside. Karl Lynn Hunt, a passenger in the car, was arrested along with the car's driver. Hunt requested an attorney. Later, at the police post, Hunt was approached by Agent Lamp of both the State of Iowa Narcotics Task Force and the Federal DEA Task Force. After Agent Lamp introduced himself as a member of both the state and federal drug task forces, showed Hunt his credentials, and asked Hunt if he would be willing to cooperate, Hunt asked the agent, "How much money would it take for you to keep the dope and for us to go home?" The Government charged Hunt with drug offenses and with obstruction of justice for trying to bribe the agent. After the drugs were suppressed, Hunt was tried and convicted on the obstruction of justice charge. Hunt appeals, and we affirm.
1
Hunt first contends the district court* committed error in overruling his Batson challenge to the Government's peremptory strike of the only African-American prospective juror. The Government gave two reasons for the strike: the prospective juror's brother had been convicted of an armed robbery, and the juror's mother was a lawyer. The district court initially denied the strike, stating that although the Government "in no way" had any ill motive, there was a "rational basis upon which you can conclude this strike is based upon the fact that he is the sole African-American on the jury panel." After reviewing case law, however, the district court excused the juror, stating "had I read the United States versus Roebke case two hours ago, my ruling would have been different." See United States v. Roebke, 333 F.3d 911, 913 (8th Cir.2003) ( holding strike of the sole African-American prospective juror is alone insufficient to create a prima facie case of discrimination). We review the district court's rejection of Hunt's Batson challenge for clear error, id. at 912, and find none. The Government offered race-neutral reasons for the strike, and the district court's finding that the Government did not purposefully discriminate is not clearly erroneous. For the first time on appeal, Hunt points to jurors who were not stricken, asserting they are similarly situated to the African-American juror. Because Hunt did not identify any similarly situated jurors at trial, we do not consider the claim on appeal. United States v. Boyd, 168 F.3d 1077, 1078 (8th Cir.1999).
2
Hunt next asserts the district court should have suppressed his statement offering money to Agent Lamp because the statement was the product of an illegal detention and arrest and was obtained in violation of his Fourth and Fifth Amendment rights. When a defendant commits a new and distinct crime during an unlawful detention, the Fourth Amendment's exclusionary rule does not bar evidence of the new crime. See United States v. Sprinkle, 106 F.3d 613, 619 & n. 4 (4th Cir.1997); United States v. Garcia-Jordan, 860 F.2d 159, 161 (5th Cir.1988); United States v. Bailey, 691 F.2d 1009, 1016-17 (11th Cir.1983); see also United States v. Udey, 748 F.2d 1231, 1240 (8th Cir.1984). Likewise, Hunt's attempted bribe was not protected by the Fifth Amendment's right to counsel because it was not made in response to police interrogation or its functional equivalent. United States v. Withorn, 204 F.3d 790, 796 (8th Cir.2000); see Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (defining interrogation as conceptualized in Miranda as express questioning or any words or actions the police should know are reasonably likely to elicit an incriminating response). Here, Agent Lamp merely identified himself to Hunt and asked him if he would be willing to cooperate with law enforcement. Hunt's statement was not made in response to any question the agent asked. Similarly, Hunt waived his Fifth Amendment right to remain silent because he did not equivocally express his desire to remain silent. Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir.2001).
3
Hunt last contends the evidence was insufficient to convict him. Specifically, Hunt asserts the established facts do not satisfy the elements required for conviction under 18 U.S.C. § 1510(a). Section 1510(a) states, "Whoever willfully endeavors by means of bribery to obstruct, delay, or prevent the communication of information relating to a violation of any criminal statute of the United States by any person to a criminal investigator shall be fined under this title, or imprisoned not more than five years, or both." The district court properly concluded § 1510(a) applied to Hunt's attempt to prevent Agent Lamp from reporting Hunt's drug offense to other criminal investigators. See United States v. Leisure, 844 F.2d 1347, 1364 (8th Cir.1988) (defendant need only believe witness may give information to federal officials, and to prevent this communication, to violate § 1510(a)). The jury could properly conclude from Agent Lamp's testimony that he was a federal criminal investigator.
4
We thus affirm Hunt's conviction for attempting to bribe Agent Lamp.
Notes:
*
The Honorable James E. Gritzner, United States District Judge for the Southern District of Iowa
| {
"pile_set_name": "FreeLaw"
} |
(2008)
Russell A. FOLKERS, Plaintiff,
v.
CITY OF WATERLOO, IOWA, Darrel Johnson, in his individual capacity and as Animal Control Officer for City of Waterloo, Iowa, and Maria Tiller, in her individual capacity and as Animal Control Officer for the City of Waterloo, Iowa, Defendants.
No. C07-2066.
United States District Court, N.D. Iowa, Eastern Division.
October 27, 2008.
RULING ON MOTIONS FOR SUMMARY JUDGMENT
JON STUART SCOLES, United States Magistrate Judge.
TABLE OF CONTENTS
I. INTRODUCTION .........................................................1145
II. PROCEDURAL HISTORY ...................................................1145
III. ISSUES PRESENTED .....................................................1145
IV. RELEVANT FACTS .......................................................1146
V. LEGAL STANDARD FOR SUMMARY JUDGMENT ..................................1148
VI. DISCUSSION ...........................................................1149
A. Plaintiff's Motion for Partial Summary Judgment ...................1149
1. Was the Conduct Complained of Committed by Persons Acting
Under Color of State Law? ....................................1149
2. Did the Conduct Deprive Folkers of a Constitutional Right? .....1150
a. Fourth Amendment ............................................1150
b. Fifth Amendment .............................................1151
c. Fourteenth Amendment ........................................1152
(1) Procedural Due Process ..................................1152
(2) Substantive Due Process .................................1154
d. Summary .....................................................1156
B. Defendants' Motion for Summary Judgment ...........................1156
VII. ORDER ................................................................1157
I. INTRODUCTION
This matter comes before the Court on the Motion for Partial Summary Judgment (docket number 48) filed by the Plaintiff on June 2, 2008, and the Motion for Summary Judgment (docket number 52) filed by the Defendants on August 12, 2008. Defendants' request for oral argument is hereby denied. Pursuant to Local Rule 7.c, the motions will be decided without oral argument.
II. PROCEDURAL HISTORY
On September 25, 2007, Plaintiff Russell A. Folkers filed a Complaint (docket number 2) seeking injunctive relief and compensatory damages. Plaintiff alleges a taking of his property without due process of law, in violation of his rights under the Fifth and Fourteenth Amendments. On October 6, 2007, Defendants City of Waterloo, Iowa, Darrel Johnson, and Maria Tiller, filed their Answer (docket number 13) denying the material allegations and asserting certain affirmative defenses.
The request for temporary restraining order was referred by District Judge Edward J. McManus to the undersigned Magistrate Judge for a report and recommendation. Pursuant to this Court's recommendation, Judge McManus enjoined the Waterloo City Council from proceeding until the Court had an opportunity to consider Plaintiff's request for a preliminary injunction. The matter was then referred to the undersigned Magistrate Judge for a report and recommendation in that regard.
Following a hearing, this Court recommended that Plaintiff's request for a preliminary injunction be denied and the temporary restraining order be set aside. The Court also recommended, however, that the City Council be enjoined from relying on the third alternative definition of "dangerous dog," as set forth in Ordinance No. 5-1B-1(C). This Court's recommendations were adopted by Judge McManus on November 14, 2007, 2007 WL 3430936.
On January 22, 2008, the Court established a Scheduling Order and Discovery Plan. Pursuant to the agreement of the parties, this case was referred to the undersigned Magistrate Judge for all further proceedings. Trial is scheduled on January 5, 2009.
III. ISSUES PRESENTED
In his motion for partial summary judgment, Plaintiff requests that the Court determine, as a matter of law, that he "suffered a deprivation of his property interest in his dog Cleo without due process of law." Plaintiff argues that the only issues remaining for the jury are "whether such depravation [sic] was a proximate cause of any damages to Folkers and if so the extent of such damages." In their motion for summary judgment, Defendants argue that there was no violation of constitutional due process and, in any event, the individual Defendants enjoy qualified immunity.
IV. RELEVANT FACTS
Plaintiff Russell A. Folkers ("Folkers") is an over-the-road truck driver who lives part of the time in Waterloo, Iowa, and part of the time in Edinburg, Texas. This case arises from the temporary taking of Folkers' dog, Cleo, by Waterloo animal control officers on August 28, 2007. Cleo was returned to Folkers' possession on December 7, precisely 100 days later.
The facts surrounding Cleo's seizure were described by the Court in its Report and Recommendation on the preliminary injunction, as follows:
Plaintiff Russell Folkers, who resides in the City of Waterloo, is the owner of a five-year-old mixed-breed dog named "Cleo." According to Folkers, Cleo is half Pitbull and half American Bulldog. On Sunday, August 26, 2007, Cleo and another dog ("Lexus") were running loose on Folkers' property. Folkers testified that Lexus is a full-bred American Bulldog which belongs to his son, but stays with Folkers when his son is in town.
Rosemary Parr and her family have lived across the street from Folkers' property since mid-June 2007. Parr owns a Bichon Frise by the name of "Sassy." During the late afternoon on August 26, Parr's daughter put Sassy on a leash and took her outside for a walk. Within seconds, however, Parr's daughter returned to the house and reported that Sassy was being attacked. When Parr went outside, she saw that two dogs had Sassy pinned to the ground. Parr yelled at the other dogs and tried to hit them with a dishrag, but was unable to deter them. Parr went back inside to get her husband, and by the time she returned the dogs had carried Sassy across the street. As a result of the attack, Sassy suffered serious injuries and was hospitalized at a veterinarian's office for five days. It is undisputed that the two dogs involved in the attack were Cleo and Lexus.
Rosemary Parr reported the incident to animal control authorities and it was investigated by Defendant Darrel Johnson ("Johnson"), a part-time Black Hawk Animal Control Officer. Johnson testified that he responded to the scene, discussed the incident with Mr. Parr, and then went across the street to discuss the matter with Folkers. No one responded to the door, however, and Johnson did not hear any dogs, so he left a "door hanger" on the Folkers residence, requesting that he be contacted. Johnson then waited at the end of the street to see if anyone came to the Folkers residence. No one appeared, however, and Johnson then left. That evening, Johnson called Defendant Maria Tiller ("Tiller"), a full-time Black Hawk Animal Control Officer. According to Tiller, she and Johnson discussed the matter briefly, but did not talk about seizing the dogs at that time.
On the following morning (Monday, August 27), Folkers called the animal control office, apparently in response to the notice left on his door, but Johnson was not in. When Johnson returned to the office, he called Folkers back. Johnson testified that he advised Folkers during the phone call that he would be issued a citation for dogs running at large and Folkers repeatedly asked him what their intentions were regarding Cleo. Johnson advised Folkers that they would discuss it when he delivered the citations, which the parties agreed would be the following day. During the phone call, Plaintiff told Johnson that Lexus was with his son, and was no longer at the residence. Officer Tiller testified that after Johnson's telephone conversation with Folkers, she made a decision to seize Cleo. According to Tiller, the factors which she considered in making that determination included the serious injuries suffered by Sassy in the attack, the history of Animal Control responding to Folkers' property, reports that Folkers would intimidate his neighbors when complaints were made, the fact that Lexus was gone, and the fact that Folkers is a truck driver, thereby allegedly making it easier for him to remove the dog from the City's jurisdiction.
Tiller testified that prior to deciding to seize Cleo, she contacted the veterinarian where Sassy was being treated and was advised that the injuries were life-threatening. She also reviewed the prior reports regarding calls to the Folkers residence. The reports (Plaintiffs Exhibit 4) reflect five calls for dogs running at large, and one complaint of barking dogs, between April 13, 2002, and February 24, 2005. Two of the reports (05/10/2002 and 06/22/2003) refer to threats to neighbors, allegedly made by Folkers in retaliation for their complaints.
On Tuesday, August 28, Officer Johnson went to Folkers' home and delivered four citations (Defendants' Exhibit D). Folkers was cited twice for "dog at large," in violation of § 5-1A-6A of the Waterloo City Ordinances, and two counts of "fear of attack," in violation of Ordinance 5-1A-6B. Johnson advised Folkers that he was seizing Cleo, and Folkers cooperated in loading Cleo into the truck. Johnson acknowledged that Cleo was "friendly" when he was placed in the vehicle.
See Report and Recommendation (docket number 21) at 3-6 (footnotes omitted).
On the day following the seizure, Defendants Darrel Johnson ("Johnson") and Maria Tiller ("Tiller") signed an order concluding that Cleo was a "dangerous dog" and must "be removed from the City or be humanely destroyed."
Animal Control concludes that "Cleo" is a dangerous dog pursuant to Waterloo Code.
Animal Control hereby orders pursuant to City Ordinance 5-1B-4F that the order from Animal Control Officer Darrel Johnson finding the dog to be a dangerous dog is hereby affirmed and orders that "Cleo" be removed from the City or be humanely destroyed.
Appendix in Support of Defendants' Resistance, Exhibit 7 (docket number 53-4 at 34-35).
The order was sent to Folkers by certified mail, with a cover letter indicating that Cleo had been determined to be dangerous and ordering Folkers "to remove such dog from the city limits or humanely destroy it." Id. at 33. The letter also advised Folkers of his right to appeal to the City Council. Folkers received the letter on August 31, 2007. Id. at 37.
Folkers filed a timely appeal and a hearing was scheduled before the City Council on September 24, 2007. The hearing was delayed, however, because Folkers wanted Cleo examined by a veterinarian, who would then render an opinion as to whether Cleo is "a dangerous dog." According to the minutes of the meeting:
Dave Zellhoefer, Assistant City Attorney, reported that he was informed this afternoon by Russ Folkers' attorney that Mr. Folkers wants to take Cleo to a veterinary of his choice to examine Cleo and have the veterinary appear as a witness and render an opinion as to whether Cleo is a dangerous dog. Mr. Zellhoefer noted that there seems to be a difference between the parties as Mr. Folkers says he requested the examination a long time ago and feel they are being denied due process. Animal Control says it was preliminarily discussed, but nothing materialized, and they did not stop him.
Appendix in Support of Defendants' Resistance, Exhibit 10 (docket number 53-4 at 44).
It was agreed that the hearing would be continued to give Folkers an opportunity to obtain the requested examination. A discussion then followed regarding where Cleo would be detained pending the rescheduled hearing. Mayor Hurley wanted Cleo to remain in the possession of the City, while the Assistant City Attorney noted that the ordinance permitted his return to Folkers.
Mayor Hurley stated the Folkers have general due process right to have a veterinary of their choice examine Cleo, but he wants the dog to remain in the custody of Animal Control. Mr. Zellhoefer stated that the Folkers have a safe and secured fence and the ordinance says that is where the dog can stay.
Id.
According to the minutes of the meeting, "Mayor Hurley commented that he thinks the ordinance needs to be fixed and will ask legal to fix it." Id. Tiller then confirmed that "the ordinance does say if the owner has an enclosed pen, he is entitled to hold the dog during the appeal process." Id. Noting that the other dog was "missing," Tiller expressed "fear" that "Cleo will leave the city limits, and if Cleo is out of the city limits, we cannot continue with the process." Id. Mr. Zellhoefer noted, however, that it was not necessary for Cleo to be in the city limits in order to proceed. Folkers' attorney then argued that "Mr. Folkers tried to get the dog during the appeal, he has a secured pen in his back yard and should have the dog." Id. On a 7-0 vote, the City Council determined that "Cleo remain in the custody of Animal Control and a vet be allowed to do the examination at Animal Control or Animal Control can take the dog to the veterinary." Id. The appeal hearing was continued to October 8, 2007. The instant action was filed on the following day.
The appeal hearing before the City Council was not held until December 3, 2007.[1] Folkers' attorney appeared at that time and "asked the council to make a determination as statute permits, and let Mr. Folkers take his dog from Animal Control and take Cleo out of the city."[2] After hearing testimony regarding the events of August 26, 2007, the City Council affirmed the finding by Animal Control that Cleo is a dangerous dog. As part of the discussion, a councilperson asked "if Mr. Folkers does not pay the boarding fees and expenses charged for confinement of Cleo at the Cedar Bend Humane Society will the dog be put to sleep." Id. at 48. Mr. Zellhoefer stated that he had been told by Folkers' attorney that "[t]hey want to get Cleo and move him out of the city." Id. Mr. Zellhoefer advised the City Council that the claim for boarding fees "could be filed in Small Claims Court." Id. Cleo was returned to Folkers' possession a few days after the hearing and is apparently now living on a ranch in Texas.
V. LEGAL STANDARD FOR SUMMARY JUDGMENT
Summary judgment is appropriate if the record shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). "An issue of fact is genuine when `a reasonable jury could return a verdict for the nonmoving party.'" Friends of Boundary Waters Wilderness v. Bosworth, 437 F.3d 815, 821 (8th Cir.2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). A fact is a "material fact" when it "might affect the outcome of the suit under the governing law...." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The court must view the record in the light most favorable to the nonmoving party and afford it all reasonable inferences. Baer Gallery, Inc. v. Citizen's Scholarship Foundation of America, Inc., 450 F.3d 816, 820 (8th Cir.2006) (citing Drake ex rel. Cotton v. Koss, 445 F.3d 1038, 1042 (8th Cir.2006)).
Procedurally, the moving party bears the initial responsibility of informing the court of the basis for its motion, and must identify those portions of the record which it contends show a lack of a genuine issue of material fact. Heisler v. Metropolitan Council, 339 F.3d 622, 631 (8th Cir.2003) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)); see also Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir.1992) (same). Once the moving party has successfully carried its burden under Rule 56(c), the nonmoving party has an affirmative burden to go beyond the pleadings and by depositions, affidavits, or otherwise, designate "specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e); see, e.g., Baum v. Helget Gas Products, Inc., 440 F.3d 1019, 1022 (8th Cir. 2006) ("Summary judgment is not appropriate if the non-moving party can set forth specific facts, by affidavit, deposition, or other evidence, showing a genuine issue for trial."). The nonmoving party must offer proof "such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. "`Evidence, not contentions, avoids summary judgment.'" Reasonover v. St. Louis County, Mo., 447 F.3d 569, 578 (8th Cir.2006) (quoting Mayer v. Nextel W. Corp., 318 F.3d 803, 809 (8th Cir.2003)).
VI. DISCUSSION
A. Plaintiff's Motion for Partial Summary Judgment
In his Complaint, Folkers claims that Cleo's seizure by animal control officers, and the refusal to return Cleo while the appeal was pending, violated his right to "due process of law" as set forth in the Fifth and Fourteenth Amendments to the United States Constitution. Folkers seeks monetary damages pursuant to 42 U.S.C. Section 1983. In determining whether a plaintiff is entitled to recover in a Section 1983 action, the Court must determine whether he was deprived of a federal constitutional right by a person acting under color of state law.[3] Thus, the Court must address two "essential elements:"
[I]n any § 1983 action the initial inquiry must focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States.
Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981).
1. Was the Conduct Complained of Committed by Persons Acting Under Color of State Law?
The first question posed by Parratt is easily dispatched. It is undisputed that Animal Control Officers Darrel Johnson and Maria Tiller were acting "under color of state law." When they seized Cleo, Johnson and Tiller were clothed with the authority of the City of Waterloo and acted in their official capacities.
Furthermore, a Section 1983 action may be brought against a municipality. Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A municipality may not be held liable, however, "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Id. at 691, 98 S.Ct. 2018. That is, "a municipality cannot be held liable under § 1983 on a respondeat superior theory." Id. It is also important to note that "municipalities do not enjoy immunity from suiteither absolute or qualifiedunder § 1983." Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 166, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Accordingly, Folkers has established the first "essential element" of a 1983 action; namely, that the conduct complained of was committed by persons acting under color of state law.
2. Did the Conduct Deprive Folkers of a Constitutional Right?
To establish a valid Section 1983 claim, the plaintiff must identify the constitutional provision allegedly infringed. Baker v. McCollan, 443 U.S. 137, 142, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979). Folkers claims that he was deprived of his right to "due process of law" as set forth in the Fifth and Fourteenth Amendments. While the Complaint is not specific, in his brief Folkers argues a violation of both procedural due process and substantive due process.
a. Fourth Amendment
Before addressing the constitutional violations claimed by Folkers, it is perhaps useful to address the claims which are not pleaded. Specifically, Folkers does not claim a violation of the Fourth Amendment,[4] which protects people "against unreasonable searches and seizures."[5] "[S]eizures of property are subject to Fourth Amendment scrutiny even though no search within the meaning of the Amendment has taken place." Soldal v. Cook County, Ill, 506 U.S. 56, 68, 113 S.Ct. 538, 121 L.Ed.2d 450 (1992). A dog is considered property for Fourth Amendment purposes. Andrews v. City of West Branch, 454 F.3d 914, 918 (8th Cir.2006). "A seizure of property occurs when there is some meaningful interference with a person's possessory, interest in that property." Id. (emphasis in original) (quoting Lesher v. Reed, 12 F.3d 148 (8th Cir. 1994)).[6]
If a party claims a violation of the Fourth Amendment, then the Court must determine whether the seizure of the property was "reasonable." Generally, a seizure of personal property is "per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause." United States v. Place, 462 U.S. 696, 701, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983). When a seizure occurs without a warrant, as in the instant action, the Court "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." Id. at 703, 103 S.Ct. 2637.
When a municipality interferes with a person's possessory interest in his dog, the claimant generally argues that the seizure was unreasonable and a violation of the Fourth Amendment.[7] In the instant action, Defendants argue that they had "substantial governmental interests" in seizing Cleo and holding her while the appeal was pending. A determination of whether a seizure is "reasonable" under the Fourth Amendment "requires a careful balancing of `the nature and quality of the intrusion on the individual's Fourth Amendment interests' against the countervailing governmental interests at stake." Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989) (quoting Place, 462 U.S. at 703, 103 S.Ct. 2637). It is unnecessary for the Court to conduct that balancing analysis, however, because Folkers does not allege a violation of the Fourth Amendment. Samuels v. Meriwether, 94 F.3d 1163, 1168 (8th Cir.1996) (recognizing the distinction between the Fourth Amendment "reasonableness standard" and the Fourteenth Amendment "notice and hearing requirements.").
b. Fifth Amendment
Instead, Folkers alleges that Cleo's seizure and continued detention pending the appeal violated his due process rights under the Fifth and Fourteenth Amendments. The Fifth Amendment provides, in part, that no person shall "be deprived of life, liberty, or property, without due process of law." Similarly, the Fourteenth Amendment provides, in part: "nor shall any State deprive any person of life, liberty, or property, without due process of law." While certain provisions in the Fifth Amendment are applicable to the States through the Fourteenth Amendment,[8] the Due Process Clause of the Fifth Amendment applies to the federal government. Dusenbery v. United States, 534 U.S. 161, 167, 122 S.Ct. 694, 151 L.Ed.2d 597 (2002) ("The Due Process Clause of the Fifth Amendment prohibits the United States, as the due process clause of the Fourteenth Amendment prohibits the States from depriving any person of property without `due process of law.'"); Warren v. Government Nat. Mort. Ass'n., 611 F.2d 1229, 1232 (8th Cir.1980) (the Due Process Clause of the Fifth Amendment applies to the federal government, while the Fourteenth Amendment Due Process Clause applies to the States); Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 8 (1st Cir.2007) ("The Fifth Amendment Due Process Clause, however, applies `only to actions of the federal government-not to those of state or local governments.'"); Morin v. Caire, 77 F.3d 116, 120 (5th Cir.1996) ("the Fifth Amendment applies only to the actions of the federal government, and not to the actions of a municipal government as in the present case."). Accordingly, the Court concludes that Folkers' due process claims are properly analyzed under the provisions of the Fourteenth Amendment.[9]
c. Fourteenth Amendment
In his Complaint, Folkers alleges Defendants' actions violated his Fourteenth Amendment right to due process of law. In his brief, Folkers argues a violation of both procedural due process and substantive due process.
(1) Procedural Due Process
A procedural due process claim under Section 1983 requires a two-step analysis: first, the Court must determine whether there exists a liberty or a property interest which has been interfered with by one who acted under color of state law; and second, the Court must determine whether the procedures accompanying that deprivation were constitutionally sufficient. Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989). See also Krentz v. Robertson, 228 F.3d 897, 902 (8th Cir.2000).
As discussed above, it is undisputed that Defendants were acting under color of state law when they seized Cleo and continued to detain her while an appeal was pending. The Court also concludes that the 100-day detention of Cleo constituted a "meaningful interference" with Folkers' possessory interest in his dog. In Skinner v. Chapman, 326 F.Supp.2d 431 (W.D.N.Y.2004), the Court concluded that an 11-day detention for purposes of observing the dog for rabies "does not rise to the level of a constitutional deprivation of property." Id., at 433. That detention was brief, however, and for a pre-determined period of time. In this case, Cleo's detention was open-ended and extended for a substantial length of time. "[I]t is now well settled that a temporary, nonfinal deprivation of property is nonetheless a `deprivation' in terms of the Fourteenth Amendment." Fuentes v. Shevin, 407 U.S. 67, 84-85, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).
Accordingly, the Court turns to the second step of the analysis and addresses the question of "whether the procedures accompanying that deprivation were constitutionally sufficient." At the outset, the Court notes that the issue, as in Parratt, is one of due process. That is, Folkers does not allege a Fourth Amendment violation. See Parratt, 451 U.S. at 536, 101 S.Ct. 1908. It is not sufficient that Folkers merely establish a deprivation of his possessory interest in Cleo by persons acting under color of state law, he must also establish that the deprivation was without procedural due process.
Unquestionably, respondent's claim satisfies three prerequisites of a valid due process claim: the petitioners acted under color of state law; the hobby kit falls within the definition of property; and the alleged loss, even though negligently caused, amounted to a deprivation. Standing alone, however, these three elements do not establish a violation of the Fourteenth Amendment. Nothing in that Amendment protects against all deprivations of life, liberty, or property by the State. The Fourteenth Amendment protects only against deprivations "without due process of law."
Id. at 536-537, 101 S.Ct. 1908.
Cleo was seized by Waterloo animal control officers on August 28, 2007, with some prior notice, but without any prior opportunity to be "heard." Hearing on the issue was scheduled before the Waterloo City Council on September 24, 2007, but the hearing was continued at Folkers' request. Cleo was returned to Folkers' possession shortly after a hearing before the City Council on December 3, 2007.
There is no "one size fits all" formula for what process is due in all circumstances. "An essential principle of due process is that a deprivation of life, liberty, or property `be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965). The Court has rejected, however, "the proposition that `at a meaningful time and in a meaningful manner' always requires the State to provide a hearing prior to the initial deprivation of property." Parratt, 451 U.S. at 540, 101 S.Ct. 1908. In certain cases, "either the necessity of quick action by the State or the impracticality of providing any meaningful pre-deprivation process, when coupled with the availability of some meaningful means by which to access the propriety of the State's action at some time after the initial taking, can satisfy the requirements of procedural due process." Id. at 539, 101 S.Ct. 1908.
In this case, Defendants argue that public safety required Cleo's seizure without waiting for a hearing. Defendants had reliable information that Cleo had inflicted life-threatening injuries on a neighbor's dog and was often running at large. The potential danger to the public and property posed by an aggressive dog running at large may require immediate action. Phillips v. San Luis Obispo County, 183 Cal.App.3d 372, 379, 228 Cal.Rptr. 101 (Cal.App.1986) ("It is obvious that summary seizure of dogs must be permitted when of immediate danger to the public, as for example when the dog is vicious or rabid. In that situation, the governmental interest in protecting the personal and property rights of others is paramount to the property right of the dog owner."). In fact, Folkers apparently concedes that Defendants had the right to initially seize Cleo, but argues that Cleo's continued detention pending the appeal denied him due process.
Plaintiff does not contend that the City had no right whatsoever to initially seize his dog, he complains that the clear language of the city's ordinance required that the dog be returned to him while the appeal was pending.
Plaintiff's Brief in Resistance (docket number 57-2) at 3.
Folkers does not claim that Cleo's initial seizure on August 28, 2007 violated his constitutional rights, and it should be recalled that Cleo was returned to Folkers immediately following the hearing before the City Council on December 3, 2007. Instead, Folkers' principal complaint is the decision of the Waterloo City Council on September 24, 2007 to detain Cleo pending a final determination regarding whether he was a "dangerous dog" within the meaning of the City ordinance.[10] This claim, however, is not a procedural due process claim. That is, Folkers does not argue that he was denied a hearing, or that the hearing was untimely. Rather, he complains that the decision reached by the City Council following the hearing was arbitrary, unreasonable, and in violation of the city ordinance. The hearing was held "at a meaningful time and in a meaningful manner." The Court concludes that the post-deprivation hearing provided in this case satisfied Folkers' right to procedural due process.
(2) Substantive Due Process
Next, Folkers argues that the City Council's decision to detain Cleo during the pendency of Folkers' appeal was "so irrational as to be arbitrary," thereby violating his right to substantive due process as guaranteed by the Fourteenth Amendment.[11] The only case cited by Folkers in support of his substantive due process claim, however, deals with procedural due process under the Fourteenth Amendment and an allegedly unreasonable seizure under the Fourth Amendment.[12] Defendants argue that they did not violate Folkers' right to substantive due process and, in any event, Folkers was required to challenge the allegedly arbitrary decision to detain Cleo under the "reasonableness" standard found in the Fourth Amendment.
In Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), a claim was brought against law enforcement officers, alleging the use of excessive force during an investigatory stop. The plaintiff brought an action pursuant to 42 U.S.C. § 1983, alleging defendants "used excessive force in making the investigatory stop, in violation of `rights secured to him under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983.'" Id. at 390, 109 S.Ct. 1865. The lower federal courts applied a four-part substantive due process test identified in Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973). The Supreme Court remanded, finding that the claim should have been analyzed pursuant to the "unreasonable seizure" provision of the Fourth Amendment. In reaching that conclusion, the Court found that the "explicit" protections of the Fourth Amendment should be used, rather than the "generalized notion" of substantive due process found in the Fourteenth Amendment.
Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of "substantive due process," must be the guide for analyzing these claims.
Id. at 395, 109 S.Ct. 1865.
Similarly, in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), the Court held that "it is the Fourth Amendment, and not substantive due process, under which petitioner Albright's claim must be judged." Id. at 271, 114 S.Ct. 807. Petitioner alleged malicious prosecution, but limited his claim to one of substantive due process. Id. ("Petitioner's claim before this Court is a very limited one."). In concluding that the Section 1983 action should have been brought under the Fourth Amendment, the Court expressed doubts about the expansion of substantive due process claims.
"As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.
Id. at 271-272, 114 S.Ct. 807 (quoting Collins v. Harker Heights, 503 U.S. 115, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992)).
Affirming the lower court's dismissal of the action, the Court concluded that petitioner's failure to seek a Fourth Amendment remedy was fatal to his claim.
We express no view as to whether petitioner's claim would succeed under the Fourth Amendment, since he has not presented that question in his petition for certiorari. We do hold that substantive due process, with its "scarce and open-ended" "guideposts," can afford him no relief.
Id. at 275, 114 S.Ct. 807 (internal citation omitted).
In Andrews v. City of West Branch, 454 F.3d 914 (8th Cir.2006), plaintiffs brought a Section 1983 action alleging a law enforcement officer "wrongfully seized and deprived them of their property" when he shot and killed their dog. Id. 916. They based their action on Fourth and Fourteenth Amendment claims, as well as alleged violations of state tort law. The district court entered summary judgment on defendants' behalf. On appeal, the Eighth Circuit Court of Appeals remanded on the Fourth Amendment claim of whether the shooting was "objectively reasonable," but summarily affirmed the dismissal of plaintiffs' substantive due process claim, finding it to be "without merit." Id. at 917.
Similarly, the plaintiff in Dziekan v. Gaynor, 376 F.Supp.2d 267 (D.C.Conn. 2005), brought a Section 1983 action after his dog was shot and killed by a police officer. In granting summary judgment, the district court balanced the "intrusion on the plaintiff's Fourth Amendment rights against the countervailing governmental interest at stake." Id. at 270-271. The Court concluded that the shooting was objectively reasonable. The Court also found that the substantive due process provisions of the Fourteenth Amendment did not provide plaintiff with any additional relief.
Plaintiff provides no argument that his allegations of the substantive due process violation are not already covered by the Fourth Amendment claim. Accordingly, the Court will grant the defendants' motion for summary judgment on the substantive due process claim. See Andrews v. City of West Branch, 2004 WL 2808385 n. 1 (N.D.Iowa 2004) (where officer killed pet dog, substantive due process claim was not warranted since Fourth Amendment provided explicit protection against unreasonable seizure).
Id. at 270.
The Court concludes that Folkers' claim that Cleo was improperly detained while his appeal was pending implicates the protection against "unreasonable seizures" found in the Fourth Amendment. A Fourth Amendment "objective reasonableness" standard would require a balancing of the governmental interests in detaining Cleo against Folkers' possessory interest in his dog. See, e.g., Graham, 490 U.S. at 396, 109 S.Ct. 1865; Place, 462 U.S. at 701, 103 S.Ct. 2637. Whether Defendants complied with the city ordinances in deciding to detain Cleo would be a factor in determining if their decision was objectively reasonable. The Court is not required to make that determination, however, because Folkers has not claimed a Fourth Amendment violation.
Even if the Court determined that Folkers' claim was properly analyzed under the substantive due process provisions of the Fourteenth Amendment, rather than the unreasonable seizure provisions of the Fourth Amendment, it nonetheless concludes that Folkers is not entitled to relief. "[O]nly the most egregious official conduct can be said to be `arbitrary in the constitutional sense.'" County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Collins, 503 U.S. at 129, 112 S.Ct. 1061). To meet the high standard required to establish a substantive due process claim, the wrongful conduct must "shock the conscience" and violate the "decencies of civilized conduct." Id. at 846, 118 S.Ct. 1708 (citing Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952)). The conduct must be "so `brutal' and `offensive' that it did not comport with traditional ideas of fair play and decency," or that it "interferes with rights `implicit in the concept of ordered liberty.'" Id. (citing Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957), and United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987)). In the instant action, the City Council had reliable information that Cleo had seriously injured a neighbor's dog and was sometimes allowed to run loose. Under these circumstances, the Court cannot say that the decision to detain Cleo "shocks the conscience," notwithstanding the City Council's apparent failure to comply with the provisions of the city ordinances.
d. Summary
In summary, the Court concludes that since Folkers does not allege wrongdoing by any federal actor, the due process clause of the Fifth Amendment is inapplicable. The Court concludes that Folkers was afforded procedural due process, as required by the Fourteenth Amendment. The question of whether the decision to detain Cleo was unreasonable or arbitrary, implicates the "unreasonable seizure" provisions of the Fourth Amendment, rather than the substantive due process provisions of the Fourteenth Amendment. Even if the substantive due process provisions of the Fourteenth Amendment were otherwise applicable, however, the Court finds, as a matter of law, that Defendants' actions do not "shock the conscience." Since Folkers did not raise a Fourth Amendment claim, the Court is not required to determine whether the decision to detain Cleo, an apparent violation of the city ordinances, was "objectively unreasonable." Therefore, Plaintiff has not established liability against. Defendants and his motion for partial summary judgment will be denied.
B. Defendants' Motion for Summary Judgment
For all of the reasons that Plaintiff is not entitled to partial summary judgment on the issue of liability, the Court concludes that Defendants are entitled to summary judgment and dismissal of the Complaint. In his motion for partial summary judgment, Folkers concedes that "[i]f as a matter of law Folkers did not suffer a deprivation of his property without due process of law for the period of 100 days in which Defendants deprived Folkers of his property interest in his dog Cleo, Defendants are entitled to Summary Judgment dismissing Folkers' action against them." Motion for Partial Summary Judgment (docket number 48), ¶ 9 at 3. Accordingly, for the reasons set forth above, Defendants' motion for summary judgment will be granted.[13]
VII. ORDER
IT IS THEREFORE ORDERED as follows:
1. The Motion for Partial Summary Judgment (docket number 48) filed by the Plaintiff on June 2, 2008 is hereby DENIED.
2. The Motion for Summary Judgment (docket number 52) filed by the Defendants on August 12, 2008 is hereby GRANTED.
3. The Complaint (docket number 2) filed by the Plaintiff on September 25, 2007 is hereby DISMISSED.
NOTES
[1] Apparently, the hearing was continued from October 8 to December 3 due to the pendency of the request for temporary injunction in the instant action.
[2] Appendix in Support of Defendants' Resistance, Exhibit 11 (docket number 53-4 at 47).
[3] Section 1983 itself does not confer any substantive rights, "but merely provides `a method for vindicating federal rights elsewhere conferred.'" Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994).
[4] The Fourth Amendment provides, in part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
[5] The Fourth Amendment restraint against unreasonable search and seizure is also applicable to the States. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
[6] At least one court has held that the temporary taking of a dog does not constitute a "meaningful interference with an individual's possessory interests in that property" and "does not raise a constitutional violation." Skinner v. Chapman, 326 F.Supp.2d 431, 434 (W.D.N.Y.2004).
[7] Most of the cases involve the shooting and killing of a dog, which undoubtedly constitutes a "seizure" within the meaning of the Fourth Amendment. See, e.g., Hatch v. Grosinger, 2003 WL 1610778 (D.Minn.) at *4.
[8] See, e.g., Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) ("We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgement by the States."); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (holding the Double Jeopardy Clause of the Fifth Amendment applicable to the States); but see, Hurtado v. California, 110 U.S. 516, 527, 4 S.Ct. 292, 28 L.Ed. 232 (1884) (Grand Jury provisions of the Fifth Amendment are not applicable to the States through the Fourteenth Amendment).
[9] While the Court has concluded that the Fifth Amendment has no application to this case since there is no allegation of wrongdoing by a federal actor, this conclusion does not have any practical effect on the analysis. The Due Process Clauses of the Fifth and Fourteenth Amendments are "textually identical" and "both proscribe virtually identical governmental conduct." Carhart v. Gonzales, 413 F.3d 791, 795 (8th Cir.2005) at n. 2.
[10] Section 5-1B-1(B) of the Waterloo City Ordinances defines a "dangerous dog" as "any dog which attacks a human being or other domestic animal without provocation." By the time the matter came on for hearing on December 3, 2007, Folkers was no longer contesting the issue of whether Cleo is a "dangerous dog" as defined by the Ordinance.
[11] "Plaintiff has not alleged an illegal seizure of his dog, he has alleged that by failing to follow it's [sic] own ordinances the defendants have denied him due process." Plaintiff's Brief in Resistance (docket number 57-2) at 3.
[12] Audio Odyssey Ltd. v. Brenton First Nat'l Bank, 245 F.3d 721 (8th Cir.2001).
[13] The City of Waterloo apparently intends to pursue a claim against Folkers in Small Claims Court for $1,030 allegedly due for boarding fees while Cleo was in the City's possession. The Court makes no judgment regarding whether the City is entitled to collect boarding fees under these circumstances, when Folkers was actively seeking the dog's return to him.
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111 Ariz. 493 (1975)
533 P.2d 660
Howard H. POLK and Ardella Polk, husband and wife, Appellants,
v.
Ralph L. KOERNER and Bonnie J. Koerner, husband and wife, Appellees.
No. 11707.
Supreme Court of Arizona, In Division.
April 3, 1975.
*494 Leibsohn, Eaton, Gooding & Romley, P.C. by William H. Gooding and Jeffrey M. Proper, Phoenix, for appellants.
Evans & Kunz, Ltd. by Jack E. Evans, Phoenix, for appellees.
HAYS, Justice.
In May, 1966, Howard Polk and Ralph Koerner entered into an agreement whereby Koerner would pay all of the expenses of Polk's dental practice except laboratory fees, and provide Polk with supplies, dental equipment, and office personnel. In consideration, Polk agreed to pay to Koerner a percentage of all amounts collected by Polk for dental services performed by him while in Koerner's office. A written agreement to this effect was signed by the parties on December 30, 1968. On July 14, 1971, Polk and Koerner entered into a second agreement whereby the previous one was "cancelled and annulled" although the parties continued to operate as they had before the written agreement. In November of that year, Polk left Koerner's office. At that time, Polk had performed approximately $27,000 worth of work from Koerner's office for which he had not yet been paid by the patients. Polk retained responsibility for billing his patients.
Telescoping the sequence of events, Koerner first asked Polk for Koerner's percentage of the accounts as they were paid to Polk and then, after Polk refused, asked Polk's patients to remit that percentage to Koerner and the remainder to Polk. Polk instituted this action against Koerner for declaratory judgment, accounting, interference with business relations, and defamation of character. The issue of declaratory judgment was tried first by stipulation of the parties. The trial court entered a judgment for the defendant, Koerner. The plaintiff appealed and this court has taken jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court.
On appeal, the evidence will be viewed in the strongest light in favor of the appellee, and if there is any reasonable evidence to support the judgment of the trial court, it will be sustained. Kellogg v. Bowen, 85 Ariz. 304, 337 P.2d 628 (1959). Where findings of fact have been made, they will be considered binding unless clearly contrary to the evidence. Aztec Film Productions v. Tucson Gas & Electric Co., 11 Ariz. App. 241, 463 P.2d 547 (1969). Any inconsistency in the findings of fact will be construed to support the judgment. Austin Paving Co. v. Cimarron Construction Co., 511 S.W.2d 417 *495 (Tex.Civ.App. 1974). This court is not, of course, bound by the trial court's conclusions of law; the interpretation of an instrument is a question of law to be determined by this court independently. State Farm Fire & Casualty Co. v. Rossini, 107 Ariz. 561, 490 P.2d 567 (1971). However, having accepted the trial court's findings of fact as we have done in this case, we will accept the conclusions of law that necessarily follow. Sam Levitz Furniture Co. v. Safeway Stores, Inc., 105 Ariz. 329, 464 P.2d 612 (1970).
The trial court concluded as a matter of law that the agreement of December 30, 1968, was ambiguous and susceptible of two interpretations: (a) that plaintiff was to pay to defendant a portion of the accounts receivable collected only during the period of time the plaintiff and defendant shared offices, or (b) that plaintiff was to pay the defendant a percentage of the accounts collected as they were collected, including collections made after plaintiff left the defendant's office for work done by plaintiff during the time he shared defendant's office.
It is a fundamental rule in the interpretation of contracts that the court must ascertain and give effect to the intention of the parties at the time the contract was made if at all possible. Employer's Liability Assurance Co. v. Lunt, 82 Ariz. 320, 313 P.2d 393 (1957). Where the written language of the agreement offers more than one reasonable interpretation, the surrounding circumstances at the time that it was made should be considered in ascertaining its meaning. Crone v. Amado, 69 Ariz. 389, 214 P.2d 518 (1950); 4 Williston on Contracts, § 618 (3d ed.).
The trial court found that the second interpretation was in accord with the intention of the parties. We concur with that position. The second interpretation comports with the arrangement between the two men before it was formally incorporated into a written agreement.
The rule of construction that an ambiguity of language is resolved against the maker of the contract, the defendant in this instance, is a secondary rule of construction to be applied only if the meaning remains uncertain after the application of the primary standards utilized above. Arizona Land Title & Trust Co. v. Safeway Stores, Inc., 6 Ariz. App. 52, 429 P.2d 686 (1967); Restatement of the Law of Contracts, § 236(d). We do not find it necessary in this case to resort to a secondary rule of construction.
Furthermore, we find the second interpretation to be one which gives the more "reasonable, lawful and effective meaning to all manifestations of intention" and it is therefore preferred. Employer's Liability Assurance Co. v. Lunt, supra; Restatement of the Law of Contracts, § 236(a). Although the accounts for work done by Polk while utilizing Koerner's facilities had not yet been paid, they were due at the time that Polk left Koerner's office.
The cancellation agreement rescinded the agreement of December 30, 1968, and returned the parties to their prior arrangement until the time that Polk actually left Koerner's office.
"`To rescind a contract is not merely to terminate it, but to abrogate and undo it from the beginning; that is, not merely to release the parties from further obligation to each other in respect to the subject to the contract, but to annul the contract and restore the parties to the relative positions which they would have occupied if no such contract had ever been made....' Black on Rescission and Cancellation, 2d ed., vol. 1, sec. 1, p. 1." Reed v. McLaws, 56 Ariz. 556, 562-63, 110 P.2d 222, 225 (1941).
The arrangement incorporated by the contract was, in fact, the prior arrangement. While the contract became a nullity after the cancellation agreement, in reality, the situation remained fundamentally unchanged. By continuing their association after the cancellation agreement, the parties impliedly agreed to operate on the same financial basis as before the first agreement was executed.
*496 We therefore affirm the judgment of the trial court holding that Polk is obligated to pay to Koerner 45% of all amounts collected of the accounts arising from work performed by Polk while in the defendant's office in accordance with the procedures set forth by the trial judge in his order of January 2, 1973.
Affirmed.
CAMERON, C.J., and HOLOHAN, J., concur.
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71 Cal.Rptr.3d 250 (2008)
175 P.3d 1
PEOPLE
v.
McNEAL (Timmie Lance).
No. S157565.
Supreme Court of California.
January 3, 2008.
The petitions for review are granted (criminal case).
GEORGE, C.J., and KENNARD, BAXTER, CHIN, MORENO, and CORRIGAN, JJ., concur.
WERDEGAR, J., was absent and did not participate.
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 11, 2006
No. 05-13778
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-20580-CV-ASG
FABIAN LOGREIRA,
Petitioner-Appellant,
versus
SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,
James V. Crosby,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 11, 2006)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Fabian Logreira, a Florida state prisoner proceeding pro se, appeals the
dismissal of his habeas corpus petition, 28 U.S.C. § 2254, as barred by the
one-year statute of limitations of the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 (1996). On appeal,
Logreira argues that the time for filing his petition was equitably tolled for 224
days -- between July 11, 2001, and February 19, 2002 -- because the Florida Third
District Court of Appeal (“Third DCA”) failed to serve him with a copy of its order
denying state habeas corpus relief during that time. He claims that he met the
requirements for equitable tolling set forth in Knight v. Schofield, 292 F.3d 709,
711 (11th Cir. 2002), because he had no control over the Third DCA’s failure to
notify him, and he acted with due diligence by repeatedly inquiring about the
outcome of the state petition beginning in December 2001. After careful review,
we affirm.
We review de novo the district court’s decision to deny equitable tolling.
See Drew v. Dep’t of Corr., 297 F.3d 1278, 1283 (11th Cir. 2002). However, our
review of the district court’s determination of the relevant facts, including those
related to a petitioner’s due diligence, is for only clear error. Id. “This standard
requires us to affirm a district court’s findings of fact unless the record lacks
substantial evidence to support that determination.” Id. (quotation omitted). We
2
have noted that clear error is “a very high standard, and one we would rarely be
likely to find.” Id. at 1290 (quotation and citation omitted).
The AEDPA imposes a one-year statute of limitations for filing a § 2254
habeas petition, which begins to run following one of four events, including, inter
alia, “the date on which the judgment became final . . . .” 28 U.S.C. § 2244(d)(1).
A judgment becomes “final” on the date on which the U.S. Supreme Court issues a
decision on the merits of the petitioner’s direct appeal, denies certiorari, or after the
expiration of the 90 days in which the petitioner could file such a petition. See
Bond v. Moore, 309 F.3d 770, 773 (11th Cir. 2002). “The time during which a
properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward
any period of limitation . . . .” 28 U.S.C. § 2244(d)(2).
While the AEDPA’s statute of limitations can be equitably tolled where a
petitioner “untimely files because of extraordinary circumstances that are both
beyond his control and unavoidable even with diligence,” Steed v. Head, 219 F.3d
1298, 1300 (11th Cir. 2000) (quotation omitted), this remedy is extraordinary and
is applied sparingly, Drew, 297 F.3d at 1286. “Equitable tolling is limited to rare
and exceptional circumstances, such as when the State’s conduct prevents the
petitioner from timely filing.” Lawrence v. Florida, 421 F.3d 1221, 1226 (11th
3
Cir. 2005). The petitioner bears the burden of showing that equitable tolling is
warranted. See Drew, 297 F.3d at 1286.
We have ruled that a petitioner was entitled to equitable tolling where the
state court had assured the petitioner that it would contact him as soon as a
decision was made, the court subsequently sent notice of the decision to the wrong
person, and the petitioner demonstrated diligence in inquiring about the status of
his case when the court failed to contact him after 15 months. Knight, 292 F.3d at
710-711. In Knight, however, we observed that a habeas petitioner is not
necessarily entitled to “equitable tolling until he receives notice.” Id. at 711;
see also Drew, 297 F.3d at 1289 (holding that habeas petitioner was not entitled to
equitable tolling where he claimed to have contacted the state court by mail, but
provided no copies of the letters and did not make attempts to contact the court in
another manner, such as calling or seeking help from a person with the ability to go
to the court personally).
Here, Logreira began contacting the Florida appellate court to inquire about
the status of his state habeas petition nine months sooner than the petitioner in
Knight initiated his inquiries to the Georgia Supreme Court. Knight, 292 F.3d at
710-11. However, unlike in Knight, here there was no personal assurance
indicating that Logreira would be contacted at the conclusion of his case. Cf.
4
Knight, 292 F.3d 711. Moreover, while Logreira provided evidence of his repeated
attempts to contact the Florida appellate court through mail, he did not show that
he took any steps, other than mailing letters, to gain information concerning his
petition. Drew, 297 F.3d at 1289. Finally, after he learned that his state habeas
application had been denied, Logreira waited six months to file the instant § 2254
petition and he provides no explanation, let alone a causal connection, between his
delayed receipt of the Third DCA’s decision and his untimely filing of his § 2254
petition. Cf. Lawrence, 421 F.3d at 1226-27 (refusing to invoke equitable tolling
where habeas petitioner did not establish “a causal connection between his alleged
mental incapacity and his ability to file a timely petition”).
On this record, we cannot find clear error in the district court’s finding that
Logreira failed to meet his burden of showing that he exercised sufficient due
diligence in inquiring with the Florida appellate court concerning the disposition of
his state habeas petition. Accordingly, we will not reverse the district court’s
decision on this basis and affirm the denial of habeas relief. See Drew, 297 F.3d at
1289-90.
AFFIRMED.
5
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594 F.2d 239
Haynesv.Bank of Wedowee*
No. 78-3135
United States Court of Appeals, Fifth Circuit
4/3/79
1
M.D.Ala.
2
REVERSED AND REMANDED***
*
Summary Calendar case; Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409
***
Opinion contains citation(s) or special notations
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876 F.2d 103
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.Michael DAMIEN, Plaintiff-Appellant,v.Tony YOUNG, Mr. Winslow, John Source, Mr. Fleming,Defendants-Appellees.
No. 88-6267.
United States Court of Appeals, Sixth Circuit.
June 9, 1989.
Before KENNEDY, NATHANIEL R. JONES and WELLFORD, Circuit Judges.
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 briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Plaintiff Damien filed a civil rights action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), in which he alleged that the defendants interfered with certain first and fourteenth amendment rights during his incarceration at the Federal Correctional Institution, Memphis, Tennessee. The district court permanently enjoined the defendants from violating the prison mail policies in question. This ruling was not the subject of an appeal. The district court also dismissed the remainder of plaintiff's claims. The dismissal decision is before the court in the instant appeal. The parties have briefed the issues, plaintiff proceeding pro se. Plaintiff, in addition, filed motions for the appointment of appellate counsel and for the preparation of district court hearing transcripts at government expense.
3
Upon consideration, we agree with the district court's entire disposition of the case. We find ample support in the record for the conclusion that the disciplinary proceedings complained of were supported by the constitutionally mandated quantum of evidence under Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56 (1985). We also find plaintiff failed to demonstrate any actual injury in support of his claim for monetary damages for mail interference.
4
Accordingly, the motions are denied and the district court's judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.
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Cite as 2015 Ark. 209
SUPREME COURT OF ARKANSAS
No. CR-14-965
WENDIE COX Opinion Delivered May 14, 2015
APPELLANT
APPEAL FROM THE COLUMBIA
V. COUNTY CIRCUIT COURT
[NO. CR-2012-79-5]
STATE OF ARKANSAS
APPELLEE HONORABLE LARRY W.
CHANDLER, JUDGE
AFFIRMED.
RHONDA K. WOOD, Associate Justice
Wendie Cox appeals the denial of her petition for postconviction relief under
Arkansas Rule of Criminal Procedure 37. We affirm the circuit court’s denial of her
petition.
Cox was convicted on multiple counts of theft of property for her involvement in
stealing horses and equipment from Southern Arkansas University. She was sentenced to
60 years of imprisonment. Her conviction was affirmed on appeal. Cox v. State, 2014 Ark.
App 321. She subsequently filed a pro se petition for relief under Rule 37. She alleged a
number of grounds for relief, including ineffective assistance of counsel; however, the
circuit court denied her petition without a hearing. The circuit court’s order denying her
petition addressed each allegation individually, and eight of the claims were denied
because of Cox’s failure to state sufficient facts to warrant relief.
Cox—now represented by counsel—appeals from the circuit court’s order. Instead
of arguing the merits of any of the numerous claims listed in Cox’s original pro se
Cite as 2015 Ark. 209
petition, her attorney makes a new argument on appeal that was never presented to the
circuit court. Cox argues that the generic Rule 37 petition generally filed by incarcerated
individuals instructed her to “not cite cases” and to “not argue” with respect to the facts
supporting her petition. According to Cox, the form discouraged her from properly
pleading her case, and the circuit court then improperly used the lack of specificity in her
petition to deny her relief. Cox argues that she provided all of the details that could have
been reasonably included on the form and that justice required the circuit court to either
allow her an opportunity to plead her case outside the confines of the Rule 37 form, such
as by hearing, or by allowing her to plead with an expanded form.
We decline to reach the merits argued in Cox’s appeal because she never presented
her argument to the circuit court. The law is well settled that issues raised for the first time
on appeal, even constitutional ones, will not be considered because the trial court never
had an opportunity to rule on them. London v. State, 354 Ark. 313, 125 S.W.3d 813
(2003). A petition under Rule 37 shall not exceed ten pages. Ark. R. Crim. P. 37.1(b).
Cox, who utilized only five of her ten available pages, never gave any indication to the
trial court that the form prevented or otherwise discouraged her from stating all of the
facts she wished to include in her petition. Indeed, the form invites petitioners to attach
additional pages if necessary, an option that Cox declined. Cox was also free to file a
motion demonstrating that she would be unable to present her claims in only ten pages
and request permission to file an overlength petition. See Washington v. State, 308 Ark.
322, 323, 823 S.W.2d 900, 901 (1992) (per curiam). Again, this was an option that Cox
2
Cite as 2015 Ark. 209
declined. Cox never attempted to apprise the circuit court of the argument she makes
now. Accordingly, we will not consider it for the first time on appeal.
Affirmed.
Kearney Law Offices, by: Jeffery H. Kearney, for appellant.
Leslie Rutledge, Att’y Gen., by: Vada Berger, Ass’t Att’y Gen., for appellee.
3
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32 F.3d 562
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.James JOYCE, Plaintiff-Appellant,v.BENEFITS MARKETING GROUP, INCORPORATED; The LincolnNational Life Insurance Company, Defendants-Appellees.
No. 93-2416.
United States Court of Appeals, Fourth Circuit.
Argued July 13, 1994.Decided Aug. 15, 1994.
Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, District Judge. (CA-93-475-A)
Argued Joseph Peter Drennan, Alexandria, VA, for appellant.
Charles H. Fleischer, Marsh, Fleischer & Quiggle, Chartered, Bethesda, MD, for appellees.
On brief William J. Bethune, Marsh, Fleischer, & Quiggle, Chartered, Bethesda, MD, for appellees.
E.D.Va.
AFFIRMED.
Before ERVIN, Chief Judge, MURNAGHAN, Circuit Judge, and BUTZNER, Senior Circuit Judge.
OPINION
PER CURIAM:
1
Appellant James Joyce, an insurance broker, brought this action against The Lincoln National Life Insurance Company and its wholly owned affiliate, Benefits Marketing Group (collectively, the "Insurers") in April 1993, claiming damages for commissions on sales of insurance policies to a prospective client that Joyce allegedly lost as a result of the Insurers' negligence, negligent misrepresentation, tortious interference with prospective economic advantage, and breach of covenant of good faith and fair dealing.
2
The district court granted summary judgment in favor of the Insurers on all claims on the grounds that the Insurers owed Joyce no duty independent of those contained in the "Producer Contract," which governed the contractual relationship between the Insurers and Joyce, and that there was no causal connection between the Insurers' alleged failures and Joyce's claimed loss of commissions. Joyce timely appealed the district court's judgment. His appeal is limited to the claims of negligent misrepresentation and breach of covenant of good faith and fair dealing.
3
Having considered the record in this case and the briefs, and after oral argument, we find that the opinion of the district court thoroughly investigated the relevant facts and reached the correct conclusions of law. James Joyce v. Lincoln National Life Insurance Co. and Benefits Marketing Group, No. 93-475-A (E.D. Va. October 5, 1993). We find no error in the reasoning or judgment of the district court and, therefore, affirm on that basis.
4
AFFIRMED.
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317 U.S. 519 (1943)
AMERICAN MEDICAL ASSOCIATION
v.
UNITED STATES.[*]
No. 201.
Supreme Court of United States.
Argued December 11, 14, 1942.
Decided January 18, 1943.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA.
*520 Messrs. Seth W. Richardson and William E. Leahy, with whom Messrs. Edward M. Burke and Charles S. Baker were on the brief, for petitioners.
Mr. John Henry Lewin and Assistant Attorney General Arnold, with whom Solicitor General Fahy and Messrs. Charles H. Weston and Richard S. Salant were on the brief, for the United States.
*526 MR. JUSTICE ROBERTS delivered the opinion of the Court.
Petitioners have been indicted and convicted of conspiring to violate § 3 of the Sherman Act,[1] by restraining trade or commerce in the District of Columbia. They are respectively corporations of Illinois and of the District of Columbia. Joined with them as defendants were two unincorporated associations and twenty-one individuals, some of whom are officers or employes of one or other of the petitioners, the remainder being physicians practicing in the District of Columbia and members of the petitioners serving, as to some of them, on various committees of the petitioners having to do with professional ethics and with the practice of medicine by petitioners' members.
For the moment it is enough to say that the indictment charged a conspiracy to hinder and obstruct the operations of Group Health Association, Inc., a nonprofit corporation organized by Government employes to provide medical care and hospitalization on a risk-sharing prepayment basis. Group Health employed physicians on a full time salary basis and sought hospital facilities for the treatment of members and their families. This plan was contrary to the code of ethics of the petitioners. The indictment *527 charges that, to prevent Group Health from carrying out its objects, the defendants conspired to coerce practicing physicians, members of the petitioners, from accepting employment under Group Health, to restrain practicing physicians, members of the petitioners, from consulting with Group Health's doctors who might desire to consult with them, and to restrain hospitals in and about the City of Washington from affording facilities for the care of patients of Group Health's physicians.
The District Court sustained a demurrer to the indictment on the grounds, amongst others, that neither the practice of medicine nor the business of Group Health is trade as the term is used in the Sherman Act.[2] On appeal the Court of Appeals reversed, holding that the restraint of trade prohibited by the statute may extend both to medical practice and to the operations of Group Health.[3]
The case then went to trial in the District Court. Certain defendants were acquitted by direction of the judge. As to the others, the case was submitted to the jury, which found the petitioners guilty and all the other defendants not guilty. From judgments of conviction the petitioners appealed to the Court of Appeals, which reiterated its ruling as to the applicability of § 3 of the Sherman Act, considered alleged trial errors, and affirmed the judgments.[4]
We granted certiorari limited to three questions which we thought important: 1. Whether the practice of medicine and the rendering of medical services as described in the indictment are "trade" under § 3 of the Sherman Act. 2. Whether the indictment charged or the evidence *528 proved "restraints of trade" under § 3 of the Sherman Act. 3. Whether a dispute concerning terms and conditions of employment under the Clayton and Norris-LaGuardia Acts was involved, and, if so, whether petitioners were interested therein, and therefore immune from prosecution under the Sherman Act.
First. Much argument has been addressed to the question whether a physician's practice of his profession constitutes trade under § 3 of the Sherman Act. In the light of what we shall say with respect to the charge laid in the indictment, we need not consider or decide this question.
Group Health is a membership corporation engaged in business or trade. Its corporate activity is the consummation of the cooperative effort of its members to obtain for themselves and their families medical service and hospitalization on a risk-sharing prepayment basis. The corporation collects its funds from members. With these funds physicians are employed and hospitalization procured on behalf of members and their dependents. The fact that it is cooperative, and procures service and facilities on behalf of its members only, does not remove its activities from the sphere of business.[5]
If, as we hold, the indictment charges a single conspiracy to restrain and obstruct this business it charges a conspiracy in restraint of trade or commerce within the statute. As the Court of Appeals properly remarked, the calling or occupation of the individual physicians charged as defendants is immaterial if the purpose and effect of their conspiracy was such obstruction and restraint of the business of Group Health. The court said:[6] "And, of *529 course, the fact that defendants are physicians and medical organizations is of no significance, for Sec. 3 prohibits `any person' from imposing the proscribed restraints . . ." It is urged that this was said before this Court decided Apex Hosiery Co. v. Leader, 310 U.S. 469. But nothing in that decision contradicts the proposition stated. Whether the conspiracy was aimed at restraining or destroying competition, or had as its purpose a restraint of the free availability of medical or hospital services in the market, the Apex case places it within the scope of the statute.[7]
Second. This brings us to consider whether the indictment charged, or the evidence proved, such a conspiracy in restraint of trade. The allegations of the indictment are lengthy and detailed. After naming and describing the defendants and the Washington hospitals, it devotes many paragraphs to a recital of the plan adopted by Group Health and alleges that, principally for economic reasons, and because of fear of business competition, the defendants have opposed such projects.
The indictment then recites the size and importance of the petitioners, enumerates means by which they can prevent their members from serving Group Health plans, or consulting with physicians who work for Group Health, and can prevent hospitals from affording facilities to Group Health's doctors.
In charging the conspiracy, the indictment describes the organization and operation of Group Health and states that, from January 1937 to the date of the indictment, the defendants, the Washington hospitals, and others cognizant of the premised facts, "have combined and conspired together for the purpose of restraining trade in the District of Columbia, . . ." In five paragraphs the pleading states the purposes of the conspiracy. *530 The first is the purpose of restraining Group Health from doing business; the second, that of restraining members of Group Health from obtaining adequate medical care according to Group Health's plan; the third, that of restraining doctors serving Group Health in the pursuit of their calling; the fourth, that of restraining doctors not on Group Health's staff from practicing in the District of Columbia in pursuance of their calling; and the fifth, that of restraining the Washington hospitals in the business of operating their hospitals.
After reciting certain of the proceedings and plans adopted to forward the conspiracy, the indictment alleges that the conspiracy, and the intended restraints which have resulted from it, have been effectuated "in the following manner and by the following means"; and alleges that the defendants have combined and conspired "with the plan and purpose to hinder and obstruct Group Health Association, Inc., in procuring and retaining on its medical staff qualified doctors and to hinder and obstruct the doctors serving on that staff from obtaining consultations with other doctors and specialists practicing in the District of Columbia." It states that, pursuant to this plan and purpose, the defendants have resorted to certain means to accomplish the end, and recounts them.
In another paragraph, the defendants are charged to have conspired with "the plan and purpose to hinder and obstruct Group Health Association, Inc. in obtaining access to hospital facilities for its members and to hinder and obstruct the doctors on the medical staff of Group Health from treating and operating upon their patients in Washington hospitals." It is alleged that, pursuant to this plan and purpose, defendants have done certain acts to deter hospitals with which they were connected and over which they exercised influence, from affording hospital facilities to Group Health's doctors.
*531 The petitioners' contention is, in effect, that the indictment charges five separate conspiracies defined by their separate and recited purposes, namely, conspiracy to obstruct the business of Group Health, to obstruct its members from obtaining the benefit of its activities, to obstruct its doctors from serving it, to obstruct other doctors in the practice of their calling, and to restrain the business of Washington hospitals. The petitioners say that they were entitled to have the trial court rule upon the sufficiency in law of each of these charges and, as this was not done, the general verdict of guilty cannot stand. They urge that even though some of the named purposes relate to the business of Group Health, and that business be held trade within the meaning of the statute, yet, as the practice of medicine by doctors not employed by Group Health is not trade, and the operations of Washington hospitals are not trade, the last two purposes specified cannot constitute violations of § 3 and the jury should have been so instructed. In this view they insist that the jury may have convicted them of restraining physicians unconnected with Group Health, or of restraining hospitals, and, if so, the verdict and judgment cannot stand.
If in fact the indictment charges a single conspiracy to obstruct and restrain the business of Group Health, and if the recited purposes are really only subsidiary to that main purpose or aim, or merely different steps toward the accomplishment of that single end, and if the cause was submitted to the jury on this theory, these contentions fail.
When the case first went to the Court of Appeals that tribunal construed the indictment as charging but a single conspiracy. It said:[8] "The charge, stated in condensed form, is that the medical societies combined and conspired to prevent the successful operation of Group Health's *532 plan, and the steps by which this was to be effectuated were as follows: (1) to impose restraints on physicians affiliated with Group Health by threat of expulsion or actual expulsion from the societies; (2) to deny them the essential professional contacts with other physicians; and (3) to use the coercive power of the societies to deprive them of hospital facilities for their patients."
In the trial, the District Court conformed its rulings to this decision and submitted the case to the jury on the theory that the indictment charged but one conspiracy.
We think the courts below correctly construed the indictment. It is true that, in describing the conspiracy, five purposes are stated which the conspiracy was intended to further, but, in a later paragraph, still in the charging part of the instrument, it is alleged that the purpose was to hinder and obstruct Group Health in various ways and by various coercive measures, which are identical with the "purposes" before stated. The trial judge, after calling the jury's attention to the juxtaposition of these two formulations of the charge, added:
"These purposes, it is alleged, were to be attained by certain coercive measures against the hospitals and doctors designed to interfere with employment of doctors by Group Health and use of the hospitals by members of its medical staff and their patients.. . ."
In immediate context the judge added:
"To sustain that charge the Government must prove beyond a reasonable doubt that a conspiracy did in fact exist to restrain trade in the District in at least one of the several ways alleged, and according to the particular purpose and plan set forth."
At another point, the trial judge summarized the Government's claim that the evidence in the case showed opposition by the petitioners to Group Health and its plan; that they feared competition between the plan and the *533 organized physicians and that, to obstruct and destroy such competition, the petitioners conspired with certain officers and members and hospitals to prevent successful operation of Group Health's plan by imposing restraints upon physicians affiliated with Group Health, by denying such physicians professional contact and consultation with other physicians, and by coercing the hospitals to deny facilities for the treatment of their patients. Again the judge charged: "Was there a conspiracy to restrain trade in one or more of the ways alleged?" And again: "If it be true . . . that the District Society, acting only to protect its organization, regulate fair dealing among its members, and maintain and advance the standards of medical practice, adopted reasonable rules and measures to those ends, not calculated to restrain Group Health, there would be no guilt, though the indirect effect may have been to cause some restraint against Group Health."
We need add but a word as to the sufficiency of the proof to sustain the charge. The petitioners in effect challenge the sufficiency, in law, of the indictment. They hardly suggest that if the pleading charges an offense there was no substantial evidence of the commission of the offense. But, however the argument is viewed, we agree with the courts below that the case was one for submission to a jury. No purpose would be served by detailed discussion of the proofs.
Third. We hold that the dispute between petitioners and their members, and Group Health and its members, was not one concerning terms and conditions of employment within the Clayton[9] and the Norris-LaGuardia[10] Acts.
Section 20 of the Clayton Act, as expanded by § 13 of the Norris-LaGuardia Act, is the only legislation which *534 can have any bearing on the case. Section 20 applies to cases between "an employer and employees, or between employers and employees, or between employees, or between persons employed and persons seeking employment, involving, or growing out of, a dispute concerning terms or conditions of employment . . ."; and provides that none of the acts specified in the section shall "be considered or held to be violations of any law of the United States."
Section 13 of the Norris-LaGuardia Act defines a labor dispute as including "any controversy concerning terms or conditions of employment, or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether or not the disputants stand in the proximate relation of employer and employee." It also provides that "A case shall be held to involve or to grow out of a labor dispute when the case involves persons who are engaged in the same industry, trade, craft, or occupation; or have direct or indirect interests therein; or who are employees of the same employer; or who are members of the same or an affiliated organization of employers or employees; whether such dispute is (1) between one or more employers or associations of employers and one or more employees or associations of employees; (2) between one or more employers or associations of employers and one or more employers or associations of employers; or (3) between one or more employees or associations of employees and one or more employees or associations of employees; or when the case involves any conflicting or competing interests in a `labor dispute' (as defined in this section) of `persons participating or interested' therein (as defined in this section)."
Citing these provisions, the petitioners insist that their dispute with Group Health was as to terms and conditions *535 of employment of the doctors employed by Group Health since the District Medical Society objected to its members, or other doctors, taking employment under Group Health on the terms offered by that corporation. They assert that § 20 of the Clayton Act, as expanded by § 13 of the Norris-LaGuardia Act, includes all persons and associations involved in a dispute over terms and conditions of employment who are engaged in the same industry, trade, craft, or occupation, or have direct or indirect interests therein. And they rely upon our decisions in New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552, and Drivers' Union v. Lake Valley Co., 311 U.S. 91, as bringing within the coverage of the acts a third party, even though that party be a corporation not in trade, and employers and employers' associations even though they be only indirectly interested in the controversy. They insist that as the petitioners and Group Health, its members and doctors, other doctors and the hospitals, were either directly or indirectly interested in a controversy which concerned the terms of employment of doctors by Group Health, the case falls within the exemption of the statutes and they cannot be held criminally liable for a violation of the Sherman Act.
It seems plain enough that the Clayton and Norris-LaGuardia Acts were not intended to immunize such a dispute as is presented in this case. Nevertheless, it is not our province to define the purpose of Congress apart from what it has said in its enactments, and, if the petitioners' activities fall within the classes defined by the acts, we are bound to accord petitioners, especially in a criminal case, the benefit of the legislative provisions.
We think, however, that, upon analysis, it appears that petitioners' activities are not within the exemptions granted by the statutes. Although the Government asserts the contrary, we shall assume that the doctors having *536 contracts with Group Health were employes of that corporation. The petitioners did not represent present or prospective employes. Their purpose was to prevent anyone from taking employment under Group Health. They were interested in the terms and conditions of the employment only in the sense that they desired wholly to prevent Group Health from functioning by having any employes. Their objection was to its method of doing business. Obviously there was no dispute between Group Health and the doctors it employed or might employ in which petitioners were either directly or indirectly interested.
In truth, the petitioners represented physicians who desired that they and all others should practice independently on a fee for service basis, where whatever arrangement for payment each had was a matter that lay between him and his patient in each individual case of service or treatment. The petitioners were not an association of employes in any proper sense of the term. They were an association of individual practitioners each exercising his calling as an independent unit. These independent physicians, and the two petitioning associations which represent them, were interested solely in preventing the operation of a business conducted in corporate form by Group Health. In this aspect the case is very like Columbia River Packers Assn. v. Hinton, 315 U.S. 143. What was there decided requires a holding that the petitioners' activities were not exempted by the Clayton and the Norris-LaGuardia Acts from the operation of the Sherman Act.
The judgments are
Affirmed.
MR. JUSTICE MURPHY and MR. JUSTICE JACKSON took no part in the consideration or the decision of this case.
NOTES
[*] Together with No. 202, Medical Society of the District of Columbia v. United States, also on writ of certiorari, post, p. 613, to the United States Court of Appeals for the District of Columbia.
[1] Act of July 2, 1890, § 3, c. 647, 26 Stat. 209, 15 U.S.C. § 3.
[2] United States v. American Medical Association, 28 F. Supp. 752.
[3] United States v. American Medical Association, 72 App. D.C. 12, 110 F.2d 703, 710, 711.
[4] American Medical Association v. United States, 76 U.S. App. D.C. 70, 130 F.2d 233.
[5] Compare Associated Press v. Labor Board, 301 U.S. 103, 128-9; In re Duty on Estate of Incorporated Council, 22 Q.B. 279, 293; Maryland & Virginia Milk Producers' Assn. v. District of Columbia, 119 F.2d 787, 790; La Belle v. Hennepin County Bar Assn., 206 Minn. 73 App. D.C. 399, 119 F.2d 787, 790; La Belle v. Hennepin County Bar Assn., 206 Minn. 290, 294; 288 N.W. 788, 790.
[6] 110 F.2d 711.
[7] Compare Fashion Originator's Guild v. Federal Trade Commission 312 U.S. 457, 465, 466, 467.
[8] 110 F.2d 711.
[9] 38 Stat. 730, §§ 6 and 20, 15 U.S.C. 17, 29 U.S.C. 52.
[10] 47 Stat. 70, §§ 4, 5, 6, 8 and 13, 29 U.S.C. §§ 104, 105, 106, 108 and 113.
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18 So.3d 1048 (2009)
RINEHART
v.
CHRISTIE.
No. 2D08-4810.
District Court of Appeal of Florida, Second District.
August 28, 2009.
Decision without published opinion Affirmed.
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eWeo
*^ r COURT OF APPEALS SECOND DISTRICT OF TEXAS F/J Fn
Utf I% ^ w COURT OF APPFAi <?
fi^lSSSl^ MAY2 820J5
Appellant-Pro Se DEBRA SPISAK, CLERK
V Court of Appeals No. 02—15-00143-CV
First United Bank & Trust
Plaintiff
MOTION FOR EXTENSION OF TIME TO FILE DOCKETING STATEMENT
COMES NOW, Appellant, Christopher Bivens, Sr Pro-Se pursuant to Tex. R. App. P files this motion to
the court that has jurisdiction of the above listed cause.
Appellant request extension of time to file docketing statement for following reasons:
1-Appellant is without legal counsel to appear before court
WHEREFORE, the Appellant prays the court kindly consider obstacles of Pro-Se and grant this motion for
extension of time thirty(30) days to June 28,2015,to hire counsel and properly file docketing statement
and other relevant motions.
Respectfully submitted,
Christopher Bivens Sr Pro-Se
On thisfffldav of May 2015 atrue and correct copy of the foregoing was mailed to William Riley Nix 717
N Crockett St Sherman Tx 75090-4979
COURT OF APPEALS SECOND DISTRICT OF TEXAS
Christopher Bivens Sr
Appellant-Pro Se
V Court of Appeals No. 02—15-00143-CV
First United Bank & Trust
Plaintiff
ORDER GRANTNG MOTION FOR EXTENSION OF TIME TO FILE DOCKETING STATEMENT
On this day May 2015 this honorable court grants Apellants motion for extension of time to
file docketing statement to.
IT IS ORDERED that above listed motion has been granted.
SIGNEDthis day of May,2015
JUDGE PRESIDING
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528 F.Supp.2d 583 (2007)
Jermaine M. SIMMONS, Plaintiff,
v.
THE G.E.O. GROUP, INC.; d/b/a Rivers Correctional Institution, Defendant.
No. 2:05-CV-40-D (3).
United States District Court, E.D. North Carolina, Northern Division.
December 14, 2007.
*584 Jermaine M. Simmons, Ahoskie, NC, Pro se.
James R. Morgan, Jr., Robert T. Numbers, II, Womble Carlyle Sandridge & Rice, PLLC, Winston-Salem, NC, Mark Allen Davis, North Carolina Department of Justice, Raleigh, NC, for Defendant.
ORDER
JAMES C. DEVER III, District Judge.
On October 11, 2005, pro se plaintiff Jermaine Simmons ("Simmons") filed this action against his employer, defendant The G.E.O. Group, Inc., d/b/a Rivers Correctional Institution ("GEO"). Simmons, an African-American male, contends that his employer violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., by subjecting him to discipline more severe than that imposed on a Caucasian employee for similar misconduct. Simmons also contends that his employer violated Title VII by discharging him in retaliation for his challenge to the company's smoking policy. GEO moves for summary judgment. As explained below, the court grants defendant's motion for summary judgment.
I.
GEO operates private correctional detention facilities in the United States, including the Rivers Correctional Institution ("RCI") in Winton, North Carolina. RCI houses District of Columbia Code Offenders through a contract with the Federal Bureau of Prisons ("BOP"). The contract between RCI and the BOP states that "[n]o individual who is under the supervision or jurisdiction of any parole, probation or correctional authority shall be employed" by GEO. See Def.'s Mem. in Supp. of Mot. for Summ. J. Ex. 2, ¶ 4 (hereinafter "Snyder Affidavit"). In order to comply with this requirement, GEO established a policy that requires employees to immediately inform and provide a written report to the facility administrator of any arrest or criminal charges brought against the employee. Additionally, GEO contracted with a third party to conduct annual investigations regarding the motor vehicle records of all corrections officers employed by RCI. See Def.'s Mem. in Supp. of Mot. for Summ. J. 2; id. at Ex. 3, ¶ 3 (hereinafter "Schultz Affidavit"); Snyder Aff. ¶ 5.
On August 6, 2002, GEO hired Simmons as a corrections officer at RCI. See Def.'s *585 Mem. in Supp. of Mot. for Summ. J. Ex. 1 (hereinafter "Simmons Deposition"). On March 24, 2004, Simmons received a citation for driving while impaired ("DWI") to which he subsequently pleaded guilty. See Simmons Dep. 27 & Ex. 10. As a result of his guilty plea, the court imposed a six month suspended sentence, ordered Simmons to perform community service, suspended Simmons' driver's license, and placed Simmons on unsupervised probation for a period of one year. Simmons Dep. at Ex. 10. Following his placement on probation, Simmons failed to inform the RCI facility administrator of his citation or sentence. Simmons Dep. 26-28. During its annual investigation, RCI discovered that Simmons had incurred a citation for DWI. Simmons Dep. 28; Snyder Aff. ¶ 6; Schultz Aff. ¶ 4. On November 30, 2006, Simmons met with RCI Assistant Warden Hedspeth to discuss his failure to report the citation. See Simmons Dep. 30. Simmons admitted both his citation and probationary sentence. Id.; Snyder Aff. ¶ 7; Schultz Aff. ¶ 5. RCI suspended Simmons without pay pending an investigation into his failure to report his arrest and conviction. See Simmons Dep. 13, 39. As part of the investigation, Warden Snyder contacted the BOP to determine whether the contract required Simmons' termination. See Snyder Aff. ¶ 8 & Attach. 1. The BOP responded affirmatively and later denied Warden Snyder's request for a waiver of the contract condition. Snyder Aff. ¶¶ 9-10 & Attach. 2. RCI thereafter terminated Simmons from his position. Snyder Aff. ¶ 10.
Simmons alleges that RCI discriminated against him on the basis of his race, or alternatively, in retaliation for his challenge to RCI's smoking policy. See Second Am. Compl. In support, Simmons contends that Tina Roberts ("Roberts"), a Caucasian RCI employee, was "not terminated for being on unsupervised probation," while Simmons was. Id. Simmons believes that RCI selectively requested his motor vehicle records (and not Roberts' records) after he challenged the Assistant Warden's smoking policy which prohibited employees from smoking certain types of cigars at work. Id.; Simmons Dep. 64, 74. Roberts was charged with the misdemeanor offense of failing to obey a traffic officer on November 8, 2004. See Simmons Dep. at Ex. 18. On December 3, 2004, Roberts pleaded guilty to the charge in Hertford County Superior Court. Id. In completing the judgment form, the Deputy Clerk of Court erroneously indicated that Roberts was being placed on unsupervised probation. See id. After being informed of the error by the District Attorney's office, the sentencing judge amended the order to show the correction of the original judgment. See Simmons Dep. at Ex. 19. The Deputy Clerk noted that "[n]o probation was ordered in this case at any time." Id. The criminal bill of costs issued in connection with Robert's guilty plea also indicates that her sentence did not include probation. See Simmons Dep. at Ex. 18.
Additionally, Colleen Schultz, Manager of Human Resources for RCI, states that "Roberts alerted her supervisors to her citation shortly after it occurred" and "kept her supervisors appraised of her subsequent conviction on misdemeanor charges." Schultz Aff. ¶ 9. Schultz further states that because "Roberts was forthcoming with RCI officials and was not under the supervision of a probation authority, there was no reason for her to be terminated or otherwise disciplined." Id. at ¶ 10.
II.
Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. *586 2505, 91 L.Ed.2d 202 (1986); Fed.R.Civ.P. 56(c). The party seeking summary judgment initially must demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the non-moving party may not rest on the allegations or denials in its pleading, Anderson, 477 U.S. at 248, 106 S.Ct. 2505, but "must come forward with specific facts showing that there is a genuine issue for trial," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quotation omitted. & emphasis removed). A trial court reviewing a motion for summary judgment should determine whether a genuine issue of material fact exists for trial. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In making this determination, the court must view the evidence and the inferences drawn from the evidence in the light most favorable to the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) (per curiam).
A.
Simmons contends that RCI violated Title VII by subjecting him to discipline more severe than that imposed on a Caucasian employee for similar misconduct. Simmons has no direct evidence of discrimination and proceeds under the McDonnell Douglas framework. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141-43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). "To establish a prima facie case of racial discrimination in the enforcement of employee disciplinary measures under Title VII, the plaintiff must show: (1) that he is a member of the class protected by Title VII, (2) that the prohibited conduct in which he engaged was comparable in seriousness to misconduct of employees outside the protected class, and (3) that the disciplinary measures enforced against him were more severe than those enforced against those other employees." Cook v. CSX Transp. Corp., 988 F.2d 507, 511 (4th Cir.1993); accord Moore v. City of Charlotte, 754 F.2d 1100, 1105-06 (4th Cir. 1985); McDougal-Wilson v. Goodyear Tire & Rubber Co., 427 F.Supp.2d 595, 609 (E.D.N.C.2006). "The question confronting a judge faced with determining whether a prima facie case under Title VII has been made is whether the record as a whole gives rise to a reasonable inference of racially discriminatory conduct by the employer." Cook, 988 F.2d at 512.
The court has reviewed the record as a whole and finds no support for Simmons' allegation that both he and Roberts engaged in comparable prohibited conduct. Simmons admits that he was placed on probation for a one year period following his guilty plea to DWI and that he failed to inform RCI of the charges until later confronted. See Simmons Dep. 26-28. Simmons fails to produce evidence showing that Roberts was under the supervision of a probationary authority or that she failed to report her criminal charge to RCI. Although Simmons contends that Roberts was placed on probation and that her court records may have been modified to "cover up" RCI's discriminatory animus or otherwise provide a favor to Roberts, see id. at 56-58, this contention fails in light of the evidence. See id. at Exs. 18, 19; Schultz Aff. ¶¶ 9-10. Simmons fails to establish a prima facie case of racially discriminatory discipline. Accordingly, GEO is entitled to summary judgment on Simmons' claim.
B.
As for Simmons' retaliation claim, Simmons concedes in his deposition that *587 he did not believe he was retaliated against for complaining of racial discrimination. See Simmons Dep. 73-74. Rather, Simmons contends that RCI improperly discharged him in retaliation for his challenge to the company's smoking policy.
To establish a prima facie case of retaliation under Title VII, a plaintiff must prove three elements: (1) that he engaged in a protected activity; (2) that his employer took an adverse employment action against him; and (3) that there was a causal link between the two events. See, e.g., E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir.2005); Beall v. Abbott Labs., 130 F.3d 614, 619 (4th Cir.1997), abrogated on other grounds by Gilliam v. S.C. Dep't of Juvenile Justice, 474 F.3d 134 (4th Cir.2007); see generally Burlington N. & Santa Fe By. Co. v. White, 548 U.S. 53, ___-___, 126 S.Ct. 2405, 2410-18, 165 L.Ed.2d 345 (2006) (analyzing Title VII's anti-retaliation provision). Protected activities include either "opposing an act of discrimination made unlawful by Title VII (`the opposition clause'), or participating in an investigation under Title VII (the participation clause')." Hunt v. Neb. Pub. Power Dist., 282 F.3d 1021, 1028 (8th Cir.2002); accord Glover v. S.C. Law Enforcement Div., 170 F.3d 411, 413 (4th Cir.1999) (analyzing Title VII's "participation clause"); Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir.1998) (analyzing Title VII's "opposition clause").
Simmons fails to show that he engaged in a protected activity. See, e.g., McNair v. Computer Data Sys., 1999 WL 30959, at *5 (4th Cir. Jan. 26, 1999) (per curiam) (unpublished) ("[T]he `opposition clause' . . . requires that the employee at least have actually opposed employment practices made unlawful by Title VII. That is to say, the clause protects opposition neither to all unlawful employment practices nor to practices the employee simply thinks are somehow unfair." (emphasis removed)); Barber v. CSX Distrib. Servs., 68 F.3d 694, 702 (3d Cir.1995) ("A general complaint of unfair treatment does not translate into a charge of illegal . . . discrimination."). Specifically, Simmons' complaint concerning RCI's smoking policy does not constitute protected activity under Title VII's anti-retaliation provision and cannot form the basis for a retaliation claim. See Creusere v. Bd. of Educ., 88 Fed.Appx. 813, 821 (6th Cir. Dec. 18, 2003) (unpublished) (noting that complaints about smoking policy and safety issues, are not protected activities under Title VII). Accordingly, GEO is entitled to summary judgment on Simmons' claim.
III.
For the reasons explained above, defendant's motion for summary judgment is GRANTED. Plaintiff's motion to be granted a trial is DENIED. The clerk is directed to close this case.
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622 F.2d 581
Blankenshipv.Califano
77-2498
UNITED STATES COURT OF APPEALS Fourth Circuit
5/22/80
1
S.D.W.Va.
REVERSED AND REMANDED
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851 So.2d 784 (2003)
Marilyn WIGLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 4D03-595.
District Court of Appeal of Florida, Fourth District.
July 16, 2003.
Rehearing Denied August 29, 2003.
Juan C. Enjamio and James J. Thornton of Hunton & Williams, Miami, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
*785 KLEIN, J.
In 1995 appellant plead guilty to drug possession charges, adjudication was withheld, and she received two years probation which she successfully completed. After the plea, she became a naturalized citizen; however, in December, 2000, the United States filed an action to revoke appellant's naturalization based on the guilty plea.
Appellant then filed a rule 3.850 motion to vacate her plea because she was not adequately advised of immigration consequences, which the trial court held was premature under State v. Carmona, 827 So.2d 342 (Fla. 3d DCA 2002). In that case the court pointed out that the 3.850 motion improperly assumed that the government would prevail in the denaturalization proceeding and, if it did, that the government would subsequently seek to deport the defendant. We agree with Carmona and accordingly affirm without prejudice to the defendant seeking relief when the "threat of deportation," Peart v. State, 756 So.2d 42 (Fla.2000), is more demonstrable.
STONE and HAZOURI, JJ., concur.
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USCA1 Opinion
UNITED STATES COURT OF APPEALS For The First Circuit ____________________ No. 92-1200 UNITED STATES OF AMERICA, Appellee, v. CARLOS VALENCIA-LUCENA, Defendant, Appellant. ____________________ No. 92-1201 UNITED STATES OF AMERICA, Appellee, v. JOSE MANUEL BASTIAN-CORTIJO, a/k/a CHEO, Defendant, Appellant. ____________________ No. 92-1202 UNITED STATES OF AMERICA, Appellee, v. ROBERTO LABOY-DELGADO, Defendant, Appellant. ____________________ No. 92-1203 UNITED STATES OF AMERICA, Appellee, v. EDWIN CARPIO-VELEZ, Defendant, Appellant. ____________________ ERRATA SHEET The opinion of this Court issued on March 2, 1993, is ammended as follows: Page 16, footnote 6, line 5, should read: ". . . fare better . . ." instead of " . . . fair better . . ." -2- March 2, 1993 UNITED STATES COURT OF APPEALS For The First Circuit ____________________ No. 92-1200 UNITED STATES OF AMERICA, Appellee, v. CARLOS VALENCIA-LUCENA, Defendant, Appellant. ____________________ No. 92-1201 UNITED STATES OF AMERICA, Appellee, v. JOSE MANUEL BASTIAN-CORTIJO, a/k/a CHEO, Defendant, Appellant. ____________________ No. 92-1202 UNITED STATES OF AMERICA, Appellee, v. ROBERTO LABOY-DELGADO, Defendant, Appellant. ____________________ -1- No. 92-1203 UNITED STATES OF AMERICA, Appellee, v. EDWIN CARPIO-VELEZ, Defendant, Appellant. ____________________ APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jaime Pieras, Jr., U.S. District Judge] ___________________ ____________________ Before Torruella and Stahl, Circuit Judges, ______________ and Skinner,* District Judge. ______________ _____________________ Carlos L pez-de Azua, with whom Lou Ann Delgado, was on ______________________ ________________ brief for appellant Valencia-Lucena. Julia M. Garriga, by Appointment of the Court, for appellant ________________ Basti n-Cortijo. Lydia Lizarr bar-Masini for appellant Laboy-Delgado. _______________________ Thomas M. Dawson for appellant Carpio-V lez. ________________ Jorge E. Vega-Pacheco, Assistant United States Attorney, _______________________ with whom Daniel F. L pez-Romo, United States Attorney, and Jos ____________________ ____ A. Quiles-Espinosa, Senior Litigation Counsel, were on brief for __________________ appellee. ____________________ March 2, 1993 ____________________ ____________________ * Of the District of Massachusetts, sitting by designation. TORRUELLA, Circuit Judge. In a previous appeal we _____________ affirmed the convictions of Carlos Valencia-Lucena, Edwin Carpio- V lez, and Jos Basti n-Cortijo under 21 U.S.C. 846 for conspiring to possess with intent to distribute 137.2 kilograms of cocaine and under 21 U.S.C. 963 for conspiring to import into the United States 137.2 kilograms of cocaine and we affirmed the conviction of Roberto Laboy-Delgado on the latter offense. However, we vacated the sentences and remanded for resentencing because the district court failed to determine the amount of cocaine involved for the purpose of sentencing. In so doing, we directed the district court to conduct an evidentiary hearing on that issue. United States v. Valencia-Lucena, 925 F.2d 506 (1st _____________ _______________ Cir. 1991). On remand, the parties stipulated that the evidence would be the same as heard at trial. The district court determined that the amount of cocaine for the purpose of setting the base offense level was 137.2 kilograms of cocaine and resentenced the defendants. This appeal followed. Appellants claim that the new factual finding constitutes clear error. They argue that the district court is bound by its prior determination that the evidence was insufficient and unreliable to sentence on the basis of 137.2 kilograms since the government offered no new evidence as to amount. Appellants Basti n-Cortijo, Laboy-Delgado, Carpio-V lez argue that the district court failed to give specific reasons for its finding that the amount of cocaine was foreseeable, and -3- further that the evidence was insufficient to support such a finding. Finally, appellants maintain that the district court improperly denied appellant Valencia-Lucena's document request at the resentencing hearing, given the court's new determination on the amount involved. We affirm the district court's findings with respect to the amount of cocaine used to determine the base offense level as well as its denial of further document discovery, but remand for specific findings on foreseeability. I. FACTUAL BACKGROUND I. FACTUAL BACKGROUND As this appeal concerns the district court's findings upon resentencing, we provide only a summary of the facts; our earlier opinion recounts the history more fully. See Valencia- ___ _________ Lucena, 925 F.2d 506. The four appellants participated with ______ others not part of this appeal in a scheme to fly cocaine via private aircraft from Colombia, South America to the United States through the Virgin Islands. Valencia-Lucena piloted the aircraft from Puerto Rico to Colombia, returning with the cocaine to the drop point in the Virgin Islands. Basti n-Cortijo was the "kicker"; he acted as the bombardier, allegedly dropping ten (10) igloo coolers containing twenty (20) kilograms of cocaine to retrieval boats waiting below. Carpio-V lez appeared at various times during the conspiracy; he apparently repaired some wiring on one of the retrieval boats and was alleged to have owned the cocaine at one point. Laboy-Delgado repaired mechanical problems with the boats. The government foiled the plot with the assistance of a coconspirator turned confidential informant. -4- Initially the government indicted appellants based on the coconspirator, confidential informant's estimate that the object of the conspiracy was the importation of 200 kilograms of cocaine. A first superseding indictment reduced the amount to 173.2 kilograms. A second superseding indictment further reduced the amount to 137.2 kilograms, the amount of cocaine recovered by the government some days after the arrests. At trial, the district court refused to admit into evidence the amount of cocaine involved in the conspiracy because it viewed the links between the seized cocaine and the defendants as weak, and believed admission of the evidence would unfairly prejudice the defendants. The district court understood that determining the actual amount was not necessary to convict on the conspiracy charges. The district court sentenced codefendant Jos Llad - Ortiz first.1 The district judge subsequently clarified the findings made at that hearing in its opinion and order of December 28, 1989. The district court then applied these findings to appellants. It was unclear to us how the district court arrived at his initial sentences. When challenged by the government, the district court adopted the government's position that 137.2 kilograms were to be used for calculation of the base offense level, but then proceeded to depart downward based "on the government's failure to adequately prove that the 137.2 kilograms ____________________ 1 Llad -Ortiz is not part of this appeal. -5- of cocaine, found in coolers the government seized, was the cocaine the defendants conspired to import." United States v. ______________ Jos Llad -Ortiz, Crim. No. 89-002, slip op. at 5 (D.P.R. Dec. _________________ 28, 1989). The district court further supported the downward departure by stating that the government's case agent falsely testified before the grand jury. This latter reason was in the manner of punishment. The court concluded that "[u]pon reviewing the evidence at trial, we do not find it sufficient to sentence the defendants according to a quantity based on the 137.2 figure." Id. ___ Under the applicable United States Sentencing Guidelines at the time of sentencing, the base offense level for 137.2 kilograms of cocaine was 36. United States Sentencing Guidelines, Guidelines Manual, 2D1.4 & 2D1.1(a)(3) (Nov. 1 _________________ 1989) (Drug Quantity Table). The district court increased the total offense level of Valencia-Lucena to 38 for his use of a special skill in piloting the aircraft, U.S.S.G. 3B1.3, and reduced the offense levels of Carpio-V lez, Basti n-Cortijo and Laboy-Delgado to 34 for their minor roles in the conspiracy, U.S.S.G. 3B1.2(b). As a result of the downward departure, the district court sentenced all appellants to 120 months imprisonment. In the previous appeal we rejected the district court's departure based on its "perceived need to reprimand the government," holding that departure is not warranted by the conduct of third parties. More important to this appeal, we -6- remanded for resentencing because the district court purported to accept the government's contention that 137.2 kilograms were involved for purposes of determining the base offense level, but then departed downward because it deemed the evidence an insufficient basis upon which to sentence. We said that the district court expressly stated that it did not believe the government's contention that 137.2 kilograms was involved, which clearly indicates that the court was never convinced of the reliability of the government's evidence. The amount set by the government should not, therefore, have been adopted by the court in the first instance without having conducted an evidentiary hearing in order to reach a reliable determination as to the amount of cocaine. Valencia-Lucena, 925 F.2d at 516. _______________ On remand, the district court held a hearing on September 10, 1991 to determine the amount of cocaine involved in the conspiracy to be used to set the base offense level. The parties stipulated that the evidence was to be the same as that given at trial. On October 28, 1991, appellants jointly filed a pro se motion requesting the district court to subpoena a number ___ __ of items relating to the amount.2 On October 30, 1991, the ____________________ 2 The documents requested included the following: (1) Certified logbook from U.S. Coast Guard; (2) certified logbook from British Virgin Islands police vessel St. Ursula; (3) certified logbook from Tortola Harbor; and (4) certified logbook from Spanish Town Harbor from December 31, 1988 to January 10, 1989; (5) a copy of DEA Form 473 describing the government's agreements with confidential informant Rafael Manuel V zquez, a/k/a Robert Victor ("V zquez"); (6) FBI and NCE reports on V zquez; (7) all criminal complaints and records on V zquez in Puerto Rico, St. Thomas, and the United States; (8) Drug rehabilitation services and centers -7- district court found that the government had sustained its burden of proving that 137.2 kilograms were involved on the basis of the testimony of the confidential informant and because evidence not admissible at trial may be considered for the purpose of sentencing. Apparently this finding took appellants by surprise. At the January 15, 1992 sentencing hearing, the attorneys for appellants argued that the district court was bound by its prior determination that the evidence as to amount was insufficient and unreliable for the purpose of sentencing. Alternatively, they requested that resentencing be postponed and that the renewed discovery request be granted to enable appellants to offer more evidence rebutting the government's evidence on the amount of cocaine. The district court denied the motion and resentenced the appellants based on a finding that 137.2 kilograms of cocaine were involved in the conspiracy. Under the applicable Sentencing Guidelines the base offense level was 36. Valencia-Lucena received a two level increase for the use of his skill as a pilot. The Guidelines provide a term of imprisonment ranging from 235 to 293 months for that offense level. He was resentenced to 235 months imprisonment. Basti n-Cortijo, Carpio- V lez, and Laboy-Delgado had their base offense level reduced to 34 for their minor roles in the offense. The range of terms of ____________________ attended by V zquez; and (9) any polygraph test taken by V zquez and related data. -8- imprisonment was 151 to 181 months. They were resentenced to 151 months. II. DISCUSSION II. DISCUSSION A. Base Offense Level __________________ The crux of appellants' argument is that the district court was bound by its prior determination that the evidence as to the amount was insufficient and unreliable, and therefore, the district court should have based the base offense level on the minimum amount. We disagree. We thought our earlier ruling rather straight-forward and clear. We held that the district court never made a factual _____ ____ determination as to the amount involved in the conspiracy. Valencia-Lucena, 925 F.2d at 515-16. Consequently, we directed _______________ the district court to hold an evidentiary hearing on that issue. The district court followed our mandate. It held a hearing at which the parties stipulated that the evidence would be the same as at trial. That stipulation was appellants' fatal mistake. They assert on appeal that the district court is bound by its previous finding on the same evidence. But there simply was no finding by which the district court could be bound. We plainly said so in the previous appeal: "[t]he district court failed to determine the reliability of the evidence as to the quantity of cocaine which was used." Id. at 515. ___ When the quantity of drugs used for the base offense level is in dispute, the district court must make an independent finding at an evidentiary hearing as to the reliability of the -9- evidence. Valencia-Lucena, 925 F.2d at 515-16; United States v. _______________ _____________ Zuleta-Alvarez, 922 F.2d 33, 36 (1st Cir. 1990), cert. denied, ______________ ____ ______ 111 S. Ct. 2039 (1991); U.S.S.G. 6A1.3(a). In Zuleta-Alvarez, ______________ we acknowledged the importance of the evidentiary hearing on the amount of drugs used since quantity is a critical factor in determining length of imprisonment. Defendants in a drug prosecution cannot be expected to offer evidence on the quantity of illicit drugs while simultaneously arguing that they were not involved with any drug transaction. Zuleta-Alvarez, 922 F.2d at ______________ 36 (citing Chief Judge Breyer, "Federal Sentencing Guidelines and the Key Compromises upon which They Rest," 17 Hofstra L. Rev. 1, 10 (1988)). The evidentiary hearing held exclusively for the purpose of sentencing provides this necessary opportunity. We remanded specifically for this purpose. At the evidentiary hearing the government must prove the amount of cocaine involved by the preponderance of the evidence. United States v. Cetina-G mez, 951 F.2d 432, 435 (1st _____________ ____________ Cir. 1991); United States v. Rodr guez-Cardona, 924 F.2d 1148, _____________ _________________ 1155 (1st Cir.), cert. denied, 112 S. Ct. 54 (1991); United ____ ______ ______ States v. Wright, 873 F.2d 437, 441 (1st Cir. 1989); see also ______ ______ _________ United States v. Sims, 975 F.2d 1225, 1242-43 (6th Cir. 1992). ______________ ____ At sentencing, the district court may consider "relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy." U.S.S.G. 6A1.3(a); see United States v. Figaro, 935 ___ _____________ ______ -10- F.2d 4, 8 (1st Cir. 1991). "Under this generous formulation, the sentencing court has broad discretion to determine what data is, or is not, sufficiently dependable to be used in imposing sentence." United States v. Tardiff, 969 F.2d 1283, 1287 (1st _____________ _______ Cir. 1992); United States v. Iguaran-Palmar, 926 F.2d 7, 10 (1st _____________ ______________ Cir. 1991). We review the district court's determination of the quantity of drugs for which the defendant is responsible, like other factual findings in the context of the Sentencing Guidelines, for clear error. United States v. Pavao, 948 F.2d _____________ _____ 74, 77 (1st Cir. 1991); Wright, 872 F.2d at 444. The district ______ court's finding that 137.2 kilograms were involved for the purpose of calculating the base offense level did not constitute clear error. The coconspirator turned confidential informant testified that appellants conspired to possess 200 kilograms of cocaine. Appellants failed to contradict the informant's testimony. Indeed, they offered no additional evidence as to amount at the evidentiary hearing. In addition, the government recovered only 137.2 kilograms because the coolers of cocaine were dropped in the sea for retrieval; some of the coolers were apparently lost. The district court could properly consider the 137.2 kilograms retrieved for the purposes of sentencing despite the fact that the physical evidence of the coolers and cocaine was not admitted at trial because it was deemed unfairly prejudicial. This evidence, without any alternative evidence as to amount from the appellants, was a more than sufficient basis upon which to -11- resentence, as the district court did. B. Discovery Request _________________ Appellants' contend that the court should have postponed resentencing to allow them further document discovery. Appellants hoped to uncover information to challenge the government's evidence. They made this new request a month and a half after the September 10, 1991 evidentiary hearing mandated by this court. Appellants renewed the request after the district court found 137.2 kilograms to have been the object of the conspiracy. The district court denied the request. In effect, appellants request two bites at the apple. Like the district court, we are disinclined to oblige. We review the district court's denial of further discovery for clear error. Pavao, 948 F.2d at 77; Wright, 873 F.2d at 444. The district _____ ______ court enjoys wide discretion in determining relevance at sentencing hearings. Iguaran-Palmar, 926 F.2d at 10. First, ______________ appellants had their opportunity to contest the government's evidence at the September 10, 1991 hearing; they failed to take advantage of it. They cannot resuscitate that right so late in the proceedings. See Zuleta-Alvarez, 922 F.2d at 36. Second, ___ ______________ the district court properly could find that the documents requested ultimately would not affect its decision that the government's evidence on the amount was sufficient and reliable. Appellants failed to demonstrate how the documents requested would undermine the government's evidence. Both defendants and the government presented testimony and cross examined the -12- commanders of the Coast Guard vessel and the British Virgin Islands police vessel at trial; we cannot see, and appellants have failed to show, how the logbooks would have added anything to the testimony already received. The same can be said with respect to the documents requested regarding the government's confidential informant V zquez; appellants had ample opportunity to assail his credibility both at trial and at the evidentiary hearing. We cannot say that the district court was clearly erroneous in denying appellants' discovery request. -13- C. Foreseeability of the Quantity ______________________________ The district court applies the law under the guidelines applicable on the date of sentencing. 18 U.S.C. 3553(a)(4) (1985 & Supp. 1992); Isabel v. United States, 980 F.2d 60, 62 ______ ______________ (1st Cir. 1992). On December 28, 1989, the original sentencing date, U.S.S.G. 2D1.4(a), 1B1.3,3 (Nov 1, 1989) and their Application Notes4 directed the sentencing judge to consider conduct and quantities that were in furtherance of the conspiracy and reasonably foreseeable to defendants to determine the quantity of cocaine for the base offense level. United States v. _____________ Garc a, 954 F.2d 12, 15-16 (1st Cir. 1992); United States v. ______ ______________ ____________________ 3 Section 1B1.3 Relevant Conduct (Factors that Determine the ______________________________________________ Guideline Range) provides in relevant part: "(a) (ii) cross ________________ references in Chapter Two, . . . shall be determined on the basis on the following: (1) all acts and omissions committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense, or that otherwise were in furtherance of that offense . . . ." U.S.S.G. 1B1.3 (Nov. 1, 1989). 4 The Application Note stated, "[i]n the case of criminal activity undertaken in concert with other, whether or not charged as a conspiracy, the conduct for which the defendant "would be otherwise accountable" also includes conduct of others in furtherance of the execution of the jointly undertaken criminal activity that was reasonably foreseeable by the defendant." _______________________ U.S.S.G. 1B1.3, comment. (n.1) (Nov. 1, 1989)(emphasis added). Section 1B1.3 has been amended and clarified with respect to its various provisions on several occasions, most significantly effective November 1, 1992. The appendix states that the 1992 amendments clarify and more fully illustrate the operation of this guideline and that material was moved from the commentary to the guideline and rephrased for greater clarity. U.S.S.G App. C 439 (1992). -14- Bianco, 922 F.2d 910, 913 (1st Cir. 1991).5 ______ The government relies on United States v. Edwards, 945 _____________ _______ F.2d 1387 (7th Cir. 1991), cert. denied, 112 S. Ct. 1590 (1992), ____ ______ for the proposition that in cases in which defendants are charged with one isolated set of facts that comprise the entire conspiracy, the district court need not make individual findings with respect to each defendant. It argues that once an amount is determined for a temporally limited, small, and simple conspiracy, all defendants associated with the conspiracy should be held to foresee that amount. Edwards involved a complex and _______ sophisticated heroin retailing business that had a chain of suppliers, mid-level managers, street vendors and wholesalers. The Seventh Circuit required specific findings as to each defendant since they had joined at different times and may have intended to enter a more limited agreement. Id. at 1397. The ___ government contends that the foreseeability inquiry has always focused upon whether the disputed conduct fell outside the scope _____ of the conspiracy in factually complicated cases. We do not read Edwards to limit the foreseeability inquiry to complex _______ conspiracies. Nor do we find a principle that would sustain such ____________________ 5 We garner further support from later clarification and expansion of the application notes to U.S.S.G. 1B1.3. Application Note 2 currently states that "[w]ith respect to offenses involving contraband (including controlled substances), the defendant is accountable for all quantities of contraband with which he was directly involved and in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." U.S.S.G. 3B1.3, comment. (n.2). We may consider this clarifying language at the appeal stage. Isabel, 980 F.2d at 62. ______ -15- a limitation. The criminal conspiracy net is often cast widely. Individuals may be involved who know that the agreement they have entered is illegal but have no way to foresee the magnitude or ambition of the enterprise, as in the case of an individual hired to remedy an unexpected complication in the main conspirators' plot. The Guidelines require that the government prove by a preponderance of the evidence that such individual could reasonably foresee the amount contemplated by the conspiracy. U.S.S.G. 2D1.4(a), 1B1.3. Appellants Carpio-V lez, Basti n-Cortijo, and Laboy- Delgado contend that 18 U.S.C. 3553(c) (Supp. 1992)6 requires that the district court make a specific finding of foreseeability supported by reasoning and facts in the record. They argue that the district court's cursory rejection of their objection that the government failed to prove foreseeability runs afoul of this provision. The government contends that the district court made a specific finding on foreseeability, and that it was not required to provide specific, fact intensive reasons as the record amply showed that appellants knew that in excess of fifty ____________________ 6 18 U.S.C. 3553(c) requires that "[t]he court, at the time of sentencing, shall state in open court the reasons for its imposition of the particular sentence . . . ." Appellants also argue that Fed. R. Crim. P. 32(c)(3)(D) imposes that burden as well. We think that the appellants fare better under 3553(c) as Rule 32(c)(3)(D) only requires that the court make a finding. The commentary to the Rule notes that this does not impose an onerous burden. "It does not even require the preparation of a transcript." Just a finding is required; thus, appellants' reliance on Rule 32 is misplaced. See United States v. Webster, ___ _____________ _______ 960 F.2d 1301, 1310 (5th Cir.), cert. denied, 113 S. Ct. 355 ____ ______ (1992); United States v. McDowell, 918 F.2d 1004, 1013 (1st Cir. _____________ ________ 1990) (argument made academic by holding under 3553(c)). -16- (50) kilograms were involved.7 We have stated in related contexts that 3553(c) requires that when sentencing under the guidelines, a district court must make reasonably specific findings to allow for meaningful appellate review. United States v. Schultz, 970 F.2d _____________ _______ 960, 963 & n.7 (1st Cir. 1992), cert. denied, 61 U.S.L.W. 3479 ____ ______ (1993); United States v. McDowell, 918 F.2d 1004, 1012 (1st Cir. _____________ ________ 1990). Other circuits similarly require the district court to supply sufficient reasoning for its sentencing determinations. See, e.g., United States v. Negr n, 967 F.2d 68, 72 (2d Cir. ___ ____ ______________ ______ 1992) (vacating and remanding for finding on foreseeable quantity when defendant contests); United States v. Puma, 937 F.2d 151, _____________ ____ 160 (5th Cir. 1991)("The reasonable foreseeability required of 2D1.4 requires a finding separate from a finding that the defendant was a conspirator."), cert. denied, 112 S. Ct. 1165 ____ ______ (1992); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir. _____________ ______ 1991) ("a district court should explicitly state and support, either at the sentencing hearing or (preferably) in a written statement of reasons, its findings that the unconvicted activities bore the necessary relation to the convicted offense"), cert. denied, 113 S. Ct. 174 (1992); United States v. ____ ______ _____________ Guti rrez, 931 F.2d 1482, 1492 (11th Cir.) (requiring specific _________ findings), cert. denied, 112 S. Ct. 321 (1991); see also United ____ ______ _________ ______ States v. Turner, 898 F.2d 705, 709-710 (9th Cir.), cert. denied, ______ ______ ____ ______ ____________________ 7 The guidelines established a base offense level of 36 for in excess of 50 kilograms at the date of sentencing, U.S.S.G. 1D1.4, 1D1.1(a)(3) (Drug Quantity Table). -17- 495 U.S. 962 (1990).8 In the present case, the district judge said very little during the resentencing hearing and his opinion and order is not much help either. The district court stated at the sentencing hearing after appellants' lengthy argument on the foreseeability issue: "Well, independently of that . . . [i]n light of common experience, the evidence showed that there existed on Carpio[-V lez]'s part foreseeability of the amount of cocaine involved in this case." Sentencing Hearing, Valencia- _________ Lucena, Crim. No. 89-002, at 32 (Jan. 15, 1991). The court then ______ relied on this statement with respect to Basti n-Cortijo and Laboy-Delgado. Despite the paucity of words from the district court, the record provides a sufficient basis for the district court's finding of foreseeability with respect to Basti n-Cortijo. Appellant Basti n-Cortijo was found by the district court to have acted as the "kicker," which means that he flew with Valencia- Lucena from Colombia, South America transporting 10 igloo coolers filled with twenty (20) kilograms of cocaine each, and dropped the cocaine from the plane when the pilot reached the designated area. We note that Valencia-Lucena did not appeal on this ground, indeed it would have been as frivolous as we now find Basti n-Cortijo's appeal. As the "kicker," there is simply no ____________________ 8 We do not address appellant's argument with respect to which party bears the burden on the foreseeability issue as we understand the government to believe that it met that burden. See Negr n, 967 F.2d at 72-73 (placing burden on defendant to ___ ______ establish lack of foreseeability). -18- way that he could not have known that he was dropping in excess of 50 kilograms to his coconspirators below. Appellants' Laboy-Delgado and Carpio-V lez present a better case. With respect to them, the district court only found that: "The coolers [dropped by Valencia-Lucena and Basti n- Cortijo] were to be subsequently retrieved and imported into Puerto Rico with the assistance of defendants Carpio-V lez and Laboy[-Delgado]." United States v. Valencia-Lucena, No. 89-002, _____________ _______________ slip op. at 3 (D.P.R. Oct. 30, 1991). This statement is an insufficient basis for a finding of foreseeability. As we read the record, it is not strictly accurate as the evidence suggests that Carpio-V lez and Laboy-Delgado were recruited to repair the retrieval boats. The district court's failure to more fully state the evidence upon which it based its finding of foreseeability as to the amount of cocaine with respect to Carpio-V lez and Laboy- Delgado at the sentencing stage has frustrated this court's appellate task. McDowell, 918 F.2d at 1012 & n.12. We make no ________ comment on whether the record supports a finding of foreseeability on the preponderance of the evidence; this task is for the district court. We affirm the resentencing of Nos. 92-1200 and 92-1201. ______________________________________________________ We vacate and remand Nos. 92-1202 and 92-1203 for resentencing. ______________________________________________________________ -19-
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15 F.3d 1088NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
PUBLIC UTILITY DISTRICT NO. 2 OF GRANT COUNTY, Plaintiff-Appellee,v.ILLINOIS EMPLOYERS INSURANCE OF WAUSAU, Defendant-Appellant.
No. 92-35272.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 2, 1993.*Decided Jan. 13, 1994.
Before: TANG, FARRIS, and RYMER, Circuit Judges.
1
MEMORANDUM**
2
Illinois Employers Insurance of Wausau ("Wausau") seeks reversal of the district court's order remanding to the Washington State court an action by Public Utility District No. 2 of Grant County ("Grant PUD") against Wausau (the "Grant action") and staying Wausau's parallel federal court action (the "Wausau action").
3
Wausau argues that a settlement agreement between the parties, relating to third party claims against Grant PUD, allows it to seek a determination of its rights and obligations by a federal or state court in either San Francisco, California, or Spokane, Washington, under a directors and officers liability insurance policy it issued Grant PUD ("Grant policy"). Grant PUD charges that this appeal is moot. Grant PUD also argues that a consent to jurisdiction clause in the Grant policy requires Wausau to submit to the jurisdiction of any court chosen by Grant PUD for resolution of disputes under the policy.
4
Because the district court's decision is based on an analysis of contract language and the application of principles of contract interpretation, we review the decision de novo. Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir.1987). To the extent our inquiry focuses on extrinsic evidence of related facts, however, the district court's conclusions shall not be reversed unless they are clearly erroneous. Miller v. Safeco Title Ins. Co., 758 F.2d 364, 367 (9th Cir.1985).
5
* Addressing Grant PUD's claim first, Grant PUD contends that this appeal is moot for three reasons: (1) the remand of the Grant action to the state court divested the federal district court of jurisdiction; (2) the transfer of the Grant action to the Spokane County Superior Court, one of the jurisdictions in which Wausau claims it could have filed its action, eliminates the prejudice Wausau claims; and (3) Wausau's counterclaims in the Grant action, which the parties state are the same as its claims in the Wausau action, have been dismissed by the state courts.
6
Grant PUD's first contention is meritless. A remand order pursuant to 28 U.S.C. Sec. 1447(c) (lack of subject matter jurisdiction) is not subject to appellate review. 28 U.S.C. Sec. 1447(d); Seedman v. United States Dist. Court for Cent. D. of Cal., 837 F.2d 413 (9th Cir.1988) (per curiam). Here, the district court remanded the case based on the consent to jurisdiction clause in the underlying policy. A remand order based on a consent to jurisdiction clause is not subject to Sec. 1447(d), and hence, is subject to appellate review. Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276-77 (9th Cir.1984).1
7
Next, Grant PUD contends that the transfer of the Grant action to the Spokane County Superior Court, one of the jurisdictions in which Wausau claims it could have filed its action, eliminates the prejudice Wausau claims on this appeal. This contention is not persuasive. The record indicates that the Grant County Superior Court dismissed several of Wausau's counterclaims prior to transferring the action to Spokane County Superior Court. Thus, Wausau still has a viable claim of prejudice--a court other than one of those specifically noted in the purported agreement between the parties dismissed several of Wausau's claims.
8
Finally, Grant PUD contends that even if this Court were to permit Wausau to proceed with its claims in federal district court, its claims for affirmative relief have already been disposed of by the two Washington state courts' dismissals of Wausau's counterclaims in the Grant action. To say that this appeal is moot in light of the dismissals of Wausau's counterclaims ignores the interest Wausau has in defending itself against Grant PUD's claims. We reject the argument.
II
9
Turning to Wausau's claim, Wausau charges that the remand order fails to recognize the parties' modification of the consent to jurisdiction clause contained in the Grant policy. Before any conclusions can be reached regarding the effect of any alleged modification, however, the effect of the consent to jurisdiction clause itself must be considered.
10
The general consent to jurisdiction clause the parties agreed to is one that has been the focus of much litigation over the past forty years beginning with General Phoenix Corp. v. Malyon, 88 F.Supp. 502 (S.D.N.Y.1949). The clause, which is often referred to as the forum selection clause, states, in effect, that Wausau agrees to submit to the jurisdiction of any court within the United States when a dispute arises as to the payment of sums alleged to be due under the policy. As a result of Wausau's agreement to this clause, Grant PUD charges, Wausau waived its right to remove an action filed by Grant PUD.
11
Since the decision in Malyon holding that the policy provision before it "restrict[ed] the defendant to the Court in which suit [was] first begun against it, be it Federal or State," 88 F.Supp. at 503, courts have consistently recognized that a party to an agreement may waive its right to remove. See Foster v. Chesapeake Ins. Co., Ltd., 933 F.2d 1207, 1217 (3rd Cir.), and the cases cited therein, cert. denied, --- U.S. ----, 112 S.Ct. 302 (1991). Indeed, numerous cases have found that an agreement to the general consent to jurisdiction clause involved in this case waived the right to remove. See id.; see also City of Rose City v. Nutmeg Ins. Co., 931 F.2d 13, 15-16 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 301 (1991). In Pelleport Investors, we held that a party that agreed to a forum selection clause stating that disputes over the underlying agreement "shall be litigated only in the Superior Court for Los Angeles California (and in no other)," 741 F.2d at 275, waived its right to remove a state-court action to federal court, id. at 279-81. Wausau cites no authority or rationale compelling us to rule contrary to these precedents. Wausau's agreement to the consent to jurisdiction clause was a waiver of its right to removal.
12
The next question, therefore, is whether Wausau's right to removal was somehow revived. It was not.
13
In agreeing to fund a portion of the third party claims against Grant PUD, Wausau apparently sought a modification of the consent to jurisdiction clause in anticipation of a refund action against Grant PUD. Grant PUD's counsel confirmed the agreement in a letter dated April 14, 1988. The letter states the following:
14
This confirms that at 9:30 a.m. this morning Wausau agreed to fund Grant's share of the Mid-Columbia settlement to the full extent of the remaining limits of the above referenced policy, in settlement of the claims brought by the Class Plaintiffs and Chemical Bank, as Bond Fund Trustee in MDL No. 551. Wausau and Grant have agreed that Wausau's funding of this settlement is made with a full reservation of rights by both Wausau and Grant. Should Wausau decide to pursue any claims against Grant relating to this settlement, those claims may be filed either in state or federal court in San Francisco, or in state or federal court in Spokane, Washington.
15
Wausau contends that this language reflects the parties' agreement that any claims by Wausau against Grant PUD arising out of the funding of the settlement would be litigated in Wausau's choice of several specific forums. Grant PUD, on the other hand, interprets this language literally, focusing on the full reservation of rights of both parties and the stipulation to several forums in which certain claims by Wausau could be filed.
16
A careful reading of the letter gleans two points: that the agreement between the parties was made with a full reservation of rights by both parties, and that Wausau "may" pursue claims against Grant PUD in state or federal courts in either San Francisco or Spokane. Neither of these points is overriding or inconsistent with the Grant policy's consent to jurisdiction clause. Grant PUD retains the right to file an action against Wausau in any court of competent jurisdiction. Attached to this right is Wausau's waiver of its right to remove. With respect to Wausau's right to pursue an action against Grant PUD, the letter merely specifies the forums in which Wausau "may" file such an action. The permissive nature of Wausau's right to file its claims in either San Francisco or Spokane does not override the mandate in the Grant policy that Wausau submit to the jurisdiction Grant PUD selects. Cf. Hunt Wesson Foods, 817 F.2d at 77-78.
17
Furthermore, while it may very well be that our decision effectively denies Wausau the benefit of its subsequent agreement with Grant PUD as it understood it, this consequence is the result of language Wausau both sponsored and sought to benefit by. To the extent an ambiguity may exist in the letter or in the reconciliation between the letter and the consent to jurisdiction clause, there is no reason to resolve it against Grant PUD, the mere scrivener. See Regis Assocs. v. Rank Hotels (Management) Ltd., 894 F.2d 193, 196 (6th Cir.1990).
III
18
Finally, Wausau contends that the remand order must be reversed because new evidence shows that significant local bias in Washington State could deprive Wausau of its day in court. Wausau's burden is a heavy one. It must demonstrate that trial in the state court would "be so gravely difficult and inconvenient that [it would] for all practical purposes be deprived of [its] day in court." The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 17-18 (1972).
19
The district court found, after Wausau admitted it had no empirical evidence of bias in the juror pool of Eastern Washington, that Wausau failed to carry its burden of demonstrating that a lack of impartiality would deny it a meaningful day in court. The evidence of partiality Wausau presents to this Court was not offered to the district court. As a result, the evidence was stricken from the record by the motion panel on July 30, 1992. There being virtually no other evidence of bias in the record, we reject Wausau's contention that the remand order must be reversed because of bias. To the extent the district court should have safeguarded Wausau's interests, it did so by staying the Wausau action rather than dismissing it. See Attwood v. Mendocino Coast Dist. Hosp., 886 F.2d 241, 244 (9th Cir.1989).
20
AFFIRMED.
*
The panel unanimously agrees that this case is appropriate for submission without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3
1
Pelleport Investors also answers another jurisdictional question--one the parties avoid--whether the remand order is appealable, either as a final judgment, 28 U.S.C. Sec. 1291, or as a collaterally final order within the scope of Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546 (1940). Pelleport Investors holds that an order of this type falls within the collateral-order doctrine. 741 F.2d at 278
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333 F.2d 620
John PAPALIA, Petitioner-Appellant,v.UNITED STATES of America, Appellee.
No. 489.
Docket 28890.
United States Court of Appeals Second Circuit.
Argued June 3, 1964.
Decided June 19, 1964.
Certiorari Denied October 12, 1964.
See 85 S.Ct. 74.
Arthur Addess of Bobick & Deutsch, New York City, for petitioner-appellant.
Michael W. Mitchell, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. and Bernard W. Nussbaum, Asst. U. S. Atty., on the brief), for appellee.
Before MOORE, KAUFMAN and HAYS, Circuit Judges.
PER CURIAM.
1
Eleven months after sentencing, petitioner, John Papalia, moved to withdraw his plea of guilty, Fed.R.Crim.P. 32(d), or in the alternative to vacate the sentence, 28 U.S.C. § 2255 (1958), on the ground that at the time of the plea and sentencing he "was mentally incompetent to either plead or be sentenced." After hearing the testimony of Papalia and his supporting witnesses, the district judge summarily granted the government's motion to dismiss with the terse comment, "The case is a tissue of lies from A to Z." On this appeal Papalia claims (1) that the district judge erred in failing to make specific findings of fact and conclusions of law and (2) that, on the evidence presented at the hearing, he was entitled to relief.
2
Although Papalia made no request below for formal findings of fact and conclusions of law, he contends here that the failure to make such findings violated 28 U.S.C. § 2255 (1958) which provides:
3
"Unless the motion and the files and records of the case conclusively show that the petitioner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. * * *" (Emphasis added.)
4
But the district judge's comment clearly indicated the court's essential findings that Papalia's story was unworthy of belief and that Papalia was mentally competent at the time of his plea and sentencing. Although fuller findings might have been helpful, we cannot say that Papalia has been prejudiced by their absence. See Rossiter v. Vogel, 148 F.2d 292, 293 (2d Cir.1945); Huard-Steinheiser, Inc. v. Henry, 280 F.2d 79, 84 (6th Cir. 1960); 5 Moore, Federal Practice ¶52.06[2] (2d ed. 1951).
5
Papalia's contention that on the evidence presented at the hearing he was entitled to withdraw his guilty plea is only a disagreement with the district judge's conclusion. We have examined the evidence and hold that the district judge's conclusion is not clearly erroneous. Papalia did not sustain his burden of proving that he was not mentally competent when he entered his guilty plea and was sentenced. See Holmes v. United States, 323 F.2d 430 (7th Cir. 1963), cert. denied, 376 U.S. 933, 84 S.Ct. 704, 11 L.Ed. 652 (1964); United States v. Harris, 211 F.Supp. 771 (S.D.Fla. 1962), aff'd 316 F.2d 229 (5th Cir.1963).
6
Affirmed.
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266 F.3d 368 (5th Cir. 2001)
RUSTY ROBERTS, individually and on behalf of their minor children, Chase & Jarod Roberts; Sandra Roberts, Plaintiffs-Appellants,v.CARDINAL SERVICES, INC.; ET AL.; Defendants,CARDINAL SERVICES, INC.; KERR-MCGEE CORPORATION, successor-in-interest to Oryx Energy Company, Defendants-Appellees.
No. 00-31232
UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT
October 2, 2001
Appeal from the United States District Court for the Eastern District of Louisiana
Before JOLLY, SMITH, and WIENER, Circuit Judges.
WIENER, Circuit Judge
1
This maritime action was brought in district court against Defendant-Appellee Cardinal Services, Inc. ("Cardinal") under the Jones Act,1 and against Defendant-Appellee Kerr-McGee Corporation ("Kerr-McGee") as successor-in-interest to Oryx Energy Company, under the Louisiana Civil Code's provisions governing negligence,2premises liability,3 and strict liability,4 which are incorporated by reference through the Outer Continental Shelf Lands Act ("OCSLA").5 Suit was filed by Plaintiffs-Appellants Rusty Roberts and his wife, Sandra Roberts, individually and on behalf of their minor children (collectively "Plaintiffs") after Rusty Roberts, an employee of Cardinal, was injured while working on a stationary offshore platform owned by Oryx and subsequently acquired by Kerr-McGee.6 The Plaintiffs now appeal the district court's grants of summary judgment dismissing their claims against Cardinal and Kerr-McGee. We affirm.
I. Facts and Proceedings
2
Cardinal provides a range of services to the energy industry in Louisiana and Texas as well as in the Gulf of Mexico offshore those states. Among the oil and gas well services performed by Cardinal in those areas are wireline, electric line, plugging and abandoning ("p&a"), cementing, and pumping services, as well as acquisition and interpretation of oilfield data. Cardinal's offshore services are performed on both fixed and movable facilities belonging to others as well as on board its own "liftboats."
3
Roberts worked for Cardinal in its p&a department from 1996 until the date of his injury in 1998, first as a p&a helper and then, following a promotion, as a p&a operator. The Kerr-McGee platform on which he was injured while helping to perform a p&a operation is located on the outer Continental Shelf in the Gulf of Mexico, off the Louisiana coast. He was injured by the accidental firing of a perforation gun attached to a wireline that was being used on the platform by the crew of which he was a member in connection with plugging a well. (A "wireline" is a continuous cable used to perform various subsurface functions in a well, including the lowering and raising of various tools, instruments, and other devices. One of the downhole tools used on a wireline is a "perforation gun," a device that originally used cartridges similar to rifle or pistol ammunition but evolved to use "shaped charges," cylinder-shaped ammunition which is cone-shaped internally and fires directionally. It is formed in layers, one a brittle compound of explosive material and the other a metal alloy. When fired by any of several methods, this bazooka-like ammunition shoots a short, concentrated stream of molten alloy or "plasma" in the direction at which the open end of the charge's conically shaped interior is aimed. Generally, perforating guns are used either early in the life of a well to fractionate ("frac") a hydrocarbon-bearing formation or zone so as to commence or enhance production or, late in the life of a well or of a particular formation, to perforate casing or tubing in preparation for "squeezing" or sealing off the well or the zone to "plug and abandon" it.)
4
On the evening of Roberts's injury, the Cardinal crew was attempting a p&a job on the platform in question. Cardinal was responsible for all aspects of the project, Kerr-McGee having reserved only the right to observe and inspect Cardinal's work to ensure its satisfactory completion. The Cardinal crew had assembled a perforating gun, with its shaped charges aimed in a single direction, and had lowered the gun into the well on a wireline. This particular gun included an exterior sleeve and was rigged to fire when the pressure around it increased to a predetermined pounds-per-square inch (psi) level. During its initial descent down the well, the gun encountered a closed or partially closed downhole valve, so the crew reversed the downward direction of the wireline, raising it and the attached perforation gun to the top of the wellbore, close to which Roberts was standing. A valve in the well tubing below was then opened by a Cardinal employee, resulting in a sudden increase in pressure in the wellbore, which presumably caused the gun to fire.7 Unfortunately, the shaped charges happened to be aimed in Roberts's direction, and he was severely injured when they fired.
5
In their lawsuit, the Plaintiffs asserted negligence claims against Roberts's employer, Cardinal, under the Jones Act, advancing that he was a seaman. They brought negligence, premises liability, and strict liability claims against Kerr-McGee as owner of the platform, asserting responsibility under Louisiana law as incorporated by reference in the OCSLA.8
6
Cardinal filed a motion for summary judgment in which it asserted that Roberts did not have a sufficient temporal connection to a Cardinal vessel or fleet of vessels to be a Jones Act seaman. Agreeing with Cardinal as a matter of law, the district court granted summary judgment and dismissed the Plaintiffs' claims against the employer.
7
Kerr-McGee also filed a motion for summary judgment in which it asserted that the Plaintiffs could not prevail on any of the theories of Louisiana law that they proffered under the OCSLA. As the Plaintiffs did not oppose Kerr-McGee's summary judgment motion on the premises liability claims asserted under articles 2317.1 and 2322 of the Louisiana Civil Code, the court granted Kerr-McGee's motion as to those claims, and the Plaintiffs do not re-urge them on appeal.
8
The Plaintiffs conceded that, in its contract with Cardinal for the performance of the May 1998 p&a operation, Kerr-McGee had not retained the requisite operational control to support the imposition of liability for the allegedly negligent acts of its independent contractor, precluding recovery against Kerr-McGee vicariously for any negligence of Cardinal. The Plaintiffs therefore grounded their arts. 2315 and 667 negligence and strict liability claims against Kerr-McGee on allegations that the use of a wireline perforation gun in the p&a operation on Kerr-McGee's platform was an "ultrahazardous activity."
9
The district court granted Kerr-McGee's summary judgment motion and dismissed these claims after refusing to classify wireline perforation as ultrahazardous under Louisiana law because it is a common activity in the oilpatch that can be and indeed generally is performed safely. Plaintiffs timely filed a notice of appeal.
II. Analysis
A. Standard of Review
10
We review a grant of summary judgment de novo, applying the same standard as the district court.9 A motion for summary judgment is properly granted only if there is no genuine issue as to any material fact.10 An issue is material if its resolution could affect the outcome of the action.11 In deciding whether a fact issue has been created, we must view the facts and the inferences to be drawn therefrom in the light most favorable to the nonmoving party.12
11
Determination whether an injured worker is a seaman under the Jones Act is a mixed question of law and fact.13 "If reasonable persons, applying the proper legal standard, could differ as to whether the employee was a 'member of a crew,' it is a question for the jury. ... Nonetheless, summary judgment or a directed verdict is mandated where the facts and the law will reasonably support only one conclusion."14 Our review of such a mixed question is plenary.
12
The standard for summary judgment mirrors that for judgment as a matter of law.15 Thus, the court must review all of the evidence in the record, but make no credibility determinations or weigh any evidence.16 In reviewing all the evidence, the court must disregard all evidence favorable to the moving party that the jury is not required to believe, and should give credence to the evidence favoring the nonmoving party as well as that evidence supporting the moving party that is uncontradicted and unimpeached.17
B. Seaman Status under the Jones Act
13
The district court's grant of Cardinal's motion for summary judgment was grounded in the determination that Roberts was not a seaman, and thus not eligible to recover under the Jones Act. This conclusion was based on the court's finding that Roberts did not have the requisite "substantial connection" to a vessel or an identifiable fleet of vessels under Cardinal's common ownership or control.
14
The Jones Act provides that "any seaman" who sustains personal injury in the course of his employment may maintain an action for damages at law, with the right of a trial by jury.18 The Act does not define "seaman," and "therefore leaves to the courts the determination of exactly which maritime workers are entitled to admiralty's special protection."19 When Congress enacted the Longshore and Harbor Workers' Compensation Act ("LHWCA")20 in 1927, it furnished some content to the term "seaman," albeit indirectly. The LHWCA provides a remedy for land-based maritime workers who are injured during their employment, but the Act explicitly excludes from its coverage "a master or member of a crew of any vessel."21 In Chandris, Inc. v. Latsis, the Supreme Court reiterated that "the Jones Act and the LHWCA are mutually exclusive compensation regimes," and that the LHWCA's reference to "a master or member of a crew" is "a refinement of the term 'seaman' in the Jones Act."22 Thus, the inquiry into seaman status for Jones Act purposes requires a determination whether the injured plaintiff is a "master or member of a crew of any vessel."
15
In Chandris, the Supreme Court clearly articulated the test to apply when making this determination:
16
First,..."an employee's duties must 'contribut[e] to the function of the vessel or to the accomplishment of its mission.'"... Second, and most important for our purposes here, a seaman must have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.23
17
The purpose of the test stated by the court in Chandris and reaffirmed in Harbor Tug & Barge Company v. Papai24 is to
18
separate the sea-based maritime employees who are entitled to Jones Act protection from those land-based workers who have only a transitory or sporadic connection to a vessel in navigation, and therefore whose employment does not regularly expose them to the perils of the sea.25
19
With respect to the inquiry into whether the injured worker's connection to a vessel is substantial in terms of both duration (the temporal prong) and nature (the functional prong), theChandris Court emphasized that the test is conjunctive, stating that "we think it is important that a seaman's connection to a vessel in fact be substantial in both respects."26 The ChandrisCourt further clarified the application of the temporal prong of the test when it offered the following guidance for determining whether a plaintiff's connection to a vessel is substantial in duration: Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.... Nevertheless, we believe that courts, employers, and maritime workers can all benefit from reference to these general principles. And where undisputed facts reveal that a maritime worker has a clearly inadequate temporal connection to vessels in navigation, the court may take the question from the jury by granting summary judgment or a directed verdict.27
20
Synthesizing these refinements leads to the understanding that the plaintiff who fails to show that his connection to a vessel in navigation is substantial in duration will be precluded from recovering as a seaman under the Jones Act, and that, as a general rule, he must show this by demonstrating that 30 percent or more of his time is spent in service of that vessel.
21
The 30 percent floor does not change when an "identifiable group" of vessels in navigation is at issue, rather than just one vessel. In addressing the case before us in St. Romain v. Industrial Fabrication and Repair Service, Inc.,28 we summarized our ruling in Hufnagel v. Omega Service Industries, Inc.29 observing,
22
We held that Hufnagel did not qualify as a seaman because he could not establish a substantial connection to either a single vessel or to an identifiable fleet of vessels....Our decisions after Bertrand have reaffirmed the essential principle that to qualify as a seaman an employee must establish an attachment to a vessel or to an identifiable fleet of vessels.30
23
We have left no doubt that the 30 percent threshold for determining substantial temporal connection must be applied, regardless of whether one vessel or several are at issue.
24
Finally, the Court has constructed the framework for determining the presence of "an identifiable group of vessels." InChandris, reviewing the development of the substantial connection requirement, the Court discussed our modification of the test for seaman status when more than a single vessel is involved:
25
Soon after Robison, the Fifth Circuit modified the test to allow seaman status for those workers who had the requisite connection with an "identifiable fleet" of vessels, a finite group of vessels under common ownership or control.31
26
Subsequently, in Papai, the Court expounded further on this point:
27
We...adverted to the group of vessels concept in Chandris. We described it as a rule "allow[ing] seaman status for those workers who had the requisite connection with an 'identifiable fleet' of vessels, a finite group of vessels under common ownership or control."...
28
In deciding whether there is an identifiable group of vessels of relevance for a Jones Act seaman-status determination, the question is whether the vessels are subject to common ownership or control.32
29
For purposes of the Plaintiffs' Jones Act claims against Cardinal, the issue of seaman status turns on whether Roberts satisfied the temporal prong of the substantial connection test. The Plaintiffs insist that the district court erred in its application of the 30 percent guideline when it counted only the time that Roberts spent on Cardinal's liftboats and disregarded the time that he spent on other Cardinal vessels and on vessels owned by third parties. According to a breakdown of Roberts's work time, he spent 21.45 percent of his time in a shop on land, 37.24 percent of his time performing p&a work on platforms with no vessel involvement, 13.54 percent of his time performing p&a work on platforms with third-party vessels alongside, 24.88 percent of his time performing p&a work on platforms with a Cardinal liftboat alongside, 1.99 percent of his time in transit on Cardinal vessels, and .9 percent of his time performing p&a work on the CARDINAL 1, a Cardinal-owned vessel. The district court stated that "Roberts only spent 24.88% of his time assigned to Cardinal boats."
30
Roberts contends that his time in transit and his time on the CARDINAL 1 should be included, and, more significantly, that the time he spent on platforms with an adjacent third-party vessel should be included as well. If only Roberts's transit time and CARDINAL 1 time were to be added, he would still fall short of the 30 percent threshold, aggregating a total of but 27.77 percent; only if his third-party vessel time were counted would his total time on board vessels "of common ownership or control" rise above 30 percent, to 41.31 percent.33
31
The Plaintiffs contend that the work time involving third-party vessels should be counted. They declare that the "temporal connection establishing a 30 percent rule of thumb is meant to determine whether an employee is sea-based versus land-based. It is not meant to be applied to the fleet requirement." It is generally true, as we noted above, that the fundamental purpose of the seaman-status inquiry is to separate the sea-based maritime employees who are entitled to Jones Act protection from the land-based employees who must find a remedy under the LHWCA. The Plaintiffs are flatly wrong, however, when they assert that the 30 percent guideline is not meant to be applied to the fleet requirement. Indeed, application of the 30 percent test is the very means by which a substantial temporal connection is determined, regardless whether a single vessel or a group of vessels is at issue. And, when a group of vessels is at issue, a worker who aspires to seaman status must show that at least 30 percent of his time was spent on vessels, every one of which was under his defendant-employer's common ownership or control. As recently as Hufnagel, we reaffirmed our commitment to this application of the 30 percent test, and we do so yet again today.34
32
We acknowledge Chandris's insistence that "[the 30 percent threshold] serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases."35 We recognize as well that if all of Roberts's time aboard Cardinal-owned vessels were to be counted, he would come quite close (27.7 percent) to meeting the 30 percent requirement. Nevertheless, we do not perceive the instant case to be one that justifies an exceptional departure from the 30 percent test. In Wisner v. Professional Divers of New Orleans,36 the Louisiana Supreme Court relied on our language in Bertrand v. International Mooring & Marine, Inc.37 and Wallace v. Oceaneering International38 to reverse a grant of summary judgment against a commercial diver. The Wisner court classified the diver as a seaman, despite the fact that he did not have a substantial connection to a fleet under common ownership or control, because the diver "faced regular exposure to the perils of the sea."39 Specifically, the Wisner court concluded,
33
In sum, the formulations or "tests" employed by the various courts are simply different ways to arrive at the same basic point: the Jones Act remedy is reserved for sea-based maritime employees whose work regularly exposes them to "the special hazards and disadvantages to which they who go to sea in ships are subjected."40
34
We consider the subsequent treatment by a Louisiana Court of Appeal, curtailing the Wisner opinion, to be apt. In the post-Wisner case of Little v. Amoco Production Company,41 the state appellate court noted first that the United States Supreme Court's interpretations are controlling in matters of federal law, clearly indicating that, in any disagreement between the application inWisner and the test adopted in Chandris and Papai, the test enunciated in the latter controls.42 More substantively, the court of appeal posited that Wisner could be classified as falling within a "well-established exception" to the general 30 percent substantial connection requirement.43 The exception, as defined by language in our pre-Chandris decision in Bertrand, would be that "Jones Act coverage should not be withheld because the vessels are not under the employer's common ownership or control, when claimants are continuously subjected to the perils of the sea and engaged in classical seaman's work."44 The court of appeal inLittle, still highlighting the Wisner court's reliance on our language, noted that "[a] diver's work necessarily involves exposure to numerous marine perils, and is inherently maritime because it cannot be done on land. It is not, like so many offshore field occupations, an art developed in land work and transposed to a maritime setting."45
35
In St. Romain v. Industrial Fabrication and Repair Service, Inc., we refused to classify a p&a worker like Roberts as a seaman when he failed to establish that he had a substantial connection to an identifiable fleet of vessels.46 This holding alone is conclusive; but if any doubt remained because Roberts's time aboard Cardinal vessels comes close to the 30 percent threshold, theLittle court's reconciliation of Wisner with United States Supreme Court precedent extinguished that doubt as well.
36
Even though a professional diver is peculiarly ---- and totally ---- subject to the perils of the sea and thus may, under special circumstances, qualify as a seaman without showing the requisite degree of temporal connection, a p&a crewman, who practices "an art developed in land work and transposed to a maritime setting," cannot. The Plaintiffs have failed to demonstrate the presence of all elements of the conjunctive test for Roberts's seaman status, and their attempt to bring him within a possible exception to the rule fails. Accordingly, we see no reason to depart from our well-established rule, as reaffirmed in Hufnagel and St. Romain, that a worker who fails to show that at least 30 percent of his time is spent on vessels under the common ownership or control of his employer is precluded from recovering as a seaman under the Jones Act. We therefore affirm the district court's grant of summary judgment in favor of Cardinal.
37
C. Use of Wireline Perforation Gun an Ultrahazardous Activity under Louisiana Law.
38
The Plaintiffs appeal the district court's grant of summary judgment in favor of Kerr-McGee, dismissing their claims for vicarious and strict liability under Louisiana Civil Code arts. 2315 and 667. They assert that the district court erred when it determined that Kerr-McGee's independent contractor, Cardinal, was not engaged in an ultrahazardous activity while using the perforating gun in conducting the p&a job for Kerr-McGee. The Plaintiffs focus particularly on the district court's refusal to include wireline perforation within the ultrahazardous category of "blasting with explosives." Agreeing that wireline perforation is not congruent with "blasting with explosives" as that term is used in art. 667, and being convinced that wireline perforation does not satisfy Louisiana's broader jurisprudential test for ultrahazardous activities, we affirm the district court's grant of Kerr-McGee's summary judgment dismissing the Plaintiffs' claims under arts. 2315 and 667.
39
1. The Article 2315 Claim.
40
a. Framework
41
Before we proceed to analyze the Plaintiffs' negligence and vicarious liability claims against Kerr-McGee, an abbreviated review of the application of Louisiana's basic tort provision, art. 2315, appears to be in order. That article states that "[e]veryact whatever of man that causes damage to another obliges him by whose fault it happened to repair it."47 Classically, a tort in Louisiana comprises art. 2315's four indispensable elements: act, damage, cause, and fault. The Louisiana Supreme Court observed inLanglois v. Allied Chemical Corp.48 that "[f]ault is the key word in art. 2315."49 In construing "fault" in art. 2315, Langloisfurther explained, the courts "[go] to the many other articles in our Code as well as statutes and other laws which deal with the responsibility of certain persons, the responsibility in certain relationships, and the responsibility which arises due to certain types of activities."50 In particular, noted the Langlois court, there is "sound jurisprudential authority that liability for dangerous and hazardous activities of man flows from Civil Code Article 2315 by analogy with other Civil Code Articles."51
42
In our review of Louisiana law in Perkins v. F. I. E. Corp.,52we took cognizance of the Louisiana courts' adherence to the structure established in Langlois, most notably, for purposes of the instant case, the imposition of liability for ultrahazardous activities under art. 2315 by analogy to art. 667.53 As we also noted in Perkins, however, the Louisiana Supreme Court, in Kent v. Gulf States Utilities Co.,54 later seemed to "cast liability for ultrahazardous activities directly upon art. 2315 alone, without relying, either directly or by analogy, on any other codal [sic] article."55 Referred to as absolute liability, or liability without fault, this concept is perhaps more easily understood when viewed as "legal fault" or fault supplied by law. Thus, art. 2315's faultelement is imputed, i.e., supplied by law, when designated persons elect to engage in particularly high-risk activities, even though they perform them lawfully, skillfully, and free of negligent or intentional fault in the usual sense.56 To date, the jurisprudential list of such activities includes only aerial crop dusting, storing hazardous materials, pile driving, and blasting with explosives.
43
b. Activities Ultrahazardous De Jure
44
Within this framework, the Plaintiffs' claims against Kerr-McGee must be analyzed against the backdrop of vicarious tort liability under Louisiana law. A well-established general rule under Louisiana law is that a principal is not liable for the delictual or quasi-delictual offenses (torts) committed by an agent who is an independent contractor in the course of performing its contractual duties.57 There are, however, two equally well-established exceptions to this rule: A principal may be liable (1) if it maintains operational control over the activity in question, or (2) if, even absent such control, the activity engaged in by the independent contractor is "ultrahazardous."58 Given the Plaintiffs' concession that Kerr-McGee did not retain the requisite operational control over Cardinal, Kerr-McGee could only be held liable in tort for damages caused to the Plaintiffs when Cardinal's wireline perforating gun discharged accidentally if that independent contractor's use of the device constituted an ultrahazardous activity and produced the injury. Thus, the dispositive question here is whether Cardinal's use of the wireline perforation gun in the p&a activity that it was performing for Kerr-McGee, being the activity that inflicted injury on Roberts, was ultrahazardous.59
45
Under Louisiana law, an activity may be ultrahazardous either as a matter of law or by classification under the test that has been created judicially. Again, activities that have been categorized in Louisiana as ultrahazardous as a matter of law are (1) storage of toxic gas, (2) crop dusting with airplanes, (3) pile driving, and (4) blasting with explosives.60 As the Louisiana Supreme Court observed in Kent v. Gulf States Utilities, each of these four undertakings is an activity that "can cause injury to others, even when conducted with the greatest prudence and care."61
46
This concept is embodied in the jurisprudential test for ultrahazardous activities that we outlined in Perkins v. F. I. E. Corp.62 Under the Perkins test, an activity is ultrahazardous if it (1) relates to land or to other immovables; (2) causes the injury, and the defendant was directly engaged in the injury-producing activity; and (3) does not require the substandard conduct of a third party to cause injury.63
47
The Plaintiffs insist that wireline perforation is a manifestation of "blasting with explosives," and should therefore be classified as an ultrahazardous activity as a matter of law. We disagree. In Fontenot v. Magnolia Petroleum Co.,64 the case that decreed "blasting with explosives" to be an ultrahazardous activity, the Louisiana Supreme Court reversed a judgment in favor of defendants whose geophysical exploration activities on the property of one owner caused damage to the plaintiffs' homes on adjoining land. The geophysical operations involved the intentional detonation of 10-pound charges of Nitramon "S" at a depth of approximately 70 feet below the surface, and the damage to the plaintiffs' homes (including cracks in walls and ceilings, and broken cement foundations) was alleged to have resulted from the "vibrations and concussions radiating in the soil from the point of the explosions conducted by defendants."65 The Fontenot court observed:
48
It has been universally recognized that when, as here, the defendant, though without fault, is engaged in a lawful business, conducted according to modern and approved methods and with reasonable care, by such activities causes risk or peril to others, the doctrine of absolute liability is clearly applicable.66
49
Stated differently, even though the blasting may have been conducted responsibly and according to the latest accepted methods, the defendants were nonetheless accountable for any unavoidable damage that flowed from the activity.
50
Subsequently, in Schexnayder v. Bunge Corp.,67 we characterizedFontenot as involving "purposeful subterranean explosions in connection with oil exploration," and approved the trial court's jury instruction on ultrahazardous activities, which stated that "[a]n ultra-hazardous activity is an activity which [sic], even when conducted with the greatest of care and prudence, could cause a foreseeable harm or damage to those in the neighborhood."68 Thus, for over a quarter-century we have adhered to the Louisiana Supreme Court's reasoning in Fontenot for classifying the subsurface detonation of explosives as ultrahazardous: Foreseeably, such an activity could cause unavoidable collateral damage to neighbors, even if conducted with due care.
51
Lowering a perforation gun down a well on a wireline and firing it to pierce drill pipe or tubing in an oil and gas well simply does not fit within this rubric. In sharp contrast to the damage incurred by the neighbors in Fontenot, which was inflicted on structures located off the owners' premises by the inevitable, omni-directional underground shock waves produced by the intentional blasting on the owners' premises, the injuries incurred by Roberts were caused by the accidental detonation of the shaped-charge ammunition of the perforation gun, not downhole as intended but at the surface of the owner's premises, i.e., on the Kerr-McGee fixed platform. As we have noted, a perforation gun's shaped charges fire only in the direction toward which their open, conical ends are pointed. When conducted "according to modern and approved methods and with reasonable care,"69 a perforating gun is lowered down a well to a predetermined depth, is fired in one or more predetermined directions, produces a force sufficient only to pierce the tubing or casing, and, at most, a matter of but several additional inches of the adjacent formation. The firing of the shaped charges causes virtually no incidental damage to the gun or the wellbore, and no collateral damage whatsoever by way of vibrations, even to the owner's premises, much less to adjoining property, no matter how proximate.
52
In the unfortunate occurrence that injured Roberts, the business end of the shaped charges ---- like the muzzle of a gun ---- happened to be pointed in his direction at a time when the gun was at the surface rather than downhole. His severe injuries were a direct, primary result of the gun's accidental firing, not collateral damage from shock waves or vibrations. And the unintentional firing of the gun was caused by an act of man, presumably the opening of the valve, in turn causing a spike in pressure. We therefore reject the Plaintiffs' contention that the wireline perforation activity during which Roberts was injured is a variety of blasting with explosives and thus ultrahazardous as a matter of law.
53
c. Ultrahazardous De Facto
54
Wireline perforation also fails to meet at least one of the three conjunctive prongs of the broader Perkins test for ultrahazardousness under Louisiana law. The parties agree that wireline perforation of a well in connection with a p&a operation relates to land or to other immovables, and we shall assumearguendo that, through Cardinal, its independent contractor, Kerr-McGee was "directly engaged" in the wireline perforation activity even though the requisite control over Cardinal had not been retained by Kerr-McGee.70 Thus, we are concerned here only with the third prong of the Perkins test, whether wireline perforation is an activity that "can cause injury to others, even when conducted with the greatest prudence and care."71 For essentially the same reasons that distinguish the perforation activity from blasting with explosives, we hold that the former is not a manifestation of the latter.
55
First, there is ample evidence in the record to support the contention that wireline perforation, whether employing electrically or pressure-activated firing heads to detonate the shaped charges, can be, and indeed generally is, safely performed thousands of times a year. There is further evidence suggesting that when the (infrequent) accident does occur in connection with wireline perforation, it is directly traceable to human error, either in the initial choice to employ a pressure-activated device in a particular well, or in the failure correctly to follow safety procedures. These features of wireline perforation are similar to the transmission of electricity over power lines which was the challenged activity in Kent. Regarding that activity, the Kentcourt stated that "the transmission of electricity over isolated high tension power lines is an everyday occurrence in every parish in this state and can be done without a high degree of risk of injury."72 The same can be said with equal certainty of wireline perforation of oil and gas wells. We therefore conclude that, unlike the stereotypical ultrahazardous activities recognized by statutes and courts of Louisiana, wireline perforation "is likely to cause damage only when there is substandard conduct on someone's part."73 None can dispute that this declaration is applicable to the sequence of events that transpired in the instant accident; it apparently occurred when someone opened the downhole valve, which increased the pressure, causing the perforation gun to fire while it was at the surface rather than hundreds of feet down the wellbore, as intended.
56
This position is consistent with our prior decisions. InAinsworth v. Shell Offshore, Inc.,74 we concluded that "drilling operations do not satisfy the third [element of the Perkins test]," holding that such activities were not ultrahazardous.75 As observed by the district court and reiterated above, wireline perforation is performed frequently in conjunction with both enhancing the flow of oil and gas in a well and plugging and abandoning particular strata or entire wells. This comports with the intermediate appellate court's observation in Bergeron v. Blake Drilling & Workover Co., Inc.76 that "[a] well cannot produce oil or gas unless it is perforated. Thus, perforation is an internal and indispensable element of every well."77 Wireline perforation is therefore easily classifiable as a "drilling operation," and thus not ultrahazardous under Ainsworth.
57
We distinguish our holding today from the Bergeron court's holding which at first blush appears to be to the contrary. InBergeron, a Louisiana court of appeal stated, "even if one found that perforating was not ultrahazardous[,] a finding that perforating is a [sic] inherently and intrinsically dangerous work is unavoidable."78 As the district court in the instant case correctly noted, however, the Bergeron court stopped short of classifying wireline perforation as an "ultrahazardous activity," characterizing it instead as "inherently dangerous," in the law of Louisiana a distinctly different term of art. Here, the district court continued:
58
By holding Kerr-McGee liable under article 2315 for [an] "inherently dangerous" activity, this Court would be expanding the Louisiana Supreme Court's policy behind ultrahazardous activity as announced in [Kent]. In Kent, the Louisiana Supreme Court held that the ultrahazardous activity classification "was created for the rare instances in which the activity can cause injury to others, even when conducted with the greatest prudence and care." This Court does not find that an "inherently dangerous" activity fits within the "special category" of ultrahazardous liability.79
59
We adopt this reasoning, adding only the observation that the perforating gun in Bergeron had a firing head that was activated by electricity, not by pressure as in the instant case.80 In contrast to electrical firing of some perforation guns, only the external application of sufficient psi of pressure can detonate a pressure-activated firing head like the one involved in Roberts's injury. Thus, the difference between an activity that is inherently dangerous and one that is ultrahazardous serves to distinguishBergeron from the instant case, and the difference in the risk of accidental discharge between the firing devices involved in the two cases distinguishes them even further.
60
In summary, when we view the operable facts of the instant case in the light most favorable to the Plaintiffs as non-movants, we are satisfied that use of a wireline perforation gun in a p&a operation cannot be held to be an ultrahazardous activity, eitherde jure or de facto. Not only is such perforation factually distinguishable from "blasting with explosives," an actuality that would render such perforation an ultrahazardous activity as a matter of law were it not distinguishable; wireline perforation also fails to satisfy the third prong of the Perkins test, which requires the activity to be one that is likely to cause injury to others, even when conducted with the greatest prudence and care. This simply cannot be said of wireline perforation, which is conducted routinely in oilfield drilling, completing, producing, and plugging operations; and in which even the extremely infrequent accident is traceable to substandard human conduct.
61
The imposition of liability on a principal for acts of an independent contractor is permitted only in narrow circumstances. Like the district court before us, we are not willing to increase the range of circumstances when the courts and legislature of Louisiana have not seen fit to do so. Our pronouncement in CNG Producing Co. remains as true today as when it was uttered: "We would not subject this activity to strict liability without certain directions from the Louisiana courts"81 to which we would add, "or the Legislature."
2. The Article 667 Claim
62
The Plaintiffs do not make altogether clear whether (1) they assert two completely separate and distinct strict liability claims against Kerr-McGee, one for vicarious tort liability under art. 2315, and another for ownership liability under art. 66782; or (2) they assert but one claim, in which they merely seek to analogize art. 667's strict liability for blasting with explosives on the premises with art. 2315's vicarious liability for its independent contractor's wireline perforation with the gun's shaped charges. As the district court made a discrete ruling under art. 667, however, we shall address the Plaintiffs' strict liability charge on the assumption that they asserted such a claim separately under art. 667. When we do so, we discern two distinct reasons why the Plaintiffs cannot recover under art. 667, one substantive and the other jurisdictional.
63
The substantive reason should by now be obvious: The foregoing analysis exhaustively demonstrates why downhole wireline perforation for either completing an oil or gas well or plugging and abandoning one does not equate with blasting with explosives. That applies with equal force when that activity is tested under the exclusive list of but two ultrahazardous activities that are exceptions under art. 667, i.e., blasting with explosives and pile driving. As wireline perforation is not a manifestation of blasting with explosives for tort law purposes in Louisiana, that very same activity cannot logically be ultrahazardous for purposes of art. 667. Therefore, injury resulting from wireline perforation operations on Kerr-McGee's premises cannot subject Kerr-McGee, as proprietor, to liability without fault under art. 667, so the Plaintiffs cannot prevail on their claims under that article. Thus they have failed to state a cause of action under that code article.
64
Second, the Plaintiffs have no right of action under art. 667; jurisdictionally, they do not have standing to sue Kerr-McGee as the "proprietor" of the platform which is not only Kerr-McGee's "estate" but is also the same immovable on which Roberts was working when he was injured. Roberts was not on adjacent or adjoining property; neither was he a "neighbor" deprived of the enjoyment of his own estate. Yet art. 667 clearly requires those elements to be present for a plaintiff to have standing to sue a "proprietor" for damages caused by even an ultrahazardous activity lawfully conducted on his immovable: The activity on the defendant's premises must damage the neighbor or the neighboring "estate."
65
Differing from Louisiana's tort doctrine (which is established in arts. 2315 et seq. in Book III Title V, entitled Obligations Arising Without Agreement), art. 667 appears in Book II, Title IV, entitled Predial Servitudes; specifically, in section 1, Limitations of Ownership, of Chapter 3, Legal Servitudes. The basic term, servitude, is not defined in the Civil Code but is generally understood to be an obligation owed by one "estate," referred to as the "servient estate," either to designated persons or to another estate, referred to as the "dominant estate." There are two kinds of servitudes, personal and predial.83 "A personal servitude is a charge on a thing for the benefit of a person,"84 of which there are but three: usufruct, habitation, and the right of use.85 In contrast, a "predial servitude is a charge on a servient estate for the benefit of a dominant estate," which two estates must belong to different owners.86 The two immovables that constitute the two estates ---- dominant and servient ---- need not be contiguous or within any given proximity,87 and the predial servitude itself is an immovable, albeit incorporeal.88
66
Among predial servitudes are included (1) natural servitudes, such as drainage, (2) legal servitudes, which are those established by law, and (3) conventional servitudes, which are established by contract. Article 667 is applicable to legal servitudes and covers such obligations of neighborhood as keeping buildings in repair,89building projections across property lines,90 building encroachments on adjoining property,91 common walls,92 and right of passage to and from an enclosed estate.93 Article 667 is aptly titled "Limitations on use of property."
67
In distinguishing actions under art. 2315 on the one hand and those under arts. 667 and 668 on the other, Professor A. N. Yiannoupoulos has written The question arises, therefore, as to the interrelations of articles 2315, 667, and 668. Specifically, does the broadened notion of fault under article 2315 render the notion of liability without negligence under articles 667 and 668 unnecessary? It is submitted that this is not the case: the two sets of provisions may overlap in part but continue to establish distinct grounds of responsibility. Article 2315 establishes responsibility under the law of delictual obligations for all injuries to persons and property. Articles 667 and 668 establish specifically responsibility for damage to property and persons in the context of neighborhood, namely, under rules of property law. It is conceivable that liability may rest on either ground exclusively or on both cumulatively. Indeed, a plaintiff may satisfy the terms and conditions of both sets of articles and may have two distinct causes of action for a single recovery, one resting on the precepts of the law of obligations and the other on precepts of the law of property; or he may have a cause of action either under article 2315 or under articles 667 and 668.94
68
Although courts and commentators disagree about the nature of the interest that a plaintiff must have to bring an action under art. 667, all appear to agree that the plaintiff must have someinterest in an immovable near the defendant-proprietor's immovable. For example:
69
E. Who Can Bring the Action?
70
To be a "neighbor" one need not be an adjoining landowner; as article 651 says[,] "it suffices that they [the lands] be sufficiently near, for one to derive benefit from the servitude on the other."...Because article 667 appears among those dealing with servitudes, and because article 666 provides that these servitudes are imposed by law "upon the proprietors...towards one another," it seems clear that the plaintiff must have a property interest....95
71
and,
72
We find that certain persons other than landowners have the requisite interest to entitle them to institute an action based on Article 667.... Because the servitude is established for the benefit of the estate rather than for the owners personally, those who have a proprietary interest in the estate as outlined by Professor Stone have the standing to bring an action under Article 667.96
73
and, again,
74
We are of the further opinion that the word "neighbor" as used in Article 667 is indefinite and refers to any land owner whose property may be damaged irrespective of the distance his property may be from that of the proprietor whose work caused the damage.97
75
To summarize this point, art. 667 authorizes an action by a "neighbor" against the owner of an immovable ("proprietor") for damage that the neighbor suffered by virtue of an activity conducted on the proprietor's premises. To show that he is a "neighbor," and thus legally entitled (standing; right of action) to maintain an art. 667 action, a plaintiff must show some type of ownership interest in immovable property near that of the proprietor.
76
In completing this analysis, we note that, in 1977, Louisiana's legislature amended portions of the Civil Code pertinent to this analysis. Prior to the amendment, art. 666 provided that legal servitudes (including art. 667) were imposed by law "upon the proprietors...towards one another." Following the amendment, arts. 664 and 666 were condensed to form the new art. 659,98 which states: "Legal servitudes are limitations on ownership established by law for the benefit of the general public or for the benefit of particular persons." This amendment on its face makes it less clear that one must have some type of immovable property interest to maintain an action under art. 667; the official revision Comment provides, however, that new art. 659 is based on art. 664 of the Louisiana Civil Code of 1870, and "does not change the law."
77
Nevertheless, to confirm our conclusion that there has been no change in interpretation, i.e., that the revisions did not strip away the requirement that a plaintiff have some type of immovable property interest, we turn to post-amendment court and commentator treatments of art. 667. Our review of these serves to satisfy us that there has been no such change. Professor Yiannopoulos still writes:
78
Literally, Articles 667 and 668 apply to "proprietors," namely, landowners....By virtue of an expansive interpretation, any person assuming the position of owner, usufructuary, possessor in good or bad faith, or long term lessee, may qualify as a proprietor....Persons that do not qualify as proprietors, such as guests, contractors, and members of the public, may have a variety of remedies against a landowner under the law of delictual obligations or under Article 669, but not for violation of obligations established by Articles 667 and 668.99
79
And the courts of Louisiana continue to agree.100
80
In summary, then, the Plaintiffs are precluded both procedurally and substantively from recovering against Kerr-McGee under art. 667. Procedurally, they have no standing or right of action to sue Kerr-McGee under art. 667 as owner of the platform, an immovable that is the servient estate in this instance, because art. 667 creates obligations in favor of proprietors who are neighbors and thus enjoy the position of the dominant estate of the predial servitude of neighborliness created by this section of the Civil Code. Roberts, a non-proprietor, incurred his injuries while he was physically present on the servient estate, not on a dominant one; and his injuries resulted from the proprietor's lawful use of his estate. Conversely, none of the Plaintiffs is owed a duty by virtue of ownership or presence on an adjacent or proximate dominant estate, and therefore they cannot ground their claims against Kerr-McGee in any aspect of predial servitudes in general or art. 667 in particular.
81
Substantively, the Plaintiffs are precluded from recovery under art. 667. First, they have not attempted to demonstrate ---- nor could they ---- that Kerr-McGee "knew or, in the exercise of reasonable care, should have known that [its] works would cause damage, that the damage could have been prevented by the exercise of reasonable care, and that [it] failed to exercise such reasonable care." Second, absent knowledge and ability to prevent, Kerr-McGee could only be answerable for damages if the injuries were caused by ultrahazardous activity which, for purposes of art. 667, is "strictly limited to pile driving or blasting with explosives."101 And, as the district court correctly determined, use of a wireline perforating gun in the course of plugging and abandoning an oil or gas well is not a manifestation of blasting with explosives.
III. Conclusion
82
Our review of the summary judgment record in this case and the legal propositions advanced by counsel in their appellate briefs and in their arguments before us, together with our consideration of the reasoning of the district court, satisfies us that the court (1) correctly applied the appropriate test in denying seaman status to Roberts in his Jones Act claim against Cardinal, and (2) correctly determined that wireline perforation, as a common and customary activity in the petroleum industry ---- including use in connection with plugging and abandoning oil and gas wells ---- is distinguishable from blasting with explosives, and is not an ultrahazardous activity for purposes of either vicarious liability and negligence under Louisiana tort law or strict liability of an owner of an immovable for damage to his neighbors under art. 667 of the Louisiana Civil Code. The district court's grants of summary judgment in favor of Cardinal and Kerr-McGee are, therefore,
83
AFFIRMED.
NOTES:
1
46 U.S.C. app. § 688.
2
La. Civ. Code Ann. art. 2315.
3
La. Civ. Code Ann. art. 2317.1 and 2322.
4
La. Civ. Code Ann. art. 667.
5
43 U.S.C. §§ 1331-56.
6
To avoid confusion, the OCSLA defendants will be referred to throughout the balance of this opinion as "Kerr-McGee" even if, at the particular time referred to, Kerr-McGee had not yet succeeded to Oryx.
7
It is not altogether clear from the record whether the increase of pressure resulting from the opening of the valve below was the sole cause of detonation of the gun. After discussing possible ways in which the shear screws that controlled the actuation of the gun could have been sheared, however, the engineer's report concludes: "The exact cause of the premature firing may be only academic. The fundamental cause was almost certainly the sudden application of pressure to the assembly. This has been stated repeatedly in the various reports and there is no reason to doubt it." Accordingly, we will refer to the opening of the valve in the well tubing below the gun, with the resulting increase in pressure, as the cause of the gun's firing.
8
43 U.S.C. § 1333(a)(2)(A).
9
Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998).
10
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
11
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
12
See Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999).
13
Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 554 (1997); Chandris, Inc. v. Latsis, 515 U.S. 347, 369 (1995).
14
McDermott International, Inc. v. Wilander, 498 U.S. 337, 356 (1991); see also Papai, 520 U.S. at 554.
15
Celotex Corp., 477 U.S. at 323.
16
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).
17
Id. at 151.
18
46 U.S.C. app. § 688.
19
Chandris, Inc. v. Latsis, 515 U.S. 347, 355 (1995).
20
33 U.S.C. § 901 et seq..
21
Id. § 902(3)(G); see also Chandris, 515 U.S. at 355.
22
Chandris, 515 U.S. at 355-56.
23
Id. at 368 (quoting McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 355 (1991) (quoting Offshore Co. v. Robison, 266 F.2d 769, 779 (5th Cir. 1959))).
24
520 U.S. 548 (1997).
25
Chandris, 515 U.S. at 368; see also Papai, 520 U.S. at 560; Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340, 346 (5th Cir. 1999).
26
Chandris, 515 U.S. at 371 (emphasis added).
27
Id.
28
203 F.3d 376 (5th Cir. 2000).
29
182 F.3d 340 (5th Cir. 1999).
30
St. Romain, 203 F.3d at 379-380 (emphasis added). See also Chandris, 515 U.S. at 367 ("Since Barrett, the Fifth Circuit consistently has analyzed the problem in terms of the percentage of work performed on vessels for the employer in question-and has declined to find seaman status where the employee spent less than 30 percent of his time aboard ship.").
31
Chandris, 515 U.S. at 366 (citing Braniff v. Jackson Avenue-Gretna Ferry, Inc., 280 F.2d 523, 528 (5th Cir. 1960))(emphasis added).
32
Harbor Tug & Barge Co. v. Papai, 520 U.S. 548, 556-57 (1997) (quoting Chandris, 515 U.S. at 366) (internal citations omitted) (emphasis added).
33
We note, as did the district court, that Roberts also asserted in his deposition that three projects on which he worked for Cardinal were billed as platform jobs, but were actually performed on Cardinal liftboats. This could indeed change the calculation, had Roberts offered some evidence other than just his own conclusional statements to counter Cardinal's evidence in the form of invoices for those jobs that do not indicate the use of a Cardinal liftboat on the jobs. As the district court correctly noted, "[c]onclusory [sic] statements in an affidavit do not provide facts that will counter summary judgment evidence, and testimony based on conjecture alone is insufficient to raise an issue to defeat summary judgment." Lechuga v. Southern Pacific Transportation Co., 949 F.2d 790, 798 (5th Cir. 1992) (footnotes omitted).
34
Hufnagel, 182 F.3d at 348 ("'We reject the notion that fleet of vessels in this context means any group of vessels an employee happens to work aboard.'...[A] group of vessels will only qualify where it is a specific, identifiable fleet or a finite group of vessels, subject to common ownership or control." (quoting Barrett v. Chevron, U.S.A., Inc., 781 F.2d 1067, 1074 (5th Cir. 1986) (emphasis omitted)).
35
Chandris, 515 U.S. at 371.
36
731 So.2d 200 (La. 1999).
37
700 F.2d 240 (5th Cir. 1983).
38
727 F.2d 427 (5th Cir. 1984).
39
Wisner, 731 So.2d at 202.
40
Id. at 205 (quoting Chandris, Inc. v. Latsis, 515 U.S. 347, 370 (1995) (citing Seas Shipping Co. v. Sieracki, 328 U.S. 85, 104 (1946) (Stone, C.J., dissenting))).
41
734 So.2d 933 (La. App. 1 Cir. 1999).
42
Id. at 938.
43
Id..
44
Id. (quoting Bertrand v. Int'l Mooring & Marine, Inc., 700 F.2d 240, 245 (5th Cir. 1983)).
45
Id. (quoting Wallace v. Oceaneering International, 727 F.2d 427, 436 (5th Cir. 1983)) (emphasis added).
46
203 F.3d 376, 379-80 (5th Cir. 2000).
47
La. Civ. Code Ann. art. 2315 (emphasis added).
48
249 So.2d 133 (La. 1971)(overruled by statute on other grounds).
49
Id. at 136.
50
Id. at 137.
51
Id. at 139 (citing Egan v. Hotel Grunewald Co., 55 So. 750 (1911)); see also Perkins v. F. I. E. Corp., 762 F.2d 1250, 1259 (5th Cir. 1985)(tracing the development of Louisiana law with respect to the imposition of liability under art. 2315 for conducting ultrahazardous activities).
52
762 F.2d 1250 (5th Cir. 1985).
53
Id. at 1261.
54
418 So.2d 493 (La. 1982).
55
Perkins, 762 F.2d at 1261.
56
See, e.g., Kent v. Gulf States Utilities Co., 418 So.2d 493, 498 (La. 1982) (explaining that "liability is imposed [upon the enterpriser] as a matter of policy when harm results from the risks inherent in the nature of the [ultrahazardous] activity" even though the enterpriser may not have been "negligent in any respect").
57
Ainsworth v. Shell Offshore, Inc., 829 F.2d 548, 549 (5th Cir. 1987), cert. denied, 485 U.S. 1034 (1988); Triplette v. Exxon Corp., 554 So.2d 1361, 1362 (La. App. 1st Cir. 1989).
58
Ainsworth, 829 F.2d at 549-50; Triplette, 554 So.2d at 1362-63.
59
We note Kerr-McGee's assertion that, in any case, it was not "directly engaged" in wireline perforation, as required by the test for imposing liability on the principal. As we join the district court in ruling that wireline perforation is not an ultrahazardous activity, we do not reach the question whether Kerr-McGee was engaged in the activity by virtue of its independent contractor's engagement in the activity.
60
Kent v. Gulf States Utilities Co., 418 So.2d 493, 498 (La. 1982)(citing Langlois v. Allied Chemical Corp., 249 So.2d 133 (La. 1971); Gotreaux v. Gary, 94 So.2d 293 (La. 1957); Craig v. Montelepre Realty Co., 211 So.2d 627 (La. 1968); Fontenot v. Magnolia Petroleum Co., 80 So.2d 845 (La. 1955)).
61
Kent, 418 So.2d at 498.
62
762 F.2d 1250 (5th Cir. 1985).
63
Id. at 1267-68.
64
80 So.2d 845 (La. 1955).
65
Id. at 846-47.
66
Id. at 849.
67
508 F.2d 1069 (5th Cir. 1975).
68
Id. at 1072 n.3.
69
Fontenot, 80 So.2d at 849.
70
See supra note 59 and accompanying text.
71
Perkins v. F. I. E. Corp., 762 F.2d 1250, 1268 (5th Cir. 1985) (quoting Kent v. Gulf States Utilities Co., 418 So.2d 493, 498) (La. 1982)).
72
Kent, 418 So.2d at 498-99.
73
CNG Producing Co. v. Columbia Gulf Transmission Corp., 709 F.2d 959, 962 (5th Cir. 1983)(emphasis in original).
74
829 F.2d 548 (5th Cir. 1987).
75
Id. at 550.
76
599 So.2d 827 (La.App. 1 Cir. 1992).
77
Id. at 840.
78
Id. at 839.
79
Roberts v. Cardinal Services, Inc., 2000 WL 1300390, at *3 (E.D.La. 2000) (internal citations omitted).
80
Bergeron, 599 So.2d at 838-39 (reporting that "[t]he gun consists of high explosives and a blasting cap to detonate the shaped cartridges").
81
CNG Producing Co. v. Columbia Gulf Transmission Corp., 709 F.2d 959, 962 (5th Cir. 1983).
82
Article 667 provides, in pertinent part:
Although a proprietor may do with his estate whatever he pleases, still he cannot make any work on it, which may deprive his neighbor of the liberty of enjoying his own, or which may be the cause of any damage to him. ... [The proprietor] is answerable for damages only upon a showing that he knew or...should have known that his works would cause damage, that the damage could have been prevented .... Nonetheless, the proprietor is answerable for damages without regard to his knowledge or his exercise of reasonable care, if the damage is caused by an ultrahazardous activity. Anultrahazardous activity as used in this Article is strictly limited to pile driving or blasting with explosives.
La. Civ. Code Ann. art. 667 (emphasis added).
83
La. Civ. Code Ann. art. 533.
84
La. Civ. Code Ann. art. 534.
85
Id.
86
La. Civ. Code Ann. art. 646.
87
La. Civ. Code Ann. art. 648.
88
La. Civ. Code Ann. art. 649.
89
La. Civ. Code Ann. art. 660.
90
La. Civ. Code Ann. art. 663.
91
La. Civ. Code Ann. art. 670.
92
La. Civ. Code Ann. art. 673 et seq.
93
La. Civ. Code Ann. art. 689 et seq.
94
Yiannopoulos, A.N., Civil Responsibility in the Framework of Vicinage: Articles 667-69 and 2315 of the Civil Code, 48 Tul. L. Rev. 195, 223 (1974).
95
Stone, Ferdinand Fairfax, Tort Doctrine in Louisiana: The Obligations of Neighborhood, 40 Tul. L. Rev. 701, 711 (1966) (emphasis added).
96
Salter v. B.W.S. Corp., 281 So.2d 764, 767-68 (La. App. 3d Cir. 1973) (emphasis added). See also Yiannopolous, supranote 94, at 206 ("Articles 667 and 668 seem to involve reciprocal duties among landowners that may be broadly regarded as servitudes imposed by law, namely, as charges laid on an estatein favor of another estate belonging to another owner.") (emphasis added).
97
Gulf Insurance Co. v. Employers Liability Assurance Corp., 170 So.2d 125, 129 (La. App. 4th Cir. 1964).
98
Table 2-Derivation, La. Civ. Code Ann. Vol. 3A, p. XXIX.
99
4 A.N. Yiannopoulos, Louisiana Civil Law Treatise, Predial Servitudes, § 44: Proprietors and Other Persons, pp. 125-26 (2d ed. 1997).
100
See, e.g., Dumas v. Angus Chemical Co., 728 So.2d 441, 451 (La.App. 2 Cir. 1999) (citing the above-referenced excerpt from Yiannopoulos, Louisiana Civil Law Treatise in denying that persons injured by an explosion on the premises of a fertilizer plant could recover against the plant operator under Art. 667).
101
La. Civ. Code Ann. art. 667.
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709 F.2d 1514
Audit Services, Inc.v.Glantz Refrigeration, Inc.
82-3389
UNITED STATES COURT OF APPEALS Ninth Circuit
5/16/83
1
D.Mont.
AFFIRMED
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276 F.2d 378
Alvin H. LEAL, Trading as Plains Construction Company, and Mercantile National Bank at Dallas, a Corporationv.UNITED STATES.
No. 199-53.
United States Court of Claims.
April 6, 1960.
Charles E. Carlsen, Minneapolis, Minn., for plaintiffs. Ernest Hubbell, Kansas City, Mo., and Frank W. Mueller, St. Louis, Mo., were on the briefs.
John F. Wolf, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant. Clare E. Walker, New York City, was on the brief.
LARAMORE, Judge.
1
The plaintiffs claim that the contractor Leal (hereinafter referred to as plaintiff), in performing a contract with the Corps of Engineers of the War Department, encountered changed conditions within the scope of Article 4 of the contract, or in the alternative, that the defendant breached the contract by withholding from plaintiff information regarding ground water conditions, which changed conditions or withholding caused Leal to incur extra expense in performing the contract for which he should have been paid.
2
Plaintiff Mercantile National Bank of Dallas, Texas, is a party to this suit by reason of an assignment by plaintiff Leal on April 26, 1946.
3
The contract was entered into on April 17, 1946. As part of the construction of the Hulah Dam on the Caney River, a permanent stream in an alluvial valley in northeast Oklahoma, plaintiff was to excavate a temporary diversion channel, and to build part of the embankment. All suitable material from the diversion channel excavation, together with all other suitable material excavated from the spillway area and from designated borrow areas, were to be used in the construction of the rolled-fill embankment of the dam.
4
The diversion channel was to have its starting point at the Caney River, about 2,100 feet northwest of the dam axis and center line of the spillway, extend eastward intersecting Hickory Creek, and thence southeast to the point where the Caney River intersects the dam axis. It was 2,800 feet long, approximately 30 feet deep, with a bottom width of 40 feet at elevation 690, with one vertical on two horizontal side slopes. The elevation of the bottom grade of the diversion channel was 690, plus or minus, but to be determined in the field by the contracting officer. This elevation was fixed at 690 on the upstream end, decreasing to 688 at the downstream end to correspond with the elevation of the channel of the Caney River between these two points. The grade was established and the slopes staked out by the defendant in April 1946.
5
Plaintiff's bid of $699,917.00 was the lowest of the eleven bids submitted on the contract. The Government's estimate for the work involved was $769,767.50.
6
All of the work under the contract was completed on time, the contract completion date, as extended, being August 16, 1947.
7
In 1939, the Army Engineers had made subsurface explorations at the dam site by means of core borings, auger borings, test pits, and undisturbed sample borings. The primary purpose of the explorations was to test the strength of the foundation materials for the dam and determine their suitability for the embankment construction.
8
With the exception of core hole No. 12, which was located at the intersection of the left bank of the Caney River and the axis of the dam (through which point the southeast periphery of the diversion channel was cut), no subsurface explorations were ever performed within the limits of the work area of the diversion channel.
9
Prior to bidding, plaintiff Leal was furnished with the plans for construction of embankment and excavation for spillway for Hulah Dam, which included drawings of foundation explorations, borings made, and materials recovered. Drawing C104-4 is a profile of 35 borings and test pits made across the Caney River valley along the axis of the dam. The downstream end of the diversion channel intersects the left bank of the Caney River at the axis of the dam. Hole number 12 contained a line drawn on its left side at the approximate elevation of 689, and the letters "WT" were written above this line. Ten of the other 34 borings along the axis of the dam were labeled in a like manner. Although the legend at the bottom of the sheet did not contain an interpretation of the letters "WT," such letters were placed on the sheet to indicate the existence of a water table.
10
The work here in question was plaintiff's first experience with the construction of a diversion channel and the compacting of an earth-filled dam, although plaintiff had previous experience in excavating dirt and compacting it on a fill.
11
Mr. L. M. Bush, a consulting engineer, prepared the plaintiff's bid estimate for the work covered by the contract. He made preliminary investigations on the job site on three occasions in March 1946, the last of these occasions with plaintiff Leal. On these occasions, he took a set of the plans and drawings and specifications with him, examined the cores which were kept in the coring shed, looked over the general requirements, observed the river banks, studied the field conditions, and analyzed the plans and layout. Plaintiff Leal and Mr. Bush checked for possible ground water by walking the banks of the Caney River for about three-quarters of a mile in each direction from the axis of the dam. They found no seepage of water into the river from the river banks, and concluded that excavation in the diversion channel would be an entirely dry operation.
12
Mr. Bush went to the resident engineer's office on the second trip to the job site, but found he was not in. Neither Bush nor Leal made any further attempt to contact the resident engineer prior to the preparation of plaintiff's bid. During the period between February 21, 1946, and March 21, 1946, ten prospective bidders contacted the resident engineer, George A. McClaskey, and he personally escorted them around the job site. He pointed out the various phases of the job, including work on the embankment and the diversion channel. Several prospective bidders raised the question of ground water, indicating that they had expected to encounter ground water and wet material in the diversion channel.
13
The water table does not represent the maximum elevation at which wet material might be expected. Immediately above the water table there is a narrow zone of the fine-grain material, which usually ranges from about one to ten feet in thickness, which is kept constantly wet by capillary attraction. This zone is called the capillary fringe. The height of the capillary fringe depends upon the molecular forces of the soil particles. For example, coarse material, like gravel and sand, has a smaller capillary fringe than finer soil, like silt and sandy soil. The log record of explorations in adjacent areas revealed the existence of a fine-grained material, indicating that a capillary fringe up to five feet could be expected above the water table in the area of excavation for the diversion channel.
14
Prior to making his bid, plaintiff Leal and his estimator, examined the core borings on the job site and determined that the required excavation in the diversion channel would be a silty type of soil, but did not consider its capillary characteristics for absorption of underground water.
15
The plaintiff encountered water and saturated material at elevation 698, and, by letter dated September 4, 1946, advised the contracting officer that the resident engineer had instructed that the wet material be excavated to elevation 690, and compacted on the embankment as originally planned. Because he would incur increased costs and be delayed, plaintiff requested that the elevation of the diversion channel be raised above the level of the water or that the wet material be wasted. He also requested reimbursement for increased costs and an extension of time in the event it was found necessary to continue the operation as instructed by the resident engineer.
16
By letter dated September 11, 1946, the contracting officer denied plaintiff's requests, and instructed that he continue with the excavation of the diversion channel and the compaction of the embankment in accordance with the specifications. On September 17, 1946, the plaintiff, by letter, advised the contracting officer that an exception would be taken to his decision.
17
On October 7, 1946, plaintiff appealed the decision of the contracting officer to the Secretary of War. This appeal was not submitted immediately to Washington, but was retained at the office of the District Engineer, Tulsa, Oklahoma, at the request of the plaintiff, who asked that his appeal remain there until further notice. This appeal claimed excess costs of $87,500 and 60 days' extension of time for completion of the contract.
18
Plaintiff stated that he did not know the meaning of the notation "WT" with respect to hole 12 on drawing C104-4 of the plans since it was not explained or labeled on the drawing and the ground water table was not otherwise indicated or disclosed.
19
Findings of Fact of the contracting officer, dated October 22, 1946, which accompanied the plaintiff's appeal, reported that the letters "WT" indicated the existence of a water table found by the cored holes and appeared on the drawings in accordance with customary practice. The contracting officer also determined that the wet material did not constitute a changed condition since the materials encountered did not differ materially from anything shown on the drawings, and that the wet material could reasonably have been expected in the excavation for the diversion channel to the approximate depth of the river channel.
20
Early in 1947, plaintiff requested that his claim be presented to the Corps of Engineers Claims and Appeals Board in Washington, D. C.
21
On May 9, 1947, plaintiff submitted a response to the Findings of Fact mentioned above which stated in part: "It is a sound conclusion that had the water encountered in the borings adjacent to the diversion channel been shown on the log record and symbolized as water on the log record drawings that the bid price of excavation would have reflected the cost of wet excavation * * *."
22
On May 15 and 16, 1947, plaintiff, represented by legal counsel, engineering representative O. M. Confer, and project engineer H. L. Bailey, appeared before the Corps of Engineers Claims and Appeals Board, Washington, D. C., which represented the Secretary of War, and presented their claim. This claim advanced the following principal contentions:
23
A. The letters "WT" on drawing C104-4 were not explained, and their meaning was unknown to the plaintiff. The existence of ground water in the diversion channel at elevations between 690 and 698 constituted a changed condition for which an equitable adjustment was claimed, in addition to an extension of time of 30 days.
24
B. The contracting officer erred in classifying wet excavation as suitable fill material instead of permitting it to be wasted, and that the requirement for its processing before compaction in the embankment constituted additional work for which an equitable adjustment was claimed, including an extension of time of 30 days.
25
On July 22, 1947, the Corps of Engineers Claims and Appeals Board denied plaintiff's claims, finding that there was no changed condition, and that no evidence had been presented which indicated that the plaintiff performed work in addition to that required by the contract specifications.
26
Plaintiff has now conceded in his requested findings that the symbol "WT" means "water table," although no explanation of these letters is made on the plans and drawings.
27
Plaintiff contends that the defendant withheld information as to a water table on many of the borings, and that these holes, for the most part, were bored in 1939 during one of the dryest periods in Oklahoma's history when there was no flow in the Caney River, whereas the drawings and plans furnished the bidders do not show the dates of the borings and such drawings and plans are dated November 27, 1945.
28
Defendant's original logs of approximately 200 borings in the Caney River valley, which, for the most part, were completed in 1939, contained 48 holes where a water table was shown, but this information was not shown on the drawings or plans furnished the plaintiff. None of these holes was in the diversion channel area. Drawing C104-4, showing a profile of the axis of the dam with "WT" on 11 holes out of 35, could actually have shown a "WT" on 26 out of the 35 holes, had the water table data been transferred from the original log records to the papers and documents furnished bidders.
29
Since the Hulah Dam was built in an alluvial valley on a permanent river in northeastern Oklahoma, the geological structure is such that a water table could be expected at the water level of the river near its edge, rising in the ground areas as the distance away from the river increased. The indication of the water table on 11 of the 35 holes across the axis of the dam shows the general location of the water table across the valley.
30
The Trial Commissioner has found that there was sufficient information in the drawings to indicate to an experienced operator the existence of a water table in the valley, and that plaintiff and his estimator apparently failed to consider the geological structure in respect to the location of the dam site before submitting their bid, or they would have expected to encounter a water table at about the surface of the river, rising slowly at distances away from the river.
31
It was also found that the record did not show that any substantial delay in the embankment construction was caused by the use of wet material from the diversion channel, that no satisfactory evidence, in the form of books and records, was introduced by the plaintiff to show the cost of the wet excavation or that extra costs were incurred by him in drying the wet material before compacting it, and that plaintiff's method of operation in the diversion channel after encountering wet material was conducted in such a manner as to make working conditions more difficult, reduce normal production, and increase the cost of the work.
32
The plaintiff employed an elevating grader and self-loading scoops in excavating the diversion channel down to approximate elevation 702, where the ground would no longer support this type of equipment. Thereafter, the plaintiff employed a 2½ cubic yard dragline, of approximately 50 tons, to make the final cut of about 12 feet.
33
Plaintiff commenced excavation with the dragline at the upstream end of the diversion channel, adjacent to the Caney River, where the cut was made down to the required grade or bottom of the channel. A seepage occurred as soon as the cut was made, causing a ponding of the water in the work area. Sometimes the accumulation of water was as much as 3½ feet above final grade, and the material cut under water was mixed with the comparatively dry material at the top portion of the cut.
34
The defendant suggested to plaintiff on a number of occasions, both orally and in writing, the advantage of excavating from the downstream end of the channel to allow the free water to flow downstream out of the work area. Plaintiff continued excavation in the upstream end of the diversion channel for approximately one-third of its length because of a shorter haul route.
35
The plaintiff was requested, both orally and in writing, to pump the water from the work area in the diversion channel, as required by the specifications, but plaintiff had no pump on the job until September 16, 1946, and little effective pumping was done for sometime thereafter because of the poor condition of the pump and frequent breakdowns.
36
Ultimately the plaintiff cut a drainage pilot channel from the lower end of the diversion channel and performed the remaining two-thirds of the excavation to grade by working from the downstream end of the channel, and much water was eliminated from the work area by natural drainage.
37
The first question we will treat is whether or not the defendant breached the contract by withholding from the plaintiff information in its possession concerning ground water conditions.
38
The plaintiff contends that the Government failed to furnish him with pertinent data in its possession concerning subsurface conditions which, if disclosed, would have warned him that wet material would be encountered, and that this amounts to a breach of the contract, entitling plaintiff to the damages flowing therefrom.
39
A study of the cases that have been decided in this area, which are too numerous to cite, makes it clear that each one must turn upon its own peculiar facts. The cases do, however, provide the framework of law within which the facts of a given case must be considered.
40
We have held that the defendant has a duty, if it made borings, or was in possession of pertinent information, to fully disclose and furnish such facts as were found. General Casualty Company v. United States, 127 F.Supp. 805, 130 Ct.Cl. 520, 528; Ranieri v. United States, 96 Ct.Cl. 494, 506, certiorari denied, 317 U.S. 690, 63 S.Ct. 264, 87 L.Ed. 552. However, a bare withholding is not enough to make out a case. The plaintiff must show that he was in fact misled by the withholding of information. If the plaintiff knew or should have known that he would encounter wet material, although information was withheld, then it cannot be said that he was misled. Ragonese v. United States, 120 F.Supp. 768, 128 Ct.Cl. 156, 162.
41
This leads us to a consideration of the facts to determine whether or not in this instance plaintiff was, in fact, misled by the withholding of information in the defendant's possession. We believe, after a careful scrutiny of all the evidence, that from the information furnished him, plaintiff either knew or should have known that a water table existed across the entire alluvial valley and that he would encounter wet material in the diversion channel. Consequently, plaintiff in fact was not misled by the information furnished or withheld. The facts upon which we base this conclusion are these: (1) Prior to the award of the contract, plaintiff advised that he intended to supply water for the Government buildings by digging a well, and one week after entering into the contract he submitted for defendant's approval drawings and specifications for a well 40 feet deep from elevation 805 to 765 about 750 yards from the diversion channel; (2) the only core hole within the limits of the work area (core hole No. 12) indicated the presence of a water table at approximately elevation 689; (3) several prospective bidders raised the question of ground water, indicating that they expected to encounter ground water and wet material in the diversion channel; (4) the log record of explorations in adjacent areas revealed the existence of a fine-grained material, indicating that a capillary fringe up to five feet could be expected above the water table in the area of excavation for the diversion channel; (5) the specifications clearly contemplated the existence of ground water in the course of the work. Paragraph 2-01 of the specifications required that "all permanent work shall be done in the dry," and that "the contractor shall keep the work free from water until that portion of the permanent work below the water level is completed." Paragraph 3-01(b) dealing with "Excavation" provided that "The contractor shall at all times take such precautions as are necessary to keep work free from ground and surface water"; (6) 11 of the 35 holes across the axis of the dam indicated a water table across the valley; (7) plaintiff and his estimator apparently failed to consider the geological structure in respect to the location of the dam site before submitting their bid, or they would have expected to encounter a water table at about the surface of the river, rising slowly at distances away from the river; and (8) there was sufficient information in the drawings and specifications to indicate to an experienced operator the existence of a water table in the valley.1
42
Thus, from the information furnished him, we think that the plaintiff should have known that he would encounter wet material, and he has not shown, to our satisfaction, that he was in fact misled, and thereby damaged. As a matter of fact, plaintiff has failed to show anything other than his own determination that would support a conclusion that wet material would not be encountered. There is nothing in the plans, specifications, or record that suggests or indicates that the material to be encountered by the plaintiff would be dry.
43
Beyond question, the Government did not furnish plaintiff with all the information in its possession, but the failure to furnish said information did not mislead the plaintiff and thus he was not damaged thereby. We do not see how plaintiff can be heard to complain about being misled by the withholding of information, when admittedly he did not, prior to bidding, fully understand the information that was furnished to him, and made no effort to find out what "WT" meant.
44
Plaintiff argues alternatively that when it became necessary to excavate and compact wet material, he encountered changed conditions within the scope of Article 4 of the contract, which is as follows:
45
"Article 4. Changed conditions. — Should the Contractor encounter, or the Government discover, during the progress of the work subsurface and/or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications, the attention of the Contracting Officer shall be called immediately to such conditions before they are disturbed. The Contracting Officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ the contract shall, with the written approval of the Secretary of War or his duly authorized representative, be modified to provide for any increase or decrease of cost and/or difference in time resulting from such conditions."
46
In previous cases involving Article 4 situations, we have held that the plaintiff was entitled to recover if he encountered unknown subsurface conditions differing materially from that shown by the drawings, specifications, and borings, and one which could not have been reasonably anticipated from a study of the drawings, specifications and borings, or by an examination of the site. General Casualty Company supra; Shepherd v. United States, 113 F.Supp. 648, 125 Ct. Cl. 724. But, if the contractor miscalculated, he cannot recover. Blauner Construction Company v. United States, 94 Ct.Cl. 503, 510-511; C. W. Blakeslee & Sons, Inc. v. United States, 89 Ct.Cl. 226, 250; General Contracting Corp. v. United States, 96 Ct.Cl. 255, 278.
47
The facts set out above that led us to the conclusion that the plaintiff was not misled also cause us to conclude that he simply miscalculated and did not heed the warning signs in the specifications and drawings furnished, which information was sufficient to inform an experienced contractor that water would be encountered. Therefore, it cannot be said that he encountered changed conditions which were compensable under Article 4. The Claims and Appeals Board was correct in denying plaintiff's claim on the ground that no changed conditions were encountered, and the trial de novo in this court supports that decision.
48
Since we find in the defendant's favor on the question of liability, it is unnecessary to treat the other arguments raised by both parties.
49
The plaintiffs' petition will be dismissed.
50
It is so ordered.
51
JONES, Chief Judge, and MADDEN and WHITAKER, Judges, concur.
Notes:
1
In respect to this, plaintiff says that he did not know the meaning of the notation "WT" on the drawings. However, plaintiff's bid was prepared by a consulting engineer, and it seems incredible that neither a contractor nor an engineer would know the meaning of "WT" in the context in which it was used. In any event, a simple inquiry would have revealed the meaning of the notation. Furthermore, plaintiff says he concluded that the 11 holes marked "WT" indicated only pockets of water and not a water table that would extend across the entire valley. This conclusion is inconsistent with his claim that at the time of bidding he did not know the meaning of "WT"
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873 S.W.2d 698 (1993)
STATE FARM FIRE & CASUALTY COMPANY, Petitioner,
v.
Joseph C. REED, et al., Respondent.
No. D-2377.
Supreme Court of Texas.
September 29, 1993.
Rehearing Overruled May 11, 1994.
Kathleen Walsh Beirne, Fred A. Simpson, Mary Lou Flynn-DuPart, Houston, for petitioner.
Alton C. Todd, Alvin, Otto D. Hewitt, III, Davenport Law Firm, Galveston, for respondent.
OPINION
HIGHTOWER, Justice.
This cause presents the question whether there is coverage under a homeowners insurance policy that excludes coverage for "business pursuits" of an insured except those pursuits that are "ordinarily incidental to non-business pursuits." Joseph and Francis Reed (the Reeds) and Michael and Sheree Ford (the Fords) filed a declaratory judgment action against State Farm Insurance Company (State Farm) seeking a declaration of coverage under a homeowner's insurance policy (policy) it issued for liability arising out of the death of the Fords' child while at a home child care center operated by Ms. Reed. The trial court granted summary judgment for the Reeds and the Fords, holding that the child's death was caused by an activity that was ordinarily incidental to non-business pursuits. The court of appeals affirmed. 826 S.W.2d 659 (1992). We affirm the judgment of the court of appeals.
Frances Reed operated a registered family home for day care services at her home. In 1987, eighteen month old Michael Ford III drowned in a puddle of water that settled on a tarp covering a swimming pool after crawling through a hole in the fence that separated a play area from the swimming pool. The *699 Fords sued the Reeds for wrongful death. The Reeds notified State Farm of Michael's death and sought coverage under their policy. State Farm concluded that coverage was excluded under the Reeds' policy[1] because Michael's death resulted from a business pursuit and defended the Reeds under a reservation of rights. After a non-jury trial, the trial court rendered judgment against the Reeds for $480,000 plus interest.[2]
The Reeds and the Fords filed this declaratory judgment action seeking a declaration that the judgment was covered by the policy. State Farm moved for summary judgment, alleging that there was no coverage based on the policy exclusion of coverage for any business pursuits. The Reeds and the Fords also moved for summary judgment, asserting that there was coverage based on the exception to the business pursuits exclusion for activities which are ordinarily incidental to non-business pursuits. The trial court granted summary judgment for the Reeds and the Fords and denied summary judgment for State Farm, holding that the exception to the "business pursuits" policy exclusion applied since Michael's death was caused by a business activity that was ordinarily incident to a non-business pursuit. The court of appeals affirmed, stating that "one of the causes of the child's injury was the negligent failure to maintain the fence, an activity ordinarily incidental to a non-business pursuit. Therefore we hold that the court did not err in finding that the facts of the case fit the exception to the exclusion." 826 S.W.2d at 663.
I.
State Farm asserts that there is no coverage under the policy because Michael's death was the result of an activity that was a business pursuit and the "ordinarily incidental" exception does not apply. We disagree.
A.
Generally, a contract of insurance is subject to the same rules of construction as other contracts. Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987). If the policy is worded so that it can be given only one reasonable construction, it will be enforced as written. Puckett v. U.S. Fire Ins. Co., 678 S.W.2d 936, 938 (Tex.1984). However, if a contract of insurance is susceptible to more than one reasonable interpretation,[3] we must resolve the uncertainty by adopting the construction most favorable to the insured. Nat'l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). An intent to exclude coverage must be expressed in clear and unambiguous language. Id.
B.
Whether child care in the home for which some remuneration is received is excluded as a "business pursuit", or is an exception to this exclusion because it is "incident to non-business *700 pursuits," is unclear. John Allen Appelman, 7A Insurance Law and Practice, § 4501.11, at p. 280-81 (1979). Other jurisdictions have taken three different approaches. The first approach is illustrated by Stanley v. American Fire & Casualty Co., 361 So.2d 1030 (Ala.1978), in which a one year old was injured when she fell backwards in a bed of hot coals in the fireplace of her baby-sitter. The Alabama Supreme Court focused on the ongoing nature and profit aspect of the enterprise and held that child care for compensation was a business pursuit and was not ordinarily incident to non-business pursuits.[4] This approach has been criticized because it focuses too much on the business nature of child care and always renders the exception to the exclusion inapplicable in the child care context regardless of the specific activity that actually created the liability. See, e.g., Allstate Ins. Co. v. Kelsey, 67 Or.App. 349, 678 P.2d 748 (1984) (Warren, J. dissenting), review denied, 297 Or. 227, 683 P.2d 91 (1984); see also Developments in Maryland Law, 49 Maryland L.Rev. 509, 823 (1990).
The second approach is illustrated by Crane v. State Farm Ins. and Casualty Co., 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129 (1971). In Crane, a two and a half year old suffered burns on her hands and wrists while in the care of a baby-sitter. The sitter was paid for her services but also simultaneously cared for her own two children. In concluding the injury was covered by the baby-sitter's homeowner's policy, the California Supreme Court stated:
Indeed, it is difficult to conceive of an activity more ordinarily incident to a non-commercial pursuit than home care of children.
95 Cal.Rptr. at 515, 485 P.2d at 1131.[5] This approach has been criticized as too broad because the "ordinarily incident to non-business pursuits" exception swallows the "business pursuits" exclusion, at least in the context of child care. See, e.g., State Farm Fire & Casualty Co. v. Moore, 103 Ill.App.3d 250, 58 Ill.Dec. 609, 613, 430 N.E.2d 641, 645 (1981); see also Developments in Maryland Law, 49 Maryland L.Rev. 509, 812 (1990).
The third approach is illustrated by Gulf Ins. Co. v. Tilley, 280 F.Supp. 60 (N.D.Ind. 1967), aff'd per curiam 393 F.2d 119 (7th Cir.1968). In that case, a child, while in the care of a baby-sitter, was severely burned by the contents of a coffee pot. The court focused on the type of activity that caused the injury (serving coffee) and held that it was not an activity ordinarily associated with the function of child care.[6] This approach gives effect to the exclusion and the exception but reaches conclusions that appear somewhat contrived. See Developments in Maryland Law, 49 Maryland L.Rev. 509, 824 (1990).
II.
In this case, the policy provides, among other things, that State Farm will pay *701 all sums which the Reeds become legally obligated to pay as damages because of bodily injury. The policy also provides there is no coverage under the policy for "any business pursuits of an insured except activities therein which are ordinarily incidental to non-business pursuits[.]" Neither party disputes that Ms. Reed's home day care operation was a business pursuit. Thus, we must determine whether the exception to the "business pursuits" exclusion applies.
The cases from other jurisdictions support the conclusion that this exclusion and exception are susceptible to more than one reasonable interpretation. See, e.g., Stanley v. American Fire & Casualty Co., 361 So.2d 1030 (Ala.1978); Crane v. State Farm Fire and Casualty Co., 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129 (1971); Gulf Ins. Co. v. Tilley, 280 F.Supp. 60 (N.D.Ind.1967), aff'd per curiam, 393 F.2d 119 (7th Cir.1968); see also John Allen Appelman, 7A Insurance Law and Practice, § 4501.11, at p. 280-81 (1979). Under one interpretation, the Reeds liability arising out of home child care is always incident to a non-business pursuit. Under another reading, the Reeds' failure to maintain the fence constitutes a failure to safely supervise children enrolled in a child care program. Thus, this activity is not incident to a non-business pursuit. Yet under another construction of the exclusion and the exception, the maintenance of the fence at a person's home is ordinarily incident to a non-business pursuit.[7]
We must resolve the uncertainty of a policy exclusion by adopting the construction most favorable to the insured. See Nat'l Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991). Based upon an examination of the text of this exclusion and exception and considering other possible reasonable interpretations, we conclude that the provision is ambiguous.[8] Therefore, strictly construing the policy language against the insurer and adopting the interpretation most favorable to the insured, we hold that coverage exists under the policy for damages resulting from the death of Michael.[9]
For the above reasons, the judgment of the court of appeals is affirmed.
Dissenting opinion by PHILLIPS, C.J., joined by HECHT, J.
ENOCH, J., not sitting.
PHILLIPS, Chief Justice, dissenting.
Because I believe the Reeds' homeowners' policy unambiguously excludes coverage for *702 liability arising from the death of Michael Ford III, I dissent.
Before attempting to interpret and apply the Reeds' policy to the facts of this case, it is important to consider the nature of Ms. Reed's child care enterprise at the time of Michael Ford's death. From 1984 to just after Michael's death, Ms. Reed operated one of over 14,000 "registered family homes" in the state, which are authorized by the Texas Department of Human Resources (TDHR) to provide day care services for as many as 12 children at a time.[1] Ms. Reed charged parents $37.50 per child, per 5-day week for her services. The scale of Ms. Reed's enterprise apparently required, and the revenue from it allowed, her to hire two additional employees. Her range of clients extended beyond mere family and close friends, as she advertised her services, while the Fords, for example, relied on third-party recommendations.
As a registered family home, Ms. Reed's enterprise was required to comply with a variety of TDHR regulations designed to ensure the safety of children under her supervision. One requirement was that "[i]f there is a swimming pool, wading pool, pond, creek, or other body of water on or near the premises of the home, children must be protected from unsupervised access to the water." TEXAS DEPARTMENT OF HUMAN RESOURCES, STOCK CODE 20320-0000, MINIMUM STANDARDS: REGISTERED FAMILY HOMES Appendix I, at 10 (April 1982); see also TEX.ADMIN. CODE § 81.106. When originally constructed in 1982 or 1983, the Reeds' swimming pool was not separated by a fence or other barrier from the rest of their back yard. In deposition testimony, Ms. Reed confirmed that the hurricane fence now separating the pool from the children's play area was later added to help meet the TDHR safety requirements. Michael Ford gained access to the pool by crawling under this fence through a hole allegedly dug by the Reeds' family dog.
When the Reeds bought their house in 1982 or 1983, they purchased a Texas standard homeowners policy, mandated by State Board of Insurance regulations and held by over four million other Texas homeowners, which they renewed annually. This policy contains strict limits on coverage of risks arising from business activities, defining "business" as "trade, profession, or occupation." One of the Reeds' declarations in the policy disclaimed that any "business pursuits" were conducted in their home, and a space for exceptions to that declaration was left blank. They continued to make this disclaimer with each successive renewal, even after Ms. Reed initiated her child care enterprise. The policy contained an exclusion to personal liability coverage for "business pursuits," and an exception to that exclusion for "activities therein which are ordinarily incident to non-business pursuits." While other types of coverage were available for business activities, the Reeds did not purchase any of these; rather, with each successive renewal, they continued to rely solely on their basic homeowners' policy to ensure them against risks arising from Ms. Reed's child care enterprise.
The Reeds do not dispute that the child care enterprise constituted a "business pursuit" under the meaning of the policy; instead, they argue that because the "incident to non-business pursuits" exception is ambiguous, we should apply the contra-drafter rule to find coverage. When construing a contract, the court's primary concern must be to give effect to the written expression of the parties' intent. E.g., Ideal Lease Serv., Inc. v. Amoco Prod. Co., 662 S.W.2d 951, 953 (Tex.1983). The interpretation of a contract, and the issue of whether a contract has more than one reasonable interpretation, are questions of law which we must resolve by reading *703 the contract as a whole. Reilly v. Rangers Mgt., Inc., 727 S.W.2d 527, 529 (Tex. 1987); Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). Applying these rules to the case at hand leads me to conclude that there is only one reasonable interpretation of the contested policy provisions: the Reeds are not covered.
I agree that where a provision of an insurance policy, like that in any other contract, is ambiguous, or susceptible to more than one reasonable interpretation, such uncertainty should be resolved against the drafter. National Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex.1991); Barnett v. Aetna Life Ins. Co., 723 S.W.2d 663, 665 (Tex.1987). But not every difference in the interpretation of a contract amounts to an ambiguity. And certainly the fact that other jurisdictions are in disagreement cannot, by itself, justify a holding that language is ambiguous. See Rodriguez v. Safeco Ins. Co., 821 P.2d 849, 853 (Colo.App.1991); Allstate Ins. Co. v. Kelsey, 67 Or.App. 349, 678 P.2d 748, 752 (1984); Floyd v. Northern Neck Ins. Co., 245 Va. 153, 427 S.E.2d 193, 196-97 (1993); McCloskey v. Republic Ins. Co., 80 Md.App. 19, 559 A.2d 385, 387 (1989).
Admittedly, a few courts in other states have, in similar fashion and in similar contexts, deemed "incident to non-business activities" exclusions ambiguous or have otherwise applied the contra-drafter rule to find coverage. See State Farm Fire & Cas. Co. v. Moore, 103 Ill.App.3d 250, 58 Ill.Dec. 609, 615, 430 N.E.2d 641, 647 (1981); Foster v. Allstate Ins. Co., 637 S.W.2d 655, 657 (Ky. App.1981); Robinson v. Utica Mut. Ins. Co., 585 S.W.2d 593, 598 (Tenn.1979); see also Nationwide Mut. Fire Ins. Co. v. Collins, 136 Ga.App. 671, 222 S.E.2d 828, 832-32 (1975). Many more states, however, including all who have considered such provisions in the last decade, have held them not to be ambiguous. See Stanley v. American Fire & Cas. Co., 361 So.2d 1030, 1033 (Ala.1978); Rodriguez, 821 P.2d at 853; Western Fire Ins. Co. v. Goodall, 658 S.W.2d 32, 34 (Mo. App.1983) (citing Dieckman v. Moran, 414 S.W.2d 320 (Mo.1967)); Haley v. Allstate Ins. Co., 129 N.H. 512, 529 A.2d 394, 396 (1987); Kelsey, 678 P.2d at 752; Floyd, 427 S.E.2d at 196-97; Rocky Mtn. Cas. Co. v. St. Martin, 60 Wash.App. 5, 802 P.2d 144, 146 n. 3 (1990); see also Republic Ins. Co. v. Piper, 517 F.Supp. 1103, 1106 (D.Colo.1981); McCloskey, 559 A.2d at 387 (construing "business pursuits" exclusion).
The act of supervision is the very essence of child care. That is what Ms. Reed was paid to do, and it is her failure to perform this duty that proximately caused Michael Ford's death. I thus reject the view that in determining whether the "incident to non-business" exception applies, we should focus on some more specific actfor example, the failure to maintain the fencethat might be said to have caused the injury. See Gulf Ins. Co. v. Tilley, 280 F.Supp. 60, 65 (N.D.Ind. 1967), aff'd per curiam, 393 F.2d 119 (7th Cir.1968); Rodriguez, 821 P.2d at 852; Floyd, 427 S.E.2d at 197.[2]See also Developments in Maryland Law: Insurance Coverage of Injuries that Occur at Home Day-Care, 49 Md.L.Rev. 509, 824 (1990).
While a handful of early cases suggested that the act of supervising a child might be "incident to nonbusiness pursuits," see Crane v. State Farm Fire & Casualty Co., 5 Cal.3d 112, 95 Cal.Rptr. 513, 485 P.2d 1129, 1132 (Cal.1971); Bankers Standard Ins. Co. v. Olwell, 309 N.W.2d 799, 801-02 (Minn.1981); Goodall, 658 S.W.2d at 34-35, these cases stand for the outmoded rationale that child supervision, even if for compensation, is somehow inherently "incident to non-business activities." This fails to comport with the modern realities of working parents, necessitating the proliferation of professional day care providers like Ms. Reed. Perhaps reflecting this, more recent decisions have *704 uniformly repudiated the view that child care is always "nonbusiness." See Stanley, 361 So.2d at 1033; Farmers' Ins. Co. of Arizona v. Wiechnick, 166 Ariz. 266, 801 P.2d 501, 504 (Ct.App.1990); Landis v. Allstate Ins. Co., 546 So.2d 1051, 1053 (Fla.1989); Moncivais v. Farm Bureau Mut. Ins. Co., 430 N.W.2d 438, 442; McCloskey, 559 A.2d at 390; Maryland Casualty Co. v. Hayes, 827 S.W.2d 275, 278 (Mo.App.1992);[3]Haley v. Allstate Ins. Co., 129 N.H. 512, 529 A.2d 394, 396 (1987); Kelsey, 678 P.2d at 750-52; Rocky Mtn. Cas. Co., 802 P.2d at 147; see also Piper, 517 F.Supp. at 1106; United States Fidelity & Guar. Co. v. Heltsley, 733 F.Supp. 1418, 1422-23 (D.Kan.1990).
I reject the notion that the supervision of children in full-time, for-profit, state-regulated residential child care enterprises can reasonably be deemed "incident to non-business pursuits."[4] The Reeds' Texas standard homeowners' policy was not intended to cover risks arising out of that or any other business pursuit.
One necessarily sympathizes with the plight of the Fords, who understandably desire the adequate and sure source of compensation for their son's tragic death that the Reeds' homeowners' policy might provide. But it is not the job of this Court to ensure such coverage where the policy at issue unambiguously excludes it. And, under this language, it is not the responsibility of the four million other Texans who have homeowners' policies to subsidize the business risks of the homeowner who initiates an at-home enterprise subject to certain risks without purchasing appropriate coverage.
I would reverse the judgment of the court of appeals and render summary judgment in favor of State Farm.
HECHT, J., joins in this dissent.
NOTES
[1] The homeowners policy contained the following language;
SECTION IILIABILITY SECTION
Subject to the provisions and conditions of the policy, and of this form and endorsements attached, the Company agrees with the Insured named on Page 1 as follows:
COVERAGE DPERSONAL LIABILITY
To pay on behalf of the Insured [the Reeds] all sums which the Insured shall become legally obligated to pay as damages because of bodily injury or property damage and the Company shall defend any suit against the Insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of the policy, even if any of the allegations of the suit are groundless, false or fraudulent; but the Company may make such investigation and settlement of any claim or suit as it deems expedient.
* * * * * *
EXCLUSIONSCoverage D shall not apply:
1. to any business pursuits of an Insured except activities therein which are ordinarily incidental to non-business pursuits;
* * * * * *
[2] Among other things, the judgment stated:
3. The Defendants, JOE REED and Wife, FRANCES REED, were negligent in the maintenance of the premises where the accident made the basis of this suit occurred in that said Defendants failed to maintain the premises to prevent children from gaining access to the swimming pool, and such negligence was a proximate cause of the occurrence in question.
[3] Nevertheless, not every difference in the interpretation of a contract or an insurance policy amounts to an ambiguity. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex.1994).
[4] The following courts follow Stanley: Moncivais v. Farm Bureau Mut. Ins. Co., 430 N.W.2d 438 (Iowa 1988); State Mutual Ins. Co. v. Russell, 185 Mich.App. 521, 462 N.W.2d 785 (1990); MVG v. Lucas, 590 So.2d 1322 (La.Ct.App.1991); Felder v. Despinasse, 564 So.2d 1331 (La.Ct.App. 1990); Susnik v. Western Indem. Co., 14 Kan. App.2d 421, 795 P.2d 71 (1989); McCloskey v. Republic Ins. Co., 80 Md.App. 19, 559 A.2d 385 (1989); Allstate Ins. Co. v. Kelsey, 67 Or.App. 349, 678 P.2d 748 (1984), review denied, 297 Or. 227, 683 P.2d 91 (1984). Other courts follow Stanley, although the non-business exception to the exclusion differs slightly in these cases: Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla. 1989); Haley v. Allstate Ins. Co., 129 N.H. 512, 529 A.2d 394 (1987); Rocky Mountain Casualty Co. v. St. Martin, 60 Wash.App. 5, 802 P.2d 144 (1990), review denied, 116 Wash.2d 1026, 812 P.2d 102 (1991); Farmers Ins. Co. v. Wiechnick, 166 Ariz. 266, 801 P.2d 501 (Ct.App.1990).
[5] This approach was followed in the following cases: Bankers Standard Ins. Co. v. Olwell, 309 N.W.2d 799, 801-02 (Minn.1981); Western Fire Ins. v. Goodall, 658 S.W.2d 32, 34-5 (Mo.App. 1983); Nationwide Mut. Fire Ins. Co. v. Collins, 222 S.E.2d 828, 830-31 (Ga.App.1975).
[6] Several other courts have adopted this approach. See Floyd v. Northern Neck Ins. Co., 245 Va. 153, 427 S.E.2d 193, 196-97 (1993); Rodriguez v. Safeco Ins. Co. of America, 821 P.2d 849 (Colo.App.1991, cert. denied); Economy Fire & Casualty Co. v. Bassett, 170 Ill.App.3d 765, 121 Ill.Dec. 481, 484, 525 N.E.2d 539, 542 (1988); Aetna Life and Casualty Co. v. Ashe, 88 Or.App. 391, 745 P.2d 800 (1988), review denied, 305 Or. 103, 750 P.2d 497 (1988); State Farm Fire & Casualty Co. v. Moore, 103 Ill.App.3d 250, 58 Ill.Dec. 609, 613, 430 N.E.2d 641, 645 (1981); see also Nationwide Mut. Fire Ins. Co. v. Collins, 136 Ga.App. 671, 222 S.E.2d 828, 832-33 (1975).
[7] We disagree with the dissent's application of the Tilley approach. The dissent asserts that the Reeds' failure to properly supervise Michael was the activity that caused Michael's death. However, the trial court specifically found that the activity that proximately caused Michael's death was the Reeds' failure to adequately maintain the fence located around the swimming pool. Nevertheless, one of the causes of Michael's death was the Reeds' negligent failure to maintain the fence.
Furthermore, contrary to the dissent's assertion, it does not matter if the fence was repaired pursuant to a business duty. 873 S.W.2d at 702 (Phillips, C.J., dissenting). Instead, the court's focus is whether the actual activity creating liability was ordinarily incident to a non-business pursuit. Maintenance of the yard fence surrounding the Reeds' pool is ordinarily incident to a non-business pursuit regardless of whether it is required by a state regulatory scheme, a local ordinance or other law.
[8] The following courts have also held that this exclusion and exception are ambiguous: Robinson v. Utica Mutual Ins. Co., 585 S.W.2d 593, 598 (Tenn.1979); Foster v. Allstate Ins. Co., 637 S.W.2d 655 (Ky.App.1981); State Farm Fire & Casualty Co. v. Moore, 103 Ill.App.3d 250, 58 Ill.Dec. 609, 430 N.E.2d 641 (1981); see also Smith v. Allstate Ins. Co., 241 Va. 477, 403 S.E.2d 696 (1991).
[9] This case is similar to Foster v. Allstate Ins. Co., 637 S.W.2d 655 (Ky.App.1981). In that case, Foster provided home day care for compensation. While in Foster's care, an infant died when he fell backwards on a coffee table in Foster's home. The Kentucky Supreme Court reviewed the different approaches adopted by other jurisdictions and determined that from the varying interpretations of the business pursuits exclusion and ordinarily incidental to non-business pursuits,
the exception provision contained in the exclusion leaves some doubt as to its meaning, and is clearly susceptible to two reasonable interpretations, one of which would be favorable to the insured and one which would not. In such a case, the law of the commonwealth is that the interpretation favorable to the insured will be adopted.
637 S.W.2d at 657 (citations omitted).
[1] Chapter 42 of the Human Resources Code, "Regulation of Child-Care Facilities," defines a "family home" as follows:
[A] home that regularly provides care in the caretaker's own residence for not more than six children under 14 years of age, excluding the caretaker's own children, and that provides care after school hours for not more than six additional elementary school children, but the total number of children, including the caretaker's own, does not exceed 12 at any given time.
TEX.HUM.RES.CODE. § 42.002(9). The Reeds registered their family home with the TDHR as required under Section 42.052 of the Code. Id., § 42.052(c).
[2] The Court points out that the trial court's judgment expressly referenced the Reeds' failure "to maintain the premises" as the basis for its holding. 873 S.W.2d at 700 n. 2, n. 6. As this is a question of law rather than fact, however, the trial court's articulated reason is not entitled to deference on appeal.
Even under this approach, however, I disagree that the act of maintaining the fence could reasonably be viewed as "incident to nonbusiness activities." As I have explained, the Reeds were required, under the applicable state regulatory scheme, to build and maintain the fence to ensure that children did not obtain unsupervised access to the water. Cf. Economy Fire & Cas. Co. v. Bassett, 170 Ill.App.3d 765, 121 Ill.Dec. 481, 484, 525 N.E.2d 539, 542 (1988).
[3] But see Goodall, 658 S.W.2d at 34.
[4] In so doing, however, I do not categorically suggest that Texas standard homeowners' policies would exclude coverage of liability arising from any for-profit child care undertaken in the home. Certainly such activities as part-time babysitting by teenagers for a neighbor's child, even while compensated, would not fall into the same category as Ms. Reed's full-time business. See United Serv. Auto. Ass'n v. Pennington, 810 S.W.2d 777, 780-82 (Tex.App.San Antonio 1991, writ denied).
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Fourth Court of Appeals
San Antonio, Texas
November 20, 2019
No. 04-19-00741-CV
IN RE Leticia R. BENAVIDES
Original Mandamus Proceeding 1
ORDER
On October 22, 2019, relator filed a petition for writ of mandamus. After considering the
petition and the record, this court concludes relator is not entitled to the relief sought. Accordingly,
the petition for writ of mandamus is denied. See TEX. R. APP. P. 52.8(a).
It is so ORDERED on November 20, 2019.
_____________________________
Luz Elena D. Chapa, Justice
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of the said
court on this 20th day of November, 2019.
_____________________________
Michael A. Cruz, Clerk of Court
1
This proceeding arises out of Cause No. 2011PB000081L2, styled In the Matter of the Guardianship of Carlos
Benavides, Jr., an Incapacitated Person, pending in the County Court at Law No. 1, Webb County, Texas, the
Honorable Hugo Martinez presiding.
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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ERNEST STANLEY,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
§
§
§
§
§
§
No. 08-07-00223-CR
Appeal from the
171st District Court
of El Paso County, Texas
(TC#20060D00825)
MEMORANDUM OPINION
Ernest Stanley appeals his conviction for attempted capital murder of multiple persons.
Appellant pleaded guilty and the court assessed punishment at imprisonment for a term of five years.
Because Appellant did not timely file his notice of appeal, we dismiss the attempted appeal for want
of jurisdiction.
The record before us reflects that sentence was imposed in open court on March 22, 2007.
No motion for new trial was filed. Therefore, the notice of appeal was due to be filed April 23,
2007. See Tex. R. App. P. 26.2(a); Tex. R. App. P. 4.1. Appellant did not file his notice of appeal
until August 2, 2007. By letter dated August 3, 2007, we notified Appellant in writing of our intent
to dismiss this appeal for want of jurisdiction.
A timely notice of appeal is necessary to invoke this Court's jurisdiction. Olivo v. State, 918
S.W.2d 519, 522 (Tex. Crim. App. 1996). Rule 26.2(a) prescribes the time period in which notice
of appeal must be filed by the defendant in order to perfect appeal in a criminal case. A defendant's
notice of appeal is timely if filed within thirty days after the day sentence is imposed or suspended
in open court, or within ninety days after sentencing if the defendant timely files a motion for new
trial. Tex. R. App. P. 26.2(a); Olivo, 918 S.W.2d at 522. Pursuant to Rule 26.3, a court of appeals
may grant an extension of time to file notice of appeal if the notice is filed within fifteen days after
the last day allowed and, within the same period, a motion is filed in the court of appeals reasonably
explaining the need for the extension of time. Tex. R. App. P. 26.3; Olivo, 918 S.W.2d at 522.
Under Rule 26.3, a late notice of appeal may be considered timely so as to invoke a court of appeals'
jurisdiction if (1) it is filed within fifteen days of the last day allowed for filing, (2) a motion for
extension of time is filed in the court of appeals within fifteen days of the last day allowed for filing
the notice of appeal, and (3) the court of appeals grants the motion for extension of time. Olivo, 918
S.W.2d at 522.
When a defendant appeals from a conviction in a criminal case, the time to file notice of
appeal runs from the date sentence is imposed or suspended in open court, not from the date sentence
is signed and entered by the trial court. Rodarte v. State, 860 S.W.2d 108, 109 (Tex. Crim. App.
1993). The last date allowed for timely filing of the notice of appeal was April 23, 2007, thirty days
after the day the sentence was imposed in open court. Tex. R. App. P. 26.2(a)(1); Tex. R. App. P.
4.1. Because Appellant did not file his notice of appeal until August 2, 2007, and he failed to file
a motion for extension of time, he failed to perfect this appeal. Accordingly, we dismiss the appeal
for want of jurisdiction.
KENNETH R. CARR, Justice
September 20, 2007
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)
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46 F.3d 1
Debra A. RODGERS, Individually, and Barry Brown and Debra A.Rodgers in their Capacity as Co-Guardians of BrianRodgers, an Incompetent Person,Plaintiffs, Appellants,v.AMERICAN HONDA MOTOR COMPANY, Defendant, Appellee.
No. 94-1556.
United States Court of Appeals,First Circuit.
Heard Jan. 11, 1995.Decided Jan. 31, 1995.
John C. Cabaniss with whom Cunningham, Lyons & Cabaniss, S.C., Milwaukee, WI, was on brief for appellants.
Andrey L. Frey, orally, Washington, DC, with whom Wayne D. Struble, Richard A. Bowman, Timothy J. Mattson, Bowman and Brooke, Minneapolis, MN, Peter W. Culley, David E. Barry, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Portland, ME, were on brief for appellee.
Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and STAHL, Circuit Judge.
BAILEY ALDRICH, Senior Circuit Judge.
1
In 1965, in line with the growing concern over the fatal consequence of contributory negligence, the Maine Legislature enacted a statute permitting recovery, but reduced damages, in cases where a plaintiff, though negligent, was less so than the defendant. Me.Rev.Stat.Ann. tit. 14, Sec. 156. Although there were a variety of state statutes in effect, the Legislature chose the English one, see Wing v. Morse, 300 A.2d 491, 497 (Me.1973), essentially word for word, see Comparative Negligence: Some New Problems for the Maine Courts, 18 Me.L.Rev. 65, 76 (1966). The statute is unique, and we are not to look for enlightenment to decisions in sister states.
2
The facts are simple. Brian Rodgers, an experienced ATV (all terrain vehicle) rider, found himself without his helmet at a popular Maine spot where a friend with a three wheel ATV asked him to help repair it. Some repairs having been made, plaintiff1 gave it a trial run. It flipped and he struck his head, receiving brain-crippling injuries. On his motion, liability was tried first, and the jury's answers to special questions terminated the case in defendant's favor. Plaintiff has one basic claim on appeal. We will deal with it rather than with defendant's contention that judgment in its favor would have been proper even if the evidence plaintiff objected to had been excluded.
3
For the liability trial, by motion in limine, plaintiff sought an order excluding testimony that he had not been wearing a helmet. This was of importance because defendant had uncontradicted expert testimony that, with a helmet, plaintiff's injuries would have been insignificant. Plaintiff's position was that, however much the absence of a helmet may have added to the damages, it was not a fault that caused the accident, and that under the Maine statute comparative fault for the accident itself was the determining factor. The court ruled otherwise, and the evidence was subsequently admitted. This was crucial because unless plaintiff's fault was less than defendant's he was barred by the statute from recovery. If fault was to be measured by weighing responsibility for damages, as distinguished from for the event, on the uncontradicted evidence, it being clear that plaintiff knew it was best to wear a helmet, he had no case.
4
Analysis of the statute persuades us that the court was correct. It provides, in relevant part,
5
Where any person suffers death or damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that death or damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the jury thinks just and equitable having regard to the claimant's share in the responsibility for the damage.
6
Where damages are recoverable by any person by virtue of this section, subject to such reduction as is mentioned, the court shall instruct the jury to find and record the total damages which would have been recoverable if the claimant had not been at fault, and further instruct the jury to reduce the total damages by dollars and cents, and not by percentage, to the extent deemed just and equitable, having regard to the claimant's share in the responsibility for the damages, and instruct the jury to return both amounts with the knowledge that the lesser figure is the final verdict in the case.
7
Fault means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this section, give rise to the defense of contributory negligence.
8
If such claimant is found by the jury to be equally at fault, the claimant shall not recover.
9
Me.Rev.Stat.Ann. tit. 14, Sec. 156.
10
This is a lengthy statute. See, e.g., the Wisconsin statute the court quoted in Wing, 300 A.2d at 498. The first consideration that struck us was the rigidity of the final, all-important cut-off paragraph as against the sensitivity of the language preceding it. Damage reduction shall "not [be] by percentage, [but] to the extent deemed just and equitable, having regard to the claimant's share in the responsibility for the damages," but then the blunt cut-off, "If claimant is found by the jury to be equally at fault." The change in tone was apparently felt by the Maine court as well. It observed, "This paragraph was not found in the original draft of the Bill considered by the Legislature and is quite obviously the result of a political compromise." Striking "at fault," and substituting "responsible for the damage sustained," the court proceeded to interpret the paragraph as saying,
11
If in the apportionment process such claimant is found by the jury to be equally responsible for the damage sustained or more responsible for the damage sustained than the defendant, the claimant shall not recover.
12
Wing, 300 A.2d at 501.
13
With the uncontradicted evidence that plaintiff's failure to wear a helmet was responsible for essentially all the damage sustained, this reading of the statute is fatal to his case. The Wing decision itself is distinguishable, but its language is an answer to all plaintiffs' claims, writ at large; the helmet evidence was admissible on liability.
14
Affirmed.
1
Strictly, Rodgers is now incompetent and plaintiffs are his guardians. They are joined by his wife, individually. We will speak in terms, however, of Rodgers as plaintiff
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341 F.3d 206
A. A.; A. B.; A. C., (a minor by M.M. his natural parent); A. D.; A. E.; A. F.; A. G., (all fictitious initials), individually and as representatives of a class, pursuant to Fed. R. Civ. 23(a) and 23(b)(2)v.The State of NEW JERSEY;* James McGreevey, in his official capacity as Governor of the State of New Jersey; Attorney General of the State of New Jersey,*Peter C. Harvey, in his official capacity;*Joseph R. Fuentes, in his official capacity as Superintendent of New Jersey State Police A. A., A. B., A. C., A. D., A. E., A. F., A. G., AppellantsA. A.; A. B.; A. C., (a minor by M.M. his natural parent); A. D.; A. E.; A. F.; A. G., (all fictitious initials), individually and as representatives of a class, pursuant to Fed. R. Civ. 23(a) and 23(b)(2)v.The State of New Jersey;* James McGreevey, in his official capacity as Governor of the State of New Jersey; Attorney General of the State of New Jersey,*Peter C. Harvey, in his official capacity;*Joseph R. Fuentes, in his official capacity as Superintendent of New Jersey State Police The State of New Jersey,*James E. McGreevey,*Peter C. Harvey and*Joseph R. Fuentes, Appellants.
No. 01-4363.
No. 01-4471.
United States Court of Appeals, Third Circuit.
Argued June 25, 2003.
Opinion Filed August 18, 2003.
Peter A. Garcia, Acting Public Defender New Jersey, Michael Z. Buncher, Brian Neff, Office of Public Defender, Trenton, NJ, Edward L. Barocas (Argued), American Civil Liberties Union of New Jersey Foundation, Newark, NJ, Lawrence S. Lustberg, Jessica A. Roth, Gibbons, Del Deo, Dolan, Griffinger & Vecchione, New York, NY, for Appellants in No. 01-4363 and Appellees in No. 01-4471.
Peter C. Harvey, Attorney General of New Jersey (acting), David Samson, Attorney General of New Jersey, Nancy Kaplen, Assistant Attorney General of Counsel, B. Stephan Finkel (Argued), Assistant Attorney General, Rhonda S. Berliner-Gold, Deputy Attorney General, Victoria L. Kuhn, Deputy Attorney General on the Brief, Office of Attorney General of New Jersey, Department of Law & Public Safety, Trenton, NJ, for Appellants in No. 01-4471 and Appellees in No. 01-4363.
Before SLOVITER, RENDELL, Circuit Judges, and McCLURE,* District Judge.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
INTRODUCTION
1
This appeal presents us with the latest in a long string of challenges to New Jersey's Megan's Law. This time, we consider privacy claims as to the newest addition to the existing statutory regime — the creation of a public internet registry posting personal information about convicted sex offenders.
2
In 1994, seven year old Megan Kanka was abducted, raped, and murdered near her New Jersey home by a neighbor who had previously been convicted of sex offenses against young girls. Thereafter, Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, title 17, § 170101, 108 Stat.2038, as amended, 42 U.S.C. § 14071, which conditions certain federal funds for law enforcement on the States' adoption of a Megan's Law, so named after Megan Kanka. By 1996, every State, the District of Columbia, and the Federal Government had passed a Megan's Law. While these laws vary from State to State, they generally require convicted sex offenders to register with law enforcement officials, who then notify community members of the registrants' whereabouts. New Jersey's Megan's Law has faced legal challenges every step of the way.
3
In Artway v. Attorney General of State of N.J., 81 F.3d 1235 (3d Cir.1996), we upheld the registration provisions of New Jersey's Megan's Law in the face of ex post facto, double jeopardy, bill of attainder, due process, equal protection, and vagueness challenges. A year later in E.B. v. Verniero, 119 F.3d 1077 (3d Cir. 1997), cert. denied, sub nom. W.P. v. Verniero, 522 U.S. 1109, 118 S.Ct. 1039, 140 L.Ed.2d 105 (1998), we rejected claims that the law's notification requirements violated the Ex Post Facto and Double Jeopardy Clauses of the Constitution. Thereafter, we rejected claims that the notification requirement violated registrants' privacy rights in Paul P. v. Verniero ("Paul P. I."), 170 F.3d 396 (3d Cir.1999), and Paul P. v. Farmer ("Paul P. II."), 227 F.3d 98 (3d Cir.2000).
4
The story does not end there. In 1995, Doe v. Poritz, 142 N.J. 1, 662 A.2d 367 (1995), the New Jersey Supreme Court upheld the constitutionality of the original Megan's Law, conditioned on the implementation of certain safeguards. Specifically, the Court construed the notification provisions to require a "likely to encounter" standard based on geography and further required the State to provide offenders with notice of their proposed scope of notification and an opportunity for judicial review before the notification was undertaken. Id. at 29-30, 662 A.2d 367. In light of the Doe Court's qualifications, New Jersey's electorate approved by public referendum in November 2000 an amendment to the New Jersey Constitution authorizing the legislature to enact new statutory provisions permitting the disclosure of sex offender registry information to the general public. N.J. Const. art. IV, § 7, ¶ 12. Thereafter, the New Jersey legislature passed a statute authorizing the creation of an internet registry which supplements the existing registration and notification system and contains information about certain high and moderate risk sex offenders. See N.J. Stat. Ann. §§ 2C:7-12 et seq. (2003) ("Registry").
II.
PROCEDURAL HISTORY
5
Appellants ("Registrants") are convicted sex offenders required to provide personal information to be placed on the Registry. They filed suit in the United District Court for the District of New Jersey challenging the constitutional amendment authorizing the creation of the Registry and the Registry itself. Specifically, the Registrants claimed that the Registry violated their rights under the Ex Post Facto and Double Jeopardy Clauses of the United States Constitution and their constitutional right to privacy in their home addresses and in the compilation of information posted on the Registry. Thereafter, they filed a motion for a preliminary injunction to prevent the State from implementing the Registry.
6
The District Court granted in part and denied in part the Registrants' motion for a preliminary injunction. A.A. v. New Jersey, 176 F.Supp.2d 274 (D.N.J.2001). Specifically, it denied their ex post facto, double jeopardy, and privacy claims as to the compilation of information. Id. at 297, 307. It concluded, however, that the Registrants had established a reasonable likelihood of success on the merits of their privacy claim as to their home addresses. Id. at 307. The Registrants have appealed the District Court's denial of their ex post facto, double jeopardy, and privacy claims as to the compilation of information. The State cross-appealed from the District Court's injunction as to the Registrants' home addresses. We scheduled oral argument to hear the appeal and cross-appeal. After the Supreme Court granted certiorari in a Megan's Law case raising identical ex post facto claims — vis-a-vis Alaska's internet registry — we postponed argument. The Supreme Court has since spoken.
7
In Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the Court held that Alaska's internet registry is not punitive and thus its retroactive application does not violate the Ex Post Facto Clause.1 The Registrants concede that the Supreme Court's decision in Smith effectively disposes of their ex post facto and double jeopardy claims, thereby leaving us to consider only claims as to their privacy interests. Although the Supreme Court in Smith was not presented with and did not discuss privacy issues as to Alaska's Registry, much of its discussion is nonetheless instructive and will be explored below.
III.
DISCUSSION
A. Jurisdiction and Standard of Review
8
We have jurisdiction to hear this appeal pursuant to 28 U.S.C. §§ 1291 and 1292(a)(1). The District Court's determination as to the preliminary injunction "will be reversed only if the court abused its discretion, committed an obvious error in applying the law, or made a serious mistake in considering the proof." Loretangeli v. Critelli, 853 F.2d 186, 193 (3d Cir.1988). Nonetheless, we exercise plenary review over the District Court's conclusions of law and its application of the law to the facts. Southco, Inc. v. Kanebridge Corp., 258 F.3d 148, 150-51 (3d Cir.2001).
9
B. Privacy Claims as to Registrants' Home Addresses
10
In its cross-appeal, New Jersey contends that the District Court erred in enjoining the State from posting on the internet information identifying the house or apartment number, street, zip code, and municipality of Registrants. Currently, the only geographic information available on the Registry is the Registrant's county of residence. The State contends that its compelling interest in making this information available through the internet to enhance public safety outweighs the Registrants' limited privacy interest in avoiding disclosure of their home addresses. The Registrants, on the other hand, urge us to uphold the District Court's partial preliminary injunction, arguing that "well-established precedent" has settled the issue as to their constitutionally-protected privacy interest in the confidentiality of their home addresses. For this proposition, they cite to Paul P. I. and Paul P. II.
11
In Paul P. I., plaintiffs were a class of registrants who challenged New Jersey's Megan's Law, claiming that the statutory requirement under the notification system requiring them to provide extensive information to law enforcement, including their home addresses, violated their constitutionally-protected right to privacy. 170 F.3d at 398. Under the challenged notification system, the information provided by the registrant was placed into a central registry available to law enforcement personnel but not to the public. Id. at 399. Thereafter, law enforcement officials used that information to determine the registrant's "risk of offense," assigning the registrant to one of three tiers which represented the registrant's risk of committing repeat sex offenses. Id. The tier assigned in turn determined which members of the community would receive the information.2 Id.
12
Like the Registrants before us now, plaintiffs in Paul P. I. claimed that their privacy interests were being violated by the dissemination of their home addresses and in the compilation of personal information. Id. We considered their claims in light of our decision in E.B., where we upheld the notification requirements of Megan's Law against double jeopardy and ex post facto challenges. Paul P. I., 170 F.3d at 400-01. We further explored our own jurisprudence as to the type of information that may be protected from disclosure based on a privacy interest, and we concluded that even information that is entitled to privacy protection may be subject to disclosure if the government's interest in disclosing that information is compelling. Id. at 401-02.
13
While noting that there is some "nontrivial interest" in one's home address, we concluded that the State's interest in informing the public about the location of prior sex offenders and preventing sex offenses was compelling. Id. at 404. However, we remanded the case to the district court to consider the plaintiffs' subsequent motions detailing events causing "serious adverse consequences" to them and their families to assure that the information was being disclosed only to those individuals with a particular need for it. Id. at 406.
14
On remand, the district court held that the notification procedures were unconstitutional because they did not adequately safeguard against the unauthorized disclosure of protected information. Paul P. v. Farmer, 80 F.Supp.2d 320, 325 (D.N.J. 2000). The district court directed the defendants to redraft the Attorney General's Guidelines to "reasonably limit disclosure to those entitled to receive it." Id. After receiving a copy of the revised Guidelines, the district court concluded that they adequately safeguarded plaintiffs' interests in assuring disclosure was made only to those with a particular need for it. Paul P. v. Farmer, 92 F.Supp.2d 410, 414 (D.N.J. 2000). Plaintiffs appealed and we affirmed the district court's decision in Paul P. II., 227 F.3d at 107. In so doing, we noted the precarious nature of our privacy inquiry as "this case begins with the understanding and, indeed, the requirement that what might otherwise be private information be made public." Id. at 99. In sum, "Megan's Law's fundamental purpose ... is public disclosure." Id. at 106 (emphasis in original).
15
Before us, the Registrants argue that Paul P.I. and Paul P. II. settle our current privacy inquiry, going so far as to claim that we would have to reverse those decisions in order to find for the State. However, neither of those decisions states that the State cannot disclose the addresses of convicted sex offenders on the internet. Indeed, both of those decisions upheld the then applicable notification system of Megan's Law as against privacy claims by a group of convicted sex offenders. See also Cutshall v. Sundquist, 193 F.3d 466, 481 (6th Cir.1999) (holding that Constitution does not provide registrant right to keep his registry information private), cert. denied, 529 U.S. 1053, 120 S.Ct. 1554, 146 L.Ed.2d 460 (2000); Russell v. Gregoire, 124 F.3d 1079, 1094 (9th Cir.1997) (finding no privacy interest in the general vicinity of registrant's home address), cert. denied sub nom. Stearns v. Gregoire, 523 U.S. 1007, 118 S.Ct. 1191, 140 L.Ed.2d 321 (1998).
16
Thus, neither Paul P.I. nor Paul P. II. is dispositive of the issue whether the State violates the Registrants' privacy rights by providing their home addresses on the internet. Admittedly, the Registry entails notification of a different dimension but our analytic approach here is the same. Our initial inquiry must be whether the information at issue is entitled to protection in the first place. To answer this question, we consider "`whether it is within an individual's reasonable expectation[] of confidentiality.'" Paul P. I., 170 F.3d at 401 (quoting Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105, 112 (3d Cir.1987)). If it is determined that the information is entitled to protection, we proceed to balance the privacy interest at stake with the State's interest in disclosure. Id. at 404. Thus, "[e]ven information that is entitled to privacy protection may nonetheless be subject to disclosure when the government's interest in disclosure is compelling." Id. at 402.
17
In Paul P. I., we recognized "some nontrivial interest in one's home address by persons who do not wish it disclosed...." Id. at 404 (emphasis in original). We nonetheless denied the registrants' privacy claims in that case after concluding that the State's interest in disclosure — namely, preventing sex offenses — was compelling. Id. The question of one's privacy interest in a home address was reconsidered in Paul P. II. There, we stated that "[w]hatever privacy interest, if any, may exist in the area of one's residence ... is substantially outweighed by the state's compelling interest in disclosing Megan's Law information to the relevant public...." 227 F.3d at 107.
18
Viewing Paul P. I. and Paul P. II. in tandem, it is clear that a registrant's right to privacy in his or her home address gives way to the State's compelling interest to prevent sex offenses. Thus, we merely consider whether the addition of the Registry over Megan's Law's original notification scheme tips the balance back in favor of the Registrants. In other words, does the State's interest in using the internet as a vehicle to provide the public with notice of the whereabouts of convicted sex offenders outweigh the Registrants' "nontrivial" privacy interest in their home addresses.
19
The Registrants argue that by placing the information on the internet, the State is providing it to persons who do not have any particularized need for the information. The State responds that this argument ignores a fundamental characteristic of our modern society, that of mobility. We agree. The Registrants' argument ignores both the need to access information in a mobile society and the difference between the system of notification at issue here and that at issue in our prior opinions.
20
Under the original notification system, if the registrant's risk of re-offense is high, then persons "likely to encounter" the offender receive geographic information about the registrant. N.J. Stat. Ann. § 2C:7-8c(3). Those deemed "likely to encounter" are generally persons living in the direct vicinity of the registrant. The statute provides that the breadth of notification is generally left to the discretion of two county prosecutors, one from the county where the registrant was convicted and the other from the county where the registrant resides. N.J. Stat. Ann. § 2C:7-8d.
21
In contrast, the Registry is available on the internet to the general public. The New Jersey statute creating the Registry sets forth the basis for the law, explaining that "[t]he technology afforded by the Internet would make this information readily accessible to parents and private entities, enabling them to undertake appropriate remedial precautions to prevent or avoid placing potential victims at risk." N.J. Stat. Ann. § 2C:7-12. New Jersey's stated interest in providing this information via the internet can be more fully understood through some examples the State provides in its brief.
22
Consider parents with young children who want to purchase a new home in New Jersey. Without the Registry, they would not be notified of the presence of convicted sex offenders, even those with a high risk of re-offense, until they had already purchased their new home which may be in the proximity of a Registrant's home. Under the original notification system, the parents have no ability to obtain this information. So, too, a family planning a vacation at the New Jersey Shore. Without the listing of geographic information on the Registry, the family could not obtain information as to the location of convicted sex offenders in the area.
23
It is apparent that these families have no less need for the same geographic information currently made available to those individuals deemed "likely to encounter" the sex offenders under the original notification system. Thus, we cannot say that New Jersey does not have an equally compelling interest in protecting these persons as it does in protecting those persons covered by the existing Megan's Law notification system. Indeed, discovering this information after the fact undermines the stated goal of New Jersey, which is to enable parents to "prevent or avoid placing potential victims at risk." N.J. Stat. Ann. § 2C:7-12 (emphasis added).3
24
Thus, notwithstanding the nontrivial interest in one's home address previously recognized in Paul P. I., we conclude that whatever privacy interest the Registrants have in their home addresses is substantially outweighed by the State's interest in expanding the reach of its notification to protect additional members of the public. In so concluding, we bear in mind the recent decision of the United States Supreme Court in Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). Although the issue presented in Smith was whether Alaska's internet registry was an impermissible ex post facto statute and the registrants did not raise any privacy claims, the Smith Court's views as to disclosure of Megan's Law information via the internet were made abundantly clear. In rejecting the registrants' argument that posting their information on the internet constituted punishment, the Court stated:
25
The purpose and the principal effect of notification are to inform the public for its own safety, not to humiliate the offender. Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.
26
538 U.S. at ___, 123 S.Ct. at 1150.
27
The Court further shifted the blame for any negative consequence to the registrants themselves, noting that:
28
Although the public availability of the information may have a lasting and painful impact on the convicted sex offender, these consequences flow not from the Act's registration and dissemination provisions, but from the fact of conviction, already a matter of public record. The State makes the facts underlying the offenses and the resulting convictions accessible so members of the public can take the precautions they deem necessary before dealing with the registrant.
29
Id. at ___, 123 S.Ct. at 1151. Furthermore, the Smith Court noted that:
30
The process is more analogous to a visit to an official archive of criminal records than it is to a scheme forcing an offender to appear in public with some visible badge of past criminality. The Internet makes the document search more efficient, cost effective, and convenient for Alaska's citizenry.
31
Id.
32
Informed by the Supreme Court's analysis in the Smith decision, we conclude that New Jersey may permissibly use the Registry as a "more efficient, cost effective, and convenient" avenue to provide its citizens with needed information.
33
The Smith decision was issued after the District Court's order granting a preliminary injunction based on our earlier decisions and thus the District Court did not have the benefit of the Supreme Court's view. We believe it is likely that had it been available, it would have altered the balance.
34
C. Privacy Claims as to Compilation of Information
35
We next consider the Registrants' argument that they have established a reasonable likelihood of success on the merits of their claim that the Registry violates their right to privacy in the compilation of information. According to the Registrants, the State violates their privacy rights when it compiles information such as their names, ages, race, birth dates, height, weight, and hair color. In other words, when the State gathers in one place information that is otherwise public — yet scattered — the compiled unit becomes entitled to a constitutional right to privacy. We have never recognized such a privacy right, the District Court rejected it, and the Registrants have not provided us with a persuasive reason to do so now.
36
When presented with a similar compilation argument in Paul P. I., we stated that "[b]ecause we find the government's interest in preventing sex offenses compelling, we need not decide whether the degree of effort needed to assemble otherwise available but dispersed information ought to be considered as a factor in determining the reasonableness of an individual's expectation of privacy in the compiled data." 170 F.3d at 404.
37
That reasoning is equally applicable here. We conclude that the State's compelling interest in preventing sex offenses substantially outweighs any interest the Registrants may have in not having public — yet scattered — information compiled.
IV.
CONCLUSION
38
For the reasons set forth above, we will affirm the District Court's denial of the Registrants' motion for a preliminary injunction as to the compilation of information in the Registry. Furthermore, we will remand to the District Court with instructions to dissolve the preliminary injunction as to the Registrants' home addresses. The mandate shall issue forthwith.
Notes:
*
Substituted pursuant to F.R.A.P. 43(c)
*
Hon. James F. McClure, Jr., United States Senior District Judge for the Middle District of Pennsylvania, sitting by designation
1
The same daySmith was rendered, the Supreme Court also issued its opinion in another Megan's Law case. In Connecticut Dept. of Public Safety v. Doe, ___ U.S. ___, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), the Court upheld Connecticut's internet registry of convicted sex offenders against a procedural due process challenge.
2
Plaintiffs inPaul P.I. were Tier 2 and Tier 3 registrants. For purposes of our analysis in the current case, the absence of Tier 1 registrants in Paul P.I. is inconsequential.
3
It should be noted that New Jersey has incorporated various safeguards to protect against misuse of the information available on the Registry. For instance, the Act directs the Attorney General to "[e]nsure that the Internet registry contains warnings that any person who uses the information contained therein to threaten, intimidate or harass another, or who otherwise misuses that information may be criminally prosecuted...." N.J. Stat. Ann. § 2C:7-14. The warnings are clearly posted on the Registry and appear before a person may see any information contained in the Registry. The Act also provides for further criminal penalties for anyone who uses the information to commit a crime and also largely prohibits the use of information available on the Registry "for the purpose of applying for, obtaining ...: (1) Health insurance; (2) Insurance; (3) Loans; (4) Credit; (5) Education, scholarships, or fellowships; (6) Benefits, privileges, or services provided by any business establishment, unless for a purpose consistent with the enhancement of public safety; or (7) Housing or accommodations." N.J. Stat. Ann. § 2C:7-16
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780 F.2d 1207
UNITED STATES of America, Plaintiff-Appellee,v.James Ted NORRIS, M.D., Defendant-Appellant.
No. 84-2602.
United States Court of Appeals,Fifth Circuit.
Jan. 17, 1986.
Charles T. Conway, court appointed, San Antonio, Tex., for defendant-appellant.
Helen M. Eversberg, U.S. Atty., Sidney Powell, Steven C. Hilbig, Asst. U.S. Attys., San Antonio, Tex., Thomas E. Booth, Atty., Appellate Section Criminal Div. Dept. of Justice, Washington, D.C., for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Texas.
Before GARWOOD, PATRICK E. HIGGINBOTHAM and W. EUGENE DAVIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
1
In this appeal, Dr. Norris challenges his conviction on ten counts of dispensing non-narcotic and narcotic Schedule II controlled substances in violation of 21 U.S.C. Sec. 841(a)(1)1. We affirm.
I.
2
Dr. Norris was a practicing physician in a health clinic owned by him in San Antonio, Texas. Between August and October 1982, the Texas state board of medical examiners assigned three investigators to attend Norris' clinic as patients.
3
The investigators testified that upon arrival they were asked to fill out personal data forms and were then directed to a room in which Dr. Norris addressed them along with a number of other patients. In his address, Dr. Norris lectured the patients on his theories of exercise, consciousness, and the reasons for prescribing drugs. Dr. Norris then called out each patient's name and asked him which drug he desired. Afterward, Dr. Norris met briefly with each investigator, checked his pulse and chest, and then gave him a prescription for the drug he had requested. The investigators testified that Dr. Norris never inquired about their medical history or their reasons for wanting the prescribed drug. Norris never instructed them on the use of the drug.
4
On November 17, 1982, Drug Enforcement Administration agents searched Dr. Norris' office and seized his records. On April 10, 1984, Dr. Norris was indicted on fifteen counts of illegally dispensing Schedule II controlled substances in violation of 21 U.S.C. Sec. 841(a)(1). Following a trial, a jury found him not guilty on five of the counts and guilty on ten counts. The court sentenced Norris to a five-year prison term to be followed by a five-year parole term on each of the ten counts, and permitted the sentences on the ten counts to be served concurrently.
5
Norris contends that the district court committed the following errors: (1) the jury was instructed to use an objective standard rather than a subjective standard to determine whether he acted in the usual course of a professional practice; (2) his constitutional right to a public trial was denied; (3) his motion for appointment of a new standby counsel should have been granted; (4) his sixth amendment right to a speedy trial was violated; (5) the court's order restricting the parties from making public comment on the trial resulted in prejudicial press coverage of his trial; and (6) the court failed to grant a mistrial sua sponte when evidence of extraneous offenses was admitted.
II.
A.
6
To convict Dr. Norris of violating 21 U.S.C. Sec. 841(a)(1), the government was required to prove "(1) that he distributed or dispensed a controlled substance, (2) that he acted knowingly and intentionally, and (3) that he did so other than for a legitimate medical purpose and in the usual course of his professional practice." U.S. v. Rosen, 582 F.2d 1032, 1033 (5th Cir.1978). Although the third element is not expressly required by Sec. 841, pertinent regulations provide that a controlled substance can be dispensed by a prescription "issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his professional practice." 21 C.F.R. Sec. 1306.04(a)(1985).
7
Relying on the phrase, "usual course of his professional practice," contained in the regulations, Norris argues that the jury should have been instructed that a professional practice is to be judged subjectively, not objectively as the court instructed.2 Norris asserts that the use of the word "his" in the regulation requires the government to prove that he prescribed the drugs for a purpose that was contrary to Norris' own standards of reasonable medical practice. One person's treatment methods do not alone constitute a medical practice. The district court therefore correctly rejected Norris' proposed charge premised on a theory that a standard medical practice may be based on an entirely subjective standard.
8
In United States v. Moore, 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975), the Court, in affirming the conviction of a physician under 21 U.S.C. 841, implicitly approved the following instruction:
9
[You must find] beyond a reasonable doubt that a physician, who knowingly or intentionally, did dispense or distribute [methadone] by prescription, did so other than in good faith for detoxification in the usual course of a professional practice and in accordance with a standard of medical practice generally recognized and accepted in the United States.
10
423 U.S. at 139, 96 S.Ct. at 343-44. In this case, the district court carefully modelled its charge after the Moore charge and properly directed the jury to consider: 1) Whether Dr. Norris prescribed the drugs for what he subjectively considered a legitimate medical purpose and 2) from an objective standpoint whether the drugs were dispensed in the usual course of a professional practice. The charge was a correct statement of the law.
B.
11
Dr. Norris complains that several important proceedings were held in chambers and at private bench conferences in violation of his sixth amendment right to a public trial.3 The meetings with Norris and counsel that were conducted in chambers concerned problems raised by various jurors,4 evidentiary questions, proposed jury charges, and the court's ex parte interview of Dr. Norris regarding witnesses he wished to subpoena for his defense. Several bench conferences were held outside the hearing of the jury on various procedural and evidentiary questions. Norris made no contemporaneous objection to any of the chambers conferences. He only objected to a single bench conference in which the government explained a chart it intended to offer to give Norris an opportunity to object and the court an opportunity to consider its admissibility. Therefore, we need not consider his objection to the remaining non-public chambers and bench conferences. Rovinsky v. McKaskle, 722 F.2d 197, 201 (5th Cir.1984).
12
The Supreme Court recently considered the reach of the sixth amendment right to a public trial in Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984). The petitioners in Waller were indicted for violating the Georgia Racketeer Influenced and Corrupt Organizations Act and for commercial gambling and communicating gambling information. Prior to trial, they moved to suppress certain evidence and the state moved to close the suppression hearing. Over the defendants' objection, the court granted the motion and the court excluded the public from the courtroom for seven days while it conducted a hearing on the motion to suppress. The issue before the Supreme Court was whether the sixth amendment right to public trial extended to the suppression hearing.
13
The Court began by noting that public trials are important to our criminal justice system because they encourage witnesses to come forward, discourage perjury, insure that the judge and the prosecutor act responsibly, and lend credibility to criminal trials by allowing the public to see that an accused is dealt with fairly. The Court held that these objectives are frustrated if hearings to suppress wrongfully-seized evidence are closed. This conclusion was predicated on the critical importance and trial-like nature of the suppression hearing.
14
Frequently, the outcome of the suppression hearing determines the outcome of the trial. The accused in a suppression hearing also routinely attacks the conduct of the police and the prosecutor, which should be subject to public scrutiny. "In addition, a suppression hearing often resembles a bench trial: witnesses are sworn and testify, and of course counsel argue their positions. The outcome frequently depends on a resolution of factual matters." Id, at ----, 104 S.Ct. at 2216.
15
The concerns expressed by Waller underlying the right to a public trial are not implicated in the present case. The private aspects of Norris' trial that he complains of consist entirely of the arguments of counsel and rulings by the court on technical legal questions. Non-public exchanges between counsel and the court on such technical legal issues and routine administrative problems do not hinder the objectives which the Court in Waller observed were fostered by public trials. Unlike the trial of a suppression motion, such exchanges ordinarily relate to the application of legal principles to admitted or assumed facts so that no fact finding function is implicated. A routine evidentiary ruling is rarely determinative of the accused's guilt or innocence. Also, such evidentiary rulings ordinarily pose no threat of judicial, prosecutorial or public abuse that a public trial is designed to protect against.
16
Acceptance of Norris' argument would require the district court to unnecessarily extend and disrupt the trial by parading the jury in and out of the courtroom when the court is required to discuss technical legal issues and routine administrative or housekeeping problems. We reject appellant's proposal for such drastic changes in these traditional, common sense trial practices.5
C.
17
The district court appointed Mr. Charles Conway as counsel for Dr. Norris. Shortly before the trial Norris sought permission to cross-examine the government's experts and have Mr. Conway conduct all other aspects of the case. The trial court denied this request. Dr. Norris then moved to proceed pro se; this motion was granted but the trial court designated Mr. Conway as standby counsel. After the government rested its case, Dr. Norris moved to dismiss Mr. Conway as standby counsel on grounds that tension had developed between them. This motion was denied on the ground that it would disrupt the trial. Dr. Norris then moved for appointment of a substitute standby counsel which was denied for the same reason.
18
Dr. Norris argues first that the court erred in refusing to allow him to cross-examine the government's expert witnesses and have his attorney conduct the balance of the trial. He argues further that after appointing Mr. Conway as standby counsel the district court erred in refusing to replace him with a substitute standby counsel.
19
Norris' first contention is without merit; a defendant does not have the right to a hybrid representation, in which he conducts a portion of the trial and counsel conducts the balance. United States v. Daniels, 572 F.2d 535 (5th Cir.1978); United States v. Bowdach, 561 F.2d 1160 (5th Cir.1977). Whether an accused in a particular case should be permitted to examine some but not all the witnesses must be left to the sound discretion of the district court. The trial judge is in a position to evaluate whether the accused is competent to cross-examine a witness, whether the trial will be unduly extended if this is permitted, and whether a conflict will likely develop between the accused and counsel in front of the jury. In the present case, the district court did not abuse its discretion in denying this request by Dr. Norris.
20
Similarly, the district court did not abuse its discretion in denying Norris' motion to appoint a new standby attorney at the close of the government's case. Norris' objection to Mr. Conway's services was a non-specific one that tension had developed between them. If a conflict had developed it was not apparent to the district court, and there was no reason to believe Norris' working relationship with new counsel would be smoother. The Sixth Amendment does not guarantee Dr. Norris the right to counsel--standby or otherwise--of his choice, United States v. Magee, 741 F.2d 93 (5th Cir.1984). The district court has broad discretion to deny last minute requests for a change of counsel that would delay the trial. United States v. Silva, 611 F.2d 78 (5th Cir.1980).
D.
21
Dr. Norris complains that his sixth amendment right to a speedy trial was violated because the government delayed commencement of the prosecution for one and a half years after his records were seized. This right only attaches upon indictment or arrest, U.S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and is not implicated by a pre-indictment delay such as the one that occurred in this case. See also U.S. v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). Dr. Norris' contention that he was "arrested" by the seizure of his records is without merit. The district court properly refused to dismiss Dr. Norris' indictment on this ground.
E.
22
Due to local publicity, the district court issued an order requiring all parties and witnesses to refrain from making public statements concerning the trial. Dr. Norris alleges that this order denied him a fair trial "because the public formed an opinion without the benefit of all the facts." Even if this is true, Dr. Norris' guilt was not determined by the public and Norris has failed to articulate actual prejudice from this order. See United States v. Thompson, 615 F.2d 329 (5th Cir.1980).
F.
23
Dr. Norris argues that the trial judge should have sua sponte ordered a mistrial because of prejudicial testimony the jury was allowed to hear. The testimony Norris complains of was elicited from Dr. Harold Moise who testified about an instance when several people obtained marijuana out of Dr. Norris' car and another instance when he and Dr. Norris were arrested for possessing marijuana.
24
During the trial, Dr. Norris objected to this testimony and moved to strike it from the record. The court granted the motion and instructed the jury to disregard the testimony. Dr. Norris informed the court that the limiting instruction was satisfactory. He now argues that this testimony was not easily erased from the juror's minds and that the district court erred in failing to order a mistrial sua sponte.
25
Because Dr. Norris expressed satisfaction with the court's limiting instruction, our review is limited to a determination of whether the district court committed plain error. See Fed.R.Civ.P. 52(b). The record discloses that Dr. Norris testified several times that he, on more than one occasion, took different mind altering substances, including marijuana.6 Given these admissions, Dr. Norris does not explain, and we fail to see, how Dr. Moise's testimony that Dr. Norris had marijuana in his possession caused him the severe prejudice required for a mistrial. The district court certainly did not commit plain error. Because we find no error, the conviction is
26
AFFIRMED.
1
Section 841 provides that:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally--
(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or
(2) to create, distribute, or dispense, or possess with intent to distribute or dispense, a counterfeit substance.
21 U.S.C.A. Sec. 841 (West 1981).
2
The district court charged the jury that:
A controlled substance is prescribed by a physician in the usual course of a professional practice, and, therefore, lawfully, if the substance is prescribed by him in good faith, medically treating a patient in accordance with a standard of medical practice generally recognized and accepted in the United States.
3
The sixth amendment provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...."
4
One juror informed the judge that she had inadvertently seen a television report about the case. Another juror reported that he had known one of the witnesses eighteen years before the trial. A third juror advised the judge in a note that his brother had suddenly died. Additionally, the jury, by note, requested clarification from the judge on a portion of the court's charge
5
See Richmond Newspapers, Inc. v. Virgina, 448 U.S. 555, 598 n. 23, 100 S.Ct. 2814, 2839 n. 23, 65 L.Ed.2d 973 (1982) (Brennan, J., concurring) (first amendment right to a public trial cannot be used to intrude into bench or chambers conferences)
6
Dr. Norris specifically admitted to having tried the following substances: alcohol, marijuana, heroin, peyote, psilocybin, speed, Quaaludes, LSD, Demoral, Percodan, Dilaudid, Dexadrine, Preludin, Tuinal, Seconal Sodium, Tussionex, and Valium
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639 F.3d 28 (2011)
Wendy FLEISCHMAN, Cindy Cullen, on behalf of themselves and all others similarly situated, Petitioners,
v.
ALBANY MEDICAL CENTER, Ellis Hospital, Northeast Health, Seton Health System, St. Peter's Health Care Service, Respondents.
Docket No. 10-0846-mv.
United States Court of Appeals, Second Circuit.
Submitted: June 15, 2010.
Decided: May 3, 2011.
*29 David P. Dean, James & Hoffman, P.C., Washington, D.C. (Daniel A. Small, Cohen Milstein Sellers & Toll, PLLC, Washington, D.C., on the brief), for Petitioners.
David Marx, Jr., McDermott Will & Emery LLP, Chicago, IL, for Respondent Albany Medical Center.
William E. Reynolds, Bond Schoeneck & King PLLC, Albany, NY, for Respondent Ellis Hospital.
Before: KEARSE, LEVAL, and LIVINGSTON, Circuit Judges.
PER CURIAM:
Pursuant to Federal Rule of Civil Procedure 23(f), petitioners Wendy Fleischman and Cindy Cullen petition for leave to appeal from an order of the United States District Court for the Northern District of New York (McAvoy, J.), entered February 16, 2010, denying their motion to amend or alter a previously entered partial grant of class certification. Petitioners argue on appeal that the district court erred in refusing to recognize evidentiary developments warranting an amendment. Because this petition was filed more than eighteen months after Rule 23(f)'s deadline for interlocutory appeals, we dismiss it on the ground that petitioners have not filed a timely petition with respect to an order reviewable pursuant to Rule 23(f).
BACKGROUND
On June 20, 2006, Marjory Unger, a registered nurse ("RN"), filed a complaint "on behalf of herself and all others similarly situated," alleging that various hospital owners and operators in the Albany-Schenectady-Troy metropolitan area had conspired to depress the compensation of RNs in violation of the Sherman Antitrust Act, 15 U.S.C. § 1. An amended complaint, filed in March 2007, substituted petitioners Wendy Fleischman and Cindy Cullen, also RNs employed in the region, as representative plaintiffs.[1] The amended complaint named Albany Medical Center, Ellis Hospital, Northeast Health, Seton Health System, and St. Peter's Health Care Service ("respondents") as defendants.
Following the completion of class discovery, which was bifurcated from merits discovery pursuant to the order of a magistrate judge, petitioners moved under Federal Rule of Civil Procedure 23 to certify a class of "[a]ll persons employed by any defendant or co-conspirator to work in a hospital in the Albany [metropolitan area] as an RN at any time from June 20, 2002 until the present." Pet'rs' Mem. in Supp. of Mot. for Class Certification 5. They estimated that approximately 2,300 individuals would comprise this class. In an order entered on July 28, 2008, the district court granted petitioners' class certification motion in part. The district court determined that, while petitioners had satisfied their burden with respect to the requirements of Rule 23(a), they had not entirely met their burden with respect to the predominance requirement of Rule 23(b)(3).[2]See Fed.R.Civ.P. 23(b)(3). Noting that the three elements of an antitrust *30 claim are: 1) a violation of antitrust law; 2) injury and causation; and 3) damages, see In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir. 2001), the court determined that petitioners had asserted a common violation of antitrust law among all members of the proposed class, and had alleged an injury of the type that the antitrust laws were intended to prevent. However, the issues of injury-in-fact and damages, in the district court's view, were insufficiently common among the proposed class members. The district court thus concluded that these issues should be considered separately.
Respondents subsequently moved for reconsideration to clarify the district court's order as to whether it had certified a class on the second count of the complaint.[3] On September 17, 2008, the district court granted the motion for purposes of clarification and certified the same issues for the second count that it had certified for the first. The parties then proceeded to the merits portion of discovery.
Upon completion of discovery, petitioners moved to amend the class certification order pursuant to Rule 23(c)(1)(C). Based on the expert reports of their economists, petitioners sought certification of "the issues of impact and damages, but solely as to a narrower class of registered nurses. . . that includes only the core group of Staff Registered Nurses." On February 16, 2010, the district court entered an order denying the motion. It concluded that petitioners had not presented new facts, but rather a new methodology for assessing the facts that "relie[d] on information that was readily available to Plaintiffs at the time of the initial motion." Such a "change in methodology," according to the court, did not "constitute the requisite changed circumstances" to merit amending the certification. In addition, the court found that petitioners had not shown that common proof could be used to show injury in fact and damages, even for the proposed smaller class. Pursuant to Rule 23(f), petitioners filed a petition with this Court, seeking leave to appeal the denial of their motion.
DISCUSSION
Rule 23(f), which governs interlocutory appeals from "order[s] granting or denying class-action certification," provides that this Court may permit such an appeal "if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered."[4] Fed.R.Civ.P. 23(f). Here, as calculated from the initial partial grant of class certification, or from the decision on the motion to reconsider, the petition for leave to appeal was filed well outside the limitations period. It was filed, however, within fourteen days of the district court's denial of the motion to amend the class certification. The question presented by this case is whether such a denial constitutes "an order granting or denying class-action certification" for purposes of Rule 23(f). We hold that it does not.
*31 It is well-established that Rule 23(f)'s fourteen day filing requirement is a rigid and "inflexible" restriction.[5]Coco v. Inc. Vill. of Belle Terre, N.Y., 448 F.3d 490, 491-92 (2d Cir.2006) (per curiam); see also Gutierrez v. Johnson & Johnson, 523 F.3d 187, 192 (3d Cir.2008) (characterizing the time limit as "strict and mandatory"); Carpenter v. Boeing Co., 456 F.3d 1183, 1190 (10th Cir.2006). Rule 23(f)'s "window of review is deliberately small," Gary v. Sheahan, 188 F.3d 891, 893 (7th Cir.1999), and is "designed to reduce the risk that attempted appeals will disrupt continuing proceedings," Fed.R.Civ.P. 23(f) Advisory Comm. Notes (1998 amends.). Indeed, this Court is expressly barred from extending the time to file a petition for permission to appeal, see Fed. R.App. P. 26(b)(1), and may permit appeal only from an order "granting or denying class-action certification," Fed.R.Civ.P. 23(f). We conclude that construing Rule 23(f) to authorize us to permit interlocutory appeal of the denial of a motion to amend a class certification order, at least when such a motion is filed outside the fourteen-day window, would eviscerate its deliberate and tight restriction on interlocutory appeals. We decline to adopt such a construction.
Construing the Rule as petitioners urge would be contrary to Rule 23(f)'s aim of providing an opportunity for interlocutory appeal, but confining that opportunity within narrow limits, so as to avoid disruption and delay to the proceedings below. If denial of amendment to an order granting class certification were sufficient to reset the clock for appeal, a litigant could easily circumvent Rule 23(f)'s deadline by filing a motion to amend or decertify the class at any time after the district court's original order, then petitioning for leave to appeal within fourteen days from the denial of that motion. Indeed, this case aptly demonstrates why Rule 23(f)'s limit is essential. Here, petitioners seek to take an interlocutory appeal more than eighteen months after the original decision by the district court to certify the class in part. We decline to render a holding that would "leave Rule 23(f)'s deadline toothless," In re DC Water & Sewer Auth., 561 F.3d 494, 496-97 (D.C.Cir.2009).
We conclude that an interlocutory appeal pursuant to Rule 23(f) may not properly be taken from an order denying amendment to a previous order granting class certification, at least when the motion to amend is filed more than fourteen days after the original order granting class certification.[6] In so concluding, we join several of our sister circuits, who have unanimously pronounced on the question. See In re DC Water & Sewer Auth., 561 F.3d at 496 (concluding that the "plain language" *32 of Rule 23(f) requires an order granting or denying class certification "to open the window for an interlocutory appeal"); Gutierrez, 523 F.3d at 193 (holding that Rule 23(f)'s time limit "runs from the order granting or denying class certification," and that "[a] later order that does not change the status quo will not revive the . . . time limit"); Jenkins v. BellSouth Corp., 491 F.3d 1288, 1291-92 (11th Cir. 2007) ("[W]hat counts ordinarily is the original order denying or granting class certification, not a later order that maintains the status quo."); Carpenter, 456 F.3d at 1191 ("An order that leaves class-action status unchanged from what was determined by a prior order is not an order `granting or denying class-action certification.'"); McNamara, 410 F.3d at 280 (holding that a Rule 23(c)(1)(C) motion to amend a class certification order "has no bearing on the time limit prescribed in Rule 23(f)").
CONCLUSION
For the foregoing reasons, the petition for leave to appeal is DISMISSED.
NOTES
[1] By order dated March 30, 2007, Marjory Unger was terminated as a representative plaintiff but remained as a member of the putative class.
[2] Rule 23(a) permits a class action "only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a). Rule 23(b)(3), pursuant to which petitioners sought class action certification, requires the district court to find, in relevant part, that "questions of law or fact common to class members predominate over any questions affecting only individual members." Fed.R.Civ.P. 23(b)(3).
[3] The second count of petitioners' complaint alleged a conspiracy to exchange information in violation of the Sherman Act, 15 U.S.C. § 1.
[4] Prior to December 1, 2009, Rule 23(f) provided for a filing period of ten days rather than fourteen; this period, however, did not include intermediate holidays and weekends. See, e.g., Gary v. Sheahan, 188 F.3d 891, 893 (7th Cir.1999) (discussing Rule 23(f)'s then-extant filing period of ten days, and noting that "weekends and holidays do not count when a time limit prescribed by the civil rules is ten days or fewer").
[5] This Court has previously declined to rule on the question whether Rule 23(f)'s filing period is jurisdictional or merely claims-processing (and thus waivable). See Coco v. Inc. Vill. of Belle Terre, N.Y., 448 F.3d 490, 491-92 (2d Cir.2006) (per curiam). Because respondents have properly objected to the timeliness of the petition, see Resp'ts' Answer 9-11, the issue need not be decided here, and we do not reach it.
[6] We note that some of our sister circuits have recognized a narrow exception to the fourteen-day rule, concluding that when a motion to reconsider a certification order is filed within the period in which a Rule 23(f) petition would have been timely, the fourteen-day limit does not begin to run until the date of the district court's ruling on the motion to reconsider. See, e.g., Gutierrez, 523 F.3d at 192 & 193 n. 4; McNamara v. Felderhof, 410 F.3d 277, 281 (5th Cir.2005). Because the petition in this case was filed well after fourteen days from the district court's decision on both the original certification order and respondents' motion to reconsider, we need not address the question whether a motion to amend filed within fourteen days of an order certifying a class can toll the clock for purposes of Rule 23(f).
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475 F.2d 744
Gregory L. PORTER, Appellant,v.GUAM PUBLICATIONS, INC., et al., Appellees.1
No. 72-1514.
United States Court of Appeals,Ninth Circuit.
March 15, 1973.
Douglas F. Cushnie (argued), of Arriola, Bohn, Cushnie & Stevens, Agana, Guam, for appellant.
Thomas J. Nolan (argued), Walter S. Ferenz, of Barrett, Ferenz, Bramhall & Klemm, Agana, Guam, for appellees.
Before CHAMBERS, ELY and WALLACE, Circuit Judges.
ELY, Circuit Judge:
1
This libel action arises out of a newspaper article published by appellees describing appellant's arrest for the theft of a cash box. In factual contrast, the warrantless arrest stemmed from an unsworn and assertedly false complaint that appellant had stolen an automobile. The District Court concluded that the publication was privileged and granted appellees' motion for summary judgment.
2
To overcome the traditional defense of newspaper privilege, appellant cites Guam Civil Code Sec. 47, which provides in relevant part:
3
"A privileged communication is one made . . . [b]y a fair and true report, without malice, in a public journal, of . . . a verified charge or complaint made by any person to a public official, upon which complaint a warrant shall have been issued."
4
Appellant argues under this statutory authority that the publication was not privileged because (1) the report was unfair and untrue, (2) the complaint leading to his arrest was not verified, (3) a warrant had not been issued, and (4) the newspaper had been motivated by malice.
5
It is axiomatic that although a statute may bestow a privilege not otherwise available, a statute cannot constrict a privilege that is constitutionally conferred. Since Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), St. Amant v. Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), and New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) demonstrate that the newspaper account in this case was constitutionally privileged, we reject appellant's argument that the Guam statute delimits the entire scope of privileged publications of police arrests.
6
Rosenbloom, St. Amant and Sullivan establish that in the absence of reckless or calculated falsehood, damages are not available for a newspaper's defamatory publication of an individual's involvement in events of public or general interest. Appellant's arrest was an event touching the community's "vital interest in the proper enforcement of its criminal laws." See Rosenbloom, supra at 43, 91 S.Ct. at 1819. The constitutional protection afforded the report of such an event must necessarily, although perhaps unfortunately, extend to "some erroneous publications as well as true ones." St. Amant, supra at 732, 88 S.Ct. at 1326. That the arrest was warrantless and predicated upon an unverified complaint is irrelevant to the compass of this privilege.
7
Damages would be available against the appellees only if the falsity of the news report were attributable to reckless or calculated conduct. As manifest in St. Amant v. Thompson, supra at 731, 88 S.Ct. at 1325, this standard of malice would be satisfied only if the publisher "in fact entertained serious doubts as to the truth of his publication." There is nothing in the appellant's allegations that raises, with adequate factual specificity, a genuine, triable issue in this respect.
8
Accordingly, the judgment of the District Court is
9
Affirmed.
1
The names of two others, originally designated as appellees, have, by this court's Order of November 14, 1972, been removed from the caption
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IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1269-16
CHRISTOPHER JAMES HOLDER, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
COLLIN COUNTY
YEARY, J., filed a concurring and dissenting opinion.
CONCURRING AND DISSENTING OPINION
I agree with the Court’s resolution of Appellant’s statutory claim. That resolution is
consistent with our opinion last year in Sims v. State, 569 S.W.3d 634 (Tex. Crim. App.
2019). To that extent, I concur in the result the majority reaches today.
I part ways with the Court, however, in its interpretation of Article I, Section 9 of
the Texas Constitution. TEX. CONST. art. I, § 9. We did not originally grant review of
Appellant’s claim predicated on Article I, Section 9, and Appellant did not raise a Fourth
HOLDER ― 2
Amendment claim on direct appeal. Holder v. State, No. 05-15-00818-CR, 2016 WL
4421362 (Tex. App.—Dallas Aug. 19, 2016) (not designated for publication); U.S. CONST.
amend. IV. After the petition was granted and pending resolution in this Court, Appellant
filed a motion requesting that we remand the cause to the court of appeals for further
consideration of his Article I, Section 9, claim in light of the United States Supreme Court’s
intervening decision in Carpenter v. United States, 138 S. Ct. 2206 (2018). Although
Carpenter resolved only a Fourth Amendment issue, Appellant noted that this Court, in
Hankston v. State, 517 S.W.3d 112 (Tex. Crim. App. 2017), had tethered its construction
of Article I, Section 9, to the Supreme Court’s interpretation of the Fourth Amendment.
But rather than remand the cause, as Appellant had requested, this Court simply ordered
the parties to file additional briefs addressing whether we should revisit our construction
of Article I, Section 9, in view of Carpenter. Holder v. State, ___ S.W.3d ___, No. PD-
1269-16, 2019 WL 5445198 (Tex. Crim. App. 2019).
Instead of slavishly following Carpenter, as the Court now does, I would adhere to
the construction that we unanimously placed upon Article I, Section 9, of our State
Constitution in Hankston. Given that our construction in Hankston was the one that we said
“ma[d]e[] more sense” to us, 517 S.W.3d at 120, it is far from clear to me that we should
follow Carpenter’s lead.
The Texas Constitution means what it means, and that meaning does not vary on the
whim of a majority of Justices sitting at any given moment on the United States Supreme
Court. It is instead emphatically the duty of the Judges of this Court—the court of last
resort for criminal cases in our state—to construe our own state constitution to mean
HOLDER ― 3
exactly what it says, no more and no less. For that reason, an unexpected pronouncement
from the United States Supreme Court with respect to the scope of Fourth Amendment
protections cannot change the meaning of our analog state constitutional provision, Article
I, Section 9, once we have authoritatively construed it. Only when the people of Texas
amend our constitution does it change at all.
We have long recognized our own prerogative to construe provisions of our own
state constitution either more or less protectively of individual rights than the United States
Supreme Court construes analogous provisions of the United States Constitution. As we
noted in Hulit v. State, 982 S.W.2d 431, 437 (Tex. Crim. App. 1998), the scope of the
protection of individual rights embodied in the Texas Constitution “may be lesser, greater,
or the same as those of the federal constitution.” What this fundamental concept of
federalism ultimately means is that “the Texas Constitution will be interpreted
independently.” Id. We further explained that “[t]he Supremacy Clause [of the United
States Constitution] means that, in practical terms, persons will always be able to avail
themselves of the greater right. * * * But it does not mean that a court, faithfully
interpreting state laws, can only find in them protections that equal or exceed federal laws.”
Id. 1
1
In Hulit, we held that, unlike the Fourth Amendment, “the warrant clause in [Article I,] Section
9 [of the Texas Constitution] does not mean that a warrant is indispensable to a valid search and
seizure.” 982 S.W.2d at 435. Moreover, we have long held that Article I, Section 9, does not
incorporate an exclusionary rule. See id. at 439 (Keller, P.J., concurring) (citing Welchek v. State,
93 Tex. Crim. 271, 280‒81, 247 S.W. 524, 529 (1922), for the proposition that there is no
exclusionary rule embedded in Article I, Section 9); Richardson v. State, 865 S.W.2d 944, 948 n.3
(Tex. Crim. App. 1993) (same); Bauder v. State, 921 S.W.2d 696, 700 (Tex. Crim. App. 1996)
(Clinton, J., concurring) (same).
HOLDER ― 4
In our opinion in Ford v. State, 477 S.W.3d 321, 334–35 (Tex. Crim. App. 2015),
every participating member of this Court joined in holding that the Fourth Amendment
permitted the State to obtain without a warrant historical cell-site-location information
(CSLI) of four days’ duration, even while acknowledging “that Fourth Amendment
concerns might be raised if long-term location information were acquired[.]” Observing
that the United States Supreme Court was “primed” to take up this issue, we predicted that
it would eventually hold that the State’s warrantless acquisition of no more than four days’
worth of CSLI data from Ford’s service provider would be found acceptable because it
“falls squarely inside the third-party-doctrine ball-park.” Id. at 335; see also Love v. State,
543 S.W.3d 835, 841 (Tex. Crim. App. 2016) (holding, on authority of Ford, that
“Appellant’s call logs and CSLI are not . . . constitutionally protected”). Sixteen months
later, the United States Supreme Court had still not taken up the issue, and we were
confronted with the question whether we would construe our own constitutional analog
any differently than we had foreseen the United States Supreme Court resolving the Fourth
Amendment question. We opted to follow the path we thought the United States Supreme
Court would eventually take in its Fourth Amendment jurisprudence, as we had predicted
in Ford. Hankston, 517 S.W.3d at 120.
Accordingly, we held in Hankston that it would be consistent with Article I, Section
9, for the State to obtain some twelve months of CSLI data without a warrant. Id. at 114,
121–22. We explained that “[t]here was a voluntary conveyance of the cell phone records,
and, under the third-party doctrine, that conveyance destroyed the reasonable expectation
of privacy in the conveyed information.” Id. at 122. We applied the third-party doctrine to
HOLDER ― 5
reach this result, not because we deemed ourselves bound to interpret Article I, Section 9,
of our own constitution in lockstep with Fourth Amendment jurisprudence, but because we
thought it made “more sense” to construe both the Fourth Amendment and Article I,
Section 9, in this way. Id. at 120. Our original opinion in Hankston was unanimous.
As it turns out, our prediction about how the United States Supreme Court would
interpret the Fourth Amendment was wrong. In Carpenter, a majority of the United States
Supreme Court declined to extend the third-party doctrine to cover CSLI records―at least
for any period of time greater than seven days. See 138 S. Ct. at 2217 n.3 (“It is sufficient
for our purposes today to hold that accessing seven days of CSLI constitutes a Fourth
Amendment search.”). Three dissenting Justices argued vigorously, and at length, that the
third-party doctrine applies, if anything, with even greater force in the CSLI context, and
that a cell-phone user simply lacks any expectation of privacy in records kept by his service
provider. Id. at 2226–33 (Kennedy, J., dissenting, joined by Thomas and Alito, JJ.). 12 This
2
In explaining in Carpenter the reason why he disagreed with the majority’s rejection of the third-
party doctrine in the context of CSLI evidence, Justice Kennedy observed:
[T]he Court maintains . . . [that] cell-site records are “unique” because they are
“comprehensive” in their reach; allow for retrospective collection; are “easy, cheap,
and efficient compared to traditional investigative tools”; and are not exposed to
cell phone service providers in a meaningfully voluntary manner. [Citing majority
opinion, 138 S. Ct. at 2216‒228, 2220, 2223.] But many other kinds of business
records can be so described. Bank and credit card companies keep a comprehensive
account of almost every transaction an individual makes on a daily basis. “With
just the click of a button, the Government can access each [company’s] deep
repository of historical [financial] information at practically no expense.” [quoting
majority opinion at 2218.] And the decision whether to transact with banks and
credit card companies is no more or less voluntary than the decision whether to use
a cell phone. Today, just as when [United States v. Miller, 425 U.S. 435 (1976)]
was decided, “‘it is impossible to participate in the economic life of contemporary
society without maintaining a bank account.’” 425 U.S. at 451 (BRENNAN, J.,
HOLDER ― 6
was the position that we ourselves unanimously said made “more sense” in Hankston. Why,
exactly, does it no longer make more sense?
While there are procedural similarities, this case is not ultimately like Crittenden v.
State, 899 S.W.2d 668 (Tex. Crim. App. 1995). At issue in Crittenden was whether we
should construe Article I, Section 9, the same as the Fourth Amendment with respect to the
issue of so-called pretext stops. Three years earlier, this Court had construed the Fourth
Amendment to embrace an objective approach to this issue. Garcia v. State, 827 S.W.2d
937 (Tex. Crim. App. 1992). But the United States Supreme Court had not spoken
authoritatively on that issue when we decided Garcia. Thus, there was no construction of
the Fourth Amendment with respect to the issue of pretext stops for this Court to consider.
We adopted the objective test from among competing alternatives in Garcia simply
because we said it was the standard that made “more sense” to us.
That being the case, when it came time to decide in Crittenden whether to deviate
from our construction of the Fourth Amendment in interpreting Article I, Section 9, we
adhered to the standard that had made “more sense” to us in Garcia. Crittenden, 899
dissenting). But this Court, nevertheless, has held that individuals do not have a
reasonable expectation of privacy in financial records.
Carpenter, 138 S. Ct. 2232‒33 (Kennedy, J., dissenting). This reasoning mirrors our own in Ford,
which led us to conclude that, “like the bank customer in Miller, . . . appellant cannot meet the
reasonable-expectation-of-privacy test.” Ford, 477 S.W.3d at 331. See also David Stone,
Comment, Saving America’s Privacy Rights: Why Carpenter v. United States Was Wrongly
Decided and Why Courts Should Be Promoting Legislative Reform Rather Than Extending
Existing Privacy Jurisprudence, 51 ST. MARY’S L.J. 223, 270 (2019) (“Mr. Carpenter was not
searched under either of the Supreme Court’s search tests. Because Mr. Carpenter did not own the
CSLI, he cannot win under the trespass test. Alternatively, Mr. Carpenter did not have a reasonable
expectation of privacy in CSLI voluntarily conveyed to the cell phone company by purchasing its
services.”).
HOLDER ― 7
S.W.2d at 673 & n.8. Thus, we chose to apply the objective test under Article I, Section 9,
not as a purely logical proposition—that, because we had previously construed the Fourth
Amendment that way, logic dictated that we must also construe Article I, Section 9, the
same way—but because it made “more sense” to us, deciding the issue in a precedential
vacuum, to interpret both provisions that way. Id. 3 As it happens, the United States
Supreme Court eventually agreed, adopting the objective test for Fourth Amendment
purposes a year later in Whren v. United States, 516 U.S. 690 (1996).
Here, the opposite has occurred. What made more sense to all of us regarding the
scope of the third-party doctrine—both in attempting to predict the United States Supreme
Court’s eventual Fourth Amendment holding, in Ford, and in our own independent
construction of Article I, Section 9, in Hankston—did not correspond with the United
States Supreme Court’s ultimate view of the Fourth Amendment in Carpenter. That does
not mean we are now obliged to abandon our own view of what makes “more sense,” at
least for purposes of Article I, Section 9. Especially in light of the strong arguments
3
The Court emphasized in Crittenden that it was construing an aspect of search and seizure
jurisprudence about which “the Supreme Court has not authoritatively spoken.” 899 S.W.2d at 673
n.8. In that context, the Court declared that, “[a]bsent some significant difference in the text of [the
Fourth Amendment versus Article I, Section 9], or some historically documented difference in
attitude between the respective drafters, there would be no apparent reason to prefer an
interpretation of Article I, [Section] 9 any different than our preferred interpretation of the Fourth
Amendment.” Id. (Emphasis added). By this the Court in Crittenden did not mean to say, as the
Court implies today, that we should always construe the two provisions in lock-step absent some
textual or historical reason not to―our “own lights” notwithstanding. See Majority Opinion at 10
(quoting Olson v. State, 484 S.W.2d 756, 762 (Tex. Crim. App. 1969)). Instead, the Crittenden
footnote stands as an expression of intent, whenever we write on a clean jurisprudential slate, to
construe Article I, Section 9, in the way we think the Supreme Court ought to construe the Fourth
Amendment―not necessarily the way the Supreme Court may actually come to construe it later
on. The Court today errs to understand it otherwise.
HOLDER ― 8
marshaled by the dissenters against the Carpenter majority’s refusal to apply the third-
party doctrine in the CSLI context, it is not at all clear why our previous construction of
Article I, Section 9, no longer makes “more sense” to the Court.
The Court today professes to have changed its mind because of Chief Justice
Roberts’s exhaustive analysis of “the privacy issues implicated by CSLI, which we did not
do in our original Hankston opinion[.]” Majority Opinion at 21. It is not clear to me that
the Court did not consider these arguments in Hankston―and reject them. See 517 S.W.3d
at 116 (“According to Appellant, this same expectation of privacy applies even more to
cell phones because in today’s society cell phones never leave our sides, and allowing data
points to be created in numerous public and private locations enables the State to virtually
reconstruct one’s past actions and deduce a tremendous amount of private information.”);
id. at 121 (“In Ford, we acknowledged, but declined to follow, the reasoning that ‘[p]eople
cannot be deemed to have volunteered to forfeit expectations of privacy by simply seeking
active participation in society through use of their cell phones. We were not persuaded by
the argument that cell phone users must forego the use of technology that has become a
pervasive and insistent part of modern, everyday life or forego the protections of the Fourth
Amendment.”) (internal quotation marks omitted); id. at 122 n.63 (expressly declining to
follow the lead of the Supreme Judicial Court of Massachusetts holding that “the nature of
cellular telephone technology and cell phone data and the character of cellular telephone
use in our current society render the third party doctrine . . . inapposite”). But if the Court
genuinely failed to consider these arguments in Hankston, of which it was aware, one might
fairly wonder why.
HOLDER ― 9
The Court also reviews “the constitutional debates in Texas, which we did not
previously do,” and, according to the Court, “they show no intention on the part of our
framers for Texas citizens to have less protection from unreasonable searches and
seizure[s] under the Texas Constitution than the United States Constitution.” Majority
Opinion at 21. Again, one might fairly ask why the Court failed to consult relevant sources
before, if in fact it did fail.
More alarmingly, the Court’s categorical description of the framers’ intentions
suggests that Hulit itself was wrongly decided―that we are not at liberty to construe
Article I, Section 9, less protectively than the United States Supreme Court construes, or
may eventually come to construe, the Fourth Amendment. Is that really what the Court
means to say today? The Court does not purport to overrule Hulit, or any of the other cases
that have in fact construed Article I, Section 9, to be less protective. 4 Indeed, the Court
itself continues to assert in its opinion today that “there is no implied warrant requirement
in Article I, Section 9.” Majority Opinion at 22 (citing Hulit, 982 S.W.2d at 436). Have we
been wrong since Mapp v. Ohio, 367 U.S. 643 (1961), to think that Article I, Section 9,
imposes no exclusionary rule?
The Court declares that for us to continue to apply the third-party doctrine in the
CSLI context would “amount to us being different just because we can[.]” Majority
Opinion at 22. But there is a big difference between “being different just because we can”
and fairly questioning the infallibility of the United States Supreme Court. To what
4
See note 1, ante.
HOLDER ― 10
amounts to this Court’s abdication of its “own lights,” Majority Opinion at 10 (quoting
Olson v. State, 484 S.W.2d 756, 762 (Tex. Crim. App. 1969)), I respectfully dissent.
FILED: March 11, 2020
PUBLISH
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14166 ELEVENTH CIRCUIT
APRIL 26, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 06-00066-CR-RLV-1-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JULIO MAGANA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 26, 2010)
Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Julio Magana appeals his 120-month sentence imposed upon resentencing
for using a firearm during a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii), 2 as charged in count two of his indictment. On appeal,
Magana argues his 120-month sentence was procedurally and substantively
unreasonable.
Magana first contends that the district court incorrectly calculated his
guideline range because the court found that his guideline range was 7 years (84
months) to life imprisonment when the proper guideline range was only 7 years.
Magana also contends that his sentence was substantively unreasonable because
the 18 U.S.C. § 3553 factors supported a sentence of 84 months’ imprisonment but
did not support his ultimate 120-month sentence. Magana concedes that the
presentence investigation report “painted a rough picture” of him. However,
Magana argues that at resentencing he was a changed person based on his
post-sentence conduct. Magana contends that the district court’s consideration of
his criminal history, the seriousness of his offense, and his disrespect for the law
did not “protect” the three-year upward variance. Magana argues that a reasonable
sentence was the guideline sentence of 84 months’ imprisonment. Magana notes
that during his original sentencing hearing, the district court found that “a sentence
within the guideline range is sufficient to punish the [d]efendant, protect the
public, and is a deterrent to crime.” Therefore, Magana contends that the district
2
court should not have exceeded the guidelines during his resentencing.
We review a final sentence for reasonableness according to the 18 U.S.C.
§ 3553(a) factors. United States v. Winingear, 422 F.3d 1241, 1246 (11th Cir.
2005). When reviewing a sentence, we must first determine that the “district court
committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence-including an
explanation for any deviation from the Guidelines range.” Gall v. United States,
552 U.S. 38, 51 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). If we conclude that
the district court made no procedural errors, “[we] should then consider the
substantive reasonableness of the sentence imposed.” Id.
There is a “range of reasonable sentences from which the district court may
choose.” United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005). “The review
for substantive unreasonableness involves examining the totality of the
circumstances, including an inquiry into whether the statutory factors in § 3553(a)
support the sentence in question.” United States v. Gonzalez, 550 F.3d 1319, 1324
(11th Cir. 2008), cert. denied, 129 S.Ct. 2848 (2009). “[W]e may not apply a
presumption of unreasonableness where a sentence is outside of the Guidelines
3
range, and we must give due deference to the district court’s decision that the
§ 3553(a) factors, on a whole, justify the extent of the variance.” United States v.
Livesay, 525 F.3d 1081, 1090 (11th Cir. 2008) (quotations omitted). However, in
its consideration of the § 3553(a) factors, the district court does not need to discuss
or state each factor explicitly. United States v. Scott, 426 F.3d 1324, 1329 (11th
Cir. 2005). The weight accorded to the § 3553(a) factors is left to the district
court’s discretion. United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007).
The § 3553(a) factors include: (1) the nature and circumstances of the
offense and the history and characteristics of the defendant; (2) the need to reflect
the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the
public; (5) the need to provide the defendant with needed educational or vocational
training or medical care; (6) the kinds of sentences available; (7) the Sentencing
Guidelines range; (8) pertinent policy statements of the Sentencing Commission;
(9) the need to avoid unwanted sentencing disparities; and (10) the need to provide
restitution to victims. 18 U.S.C. § 3553(a). Under § 3553(a), the district court
must impose a sentence that is “sufficient, but not greater than necessary,” to
comply with the purposes set forth in § 3553(a)(2). Id. In United States v.
Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006), we held that, at resentencing, a
4
district court could not consider post-sentencing rehabilitation because
consideration of such evidence would contravene two of the § 3553(a) factors by:
(1) creating sentencing disparities with defendants who do not get the opportunity
to be resentenced; and (2) violating the Sentencing Commission’s policy statement
that post-sentence rehabilitative conduct is not an appropriate basis for a downward
departure at a resentencing hearing. Id.
Magana cannot show that his upward variance 120-month sentence was
procedurally unreasonable. A violation of 18 U.S.C. § 924(c)(1)(A)(ii), carries a
mandatory minimum seven-year sentence. 18 U.S.C. § 924(c)(1)(A)(ii). “[T]he
guideline sentence [for 18 U.S.C. § 924(c)(1)(A)(ii)] is the minimum term of
imprisonment required by the statute.” U.S.S.G § 2K2.4(b). “Every conviction
under § 924(c)(1)(A) carries with it a statutory maximum sentence of life
imprisonment, regardless of what subsection the defendant is sentenced under.”
United States v. Pounds, 230 F.3d 1317, 1319 (11th Cir. 2000). The district court
stated, during the resentencing, that “the range of sentence is seven years to life
statutorily,” demonstrating that it understood the guidelines and properly
calculated them.
Additionally, Magana cannot show that his sentence was substantively
unreasonable because the district court correctly considered the applicable factors
5
in 18 U.S.C. § 3553(a), and imposed a sentence that was supported by the
§ 3553(a) factors. The court noted that Magana’s crimes were particularly violent
and that they involved dangerous weapons. Further, Magana had engaged in three
prior violent offenses and those previous convictions demonstrated a lack of
respect for the law. Thus, the court properly supported the sentence it chose and
did not abuse its discretion. Accordingly, we affirm.
AFFIRMED.
6
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242 S.W.3d 549 (2007)
In re Mario PADILLA, M.D., Relator.
No. 08-06-00239-CV.
Court of Appeals of Texas, El Paso.
August 30, 2007.
*550 Larry W. Hicks, Hicks & Lucky, P.C., El Paso, TX, for Relator.
L. Cullen Moore, Rymer, Moore, Jackson & Echols, P.C., Houston, Robert Dinsmoor, Ray, Valdez, McChristian & Jeans, Walter L. Boyaki, Miranda & Boyaki, El Paso, TX, for Interested Parties.
Before CHEW, C.J., McCLURE, and BARAJAS, C.J. (Ret.).
OPINION ON PETITION FOR WRIT OF MANDAMUS
ANN CRAWFORD McCLURE, Justice.
In this original proceeding, Dr. Mario Padilla seeks a writ of mandamus challenging the denial of his motion to dismiss a medical malpractice proceeding. He further complains that the trial court erred in granting a 30-day extension of time for Anita. Loweree to cure deficiencies in her expert report. We deny relief.[1]
FACTUAL SUMMARY
Loweree filed a medical malpractice suit against Paso Del Norte Surgery Center and Drs. Mario Padilla and Efrain Rivera. She alleged the defendants were negligent in positioning her body during a surgical procedure which resulted in permanent neurologic damage in her right upper extremity. Dr. Padilla performed the surgery while Dr. Rivera provided anaesthesia services.
Loweree timely filed an expert report and curriculum vitae from Dr. John M.H. Allen. Dr. Padilla timely objected and challenged the adequacy of the report, contending it was inadequate because Dr. Allen was not qualified as an expert on the standard of care or causation, and his assertions regarding the standard of care, breach, and causation were inadequate. Dr. Padilla sought dismissal of the suit and an award of attorney's fees and costs in accordance with the Texas Medical Liability Act. Loweree countered that the report was an objective good faith effort to comply with Section 74.351(l). In the alternative, she sought a 30-day extension of time to cure any deficiencies. The trial court concluded that although the elements of the report were deficient, the report represented an objective good faith effort to comply with the statutory definition of an expert report. The court also granted Loweree's request for a 30-day extension to cure the deficiencies and denied Dr. Padilla's requests for dismissal, fees, and costs.
*551 AVAILABILITY OF MANDAMUS RELIEF
Dr. Padilla complains that the trial court abused its discretion in granting Loweree a 30-day extension to cure her deficient expert report. He contends that he is entitled to mandamus relief because he does not have an adequate remedy at law via interlocutory appeal since the trial court granted the extension of time. See Tex.Civ.Prac. & Rem.Code Ann. § 51.014(a)(9)(Vernon Supp.2006)
Clear abuse of discretion
Mandamus will issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992, orig.proceeding). An appellate court rarely interferes with a trial court's exercise of discretion. See Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)(orig.proceeding). We may not substitute our judgment for that of the trial court. Walker, 827 S.W.2d at 839-40. The relator must establish that the trial court could reasonably have reached only one decision. Id. at 840. Even if we would have decided the issue differently, we cannot disturb the trial court's decision unless it is shown to be arbitrary and unreasonable. Id. With respect to a trial court's determination of the legal principles controlling its ruling, the standard is much less deferential. A trial court has no "discretion" in determining what the law is or applying the law to the facts. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Walker, 827 S.W.2d at 840.
No adequate remedy by appeal
An appellate court will deny mandamus relief if another remedy, usually appeal, is available and adequate. Street v. Second Court of Appeals, 715 S.W.2d 638, 639-40 (Tex.1986)(orig.proceeding). Mandamus will not issue where there is "a clear and adequate remedy at law, such as a normal appeal." Walker, 827 S.W.2d at 840, quoting State v. Walker, 679 S.W.2d 484, 485 (Tex.1984). Mandamus is intended to be an extraordinary remedy, available only in limited circumstances. The writ will issue "only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies." Walker, 827 S.W.2d at 840, quoting Holloway v. Fifth Court of Appeals, 767 S.W.2d 680, 684 (Tex.1989).
TEXAS MEDICAL LIABILITY ACT
A claimant shall, not later than the 120th day after the date the claim was filed, serve on each party or party's attorney one or more expert reports, with a curriculum vitae of each expert listed in the report, for each physician or health care provider against whom a liability claim is asserted. See Tex.Civ.Prac. & Rem.Code Ann. § 74.351(a)(Vernon 2005).[2] If, as to a defendant physician or health care provider, an expert report has not been served within the period specified by subsection (a), the court, on the motion of the affected physician or health care provider, shall, subject to subsection (c), enter an order that:
(1) awards to the affected physician or health care provider reasonable attorney's fees and costs of court incurred by the physician or health care provider; and
*552 (2) dismiss the claim with respect to the physician or health care provider, with prejudice to the refiling of the claim.
Tex.Civ.Prac. & Rem. Code Ann. 74.351(b)(Vernon Supp.2006). If an expert report has not been timely served because elements of the report are deficient, the court may grant one 30-day extension to the claimant in order to cure the deficiency. Tex.Civ.Prac. & Rem.Code Ann. § 74.351(c).
A court shall grant a motion challenging the adequacy of an expert report only if it appears to the court, after hearing, that the report does not represent an objective good faith effort to comply with the definition of an expert report in Subsection (r)(6). Tex.Civ.Prac. & Rem.Code Ann. § 74.351 (1). An expert report is defined as "a written report by an expert that provides a fair summary of the expert's opinions as of the date of the report regarding applicable standards of care, the manner in which the care rendered by, the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Tex.Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). A defendant may pursue an interlocutory, appeal from an order that denies all or part of the relief sought by a motion under Section 74.351(b), except that an appeal may not taken from an order granting an extension under Section 74.351. See Tex. Civ.Prac. & Rem.Code Ann. § 51.014(a)(9).
Upon finding that the timely served expert report is deficient, the trial court may grant the claimant one 30-day extension in order to cure the deficiency. See Thoyakulathu v. Brennan, 192 S.W.3d 849, 853 (Tex.App.-Texarkana 2006, no pet.)(subsection (c) extension is available only when a timely-served report does not meet the statutory definition of expert report because it has one or more deficiencies in its contents). Although Dr. Padilla contends the expert report contains wholesale omissions of the required elements, the trial court determined that the report was deficient and not fatally defective. Whether an expert report is deficient falls squarely within the trial court's discretion and we may not substitute our judgment or disturb the trial court's ruling absent a showing that it was arbitrary or unreasonable. Walker, 827 S.W.2d at 839-40. Because Dr. Padilla has not demonstrated the trial court acted arbitrarily or unreasonably, its decision to grant a 30-day extension was not a clear abuse of discretion. See In re Covenant Health System, 223 S.W.3d 423, 425 (Tex.App.-Amarillo 2006, no pet. h.)(trial court's granting of 30-day extension was not a clear abuse of discretion); Watkins v. Jones, 192 S.W.3d 672, 673-75 (Tex.App.-Corpus Christi 2006, no pet.)(no clear abuse of discretion was shown when the trial court granted claimant 30-day extension to cure deficiency).
Nor has Dr. Padilla established he lacks an adequate remedy at law. Once the cured report is timely served, Dr. Padilla may once again file a motion to dismiss under Section 74.351(b). If the trial court determines the cured report is no longer deficient, Dr. Padilla may pursue an interlocutory appeal. If the trial court determines the cured report remains deficient, Loweree's claims would be subject to dismissal with prejudice. See e.g. Patel v. Harmon, 213 S.W.3d 449, 450 n. 1 (Tex. App.-Eastland 2006, no pet.h.); In re Covenant, 223 S.W.3d at 425 (defendant was not entitled to mandamus relief because he had an adequate remedy at law by filing a second motion to dismiss; further if the defendant obtains a favorable ruling the case would be subject to dismissal with prejudice). Because Dr. Padilla has not *553 demonstrated he is entitled to relief, we deny his petition for writ of mandamus.
BARAJAS, C.J. (Ret.), sitting by assignment.
NOTES
[1] Dr. Padilla has also filed an interlocutory appeal regarding these same. The interlocutory appeal has been consolidated with this original proceeding for purposes of briefing and oral argument. In an opinion issued this same date, we have dismissed Dr. Padilla's interlocutory appeal for lack of jurisdiction. See Padilla, M.D. v. Loweree, 242 S.W.3d 544 (Tex.App.-El Paso, 2007, no pet. h.).
[2] Loweree's lawsuit was filed before the effective date of the 2005 amendment to Section 74.351(a). See Tex.Civ.Prac. & Rem.Code Ann. § 74.351 (Vernon Supp.2006).
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262 F.2d 465
104 U.S.App.D.C. 368
Clayborne BYNUM, Appellantv.UNITED STATES of America, Appellee.
No. 14403.
United States Court of Appeals District of Columbia Circuit.
Argued June 17, 1958.Decided Dec. 15, 1958, Petition for Rehearing In Banc DeniedJan. 20, 1959.
Mr. Henry Lincoln Johnson, Jr., Washington, D.C., for appellant.
Mr. Nathan J. Paulson, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., Carl W. Belcher and Thomas A. Flannery, Asst. U.S. Attys., were on the brief, for appellee.
Before FAHY and WASHINGTON, Circuit Judges, and HASTIE, Circuit Judge, United States Court of Appeals for the Third Circuit.1
HASTIE, Circuit Judge.
1
This is an appeal from a conviction of robbery. D.C.Code 22-2901 (1951). A principal issue is whether the court below erred in admitting into evidence certain fingerprints which had been obtained from the accused while he was detained pursuant to an allegedly illegal arrest. The circumstances here are such as to require us to examine the rationale and to judge the reach of authoritative decisions which, in other circumstances, have held evidence obtained through illegal arrest and detention to be inadmissible.
2
Appellant was arrested on an occasion when he had come voluntarily to a police station to make inquiry about his brothers station to make inquiry about his brother arrested without warrant and, as we shall demonstrate later, the record does not disclose probable cause for believing he had committed a felony. It is not disputed that almost immediately after arrest appellant was taken to police headquarters for booking proceedings which included the taking of his fingerprints. He was later indicted, and at his subsequent trial for robbery these fingerprints were introduced in evidence and became an important part of the proof that certain other fingerprints, said to have been found at the scene of the crime, were appellant's fingerprints. These simple facts define the issue is controversy.
3
In admitting the fingerprints the trial judge appears to have thought it sufficient that the evidence was plainly relevant and that no reason appeared to doubt its trustworthiness. Certainly appellant does not deny that he was fingerprinted during his detention. And a police officer called as a witness duly identified the prints offered in evidence as those taken from appellant's fingers. While there could have been some mistake or misrepresentation in this connection this is a risk incidental to all identification of objects offered in evidence. There can be no doubt that the identification of these fingerprints was quite adequate and their relevancy as an essential link in a chain of evidence connecting the accused with the crime charged was obvious.
4
But there remains the question whether the fact that an illegal arrest enabled the police to take these fingerprints while the suspect was illegally detained is in itself and without more a sufficient ground for excluding them from evidence. The court below thought it was not. We think it was.
5
Here it becomes important to determine the rationale of those decisions of the Supreme Court which, in other circumstances, have excluded evidence as the product of unlawful arrest and detention. It is well settled that an article taken from the person of an individual on the occasion of an illegal arrest is not admissible in evidence against him although it is relevant and entirely trustworthy as an item of proof. United States v. Di Re, 1948, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210; Bolt v. United States, 55 App.D.C. 120, 2 F.2d 922. Again, if the police have obtained a statement from an accused person during his illegal detention, no showing that the statement has been obtained without coercion and accurately recorded can make it admissible, although it may seem to be a trustworthy and patently relevant voluntary statement. Upshaw v. United States, 1948, 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100; Mallory v. United States, 1957, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479. In these situations it is deemed a matter of overriding concern that effective sanctions be imposed against illegal arrest and detention and the risks of overreaching inherent in such action. Even though highly probative and seemingly trustworthy evidence is excluded in the process, this loss is thought to be more than counterbalanced by the salutary effect of a forthright and comprehensive rule that illegal detention shall yield the prosecution no evidentiary advantage in building a case against the accused. All of this is bottomed on the Constitution itself. The Fourth Amendment makes protection of the individual against illegal seizure or arrest a constitutional imperative. In the cited cases judicial authority over the manner on which justice shall be administered is exercised in a way calculated to implement the constitutional guarantee.
6
True, fingerprints can be distinguished from statements given during detention. They can also be distinguished from articles taken from a prisoner's possession. Both similarities and differences of each type of evidence to and from the others are apparent. But all three have the decisive common characteristic of being something of evidentiary value which the public authorities have caused an arrested person to yield to them during illegal detention. If one such product of illegal detention is proscribed, by the same token all should be proscribed. Cf. United States v. Klapholz, 2 Cir., 1956, 230 F.2d 494, certiorari denied 351 U.S. 924, 76 S.Ct. 781, 100 L.Ed. 1454. So we find in the Di Re case, the Upshaw case, the Mallory case and the case at hand a compelling common reason for reaching the same result. Therefore, we conclude that the court below erred in admitting the fingerprints in evidence.
7
We now turn to the demonstration of the fact, heretofore assumed, that the record discloses no reasonable ground for belief on the part of the arresting officer that appellant had committed a felony. The arresting officer was a policeman on duty at a police station. From a teletype message he had learned that a certain automobile was sought in connection with a robbery. Later, he learned that one Kenneth Bynum had been arrested driving the car and brought to that police station. Thereafter, the appellant, identifying himself as Clayborne Bynum, brother of Kenneth, telephoned the station and was told to come there if he wanted information about his brother's arrest. He came to the station, admitted owning the car in question and stated that he had loaned it to his brother. There is no indication that the arresting officer had information concerning the circumstances of any crime except that a particular car was wanted and had been seized in connection with a robbery. So far as now appears, he did not even know what robbery was involved, much less any of the alleged circumstances, and made no inquiry before arresting the visitor. Nor is it established that he acted at the direction or request of any officer who had reasonable ground for believing appellant had committed a felony. We conclude, therefore, that the present record discloses no probable cause for arresting appellant on a felony charge. Cf. Whitley v. United States, 1956, 99 U.S.App.D.C. 159, 237 F.2d 787; Contee v. United States, 1954, 94 U.S.App.D.C. 297, 215 F.2d 324; United States v. Castle, D.C.1955, 138 F.Supp. 436. Indeed, unless there are additional circumstances not now in evidence, this seems a rather plain case of arresting on suspicion only and thereafter establishing probable cause for the arrest, a procedure too often judicially condemned to require discussion here. As the Supreme Court has recently put it: 'It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on 'probable cause." Malloy v. United States, 354 U.S. at page 456, 77 S.Ct. at page 1360.
8
Another matter calls for brief discussion. That is the manner in which this point arose and was decided. The record shows that early in the government's case an officer of the Metropolitan Identification Bureau testified that he took the fingerprints in question from Bynum on the day of his arrest. The prosecutor then offered the prints in evidence. This followed:
9
'The Court: They may be admitted.
10
'Mr. Johnson: (Defense Counsel): May I see them?
11
'The Court: I think we have to proceed, Mr. Johnson.'
12
'Mr. Johnson: May I cross-examine before you admit it?
13
'The Court: Just a moment. No, I have admitted Government Exhibit I for Identification into evidence.'
14
Technically, this colloquy did not include any formal objection to the fingerprints as offered though it did disclose that counsel wished to explore a matter concerning admissibility. Somewhat later, at the conclusion of the government's case, counsel for the defense moved for a directed verdict. In the ensuing colloquy the court and counsel discussed the question whether fingerprints taken from the accused after his arrest were inadmissible as the product of an illegal arrest. Part of that discussion was as follows:
15
'The Court: I do not care whether he was properly or improperly arrested, because there has been no confession from the defendant offered in evidence.
16
'Mr. Johnson: His fingerprint was taken from him at that time.
17
'The Court: Well, in the first place * * * I would hold that it was probable cause for the arrest and the arrest was legal.
18
'The Court: * * * I think this was a valid arrest, and irrespective of that, the fingerprints were properly obtained.'
19
Still later, during the defense case an attempt was made to develop more evidence concerning the circumstances of the arrest.
20
'Q. It is your testimony, Officer, that you had Bynum arrested? A. Yes, sir.
21
'Q. On what grounds did you have him arrested?
22
'The Court: I will exclude that; this is irrelevant.'
23
Thus, counsel explicitly made the point that the fingerprints were inadmissible because they were the product of an illegal arrest. He sought to support that contention through additional testimony about the circumstances of the arrest. The court was peremptory to cutting off any elaboration of the defense contention. In the circumstances it was not essential for counsel to persist further. In any event, the court took two positions; first, that there was enough evidence as to the circumstances of the arrest to show that it was legal, and second, that the legality or illegality of the arrest was not relevant to the admissibility of the fingerprints. And the ruling was so summary that we cannot be sure whether the prosecution itself may not have been deprived of a valuable opportunity to show factually that the arrest was legal.
24
Finally, it has been suggested that the controversy about a particular set of fingerprints here is much ado over very little because it would have been simple and proper to have taken appellant's fingerprints in court during trial in order to compare them with the prints said to have been found at the scene of the crime. It is also said that appellant's fingerprints, taken on a proper occasion, were in the possession of the Federal Bureau of Investigation and that these prints could properly have been used in this case. But this argument, like the argument of trustworthiness already discussed, simply does not meet the point. It bears repeating that the matter of primary judicial concern in all cases of this type is the imposition of effective sanctions implementing the Fourth Amendment guarantee against illegal arrest and detention. Neither the fact that the evidence obtained through such detention is itself trustworthy or the fact that equivalent evidence can conveniently be obtained in a wholly proper way militates against this overriding consideration. It is entirely irrelevant that it may be relatively easy for the government to prove guilt without using the product of illegal detention. The important thing is that those administering the criminal law understand that they must do it that way.
25
We conclude that appellant is entitled to a new trial with opportunity accorded the parties to develop fully the facts which will establish whether the fingerprints in dispute were the product of an illegal arrest. Of course this issue will not arise if the prosecution elects to proceed without using the fingerprints taken at the time of appellant's arrest.
26
Reversed and remanded for further proceedings consistent with this opinion.
1
Sitting by designation pursuant to the provisions of Section 291(a), Title 28 U.S.Code
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551 F.3d 1205 (2009)
UNITED STATES of America, Plaintiff-Appellee,
v.
Marcus Durell HOOKS and Robert Chavelle Ferrell, Defendant-Appellants.
Nos. 08-7021, 08-7026.
United States Court of Appeals, Tenth Circuit.
January 9, 2009.
*1207 08-7026, U.S. v. Ferrell, Submitted on Oral Argument and 08-7021, U.S. v. Hooks, Submitted on the Briefs:
Robert Ridenour, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, and Barry L. Derryberry, Research and Writing Specialist, with him on the briefs), Office of the Federal Public Defender, Northern and Eastern Districts of Oklahoma, Tulsa, OK, for Defendant-Appellant Ferrell.
Roger Hilfiger, Muskogee, OK, on the briefs for Defendant-Appellant Hooks.
*1208 Rob Wallace, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, with him on the briefs), Muskogee, OK, for Plaintiff-Appellee.
Before, TACHA, HOLLOWAY, and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
On August 23, 2007, a jury convicted both Marcus Durrell Hooks and Robert Chavelle Ferrell of possessing a firearm after former felony conviction in violation of 18 U.S.C. § 922(g)(1) and (2). Mr. Hooks and Mr. Ferrell appeal their convictions. Defendants challenge the sufficiency of the evidence supporting their convictions as well as the adequacy of the jury instructions, the factual basis for the application of an enhancement statute, and the district court's failure to compel the testimony of a witness during sentencing. We affirm Mr. Hooks' conviction but reverse the conviction of Mr. Ferrell.
I.
Background
Around dusk on the evening of October 24, 2006, local law enforcement set up a safety checkpoint at the intersection of State Highway 9 and State Highway 52 in McIntosh County, in the Eastern District of Oklahoma. Soon thereafter a Dodge pickup truck with dark tinted windows slowly approached the checkpoint lane manned by Officer Burkley Cash. The pickup stopped after Officer Cash knocked on the driver's side window and asked the driver to roll down his window. Officer Cash peered into the vehicle and saw a driver, later determined to be defendant Hooks, and a front seat passenger, later determined to be defendant Ferrell. Mr. Ferrell was turned towards the driver's side window, back against the passenger side door and "square with" Officer Cash.[1] Officer Cash scanned the interior of the pickup and saw what appeared to be a revolver with a wooden handle and black cylinder and hammer lodged in the seat next to the driver's right leg. In response, he reached for his weapon and yelled "gun." Rec., vol. IV at 38. The pickup rapidly sped away. Officer Cash pursued the vehicle in his patrol car, initiating his emergency lights, dash camcorder, and sirens. Two other patrol cars followed. Officer Cash testified that he did not see anything thrown from the pickup during the pursuit. However, another officer in one of the following patrol cars, Timothy Turner, testified that he saw a dark colored shirt floating in the air in front of his unit's hood on the passenger side.
The pursuit of the pickup lasted only about a mile. Once the vehicle stopped, the officers performed a felony stop. Mr. Hooks and Mr. Ferrell exited the driver's side of the vehicle; shortly thereafter, the officers discovered two additional passengers hiding in the backseat. Officer Cash placed Mr. Hooks and Mr. Ferrell in his patrol unit, which had interior and exterior audio recording devices. The officers then searched the pickup. The pickup had two doors, two front side windows, and two rear side windows. The record is unclear *1209 as to whether the rear passenger windows could be opened from the inside.[2] Officer Cash testified that he discovered a "large hole" in the passenger side rear window of the pickup. The officers also discovered marijuana crumbs in the vehicle. During the officers' search, the audio recorder on Officer Cash's patrol unit dash cam recorded conversation between Mr. Hooks and Mr. Ferrell. The dash cam did not record defendants' facial expressions or lip movement, however, because the dash cam was pointed toward the front windshield.
The officers failed to locate any firearms in the pickup. Accordingly, as he transported Mr. Hooks and Mr. Ferrell to the local jail, Officer Cash retraced a portion of the route he had taken in pursuit of the truck. Officer Cash found a black t-shirt he had not see before in the eastbound lane on the south side (or "passenger side") of the road. The black t-shirt lay approximately three-quarters to half of a mile back from where the officers had first stopped the pickup. Officer Cash also found several brass nine millimeter bullets and a nine millimeter Uzi M-11 in a nearby adjacent ditch located ten to fifteen feet from the edge of the road. The Uzi did not match the weapon Officer Cash believed he saw in the pickup. Officer Turner asked Mr. Hooks about the whereabouts of the gun that Officer Cash had seen in the pickup. He testified that Mr. Hooks said he had no gun but only wooden handles (or grips) for a gun, which he had thrown out of the pickup during the chase.
Late the next day, Officer Cash and Officer Turner again searched the area along the route of the pursuit. Officer Cash found a .38 ROHM revolver with a plastic, wooden-looking grip that matched the pistol he believed he had seen in the pickup the day before. The .38 revolver lay fifteen to twenty feet off the road from where they had found the black t-shirt and approximately ten feet from where the Uzi was found. The government subsequently charged Mr. Hooks with possession of the.38 revolver, and Mr. Ferrell with possession of the Uzi-type, SWD Cobray M-11.
Before trial, the government sought to admit excerpts of the video from Officer Cash's dash cam with transcribed captions of the audio on the bottom of the screen. The audio included conversation that occurred between Mr. Hooks and Mr. Ferrell while seated in the patrol car. Both defendants filed motions to exclude the video, with Mr. Hooks seeking to exclude any transcript of the audio recording as well as the video. Mr. Hooks claimed that the audio was not sufficiently audible, that the audio itselfnot interpretations in transcriptswas the "best evidence" of the dialogue, and that the video would confuse or mislead the jury under Fed. R.Evid. 403. The district court denied defendants' motions. The court instructed counsel to attempt to stipulate to the contents of the transcripts to be admitted at trial. Counsel for the parties met and agreed on what the video clips said and transcripts were prepared in accordance with the parties' informal agreement.[3]
*1210 At trial, defendants renewed their objections to the admission of the transcripts, arguing that parts of the audio were inaudible and that the transcripts would be emphasized over that portion of the audio the jurors could actually hear and understand. They contended that "reasonable minds c[ould] differ about what[] [was] being said on the tape." Rec., vol. IV at 155. The district court overruled their objections. The court allowed the transcription of the audio to be displayed as captions on the video, but did not permit written transcripts to be given to the jury. The district court reasoned that because the government's case rested almost entirely on the video clips, which admittedly were of poor quality, the jurors should deliberate based on what they actually heardnot on someone else's interpretation.
The jury watched four video clips displaying the captions. The following excerpted conversations occurred during and immediately after the officers searched the pickup while defendants were sitting in the patrol car:
Hooks: Well he just pulled up, they must have found it
Ferrell: Huh they found it
....
Hooks: They must have found them straps [(i.e., guns)[4]] and shit we fixin to be gone
Ferrell: Hell no I ain't gone
Hooks: I am gonna get hit with all that shit they find
Ferrell: Hmm
Hooks: They gonna hit me with all that shit that they find
Ferrell: They still tryin to scrape up these [marijuana] crumbs[[5]] cuz. You see them scraping up those crumbs?
Hooks: uh huh
Gov't Ex. 1, Tr. of Video Clip 1; see also Rec., vol. IV at 174-75.
Ferrell: We took a fat loss Cuz.
....
Hooks: A fat ass loss and the man coming with more money. Ferrell: And we fixin to lose more.
Hooks: I pray to god they ain't gonna find that shit[.]
Gov't Ex. 2, Tr. of Video Clip 2. The government also introduced excerpts of conversation that occurred after the discovery of the Uzi M-11 and during Officer Cash's inspection of the firearm.
Ferrell: Whose Uzi?
Officer Cash: Huh?
Ferrell: Did you say you found an Uzi?
Officer Cash: Yeah, I found an Uzi. Probably ain't you all's, is it? Ferrell: Huh? Hell, no.
Officer Cash: No, you all just carry marijuana and gun stocks, right?
[(vehicle door closes)]
Ferrell: As long as they don't find that revolver, cuz, you cool, cause he stated he thought it was a revolver (inaudible). We can beat that shit in court.
Ferrell: Your fingerprints on all that?
Hooks: I think I touched that home [sic].
*1211 Ferrell: As long as he don't find that revolver.
Gov't Ex. 3, Tr. of Video Clip 3.
Hooks: See if there's one in the chamber.
Ferrell: He don't even know how rack it [(i.e., the Uzi)], dumb bastard.
Ferrell: One in the chamber.
Hooks: They wasn't none in the chamber.
Ferrell: Wasn't in the chamber?
Hooks: huh uh
Ferrell: They gonna have to clean it to get a fingerprint off of that cuz.
Gov't Ex. 4, Tr. of Video Clip 4.
Before closing arguments, the district court instructed the jury. The instructions did not include a limiting instruction regarding the jury's possible reliance on the transcribed captions over the actual audio. Neither the government nor defendants requested such a limiting instruction. The jury returned guilty verdicts against both defendants.
A probation officer prepared presentence reports ("PSR") for defendants prior to their respective sentencing. Neither Mr. Hooks nor Mr. Ferrell initially filed objections to their PSRs. The Government objected to both PSRs, however, claiming that the reports should have included enhancements for firearm possession in connection with another felony offense, i.e., possession of controlled substances with intent to distribute, in accordance with U.S.S.G. § 2K2.1(b)(6). Both PSRs described "The Offense Conduct" as including "a yellow envelope containing a plastic bag that had numerous blue pills believed to be ecstasy," which was found near the Uzi M-11. Rec., vol. VI at 2; accord Rec., vol. VII at 2. The PSR noted that "104 of the tablets were found to be [a combination of] Methamphetamine and 3, 4 Methylenedioxymethamphetamine (ecstacy)." Rec., vol. VI at 2; accord, Rec., vol. VII at 2. According to the government, it did not disclose or admit the contents of the envelope at trial because of this evidence's highly prejudicial nature and lack of relevancy to the crimes charged.
Defendants filed objections in response to the government's objections. Mr. Hooks pointed out that "there was no testimony at trial concerning the envelope and its contents." Rec., vol. VI at 11. According to Mr. Hooks, "any evidence of proximity to firearms was only as to the envelope being near the [Uzi] which was charged to Ferrell and not Hooks, and the Hooks firearm was found at a later time and 15 feet or more from the envelope." Id. He further asserted "the government had an opportunity to charge this in an indictment ... and the enhancement requested should not be allowed without the evidentiary standards afforded a defendant at trial." Id. The government did not proffer any additional evidence.
At the sentencing hearing, Mr. Ferrell sought to present testimony from one of the pickup's backseat passengers. He wanted to question this individual about his possession of the ecstacy found near the firearms, to which he had pled guilty in state court. Mr. Ferrell's counsel stated that he intended to ask the witness whether Mr. Ferrell could "have reached up there and grabbed that dope and took off with it, which evidences possession." Rec., vol. V at 18. Before Mr. Ferrell's counsel could make such an inquiry, the witness asserted his Fifth Amendment privilege against self-incrimination. Mr. Ferrell's counsel requested that the court compel the witness to testify, but the court declined, concluding that it would not compel testimony about a matter that could lead to federal prosecution of the witness.
Based on the record, the district court applied the § 2K2.1(b)(6) enhancement to Mr. Hooks and Mr. Ferrell. The court reasoned that
*1212 [t]he availability of [Mr. Ferrell]'s gun in such close proximity to the drugs in this case is sufficient evidence of a connection between the firearm and the drugs to invoke the application of the four level enhancement.... [T]he Court finds by a preponderance of the evidence that [Mr. Hooks] should be held accountable for also possessing his firearm in connection with the possession of [ecstacy] with intent to distribute since all these items were thrown from the same vehicle during the police pursuit.
Id. at 21-22; see also id. at 31. The district court adopted the PSRs, with modified base offense levels, as the factual basis for defendants' sentences. Defendants objected to the court's sentencing determinations.
Defendants assert several grounds for appeal. They seek reversal of their convictions or, alternatively, remand for resentencing. Mr. Hooks argues that the district court erred in allowing the jury to view the video clips without giving a limiting instruction regarding the weight to be given to the transcribed captions. He contends the evidence is insufficient to support his conviction for felonious possession of the .38 revolver. He also asserts that the district court erred in applying the four-point enhancement to his sentence without factual support in the record.
Mr. Ferrell asserts two grounds for appeal. He argues that the evidence is insufficient to support his conviction for possessing the Uzi under the principles of constructive possession and joint occupancy. He also contends the district court abused its discretion by allowing a prospective sentencing witness to assert his Fifth Amendment privilege against self-incrimination, thereby denying Mr. Ferrell the opportunity to present evidence relevant to sentencing.
II.
Sufficiency of the Evidence
We review de novo challenges to the sufficiency of the evidence. United States v. Higgins, 282 F.3d 1261, 1274 (10th Cir.2002). In ascertaining sufficiency, we view all of the evidence in the light most favorable to the government and ask whether a reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Hamilton, 413 F.3d 1138, 1143 (10th Cir.2005). We reverse a conviction only if no reasonable jury could have reached the challenged verdict. See United States v. Wilson, 107 F.3d 774, 778 (10th Cir.1997).
To prove constructive possession under 18 U.S.C. § 922(g)(1), the government must show, inter alia, that the defendant "knowingly [held] ownership, dominion, or control over the object and the premises where it is found." United States v. Hishaw, 235 F.3d 565, 571 (10th Cir.2000) (alteration in original). Stated another way, the government must show that the defendant had knowledge of and access to the firearm. Id. In the case of joint occupancy of a structure or vehicle, as here, "evidence of knowledge and access may be proved by direct evidence, or inferred from circumstantial evidence, so long as the circumstantial evidence includes something other than mere proximity...." United States v. Jameson, 478 F.3d 1204, 1209-10 (10th Cir.2007) (emphasis added); see also United States v. Hanrahan, 508 F.3d 962, 969 (10th Cir.2007) ("When two or more people occupy the space where the firearm is found, [] proximity to the firearm alone is insufficient to establish knowledge of and access to that firearm."). The government must demonstrate "some connection or nexus between the defendant and the firearm," Hishaw, 235 F.3d at 571, which leads to "at least a plausible inference that the defendant had *1213 knowledge of and access to the weapon or contraband[,]" United States v. Michel, 446 F.3d 1122, 1129 (10th Cir.2006). In sum, a conviction may not rest upon the "piling of inference[] upon inference[]"; guilt must flow from "logical and probabilistic reasoning." Id. at 1128-29.
A. Mr. Hooks' Conviction
Mr. Hooks contends a reasonable juror would have had a reasonable doubt as to whether the item seen by Officer Cash in the pickup was, in fact, the .38 revolver later discovered by Officer Cash. He notes that Officer Cash only momentarily saw what he claimed to be a revolver, at dusk in an unlighted pickup with dark tinted windows. Mr. Hooks points out that Officer Cash discovered the.38 revolver over eighteen hours later in an area the officers had extensively searched the night before and left unsecured in the interim. He further notes that no physical evidence, such as a fingerprint, links the revolver to him. According to Mr. Hooks, his conviction should therefore be reversed for insufficient evidence.
We disagree. A reasonable jury could have found Mr. Hooks guilty beyond a reasonable doubt of possessing the .38 revolver. Several pieces of evidence lead us to this conclusion. First, Officer Cash testified that the .38 revolver was the firearm he saw wedged in the seat next to Mr. Hooks' right leg. Second, Mr. Hooks exhibited furtive behavior by fleeing the checkpoint and leading officers on a high-speed chase. Third, the discovery of the.38 revolver in the same area as the discarded t-shirt, when coupled with Mr. Hooks' post-arrest admission that he threw gun handles out of the pickup during the chase, is compelling evidence against Mr. Hooks. Fourth, Mr. Hooks' recorded statements to Mr. Ferrell affirmatively indicate his knowledge of the revolver. He remarked: (1) the officers "must have found them straps and shit we fixin to be gone," and (2) "I pray to god they ain't gonna find that shit." Mr. Hooks also made clear that he believed he, as the driver, would face criminal charges when he stated, "I am gonna get hit with all that shit they find." While we recognize that Officer Cash did not recover the.38 revolver until the day after the chase, Mr. Hooks' statements provide "some connection or nexus" between him and the firearm. See Hishaw, 235 F.3d at 571. The evidence logically and probabilistically shows that Mr. Hooks had knowledge of and access to the .38 revolver. See Michel, 446 F.3d at 1129. We therefore conclude that there is evidence sufficient to support Mr. Hooks' conviction.
B. Mr. Ferrell's Conviction
Mr. Ferrell also contends the evidence is insufficient to support his conviction, asserting that the government failed to establish a nexus between him and the Uzi. According to Mr. Ferrell, the evidence in this case "contra-indicates guilt" and "amounts to mere presence in a car where a firearm was located." Aplt. Br. at 11, 14.
Having thoroughly reviewed the record, and mindful that there were two additional passengers in the back seat of the pickup, we agree that the record does not support Mr. Ferrell's conviction. The government's evidence consists of no more than Mr. Ferrell's presence inside the pickup occupied by four persons, his recorded statements to Mr. Hooks, and the location where the Uzi was found by the side of the road. Viewing the evidence in the light most favorable to the government, we hold that no reasonable jury could have found Mr. Ferrell guilty beyond a reasonable doubt. Even if we assume that Mr. Ferrell's mere presence in the pickup establishes proximity, see Jameson, 478 F.3d at 1209-10, the government still has failed to show that Mr. Ferrell had knowledge of or *1214 dominion or control over the Uzi, as opposed to the two passengers in the back of the pickup.
We emphasize dominion or control, as opposed to "access to," because of our decision in United States v. Norman, 388 F.3d 1337 (10th Cir.2004). In Norman, we noted that a firearm does not need to be "readily accessible," i.e., "visible and retrievable," to a defendant at the time of his arrest for the defendant to constructively possess it. Id. at 1341-42. The firearm may be locked in a glove compartment or even stored in the trunk of a car, assuming the defendant had knowledge and control of it. See id. at 1342. In other words, a defendant's "access to" a firearm is not determined by his proximity to the firearm. Rather, the "access to" element necessarily subsumes a subelement of "ownership, dominion, or control." Cf. United States v. Behanna, 814 F.2d 1318, 1320 (9th Cir.1987) ("When the government charges an individual with possession of a weapon in a vehicle, we have squarely held that the government must do more than show that the defendant was present as a passenger in the vehicle and within reach of the weapon."); United States v. Whitfield, 629 F.2d 136, 143 (D.C.Cir.1980) (concluding that evidence of mere accessibility, without evidence of dominion and control, is insufficient to support a finding of constructive possession).
Regarding Mr. Ferrell's recorded statements, we conclude his comments to Mr. Hooks do not evince knowledge of the Uzi's presence in the vehicle. Mr. Ferrell denied ownership of the Uzi upon inquiry by Officer Cash. He also asked Mr. Hooks whether Mr. Hooks' fingerprints were "on all that," referring to the Uzi the officer was holding outside the patrol car. Gov't Ex. 3, Tr. of Video Clip 3. Mr. Hooks replied "I think I touched that home [sic]." Id. Mr. Hooksnot Mr. Ferrellcommented that he thought the Uzi had no bullets in the chamber. See Gov't Ex. 4, Tr. of Video Clip 4. Mr. Ferrell's observation that the officer did not know how to rack the Uzi is not evidence of knowledge of the weapon while it was in the vehicle. While the remark may indicate general knowledge of how to operate a semiautomatic firearm, it does not establish that Mr. Ferrell knew that the Uzi was in the pickup.
Similarly, the area in which the Uzi was found does not show Mr. Ferrell's dominion or control over the firearm. Officer Cash discovered the Uzi in a ditch on what was the passenger's side of the highway, three-quarters to half of a mile back from where the pickup had been stopped. The Uzi had no fingerprints on it, and the record contains no officer testimony, physics analysis, or other evidence identifying the window from which the firearm was thrown. The record merely reveals that at least the front windows could be opened from the inside, and that the passenger window in the rear where two other passengers were located had a large hole in it. The officers admit, moreover, that they did not observe the Uzi in the pickup or being thrown from the vehicle.
At bottom, we can readily distinguish the dearth of circumstantial evidence in this case from the relative abundance of such evidence in our prior decisions upholding possession convictions. See, e.g., Jameson, 478 F.3d at 1210 (upholding possession conviction where government's evidence included defendant's "furtive movements, his inferred physical contact with the pistol (his foot was on top of it), and the pistol's being in plain view and easily retrievable to a passenger in [the defendant]'s seat") (internal citation omitted); Michel, 446 F.3d at 1128-29 (upholding possession conviction where defendant, the front-seat passenger in the car in which the gun was found, made repeated movements toward the back seat area where *1215 the gun was located); Norman, 388 F.3d at 1341 (finding sufficient evidence of knowing possession where defendant, the owner and driver of the vehicle, exhibited anxious and bizarre behavior throughout his encounter with the police, had a key to the locked glove compartment in which the gun was found, may have had exclusive possession of the vehicle the evening before his arrest, and transported a passenger whose behavior and statements indicated no knowledge of the firearm); United States v. Gorman, 312 F.3d 1159, 1164 (10th Cir.2002) (holding the evidence established sufficient nexus between defendant and the firearm where defendant owned and worked on the vehicle in which the firearm was found, and the firearm was partially hidden on defendant's side of the vehicle and retrievable from defendant's driver-side seat); United States v. Springfield, 196 F.3d 1180, 1184 (10th Cir. 1999) (upholding possession conviction where defendant (i) engaged in furtive movements while being followed by the police, (ii) had been seated in the rear of the van where the gun was found, and (iii) carried on his person bullets linking him to the gun). Here, the government's only real link to Mr. Ferrell is his "prese[nce] inside a car with three others where a [different] gun was [arguably thrown out]." Jameson, 478 F.3d at 1210. The evidence here, without more, does not support a finding of guilt beyond a reasonable doubt.
We conclude that Mr. Ferrell's conviction is not supported by the evidence and must be reversed. In light of this conclusion, we need not address his other grounds for reversal of his conviction or sentence.
III.
Jury Instructions
Mr. Hooks argues that he was prejudiced by the district court's failure to give a limiting instruction regarding reliance on the video clips' transcribed captions. According to Mr. Hooks, the jurors might have relied on the written statements more than what they individually heard and understood. He contends the district court's instructions did not properly guide the jury because the instructions failed to advise on this crucial aspect of the government's case.
We review jury instructions de novo, in the context of the entire trial and as a whole, "to determine if they accurately state the governing law and provide the jury with an accurate understanding of the relevant legal standards and factual issues." United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir.2008) (internal quotation marks omitted). We review for abuse of discretion a district court's decision to give or to decline a particular requested instruction. Id. We reverse a conviction "if we have substantial doubt that the jury was fairly guided." United States v. LaVallee, 439 F.3d 670, 684 (10th Cir.2006) (internal quotation marks omitted). However, "[u]nopposed instructions are reviewed only for plain error." United States v. Nacchio, 519 F.3d 1140, 1159 (10th Cir.2008), reh'g granted, 535 F.3d 1165 (10th Cir.2008).
We note at the outset that Mr. Hooks stipulated to the accuracy of the admitted transcripts before trial and did not seek to proffer his own version of them. Because Mr. Hooks did not request a "best evidence" limiting instruction or otherwise object to the instructions, we review the district court's instructions for plain error. "Plain error exists only where (1) there was error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity or public reputation of judicial proceedings." Bedford, 536 F.3d at 1153. In other words, the defendant "must establish not *1216 only the existence of an error that is clear or obvious under current law, but also that such error affects his substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Schene, 543 F.3d 627, 638 (10th Cir.2008).
Mr. Hooks first must show plain error. Tenth Circuit law is well-settled that a district court has discretion in admitting the transcription of an audio recording. United States v. Davis, 929 F.2d 554, 559 (10th Cir.1991); United States v. Devous, 764 F.2d 1349, 1353 (10th Cir.1985). In the absence of a stipulation by the parties, the court should determine the accuracy of transcripts. See Devous, 764 F.2d at 1355. If transcripts are admitted and discrepancies or errors exist, the court may give a "cautionary instruction to the jury, telling [it] that the tapes [a]re the true evidence and that the transcripts [a]re to be used only for clarification." Davis, 929 F.2d at 559; see also United States v. Lucero, 601 F.2d 1147, 1149 (10th Cir.1979) (noting district court gave "vigorous cautionary instructions" in response to defendant's challenge to the accuracy of the transcripts). While limiting instructions are advisable, we have never held that a district court must give such an instruction in every case in which transcripts of audio recordings are admitted.
We are not convinced that Mr. Hooks has shown plain error. No prejudicial danger could possibly arise from the absence of a limiting instruction if Mr. Hooks agreed that no discrepancies or errors existed between the actual audio and the transcribed captions. The jury could safely rely on the captions, for the captions were no more than a typewritten facsimile of the audio itself. Mr. Hooks cannot claim error simply because the jury could see, as well as hear, his undisputed statements. Because Mr. Hooks' stipulation to the accuracy of the transcripts offset the need for a cautionary instruction, see Devous, 764 F.2d at 1355, his argument necessarily fails.
IV.
Application of the Enhancement Statute
Mr. Hooks argues that the district court erred by applying the U.S.S.G. § 2K2.1(b)(6) sentencing enhancement when nothing in the record showed he possessed the .38 revolver in connection with another felony offense. Mr. Hooks points out that the district court based its finding on factsi.e., the yellow envelope containing ecstacy pills found near the Uziset forth in the PSR but not presented at the suppression hearing or at trial. According to Mr. Hooks, the record does not include unproven facts merely mentioned in a PSR and does not support an inference that he possessed the .38 revolver in connection with a drug offense.
The government, by contrast, contends that the record does support the district court's factual finding regarding the four-point enhancement. It asserts that Mr. Hooks' recorded statements about accountability for "all that shit they find" and the impending "fat ass loss" clearly references "the economic loss" Mr. Hooks faced as a result of the hasty disposal of the "illegal product along the side of the road." Aple. Br. at 12. The government also points out that Mr. Hooks did not object to the accuracy or inclusion of the facts in the PSR, which the district court adopted as the basis for the enhancement. Thus, according to the government, the district court did not err in relying on this information.
We review the factual findings underlying a district court's sentencing determination for clear error and review the underlying legal conclusions de novo. United States v. Swanson, 253 F.3d 1220, 1222 (10th Cir.2001). We give "due deference *1217 to the district court's application of the [Sentencing] Guidelines to the facts." United States v. Sells, 541 F.3d 1227, 1235 (10th Cir.2008). Factual findings must be supported by a preponderance of the evidence. United States v. Munoz-Tello, 531 F.3d 1174, 1181 n. 12 (10th Cir.2008). Clear error exists if a factual finding "is wholly without factual support in the record, or after reviewing the evidence, we are definitively and firmly convinced that a mistake has been made." United States v. Ivory, 532 F.3d 1095, 1103 (10th Cir.2008); see United States v. Cardenas-Alatorre, 485 F.3d 1111, 1119 (10th Cir.2007) ("[A] finding must be more than possibly or even probably wrong; the error must be pellucid to any objective observer.").
We are not persuaded by Mr. Hooks' argument that there was sentencing error. "With few limitations, a court has almost unlimited discretion in determining what information it will hear and rely upon in imposing [a] sentence" under the advisory sentencing guidelines. United States v. Graves, 785 F.2d 870, 872 (10th Cir.1986); see United States v. Todd, 515 F.3d 1128, 1137 (10th Cir.2008) ("18 U.S.C. § 3661 specifies that no limitation should be placed on the information concerning the background, character, and conduct of a defendant that a district court may consider in sentencing ...." (internal quotation marks omitted)). A district court "may accept any undisputed portion of the presentence report as a finding of fact." Fed.R.Crim.P. 32(i)(3)(A). While we have noted that "[a] district court may not simply adopt the PSR as its findings when the defendant disputes the report[,]" United States v. Rodriguez-Felix, 450 F.3d 1117, 1131 (10th Cir.2006), we have never held that a factually undisputed PSR can not form the basis for factual findings. We see no reason why the record should not include "the uncontroverted facts in [a] Presentence Report." United States v. Melendez-Garcia, 28 F.3d 1046, 1056 (10th Cir.1994). If a defendant fails to specifically object to a fact in the PSR, the fact is deemed admitted by the defendant and the government need not produce additional evidence in support of the admitted fact. United States v. White, 447 F.3d 1029, 1032 (8th Cir.2006).
Here, Mr. Hooks did not object to the accuracy or inclusion of the facts in the PSR. He never contended the envelope contained something other than ecstacy, and he never proffered mitigating exculpatory evidence. Mr. Hooks instead contended that the requested enhancement required proof beyond a reasonable doubt that he possessed the firearm in connection with controlled dangerous substances. However, an objection based on the purported failure to satisfy a specified standard of proof is wholly distinguishable from an objection based on the alleged factual inaccuracy of a PSR. As long as Mr. Hooks did not contest the truthfulness of the PSR's description of the envelope's contents, the PSR remained undisputed and thus satisfied the preponderance of the evidence standard with respect to the existence of the drugs.
The record also support's the district court's finding that Mr. Hooks possessed the .38 revolver in connection with the felony possession of drugs for sale. Mr. Hooks' recorded conversation about his potential legal and financial accountability for the drugs as well as the revolver the officers might find provides sufficient factual support for the four-point enhancement. We therefore conclude that the district court did not err.
For the foregoing reasons, we REVERSE Mr. Ferrell's conviction, and AFFIRM Mr. Hooks' conviction and sentencing.
NOTES
[1] The government asserted during oral argument that Officer Cash testified "Ferrell was turned with his back against the passenger door and there was a jacket laying in his lap...." Audio Recording, Oral Argument at 14:54 (Nov. 20, 2008) (on file with Tenth Circuit) (emphasis added). The implication was that Mr. Ferrell could have been hiding a gun on his lap. To the contrary, Officer Cash did not testify about a jacket lying in Mr. Ferrell's lap. He made only one reference to a jacket. When asked whether Mr. Ferrell claimed ownership of any items in the pickup, Officer Cash testified "[h]e had a coat." Rec., vol. IV at 108. We admonish the government for making material factual assertions to the court not supported by the record.
[2] Upon being asked whether there were "any other windows that could be opened in th[e] pickup other than the side windows," Officer Cash responded that "[t]here was a hole on the passenger side rear window, on the window the back window of the vehicle, there was a large hole actually coming out of it." Rec., vol. IV at 83. Officer Cash did not testify "to th[e] effect," as the government contends, that the back window could not be opened from the inside. Audio Recording, Oral Argument at 17:15. Further, no one testified that "[t]he hole was in the back window of the truck [on the passenger's side] ... behind the back seat passengers," as the government asserted at oral argument. Id. at 22:21 (emphasis added).
[3] During the pretrial hearing, defense counsel acknowledged,
[Counsel for defendants] went over a week or two ago and spoke with [the prosecutor] and we went over the tape and we listened to it and wethough we object to the admission of the transcript and to the contents of it, we agreed that it sounded as if that's what it said on there. And no objection to that.
Rec., vol. IV at 153-54.
[4] An ATF agent testified that, based on his training and experience, the term "strap" means a pistol or firearm in street slang. The agent admitted, however, that the term could have other meanings in other contexts.
[5] The officers found marijuana crumbs in the passenger compartment of the pickup.
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Citation Nr: 1450468
Decision Date: 11/14/14 Archive Date: 11/26/14
DOCKET NO. 10-22 748 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina
THE ISSUES
1. Entitlement to an effective date earlier than July 17, 2007, for the grant of special monthly compensation (SMC) based on a need for aid and attendance.
2. Entitlement to an increase in the 60 percent evaluation currently assigned for lumbar strain with intervertebral disc syndrome.
3. Entitlement to an evaluation in excess of 60 percent for neurogenic colon with bowel dysfunction, from the initial grant of service connection.
4. Entitlement to an evaluation in excess of 20 percent for right upper extremity subscapular nerve disability, from the initial grant of service connection.
5. Entitlement to an evaluation in excess of 20 percent for left upper extremity subscapular nerve disability, from the initial grant of service connection.
6. Entitlement to an evaluation in excess of 10 percent for right lower extremity sciatic peripheral neuropathy, from the initial grant of service connection.
7. Entitlement to an evaluation in excess of 10 percent for left foot strain with sciatic peripheral neuropathy, from the initial grant of service connection.
REPRESENTATION
Appellant represented by: Paralyzed Veterans of America, Inc.
ATTORNEY FOR THE BOARD
Christopher Maynard, Counsel
INTRODUCTION
The Veteran had active service from July 1973 to July 1993.
By rating actions in July 1998, September 1999 and March 2003, the RO denied the Veteran's claims of SMC based on the need for aid and attendance (A&A) or at the housebound rate. The Veteran and his representative were notified of these decisions and did not appeal.
This matter comes before the Board of Veterans Affairs (Board) on appeal from RO decisions in August 2004, June 2008 and November 2011. In August 2004, the RO, in part, assigned an increased rating to 60 percent for the Veteran's lumbosacral spine disability; effective from May 23, 2003. In June 2008, the RO implemented a May 2008 Board decision that granted SMC based on a need for A&A, and assigned an effective date of July 17, 2007. In November 2011, the RO, in pertinent part, granted service connection for neurological impairment of both upper and lower extremities and neurogenic colon, and assigned the ratings currently shown on the first page of this decision.
Finally, the Board notes that by rating action in January 2013, the RO assigned an increased rating to 100 percent for Meniere's disease; effective from January 9, 1998, the date of receipt of the Veteran's original claim for symptoms of vertigo, tinnitus and hearing loss, claimed as labyrinthitis. The RO then issued an SOC and advised the Veteran that this was a complete grant of the benefits sought. Although the Veteran subsequently submitted a VA Form 9, in which he discussed several of his disabilities, including Meniere's disease, a higher evaluation for Meniere's disease is not possible. Accordingly, the issue of an increased rating for Meniere's disease is moot, and the matter will not be addressed in this decision.
FINDINGS OF FACT
1. The Veteran did not appeal the March 2003 rating decision which, in part, denied entitlement to SMC based on a need for aid and attendance.
2. A formal claim for SMC based on a need for aid and attendance was received in April 2003.
3. By rating action in June 2008, the RO assigned an effective date of July 17, 2007, for the grant of SMC based on a need for aid and attendance.
4. The earliest effective date for the grant of SMC based on a need for aid and attendance is July 17, 2007.
5. The Veteran's low back disability is manifested principally by pain, limitation of motion and incapacitating episodes of at least six weeks during the past 12 months; functional loss of use due to pain or during flare-ups to a degree commensurate with unfavorable ankylosis of the entire spine is not demonstrated.
6. Since service connection was established, the Veteran has not been shown to have complete loss of sphincter control.
7. Since service connection was established, the Veteran 's right and left upper extremity disabilities have been manifested by chronic pain and numbness; more than mild symptoms of incomplete paralysis of the upper radicular group is not demonstrated.
8. Since service connection was established, the Veteran's peripheral neuropathy of the right and left lower extremity has been manifested by symptoms most compatible with mild incomplete paralysis of the sciatic nerve, and no greater.
CONCLUSIONS OF LAW
1. The criteria for an effective date earlier than July 17, 2007, for the grant of SMC based on a need for aid and attendance have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p),(r), 3.157, 3.159, 3.350(b)(3), 3.351(b),(c), 3.400(o)(2) (2014); Dalton v. Nicholson, 21 Vet. App. 23 (2007).
2. The criteria for an evaluation in excess of 60 percent for lumbar strain with intervertebral disc syndrome are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Codes 5243 (prior to and from 9/26/03).
3. The criteria for an initial evaluation in excess of 60 percent for neurogenic colon are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.114, Part 4, Diagnostic Code 7332 (2014).
4. The criteria for an initial evaluation in excess of 20 percent for left upper extremity subscapular nerve disability are not met. 38 U.S.C.A. §§ 1155, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Part 4, Diagnostic Code 8510 (2014).
5. The criteria for an initial evaluation in excess of 20 percent for right upper extremity subscapular nerve disability are not met. 38 U.S.C.A. §§ 1155, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.124a, Part 4, Diagnostic Code 8510 (2014).
6. The criteria for an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2014).
7. The criteria for an initial evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity are not met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2014).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
VCAA
Before addressing the merits of the Veteran's claim, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2014).
Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159. This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326.
The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in April 2003 (A&A), June 2003 (low back) and December 2010 (remaining issues). See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Furthermore, no argument has been advanced that there exists any error in the accomplishment of the duty to notify.
As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's service treatment records (STRs), and all VA and private medical records have been obtained and associated with the claims file. The Veteran was examined by VA during the pendency of this appeal, and was afforded an opportunity for a personal hearing, but declined. The Board also reviewed the Veteran's Virtual VA records. The Board finds that the VA examinations were comprehensive in nature and adequate upon which to base a decision on the merits of the issues addressed in this decision. The examiners personally interviewed and examined the Veteran, elicited a medical history and provided a rational explanation for the conclusions reached.
At this point, it is noted that while the Veteran's representative asserted that if the Board does not find that increased ratings are warranted, it should remand the issues "to ensure the VA associates all treatment records with the claims file and provides the veteran with a contemporaneous examination." In this regard, the Board notes that the representative does not assert that the Veteran's disabilities have worsened since the most recent VA examinations were conducted or that there are missing VA treatment records. In this case, the most recent VA examinations were conducted in 2012 and 2013 and the most recent VA outpatient reports of record are from May 2013. As indicated above, the VA examinations were comprehensive in scope and provided sufficient information and findings to address the rating criteria for the disabilities on appeal. Accordingly, the Board finds that the evidence of record is sufficient to adjudicate the claims, and that no useful purpose or benefit flowing to the Veteran would be served by remanding the claims for additional examinations.
Further, neither the Veteran nor his representative have made the RO or the Board aware of any additional available evidence that needs to be obtained in order to fairly decide this appeal, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. See Shinseki v. Sanders, 129 S.Ct.1696 (2009).
Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available but not yet part of the claims file. Accordingly, the Board finds that the duty to notify and duty to assist have been satisfied.
Effective Dates - Applicable Law and Regulations
The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). A claim for a SMC is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999).
The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1).
An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).
A veteran shall be considered to be in need of a regular A&A if he or she has the anatomical loss or loss of use of both feet, one hand and one foot, or is so helpless or blind or permanently bedridden as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b).
In determining whether a veteran is helpless or nearly so helpless as to require the regular A&A of another person, the following circumstances will be considered: Inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of the veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a).
Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition is such as would require him to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a).
It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable decision is permissible. Particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that he is so helpless as to need regular aid and attendance, not that there is a constant need. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222 (1996). However, it is logical to infer a threshold requirement that "at least one of the enumerated factors be present." Turco, 9 Vet. App. at 224. "Bedridden" will be that condition which, by virtue of its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a doctor has prescribed rest in bed for a greater or lesser part of the day to promote convalescence or cure is insufficient. 38 C.F.R. § 3.352(a).
A&A
As noted above, the Veteran's claim for SMC based on a need for regular aid and attendance (A&A) was granted by the Board in May 2008. By rating action in June 2008, the RO implemented the Board decision and assigned an effective date of July 17, 2007 for the grant of A&A. The Veteran disagreed with the effective date assigned and asserted that he needed assistance to perform most of the routine functions of daily care due to his service-connected disabilities. The Veteran asserted that his wife has had to help him dress/undress, bath, feed him and drive him to his appointments for several years, and believes that the effective date of his award for A&A should be from the date of his initial claim in 1998.
Initially, it should be noted that the Veteran did not perfect an appeal to the March 2003 rating decision that denied entitlement to A&A. As an appeal was not perfected within the prescribed period under 38 C.F.R. § 20.1103, that determination is final. See also 38 C.F.R. § 20.302. Given the finality of the March 2003 rating decision the earliest effective date for the grant of A&A can be no earlier than the first time that the post-March 2003 record shows a claim and/or entitlement to A&A.
In this case, a new claim for A&A was received from the Veteran in April 2003. The RO denied the claim in August 2004, and the Veteran perfected a timely appeal. In May 2008, the Board granted entitlement to A&A. By rating action in June 2008, the RO assigned an effective date of July 17, 2007. The Veteran disagreed with effective date assigned, giving rise to this appeal.
Initially, it should be noted that the Board has reviewed all the evidence of record, including statements from the Veteran and his wife, and the numerous VA and private medical reports and VA examinations from 2000 to the present.
The provisions of the law governing effective date of awards of benefits are clear and unambiguous. Generally, the effective date of an award of increased compensation (which includes claims for A&A) shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim. 38 U.S.C.A. § 5110(a).
The law provides one exception to this general rule governing increased rating claims. If the evidence shows that the increase in disability occurred prior to the date of receipt of claim, the RO may assign the earliest date as of which it is factually ascertainable that the increase occurred as long as the claim for the increased disability rating was received within one year of the date that the increase occurred. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Harper v. Brown, 10 Vet. App. 125 (1997); see also VAOPGCPREC 12-98 (Sept. 23, 1998).
In addition, the Court has indicated that it is axiomatic that the fact that must be found in order for entitlement to an increase in disability compensation to arise is that the service-connected disability has increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan, 10 Vet. App. at 521.
In this case, the RO assigned an effective date of July 17, 2007, the date of a letter from the Veteran's wife indicating that the Veteran was in need of regular A&A. In this regard, the Board notes that while the Veteran's wife reported that she has had to help the Veteran with his routine daily functions, such as dressing, feeding and making sure he takes his medications, the question is not whether she assists her husband in his daily activities, but whether the Veteran was so helpless as to need or require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b).
The Board does not dispute that the Veteran's service-connected disabilities are significantly disabling and cause considerable functional impairment in his daily activities. The evidence showed that the Veteran was given a wheelchair by VA in 1999, upgraded to a motorized wheelchair in 2010, and that he uses it when outside of his home. However, (prior to July 2007), the evidence showed that the Veteran ambulates around his home using a cane and was able to perform daily self-care without assistance. The evidence showed that the Veteran was seen at a VA emergency room for heart problems in October 2002, and that he left the ER unaccompanied and ambulatory using his walking cane. The report also noted that the Veteran had been active the day before cutting his lawn using his riding mower. A VA outpatient note, dated in February 2004, noted that the Veteran was able to walk 100 feet using a cane, that he had full passive range of motion and power in all extremities, was able to heel-toe walk and had good coordination. His gait, stance, muscle tone and bulk were normal, and his reflexes were symmetrical and of normal amplitude. While the Veteran could not touch his toes on forward bending and had positive straight leg raising, the evidence showed that he had good coordination and function in all of his extremities. Similar findings were reported on a VA outpatient note in December 2004. At that time, the Veteran reported that he drives his car occasionally.
When examined by VA in March 2004, the Veteran reported that he participated in water aerobics two to three times a week - his pain permitting. In fact, VA outpatient notes in October 2006 and March and June 2007, showed that the Veteran participated in a regular exercise program. In October 2006, the Veteran reported that the exercise program was beneficial, and the examiner commented that the Veteran was able to perform daily self-care in spite of his pain. A March 2007 VA outpatient note showed that the Veteran was encouraged to walk more, and that he was exercising in a pool three times a week. A June 2007 VA outpatient note indicated that the Veteran had lost 25 pounds over three months from his exercise program.
The Veteran was afforded a VA A&A examination in November 2005. The examiner indicated that the claims file was reviewed and included a description of the Veteran's complaints, medical history and the findings on examination. The Veteran was accompanied by his wife to the examination, but reported that he still drives some. The Veteran reported that he can dress himself, except for shoes and socks, can feed himself and does his own toileting. He goes to church usually every Sunday, and gets out of the house for appointments. The Veteran reported that he gets around his home with aid of a cane and that he uses a motorized wheelchair outside of his home. On examination, the Veteran was well developed and had marked pain in his neck and back with any movement, dizziness, poor balance and vertigo. The examiner indicated that the Veteran had no restrictions on use of his upper and lower extremities, and that he could protect himself from the hazards of his daily environment.
On VA neurological examination in November 2005, motor power and muscle tone and bulk were normal in all four extremities. There was no pronator drift and the Veteran was able to heel and toe walk. The examiner indicated that the Veteran's stance and gait were normal and he could walk with aid of a crutch, but that he stays in his wheelchair. The Veteran had joint pains and limitation of lumbar flexion, but reflexes were brisk in all four extremities. There was no asymmetry, involuntary movements or muscle atrophy. The Veteran had weakness in all extremities, but the examiner commented that volition was questionable. Coordination was intact to finger nose testing, and sensory testing was inconsistent with any known anatomical distribution pattern.
On VA psychiatric evaluation in November 2005, there were no loosened associations or flight of ideas, no bizarre motor movements or tics, and no impairment of thought processes or communication. The Veteran was well oriented, his memory was intact, and his insight and judgment was adequate. The assessment was adjustment disorder with mixed emotional features, secondary to multiple physical complaints. The Global Assessment of Functioning (GAF) score was 57, and the examiner indicated that the Veteran was capable of managing his own financial affairs.
Although the Veteran contends that his award of regular A&A should be made effective from the date of his initial claim in 1998, the date of filing of a claim is controlling in determinations as to effective dates. See Lalonde v. West, 12 Vet. App. 377, 380 (1999) (citing Hazan v. Gober, 10 Vet. App. 511 (1997)). In Lalonde, the Court stated that the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating potential entitlement, but on the date that the application upon which service connection (here, A&A) was eventually awarded was filed with VA. Id.
As noted above, in order to meet the regulatory criteria for A&A, the evidence must demonstrate that the Veteran is so helpless as to need or require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b). It is not required that all of the factors enumerated in 38 C.F.R. § 3.352(a) be found to exist. The particular personal function which the veteran is unable to perform should be considered in connection with his condition as a whole. Moreover, the evidence must establish that the veteran is so helpless as to need regular A&A, not that there is a constant need for A&A. 38 C.F.R. § 3.352(a); see VAOPGCPREC 21-94.
After review of all the evidence of record, the Board finds that there is no earlier date prior to July 17, 2007, on which it could be factually ascertained that the Veteran was in need of regular A&A. 38 C.F.R. § 3.400(o)(2). As discussed above, the evidence showed that while the Veteran has significant service-connected disabilities that clearly impact on his ability to ambulate, the medical reports of record showed that prior to July 17, 2007, the Veteran had good strength and dexterity in his upper extremities, could stand and walk up to 100 feet with use of a cane and was able to perform the functions of daily self-care, albeit with pain. The only aspect of daily self-care that the Veteran reported that he needed assistance with, was putting on his socks and shoes.
As to his wife's assertion that she did not let the Veteran cook his own meals because he almost burned the house down several times, (see January 2006 statement), there is no objective or competent medical evidence to suggest that the claimed fire incidents were due to or caused by his service-connected disabilities. That is, the evidence of record shows that the Veteran has good strength and dexterity in his upper extremities and is able to ambulate around his house with a cane. As the Veteran's wife never offered any explanation as to the actual cause of the alleged fires, there is no reason to believe that any such incidents were related to any impairment associated with the Veteran's service-connected disabilities. In fact, the Board notes that subsequent to the grant of A&A, the record showed that the Veteran has continued to stay physically active. When seen by VA for his annual mental health evaluation in February 2010, the Veteran reported that he was very involved in his church and that he assisted with caring for his seven grandchildren. He also reported that he enjoys fishing, boating and other outdoor activities - weather permitting, and said that he considered himself to be "active." The therapist opined that the Veteran was independent in all activities of daily living. The record also showed that the Veteran drives his truck with a lift for his scooter and that he participates in pool therapy three times a week and uses a treadmill/bike at home. With the medical evidence described above contradicting the wife's assertion concerning the Veteran's physical limitations, its probative value is diminished even further. In view of the evidence set out above, the Board finds no basis for the assignment of an effective date earlier than July 17, 2007. Accordingly, the appeal is denied.
Finally, as to the representative's argument that an earlier effective date is warranted because the Board, in granting SMC, considered evidence from 2003, the question as to the appropriate effective date turns not the date of the earliest evidence considered, but the date that the evidence showed the Veteran is so helpless as to need regular A&A was "factually ascertainable." For the reasons discussed above, the Board finds that the evidence in this case does not show that the Veteran was in need of A&A prior to July 17, 2007.
Increased Ratings - In General
In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are also appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (2014).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board noted that the guidance provided by the Court in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered.
Low Back Disability
Initially, it should be noted that during the pendency of this appeal, the rating criteria for evaluating disabilities of the spine were amended. In general, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, VA must consider both versions and apply the one most favorable to the veteran. VAOPGCPREC 7-2003 (November 19, 2003). VA's Office of General Counsel has determined that the amended rating criteria, if favorable to the claim, can be applied only for periods from and after the effective date of the regulatory change. However, the Veteran does get the benefit of having both the old regulation and the new regulation considered for the period after the change was made. See VAOPGCPREC 3-00. That guidance is consistent with longstanding statutory law, to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made. See 38 U.S.C.A. § 5110(g) (West 2002).
In this case, the Veteran was rated 40 percent disabling for lumbosacral strain at the time of receipt of his claim for increase in May 2003, which was the highest evaluation possible under Diagnostic Code (DC) 5295. However, the Veteran has now been shown to have disc disease of the lumbosacral spine which can not be disassociated from the service-connected low back strain. Thus, the Board must also consider the rating criteria for intervertebral disc syndrome (IVD) under DC 5243.
The rating criteria under DC 5243, in effect at the time of receipt of the Veteran's claim for increase in May 2003, provided that IVD was to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id.
Note (1): For purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.
Note (2): When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes.
Note (3): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment.
With respect to neurologic manifestations, DC 8520, addresses the sciatic nerve. Incomplete paralysis of the sciatic nerve is rated 10 percent when mild, 20 percent when moderate, 40 percent when moderately severe, and 60 percent when severe with marked muscular atrophy. 38 C.F.R. § 4.124a; DC 8520. An 80 percent rating is warranted for complete paralysis of the nerve when the foot dangles and drops and there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. Id.
The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).
Effective September 26, 2003, VA amended its Schedule for Rating Disabilities, 38 C.F.R. Part 4, to institute a general rating formula for evaluating diseases and injuries of the spine, including lumbosacral strain under DC 5237, spinal stenosis under DC 5238, degenerative arthritis of the spine under DC 5242, and intervertebral disc syndrome under Diagnostic Code 5243. Under the revised criteria, lumbosacral strain will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, The Spine, Note (6) (2014).
Under the General Rating Formula, a 30 percent evaluation requires forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. These ratings are warranted if the above-mentioned manifestations are present, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. (38 C.F.R. § 4.71a, DCs 5235 to 5243, effective September 26, 2003.)
The revised rating criteria under the General Formula for Diseases and Injuries of the Spine also, in pertinent part, provide the following Notes:
Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.
Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is zero to 30 degrees; left and right lateral flexion are zero to 30 degrees; and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The combined normal range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of the spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id.
The criteria with respect to evaluating IVD based on incapacitating episodes, effective from September 26, 2003, were essentially unchanged from the criteria in effect from September 23, 2002. Given the facts in this case, the Board finds that there is no advantage flowing to the Veteran between the revised regulations and those in effect at the time of receipt of his claim for increase.
In the instant case, the Veteran has been assigned the maximum rating possible for his low back disability (60 percent) under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes. In order to be assigned a higher evaluation of 100 percent under the General Rating Formula, the evidence must show unfavorable ankylosis of the entire spine. While the evidence showed that the Veteran has significant limitation of motion of the lumbosacral spine with forward flexion restricted to no less than 10 degrees, he has never been shown to have unfavorable ankylosis of the entire spine. (See May 2004 VAX). The most recent VA (QTC) examination in January 2011 showed forward flexion to 30 degrees, with a combined range of motion of 80 degrees. Further, the fact that the Veteran is able to get in and out of his wheelchair and ambulate about his home with use of a cane, shows that he retains some range of motion of the spine, albeit limited by pain. Absent evidence of unfavorable ankylosis of the entire spine, an evaluation in excess of 60 percent is not warranted.
Consideration must also be given to any functional impairment of the Veteran's ability to engage in ordinary activities and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2014).
In this regard, while the Veteran has significant limitation of motion, there is no objective evidence of any additional functional limitation due to pain, fatigue, weakness, or lack of endurance following repetitive use. Further, the VA examiners in May 2004 and January 2011 found that there was no additional functional impairment due to pain or on repetitive use. While the Veteran has some functional loss due to pain, an evaluation in excess of 60 percent could be assigned only if the resulting functional loss is commensurate with unfavorable ankylosis of the entire spine. Here, the Veteran is not shown to have a corresponding functional loss.
As noted above, the general rating formula provides that the rating criteria are to be applied with or without symptoms such as pain, stiffness, or aching. 38 C.F.R. § 4.71a, DCs 5235 to 5243. Other than chronic pain, there was no evidence of visible behavior or adequate pathology to suggest that any additional functional impairment was commensurate with the criteria necessary for a higher evaluation at any time during the pendency of this appeal.
Applying the appropriate diagnostic codes to the facts of this case, the objective assessment of the Veteran's impairment from his low back disability does not suggest that he had sufficient symptoms so as to a warrant an evaluation in excess of 60 percent at any time during the pendency of this appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007).
Upper & Lower Extremity Disabilities
The Veteran's peripheral neuropathy of the right and left lower extremities are currently evaluated under DC 8520, for incomplete paralysis of the sciatic nerve. A 10 percent evaluation may be assigned for mild incomplete paralysis, 20 percent for moderate symptomatology, and 40 percent for moderately severe symptomatology. Incomplete paralysis with severe symptomatology and marked muscular atrophy warrants a 60 percent evaluation. An 80 percent rating is warranted for complete paralysis of the nerve when the foot dangles and drops and there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520 (2014).
The Veteran's peripheral neuropathy of the right and left upper extremities are currently evaluated under DC 8510, for incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for mild incomplete paralysis of the major and minor extremity. Incomplete paralysis with moderate symptomatology warrants 40 and 30 percent ratings for the major minor extremity, respectively. Incomplete paralysis with severe symptomatology warrants 50 and a 40 percent evaluations, respectively. Complete paralysis with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, warrants 80 and 60 percent evaluations, respectively. 38 C.F.R. § 4.124a, DC 8510 (2014).
Neurological conditions are to be evaluated based upon the impairment of motor, sensory, or mental functioning. 38 C.F.R. § 4.120 (2014). The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).
In this case, the objective findings on all of the medical reports and examinations during the pendency of this appeal did not show more than mild neurological impairment in the upper or lower extremities or more than moderate impairment in the upper extremities. On VA neurological examination in November 2005, sensation was intact to light touch, and there was no asymmetry, involuntary movements or atrophy. There was some weakness in all four extremities, though the examiner questioned the Veteran's volition. Muscle tone was within normal limits and coordination for finger to nose testing was intact. The examiner commented that the Veteran's sensory system was inconsistent with any known anatomical distribution pattern.
A private EMG study of the left upper extremity in February 2009 showed mild slowing of the left median nerve at the wrist involving sensory fibers only. The examiner commented that cervical nerve root irritation could not be ruled out because the Veteran declined cervical paraspinal EMG testing.
A VA outpatient note dated in February 2010, showed 4+/5 strength in the left upper extremity and normal strength in the right upper extremity. There were no pathologic reflexes, no Hoffmann sign or hyperreflexia in the upper extremities. Other than some numbness at the right knee and decreased sensation to light touch in the left leg, no other pertinent abnormalities were noted. Strength was 5/5 in both lower extremities.
When examined by VA in January 2011, the Veteran had some sensory deficit to pinprick and some motor weakness in both upper and lower extremities. There was no signs of pathologic reflexes and cutaneous reflexes were normal in both upper and lower extremities. The diagnoses included sensory and motor deficit involving bilateral subscapular (upper extremities) and sciatic (lower extremities) nerves.
In this case, the Veteran's primary neurological complaints involve radiating pain into his lower extremities, decreased sensation to pin prick and some weakness in the upper and lower extremities. (See January 2011 VAX). The objective findings on the medical reports of record, however, do not show more than mild neurological impairment of the upper and lower extremities. The Veteran is able to drive his truck, assist in caring for his grandchildren and maintains what he described as an "active" lifestyle, which includes fishing and other outdoor activities.
Based on the clinical and diagnostic evidence of record, the Board finds that the evidence does not show clinically significant symptoms compatible with "moderate" impairment of the upper or lower extremities so as to warrant a rating in excess of 10 percent at anytime during the pendency of this appeal, including the one year period prior to receipt of the Veteran's claim for increase.
Based on the clinical and diagnostic evidence of record, the Board finds that the evidence does not show clinically significant symptoms compatible with "moderate" impairment of the upper or lower extremities so as to warrant a rating in excess of the 10 and 20 percent evaluations currently assigned under DCs 8510 and 8520, respectively, at any time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999).
Neurogenic Colon
The Veteran's neurogenic colon is currently evaluated under DC 7332 for loss of sphincter control, which provides, in pertinent part, for a 60 percent evaluation for extensive leakage and fairly frequent involuntary bowel movements, and a maximum 100 percent rating for complete loss of sphincter control. 38 C.F.R. § 4.114, DC 7332.
The Veteran is currently assigned a 60 percent rating for his neurogenic colon. In order to be entitled to a 100 percent rating, there must be objective evidence of complete loss of sphincter control. Although "complete loss of sphincter control" is not defined in the regulation, the Board must consider the plain language of the regulation and consider the terms in accordance with their common meaning. See Lockheed Corp. v. Widnall, 113 F.3d 1225, 1227 (Fed. Cir. 1997). In this regard, complete is defined as total or absolute. See Merriam-Webster's Collegiate Dictionary 254 (11th ed. 2003).
In this case, the medical evidence during the pendency of this appeal does not show any objective evidence of leakage, involuntary bowel movements or loss of sphincter control. Private medical records in January 2006 and April 2008 showed the Veteran's rectal muscle tone was normal. VA hospital records for evaluation of urinary retention in February 2010, showed that the Veteran's bowel movements were monitored over a period of about 10 days, during which time the Veteran denied any bowel incontinence and was not shown to have any involuntary bowel movements or loss of sphincter control. On VA QTC examination in January 2011, the Veteran reported a history of chronic intestinal problems for many years, but did not describe any problems with fecal leakage, involuntary bowel movements or any need to wear pads, and specifically denied any chronic constipation or diarrhea. The Veteran declined a rectal examination due to severe pain of the cervical and lumbosacral spine.
In this case, while the evidence indicated that the Veteran sometimes uses a form of digital stimulation to move his bowels, there is no objective or competent medical evidence of complete loss of sphincter control. On the contrary, the medical reports of record are replete with notations that the Veteran is continent of stool and is able to void independently. While the Veteran reported that he digitally stimulates bowel movements intermittently, this does not equate to loss of sphincter control. The rating criteria addresses loss of sphincter control in terms of involuntary bowel movements and excessive leakage, symptoms that the Veteran has never claimed or demonstrated. Furthermore, there is no competent medical evidence of record that even remotely suggested that the Veteran's occasional digital stimulation was due to loss of sphincter control. Although the RO assigned a 60 percent rating for neurogenic colon, the evidence of record does not show any of the findings necessary to support that rating. Accordingly, there is no basis for the assignment of a higher evaluation. See Fenderson v. West, 12 Vet. App. 119 (1999).
Extraschedular Considerations
In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).
For the reasons discussed above, the Board finds that the manifestations of the Veteran's low back and bilateral upper and lower extremity disabilities and neurogenic colon are consistent with the schedular criteria, and there is no objective or competent medical evidence that any manifestations related to the service-connected disabilities are unusual or exceptional. The schedular rating criteria adequately contemplates the degree of impairment caused by the Veteran's disabilities and provides for higher evaluations with more severe symptoms or clinical findings. In view of this, referral of this case for extraschedular consideration is not in order.
ORDER
An effective date earlier than July 17, 2007, for the award of SMC based on the need for A&A is denied.
An increased rating for lumbar strain with intervertebral disc syndrome is denied.
An increased rating for neurogenic colon with bowel dysfunction is denied.
An increased rating for right upper extremity subscapular nerve disability is denied.
An increased rating for left upper extremity subscapular nerve disability is denied.
An increased rating for right lower extremity sciatic peripheral neuropathy is denied.
An increased rating for left foot strain with sciatic peripheral neuropathy is denied.
____________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
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394 Mich. 224 (1975)
229 N.W.2d 316
STATE BAR GRIEVANCE ADMINISTRATOR
v.
LEWIS
Docket No. 56046, (Calendar No. 6).
Supreme Court of Michigan.
Argued January 8, 1975.
Decided May 27, 1975.
Eugene N. LaBelle, for the State Bar Grievance Administrator.
Stuart J. Dunnings, Jr., and Alphonse Lewis, Jr., in propria persona, for respondent.
Decided May 27, 1975. Rehearing denied 395 Mich 902.
T.G. KAVANAGH, C.J.
Respondent was ordered suspended from the practice of law for 130 days as a discipline for violation of 68A Stat 851-852 (1954), 26 USCA 7203 willful failure to file an income tax return. His conviction of that offense was based upon his plea of nolo contendere.
The hearing panel's order provided that respondent should be given 40 days credit against the 130-day suspension upon application for reinstatement. The State Bar Grievance Board affirmed the panel's finding and order of suspension, but removed the provision for credit.
This appeal makes six assertions of error:
I. Former § 15.17 of the Procedural and Administrative Rules of the State Bar Grievance Board[1] does not apply to a Federal misdemeanor.
II. A plea of nolo contendere may not be treated as an admission of conduct.
III. Discipline for a first offender for violation of a statute not previously construed is fundamentally unfair.
*227 IV. The hearing panel's conclusion that conviction of a misdemeanor is proof of misconduct proscribed in State Bar Rule 15, § 2, subsections (1), (2) and (3), is not supported by the record, for the question was neither raised nor argued.
V. The hearing panel erred in requiring corroboration of respondent's testimony.
VI. The evidence produced by respondent amounted to mitigation as a matter of law which absolved respondent.
We find no error warranting disturbance of the Grievance Board's conclusion.
State Bar Grievance Administrator v Lewis, 389 Mich 668; 209 NW2d 203 (1973), controls disposition of most of the assignments of error.
Rule 16.17, which authorizes sanctions for conviction of crimes punishable by imprisonment for one year or more, embraces Federal misdemeanors such as this 26 USCA 7203 which authorizes imprisonment for one year, and accordingly we find no merit in respondent's first assertion of error.
State Bar Rule 15, § 2(5), provides for sanction of conduct resulting in conviction without regard to whether the conviction resulted from trial or plea. As we held in Lewis, supra, there is no merit in this, respondent's second charge of error.
Regarding respondent's third assertion, we are not convinced of unfairness in a procedure allowing for discipline of even a first offender for there has to be some beginning. A prior spotless record and the fact (conceded arguendo) that no one else had been punished for violation of a particular statute are matters to be weighed in assessing the penalty. We do not find the sanction here excessive.
Whether or not the conviction is proof of misconduct as argued in the fourth assertion, Rule 15, *228 § 2(5), as stated above, authorizes sanction for the conviction, so that any error on this point is harmless. See Lewis, supra.
The fifth and sixth charges of error both touch on the evidence of mitigation and the weight assigned it by the hearing panel.
We see no rulings of law with regard to this in the panel's conclusion, but rather the expression of a lack of persuasion by whatever evidence was offered. This is the fact finder's privilege.
From our examination of the whole record, we are not persuaded that the proceedings were erroneous or the penalty undue. But because the Grievance Board has failed to articulate its reasons for increasing the penalty imposed by the hearing panel, we restore the credit for 40 days suspension removed by the Grievance Board, lest we be seen to approve a practice bound to discourage appeals granted as a matter of right. State Bar Grievance Administrator v Gillette, 394 Mich 1; 228 NW2d 220 (1975).
Affirmed as modified. No costs.
WILLIAMS, LEVIN, M.S. COLEMAN, and J.W. FITZGERALD, JJ., concurred with T.G. KAVANAGH, C.J.
SWAINSON, J., and the late Justice T.M. KAVANAGH took no part in the decision of this case.
NOTES
[1] Former State Bar Rule 15, which these rules supplement, was renumbered as Rule 16 on January 12, 1972, 386 Mich lxxiii. The procedural rule formerly numbered § 15.17 is now § 16.17 REPORTER.
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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2018 Term
_______________ FILED
November 8, 2018
No. 17-0309 released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MARK A. MUSICK, in his capacity as
the Monongalia County, West Virginia, Assessor,
Respondent Below, Petitioner,
v.
UNIVERSITY PARK AT EVANSDALE, LLC,
Petitioner Below, Respondent.
____________________________________________________________
Appeal from the Circuit Court of Monongalia County
The Honorable Lawrance S. Miller, Jr., Judge
Civil Action No. 15-CAP-8
AFFIRMED
____________________________________________________________
Submitted: October 9, 2018
Filed: November 8, 2018
Webster J. Arceneaux, III, Esq. James A. Walls, Esq.
Lori D. Counts-Smith, Esq. Joseph V. Schaeffer, Esq.
Lewis, Glasser, Casey & Rollins, PLLC Spilman Thomas & Battle PLLC
Charleston, West Virginia Morgantown, West Virginia
Counsel for the Respondent
Phillip M. Magro, Esq.
Assistant Prosecuting Attorney John A. Mairs, Esq.
Magro & Magro Christopher M. Hunter, Esq.
Morgantown, West Virginia JACKSON KELLY PLLC
Counsel for the Petitioner Charleston, West Virginia
Counsel for Amicus Curiae
West Virginia University Board of
Governors
Patrick Morrisey, Esq.
Attorney General
Thomas M. Johnson, Jr., Esq.
Deputy Solicitor General
Joshua L. Jarrell, Esq.
General Counsel, West Virginia
Department of Commerce
Charleston, West Virginia
Counsel for Amicus Curiae West Virginia
Development Office
JUSTICE WALKER delivered the Opinion of the Court.
JUSTICE ALLEN H. LOUGHRY, II, suspended and therefore not participating.
JUSTICE PAUL T. FARRELL, sitting by temporary assignment.
ii
SYLLABUS BY THE COURT
1. “‘It is a general rule that valuations for taxation purposes fixed by an
assessing officer are presumed to be correct. The burden of showing an assessment to be
erroneous is, of course, upon the taxpayer, and proof of such fact must be clear.’ Syl. pt.
7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691
(1983).” Syllabus Point 1, Western Pocahontas Properties, Ltd. v. County Comm’n of
Wetzel County, 189 W.Va. 322, 431 S.E.2d 661 (1993).
2. “Interpreting a statute or an administrative rule or regulation presents a
purely legal question subject to de novo review.” Syllabus Point 1, Appalachian Power
Co. v. State Tax Dep’t of W. Va., 195 W.Va. 573, 466 S.E.2d 424 (1995).
3. “The county assessor may presume that leaseholds have no value
independent of the freehold estate and proceed to tax all real property to the freeholder at
its true and actual value; the burden of showing that a leasehold has an independent value
is upon the freehold taxpayer and the taxpayer must request in a timely manner the
separate listing of freehold and leasehold interests.” Syllabus Point 2, Great A&P Tea
Co., Inc. v. Davis, 167 W. Va. 53, 278 S.E.2d 352 (1981).
4. “An appellate court should not overrule a previous decision recently
rendered without evidence of changing conditions or serious judicial error in
interpretation sufficient to compel deviation from the basic policy of the doctrine of stare
i
decisis, which is to promote certainty, stability, and uniformity in the law.” Syllabus
Point 2, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974).
ii
WALKER, JUSTICE:
In 2013, West Virginia University (WVU) leased property to University
Park at Evansdale, LLC (UPE) for the development of University Park, a student housing
facility. On the same date, UPE subleased the student housing back to WVU for
purposes of offering it to students for housing. As a result, the residential facilities of
University Park are managed and operated solely by WVU. The sublease from UPE to
WVU did not include certain retail/commercial premises, which UPE may use or
sublease subject to WVU’s approval. We consider for the second time1 the disagreement
between the Assessor of Monongalia County, Mark A. Musick, and UPE regarding a
2015 assessment that valued UPE’s leasehold interest in University Park at more than $9
million. Mr. Musick appeals the circuit court’s decision that based on the evidence
presented at the Board of Equalization and Review (BER), the assessment of UPE’s
leasehold interest for tax year 2015 was $0.
Mr. Musick’s primary contention is that this Court’s opinion in Maplewood
Community, Inc. v. Craig2 was incorrectly decided, and thus the circuit court’s
application of Maplewood’s rule as to valuation of leasehold interests was wrong. He
1
In University Park at Evansdale, LLC v. Musick, 238 W.Va. 106, 792 S.E.2d 605
(2016) (UPE I), we considered the circuit court’s denial of UPE’s appeal from the Board
of Review on the grounds that it lacked jurisdiction because the issue was one of taxation
instead of valuation. We reversed the circuit court and remanded the case for a ruling on
the valuation of the property, which is now before us.
2
216 W.Va. 273, 607 S.E.2d 379 (2004) (per curiam).
1
also contends that even if Maplewood is correct, the case should have been remanded to
the BER for development of additional evidence. We disagree and affirm the circuit
court’s order because Mr. Musick contravened the requirements of both West Virginia
Code of State Rules § 110-1P-3 and applicable case law in assessing UPE’s leasehold
interest.3
I. FACTUAL AND PROCEDURAL BACKGROUND
UPE is the lessor of certain property commonly known as University Park
located on the Evansdale Campus of West Virginia University. This property, owned by
the West Virginia University Board of Governors, contains student housing facilities and
a small amount of retail space.4 WVU leased the property to UPE for the development
and construction of University Park, and UPE simultaneously subleased the student
housing properties back to WVU for purposes of offering it to students for housing. In
doing so, UPE retained the ability to sublease the retail space, which comprises only
approximately three percent of the property.
3
We acknowledge the Amicus Curiae brief filed by the West Virginia University
Board of Governors in support of UPE urging affirmation of the circuit court’s decision
below. We also acknowledge the Amicus Curiae brief filed by the West Virginia
Development Office in support of neither party.
4
UPE I, 238 W. Va. at 108, 792 S.E.2d at 607.
2
As UPE explains, the terms of the December 23, 2013 lease provide that
WVU lease the university land to UPE for an initial term of forty years, giving UPE a
guaranteed option to renew the lease for a fifteen-year term, plus the remaining term of
any outstanding leasehold deed of trust. If the guaranteed option to renew is exercised,
UPE can exercise an additional ten-year renewal option with the consent of WVU.
Pursuant to the lease, UPE’s sole property interest in University Park is a leasehold
interest.
Under the terms of the lease, UPE was required to develop improvements
on the university land at its own expense, subject to approval from WVU. Ninety-seven
percent of the improvements consists of residential premises for use by WVU as student
housing, and the remaining three percent of the improvements consists of commercial
premises providing amenities for WVU students, faculty, and staff. WVU immediately
received title and ownership to the improvements and the personal property as they were
constructed, with the exception of certain limited improvements and personal property
belonging to subtenants of the commercial premises as they were brought onto the
university land, which WVU already owned.
As a result, WVU owns the university land, the improvements, and the
personal property, which together comprise University Park. Use of University Park is
limited to WVU housing for students, faculty, and staff; commercial, retail, and
3
governmental enterprises benefitting WVU’s constituents or the general public subject to
WVU’s written approval; and other expressly-defined permitted uses stipulated to by
WVU under the lease.
UPE represents that under the specific terms of the December 23, 2013
sublease of the residential premises back to WVU, all residential premises at University
Park are managed and operated solely by WVU as on-campus student housing and are
subject to the same WVU policies, procedures, rental terms, and housing requirements
that apply to residential tenants in other on-campus housing. UPE maintains that in
addition, University Park is within the jurisdiction of and monitored by WVU Police.
The sublease does not relate to the commercial premises, which UPE may use or sublease
to permitted tenants for permitted uses subject to WVU’s written approval.
As characterized by the circuit court’s order, under the terms of the lease
and sublease, WVU collects rents from tenants and pays one hundred percent of those
revenues to UPE in consideration for the sublease. Additionally, UPE pays fifty percent
of the net cash back to WVU (or more if revenues exceed the amount stated in the lease)
in consideration for the lease.
In January 2015, Mr. Musick assessed UPE’s leasehold interest in
University Park at $9,035,617 for the tax year 2015. Because it is State property, the fee
4
estate owned by WVU is not taxable.5 UPE challenged the assessment before the BER,
arguing that because the leasehold was neither freely assignable nor a bargain lease, its
leasehold interest was $0.6
At the BER hearing, Mr. Musick admitted that he did not utilize the
methodology promulgated by the Tax Commissioner for assessment of leasehold
interests.7 Mr. Musick also agreed that UPE’s lease did not appear to be freely assignable
because the lease reserves to WVU the right to reject any potential lessor of the retail
space.8 And Mr. Musick appeared to agree that, despite his initial belief, the property
5
See West Virginia Code § 11-3-9(a)(2) (2018) (exempting property belonging
exclusively to State from ad valorem taxes).
6
Article 28.1 of the lease states:
Limitation: Consent Required. [UPE] may not, at any
time, sell, assign, convey, or transfer (each, as applicable, a
“Transfer”) this Lease to another Person without the prior
written consent of Lessor, which consent shall not be
unreasonably withheld, conditioned, or delayed. As used
herein, “Transfer” shall not include any subletting of the
Leased Premises. Notwithstanding the foregoing, but subject
to the provisions of Section 26.6.6, such restriction on
Transfer shall not apply to a Leasehold Mortgagee or its
nominee following the acquisition of the leasehold estate in a
foreclosure sale or by deed in lieu of foreclosure.
7
UPE I, 238 W. Va. at 108-09, 792 S.E.2d at 607-08. As we stated in UPE I,
“UPE contends the method used to reach the assessment in this case was the
methodology to be used for fee interests, and not leaseholds.” Id. at 108 n. 4, 792 S.E.2d
at 607 n. 4.
8
Id. at 108-09, 792 S.E.2d at 607-08.
5
was not a bargain lease.9 Despite this testimony, the BER concluded that because UPE
was asserting that the valuation should be $0 and therefore not taxable, the issue was one
of taxability, not valuation. Finding that issues of taxability must be challenged before
the Tax Commissioner, the BER concluded that it lacked jurisdiction. The BER
encouraged UPE to appeal the issue to the circuit court and it did.10
In considering UPE’s appeal, the circuit court initially found that because
the issue was one of taxation instead of valuation, it lacked jurisdiction and UPE was
required to appeal Mr. Musick’s decision to the Tax Commissioner. This Court
disagreed, and found that UPE’s appeal was a challenge to the valuation of the property,
rather than a challenge to taxation, and remanded the matter to the circuit court for a
ruling on the valuation of the property.11
On remand in the circuit court, Mr. Musick filed a motion to remand the
matter to the BER seeking to develop the record regarding the issue of valuation and the
viability of this Court’s decision in Maplewood. UPE objected to that motion on the
9
Id. As we stated in UPE I, “Respondent was equivocal on this issue, initially
stating that he believed it was a bargain lease, but then agreeing with counsel’s leading
question indicating that respondent concluded it was not a bargain lease.” UPE I, 238 W.
Va. 106, 108 n. 3, 792 S.E.2d at 607 n. 3.
10
UPE I, 238 W. Va. at 108-09, 792 S.E.2d at 607-08.
11
UPE I, 238 W. Va. at 114, 792 S.E.2d at 613.
6
basis that it was not timely filed. During a January 23, 2017 hearing, the circuit court
heard the arguments of the parties regarding valuation and Mr. Musick’s motion to
remand.
On February 28, 2017, the circuit court granted the petition for appeal in
favor of UPE. The circuit court found that remand was not appropriate because the BER
made its decision regarding taxability and jurisdiction after both parties were given a full
opportunity to present evidence regarding valuation. The circuit court noted that a
remand would allow Mr. Musick an opportunity to present evidence that “he perhaps
should have presented before the BER[,]” and found that the remand exception found in
West Virginia Code §11-3-25(c) is not designed to allow litigants an opportunity to
present evidence they failed to present the first time.
The circuit court cited Great A&P Tea Co. v. Davis for the proposition that
“a separate leasehold is taxable if it has separate and independent value from the free
hold.”12 Then the circuit court acknowledged the analysis of the “separate value of a
leasehold” we articulated in Maplewood:
. . . the separate value of a leasehold, if any, is based on
whether the leasehold is economically advantageous to the
lessee, that is a so-called bargain lease, and is freely
12
167 W. Va. 53, 55, 278 S.E.2d, 352, 355 (1981).
7
assignable so that the lessee may realize the benefit of such
bargain in the market place.[13]
In reviewing the evidence presented before the BER, the circuit court found
that Mark Nesselroad, an attorney who had an ownership interest in UPE and was
involved in creating the leasehold with WVU, testified that the lease held by UPE was
not freely assignable. The circuit court also found that although Mr. Musick initially
contended that the lease was freely assignable and a bargain lease, he later agreed that the
lease could not be assigned without prior consent and conceded that the lease was not a
bargain lease. So, the circuit court concluded that based upon the evidence presented at
the BER hearing, Mr. Musick’s 2015 assessment was erroneous, finding, “if a leasehold
interest is not freely assignable and is not a bargain lease, it has no value independent of
the freehold interest.” The circuit court ruled that UPE’s assessment for the 2015 tax
year was $0. Mr. Musick now appeals the circuit court’s order.
II. STANDARD OF REVIEW
“‘It is a general rule that valuations for taxation purposes fixed by an
assessing officer are presumed to be correct. The burden of showing an assessment to be
erroneous is, of course, upon the taxpayer, and proof of such fact must be clear.’ Syl. pt.
7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va. 53, 303 S.E.2d 691
13
216 W.Va. at 286, 607 S.E.2d at 392.
8
(1983).”14 “Upon receiving an adverse determination before the county commission, a
taxpayer has a statutory right to judicial review before the circuit court.” W. Va. Code §
11-3-25 (1967).15
Judicial review of a decision of a board of equalization and review
regarding a challenged tax-assessment valuation is limited to roughly the same scope
permitted under the West Virginia Administrative Procedures Act.16 As we have
14
Syl. Pt. 1, Western Pocahontas Properties, Ltd. v. County Comm’n of Wetzel
County, 189 W.Va. 322, 431 S.E.2d 661 (1993).
15
In re Tax Assessment Against Am. Bituminous Power Partners, L.P., 208 W.Va.
250, 255, 539 S.E.2d 757, 762 (2000).
16
W. Va. Code §§ 29A-1-1 through 29A-7-4. West Virginia Code § 29A-5-4(g)
provides as follows:
The court may affirm the order or decision of the
agency or remand the case for further proceedings. It shall
reverse, vacate or modify the order or decision of the agency
if the substantial rights of the petitioner or petitioners have
been prejudiced because of the administrative findings,
inferences, conclusions, decision or order are:
(1) In violation of constitutional or statutory
provisions; or
(2) In excess of the statutory authority or jurisdiction
of the agency; or
(3) Made upon unlawful procedures; or
(4) Affected by other error of law; or
(5) Clearly wrong in view of the reliable, probative
and substantial evidence on the whole record; or
9
explained, review before the circuit court is confined to determining whether the
challenged property valuation is supported by substantial evidence, or otherwise in
contravention of any regulation, statute, or constitutional provision.17 Therefore, “our
review of a circuit court’s ruling in proceedings under § 11-3-25 is de novo.”18 And in
ascertaining whether Mr. Musick’s assessment is in conformity with the regulation
applicable to valuing leasehold interests,19 this Court has held that “interpreting a statute
or an administrative rule or regulation presents a purely legal question subject to de novo
review.”20 With these standards in mind, we consider the parties’ arguments.
III. ANALYSIS
A. Assessment of Leasehold Interests
As to the assessment of leaseholds in general, West Virginia Code § 11-5-4
provides:
[I]n cases of the assessment of leasehold estates a sum
equal to the valuations placed upon such leasehold estates
(6) Arbitrary or capricious or characterized by abuse of
discretion or clearly unwarranted exercise of
discretion.
17
In re Tax Assessment Against Am. Bituminous Power Partners, L.P. at 254, 539
S.E.2d at 761.
18
Id. at 255, 539 S.E.2d at 762.
19
W. Va. Code St. R. § 110-1P-3.
20
Syl. Pt. 1, Appalachian Power Co. v. State Tax Dep’t of W. Va., 195 W.Va. 573,
466 S.E.2d 424 (1995).
10
shall be deducted from the total value of the estate, to the end
that the valuation of such leasehold estate and the remainder
shall aggregate the true and actual value of the estate.
Considering this statutory provision, this Court has held that a leasehold interest can be
taxable under certain circumstances. In Great A&P, we held that West Virginia Code §
11-5-4 provided statutory authority “that a separate leasehold is taxable if it has a
separate and independent value from the freehold.”21 We explained that the burden of
proof rested with the freehold taxpayer to make such a showing:
[t]he county assessor may presume that leaseholds have no
value independent of the freehold estate and proceed to tax all
real property to the freeholder at its true and actual value; the
burden of showing that a leasehold has an independent value
is upon the freehold taxpayer and the taxpayer must request in
a timely manner the separate listing of freehold and leasehold
interests.[22]
In so holding, this Court generally distinguished short-term leases from those of longer
duration:
[w]here leaseholds are of short duration the rent paid will
usually reflect income to the owner of the freehold
commensurate with the fair market value of the real property.
Under ordinary conditions the freehold estate will not be
reduced in value by virtue of the leasehold, nor will the
leasehold itself have any ascertainable market value. Since
this latter condition is the normal circumstance in West
Virginia, when assessors assess freeholds subject to
leaseholds the property is usually fully taxed.
21
167 W. Va. at 55, 278 S.E.2d at 355.
22
Id. at Syl. Pt. 2.
11
However, there are circumstances involving long-term
leaseholds where changed business conditions combined with
persistent inflation have made the leaseholds themselves
marketable assets of value. Under such circumstances, since
the freehold estate is charged with the leasehold for a term of
years, the freehold’s fair market value is reduced in exact
proportion to the value of the leasehold and, therefore, if the
real property subject to the leasehold is to be taxed at its “true
and actual value,” assessors must take into consideration the
reduced value of the freehold attendant upon the making of a
very bad contract.[23]
Later, in Maplewood, we again addressed whether a county assessor could
tax a leasehold interest.24 In concluding that an assessor could assess a leasehold interest
if it has an independent value, this Court stated that a component of this process is
addressing the marketability of the lease:
[s]ubsequent to the Davis case, the state tax department
developed an eight-step process for valuing leasehold
interests in real estate that is referred to as the “Leasehold
Appraisal Policy.” Pursuant to that process, steps one and
two require an initial determination of whether a leasehold
estate was created and secondly whether the lessee has a
marketable right to assign or transfer the lease. The
remaining six steps in the process are directed at arriving at a
value for the leasehold estate. Critical to applying this policy,
however, is appreciation of the fact that “the separate value of
a leasehold, if any, is based on whether the leasehold is
economically advantageous to the lessee, that is a so-called
bargain lease, and is freely assignable so that the lessee may
realize the benefit of such bargain in the market place.”[25]
23
Id. at 56, 278 S.E.2d at 355.
24
216 W. Va. at 286, 607 S.E.2d at 392.
25
Maplewood, 216 W. Va. at 286, 607 S.E.2d at 392 (quoting “Valuation of
Leasehold Interests,” State Tax Commissioner’s Annual In-Service Training Seminar,
12
In UPE I, we examined our opinion in Maplewood for the limited purpose
of assessing whether UPE had presented a challenge to taxability or valuation. We
observed:
Although this Court has not issued a syllabus point
prescribing how leaseholds must be valued, we noted in
Maplewood that the Tax Commissioner had developed an
eight-step process for valuing leaseholds which requires at the
outset “an initial determination . . . whether the lessee has a
marketable right to assign or transfer the lease.” 216 W.Va.
at 286, 607 S.E.2d at 392.[26]
In footnote eight of UPE I, we acknowledged an issue relating to the Leasehold Appraisal
Policy, but decided it did not need to be addressed:
The Maplewood Court, ostensibly quoting this policy,
explained further that “‘the separate value of a leasehold, if
any, is based on whether the leasehold is economically
advantageous to the lessee, that is a so-called bargain lease,
and is freely assignable so that the lessee may realize the
benefit of such bargain in the market place.’” 216 W.Va. at
286, 607 S.E.2d at 392 (quoting “Valuation of Leasehold
Interests, State Tax Commissioner’s Annual In–Service
Training Seminar for Assessors, June 14, 1989.”). The circuit
court maintains this language is not actually contained in the
referenced seminar materials and was “mis-cited” in the
opinion. Because this issue is not relevant to our resolution of
the narrow issue presently before us, we decline to examine it
further at this juncture.[27]
June 14, 1989). Because this Court referred to this 1989 training seminar manual as the
“Leasehold Appraisal Policy” in both Maplewood and UPE I, we will continue to use this
term for clarity’s sake.
26
UPE I, 238 W. Va. at 110, 792 S.E.2d at 609.
27
UPE I, 238 W. Va. at 110 n.8, 792 S.E.2d at 609 n. 8.
13
In the present appeal, Mr. Musick argues that Maplewood was incorrectly
decided, and, as a result, the circuit court erred in relying upon it. Mr. Musick contends
that Maplewood incorrectly cited to the Valuation of Leasehold Interest Seminar Training
Manual (otherwise referred to in Maplewood as the Leasehold Appraisal Policy) in
holding that the separate value of a leasehold is based on whether leasehold is a bargain
lease and freely assignable, as those terms are not contained in the Leasehold Appraisal
Policy. Rather, the Leasehold Appraisal Policy instead refers only to marketability.
According to Mr. Musick, while the Leasehold Appraisal Policy that was
issued by the Tax Commissioner contains thirteen numbered pages, in Maplewood, this
Court mistakenly considered a fourteenth page which was not a part of the Leasehold
Appraisal Policy. Mr. Musick’s counsel asserts that the subject fourteenth page was
attached to the Leasehold Appraisal Policy in that case and is a “portion of a tax
department ruling given in response to inquiries regarding the taxation of the leasehold
estate in real property held by a trust.” Mr. Musick asserts that it is not clear if this
fourteenth page was a ruling by the Tax Commissioner, or if it was a non-binding
technical assistance advisory under West Virginia Code §11-10-5r or some other private
letter from the Tax Commissioner.
14
Mr. Musick complains that in Maplewood this Court cited language from
the subject fourteenth page and incorrectly attributed the language to the Leasehold
Appraisal Policy. Mr. Musick asserts that one can only conclude that this Court was
under the mistaken impression that the fourteenth page was from the State Tax
Commissioner’s Leasehold Appraisal Policy. Mr. Musick argues that because this
fourteenth page is not a part of the official Leasehold Appraisal Policy, there are a
number of outstanding questions that should be discussed regarding this issue on the
record before the BER.
This Court has held that “[a]n appellate court should not overrule a
previous decision recently rendered without evidence of changing conditions or serious
judicial error in interpretation sufficient to compel deviation from the basic policy of the
doctrine of stare decisis, which is to promote certainty, stability, and uniformity in the
law.”28 Similarly, this Court has stated:
No prior decision is to be reversed without good and
sufficient cause; yet the rule is not in any sense ironclad, and
the future and permanent good to the public is to be
considered, rather than any particular case or interest. . . .
Precedent should not have an overwhelming or despotic
influence in shaping legal decisions. No elementary or well-
settled principle of law can be violated by any decision or any
length of time. The benefit to the public in the future is of
greater moment than any incorrect decision in the past.
Where vital and important public and private rights are
concerned, and the decisions regarding them are to have a
28
Syl. Pt. 2, Dailey v. Bechtel Corp., 157 W.Va. 1023, 207 S.E.2d 169 (1974).
15
direct and permanent influence in all future time, it becomes
the duty as well as the right of the court to consider them
carefully, and to allow no previous error to continue, if it can
be corrected. The reason that the rule of stare decisis was
promulgated was on the ground of public policy, and it would
be an egregious mistake to allow more harm than good to
accrue from it. Much, not only of legislation, but of judicial
decision, is based upon the broad ground of public policy, and
this latter must not be lost sight of.[29]
Cognizant of this standard, we find no good and sufficient cause to depart from our ruling
in Maplewood.
Even if this Court in Maplewood mistakenly attributed the language
contained in a Tax Department ruling as being part of the Leasehold Appraisal Policy,
this oversight has no bearing on the veracity of the decision. Whether the language came
directly from the Leasehold Appraisal Policy or a ruling of the Tax Commissioner, it is
clear in Maplewood that this Court relied upon that language to explain what constitutes
separate and independent value for the assessment of leasehold interests.30 The State Tax
29
Adkins v. St. Francis Hosp., 149 W.Va. 705, 719, 143 S.E.2d 154, 163 (1965)
(internal citation and quotation omitted).
30
While Musick asserts that the Leasehold Appraisal Policy does not expressly
contain the terms freely assignable and bargain lease, it is evident that the Leasehold
Appraisal Policy contemplated these factors. On page 5, it states:
Before one proceeds with the valuation of leasehold
interests there are several preliminary steps which should be
covered.
First, the lease contract should be examined to see
whether an estate for years was created and are the
marketable rights transferable.
16
Commissioner issued its Leasehold Appraisal Policy following Great A&P, and also
adopted West Virginia Code of State Rules §110-1P-3.3, which sets forth the procedures
for the valuation of leasehold interests.31 UPE argues that “the common thread” between
Thus, it is understandable why the Tax Commissioner’s ruling, which cited the
Leasehold Appraisal Policy, utilized the terms bargain lease and freely assignable in
ascertaining the separate value of a leasehold.
31
West Virginia Code of State Rules § 110-1P-3 sets forth how assessors are to
value leaseholds in industrial and commercial real properties. It provides:
3.3.1. General.
3.3.1.1. A leasehold in real property is taxable for ad valorem
property tax purposes, if it has a separate and independent
value from the freehold. Where leaseholds are of short
duration, the rent paid usually reflects income to the owner of
the freehold commensurate with the fair market value of the
real property. Under ordinary conditions, the leasehold itself
will not have any ascertainable market value. Consequently,
in normal circumstances, determine the appraised value of the
freehold subject to a leasehold in the same manner that the
appraised value of similar commercial or industrial real
property not subject to a leasehold is determined.
3.3.1.2. However, under circumstances involving long-term
leaseholds where the leasehold is itself a marketable asset of
value, the leasehold shall be valued as set forth in this rule.
The leasehold interest being a chattel real shall be listed and
taxed as Class III or Class IV tangible personal property
depending on the location of the freehold.
3.3.1.3. The appraised value of a freehold estate is the
appraised value of the freehold determined without regard to
the leasehold, minus the appraised value of the leasehold.
3.1.4. In valuing a leasehold:
17
these authorities is a focus on whether or not the leasehold is marketable. UPE asserts
that Maplewood directs that the determination of whether a leasehold is marketable is
“whether the leasehold is economically advantageous to the lessee, that is a so-called
3.3.1.4.a. The total value of the property must be estimated
and then allocated among the various interests in the property
under the terms of the lease; and
3.3.1.4.b. The appraiser shall determine whether or not value
has been created as a result of a favorable lease, in addition
to the total value of the property.
3.3.1.5. In deciding whether a leasehold has value, and if so,
what value to assign, the appraiser shall:
3.3.1.5.a. Estimate the value of the entire property, as though
not encumbered by the lease; then
3.3.1.5.b. Estimate the value of one (1) of the partial interests,
either the leasehold estate of the lessee or the leased fee of the
lessor.
3.3.1.5.c. The appraiser shall deduct the value of the partial
interest arrived at from the value of the entire property to
obtain the value of the other partial interest.
3.3.1.6. To value a leasehold interest, the appraiser shall
consider the present (discounted) worth of the rent saving,
when the contractual rent at the time of appraisal is less than
the current market rent. If the land is improved by the lessee,
then the value of the leasehold interest shall be the value of
the saving in ground rent, if any, in addition to the value (not
cost) of the improvements of the lessee. If the contractual rent
is greater than the currently established market rent, the
appraiser shall subtract present worth of the difference from
the value of the improvement.
W. Va. Code St. R. § 110-1P-3 (Emphasis added). This regulation had an effective date
of July 1, 2013.
18
bargain lease, and is freely assignable so that the lessee may realize the benefit of such
bargain in the market place.”32 UPE contends that as a result, Maplewood simply
provides a framework for the definition of marketability, as used in Great A&P, West
Virginia Code of State Rules §110-1P-3.3, and the Leasehold Appraisal Policy. We
agree.33
32
216 W. Va. at 286, 607 S.E.2d at 392.
33
Mr. Musick asserts that pursuant to § 110-1P-3.3.1.2, this Court should
determine that UPE has a separate and independent value and a marketable interest in the
WVU lease because UPE was able to borrow money based on the fact that UPE had
obtained the lease from WVU. He also maintains that UPE had a possessory interest in
the property during the construction phase, as it controlled every aspect of the planning
and construction of the project and received a developer’s fee in exchange. Additionally,
he asserts that liability and casualty insurance are the responsibility of UPE, and under
West Virginia Code § 33-6-3, the purchaser of insurance must have an insurable interest
in the property insured.
In arguing this, Mr. Musick additionally appears to assert that Maplewood cannot
be reconciled with the regulations in light of changes made to West Virginia Code of
State Rules § 110-1P-3 in 2013 because the former regulation promulgated in 1991 was
“not as detailed on valuation of leasehold interests as the new regulation.” We find this
argument unavailing. While the amendment made to West Virginia Code of State Rules
§ 110-1P-3 in 2013 did in fact add more detail with respect to how a leasehold shall be
valued, the initial threshold inquiry of determining whether “the leasehold is itself a
marketable asset of value” remains unchanged from the prior version. See W. Va. Code
St. R. § 110-1P-3.3.2.3 (“However, under circumstances involving long-term leaseholds,
where the leasehold is itself a marketable asset of value, the leasehold shall be valued as
set forth in this rule.”).
UPE argues—and we agree—that Mr. Musick mistakenly conflates value with the
concept of separate and independent value in assessing marketability. Under Great A&P,
a leasehold interest has “separate and independent value only where it has itself become a
marketable asset of value.” 167 W.Va. at 56, 278 S.E.2d at 355. (Emphasis added).
Similarly, West Virginia Code of State Rules §110-1P-3.3.1.6 states that “[t]o value a
leasehold interest, the appraiser shall consider the present (discounted) worth of the rent
saving, when the contractual rent at the time of appraisal is less than the current market
19
Because we conclude that Maplewood is not in conflict with the Tax
Commissioner’s regulations, we uphold the Maplewood framework, which holds that
“the separate value of a leasehold, if any, is based on whether the leasehold is
economically advantageous to the lessee, that is a so-called bargain lease, and is freely
assignable so that the lessee may realize the benefit of such bargain in the market
place.”34 So, the circuit court did not err in applying the Maplewood standard in
determining that UPE’s leasehold interest did not have a separate and independent value.
B. Mr. Musick’s Motion for Remand
Having set forth the proper standard for assessing leasehold interests, we
next consider the issue of whether the circuit court should have remanded the case to the
BER under West Virginia Code §11-3-25(c).35 In UPE I, this Court found that the circuit
rent.” The question is whether the lessee derives revenues from the leasehold interest
itself and this can only occur where the lessee pays below-market rent and can alienate its
leasehold interest to take advantage of the higher rent in the market place. As a result, it
is irrelevant whether it secured bank financing, or would receive insurance proceeds. In
order for a leasehold interest to have assessable value, the lessee must have rent savings
that can be exploited in the marketplace and UPE did not.
34
Maplewood, 216 W.Va. at 286, 607 S.E.2d at 392.
35
West Virginia Code § 11-3-25(c) (2018) provides, in pertinent part:
If there was an appearance by or on behalf of the
taxpayer before either board, or if actual notice certified by
the board, was given to the taxpayer, the appeal, when
allowed by the court or judge, in vacation, shall be
determined by the court from the record as so certified:
20
court was bound by the record created before the BER but noted in footnote 16 that West
Virginia Code § 11-3-25(c) states that the circuit court may remand to the BER in order
to more fully develop the record.36 Here, Mr. Musick asserts that remand to the BER was
Provided, That in cases where the court determines that the
record made before the board is inadequate as a result of the
parties having had insufficient time to present evidence at the
hearing before the board to make a proper record, as a result
of the parties having received insufficient notice of changes in
the assessed value of the property and the reason or reasons
for the changes to make a proper record at the hearing before
the board, as a result of irregularities in the procedures
followed at the hearing before the board, or for any other
reason not involving the negligence of the party alleging that
the record is inadequate, the court may remand the appeal
back to the county commission of the county in which the
property is located, even after the county commission has
adjourned sine die as a Board of Equalization and Review or
a Board of Assessment Appeals for the tax year in which the
appeal arose, for the purpose of developing an adequate
record upon which the appeal can be decided.
36
In footnote 16 of UPE I, we stated:
As an appeal from the BER, the circuit court’s review
on appeal (and therefore on remand) is limited to the record
created before the BER and the circuit court operates under
the same standard of review as that for an administrative
appeal. See W. Va. Code § 11-3-25(c) (“If there was an
appearance by or on behalf of the taxpayer before either
board, or if actual notice, certified by the board, was given to
the taxpayer, the appeal, when allowed by the court or judge,
in vacation, shall be determined by the court from the record
as so certified [.]”); Am. Bituminous Power Partners, L.P.,
208 W.Va. at 255, 539 S.E.2d at 762 (“[J]udicial review of a
decision of a board of equalization and review regarding a
challenged tax-assessment valuation is limited to roughly the
same scope permitted under the West Virginia Administrative
Procedures Act[.]”) But see W. Va. Code § 11-3-25(c)
21
proper for various reasons: (1) to argue the proper standard to determine valuation;37 (2)
to develop testimony regarding the issue of valuation because the BER, having found that
the issue was one of taxability, only made a determination regarding jurisdiction; and (3)
to develop further relevant evidence of valuation because, although Commissioner Bloom
(outlining circumstances under which circuit court may
remand to BER for development of the record).
UPE I, 238 W. Va. at 114 n. 16, 792 S.E.2d at 613 n. 16.
37
As to this first argument, Musick contends that the circuit court should have
remanded this case back to the BER so that the parties could develop a proper record to
determine the viability of the Maplewood decision, a per curiam decision, as the record is
incomplete as to the proper standard to determine valuation. He maintains that the BER
should have been able to examine and determine if another legal standard, such as those
found in the Tax Commissioner’s regulations, West Virginia Code of State Rules §110-
1P-3.3, is more appropriate. To the extent that the parties have had opportunity to brief
the issue before the circuit court and this Court, and we have determined that the circuit
court did not err in applying the Maplewood framework, we need not address this issue.
And as this Court has made clear:
Per curiam opinions have precedential value as an
application of settled principles of law to facts necessarily
differing from those at issue in signed opinions. The value of
a per curiam opinion arises in part from the guidance such
decisions can provide to the lower courts regarding the proper
application of the syllabus points of law relied upon to reach
decisions in those cases.
Syl. Pt. 3, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001) overruled in part by
Syl. Pt. 1, State v. McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014). “Aim[ing] to
extinguish any lingering doubts regarding the precedential value of [per curiam]
opinions,” we held in Walker that “we strongly disagree” with the suggestion that
anything beyond the syllabus in a per curiam opinion was merely obiter dicta, because
adhering to that view “would be discarding many valuable cases in which the presence of
unique facts has required this Court to determine whether settled legal precepts applied to
those distinct factual scenarios.” Walker, 210 W.Va. at 495, 558 S.E.2d at 295. As
discussed below, Musick had ample opportunity to litigate the issue of his valuation
methodology before the BER.
22
attempted to ask a question regarding UPE’s 2014 earnings on the subject property,
UPE’s counsel objected to and stopped that area of inquiry.38
In support of his second argument for remand, Mr. Musick contends that
because the BER’s decision clearly stated that it could not rule on the valuation matter
because it was an issue of taxability, and therefore because this Court had no decision to
review on the issue of value in UPE I, the circuit court should have likewise found that it
had no decision to review from the BER and remanded the matter in order for the parties
to develop a record on valuation of the UPE’s leasehold interest. Under West Virginia
Code § 11-3-25, the circuit court’s decision to remand is discretionary. The statute
clearly states that remand is proper only if the record developed before the BER is
inadequate, and only if the inadequacy is not due to the negligence of the party asserting
it.39
38
This is the extent of Mr. Musick’s argument in this regard. This Court has made
it clear that “‘[a] skeletal ‘argument,’ really nothing more than an assertion, does not
preserve a claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.’” State,
Dept. of Health v. Robert Morris N., 195 W.Va. 759, 765, 466 S.E.2d 827, 833 (1995)
(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991)). And “[a]lthough we
liberally construe briefs in determining issues presented for review, issues which are not
raised, and those mentioned only in passing but are not supported with pertinent
authority, are not considered on appeal.” State v. LaRock, 196 W.Va. 294, 302, 470
S.E.2d 613, 621 (1996) (citation omitted). Even if the Court were to consider this
argument, to the extent that Mr. Musick chose to assess UPE’s leasehold interest based
on the cost of construction-in-place, the argument that revenues could have been
probative is misplaced.
39
See W. Va. Code § 11-3-25.
23
In rejecting Mr. Musick’s argument that the case should be remanded to the
BER, the circuit court concluded:
[T]he evidence presented by UPE resolves the issue currently
before the Court, and if more evidence is necessary to resolve
this issue, then any failure to present evidence capable of
rebutting UPE’s evidence is attributable to the Assessor’s
negligence in failing to present it to the BER.
The Court notes that the BER made its ruling regarding
taxability and jurisdiction after both parties had a full
opportunity to present evidence and be heard on the issue.
Assessor Musick was given the opportunity to present
evidence, (See Hr’g Tr. 34, Feb. 17, 2015 (Commissioner
Callen explaining that “the assessor’s office may have an
opportunity to present once Mr. Walls is completed”);
(Commissioner Bloom asking Assessor Musick “[is] there
anything that you would like, from the assessor’s office, to
explain” and Assessor Musick responding, “No.”).) Assessor
Musick was given the opportunity to present whatever
evidence he wanted in support of his assessment of UPE’s
leasehold interest. A remand now, in this Court’s opinion,
would allow nothing more than for Respondent Musick to
present evidence he perhaps should have presented before the
BER. The remand exception contained in West Virginia Code
§ 11-3-25(c) is designed to correct inadequacies in the record;
it is not meant to allow a second bite at the apple.
In reviewing the record before the BER, we conclude that the circuit court
did not abuse its discretion. The record is clear that the BER made its ruling regarding
taxability and jurisdiction only after both parties had a full opportunity to present
evidence and be heard on the issue.
24
At the beginning of the hearing before the BER, UPE’s counsel, Mr. Walls,
specifically argued that UPE had “an issue with the way the assessment was calculated”
and that it believed “that the assessed value at U[niversity] Park should be zero. . . .”
During the course of the entire hearing, UPE went on to present evidence attempting to
show that Mr. Musick’s valuation methodology was erroneous. Mr. Walls represented to
the BER that “[t]here’s no dispute that the only legal issues we’re here to talk about, and
factual issues stemming from those legal issues, are whether this is a bargain lease and
whether it’s freely assignable.” At the conclusion of all of the evidence, the BER
announced that the issue was one of taxability, and thus, outside of its jurisdiction. In
arguing whether the issue was one of taxability or valuation, the following exchange took
place:
MR. CALLEN40: That’s -- you know, that’s fine. I mean,
it says very clearly that I’m not to -- I’m not -- we’re not
allowed to decide taxability.
MR. WALLS: And I’m not asking you to. But I
understand.
MR. CALLEN: But you are.
MR. WALLS: I understand.
MR. CALLEN: But you are.
You said that -- you said, on three different
occasions -- because I wrote it down -- “this assessment is
40
County Commissioners Eldon Callen, Thomas Bloom and Edward Hawkins
presided as the BER in this matter.
25
improper.” Improper means it is not taxable. So I took that
you are arguing taxability.
MR. WALLS: If you go back to the very beginning, I
made it clear. The first words out of my mouth was this is
about valuation.
MR. CALLEN: Right. But I don’t pick and choose. I
listen to everything, and then make my decision.
MR. WALLS: Okay. Well, we’d ask you to set it to
zero, then.
MR. CALLEN: What’s that?
MR. WALLS: The assessed value.
MR. CALLEN: No, no. You did not prove by clear and
convincing evidence that -- as to what the true value is and
that the value was wrong.
MR. WALLS: Okay. Could I have that part -- could the
commission make its decision?
MR. BLOOM: Okay. Clarification.
We voted on it.
MR. CALLEN: Right.
MR. BLOOM: It’s -- the decision is done.
MR. WALLS: Okay. Thank you.
Based upon the testimony in the record, UPE asserts that the BER made a
decision on valuation subject to review and we agree. However, even if the BER had not
26
made a decision, the record was adequate for purposes of appellate review.41 During the
course of the BER proceedings, Mr. Musick was given a full and fair opportunity to
present evidence in support of his assessment of UPE’s leasehold interest. As UPE
correctly contends, neither UPE nor Mr. Musick knew at the outset of the hearing that the
BER might raise a jurisdictional issue, and both parties were therefore on notice to
present their evidence and create a record. Accordingly, we conclude that the circuit
court did not err in holding that Mr. Musick had an adequate opportunity to present
evidence, thus foreclosing any right to remand.
C. Burden of Proof
Because valuations fixed by an assessing officer are presumed to be correct,
the burden of showing an assessment to be erroneous is upon the taxpayer.42 Mr. Musick
asserts that if this Court determines that Maplewood was properly decided, UPE did not
meet its burden of proving (1) that the WVU lease is not a bargain lease, and (2) it is not
freely assignable.
41
Tug Valley Recovery Center, Inc. v. Mingo County Comm’n, 164 W. Va. 94,
111, 261 S.E.2d 165, 175 (1979) (stating absence of formal decision by BER will not
preclude an appeal “[s]o long as all documents utilized by the Board of Equalization and
Review were placed before the circuit courts and so long as all other documents
pertaining to the appeal were in the file.”).
42
See Syl. Pt. 1, Western Pocahontas Properties, Ltd., 189 W.Va. 322, 431 S.E.2d
661 (quoting Syl. Pt. 7, In re Tax Assessments Against Pocahontas Land Co., 172 W.Va.
53, 303 S.E.2d 691 (1983)).
27
With regard to the first Maplewood factor—whether the lease is a bargain
lease—Mr. Musick argues that the WVU lease is economically advantageous to UPE.
Mr. Musick contends that UPE is a for-profit entity that will derive considerable revenues
from the WVU lease and it is certain to be able to pay off the mortgage and profit from
this WVU lease. On this basis, it urges the Court to determine that Respondent UPE has
not met its burden of proof to show by clear and convincing evidence that this WVU
lease is not a bargain lease.
As to the second Maplewood factor—whether the lease is freely
assignable—Mr. Musick contends that this Court should find that that the WVU lease is
freely assignable because it contains the language, “consent shall not be unreasonably
withheld, conditioned, or delayed.” Thus, he maintains that this term allows assignments
absent objective and valid considerations.43 Further, Mr. Musick argues that WVU has
already consented to an assignment in the event of a foreclosure or default on the part of
UPE. Because of this, he contends this Court should find that WVU has already
consented to an assignment in the WVU lease, and therefore the lease is freely
assignable.
To the contrary, UPE asserts that for its leasehold interest to have
assessable value, both of the Maplewood factors must be present, but for UPE to meet its
43
See e.g., Van Sloun v. Agans Bros., Inc., 778 N.W. 2d 174, 280 (Iowa 2010).
28
burden of proof in challenging the valuation, it must show only that one of the two
factors is absent. When we review the record before the BER, it is evident that UPE met
its burden of proof.
First, in his testimony before the BER, Mr. Musick conceded that neither he
nor anyone in his office used the West Virginia State Tax Commissioner’s methodology
for the valuation of leasehold interests when he assessed Petitioner’s leasehold interest in
University Park.
MR. WALLS: Did you or anybody else in your office
use the formula that the state tax commissioner directed
assessors to use when assessing leasehold interests in West
Virginia when you assessed the leasehold value of the lease at
University Park?
MR. MUSICK: No.
Rather, Mr. Musick testified that his office assessed UPE’s leasehold interest by taking
sixty percent of the cost of the construction-in-place as of the July 1, 2014, assessment
date. Without citing any specific legal authority supporting the use of this standard, when
asked by UPE’s counsel how he calculated the assessed value of the leasehold interest, he
stated:
Based on information that Mr. Nesselroad presented my
commercial appraiser, Chris Michael, when he asked what’s
on -- as of July 1 of 2014, what was the completion --
percentage complete of the construction. And I think that was
-- 20.6 percent is what was submitted.
29
And they took that of the total value that was
submitted of what the project would be to get it appraised at
60 percent of that to get the assessed value.
***
Based on the partial completed construction of the
personal property, yes, that’s what we do [to assess the value
of a leasehold interest].
Later, when Mr. Bloom again asked Mr. Musick how he assessed the
leasehold interest, Mr. Musick affirmed his reliance upon a percentage of the project cost:
MR. MUSICK: Based on the information that was
presented for percentage of –
MR. BLOOM: Okay.
MR. MUSICK: -- completion of the project as of
July 1 of 2014.
MR. BLOOM: Okay.
MR. MUSICK: Okay?
Then with that – with the total cost of the
project, that, then, was taken on to get 60 percent of that to
get our assessed value.
So you had your percentage times the total cost
of the project to get your appraised, then 60 percent of that to
get your assessed value.
MR. BLOOM: Okay.
***
MR. MUSICK: And that was just completion of
the project at 20.6 percent as of July 1 of 2014.
30
Based on Mr. Musick’s admission that he failed to use the Tax
Commissioner’s methodology for assessing leasehold interests, we conclude that his
assessment was improper. And, even when UPE’s counsel questioned Mr. Musick about
the applicability of the Maplewood factors and whether they had been satisfied, Mr.
Musick conceded that UPE’s leasehold interest was not freely assignable. In reviewing
the evidence presented before the BER, the circuit court summarized the testimony as
follows:
[B]ased on the framework contained in Maplewood, supra,
this Court finds that Mr. Nesselroad testified at the February
17, 2015 hearing before the BER that the lease held by UPE
was not freely assignable. (Hr’g Tr. 10-12, Feb. 17, 2015.)
Assessor Musick also testified. Assessor Musick initially
contended that the leasehold interest was both freely
assignable and a bargain lease. (Id. at 26.) Later, however,
Assessor Musick agreed that section 28.1 of the Lease and
Development Agreement imposed a condition – namely that
it II could not be assigned without the prior written consent of
the lessor – that rendered the lease not freely assignable. (Id.
at 31.) At the end of his testimony, attorney Walls asked
Assessor Musick the following: “So I assume you concluded
that the lease was not a bargain lease.” Assessor Musick
responded, “Right” (Id.)
Pursuant to the Maplewood framework, this Court
concludes that based on the evidence presented on February
17, 2015, UPE proved by clear and convincing evidence
before the BER that the 2015 assessment was erroneous. If a
leasehold interest is not freely assignable and is not a bargain
lease, it has no value independent of the freehold interest. See
Maplewood, 216 W. Va. at 286, 607 S.E.2d at 392. Because
Respondent Musick agreed that the lease was neither a
bargain lease nor freely assignable (Hr’g Tr., Feb. 17, 2015,
at 30-31), and because he agreed that he was not entitled to
31
tax the property if West Virginia University said the lease
was not freely assignable (Hr’g Tr., Feb. 17, 2015, at 27-28),
this Court finds that Petitioner showed by clear and
convincing evidence that the 2015 valuation of the leasehold
interest should be corrected to $0.
While we agree with the circuit court that Mr. Musick ultimately agreed
with UPE’s counsel’s leading question that the lease “was not a bargain lease,” we
observed in UPE I that “[Mr. Musick] was equivocal on this issue, initially stating that he
believed it was a bargain lease, but then agreeing with counsel’s leading question
indicating that respondent concluded it was not a bargain lease.”44 The testimony was as
follows:
[MR. WALLS]: Okay. Did you do anything to determine
if the UPE lease is a bargain lease?
[MR. MUSICK]: We looked at them collecting the rent,
feeling that there was a value there coming in as an
independent value.
[MR. WALLS]: Okay. So I assume you concluded that
the lease was not a bargain lease.
[MR. MUSICK]: Right.
Giving Mr. Musick the benefit of the doubt on this issue, we are not entirely inclined to
agree with the circuit court’s finding that UPE proved this particular factor with clear and
convincing evidence. However, in the final analysis, this issue is irrelevant as there is no
question Mr. Musick conceded that the lease was not freely assignable:
44
UPE I, 238 W. Va. 106, 108 n. 3, 792 S.E.2d at 607 n. 3.
32
BY MR. WALLS: Let me see if I read this correctly, sir.
Section 28.1 of the lease and development agreement between
UPE and WVU states as follows, quote, Lessee may not at
any time sell, assign, convey, or transfer, paren, each, comma,
as applicable, comma, a transfer, closed quote, this lease to
another person without the prior written consent of lessor
which consent shall not be unreasonably withheld,
conditioned, or delayed, period.
Did I read that correctly?
A: That time you did.
Q: Okay. And in this context, you understand that the
term “lessee” means UPE; right?
A: Right.
Q: And you understand that the term “lessor” means
WVU; right?
A: Correct.
Q: And does this sentence mean to you that the lease is
not freely assignable?
A: The way it’s written, yes.
Critically, despite all of this testimony, neither Mr. Musick nor his Chief
Deputy, Chuck Penn, offered any further clarifying testimony supporting his assessment
methodology, even when invited to do so by the members of the BER. Mr. Bloom asked
Mr. Musick “is there anything that you would like, from the assessor’s office, to
explain?” Mr. Musick simply replied:
No. I mean, you know, our information we gathered to
get to that assessed value is just what we said -- based on that
33
-- and some of the stuff we gathered through that we thought
was a separate value based on that with the collection of rent.
So there’s a lot of that information we had.
I’m not quite sure of the other one. That’s why we
went with the value on top of that.
Additionally, when Commissioner Callen asked Mr. Penn if he wished to ask questions
of Mr. Nesselroad, he declined to do so. Following his direct examination by UPE’s
counsel, Mr. Musick was asked by Commissioner Bloom whether he wished “to make a
final statement” and also declined. Mr. Magro, the Assistant Prosecuting Attorney,
likewise declined to present any evidence or argument.45
Because the record before us demonstrates that Mr. Musick did not apply
the proper standard for assessing leasehold interests and because he also agreed that the
lease was not freely assignable, this Court concludes that UPE showed by clear and
convincing evidence that the 2015 valuation of the leasehold interest should be corrected
to $0. Therefore, we affirm the circuit court’s ruling.
45
Also, UPE notes that this Court has not defined the circumstances by which a
leasehold interest is freely assignable, but asserts that other jurisdictions have defined a
freely assignable lease by “reference to the absence of restrictions on assignment.” See
e.g. Corbett v. Firstline Sec., Inc., 687 F.Supp. 2d, 124, 129 (2009) (“Under New York
law, the benefits and burdens of contracts are freely assumed or assigned absent a
contractual provision to the contrary”). UPE contends that applying that definition here,
the leasehold interest is clearly not freely assignable, because the lease prohibits free
alienability and limits UPE’s use of University Park to certain permitted tenants for
permitted uses, within WVU’s written consent, and because the Leasehold Deed of Trust
prohibits UPE from selling, transferring, exchanging, or otherwise disposing of its
leasehold interest subject to certain enumerated exceptions. We agree.
34
IV. CONCLUSION
We affirm the February 28, 2017, order of the Circuit Court of Monongalia
County granting UPE’s Petition for Appeal and correcting the assessment for the 2015
tax year to $0.
Affirmed.
35
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"pile_set_name": "FreeLaw"
} |
13 Ariz. App. 223 (1970)
475 P.2d 513
Gaylon Ammond LOGAN, Appellant,
v.
Frank EYMAN, Warden, Arizona State Prison, County of Pinal, State of Arizona, Keith E. Edwards, Chairman, Bureau of Pardons & Paroles, State of Arizona, Appellees.
No. 2 CA-CIV 799.
Court of Appeals of Arizona, Division 2.
October 21, 1970.
Rehearing Denied November 10, 1970.
Review Denied January 5, 1971.
*224 Meadow, Thrasher & Zalut, by Henry L. Zalut, Phoenix, for appellant.
Gary K. Nelson, Atty. Gen., Phoenix, by Carl Waag and John S. O'Dowd, Asst. Attys. Gen., Tucson, for appellees.
KRUCKER, Judge.
Gaylon A. Logan appeals from a Pinal County Superior Court order entered September 23, 1969, denying a writ of habeas corpus.
In July, 1963, Mr. Logan plead guilty to the crime of second-degree rape. He was adjudged guilty thereof and sentenced to a term of not less than five nor more than seven years in the Arizona State Prison. Appeal was taken to the Arizona Supreme Court, and Logan was released on bond. The appeal challenged only the severity of the sentence, and on June 23, 1965, the conviction was affirmed. State v. Logan, 98 Ariz. 179, 403 P.2d 279 (1965). An order affirming the judgment was entered September 28, 1965. On October 15, 1968, a bench warrant was issued at the request of the Maricopa County Attorney, Logan was arrested and committed to the state prison to commence serving his sentence.[1]
Thus we find an interval of five years between sentencing and arrest, and a period of more than forty months from the date the conviction was affirmed and the date of arrest.
Where was Logan and what was he doing during this time? It appears that Logan had married in February, 1962, and until 1964 had lived with his wife and parents in Phoenix, Arizona. Thereafter, he and his wife moved to another residence in Phoenix, during which time Logan was gainfully employed. Subsequently, in June, 1965, the couple moved to San Francisco, California, where Logan was gainfully employed and also furthered his education by receiving a certificate in general business.
In January, 1968, the Logans returned to Phoenix, where they lived with Logan's parents for a brief time and then moved to another Phoenix address where they resided until his arrest in October, 1968. At that time, the couple had three children, ages 8, 7, and 4. From approximately March, 1968, until his arrest, Logan was employed as a payments clerk at the Arizona Bank, Phoenix, where he handled cash transactions for payments on vehicles being financed.
Logan admitted at the hearing below that he knew his conviction had been affirmed on appeal, but states that he was told that "I wouldn't have to turn myself in for incarceration." In other words, it was his understanding that someone would come out and pick him up.
It was Logan's position in the lower court, as on appeal, that it would be manifestly unjust and a denial of due process to permit his incarceration after the time lapse herein involved.
We agree that prompt enforcement of sentences should be an objective of criminal law and we concede that Logan's post-conviction conduct indicates that the rehabilitative purpose of punishment may have been accomplished. However, there is no statute of limitations or estoppel against the enforcement of a valid, unsatisfied judgment imposing a sentence, nor can the delay in execution on such judgment waive the State's right or work an estoppel against it. 24B C.J.S. Criminal Law § 1999.
We are cognizant of cases such as State ex rel. Shotkin v. Buchanan, Fla.App., 149 *225 So.2d 574 (1963), and Ex parte Bugg, 163 Mo. App. 44, 145 S.W. 831 (1912) in which appellate courts refused to enforce judgments when the execution of sentence had been so long delayed without the defendant's fault that society could no longer have any interest in its enforcement. These two decisions are unique and rest upon the peculiar circumstances of each case, but it is worthy of note that in neither case had an appeal been taken the lengthy delays occurred between imposition of sentence and ultimate enforcement. Where the delay in committing a defendant occurs after a conviction is affirmed on appeal, such delay does not preclude enforcement. See, Annot. 98 A.L.R.2d 687 § 2[c] and cases cited therein.
In the case of Volker v. McDonald, 120 Neb. 508, 233 N.W. 890 (1931), the defendant was sentenced to prison for a term of one to seven years and the judgment was affirmed on appeal. However, ten years elapsed from issuance of the mandate until the defendant was arrested, and the defendant had never offered to surrender himself. It was held that since the defendant was charged with knowledge of the status of his case, he should have promptly surrendered himself.
In the case of In re Schantz, 26 N.D. 380, 144 N.W. 445 (1913), the court held that it was the duty of the defendant to surrender himself to the penalty of the law and that time was not the essence of the judgment since defendant had not made it so by demanding that it be immediately carried out, hence he could not profit by a delay to which he had assented.
We note parenthetically that when Logan was admitted to bail pending his appeal, he undertook to surrender himself in execution of the judgment and sentence in the event of affirmance. Rule 53, Rules of Criminal Procedure, 17 A.R.S.
We hold, therefore, that it was Logan's duty to surrender himself when the Supreme Court of Arizona affirmed his conviction. Not having attempted to do so, he cannot shift the onus of non-enforcement of the sentence to the State. When a defendant effects the postponement of the "fatal day" for payment of the penalty exacted by the law for his offense, he waives the right to claim that "time is of the essence" for enforcement of his sentence. Weber v. Mosley, 241 Mo. App. 727, 242 S.W.2d 273 (1951).
Appellant's remedy is to present his case to the governmental authority which has power to commute his sentence courts cannot usurp this power.
The order denying the petition for the writ of habeas corpus is affirmed.[2]
HOWARD, C.J., and HATHAWAY, J., concur.
NOTES
[1] These facts are recited in the petition for a writ of habeas corpus and admitted in the response thereto.
[2] Logan was admitted to bail pending this appeal. Although the State did not challenge the propriety thereof, except at the time of oral argument, we have held that an applicant, appealing from a denial of a writ of habeas corpus, is not entitled to bail. Burr v. Frey, 2 Ariz. App. 238, 407 P.2d 779 (1965).
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59 F.2d 891 (1932)
FERGUSON
v.
COMMISSIONER OF INTERNAL REVENUE.
No. 605.
Circuit Court of Appeals, Tenth Circuit.
June 30, 1932.
Glenn Porter, of Wichita, Kan. (H. W. Hart, Enos E. Hook, Edw. H. Jamison, and Getto McDonald, all of Wichita, Kan., on the brief), for petitioner.
A. H. Conner, Sp. Asst. to Atty. Gen. (G. A. Youngquist, Asst. Atty. Gen., Sewall Key, Sp. Asst. to Atty. Gen., and C. M. Charest, Gen. Counsel, and Arthur Clark, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., on the brief), for respondent.
Before COTTERAL, PHILLIPS, and McDERMOTT, Circuit Judges.
PHILLIPS, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals. The material facts, which were stipulated before the Board, are these:
Petitioner is the owner of two tracts of land situate in Cowley County, Kansas, one containing 152 acres and the other 160 acres. On May 1, 1922, petitioner executed to May D. Ferguson, his wife, an oil and gas lease on such land for a term of five years and as long thereafter as oil and gas or either of them should be produced from said land by the lessee. Such lease was on a form commonly known as Kansas Producers 88. It provided that should no well be commenced on such land on or before May 1, 1923, the lease should terminate as to both parties, unless the lessee on or before that date should pay or tender to the lessor $312, which would operate as a rental and cover the privilege of deferring the commencement of a well for 12 months from such date. It further provided that, in like manner and upon like payments or tenders, the commencement of a well might be further deferred for like periods successively. This lease was of nominal value only at the date it was executed.
On October 20, 1922, petitioner and May D. Ferguson executed and delivered to the Merriam-Findeiss Oil Company an oil and *892 gas lease on the 152-acre tract for a term of five years and as long thereafter as oil and gas or either of them should be produced from such land by the lessee. Such lease was also on a Kansas Producers 88 form, and provided that should no well be commenced on such land on or before October 20, 1923, the lease would terminate unless delay rental was paid.
On October 31, 1922, petitioner and May D. Ferguson executed and delivered to The Empire Oil & Gas Company an oil and gas lease on the 160-acre tract for a term of five years and as long thereafter as oil and gas or either of them should be produced from such land by the lessee. Such lease was also on a Kansas Producers 88 form, and provided that should no well be commenced on such land on or before October 31, 1923, the lease would terminate unless delay rental was paid.
Bonuses aggregating $11,000 were paid for the last two leases. May D. Ferguson returned such amount in her income tax return for 1922. The Commissioner assessed a deficiency against petitioner for 1922 on account of the bonuses paid, and treated such amount as an over-assessment against May D. Ferguson.
As to the 152-acre tract, May D. Ferguson did not assign or convey the rights she acquired under the first lease prior to the execution of the second lease. And as to the 160-acre tract, she did not convey or assign such rights prior to the execution of the third lease.
The finding of the Commissioner that the amount paid as bonuses was income received by petitioner was prima facie correct, and the burden rested on petitioner to overcome such finding by substantial evidence. Niles Bement Pond Co. v. United States, 281 U. S. 361, 50 S. Ct. 251, 74 L. Ed. 901; United States v. Rindskopf, 105 U. S. 418, 422, 26 L. Ed. 1131; Kaufmann v. Commissioner (C. C. A. 3) 44 F.(2d) 144; Taplin v. Commissioner (C. C. A. 6) 41 F.(2d) 454; Blair Co. v. Commissioner (C. C. A. 3) 34 F.(2d) 861, 863; McCarl v. United States, 59 App. D. C. 362, 42 F.(2d) 346. Such leases did not convey title to the oil and gas in place. They only gave the lessee the right to go upon the land and to prospect for, develop, and remove oil and gas therefrom. Under them the respective lessees would acquire title only to the oil and gas which they extracted and reduced to possession. Hover v. McNeill, 102 Kan. 492, 175 P. 150; Finch v. Beyer, 94 Kan. 525, 146 P. 1141; Priddy v. Thompson (C. C. A. 8) 204 F. 955; Alexander v. King (C. C. A. 10) 46 F.(2d) 235, 238, 239, 74 A. L. R. 174. The bonuses were therefore in the nature of advanced royalties and were income from the land. Burkett v. Commissioner (C. C. A. 8) 31 F.(2d) 667; Berg v. Commissioner, 59 App. D. C. 86, 33 F.(2d) 641; Work v. Mosier, 261 U. S. 352, 357, 43 S. Ct. 389, 67 L. Ed. 693; Alexander v. King (C. C. A. 10) 46 F.(2d) 235, 239, 74 A. L. R. 174. See footnote.[1]
The terms of the second and third leases extended beyond the term of the first. Under the first lease the lessee was required to commence a well or pay delay rental on or before May 1, 1923. Under the second and third leases the lessees were required to commence wells or pay delay rentals on or before October 20 and 31, 1923, respectively.
The transaction with respect to the second and third leases was not in substance an assignment of the first lease, because the lessees under the second and third leases received substantial rights in excess of what an assignment of the first lease would have transferred.
The second and third leases created estates inconsistent with that created by the first lease. The petitioner, lessor in the first lease, made the second and third leases and May D. Ferguson, the lessee in the first lease, joined in and thereby consented to the second and third leases.
Where the owner of land gives a lease thereon and during the existence of such lease enters into a new lease thereof inconsistent with the first, and the tenant under the first consents to the second lease and the tenant under the second lease pays rent and goes into possession of the leased premises, a surrender of the first lease is effected by operation of law. The lessor and the lessee under the first lease by their acts are estopped to deny the first lease was not surrendered. Nickells v. Atherstone, 10 Qb. 944, 116 English Reprint 358; Jenkins v. Root, 269 Pa. 229, 112 A. 153; Douglas v. Schindler, 209 Cal. 616, 289 P. 625, 627; Welcome v. Hess, 90 Cal. 507, 27 P. 369, 370, 25 Am. St. Rep. 145; Flannagan v. Dickerson, 103 Okl. 206, 229 P. 552; Donahoe v. Rich, 2 Ind. App. 540, 28 N. E. 1001, 1003; Bowen v. Haskell, 53 Minn. 480, 55 N. W. 629; Sult v. Hochstetter *893 Oil Co., 63 W. Va. 317, 61 S. E. 307, 314.
May D. Ferguson had no title to the land itself; that title was in petitioner. She had only a leasehold estate. That estate she surrendered when the second and third leases were made. The bonuses were paid not for such surrender but as advanced royalties for the second and third leases. They were paid as royalties for leases of lands made by petitioner, the title to which was in him. Royalty paid for an oil and gas lease is income from land and not from the sale of capital assets. Alexander v. King (C. C. A. 10) 46 F.(2d) 235, 240, 74 A. L. R. 174.
It follows that petitioner not only failed to overcome the prima facie effect of the Commissioner's finding, but the stipulated facts tend to establish that the income was derived by petitioner from land that he owned.
The decision of the Board is affirmed.
NOTES
[1] Ferguson v. Commissioner (C. C. A. 5) 45 F.(2d) 573, is distinguishable. That case arose in Texas and was predicated upon the proposition that, under the decisions of the Texas courts, oil and gas leases effect a conveyance of the oil and gas in place. Alexander v. King (C. C. A. 10) 46 F.(2d) 235, 240, 74 A. L. R. 174.
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161 F.2d 217 (1947)
CRYNS
v.
MUSHER.
Patent Appeal No. 5285.
Court of Customs and Patent Appeals.
March 25, 1947.
Ira Milton Jones, of Milwaukee, Wis., for appellant.
Harry Price, of New York City, for appellee.
Before GARRETT, Presiding Judge, and BLAND, HATFIELD, JACKSON, and O'CONNELL, Associate Judges.
HATFIELD, Associate Judge.
This is an appeal in an interference proceeding from the decision of the Board of Interference Examiners of the United States Patent Office awarding priority of invention of the subject matter defined by the single count in issue to appellee Sidney Musher.
The interference is between appellee's patent No. 2,198,218 issued April 23, 1940, on an application filed February 3, 1940, and appellant's application No. 268,730, filed April 19, 1939. Appellee is the junior party and the burden was upon him, therefore, to establish priority of the invention by a preponderance of the evidence.
The invention defined by the count in issue relates to a process of making a stabilized wheat germ preparation which may be used in the food industry, such as in the manufacture of bread, and is sufficiently defined by the count in issue which reads:
"A process of making a stabilized wheat germ preparation which comprises combining finely divided wheat germ with a relatively small amount of milk-solids-not-fat dispersed in water and then concentrating, said aqueous dispersion having been heated during processing to a temperature of at least 200° F."
The count in issue is claim 4 of appellee's patent and was copied by appellant for interference purposes.
Appellant's application relates to a food ingredient and particularly to an ingredient in the manufacture of confections, such as candy and ice cream.
*218 Appellant states in his application that powdered milk does not have a very agreeable flavor and that it has been found that if the milk is combined with a cereal and the starch cells of the cereal are broken down and converted into sugar, the flavor of the resultant product is materially improved and that confections made with the improved powdered milk have a better flavor. Appellant's milk powder is essentially composed of milk and cereal and any starch cereal may be used, including rye, rice, maize, barley, and oats. Wheat germ flour, appellant states, has been found to give especially good results. Appellant discloses in his application that wheat germ and skimmed milk together with small amounts of lecithin and sugar, may be used in his process. In describing his process, appellant states that the ingredients are thoroughly mixed by mechanical agitation to form an emulsion; that the emulsion is conveyed to a suitable heating means where it is heated to approximately 160° F. for a period of from 10 to 15 seconds; that during that state of the process "a preliminary gelatinization takes place and while still at this temperature, it is sprinkled or otherwise deposited upon a heated roller. The roller, onto which the emulsion is deposited, is one of a pair between which the deposit is rolled under high pressure. Preferably, both of the rollers are heated. The temperature employed should be approximately 300° to 325° F." After the heat and pressure treatment, "the dehydrated compound is pulverized" and is then ready for use for the purposes hereinbefore stated.
Appellant further states in his application that "lecithin performs an important function in promoting the desired combination of the cereal and milk."
In the ex parte prosecution of appellant's application, the Primary Examiner held that appellant was not entitled to make the claim constituting the count in issue for the reason that appellant did not disclose the subject matter defined therein. On appeal, the Board of Appeals reversed the decision of the Primary Examiner and held that appellant was entitled to make the claim constituting the count in issue. Thereupon the involved interference was declared. Appellee moved to dissolve the interference on the ground that the subject matter of the count in issue was not disclosed in appellant's application, and also on the ground that appellant was estopped under the provisions of Rule 94 of the Rules of Practice in the United States Patent Office, 35 U.S.C.A.Appendix, from presenting in his application the subject matter defined by the count for the first time more than a year after the issuance of appellee's patent.
It appears from the record that claim 4 of appellee's patent was copied by appellant on April 2, 1942, nearly two years after the date of the issuance of appellee's patent April 23, 1940.
The Primary Examiner overruled appellee's motion to dissolve, holding, in accordance with the decision of the Board of Appeals, that appellant disclosed in his application the subject matter defined by the count in issue. The examiner further held that appellant was not estopped from claiming the invention here involved. In his decision, the examiner referred to "initial claims 7, 8, 15 and 16" in appellant's application which apparently remained in his application until December 16, 1940, more than seven months after appellee's patent issued April 23, 1940, and stated that they were "directed to the production of dried cereal and milk products or wheat germ and milk products;" that, in accordance with the decision of the Board of Appeals, it appeared that appellant "has at all times asserted claims for substantially the same subject matter as that of the present single count of the interference;" that, therefore, appellant was not estopped to make the claim constituting the count in issue; and accordingly overruled the motion of appellee to dissolve the interference.
In its decision, the Board of Interference Examiners stated that counsel for appellee argued in his brief that appellant does not disclose in his application the limitation of the count in issue, namely, "`said aqueous dispersion having been heated during processing to a temperature of at least 200° F.'" The board held, in substance, that the quoted limitation of the count did not exclude the use of a temperature of at least 200° F during the *219 drying step upon the drying rolls disclosed in appellant's application; that counsel for appellee apparently did not disagree with the views expressed by the Primary Examiner that appellant disclosed in his application the degree of temperature called for by the count in issue; and, accordingly, held that appellant disclosed in his application the process defined by the involved count.
Relative to the question of estoppel, the board stated that it was pointed out in the Primary Examiner's decision on the motion to dissolve that appellant's "original claims 7, 8, 15 and 16 were directed to the preparation of dried products made from wheat germ and skim milk and that in the case of claim 7 a roll drying process was specified which process would necessitate heating to at least 200° F. according to the ex parte ruling of the Board of Appeals." The board then stated that "Even if it be assumed that the examiners position is correct it does not however completely dispose of the estoppel issue in this case." (Italics not quoted.)
The board further stated in its decision that at the time April 23, 1941 of the termination of the one year period after the date of the issuance of appellee's patent, appellant had in his application only claims 19 to 23, inclusive; that on October 24, 1941, claims 19 to 23, inclusive, were cancelled, and claims 24 and 25 were added by amendment; and that claims 24 and 25 were the only claims in appellant's application at the time he copied claim 4 the count in issue from appellee's patent.
The pertinent part of Rule 94 of the Rules of Practice in the United States Patent Office, which is identical with the second paragraph of Sec. 4903, R.S.,U.S.C., title 35, § 51, 35 U.S.C.A. § 51, enacted August 5, 1939, reads:
"No amendment for the first time presenting or asserting a claim which is the same as, or for substantially the same subject matter as, a claim of an issued patent may be made in any application unless such amendment is filed within one year from the date on which said patent was granted." (Italics not quoted.)
The board considered claims 19 to 23, inclusive, and held that they did not claim substantially the same subject matter as that defined by the count in issue. The board did not consider in its decision original claims 7, 8, 15 and 16.
With reference to Rule 94, supra, the board stated:
"Rule 94 states in effect that a patent claim must be copied within one year from the date on which the patent was granted. This rule has been interpreted such [sic] that its requirements are held to be satisfied if claims to substantially the same subject matter have been prosecuted within the one-year period and have been in the case continuously up to the time when the claim of the patent was copied." (Italics not quoted.)
In support of its interpretation of Rule 94, the board cited, among other cases, Phelan v. Green, 71 F.2d 298, 300, 21 C.C. P.A., Patents, 1228, decided June 12, 1934, where it was held that "the failure of an applicant to copy claims of the patent within two years [now one year] of its publication constitutes, prima facie, laches, and in an interference proceeding between them such laches may be raised by the patentee as a ground of estoppel against the applicant." In so holding, the court there relied upon the decisions in cases therein cited, including the Webster Electric Co. v. Splitdorf Electrical Co. 264 U.S. 463, 44 S.Ct. 342, 68 L.Ed. 792, relied upon by the board in the instant case.
The board also cited and quoted from our decision in the case of In re Lowry, 93 F.2d 909, 912, 25 C.C.P.A., Patents, 829, decided January 24, 1938, where it was stated that:
"If appellant disclosed the invention claimed in the Hallock patent, and failed to make claims to it within two years after the issuance of that patent, he is estopped from thereafter claiming the subject-matter of those patented claims. However, if appellant originally disclosed and claimed the subject-matter of the Hallock claims, and continuously asserted his right to a patent for such subject-matter, as counsel *220 for appellant here contend, estoppel does not lie." (Italics not quoted.)
In the case of Chapman v. Wintroath, 252 U.S. 126, 40 S.Ct. 234, 64 L.Ed. 491, decided March 1, 1920, the Supreme Court held, as stated in the headnotes, that one whose application "disclosed but did not claim an invention which is later patented to another, is allowed by the patent law [Sec. 4886 of the Revised Statutes, which was then in force] two years after such patent issues within which to file a second or divisional application claiming the invention;" and that an applicant's right to claim such invention may not be held to be lost by laches "merely because of a delay not exceeding the two years allowed by the statute." The court was careful to point out in its decision in that case that it did not be intend to intimate that there "may not be abandonment which might bar" an applicant from claiming an invention patented to another within the two year (now one year) period. Sec. 4886, R.S.,U.S.C., title 35, § 31, 35 U.S.C.A. § 31, was amended August 5, 1939, changing the two year period to one year.
All of the cases relied upon by the board, and the case of Chapman v. Wintroath, supra, were decided prior to the enactment of Sec. 4903, supra, and the adoption and promulgation of Rule 94, supra, and, therefore, are not authority for the board's construction of that rule.
We are in agreement with the conclusion reached by the board that appellant's application discloses the invention defined by the count in issue.
We are unable to agree, however, that the board's interpretation of Rule 94 is correct. The rule plainly provides that no amendment for the first time, presenting or asserting a claim or claims which are the same as, or for substantially the same subject matter as, a claim or claims of an issued patent, may be made unless such claim or claims are presented within one year from the date on which the patent issued. As stated by the Board of Interference Examiners in the case of Thompson v. Hamilton, which was approved by this court, 152 F.2d 994, 997, 33 C.C.P.A., Patents, 732, 735, "* * * all that is required is that he [the appellant] shall be urging claims covering the matter which is claimed in the patent before the critical period has terminated."
We think the rule is clear and unambiguous and that in order to determine whether appellant is entitled to claim the invention defined by the involved count, the board should have considered all of the original claims in appellant's application 7, 8, 15 and 16 as well as claims 19 to 23, inclusive. In so holding, it should be understood that this decision is limited to the construction of Rule 94 and its application to the issues in this case.
Having failed to properly construe and apply the provisions of Rule 94, supra, the decision of the Board of Interference Examiners is reversed and the cause remanded for proceedings consistent with the views herein expressed.
Reversed and remanded.
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
JUDGMENT RENDERED JULY 26, 2019
NO. 03-18-00852-CV
C. G. and B. E., Appellants
v.
Texas Department of Family and Protective Services, Appellee
APPEAL FROM THE 274TH DISTRICT COURT OF COMAL COUNTY
BEFORE JUSTICES GOODWIN, BAKER, AND TRIANA
AFFIRMED -- OPINION BY JUSTICE BAKER
This is an appeal from the decree terminating parental rights, signed by the trial court on
January 31, 2019. Having reviewed the record and the parties’ arguments, the Court holds that
there was no reversible error in the decree. Therefore, the Court affirms the trial court’s decree
terminating parental rights. Because appellants are indigent and unable to pay costs, no
adjudication of costs is made.
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[Cite as State v. Thorn, 2018-Ohio-1028.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 16 BE 0054
V. ) 17 BE 0013
)
JASON MYERS THORN, ) OPINION
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Belmont County, Ohio
Case No. 16 CR 167
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee Attorney J. Flanagan
Courthouse Annex 1
147-A West Main Street
St. Clairsville, Ohio 43950
No Brief Filed
For Defendant-Appellant Attorney Peter Galyardt
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
JUDGES:
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb
Dated: March 15, 2018
[Cite as State v. Thorn, 2018-Ohio-1028.]
DONOFRIO, J.
{¶1} Defendant-appellant, Jason Thorn, appeals his conviction in the
Belmont County Court of Common pleas following a jury trial for one count of
possession of drugs in violation of R.C. 2925.11(A)(C)(6)(a), a felony of the fifth
degree, and one count of theft in violation of R.C. 2913.02(A)(1), a misdemeanor of
the first degree.
{¶2} Appellant entered a Walmart store and picked up three internet routers
from the electronics section. Appellant then took the routers to the customer service
desk where he attempted to return them for store credit. The store credit would have
been placed on a gift card. After appellant handed the routers over to customer
service representatives but before appellant received the gift card from Walmart
employees, appellant was detained by Walmart security for the fraudulent return of
the routers. Walmart security then called the Belmont County Sheriff’s Department
who arrested appellant for theft. Police then performed a search incident to an arrest
which revealed that appellant was in possession of a small amount of a substance
deputies believed to be heroin. The substance was later confirmed to be heroin.
{¶3} Appellant appeared in the Belmont County Court, Northern Division for
an initial appearance where his Crim.R. 5 rights were read. The Belmont County
Court, Northern Division then scheduled a preliminary hearing. The preliminary
hearing was continued multiple times for various reasons but appellant never
appeared for the hearing and a warrant was issued for his arrest. Appellant never
appeared for the preliminary hearing because he was incarcerated in Pennsylvania
on or about February 17, 2015 for a parole violation. On February 23, 2015, appellant
submitted an inmate request to the Pennsylvania Department of Corrections
apparently attempting to exercise his rights pursuant to the Interstate Agreement on
Detainers (IAD) to resolve his outstanding charges in Belmont County, Ohio.
{¶4} On September 2, 2015, appellant filed a pro se motion in the Belmont
County Court, Northern Division to dismiss this action pursuant to the IAD for
violations of his right to a speedy trial. Appellant attached numerous exhibits to this
motion, including his February 23, 2015 inmate request. On September 4, 2015, the
-2-
Belmont County Court, Northern Division denied appellant’s motion on the basis that
he never filed a demand with the court.
{¶5} On December 28, 2015, the Belmont County Court, Northern Division
received a handwritten letter from appellant seeking the disposition of the charges
against him using other methods than him being present in court, such as video
conference. In this letter, appellant specifically stated that he did not want to exercise
his rights pursuant to the IAD on the basis that his transfer to Ohio would negatively
impact his Pennsylvania rehabilitation programs.
{¶6} Appellant eventually appeared in the Belmont County Court, Northern
Division on February 26, 2016. This was over one year after appellant was arrested
for theft and possession of heroin. On March 7, 2016, appellant filed another motion
to dismiss this action pursuant to the IAD for violations of his right to a speedy trial.
On May 20, 2016, the Belmont County Court, Northern Division denied this motion
again on the basis that appellant never filed a demand for a trial in Belmont County
and that appellant’s December 28, 2015 letter specifically waived any right appellant
had under the IAD.
{¶7} Appellant was then indicted on both counts and the case was
transferred to the Belmont County Court of Common Pleas. The trial court issued
appellant a personal recognizance bond but appellant was still detained in Belmont
County for purposes of continuing his Pennsylvania sentence.
{¶8} There were several pretrial hearings that concerned multiple pretrial
issues. Relevant to this appeal, on July 25, 2016, a pretrial hearing was held in which
the trial court informed appellant that if he were convicted and sentenced in this
matter, he would receive jail credit for the time he served in an Ohio jail while
awaiting trial.
{¶9} Also relevant to this appeal, the trial court held a hearing on August 29,
2016. The August 29, 2016 hearing concerned a pro se motion appellant filed
seeking to dismiss this action again pursuant to the IAD for violations of appellant’s
right to a speedy trial. The trial court denied this motion to dismiss.
-3-
{¶10} A jury trial was eventually conducted in this action. At the conclusion of
the State of Ohio’s, case, appellant moved pursuant to Crim.R. 29 to dismiss the theft
charge on the basis that the state failed to prove that appellant exerted control over
any property of Walmart. The trial court denied appellant’s motion. At the conclusion
of the trial, the jury found appellant guilty of both counts.
{¶11} During the sentencing hearing, appellant requested that he be given jail
credit for all time served while in jail in Belmont County, Ohio while he was awaiting
trial. Appellant argued that this amounted to 215 days. This was also the amount of
jail credit listed in appellant’s presentence report. But the trial court noted that the
215 days of credit listed in the presentence report was a mistake as the trial court
issued appellant a recognizance bond. The trial court noted that appellant had only
seven days of jail credit. Ultimately, the trial court sentenced appellant to serve one
year of incarceration on the drug possession conviction and six months of
incarceration on the theft conviction. The trial court ordered that these sentences be
served concurrently and gave appellant seven days of jail credit.
{¶12} The trial court’s sentence was memorialized in a journal entry dated
September 21, 2016. Appellant timely filed this appeal on October 11, 2016.
Appellant now raises three assignments of error.
{¶13} Appellant’s first assignment of error states:
THE COURTS BELOW COMMITTED REVERSIBLE ERROR
WHEN THEY DENIED JASON THORN’S MOTIONS TO DISMISS ON
SPEEDY-TRIAL GROUNDS. R.C. 2963.30 SEPT. 4, 2015 JOURNAL
ENTRY (BELMONT COUNTY NORTHERN DIVISION COURT, CASE
NO. 15-CRA-50); MAY 25, 2016 JOURNAL ENTRY (BELMONT
COUNTY NORTHER DIVISION COURT, CASE NO. 15-CRA-50);
AUG. 31, 2016 JOURNAL ENTRY.
{¶14} Appellant argues that he substantially complied with his requirements
pursuant to Ohio’s IAD codified at R.C. 2963.30. Appellant argues that because he
-4-
substantially complied with the IAD, his trial should have occurred within 180 days of
his substantial compliance. As that did not happen, appellant argues that his speedy
trial right was violated and the trial court’s denial of his motion to dismiss was error.
{¶15} The state did not file an answer brief in this matter. Pursuant to App.R.
18(C), this Court may accept the appellant’s statement of the facts as true and issues
as correct and reverse the judgment if appellant’s brief reasonably appears to sustain
such action.
{¶16} A trial court’s decision on a motion to dismiss is reviewed under a de
novo standard of review. Columbiana v. Frost, 7th Dist. No. 14-CO-38, 2016-Ohio-
1057 ¶ 19 citing State v. Rhode, 11th Dist. No. 2010-P-0015, 2011-Ohio-2455. “A de
novo standard of review affords no deference to the trial court’s decision, and the
appellate court independently reviews the record.” Id. citing Gilchrist v. Gonsor, 8th
Dist. No. 88609, 2007-Ohio-3903. Trial court decisions concerning the interpretation
of the IAD are also subject to a de novo review. State v. Braden, 197 Ohio App.3d
534, 2011-Ohio-6691, 968 N.E.2d 49 (11th Dist.).
{¶17} Ohio became a party state to the IAD in 1969. Pennsylvania is also a
party state to the IAD. The IAD provides, in relevant part:
(a) Whenever a person has entered upon a term of imprisonment in a
penal or correctional institution of a party state, and whenever during the
continuance of the term of imprisonment there is pending in any other
party state any untried indictment, information or complaint on the basis
of which a detainer has been lodged against the prisoner, he shall be
brought to trial within one hundred eighty days after he shall have
caused to be delivered to the prosecuting officer and the appropriate
court of the prosecuting officer's jurisdiction written notice of the place of
his imprisonment and his request for a final disposition to be made of the
indictment, information or complaint: provided that for good cause shown
in open court, the prisoner or his counsel being present, the court having
jurisdiction of the matter may grant any necessary or reasonable
-5-
continuance. The request of the prisoner shall be accompanied by a
certificate of the appropriate official having custody of the prisoner,
stating the term of commitment under which the prisoner is being held,
the time already served, the time remaining to be served on the
sentence, the amount of good time earned, the time of parole eligibility of
the prisoner, and any decisions of the state parole agency relating to the
prisoner.
(b) The written notice and request for final disposition referred to in
paragraph (a) hereof shall be given or sent by the prisoner to the
warden, commissioner of corrections or other official having custody of
him, who shall promptly forward it together with the certificate to the
appropriate prosecuting official and court by registered or certified mail,
return receipt requested.
R.C. 2963.30 Art. III(a)-(b).
{¶18} The 180 day speedy trial time period begins to run when a defendant
substantially complies with the requirements set forth in Articles III(a) and III(b) of
R.C. 2963.30. State v. Quinones, 168 Ohio App.3d 425, 428, 2006-Ohio-4096, 860
N.E.2d 793 quoting State v. Mourney, 64 Ohio St.3d 482, 485, 597 N.E.2d 101
(1992). Substantial compliance means the defendant did “everything that could be
reasonably expected.” Id. quoting State v. Ferguson, 41 Ohio App.3d 306, 535
N.E.2d 708 (10th Dist. 1987).
{¶19} The record shows that the first motion to dismiss appellant made
concerning the IAD was his September 2, 2015 motion in the Belmont County Court,
Northern Division. In this motion, appellant argued that his right to a speedy trial was
violated and moved to dismiss the charges pursuant to the IAD. Appellant attached to
this motion a copy of an inmate request he made dated February 23, 2015 to his
Pennsylvania corrections superintendent, Mark Copozza. The request states:
I’m requesting in need to resolve current charges [i]n Belmont County,
-6-
Ohio. I want to exercise my right to resolve charges using the
In[t]erstate Agreement on Detainers, (IAD). Please [refer] me to the
proper people to accomplish these [proceedings].
September 2, 2015 motion to dismiss, ¶ 10 exhibit.
{¶20} Article III of the IAD requires the detainee to serve notice on both the
prosecutor and the court, which must also contain a certification from the warden
stating the terms of the detainee’s incarceration. State v. Levy, 8th Dist. No. 83114,
2004-Ohio-4489, ¶ 10. In this case, the record does not indicate that appellant filed
such a demand with the court or the prosecutor. There is also no indication in the
record of a certificate from any Pennsylvania correctional facility stating the terms of
appellant’s incarceration. Because appellant did not file a proper demand pursuant to
the IAD, the trial court’s decision to deny appellant’s motion to dismiss was not error.
{¶21} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
{¶22} Appellant’s second assignment of error states:
THE TRIAL COURT COMMITTED REVERSIBLE ERROR
WHEN IT DID NOT GIVE JASON THORN JAIL-TIME CREDIT FOR
ALL OF THE TIME THAT HE SPENT IN JAIL. R.C. 2967.191. JULY 25,
206 TR. 5. SEPT. 21, 2016 SENTENCING JUDGMENT ENTRY; FEB
9, 2017 JOURNAL ENTRY.
{¶23} Appellant argues that not only did he spend 215 days incarcerated in
Belmont County awaiting trial on this action, he was promised by the trial court that
he would receive jail credit for each day he spent incarcerated. At the sentencing
hearing, appellant only received credit for seven days and now argues that he is
entitled to the full 215 days of credit.
{¶24} An appellate court may vacate or modify a felony sentence on appeal
only if it determines by clear and convincing evidence that the record does not
-7-
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231 ¶ 1 citing R.C. 2953.08(G)(2).
{¶25} The Sixth District dealt with almost an identical issue in State v.
Lawrence, 6th 111 Ohio App.3d 44, 675 N.E.2d 569 (6th Dist. 1996). In Lawrence,
defendant-appellant Lawrence was serving a thirty-year sentence in Indiana when he
was indicted in the Fulton County Court of Common Pleas in Ohio for one count of
complicity to commit aggravated murder and one count of breaking and entering. Id.
at 45. Lawrence was then transferred to Fulton County, Ohio under the IAD. Id.
Lawrence pled guilty to the breaking and entering charge and not guilty to the
complicity to commit aggravated murder charge. Id. The trial court did not set a bond
in this matter. Id. After the jury trial, Lawrence was found not guilty on the complicity
to commit aggravated murder charge. Id. After Lawrence was found guilty on the
breaking and entering charge, he was sentenced to one and a half years of
incarceration which was to be served consecutively with his Indiana prison sentence.
Id. at 46. Lawrence was then transferred back to Indiana. Id. Lawrence then filed a
motion for credit for time served with the trial court which was denied. Id.
{¶26} In affirming the trial court’s decision, the Sixth District held that issuing
Lawrence a bond would have been superfluous because he was “deemed to remain
in the custody of and subject to the jurisdiction of the sending state” while he was
being held and awaiting trial in Ohio. Id. at 46-47. In essence, while a bond was not
issued but Lawrence was detained, he was deemed to be serving his Indiana
sentence in Ohio while he was awaiting trial.
{¶27} In this case, appellant was issued a recognizance bond but was still
detained in Ohio due to his parole violation in Pennsylvania. While awaiting trial in
Ohio, appellant was still in the custody of and subject to the jurisdiction of the
sending state, Pennsylvania, pursuant to R.C. 2963.30, Article V(g).
{¶28} Appellant also argues that, under the doctrine of promissory estoppel,
he is entitled to the full 215 days of credit for time served. Appellant argues that the
-8-
following passage made to him by the trial court constitutes a promise that appellant
relied on and that the trial court should be estopped from revoking:
The Court: Is your question whether you will receive credit for the time
served that you spend here in the county jail?
The Defendant: Well, yeah, that’s a question.
***
The Court: You would receive credit for the time you serve in our jail. I
don’t know if Pennsylvania will do the same. That’s up to them.
July 25, 2016 Tr. 5.
{¶29} Appellant’s argument lacks merit for two reasons. First, as appellant
points out, the principle of estoppel does not apply against a state or its agencies in
the exercise of a governmental function. Ohio State Bd. of Pharmacy v. Frantz, 51
Ohio St.3d 143, 145-146, 555 N.E.2d 630 (1990). Second, as previously stated, the
record indicates that appellant was not being detained in Ohio to guarantee his
presence at trial, he was being detained in Ohio pursuant to the IAD for his parole
violation in Pennsylvania.
{¶30} Moreover, the equity principles of estoppel that appellant relies on in his
brief would not be served if he received 215 days of jail credit. If appellant were to
receive 215 days of jail credit on his sentence in this case, then the time appellant
spent incarcerated in Ohio pursuant to his Pennsylvania parole violation would also
count towards any future sentence he would have received in this action. In essence,
appellant would be receiving double jail credit. Ultimately, the trial court’s judgment
granting appellant only seven days of jail credit was proper.
{¶31} Accordingly, appellant’s second assignment of error lacks merit and is
overruled.
{¶32} Appellant’s third assignment of error states:
THE TRIAL COURT ERRED IN DENYING JASON THORN’S CRIM. R.
-9-
29 MOTION FOR ACQUITTAL, AND VIOLATED HIS RIGHTS TO DUE
PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF
SUFFICIENT EVIDENCE, IT CONVICTED HIM OF THEFT. FIFTH
AND FOURTEENTH AMENDMENTS, UNITED STATES
CONSTITUTION; ARTICLE 1, SECTIONS 10 AND 16, OHIO
CONSTITUTION. R.C. 2913.02. TRIAL TR. 119-121, 125-126, 194-
195, 207-208. SEPT. 21, 2016 SENTENCING JUDGMENT ENTRY.
{¶33} Appellant argues that the state failed to prove beyond a reasonable
doubt that he obtained or exerted control over the gift card at issue. As this is an
element of theft, appellant argues that there is insufficient evidence in the record to
support his theft conviction.
{¶34} Sufficiency of the evidence is the legal standard applied to determine
whether the case may go to the jury or whether the evidence is legally sufficient as a
matter of law to support the verdict. State v. Dickson, 7th Dist. No. 12 CO 50, 2013-
Ohio-5293, ¶ 10 citing State v. Thompkins, 80 Ohio St.3d 89, 113, 684 N.E.2d 668
(1997). Sufficiency is a test of adequacy. Id. Whether the evidence is legally sufficient
to sustain a verdict is a question of law. Id. In reviewing the record for sufficiency, the
relevant inquiry is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements
proven beyond a reasonable doubt. Id. citing State v. Goff, 82 Ohio St.3d 123, 138,
694 N.E.2d 916 (1998). When evaluating the sufficiency of the evidence to prove the
elements, it must be remembered that circumstantial evidence has the same
probative value as direct evidence. Id. citing State v. Jenks, 61 Ohio St.3d 259, 272-
273, 574 N.E.2d 492 (1991) (superseded by state constitutional amendment on other
grounds).
{¶35} Count 2 of appellant’s indictment was for theft pursuant to R.C.
2913.02(A)(1). “No person, with purpose to deprive the owner of property or services,
shall knowingly obtain or exert control over either the property * * * without the
consent of the owner or person authorized to give consent.” R.C 2913.02(A)(1).
- 10 -
{¶36} Appellant contends that he did not commit theft because he never
obtained nor exerted control over anything of monetary value when he attempted to
fraudulently return the routers. Appellant argues Cedric Robinson, one of the
Walmart loss prevention employees who observed appellant inside the store, testified
at trial that appellant never had possession or exerted control over a gift card. (Trial
Tr. 113-114, 121).
{¶37} The Fifth District’s decision in State v. Spencer, 5th Dist. No.
2015CA00188, 2016-Ohio-5304, provides some guidance on this issue. In Spencer,
Spencer dropped off an accomplice in front of a Lowe’s store. Id. at ¶ 2. The
accomplice picked up a rug inside the store and placed it in a shopping cart. Id.
Spencer then met his accomplice inside the store and the two proceeded to the
returns aisle to return the rug without paying for it. Id. A Lowe’s employee completed
the return and gave a merchandise card to the accomplice. Id. at ¶ 3.
{¶38} Spencer was then charged and convicted of theft. Id. at ¶ 5. On appeal,
Spencer argued that his theft conviction was insufficient because the element of
obtaining or exerting control over the property was not met. Id. at ¶ 8. Spencer
argued the element was not met because he never touched the rug nor touched the
merchandise card. Id. at ¶ 13. The Eighth District held that because Spencer
engaged in acts consistent with a fraudulent return, he did knowingly obtain or exert
control over the merchandise card. Id.
{¶39} In this case, while appellant did not receive the gift card before being
apprehended, he did initiate a fraudulent return for the purposes of obtaining the gift
card. This is similar to the facts in Spencer where Spencer initiated the fraudulent
return but did not physically possess the stolen merchandise.
{¶40} Moreover, even though appellant did not leave the store with the gift
card in this case, the law does not require the store to wait until the defendant leaves
a store with merchandise before apprehending said defendant for shoplifting. State v.
Arthur, 4th Dist. No. 01CA2818, 2002-Ohio-3764, ¶ 17 citing State v. Williams, 16
Ohio App.3d 232, 234, 475 N.E.2d 168 (2d Dist. 1984). Ultimately, appellant’s theft
- 11 -
conviction was sufficient as a matter of law.
{¶41} Accordingly, appellant’s third assignment of error lacks merit and is
overruled.
{¶42} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., Concurs
Robb, P. J., Concurs
| {
"pile_set_name": "FreeLaw"
} |
FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 2, 2017
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
MICHAEL R. LEATHERS,
Plaintiff - Appellee,
v.
RONALD LEATHERS,
Defendant - Appellant, No. 15-3264
and
INTERNAL REVENUE SERVICE;
JAMES HOLDEN, Trustee for The Dirt
Cheap Mine Trust
Defendants - Appellees,
and
CHESAPEAKE OPERATING, INC.;
OXY USA INC.; ANADARKO
PETROLEUM COMPANY, L.P.;
PIONEER NATURAL RESOURCES
U.S.A., INC.; MERIT ENERGY
COMPANY,
Defendants.
------------------------------
JOE ALFRED IZEN, JR.,
Attorney - Appellee.
–––––––––––––––––––––––––––––––––––
MICHAEL R. LEATHERS,
Plaintiff - Appellee,
v.
RONALD LEATHERS; RONDA R.
OLSON; RUSTIN R. LEATHERS; No. 15-3280
INTERNAL REVENUE SERVICE,
Defendants - Appellees,
JAMES HOLDEN, Trustee for The, a/k/a
Dirt Cheap Mine Trust,
Defendant - Appellant,
and
CHESAPEAKE OPERATING, INC.;
OXY USA INC.; ANADARKO
PETROLEUM COMPANY, L.P.;
PIONEER NATURAL RESOURCES
U.S.A., INC.,
Defendants.
------------------------------
JOE ALFRED IZEN, JR.,
Movant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Kansas
(D.C. No. 6:08-CV-01213-EFM-GEB)
_________________________________
Gary D. Fielder, Arvada, Colorado, for Ronald Leathers.
2
Joe Alfred Izen, Jr., Bellaire, Texas, for James Holden, Trustee for the Dirt Cheap Mine
Trust, and Joe Alfred Izen, Jr.
Randolph L. Hutter, Attorney, Tax Division (Caroline D. Ciraolo, Principal Deputy
Assistant Attorney General, Francesca Ugolini, Attorney, Tax Division, and Barry R.
Grissom, United States Attorney, appeared with him on the briefs), United States
Department of Justice, Washington, D.C., for the Internal Revenue Service/United States.
Aaron L. Kite, Rebein Bangerter Rebein PA, Dodge City, Kansas, for Michael R.
Leathers.
Derek S. Casey (Grant D. Klise with him on the brief), Triplett, Woolf & Garretson,
LLC, Wichita, Kansas, for Ronda R. Olson and Rustin R. Leathers.
_________________________________
Before BACHARACH, PHILLIPS, and McHUGH, Circuit Judges.
_________________________________
McHUGH, Circuit Judge.
_________________________________
I. INTRODUCTION
This case involves a dispute over the ownership of mineral rights appurtenant to
several tracts of land located in Haskell County, Kansas, as well as the royalties due on
those mineral rights. Michael Leathers and his brother Ronald Leathers each inherited
half of these mineral rights from their mother.1 But an error in a quit claim deed
subsequently executed between the brothers left it unclear whether Ronald’s one-half
interest in the mineral estate had been conveyed to Michael.
In January 2007, Michael filed a lawsuit seeking to quiet title to the disputed one-
half interest and related royalties. As defendants, Michael named Ronald; Ronald’s ex-
wife, Theresa Leathers; James Holden, as Trustee for an entity called the Dirt Cheap
1
To avoid confusion among the parties with the surname “Leathers,” we refer to
them by their first names.
3
Mine Trust; various energy companies, as producers of natural gas from the mineral
rights; and the United States, on behalf of the Internal Revenue Service (“IRS”), as a
holder of tax liens on any property owned by Ronald.
In a series of orders spanning several years, the district court (1) reformed the quit
claim deed to reflect that Ronald had reserved his one-half interest in the mineral estate;
(2) awarded half of Ronald’s one-half interest (i.e., a one-quarter interest) to Theresa,
pursuant to Ronald and Theresa’s divorce decree; and (3) held that Ronald owed
approximately $1.5 million to the IRS and that the IRS’s tax liens had first priority to any
present and future royalties due to Ronald from his remaining one-quarter mineral
interest.
Ronald filed a timely appeal (Case No. 15-3264), and Holden and Joe Alfred
Izen, Jr., the attorney for the Dirt Cheap Mine Trust, filed a separate appeal (Case No.
15-3280). The appeals were briefed and argued separately, and they largely raise
independent issues. Nonetheless, because both appeals arise from a common,
complicated factual and procedural background, we consolidate them for disposition and
consider both appeals in this Opinion. For the reasons set forth below, we affirm the
district court’s judgment on all grounds.
II. BACKGROUND
A. Factual History
1. The Mineral Interests
Michael Leathers and Ronald Leathers are brothers, and Louise Leathers was their
mother. Louise owned 2.5 sections of land in Haskell County, Kansas (the “Property”). In
4
1973, Michael, Ronald, and Louise signed a partnership agreement forming a general
partnership called the Leathers Land Company. Louise transferred the surface estate of
the Property to the partnership, but she reserved ownership of the appurtenant mineral
estate. When Louise died in 1991, ownership of the mineral estate passed to Michael and
Ronald in equal shares. Michael and Ronald also each became 50 percent owners of the
Leathers Land Company.
In 1996, Michael invoked a mutual buy-out provision of the partnership agreement
in order to purchase Ronald’s 50 percent share of the Leathers Land Company’s assets.
This move led to a dispute between the brothers which ended in a state-court judgment
ordering Ronald to convey his 50 percent interest in the surface estate of the Property to
Michael. On May 11, 1998, Ronald signed a quit claim deed (the “Quit Claim Deed” or
the “Deed”) which transferred all of Ronald’s interest in the Property to Michael. Critical
here, the Deed did not expressly reserve Ronald’s 50 percent interest in the Property’s
mineral estate. The Deed was recorded in Haskell County.
In June 2000, Ronald’s wife, Theresa Leathers, filed for divorce in Kansas state
court. In connection with the divorce, Theresa filed a Notice of Lis Pendens with the
Register of Deeds in Haskell County, specifically referencing the Property.2
While the divorce was pending, Michael began hearing from several energy
companies about issues with the title to the mineral rights in the Property. In September
2
A notice of “lis pendens” is “[a] notice, recorded in the chain of title to real
property, required or permitted in some jurisdictions to warn all persons that certain
property is the subject matter of litigation, and that any interests acquired during the
pendency of the suit are subject to its outcome.” Lis pendens, Black’s Law Dictionary
(10th ed. 2014).
5
2000, a representative from Chesapeake Energy Company (“Chesapeake”) told Michael
that the Deed had not reserved to Ronald any mineral rights appurtenant to the Property.
The representative tried to contact Ronald as well, but Ronald did not respond.
In October 2001, Anadarko Petroleum Corporation (“Anadarko”) contacted
Michael about future royalty payments on production from a new well. A division order
included in the correspondence stated that Ronald held “no interest” in the mineral rights
appurtenant to the Property, that Michael owned 50 percent of the rights, and that another
entity owned the other 50 percent. Anadarko asked Michael to make any necessary
corrections to the division order before signing and returning it. Michael edited the
division order to show that he and Ronald each owned 50 percent of the mineral rights,
and he sent it to Anadarko along with a letter explaining that this reflected the accurate
ownership of the mineral estate and also noting his belief that Theresa would receive half
of Ronald’s share in their pending divorce. Michael also sent a copy of the letter to
Theresa’s attorney.
In subsequent communications, Anadarko told Michael (1) that he would need to
transfer 50 percent of the mineral rights to Ronald in order to fix the problem created by
the Deed, (2) that Anadarko had sent a letter to Ronald informing him of the Deed’s
effect, and (3) that payment of one-half of future royalties would be held in a suspense
account until the issue was resolved.
In January 2002, Michael began receiving, and depositing in his bank account,
royalty payments from the new Anadarko well. That same month, Ronald stopped
6
receiving royalty payments from Chesapeake. Ronald called Chesapeake and was
informed of the title problem.
In May 2002, Michael testified in Ronald and Theresa’s divorce case regarding the
ownership, and value, of the mineral interests in the Property. Despite the unresolved title
problem, Michael testified that Ronald owned half of the mineral rights. On July 5, 2002,
the divorce court entered a divorce decree which awarded Theresa a 25 percent interest in
the mineral rights in the Property (i.e., half of Ronald’s 50 percent interest). The divorce
court did not reform the Deed to reflect a reservation of mineral rights to Ronald.
Confusion over ownership of the mineral estate and entitlement to royalty
payments persisted for several more years. Theresa advised Ronald in 2003, and again in
2004, that she was not receiving royalty checks from Chesapeake, due to Chesapeake’s
concern about the title problem. In April 2004, Michael received his first royalty payment
for production from another new Anadarko well, which he deposited in his bank account.
In early November 2005, Ronald sent Michael a letter in which Ronald claimed he
recently had discovered the problem with the Deed and believed Michael had been
receiving royalty payments that should have been paid to him. Michael responded about a
week later, noting that Ronald was informed of the Deed problem in October 2001 and
that Theresa’s attorney was informed later that year. Michael offered to help investigate
any problems with Ronald’s royalty payments if Ronald provided more information, and
he agreed to execute a new quit claim deed conveying to Ronald and Theresa in equal
shares the one-half mineral interest Ronald had inherited. Ronald did not respond to this
offer.
7
In December 2006, Michael determined that Ronald and Theresa were not
receiving royalty payments on production from several wells and came to believe he had
received payments belonging to one or both of them.
2. The IRS Tax Liens
Ronald did not file tax returns during the years 1997 through 2005, but the IRS
determined that he owed, and so assessed against him, federal income tax for those years.
The IRS then filed several Notices of Federal Tax Liens in Haskell County, Kansas,
thereby effectively encumbering the Property. In April 2005, and again in September
2006, the IRS filed a tax lien for tax years 1997 through 2002. In November 2007, the
IRS completed and mailed to Ronald a tax assessment for the years 2003 through 2005.
In February 2008, the IRS filed a tax lien for Ronald’s tax liabilities from those years. All
told, the IRS concluded that Ronald owed more than $900,000 in income tax, not
including interest or penalties.
3. The Dirt Cheap Mine Trust
After receiving notice of the first tax liens, Ronald enlisted the services of James
Holden to help Ronald protect his assets. Holden drafted and, on October 6, 2006,
executed a “Contractual Trust Agreement” which created a trust called “The Dirt Cheap
Mine” (the “Dirt Cheap Mine Trust” or the “Trust”), ostensibly to “provide a retirement
vehicle for Ronald Roy Leathers.” The agreement appointed Holden as Trustee for the
8
Dirt Cheap Mine Trust3 and contemplated that Ronald would convey to the Trust “a
certain chose in action” in exchange for 45/100 units of “Participation” in the Trust.
That same day, Ronald signed a notarized document entitled “Irrevocable
Assignment of Chose(s) in Action” whereby he “convey[ed] all right, title and interests to
[the mineral rights he had inherited] and ‘chose(s) in action’ flowing from said ‘mineral
rights’” to the Trust. The Trust allegedly was created to recover Ronald’s portion of the
mineral rights appurtenant to the Property and any royalties mistakenly paid to Michael.
But Ronald and Holden both would later concede that the Trust was created to shield
Ronald’s assets from the IRS.
4. The Texas Reformation Action
On October 20, 2006, an attorney named Joe Alfred Izen, Jr., filed a lawsuit on
behalf of Ronald and Holden in Texas state court against Michael; Michael’s wife, Nancy
Leathers; Anadarko; Pioneer Natural Resources, USA, Inc.; OXY USA Inc.; and Coastal
Petroleum, Inc. The lawsuit sought to reform the Quit Claim Deed, to recover royalty
payments that should have been paid to Ronald, and to recover damages from Michael.
The Texas case was later dismissed for lack of subject matter jurisdiction because it was
deemed an in rem action affecting the Property located in Kansas.
Meanwhile, on October 23, 2006, Holden signed a notarized document that
appointed and retained Izen “to represent the financial interests of [the] Trust.” In
exchange for Izen’s services, the document awarded Izen 45 of the remaining 55 units of
3
For simplicity, we refer to James Holden by his last name only. But in all
respects relevant to this case Holden is acting on behalf of the Dirt Cheap Mine Trust, in
his capacity as Trustee.
9
Participation in the Trust. On October 27, 2006, Holden executed an “Attorney
Consultation and Fee Contract” with Izen on behalf of the Trust, under which the Trust
retained Izen for a contingent fee of 45 percent of any amount collected from Michael,
Michael’s wife Nancy, and Theresa. Ronald was not a party to either agreement.
5. The Oxy Interpleader Action
On February 26, 2007, one month after Michael initiated the present case (which
is addressed below), OXY USA Inc. (“Oxy”) filed an interpleader action in the United
States District Court for the Southern District of Texas, naming Michael, Nancy, Ronald,
Holden, and the IRS as defendants. Oxy was holding approximately $25,000 in
suspended royalty payments owed on the disputed one-half mineral interest and sought
the assistance of the court in determining who was entitled to the money.
Michael and Nancy disclaimed any interest in the royalty payments. That left the
IRS, on the one hand, and Ronald and Holden, on the other, with competing claims to the
money. The district court concluded, and the attorney for Ronald and Holden seemingly
conceded, that Holden was a “fake trustee,” that there was “no substance to the [Dirt
Cheap Mine Trust],” and that the Trust was a “fake trust.” Therefore, the district court
concluded the IRS had the superior claim to the money.
Ronald and Holden appealed, and the United States Court of Appeals for the Fifth
Circuit affirmed in an unpublished opinion. See OXY USA Inc. v. Holden, 306 F. App’x
69 (5th Cir. 2009) (per curiam) (unpublished). As relevant here, the Fifth Circuit stated
that “[t]he parties conceded [in the district court] that Dirt Cheap Mine Trust was a fake
10
trust, and therefore Holden did not have an interest in the funds superior to Ronald and
the IRS.” Id. at 72.
B. Procedural History
1. The Present Case, Generally
On January 5, 2007, Michael filed three separate actions in the Kansas state
district court located in Haskell County (the “state court”), seeking to quiet title to the
disputed one-half mineral interest and the suspended royalties, pursuant to Kansas
Statutes Annotated § 60-1002. Michael named as defendants Ronald, Holden, Theresa,
and the various energy companies with producing wells on the Property. The three
actions eventually were consolidated.
Ronald and Holden initially were represented by local counsel, who filed answers,
counterclaims, and crossclaims on their behalf. Then, in March 2007, Izen was admitted
pro hoc vice to represent Ronald and Holden in the case.
In December 2007, Michael discovered the IRS had filed tax liens against Ronald
and moved to amend his petition and to add the United States as a necessary party. His
motions were granted, and on June 16, 2008, Michael filed an amended petition, naming
the United States as a party potentially claiming an interest in the disputed mineral rights
and royalties. The United States filed a notice of removal on July 16, 2008, and the case
was removed to the United States District Court for the District of Kansas (the “district
court”).
11
Before and after the amended petition was filed and the case removed, the parties
submitted various answers, counterclaims, and crossclaims. Because many of these
separate actions are relevant to the issues on appeal, we summarize them briefly here.
a. Ronald and Holden
In February 2007, Ronald and Holden filed an answer to Michael’s original quiet
title petitions in which they asserted affirmative defenses and brought counterclaims,
crossclaims, and third-party actions. Among the defenses asserted were (1) reformation,
asking that the Deed be reformed to reflect the parties’ intention that Ronald would retain
the one-half mineral interest he had inherited; and (2) unjust enrichment, stating that
Michael paid nothing for the erroneously transferred mineral interest and was unjustly
enriched by his retention of the interest and receipt of associated royalty payments.
They also asserted four causes of action as either a counterclaim or a crossclaim:
Restitution and/or Recovery of Legal Damages—First, the response
asserted a counterclaim against Michael and the energy companies for a decree of
restitution ordering that any royalties attributable to the disputed one-half interest
(whether disbursed or held in suspense) be paid to Holden (not Ronald), since
Ronald allegedly assigned his interest to the Trust.
Breach of Fiduciary Duty and Imposition of Constructive Trust—Second,
the response asserted a counterclaim against Michael, alleging Michael owed
Ronald a fiduciary duty under Kansas law and breached that duty in various ways.
Decree for Complete Accounting—Third, the response asked for a decree
directing all other parties, except Theresa, to prepare and file with the district court
a complete accounting of all payments made, due, or received, which are
attributable to the disputed one-half interest.
Declaratory Judgment or Equitable Decree—Finally, as a crossclaim
against Theresa, the response asserted Ronald and Holden are entitled to a decree
finding that, to the extent they successfully recover the mineral interest, royalty
money, or other damages, they should recover those damages free of any claim of
12
Theresa. Ronald and Holden asserted that, due to the Deed, Ronald did not own
the mineral interest at the time of Theresa and Ronald’s divorce. They therefore
claimed the divorce court lacked authority to award Theresa a share of the mineral
interest in the decree because it was not marital property.
Ronald and Holden summarized their requested relief in a list of 15 items, which
included reformation of the Deed and an order declaring that the disputed one-half
interest and related royalties are now owned by Holden, as Ronald’s assignee. Neither
Ronald nor Holden filed a response to Michael’s amended petition.
b. Theresa
In February 2007, Theresa filed answers to Michael’s original petitions, requesting
that the court enter a decree quieting title, assigning her a 25 percent interest in the
mineral rights, and ordering the energy companies to pay her the corresponding portion
of the suspended royalties. On July 30, 2008, Theresa filed in the state court an
“Answer/Cross-claim/Counter-claim” to Michael’s amended petition. Because the United
States had removed the case already, this pleading was not transferred to the district
court. Theresa then filed a notice of her pleading in the district court, with the pleading
attached.
Theresa organized her counterclaim against Ronald and Holden, and crossclaim
against Michael, under the same heading, generally asserting that (1) she is entitled to a
judgment declaring her the owner of 25 percent of the mineral rights appurtenant to the
Property, contrary to Michael’s claim; (2) Ronald is barred by res judicata from asserting
claims against her that conflict with the divorce decree; (3) Ronald and Holden’s claims
against her should be disallowed because they are meritless; (4) she should be awarded
13
fees associated with defending against Ronald and Holden’s claims; (5) the court should
order an accounting, similar to that requested by Ronald and Holden; and (6) the court
should order that her interest in the mineral estate and royalties is free of any claim by the
IRS.
c. The United States
After removing the case to federal court, the United States filed its first answer to
Michael’s amended petition on August 18, 2008. On June 21, 2010, the government filed
an amended answer in which it asserted a single crossclaim against Ronald. Specifically,
the government brought a civil action under 26 U.S.C. § 7401 to reduce the outstanding
tax assessments against Ronald to judgment. The government alleged that, as of May 1,
2010, Ronald owed approximately $1.4 million in income tax for the years 1997 through
2005, including interest, and it asked for a judgment against Ronald in that amount, plus
future interest. Ronald and Holden answered the United States’ crossclaim on July 9,
2010, asserting various affirmative defenses.
2. Bifurcation, and First Round of Dispositive Motions in the
Quiet Title Phase
In November 2008, the district court granted the parties’ joint motion for separate
trials, ruling that the case should be bifurcated. The court determined that the quiet title
issues, including Ronald and Holden’s, and Theresa’s, respective counterclaims and
crossclaims, should be addressed in the first phase of the litigation. All other issues,
including the accounting actions and tax matters, would be addressed in a second phase
thereafter.
14
Between March and April of 2009, Theresa, Michael, and Ronald and Holden
each filed motions for summary judgment regarding the first-phase issues and claims. On
May 13, 2010, after the motions were fully briefed and heard, the district court issued a
comprehensive order granting Theresa’s motion, and granting in part and denying in part
both Michael’s, and Ronald and Holden’s, motions (“May 2010 Order”). We now
summarize the parties’ arguments, and the district court’s findings, with respect to the
issues relevant to the present appeals.
a. Reformation and Quiet Title
Theresa moved for summary judgment, asking the court to grant Michael’s request
for quiet title. Specifically, Theresa argued the court should (1) reform the Deed to reflect
the parties’ original intention that Ronald would reserve his one-half mineral interest, and
(2) enforce the divorce decree by awarding her half of Ronald’s 50 percent mineral
interest. Michael did not oppose Theresa’s requested relief. Although Ronald and Holden
also sought reformation of the Deed to reflect the parties’ intent that Ronald retain his 50
percent interest in the mineral estate, they opposed on several grounds Theresa’s claim to
a one-quarter portion of the mineral rights.
The district court determined reformation was appropriate under Kansas law due
to mutual mistake because both Michael and Ronald intended that Ronald would retain
his one-half interest in the mineral estate when he conveyed his one-half interest in the
surface estate to Michael by the Deed. The district court further concluded that the
reformation related back to the date the Deed was executed—May 11, 1998—and took
15
effect from that date forward, binding all but good faith purchasers in any subsequent
transactions.
The district court then quieted title to the mineral rights in the following shares: 50
percent to Michael, 25 percent to Ronald, and 25 percent to Theresa in accordance with
the divorce decree. In doing so, the court rejected Ronald and Holden’s various
arguments opposing Theresa’s claim. First, it disposed of their argument that the divorce
court lacked authority to award Theresa an interest in the mineral rights because, per the
mistake in the Deed, Ronald did not own the rights at the time of the divorce. The district
court found, to the contrary, that Ronald owned the mineral rights at the time of the
divorce because the reformation related back to the date the Deed was signed, which
occurred before entry of the divorce decree.
Next, the court rebuffed several of Ronald and Holden’s arguments premised on
the notion that Theresa was attempting to reopen, modify, and/or set aside the divorce
decree—e.g., arguments invoking a statute of limitations bar, the domestic relations
exception to federal jurisdiction, and other jurisdictional limitations—because the court
concluded Theresa was not attempting to do any of those things. Rather, Theresa was
asking the court to enforce the divorce decree as written. And the district court
determined the divorce court’s judgment should be given preclusive effect because
Ronald and Theresa had a fair opportunity to litigate their claims in the divorce
proceeding. Thus, the district court concluded that, to the extent Ronald and Holden were
attempting to relitigate the divorce court’s award of half Ronald’s mineral interest to
Theresa, their claim was barred by res judicata and full-faith-and-credit principles.
16
b. Unjust Enrichment / Constructive Trust
Michael, and Ronald and Holden, filed cross motions for summary judgment on
Ronald and Holden’s claim for unjust enrichment and their request that the court impose
a constructive trust on royalties which belonged to Ronald but were paid to Michael.4
Michael argued the unjust enrichment claim failed as a matter of law because Ronald did
not confer a benefit on him, the claim was barred by the doctrine of unclean hands, the
claim was barred by the statute of limitations, and Ronald could not recover on the claim
in any event because he had transferred his interest to the Dirt Cheap Mine Trust.
The district court determined that summary judgment was not warranted on the
unjust enrichment claim because a reasonable jury could find (1) a benefit was conferred
on Michael, (2) Michael had an appreciation or knowledge of that benefit beginning in
December 2006, and (3) Michael retained or accepted that benefit when he deposited
certain disputed royalty payments in his bank account. Turning to Michael’s unclean
hands defense, the court concluded a jury should decide, based on the evidence, whether
Ronald acted with unclean hands. Next, the court determined the unjust enrichment claim
was not barred by Kansas’s three-year statute of limitations because the limitations period
4
Ronald and Holden had claimed that the court should impose a constructive trust
on these payments because Michael breached a fiduciary duty he owed to Ronald. But the
court concluded Michael did not owe Ronald a fiduciary duty, and no party challenges
that determination in either appeal. The district court explained, however, that because a
constructive trust is an equitable remedy, as opposed to an independent claim, Ronald
and Holden could request a constructive trust as a remedy for their unjust enrichment
claim.
17
did not begin to run until Michael knew of the misapplied royalty payments, which a jury
could find to be December 20065—within the limitations period.6
3. Culmination of the Quiet-Title Phase
Following the May 2010 Order, the parties participated in a pretrial conference,
and on July 12, 2011, the district court issued a pretrial order which, among other things,
defined the scope of the remaining factual and legal issues in the quiet title stage. Around
this time, the parties submitted various additional dispositive motions.
Theresa moved for summary judgment on her remaining claim of unjust
enrichment against Michael. In late July 2011, Ronald and Holden filed a “First
Amended Counter-claim and Cross-claim” in which they reasserted many of their prior
claims addressed in the May 2010 Order and pleaded counterclaims for conversion and
fraud-by-silence against Michael. They then moved for summary judgment on the
conversion and fraud-by-silence claims. Michael filed a motion to dismiss or for
summary judgment on those counterclaims.
On May 29, 2012, the district court issued an order addressing these and other
motions (“May 2012 Order”). It denied Theresa’s motion for summary judgment against
Michael on her unjust enrichment claim “essentially for the same reasons as set out in the
5
Although the court’s order says January 2006, it is apparent, based on the court’s
findings with respect to the second element of unjust enrichment, that this is a
typographical error.
6
Ronald and Holden also moved for summary judgment on the validity of the Dirt
Cheap Mine Trust, asking that the district court find it is a valid trust. The district court
declined to rule on that issue at that time because not all parties had been given a chance
to present arguments on it.
18
[May 2010 Order]” with respect to Ronald and Holden’s unjust enrichment claim. The
district court also denied Michael’s motion to dismiss the conversion and fraud-by-
silence counterclaims; however, it granted Michael’s alternative request for summary
judgment as to both. Thus, after the May 2012 Order, there remained two unresolved
issues in the first phase of the litigation: (1) “Do the royalty payments received by
Michael result in a constructive trust for Ronald and Theresa?” and (2) “Was Michael
unjustly enriched?”
After the energy companies had submitted their royalty accountings, Michael filed
another motion for summary judgment requesting that the district court limit his
monetary exposure on the unjust enrichment claims. On August 28, 2013, the district
court granted Michael’s motion (“August 2013 Order”). The court found that the amount
of money received by Michael which should have been paid to Ronald and Theresa was
$32,665.96 and that this figure represented Michael’s maximum liability on the unjust
enrichment claims. Because Ronald and Theresa each were entitled to half of that
amount, Michael’s maximum liability on each claim was $16,332.98.
Theresa died at some point during the litigation, and the representative of her
estate accepted an offer of judgment from Michael for $16,332.98. The district court
entered judgment against Michael for this amount in December 2013. Although Ronald
and Holden’s parallel claim initially was set for an October 2014 bench trial, along with
tax issues from the second stage of the case, the bench trial was postponed when the court
learned that Ronald had filed for bankruptcy in Colorado. Thereafter, Holden accepted an
offer of judgment from Michael for $16,332.98, and on September 2, 2015, the district
19
court approved a stipulated order of partial judgment resolving the unjust enrichment
claim in favor of Holden and against Michael. The stipulated order declared that Holden
held the unjust enrichment claim by virtue of Ronald’s assignment of his choses in action
to the Trust in 2006. The district court later noted that Ronald “has waived or is estopped
from challenging Holden’s settlement of the unjust enrichment claim with [Michael],
based on Ronald’s representation that Holden was his assignee on this claim.” These
judgments disposed of the unjust enrichment claims and brought the quiet title phase of
the bifurcated proceedings to an end.
4. The Tax Phase
As noted above, after the United States removed this case to federal court, it filed
a crossclaim against Ronald seeking to reduce Ronald’s outstanding tax debt to judgment.
Ronald and Holden filed an answer to the crossclaim in which they raised various
affirmative defenses and sought attorney fees “they incurred in proving ownership of the
mineral interests in question against which the United States purports to assert a lien.”
On November 28, 2012, the United States moved for summary judgment on its
crossclaim and for dismissal of Ronald and Holden’s claim for attorney fees. The
government submitted exhibits showing that Ronald failed to pay income taxes from
1997 to 2005 and that, as of September 21, 2012, he owed the IRS $1,561,117.06. Ronald
and Holden, through Izen, opposed the motion on various grounds. They asserted that,
even if the IRS had a valid claim to royalty payments from Ronald’s mineral interest,
Izen’s contingent fee agreement with the Trust gave him a superpriority lien on any
recovery by the Trust over and above any tax lien, pursuant to 26 U.S.C. § 6323(b)(8).
20
On May 3, 2013, the district court issued an order granting in part and denying in
part the United States’ motion (“May 2013 Order”). Based largely on deficiencies in
Ronald and Holden’s response, the district court concluded that the government’s version
of the facts was uncontroverted. The court then granted summary judgment for the United
States on Ronald’s tax debt for the years 1997 and 1999 through 2005, and reduced the
assessments from those years to judgment. But it decided that a factual dispute precluded
summary judgment as to tax year 1998.
The district court also concluded that all royalties found owing to Ronald would
be subject to the IRS tax liens, but it did not finally determine the priority of those liens
vis-à-vis other claims. The court rejected the government’s contention that the “fake
trust” findings made in the Oxy interpleader action collaterally estopped Ronald and
Holden from arguing Ronald’s assignment to the Trust gave the Trust a valid claim to the
royalties. Specifically, the court concluded the finding of the Texas federal court—that
Ronald and Holden had conceded the Trust was a “sham”—did not represent a final
adjudication on the merits of the Trust’s validity because the validity of the Trust was not
actually litigated in that case. The court reserved the issue for trial, “express[ing] no
opinion . . . on the validity of the trust or the purported assignment by Ronald.” And the
district court granted the government’s summary judgment motion with respect to Izen’s
claim for attorney fees under 26 U.S.C. § 6323(b)(8), but it did so without prejudice to
reassertion of the claim at a later time.
Next, in December 2013, the United States filed a motion for summary judgment
seeking to foreclose its tax liens and establish their priority. Holden (apparently without
21
Ronald) filed a cross motion for partial summary judgment. On February 27, 2014, the
district court issued an order granting in part and denying in part the United States’
motion and denying Holden’s (“February 2014 Order”). The court concluded that the tax
lien for the years 1997 and 1999 through 2002, which the IRS first filed in April 2005,
had first priority to the royalties from Ronald’s share of the mineral interest, and that
Holden had conceded as much. But the court determined there was a triable issue of fact
as to the priority of the lien for the years 2003 through 2005. Because Ronald purportedly
transferred his mineral interest and choses in action to the Trust in October 2006, and the
IRS did not file a lien on the 2003–2005 taxes until 2008, the court explained that the lien
for those years would not be valid against the Trust “unless [the United States]
establishes that Ronald fraudulently transferred his interest to the trust.”
Thus, the parties prepared and submitted briefing for a bench trial on the
remaining issues in the case: (1) the United States’ claim against Ronald for unpaid taxes
from 1998; (2) the validity of the Dirt Cheap Mine Trust and/or Ronald’s October 2006
transfer to it; and (3) Izen’s renewed request for attorney’s fees pursuant to 26 U.S.C.
§ 6323(b)(8). The district court held a bench trial on September 17, 2015 and issued its
rulings in a written order on September 25, 2015 (“September 2015 Order”).
First, the court held that the United States was entitled to judgment on its claim
against Ronald for $192,205.24 in unpaid taxes from 1998. Second, the district court
found that “Ronald’s transfer of the chose-in-action involving his mineral rights to the
trust (as well as the transfer of the mineral rights, to the extent he purported to transfer
them) constituted a fraudulent transfer with respect to his tax debt to the IRS.” The court
22
reasoned that the “circumstances surrounding the transfer and the deposition testimony of
Ronald and Holden show that Ronald’s intent in making the transfer was to hinder the
IRS from collecting Ronald’s tax debt.” Indeed, the district court found that “the whole
purpose of the trust was to attempt to remove from the reach of the IRS the mineral
interest and any royalties to which Ronald was or would be entitled.” The court noted that
Holden himself had acknowledged that, “if Ronald’s purpose had been merely to sue
Michael to obtain a share of the mineral rights and royalties, he could have simply
retained Izen to pursue the claim on a contingency fee basis and wouldn’t have needed
any sort of trust or transfer of property.” As a result, the district court declared the
transfer to be “null and void” and held “the federal tax liens are senior to any interest in
the property claimed by Ronald Leathers, the Dirt Cheap Mine Trust, or James Holden.”
The court accordingly held that the government was entitled to a final judgment against
Ronald in the amount of $1,545,779.36, which represented Ronald’s current, combined
tax obligations for the years 1997 through 2005.
Finally, the district court granted Izen’s request for attorney fees, in part. Izen
requested a total of $164,178.16 in fees and costs, but the court awarded him a total of
$39,689.88. Pursuant to 26 U.S.C. § 6323(b)(8), the court held Izen had a lien in that
amount which was superior to the federal tax liens.
5. Post-Judgment
The September 2015 Order disposed of all remaining issues in the case. On the
same day the order was issued, the court entered a judgment which briefly summarized
its various rulings throughout the bifurcated proceedings. On October 23, 2015, Holden
23
and Izen together filed a “motion for new trial and motion for amended and/or additional
findings,” and Izen separately filed a “motion for rehearing or new trial and motion for
amended and/or additional findings.” The district court denied both motions on
November 19, 2015.
Ronald filed a timely appeal from the district court’s judgment, and Holden and
Izen jointly filed a separate appeal. Although the three acted together in the district court,
with Izen representing both Ronald and Holden in his capacity as Trustee, their interests
are not aligned on appeal. Theresa’s appellate interests are being pursued by her
successors, Ronda R. Olson and Rustin R. Leathers, but for the sake of clarity, we
continue to refer to the claims as Theresa’s. We have jurisdiction under 28 U.S.C. § 1291.
In the interest of clarity, we address the substantive aspects of the two appeals
separately, beginning with Ronald’s appeal before turning to Holden and Izen’s. For the
reasons set forth below, we affirm the district court’s judgment on all grounds.
III. CASE NO. 15-3264, RONALD’S APPEAL
Ronald lists ten issues in the statement of issues section of his brief, but the
argument section does not address each issue. We have identified the issues Ronald
actually briefs as: (1) the state court lacked subject matter jurisdiction over the initial
quiet title actions because Michael did not have standing, and therefore the state court’s
orders are void; (2) the district court also lacked subject matter jurisdiction; (3) Izen’s
simultaneous representation of Ronald and Holden created a conflict of interest; (4) the
Dirt Cheap Mine Trust is a sham trust; (5) Ronald’s mineral interest and royalties were
taken in violation of due process; and (6) the district court erred in limiting Michael’s
24
potential liability for unjust enrichment damages to misapplied payments received in
December 2006 or later. We address and reject these arguments in turn.
A. The State Court’s Jurisdiction
Ronald first contends that Michael lacked standing to bring the underlying quiet
title actions in Kansas state court and that the state court therefore lacked subject matter
jurisdiction.7 Specifically, Ronald argues Michael had no legitimate claim to the one-half
mineral interest and therefore could not bring an action under the Kansas quiet title
statute, Kansas Statutes Annotated § 60-1002.8 According to Ronald, because the state
court did not have jurisdiction, its “orders . . . allowing Attorney Izen to practice, Michael
to amend his petition, and the United States to be added as an indispensable party are
void.” We disagree.
“[S]tanding is a jurisdictional issue in Kansas.”9 Mid-Continent Specialists, Inc. v.
Capital Homes, L.C., 106 P.3d 483, 488 (Kan. 2005). “The issue of whether a party has
7
Aside from the issue of standing, the state court otherwise had jurisdiction
because it is the court located in the same county as the Property. See Kan. Stat. Ann.
§ 60-601(b)(1); see also Crone v. Nuss, 263 P.3d 809, 820 (Kan. App. 2011) (“The trial
court, being in the county in Kansas in which the disputed land was situated, acquired the
jurisdiction to determine each party’s interest.” (citing Kan. Stat. Ann. §§ 60-601(b)(1),
60-1002)).
8
Although Ronald’s heading introducing the standing discussion invokes the
federal-law concepts of “Article III standing” and “prudential standing,” he does not
reference either of these federal concepts in the argument section. Rather, Ronald cites
only to Kansas law.
9
The parties assume Kansas law controls the question of whether Michael had
standing to bring the underlying quiet title actions in state court. Cf. City of Moore v.
Atchison, Topeka, & Santa Fe Ry. Co., 699 F.2d 507, 511 (10th Cir. 1983) (applying state
law to determine standing in case removed to federal court on the basis of diversity).
25
standing in a judicial action . . . presents a question of law.” Sierra Club v. Moser, 310
P.3d 360, 367 (Kan. 2013). Like other jurisdictional issues, we review questions of
standing de novo. Meyer v. Christie, 634 F.3d 1152, 1156 (10th Cir. 2011); accord Mid-
Continent Specialists, 106 P.3d at 488.
Under Kansas law, “[s]tanding to sue means that a party has a sufficient stake in
an otherwise justiciable controversy to obtain judicial resolution of that controversy.”
Dutoit v. Bd. of Cty. Comm’rs, 667 P.2d 879, 887 (Kan. 1983). A plaintiff must satisfy
both the relevant statutory standing requirements, if any, as well as traditional or
common-law standing requirements. See Moser, 310 P.3d at 367–69. “[T]o demonstrate
common-law or traditional standing, a person suing individually must show a cognizable
injury and establish a causal connection between the injury and the challenged conduct.”
Id. at 369.
Kansas’s quiet title statute creates a “[r]ight of action” that “may be brought by
any person claiming title or interest in personal or real property, including . . . mineral or
royalty interests, against any person who claims an estate or interest therein adverse to
him or her, for the purpose of determining such adverse claim.” Kan. Stat. Ann. § 60-
1002(a). “Thus, in order to properly bring a quiet title action pursuant to the statute, a
person must claim ‘title or interest’ in the real property.” Dubowy v. Baier, 856 F. Supp.
1491, 1497 (D. Kan. 1994) (discussing Kan. Stat. Ann. § 60-1002). The person against
whom the action is brought must “claim[] an estate or interest therein which is adverse to
that of the owner” who filed the action, and “[t]he action may be brought for the purpose
of determining such adverse claims.” LaBarge v. City of Concordia, 927 P.2d 487, 494
26
(Kan. App. 1996) (internal quotation marks omitted). “Ordinarily a quiet title action is
brought to remove a cloud from the title . . . .” Ford v. Sewell, 366 P.2d 285, 289 (Kan.
1961).
Here, Michael had standing under § 60-1002. In his original petitions filed January
5, 2007, Michael claimed ownership of the disputed one-half mineral interest by virtue of
the Quit Claim Deed and asked that title to that interest be quieted in him. He also
detailed the ways in which the “clouded title” to this interest was impeding royalty
payments, and he identified “at least three conflicting claims to the undivided [one-half]
interest”: his own claim, Ronald’s (and the Trust’s) claim, and Theresa’s claim. Thus, we
have here “a factual situation which . . . meet[s] the definition of a quiet title action: two
[or more] parties asserting adverse interests with regard to certain mineral rights.” Ferrell
v. Ferrell, 719 P.2d 1, 4 (Kan. App. 1986).
Ronald seeks to confute Michael’s standing by arguing, essentially, that Michael
either (1) could not “claim” the one-half mineral interest because the divorce court had
already distributed that interest and Michael had testified in the divorce case that Ronald
owned the interest; or (2) did not “claim” the interest because he eventually changed his
position and conceded to the interest being allocated to Ronald and Theresa. Ronald also
seems to argue that Michael could not or did not claim ownership of the one-half mineral
interest because the interest was never transferred to Michael in the first place.
But these arguments ignore several critical and undisputed facts. First, the Deed
did transfer Ronald’s one-half mineral interest in the Property to Michael, as the district
court concluded. Although the district court further found that this transfer was
27
unintended, the Deed nonetheless made Michael the legal owner of 100 percent of the
mineral estate in the Property. And because the Deed had not yet been reformed at the
time of the divorce decree, the divorce court’s allocation of one-half of the mineral estate
between Ronald and Theresa further clouded title. Michael’s testimony in the divorce
case reflects that he knew there was a title problem but believed it eventually would be
resolved in Ronald’s favor. By the time Michael filed his quiet title action, he had revised
his position to claim ownership of the entire mineral estate based on the Deed. In short,
Michael had a valid claim to the disputed mineral interest by virtue of the Deed, and
Ronald’s contention to the contrary is meritless.
Nor does Michael’s eventual desertion of his claim to the interest deprive him of
standing, which is measured as of the time a plaintiff files suit. See U.S. Bank Nat’l Ass’n
v. McConnell, 305 P.3d 1, 6–8 (Kan. App. 2013); accord Davis v. Fed. Election Comm’n,
554 U.S. 724, 734 (2008) (“[T]he standing inquiry remains focused on whether the party
invoking jurisdiction had the requisite stake in the outcome when the suit was filed.”
(emphasis added)); Brown v. Buhman, 822 F.3d 1151, 1164 (10th Cir. 2016). Although
Ronald alleges that Michael abandoned his pursuit of the half interest in the mineral
estate “[o]ne week after the filing of his amended petition,” Ronald fails to mention that
the amended petition was itself filed more than a year after the initial quiet title petitions.
Ronald points to no authority suggesting that Michael’s later change of position can
override the standing conferred by his initial pleadings asserting his legitimate claim to
ownership under the Deed.
28
Ronald also ignores the fact that Michael’s change in position occurred after
Ronald himself had asserted various counterclaims and crossclaims and had asked the
state court to reform the Deed and quiet title to the disputed interest. In Kansas, “[a]s a
general rule a . . . counterclaim or cross-claim has the nature, characteristics and effect of
an independent action or suit by one party against another. Accordingly, . . . a demand
pleaded by way of a . . . counterclaim or cross-claim is regarded as an affirmative action
. . . .” Mynatt v. Collis, 57 P.3d 513, 525 (Kan. 2002) (internal quotation marks omitted).
Ronald does not dispute the state court’s jurisdiction over these independent claims
seeking the same relief as Michael’s initial actions. Thus, even if we were convinced that
Michael’s decision mid-litigation to relinquish his claim to one-half of the mineral estate
affected the state court’s jurisdiction over Michael’s § 60-1002 claims, we still would
conclude the state court had jurisdiction over the case by virtue of the counterclaims and
crossclaims. Cf. Caplinger v. Carter, 676 P.2d 1300, 1304 (Kan. App. 1984) (stating that
a counterclaim can remain pending for independent adjudication even after the plaintiff’s
claims have been dismissed).
We therefore reject Ronald’s argument that the state court lacked subject matter
jurisdiction and his corresponding claim that the state court’s orders are void.
B. The District Court’s Jurisdiction
Ronald also contends the federal district court lacked subject matter jurisdiction
and that its orders, too, are void. Reviewing the issue de novo, see Knight v. Mooring
29
Capital Fund, LLC, 749 F.3d 1180, 1183 (10th Cir. 2014), we reject Ronald’s arguments
and conclude the district court had jurisdiction.10
Ronald first argues that the district court lacked jurisdiction because the state court
lacked jurisdiction, due to Michael’s alleged lack of standing. Because we have
concluded that the state court did have jurisdiction, we reject this contention.
Next, Ronald seems to assert that the district court did not have federal question
jurisdiction over the Kansas quiet title claims. But the district court’s assertion of subject
matter jurisdiction did not rest on federal question jurisdiction. When Michael learned of
the federal tax liens on Ronald’s property and added the United States as a necessary
party to the state-court litigation, he did so under the authority of 28 U.S.C. § 2410,
which waives the United States’ sovereign immunity with respect to state-court quiet title
actions concerning property over which the government has asserted a lien.11 See 28
U.S.C. § 2410(a); Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir. 1992). “As a trade off
for the waiver of sovereign immunity, [28 U.S.C. § 1444] permits the government to
10
In their answer to Ronald’s opening brief in Case No. 15-3264, Holden and Izen
agree that Michael had standing in the state court and that the district court generally had
jurisdiction, but they argue the district court did not have jurisdiction to issue certain
rulings concerning Theresa Leathers. We address their contentions on this latter point in
our discussion of their appeal, Case No. 15-3280, below.
11
While Michael’s amended petition does not expressly reference 28 U.S.C.
§ 2410, it satisfies the mandatory pleading requirements of § 2410(b) with deliberate
precision. See Dahn v. United States, 127 F.3d 1249, 1251 (10th Cir. 1997) (explaining
that pleading must comply with requirements of § 2410(b) to invoke the statutory waiver
of sovereign immunity in § 2410(a)). Michael also complied with the service
requirements of § 2410(b), and the summons does reference that statutory provision
explicitly.
30
remove to federal court any such case initiated in state court.”12 Hussain v. Boston Old
Colony Ins. Co., 311 F.3d 623, 629 (5th Cir. 2002).
Section 1444 gives the United States “a substantive right to remove, independent
of any other jurisdictional limitations.” Id. (internal quotation marks omitted); see also
Hudson Sav. Bank v. Austin, 479 F.3d 102, 105 (1st Cir. 2007) (“28 U.S.C. § 1444 . . .
confers upon the federal government an absolute right to remove to federal court [quiet
title] actions in which it is named as a defendant . . . .”). In other words, at the time this
case was removed, the district court’s jurisdiction was premised on §§ 2410 and 1444,
and not, as Ronald claims, on 28 U.S.C. § 1331. See City of Joliet v. New West, L.P., 562
F.3d 830, 833 (7th Cir. 2009) (“[T]he presence of the national government as a party with
a security interest in the real estate supplies jurisdiction.” (citing 28 U.S.C. §§ 1444,
2410)); Hussain, 311 F.3d at 629 (“Once the applicability of § 2410(a) is established,
federal subject matter jurisdiction is present on the basis of § 1444.”); see also Quality
Loan Serv. Corp. v. 24702 Pallas Way, 635 F.3d 1128, 1131–32 (9th Cir. 2011); 14C
Charles Alan Wright et al., Federal Practice and Procedure § 3728, at 307 (4th ed.
2009). We therefore reject this argument, too.13
12
28 U.S.C. § 1444 provides: “Any action brought under section 2410 of this title
against the United States in any State court may be removed by the United States to the
district court for the district and division in which the action is pending.”
13
Although § 1444 supplies a valid basis for removal and federal jurisdiction in
this case, the United States did not expressly invoke § 1444 in its notice of removal. This
omission looks to have been an inadvertent oversight, but we note that even if it could
have rendered the removal procedure defective in some way, the defect would not alter
our decision. This is because the United States’ crossclaim against Ronald under 26
U.S.C. § 7401, asserted promptly upon removal, provided an independent basis for the
31
Finally, Ronald spends two or three sentences articulating his belief that the
district court was precluded by “the doctrines of res judicata and Rooker-Feldman” from
reforming the Quit Claim Deed because the prior divorce decree already established that
Ronald owned the one-half mineral interest. While it is not apparent how these arguments
relate to the district court’s subject matter jurisdiction, we need not dwell on that question
because both points can be rejected on the merits.
The res judicata contention is inadequately briefed and therefore waived, as
Ronald cites no legal authority and offers no explanation beyond his bare assertion that
res judicata precludes reformation in this case. See United States v. Pursley, 577 F.3d
1204, 1228 (10th Cir. 2009) (rejecting an argument a party “mention[ed], but d[id] not
justify,” and did “not cite a single case to support,” under “the principle that arguments
inadequately briefed in the opening brief are waived” (alteration and internal quotation
marks omitted)). This contention is also meritless, as Michael was not a party to, and
neither quiet title nor reformation was litigated in, the divorce case. See Lenox MacLaren
Surgical Corp. v. Medtronic, Inc., 847 F.3d 1221, 1239 (10th Cir. 2017) (stating that two
of the requisite elements of res judicata are “identity of parties or privies in the two suits”
and “identity of the cause of action in both suits” (internal quotation marks omitted)).
district court’s jurisdiction from that point forward. See 26 U.S.C. § 7402; 28 U.S.C.
§§ 1331, 1340, 1345, 1367. And an error in a statutory removal procedure does not
warrant reversal of a judgment on appeal if “the federal trial court would have had
original jurisdiction of the controversy had it been brought in the federal court in the
posture it had at the time . . . of the entry of the judgment.” See Feichko v. Denver & Rio
Grande W. R.R. Co., 213 F.3d 586, 590–91 (10th Cir. 2000) (quoting Am. Fire & Cas.
Co. v. Finn, 341 U.S. 6, 16 (1951)); accord Caterpillar Inc. v. Lewis, 519 U.S. 61, 72–73
(1996).
32
The argument concerning Rooker-Feldman—a doctrine Ronald recognizes “is not
a jurisdictional matter”—fails for equally straightforward reasons. “Rooker-Feldman
precludes federal district courts from effectively exercising appellate jurisdiction over
claims actually decided by a state court and claims inextricably intertwined with a prior
state-court judgment.” Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1233 (10th Cir.
2006) (internal quotation marks omitted). The doctrine “is confined to . . . cases brought
by state-court losers complaining of injuries caused by state-court judgments rendered
before the district court proceedings commenced and inviting district court review and
rejection of those judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S.
280, 284 (2005). Here, the quiet title and reformation claims were not addressed by the
state divorce court, and the district court did not review or reject the divorce court’s
judgment. Furthermore, as a non-party to the state divorce proceedings, Michael cannot
be deemed a state court “loser.” The Rooker-Feldman doctrine therefore does not apply.
Thus, we conclude the district court had jurisdiction and reject Ronald’s various
arguments to the contrary.
C. Conflict of Interest
Ronald’s next complaint is that Izen had an undisclosed conflict of interest and
should not have been representing Ronald in the district court proceedings. Ronald’s
treatment of this claim in his brief begins with a page-long quote of paragraphs (a) and
(b) of ABA Model Rule of Professional Conduct 1.7. Paragraph (a) forbids representation
that involves a concurrent conflict of interest, and paragraph (b) lists circumstances under
which the representation may proceed despite a concurrent conflict. See Model Rules of
33
Prof’l Conduct r. 1.7(a)–(b) (Am. Bar Ass’n 2014). Immediately following this excerpt,
Ronald contends that Izen “violated every subsection.”
We need not decipher the particulars of Ronald’s argument or decide whether a
conflict existed because, regardless, this issue is inadequately briefed and is not properly
before us. Aside from the quoted ABA Rule, Ronald cites to no legal authority, and his
discussion consists largely of tangential references to other substantive areas of the case.
Cf. Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015) (declining to
consider argument as “unsupported and inadequately briefed” where the allegations
offered in support of the argument were “in most cases vague, confusing, conclusory, and
unsupported by record evidence”).14 Plus, this argument is forfeited because Ronald did
not raise it in the district court. See Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 861 (10th
Cir. 2007). Although it may have been difficult for him to do so, since Izen was his
attorney at that time, Ronald does not provide any authority outlining an exception to the
application of normal forfeiture principles in a situation such as this or even offer a
theoretical rationale for such an exception. We therefore decline to consider the merits of
this issue. See Namoko v. Cognisa Sec., Inc., 264 F. App’x 753, 755 (10th Cir. 2008)
14
Even if his argument had been coherently briefed, Ronald does not ask for any
specific relief on the basis of this asserted conflict. We have held before that deciding an
issue under these circumstances would amount to rendering an advisory opinion, which is
something we cannot do. See Pub. Serv. Co. of Colo. v. EPA, 225 F.3d 1144, 1148 n.4
(10th Cir. 2000) (“This court would violate Article III’s prohibition against advisory
opinions were it to [decide a question of law] without ordering some related relief.”);
United States v. Burlington N. R.R. Co., 200 F.3d 679, 699 (10th Cir. 1999) (similar); cf.
Mercado v. Wiley, 200 F. App’x 765, 766 (10th Cir. 2006) (unpublished) (denying
motion submitted with appellate brief because it did “not appear to request any relief that
we have authority to grant”).
34
(unpublished) (declining to consider for the first time on appeal plaintiff’s argument that
his counsel in the district court violated the Colorado Rules of Professional Conduct).15
D. Limitation on Unjust Enrichment Liability
Finally, Ronald argues the district court erred in concluding that Michael’s
liability for unjust enrichment should be limited to misapplied payments he received in or
after December 2006, which the district court found to be the point at which Michael
realized he was being overpaid. The district court based this determination on the second
element of an unjust enrichment claim under Kansas law, which requires that “the
defendant appreciated and has knowledge of the benefit” conferred on him by the
15
Ronald raises two additional arguments that we decline to consider for similar
reasons. First, Ronald asks us to “declare the [Dirt Cheap Mine] Trust a sham and, as
such, issue any orders necessary to remove it from this case, terminate its existence, set
aside any judgment in favor of the Trust, and bar it from filing any further pleadings or
claims in this matter.” We reject this argument as inadequately briefed and irrelevant.
Ronald points to no record evidence, and cites to no relevant legal authority, in support of
this contention. See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1249 (10th Cir. 2015);
United States v. Pursley, 577 F.3d 1204, 1228 (10th Cir. 2009). Nor does he explain why
consideration of this issue on appeal is appropriate, where the district court saw no need
to decide whether the Trust—as opposed to the transfer in avoidance of the tax lien—was
a sham.
Second, Ronald contends, in passing, that the state and district courts’ “lack of
subject matter jurisdiction, coupled with the fraudulent nature of the Trust and actions by
Holden and Attorney Izen, denied Ronald due process in the taking of his mineral interest
and royalties.” As discussed, however, the state and federal trial courts had jurisdiction.
And Ronald offers nothing in support of his due process claim other than a citation to
Automatic Feeder Co. v. Tobey, 558 P.2d 101, 104 (Kan. 1975), which states the
unremarkable proposition that a court’s judgment is void if the court acted in a manner
inconsistent with due process. As a result, we reject this argument as inadequately briefed
and frivolous.
35
plaintiff.16 See Univ. of Kan. Hosp. Auth. v. Bd. of Comm’rs, 327 P.3d 430, 441 (Kan.
2014). But according to Ronald, knowledge is a prerequisite for an unjust enrichment
claim to accrue and for the statute of limitations to commence, but it is not a limit on
restitution of amounts received before the defendant gained that knowledge. Ronald
maintains the district court erred in giving the requirement the latter effect.17
While this argument, if properly raised, might present an interesting issue, we
decline to consider it on the merits. Like so many of the arguments Ronald raises on
appeal, this argument is not adequately briefed. Ronald simply states that the second
element of unjust enrichment “does not create a bar of recovery for a benefit conferred
before the Defendant knew of the benefit” without elaborating further or citing any legal
authority in support. Thus, we are free to end our inquiry by deeming this contention
waived. See Phillips v. Calhoun, 956 F.2d 949, 953 (10th Cir. 1992) (declining to
consider argument that was not “minimally supported by legal argument or authority”).
But the argument also fails because Ronald cannot raise it. Ronald is not the real
party in interest for the unjust enrichment claim because he assigned his choses in action
16
Kansas law requires a plaintiff bringing an unjust enrichment claim to establish
the following elements: “(1) the plaintiff conferred a benefit on the defendant; (2) the
defendant appreciated and has knowledge of the benefit; and (3) the defendant accepted
and retained the benefit under circumstances that make the retention unjust.” Univ. of
Kan. Hosp. Auth. v. Bd. of Comm’rs, 327 P.3d 430, 441 (Kan. 2014).
17
The district court’s finding, in the May 2010 Order, that Michael did not have
knowledge of the benefit being conferred until December 2006 formed the basis for the
court’s subsequent decision, in the August 2013 Order, to limit Michael’s damages on the
unjust enrichment claims to a maximum of $32,665.96. This figure represents royalty
payments associated with the disputed one-half mineral interest that were paid to Michael
from December 2006 to October 2008, when those royalties began to be held in a
suspense account.
36
to Holden, who settled the claim through a stipulated judgment. See Wade v. EMCASCO
Ins. Co., 483 F.3d 657, 674–75 (10th Cir. 2007) (“Kansas law requires that every legal
action be prosecuted by the real party in interest. . . . Where the injured party assigns all
of his rights to a third party, the assignee becomes the real party in interest and the
assignor can no longer pursue a claim on his own behalf.”). Ronald does not contest that
a claim for unjust enrichment is an assignable chose in action under Kansas law. See Bolz
v. State Farm Mut. Auto. Ins. Co., 52 P.3d 898, 901 (Kan. 2002) (“It has long been
recognized in Kansas that all choses in action, except torts, are assignable.”); Regal
Ware, Inc. v. Vita Craft Corp., 653 F. Supp. 2d 1146, 1151 (D. Kan. 2006) (“[U]njust
enrichment is a quasi-contractual remedy, not a tort.”). Nor does he address, let alone
offer a reason for us to reject, the district court’s conclusion that he “has waived or is
estopped from challenging Holden’s settlement of the unjust enrichment claim with
[Michael], based on [his] representation that Holden was his assignee on this claim.”
Because this argument is inadequately briefed, and because the unjust enrichment
claim has been assigned and settled, we reject Ronald’s challenge to the district court’s
statute of limitations ruling with respect to that claim.
* * *
For the reasons set forth above, we conclude Ronald has raised no valid challenge
to the district court’s rulings. We therefore affirm the district court’s judgment on all
grounds raised in Case No. 15-3264. Having done so, we now turn to the substantive
issues raised in Case No. 15-3280.
37
IV. CASE NO. 15-3280, HOLDEN AND IZEN’S APPEAL
In their separate appeal, Holden and Izen present eight issues for our
consideration. Distilled and grouped together where sensible, their arguments are as
follows: (1) the district court erred in allocating to Theresa 25 percent of the mineral
rights appurtenant to the Property; (2) the district court erred in concluding Ronald and
Holden’s conversion counterclaim was barred by the statute of limitations; (3) the district
court erred, both procedurally and substantively, in determining that Ronald’s transfer of
his choses in action to the Dirt Cheap Mine Trust was fraudulent with respect to Ronald’s
tax debt to the IRS; and (4) the district court abused its discretion in resolving Izen’s
request for attorney fees.
Addressing these arguments in turn, we reject them all and affirm the district
court’s decision in full.
A. Arguments Concerning Theresa’s Interest
Holden and Izen begin with several arguments for why the district court erred in
awarding Theresa half of Ronald’s one-half mineral interest based on the state divorce
decree. The premise on which all these arguments rest is Holden and Izen’s belief that the
divorce court’s distribution of the mineral interest between Ronald and Theresa was void
because, due to the error in the Quit Claim Deed, Ronald did not then own the interest.
According to Holden and Izen, the district court therefore effectively reopened and
corrected or modified the divorce decree when it allocated half of Ronald’s interest to
Theresa. This, they argue, was impermissible both under the applicable statute of
limitations and because of a jurisdictional bar.
38
But the key assumption underlying Holden and Izen’s arguments—i.e., that the
divorce court’s division of the mineral interest is void because Ronald did not own the
interest at the time of the divorce—is flawed. Holden and Izen fail to acknowledge the
district court’s conclusion that, because the reformation of the Deed relates back to the
Deed’s execution, Ronald did own the interest during the divorce and the divorce court
therefore had authority to distribute half of that interest to Theresa. As we now explain,
the district court’s conclusion is correct, and as a result, Holden and Izen’s arguments
necessarily fail. We review the district court’s legal conclusions de novo. Smalley & Co.
v. Emerson & Cuming, Inc., 13 F.3d 366, 367 (10th Cir. 1993) (“When considering a
grant of summary judgment we review the district court’s conclusions of law de novo
. . . .”).
Under Kansas law, “[r]eformation is an equitable remedy available to correct
mutual mistakes of fact.” Conner v. Koch Oil Co., 777 P.2d 821, 825 (Kan. 1989).
“When a mutual mistake is made in describing property in a deed and the instrument does
not convey the property intended, the deed may be reformed to conform to the parties’
original intentions.” Unified Gov’t of Wyandotte Cty./Kan. City v. Trans World Transp.
Servs., L.L.C., 227 P.3d 992, 997 (Kan. App. 2010). “This is because when property is
included in a deed by mutual mistake and the parties never intended such property to be
conveyed, the grantor is under no obligation to convey such property, and the grantee has
no right to retain such property.” Id. Here, the district court concluded that neither
Michael nor Ronald intended for Ronald to convey his one-half mineral interest when he
executed the Quit Claim Deed, and that the failure of the Deed to reserve Ronald’s
39
mineral interest was a mutual mistake. The court accordingly reformed the Deed such
that Ronald’s one-half mineral interest was reserved to him. Holden and Izen do not
contend reformation for mutual mistake was improper.18 But their arguments neglect one
of that doctrine’s principal consequences.
In Kansas, as elsewhere, “reformation of an instrument relates back, and takes
effect from, the time of its original execution, and binds all entities except innocent
purchasers for value.” Conner, 777 P.2d at 825; see also 66 Am. Jur. 2d Reformation of
Instruments § 9 (“The reformation of an instrument relates back to the time the
instrument was originally executed and simply corrects the document’s language to read
as the instrument should have read all along. A reformed instrument takes effect from the
time of its original execution and binds all entities except innocent purchasers for
value.”). The district court therefore concluded that reformation of the Deed was effective
as of its execution on May 11, 1998. As a result, the court further determined that Ronald
owned the one-half mineral interest at the time of the divorce proceeding in 2001 and
2002, and the divorce court properly distributed it as part of the marital estate.
Although we have found no Kansas case dealing directly with a court’s prior
disposition of property belonging to a party whose ownership of the property was only
later validated upon reformation, the district court’s ruling here follows naturally from
the relation-back rule as stated and applied in Conner. See 777 P.2d at 823–26. And that
ruling is supported by this court’s and other courts’ decisions applying Colorado and
18
The district court concluded, and no party disputes on appeal, that the parties
waived the five-year statute of limitations on reformation actions. See Kan. Stat. Ann.
§ 60-511(5).
40
Oklahoma law, which embrace the same relation-back principle as Kansas law.19 See,
e.g., Chapman v. Denman, 190 F. App’x 640, 644 (10th Cir. 2006) (unpublished)
(applying Colorado law) (“[P]laintiff argues that Pitkin County never owned the [land]
until 2004 when the district court entered its order reforming the treasurer’s deed. To the
contrary, the reformed deed was retroactive to 1954, and from that point forward the
[land] was owned by the County . . . .”); accord Bd. of Comm’rs v. Timroth, 87 P.3d 102,
109 (Colo. 2004); Foley v. Worthington, 209 P.2d 871, 871–72 (Okla. 1949).
For these reasons, the district court correctly determined that Ronald owned the
one-half mineral interest when the divorce decree was entered in 2002 because the
reformation of the Deed related back to May 11, 1998. It follows from this conclusion
that Holden and Izen’s principle arguments against Theresa’s entitlement to half of
Ronald’s mineral interest must fail.
Their first contention is that Theresa’s claims are barred by the one-year statute of
limitations on requests for relief from final judgments, contained in Kansas Statutes
Annotated § 60-260(b), because she is seeking to set aside the divorce decree. See In re
Marriage of Reinhardt, 161 P.3d 235, 236–37 (Kan. App. 2007) (explaining that “K.S.A.
60-260(b) allows relief from a final judgment for several reasons,” the first three of
19
It also is consistent with the general rule that “[a] grantee of property succeeds
to the grantor’s right to maintain a suit to reform a prior deed; thus, a grantee is entitled to
the grantor’s right to enforce the correction of a description in a prior deed to a part of the
premises executed by the grantor to another.” 66 Am. Jur. 2d Reformation of Instruments
§ 60 (footnote omitted). A necessary precondition of this principle is that, despite the
then-uncorrected error in the prior deed, the grantor’s conveyance to the grantee is valid
as to the affected aspect of the property, at least assuming reformation is eventually
obtained.
41
which “must be filed within 1 year after the judgment was entered”). As noted, this
argument rests on the false premise that the divorce court was without authority over
Ronald’s mineral interest and the divorce decree’s purported allocation of that interest
was void, thereby making Theresa’s claim an attempt to alter the decree. We reject this
argument for the same reason the district court did: “[Holden and Izen] fail[] to address
the fact that Theresa is not attempting to set aside the divorce decree, but she is asking the
court to enforce the divorce decree. The statute of limitations is not applicable as Theresa
. . . is not attempting to obtain relief from the final judgment of the divorce court.”20
Holden and Izen’s second contention is also premised on the misconception that
the district court had to reopen and modify the divorce decree to award Theresa 25
percent of the mineral rights. They argue that, under the “domestic relations exception” to
federal jurisdiction, the district court lacked jurisdiction to reopen and modify the divorce
decree such that it validly distributed half of Ronald’s interest to Theresa. The domestic
relations exception divests federal courts of the power to issue divorce, alimony, and
child custody decrees. Ankenbrandt v. Richards, 504 U.S. 689, 703 (1992). But as we
have explained, and as the district court itself stated, Theresa did not ask the district court
to reopen, reissue, correct, or modify Theresa and Ronald’s divorce decree, and the court
did none of those things. Rather, the court enforced the divorce decree according to its
terms. The Supreme Court has long “sanctioned the exercise of federal jurisdiction over
20
Holden and Izen also briefly invoke the two-year statute of limitations on
actions to recover personal property, set forth in Kansas Statutes Annotated § 60-513(2),
as an alternative to Kansas Statutes Annotated § 60-260(b). Even if this provision applied
to the claims here, Holden and Izen’s invocation of it fails for the same reasons as their
invocation of § 60-260(b).
42
the enforcement of [a domestic-relations] decree that ha[s] been properly obtained in a
state court of competent jurisdiction.” See Marshall v. Marshall, 547 U.S. 293, 307
(2006) (quoting Ankenbrandt, 504 U.S. at 702). Thus, the domestic relations exception is
not applicable.
Finally, Holden and Izen argue that the mineral interest and associated royalties
distributed to Theresa should be subject to the federal tax liens on Ronald’s property.
This argument also hinges on the premise that the award of 25 percent of the mineral
interest and royalties to Theresa in the divorce decree is invalid. If, as they contend, the
divorce decree is void, then Ronald owns 50 percent of the mineral estate after
reformation and any tax liens should attach, if at all, to the entire 50 percent interest. But
we reject Holden and Izen’s argument that the divorce decree was void and the award to
Theresa invalid. And because the United States has not otherwise attempted to recover
any of Ronald’s tax debt from Theresa’s 25 percent mineral interest and has expressly
disclaimed any right it may have had to enforce the federal tax liens against her interest,
Theresa’s interest is not subject to the IRS’s liens.
Accordingly, we affirm the district court’s determinations on summary judgment
that Theresa is entitled to 25 percent of the mineral rights appurtenant to the Property and
that her interest is not subject to the tax liens.
B. Conversion Counterclaim
Holden and Izen next argue that the district court erred in finding Holden and
Ronald’s conversion counterclaim barred by the two-year statute of limitations set forth
in Kansas Statutes Annotated § 60-513(a)(2). In their view, a claim of conversion accrues
43
under Kansas law only after the rightful owner of property has demanded the return of
the property and the person holding it refuses. They contend that, here, the demand and
refusal occurred in November 2005, when Ronald and Michael exchanged letters about
the mistake in the Deed and the resulting issues concerning royalty payments. Thus,
Holden and Izen maintain that the statute of limitations did not begin to run until
November 2005, rendering the February 2007 filing of the conversion counterclaim
timely.21
The district court rejected this argument in its May 2012 Order, finding that the
facts here do not require a demand to trigger the statute of limitations. Instead, the court
reasoned that the limitations period began to run when the alleged conversion became
“reasonably ascertainable” to Ronald. Because the court determined that this occurred in
2002, it concluded that the statute of limitations expired well before the 2007 filing of the
counterclaim. Reviewing the district court’s decision de novo, Burton v. R.J. Reynolds
Tobacco Co., 397 F.3d 906, 914 (10th Cir. 2005) (“Review of the district court’s
21
The conversion counterclaim was first asserted in an amended pleading filed in
July 2011, but the parties believe this amended pleading relates back to Ronald and
Holden’s initial pleading, filed February 9, 2007. Both the Federal and Kansas Rules of
Civil Procedure allow for such relation-back where certain requirements are satisfied,
including that the “law that provides the applicable statute of limitation allows relation
back.” Fed. R. Civ. P. 15(c)(1); Kan. Stat. Ann. § 60-215(c)(1). Because the parties do
not specifically address this requirement, we assume, without deciding, that the July 2011
amended pleading relates back to the February 2007 initial pleading.
44
application of the statute of limitations is de novo.”), we agree that the conversion action
is time-barred.22
The tort of conversion is defined in Kansas as “the unauthorized assumption or
exercise of the right of ownership over goods or personal chattels belonging to another to
the exclusion of the other’s rights.” Bomhoff v. Nelnet Loan Servs., Inc., 109 P.3d 1241,
1246 (Kan. 2005). “A conversion may be based upon the detention of or unreasonable
withholding of possession from one who has the right to possess it.” Queen v. Lynch
Jewelers, LLC, 55 P.3d 914, 921 (Kan. App. 2002) (citing 18 Am. Jur. 2d Conversion
§ 47). “Under Kansas law, conversion is a strict liability tort. The required intent is
shown by the use or disposition of property belonging to another, and knowledge or
ignorance as to ownership of the property is irrelevant.” Millennium Fin. Servs., L.L.C. v.
Thole, 74 P.3d 57, 64 (Kan. App. 2003) (alterations and internal quotation marks
omitted).
The statute of limitations for conversion is two years. See Kan. Stat. Ann.
§ 60-513(a)(2). As relevant here, a cause of action for conversion typically accrues—and
thus starts the clock on the limitations period—when “the fact of injury becomes
reasonably ascertainable to the injured party.” Id. § 60-513(b); Armstrong v. Bromley
Quarry & Asphalt, Inc., 378 P.3d 1090, 1096 (Kan. 2016). As this court has explained,
“[t]he phrase ‘reasonably ascertainable’ means that a plaintiff has the obligation to
22
Michael argues in the alternative that Holden is not the real party in interest with
respect to the conversion counterclaim—and therefore cannot pursue the claim on
appeal—because torts are not assignable under Kansas law. We exercise our discretion to
resolve this issue on the merits and therefore do not reach Michael’s alternative
argument.
45
reasonably investigate available sources that contain the facts of the injury and its
wrongful causation.” N. Nat. Gas Co. v. Nash Oil & Gas, Inc., 526 F.3d 626, 630 (10th
Cir. 2008) (alteration omitted) (quoting Kelley v. Barnett, 932 P.2d 471, 474 (Kan. App.
1997)). “‘[R]easonably ascertainable’ does not mean ‘actual knowledge.’” Id. (quoting
Davidson v. Denning, 914 P.2d 936, 948 (Kan. 1996)).
As noted above, the district court found, with ample record support, that Michael’s
erroneous receipt of royalty payments belonging to Ronald was reasonably ascertainable
to Ronald well outside of the limitations period. On appeal, Holden and Izen do not
challenge the district court’s application of the “reasonably ascertainable” standard in
§ 60-513(b). See Kan. Stat. Ann. § 60-513(a). Instead, they assert that a different standard
controls commencement of the limitations period in this case. We are not convinced.
Holden and Izen rely on an exception to the “reasonably ascertainable” standard,
claiming that the limitations period could not begin to run until after Ronald made
demand on Michael to turn over the misdirected royalty payments. As support for this
argument, they cite to the Kansas Court of Appeals’ decision in Clark Jewelers v.
Satterthwaite, a case in which a jewelry store sued to foreclose a security interest in a
bridal set that had been given by the purchaser to his spouse. See 662 P.2d 1301, 1303
(Kan. App. 1983). The trial court in that case apparently construed the store’s claim as
one for conversion and then determined that the claim was barred by the two-year statute
of limitations, which the trial court found was triggered on the date the balance of the
purchase money for the bridal set was due. Id. at 1303–04.
46
The Kansas Court of Appeals disagreed that a claim for conversion accrued at that
time. The court, finding that the spouse rightfully and lawfully had possession of the
bridal set when she received it, determined that her husband’s subsequent default did not
automatically render her possession wrongful. Id. at 1304. It reasoned that “[b]ecause . . .
[the spouse] rightfully came into possession of the bridal set, she was entitled to retain
possession of that property until such time as [the jewelry store] had gained the right to
repossess, had made demand upon her, and she had refused to deliver the bridal set to
[the store]. Then and only then could [she] have committed the tort of conversion.” Id. at
1304–05 (emphasis added). The court therefore concluded the statute of limitations began
to run not when the outstanding balance was due, but rather when the jewelry store’s
president later visited the spouse’s home to demand that she return the bridal set. Id. at
1305.
The reasoning in Clark Jewelers tracks the general principle that, under certain
circumstances, a “demand and refusal” is required before the tort of conversion can be
considered complete. See 18 Am. Jur. 2d Conversion § 105 (“Where a demand for the
return of the property is necessary to make the tort of conversion complete, the statute of
limitations does not begin to run until the demand has been duly made, and the defendant
has wrongfully refused to surrender the property.” (footnote omitted)). For instance, “[a]
demand is absolutely necessary where the original taking was lawful, the defendant was
rightfully in possession, and there was no assumption of ownership, wrongful use, or any
act of conversion, prior to the demand.” Id. § 75 (footnotes omitted).
47
But here, the district court distinguished Clark Jewelers and this category of cases,
reasoning that a demand is not a necessary part of the conversion claim in this case
because “[i]f Michael possessed royalty payments that belonged to Ronald, then his
possession was unlawful or wrongful from the time Michael received possession of the
property, not when Ronald made a demand for the return of the money.”
Holden and Izen dispute the district court’s effort to distinguish Clark Jewelers,
arguing that Michael’s possession was not “unlawful” because he came “into innocent
possession of” the misapplied royalty payments “by mistake.” But this reasoning misses
the mark. As noted above, Kansas law defines conversion as “the unauthorized
assumption or exercise of the right of ownership over goods or personal chattels
belonging to another to the exclusion of the other’s rights.” Bomhoff, 109 P.3d at 1246
(emphases added). To be liable for conversion, a defendant must intentionally exercise
control over the property, which typically “requires an affirmative act on the part of the
defendant, as distinguished from a mere omission to act or to perform a duty.”
Restatement (Second) of Torts § 224 cmt. a (Am. Law. Inst. 1965).
The demand-and-refusal requirement in Clark Jewelers makes sense in light of
these principles. Because the defendant there was entitled to possess the bridal set on the
date she received it, see Clark Jewelers, 662 P.2d at 1304, her affirmative act of taking
possession on that date did not relate to property “belonging to another,” and it was
neither “unauthorized” nor “to the exclusion of [an]other’s rights,” see Bomhoff, 109 P.3d
at 1246. Thus, because the Clark Jewelers defendant took the property with an
affirmative right to possess it, she did not commit an act sufficient to constitute
48
conversion until the jewelry store demanded its return and she refused. See Restatement
(Second) of Torts § 224 cmt. a (“[W]ithholding possession by an unqualified refusal to
surrender [property] on demand is a sufficient act to constitute a conversion . . . .”); id.
§ 237 cmt. e (explaining that, in a conversion-by-demand-and-refusal situation, “[t]he
conversion consists in the unlawful detention of the [property], and not in the manner in
which possession was originally acquired”); see also Goodbody & Co., Inc. v. McDowell,
530 F.2d 1149, 1151 (5th Cir. 1976) (“[W]here the defendant’s original possession is not
wrongful, conversion is complete when the rightful owner demands the return of the
property and is refused.”).
Here, by contrast, Michael never had an affirmative right to possess the
misdirected royalty payments. So, when Michael took the intentional, affirmative step of
depositing them into his bank account, he engaged in “the unauthorized assumption or
exercise of the right of ownership over goods or personal chattels belonging to [Ronald
and Theresa] to the exclusion of [Ronald’s and Theresa]’s rights.” See Bomhoff, 109 P.3d
at 1246. Thus, the tort of conversion was complete.
And because conversion is a strict liability tort under Kansas law, Millennium Fin.
Servs., 74 P.3d at 64; accord First Nat’l Bank of Amarillo v. Sw. Livestock, Inc., 859 F.2d
847, 850 (10th Cir. 1988), it matters not that Michael’s possession may have been the
product of an innocent mistake. As long as an intentional act of control occurred, it is
irrelevant for purposes of conversion that Michael did not know the royalties actually
belonged to Ronald or Theresa. See Nelson v. Hy-Grade Constr. & Materials, Inc., 527
P.2d 1059, 1062 (Kan. 1974) (“The intent required is simply to use or dispose of the
49
goods, and knowledge or ignorance of the actor as to their ownership has no influence in
deciding the question of conversion.”); Restatement (Second) of Torts § 223 cmt. b (“If
the actor has the intent to do the act exercising dominion or control, . . . he is not relieved
from liability by his mistaken belief that he had possession of the chattel or the right to
possession, or that he is privileged to act.”); 18 Am. Jur. 2d Conversion § 3 (“The act
constituting ‘conversion’ must be an intentional act, but it does not require wrongful
intent.” (footnote omitted)).
We therefore agree with the district court that this is not a case where a demand
was needed for a cause of action for conversion to accrue. Rather, the district court
properly followed the general rule that, “[u]nder K.S.A. 60-513(b), a cause of action in
tort for conversion . . . accrues when substantial injury first appears or when it becomes
reasonably ascertainable.” Clark Jewelers, 662 P.2d at 1304. And because Holden and
Izen do not challenge the district court’s finding that the conversion counterclaim was
reasonably ascertainable more than two years before it was filed, we affirm the district
court’s conclusion that the counterclaim is barred by the statute of limitations and its
ruling that Michael is therefore entitled to summary judgment on this issue.
C. Fraudulent Transfer
Holden and Izen next challenge the district court’s determination that Ronald’s
transfer of his interests to the Dirt Cheap Mine Trust was fraudulent with respect to
Ronald’s tax debt to the IRS. Specifically, they argue that (1) the district court should not
have considered the United States’ fraudulent-transfer argument because it was not
included in the pretrial orders, and (2) even if the argument was properly entertained, the
50
district court erred in concluding the transfer was fraudulent.23 Addressing each of these
arguments separately, we affirm the district court’s ruling on this issue.
1. The District Court’s Decision to Address Fraudulent Transfer
Holden and Izen first argue that the district court should not have considered the
fraudulent-transfer issue because the United States “failed to raise a claim for fraudulent
transfer in the Pretrial Orders.” In response, the United States concedes that its
fraudulent-transfer argument was not explicitly included in any pretrial order but
maintains the argument was simply a legal theory supporting its claim of first priority to
royalty payments due on Ronald’s mineral interest. As such, and because Holden and
Ronald had sufficient notice of the argument and responded to it below, the United States
maintains it was proper for the district court to consider whether the transfer here was
fraudulent.
We review for abuse of discretion a trial court’s decision to address or not to
address an issue on the basis of a pretrial order. See Grant v. Brandt, 796 F.2d 351, 355
(10th Cir. 1986); see also In re Rafter Seven Ranches L.P., 546 F.3d 1194, 1200, 1203–
04 (10th Cir. 2008) (reviewing for abuse of discretion a bankruptcy court’s decision to
consider an issue not identified in the pretrial order or other pleadings). “Under the abuse
of discretion standard, the decision of a trial court will not be disturbed unless the
appellate court has a definite and firm conviction that the lower court made a clear error
23
Ronald and Holden conceded below that the IRS’s first lien, for tax years 1997
through 2002, has first priority. The arguments here thus challenge only the district
court’s decision that the IRS’s second lien, for tax years 2003 through 2005, also has
priority over any interest the Trust might claim.
51
of judgment or exceeded the bounds of permissible choice in the circumstances.” In re
Nat. Gas Royalties Qui Tam Litig., 845 F.3d 1010, 1017 (10th Cir. 2017) (internal
quotation marks omitted). We find no abuse of discretion here.
Claims or theories that are not included in the pretrial order usually are waived.
Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002). But it is also true that “a
pretrial order should be liberally construed to cover any of the legal or factual theories
that might be embraced by its language.” Koch v. Koch Indus., Inc., 203 F.3d 1202, 1220
(10th Cir. 2000) (internal quotation marks omitted). In particular, we have construed
pretrial orders most liberally when the orders state the parties’ claims in general terms.
See id.; Whalley v. Sakura, 804 F.2d 580, 582–83 (10th Cir. 1986).
Here, the second revised pretrial order summarizes the United States’ position in
part as follows:
The United States seeks an order determining the priority of its tax liens
that arose from the tax assessments imposed against Ronald Leathers. It
seeks a judgment ordering payment to the United States of those royalty
sums currently being held by the co-defendant oil and gas operating
companies but otherwise payable to Ronald Leathers (or his purported
assignee the Dirt Cheap Mine Trust).
As the government points out, proving that Ronald’s transfer to the Trust was fraudulent
is one approach by which the government could establish its claim to a superior lien
priority. See In re Krause, 637 F.3d 1160, 1163–64 (10th Cir. 2011). Thus, taking
account of the pretrial order’s generalized description of the United States’ position as
simply seeking a determination of the priority of its liens, and construing the pretrial
order liberally, we think the government’s fraudulent-transfer argument qualifies as a
52
“theor[y] that might be embraced by [the pretrial order’s] language” and that is therefore
covered by the order. See Koch, 203 F.3d at 1220 (internal quotation marks omitted).
Moreover, the district court’s decision to resolve the fraudulent-transfer argument
does not conflict with the underlying purpose served by requiring issues to be set forth in
pretrial orders. “[T]he primary purpose of pretrial orders is to avoid surprise by requiring
parties to ‘fully and fairly disclose their views as to what the real issues of the trial will
be.’” Zenith Petroleum Corp. v. Steerman, 656 F. App’x 885, 887 (10th Cir. 2016)
(unpublished) (quoting Cortez v. Wal-Mart Stores, Inc., 460 F.3d 1268, 1276 (10th Cir.
2006)). Here, there was no surprise: Holden and Ronald received nearly two years’ notice
of the government’s fraudulent-transfer theory, and they responded to it on several
occasions.
At the latest, the United States first alleged its belief that the transfer was
fraudulent in its December 2013 motion for summary judgment to foreclose its liens.
Ronald and Holden addressed the validity of the assignment in their cross-motion for
partial summary judgment and in their response to the government’s motion. And in its
February 2014 Order granting in part and denying in part summary judgment, the district
court stated that “[t]he IRS cannot attach its lien to the trust’s share of the royalties from
the mineral interest unless it establishes that Ronald fraudulently transferred his interest
to the trust.” (Emphasis added.) Then, prior to what was initially scheduled as an October
2014 bench trial, both parties submitted additional briefing that addressed the issue, and
the district court later noted that the validity of the assignment was one of the few issues
that had been set for that scheduled trial. Although almost another full year passed before
53
the bench trial was actually held and the issue actually determined, the government had
adequately and consistently asserted its position that the transfer was fraudulent in
support of its claim to priority.
For all these reasons, we conclude that the district court did not abuse its
discretion in choosing to decide the fraudulent-transfer issue. See Rafter Seven Ranches,
546 F.3d at 1203–04 (rejecting contention that lower court abused its discretion in
deciding case on issue not identified in pretrial order because court’s decision “was based
on the general issues and principles articulated . . . in the pretrial order and the
proceedings thereafter”).
2. The District Court’s Finding that the Transfer was Fraudulent
Holden and Izen next argue the district court’s finding that the transfer to the Trust
was fraudulent is clearly erroneous and should be reversed. Specifically, they claim that
Ronald’s assignment to the Trust is not voidable because Holden was a “good faith”
transferee who gave “reasonably equivalent value” and that there was insufficient
evidence that Holden harbored fraudulent intent. We are not persuaded.
We review “the district court’s factual findings, made after a bench trial, for clear
error; and its legal conclusions de novo.” Orient Mineral Co. v. Bank of China, 506 F.3d
980, 1001 (10th Cir. 2007). “Whether a debtor transferred his property with intent to
defraud creditors is a finding of fact.” In re Seay, 215 B.R. 780, 788 (B.A.P. 10th Cir.
1997); see also In re M & L Bus. Mach. Co., 84 F.3d 1330, 1338 (10th Cir. 1996)
(concluding lower court’s finding of good faith on the part of the transferee is primarily
factual and should be reviewed for clear error). Findings of fact are only clearly
54
erroneous if “they are without factual support in the record or the appellate court, after
reviewing the evidence, is firmly convinced that a mistake has been made.” Weston v.
Harmatz, 335 F.3d 1247, 1252 (10th Cir. 2003).
The IRS is authorized under 26 U.S.C. § 6321 to satisfy a tax deficiency by
attaching liens to any “property” or “rights to property” belonging to the indebted
taxpayer. State law determines what property rights a taxpayer has, and thus to what
property rights a § 6321 lien attaches. Krause, 637 F.3d at 1163. “In Kansas, as in most
states, a debtor cannot evade his creditors by fraudulently conveying his property to
someone else.” Id. at 1163–64. Such fraudulent conveyances “shall be deemed utterly
void and of no effect.” Kan. Stat. Ann. § 33-102. “Put differently, the transferor retains
equitable ownership of the assets [fraudulently conveyed] and those assets remain subject
to attachment by his creditors.” Krause, 637 F.3d at 1164.
Kansas law and federal law are virtually identical with respect to identifying
fraudulent transfers. Under Kansas law, a transfer made by a debtor is fraudulent as to a
creditor if the debtor makes the transfer “[w]ith actual intent to hinder, delay or defraud”
the creditor. Kan. Stat. Ann. § 33-204(a)(1); accord 28 U.S.C. § 3304(b)(1)(A). The
statute includes in the next paragraph a non-exhaustive list of factors to consider in
judging intent. See Kan. Stat. Ann. § 33-204(b); accord 28 U.S.C. § 3304(b)(2). In
addition, both Kansas and federal law provide an exception whereby an otherwise
voidable fraudulent transfer will not be voidable “against a person who took in good faith
and for a reasonably equivalent value or against any subsequent transferee.” Kan. Stat.
Ann. § 33-208(a); accord 28 U.S.C. § 3307(a).
55
Here, the district court concluded that Ronald transferred his choses in action to
the Trust with the actual intent to defraud the United States of his overdue tax bill. See 28
U.S.C. § 3304(b)(1)(A); Kan. Stat. Ann. § 33-204(a). The court therefore determined that
the transfer was fraudulent and, in turn, void. This conclusion is supported by
overwhelming evidence in the record, most notably direct testimony from both Ronald
and Holden that the purpose of the Trust was to protect Ronald’s mineral interests and
associated royalty payments from the IRS.24 Accordingly, the district court’s finding that
the transfer was fraudulent as to Ronald’s tax debt was not clearly erroneous. See Weston,
335 F.3d at 1252.
Nor is there a material issue of fact regarding whether Holden qualifies as “a
person who took in good faith and for a reasonably equivalent value” and who therefore
could salvage the transfer. See Kan. Stat. Ann. § 33-208(a); accord 28 U.S.C. § 3307(a).
Putting aside the fact that Holden did not raise this argument below, and even assuming
that Holden provided “reasonably equivalent value,” the record belies Holden and Izen’s
contention that Holden acted in “good faith,” as the law requires. See 28 U.S.C.
§ 3307(a); Kan. Stat. Ann. § 33-208(a). We need look no further than Holden’s
deposition testimony, which reads in relevant part:
The whole purpose of the trust was one thing, and that was to provide some
kind of protection regarding the IRS for future payments, et cetera. It’s very
complex, as I’m sure you know, but once an assignment is done, then it
changes IRS’s reach, and that was the purpose. The purpose of the trust was
24
Holden and Izen’s argument that the government produced “insufficient
evidence that Holden harbored a fraudulent intent” is irrelevant. Under Kansas and
federal law, it is the intent of the debtor—here, Ronald—that matters. See 28 U.S.C.
§ 3304(b)(1)(A); Kan. Stat. Ann. § 33-204(a).
56
not to sue Mike Leathers. He [Ronald] could have done that directly with
Joe [Izen]. That wasn’t the purpose. The purpose was to afford some
protection for any recovery that did occur for Mr. Ron Leathers and his
three children.
Holden and Izen do not offer a good-faith explanation for this statement or any of the
other evidence the district court relied upon in concluding the transfer was fraudulent
with respect to Ronald’s tax debt.
In short, the district court did not err, let alone clearly err, in finding Ronald’s
transfer to the Trust was fraudulent as to Ronald’s debt to the IRS. We therefore agree
with the district court that the IRS’s tax lien for the years 2003 through 2005 takes
priority over any interest the Trust might claim in minerals and royalties awarded to
Ronald, and we affirm the grant of summary judgment to the United States on this issue.
D. Attorney Fees
The remaining issues raised in Holden and Izen’s appeal relate to Izen’s request
for attorney fees under 26 U.S.C. § 6323(b)(8). We review the district court’s award of
attorney fees for an abuse of discretion. In re Nat. Gas Royalties Qui Tam Litig., 845 F.3d
1010, 1017 (10th Cir. 2017). “The abuse of discretion standard requires reviewing the
district court’s legal conclusions de novo and its factual findings for clear error.” Id.
A federal tax lien normally has priority over later-filed competing liens under a
“first in time, first in right” rule. United States v. Wingfield, 822 F.2d 1466, 1473 (10th
Cir. 1987). However, Congress has provided in § 6323 of the Internal Revenue Code that
certain types of liens will take priority over a tax lien even if they arise later. See 26
U.S.C. § 6323(b). As relevant here, § 6323(b)(8) states that a tax lien shall not be valid
57
“[w]ith respect to a judgment . . . , as against an attorney who, under local law, holds a
lien upon or a contract enforceable against such judgment . . . to the extent of his
reasonable compensation for obtaining such judgment.” In other words, if an attorney
holds a lien or contract for fees that is valid under local law and enforceable against a
judgment obtained by the attorney, and the IRS also has a tax lien enforceable against
that judgment, the attorney’s lien or contract takes priority over the tax lien to the extent
it covers reasonable compensation incurred in the process of obtaining the judgment. See
Hussain v. Boston Old Colony Ins. Co., 311 F.3d 623, 643–44 (5th Cir. 2002); Nebraska
v. Richter, 764 F.2d 517, 518–19 (8th Cir. 1985).25 Under Kansas law—i.e., the “local
law” applicable here—an attorney has a lien for compensation on money in his
possession belonging to his client and on money in the adverse party’s possession
belonging to his client. See Kan. Stat. Ann. § 7-108. Attorney fees are otherwise
regulated in Kansas under Rule 1.5 of the Kansas Rules of Professional Conduct.
In the district court, Izen asserted he was entitled to a superpriority award of
attorney fees under § 6323(b)(8) on the basis of both a contingency fee contract and a
statutory lien under Kansas Statutes Annotated § 7-108. He argued that the contract
entitled him to 45 percent of “all amounts recovered in this case on which the United
States has asserted its tax liens,” and alternatively, that he had a § 7-108 lien which
25
The “purpose of [§ 6323(b)(8)] is to provide an incentive to attorneys to
enhance the value of a taxpayer’s property, which would ultimately increase the
government’s revenue collection.” Hussain v. Boston Old Colony Ins. Co., 311 F.3d 623,
643 (5th Cir. 2002); see also Spencer v. Kirkpatrick, 883 F. Supp. 588, 590 (W.D. Okla.
1995) (“[S]ection 6323(b)(8) only awards superpriority to the liens of those attorneys
whose efforts have contributed to the judgment and in so doing, have helped create an
asset from which the government can recover delinquent taxes.”).
58
entitled him to his fees and costs—which he calculated as $127,662.50 and $36,515.66,
respectively. But the district court saw things differently. The court concluded the
contingency fee agreement was not enforceable against the judgment obtained in this
case. And although the court agreed Izen was entitled to compensation under § 7-108 and
granted him a superpriority lien under § 6323(b)(8), the court limited the award to a total
of $39,689.88 for both fees and costs.
On appeal, Izen challenges both of these determinations. Addressing these
challenges in turn, we conclude they both are meritless.
1. Contingency Fee Contract
Izen first argues the district court erred in declining to enforce his contingency fee
agreement with the Dirt Cheap Mine Trust. He notes that the Trust assigned him a 45
percent interest in any chose in action used to recover Ronald’s mineral interest and
associated royalties, and he argues this assignment is legally enforceable and entitles him
to collect as a fee 45 percent of the value of the minerals and royalties.
But Izen ignores the district court’s conclusion that his fee agreement with the
Trust is not enforceable against the judgment obtained for Ronald because Ronald was
not a party to that agreement and Izen and Ronald did not enter into any similar
agreement of their own. Izen argued below that he was entitled to fees under the
contingency contract because Ronald had orally adopted that contract in his deposition
testimony. But the district court rejected this argument because Kansas Rule of
Professional Conduct 1.5 states that, in order to be valid, contingency fee agreements
59
must be in writing. See Kan. R. Prof’l Conduct 1.5(d). Izen does not challenge this
determination on appeal, which is fatal to his claim.
Moreover, as the United States points out, Izen is not entitled to any fees under the
terms of his contract because the contract granted him an interest in the Trust’s recovery
in this suit, which was zero. Accordingly, we affirm the district court’s conclusion that
the contingency agreement is not enforceable under § 6323(b)(8) against Ronald.
2. The District Court’s Fees & Costs Award
Izen next argues the district court “violated [§] 6323(b)(8) by refusing to grant all
of the fees and costs requested in Izen’s motion.”
Although the district court determined that Ronald had no formal fee agreement
with Izen, it concluded Ronald did authorize Izen to act as his attorney in this case and
that Izen therefore was eligible to recover fees and costs under § 7-108 and § 6323(b)(8).
But the district court concluded Izen was entitled to far less than the $164,178.16 in fees
and costs that he had requested. The court determined that “[t]he vast majority of work
cited by Mr. Izen was not undertaken to obtain a judgment for Ronald from which his tax
obligation could be satisfied,” and concluded that this work therefore was “not
compensable under § 6323(b)(8).” See Hussain, 311 F.3d at 643–44 (explaining that
courts have interpreted § 6323(b)(8) as providing a lien only for attorney fees generated
in connection with securing money or other property that ultimately increases the
taxpayer’s taxable property and thus benefits the IRS). In the end, the court allowed 40
percent of Izen’s claimed fees up until the May 2010 Order, and none of his claimed fees
60
after that time. The court also parred down much of Izen’s claimed costs as unsupported,
arriving at a total award of $39,689.88.
Izen’s challenge to this award on appeal is essentially that the district court took
too strict a view of what fees contributed to securing a judgment from which Ronald’s tax
obligations could be satisfied. He argues generally that the applicable standard should
focus on which actions “reasonably contributed” to the judgment, rather than “led
directly” to it. But the only specific example he gives of fees and costs recoverable under
the proposed standard are the fees related to the Texas state-court action dismissed for
lack of jurisdiction, and the “costs” associated with paying local counsel. These
arguments fall well short of showing any abuse of discretion on the district court’s part.
See Nat. Gas Royalties, 845 F.3d at 1017.
First, the district court recognized correctly that § 6323(b)(8) provides
superpriority for an attorney’s lien only to the extent the lien covers compensation for
efforts that helped obtain a judgment from which the government can satisfy a tax debt.
See 26 U.S.C. § 6323(b)(8); United States v. Ripa, 323 F.3d 73, 80–83, 80 n.8 (2d Cir.
2003); Hussain, 311 F.3d at 643–44; Richter, 764 F.2d at 519. In applying this standard
to the award requested by Izen, the district court offered a detailed, reasonable
explanation of its decision to allow certain fees and to disallow others. Izen does not
specifically challenge the district court’s decision to exclude fees incurred after the May
2010 Order, which awarded 25 percent of the mineral rights, and associated royalties, to
Ronald. As the district court noted, these fees, and “the vast majority of Mr. Izen’s
efforts,” related to attempts “to defeat the claims of the IRS by asserting that the Dirt
61
Cheap Mine Trust owned the royalties and/or minerals, or that Ronald did not actually
owe the taxes claimed by the IRS.”
And while Izen does challenge the court’s decision to exclude fees incurred in
connection with the prior Texas state-court action that Izen filed on Ronald and Holden’s
behalf, his assertion that without the Texas action the present case “would never have
been filed” is mere conjecture. Such speculation falls well short of demonstrating that the
district court’s decision to exclude those fees amounted to “a clear error of judgment or
exceeded the bounds of permissible choice in the circumstances.” Nat. Gas Royalties,
845 F.3d at 1017 (internal quotation marks omitted). And Izen offers no argument to
support his challenge to the exclusion of his “costs” for paying local counsel, which the
district court concluded were “in reality . . . additional legal fees” that Izen had not
justified as reasonable under § 6323(b)(8). We therefore find no abuse of discretion and
affirm the district court’s well-reasoned fee award.
V. CONCLUSION
We reject the arguments raised by Ronald in Case No. 15-3264, and by Holden
and Izen in Case No. 15-3280, and affirm the district court’s judgment in all respects.
62
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530 F.Supp. 75 (1981)
REDWOOD EMPIRE PRODUCTION CREDIT ASSOCIATION, Plaintiff,
v.
FISHING VESSEL OWNERS MARINE WAYS, INC., Intervening Plaintiff,
and
DUNCAN ENGINE CO., INC., Second Intervening Plaintiff,
v.
O/S ANCIENT MARINER, Official No. 211722, her engines, tackle, appurtenances, etc., in rem; and Lonn R. Viken and Olivia Elaine Mouser, in personam, Defendants.
No. C81-14B.
United States District Court, W. D. Washington, at Seattle.
December 11, 1981.
*76 Shane Carew, of Moriarty, Mikkelborg, Broz, Wells & Fryer, Seattle, Wash., for plaintiff.
Steven J. McFarland, of Lane, Powell, Moss & Miller, Seattle, Wash., for defendant.
ORDER DECLARING LIEN PRIORITY AND DIRECTING PAYMENT
BEEKS, Senior District Judge.
Upon motion for judgment on the pleadings by intervening plaintiff, Fishing Vessel Owners Marine Ways (FVOMW), this court, on July 10, 1981, ordered that judgment in favor of FVOMW be entered in rem against the O/S ANCIENT MARINER, and in personam against Olivia Elaine Mouser/Viken (Mouser/Viken) in both her individual and representative capacities. FVOMW also sought a declaration of lien priority over the preferred ship mortgage on the vessel held by plaintiff Redwood Empire Production Credit Association (REPCA). Notwithstanding the court's ruling above-stated, a factual issue remained as to whether the work done after the date of the recordation and endorsement of the mortgage was pursuant to a severable contract, or whether it was pursuant to a single repair contract commenced before the mortgage lien attached. The court held the priority determination in abeyance pending a further factual showing, which was accomplished by a stipulation of the parties filed on September 30, 1981.
It appears that on or about November 15, 1976, pursuant to an oral agreement between FVOMW and Mouser/Viken, FVOMW began large scale repairs including the removal of after fuel tanks, removal and reinstallation of an auxiliary engine, repair of after bait tanks, installation of new decking and deck beams, caulking of the afterdeck and foredeck, refinishing the fo'c'sle with paneling, bunks, electric stove, and sink, and replacing old plastic pipe in the engine room with steel piping, all of which were completed in October, 1977. In accordance with the established policy of FVOMW, the agreement was verbal and FVOMW was to perform it on a time and material basis with payments to be made each time the account balance reached $5,000.00.
The intervening complaint of FVOMW alleged that at the special instance and request of Mouser/Viken extensive repairs were performed and new equipment and fittings were installed; that the reasonable and agreed value of the repairs was $47,063.91, and that a balance of $7,860.96 had not been paid and was due and owing, all of which has been admitted by Mouser/Viken.
The primary criterion for determining whether an agreement is a single contract or a number of severable contracts is the intention of the parties as determined by a fair construction of the agreement, by the subject matter to which it has reference, and by the circumstances of the particular transaction giving rise to the question. 17 Am.Jur.2d Contracts § 325 (1964). Accord, Saletic v. Stamnes, 51 Wash.2d 696, 321 P.2d 547 (1958). The parties to the contract, FVOMW and Mouser/Viken, agree that the contract was a single agreement covering the period from November of 1976 to October of 1977, inclusive. The only party to this litigation claiming the contract to be severable is REPCA, not a party to the contract.
*77 All matters considered, the court finds that the parties entered into a single contract to make the vessel seaworthy, which involved continuous performance of the work described herein, for which FVOMW has a maritime lien prior and superior to the preferred ship mortgage lien of REPCA.
Hence, in accordance with previous orders of this court, REPCA shall pay "in cash" to FVOMW the sum of $7,860.96, plus its costs and interest, both prejudgment and postjudgment, at the rate of 10% per annum calculated from October 18, 1977 until paid. 28 U.S.C. § 1961 (1970); R.C.W. 4.56.110(2) (West Supp.1980); Local Admiralty Rule 155, W.D.Wash.
IT IS SO ORDERED.
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228 P.3d 19 (2010)
STATE
v.
LAKOTIY.
No. 83778-3.
Supreme Court of Washington, En Banc.
April 1, 2010.
Disposition of Petition for Review Denied.
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72 So.2d 412 (1954)
CLAYBROOKE
v.
BENTLY.
8 Div. 662.
Supreme Court of Alabama.
March 25, 1954.
Rehearing Denied May 13, 1954.
*413 Marion F. Lusk, Guntersville, for appellant.
Clark E. Johnson, Jr., H. H. Conway, Albertville, for appellee.
PER CURIAM.
This is a suit in which appellee, as administratrix of the estate of her husband Jesse Bently, obtained a judgment against appellant for negligently causing the death of her intestate.
Jesse was an employee of one Hagood who had a contract with appellant to haul cotton seed from his gin. The gin house was situated thirty or forty feet north of appellant's warehouse. There was a ramp extending from a door of the gin house to a door of the warehouse, over which ramp cotton was rolled into the warehouse. The seed house door was on the west of the space between the gin and warehouse. To reach the seed house it was necessary to pass along that space; and to load the truck it was necessary to back it to the seed house door. The ramp or platform between the buildings was in three sections. The one next to the gin was not movable; while a section ten feet wide was movable by standing it on edge toward the side of the gin, and the remaining portion eight feet wide was lifted up by hand to stand on edge in front of the warehouse door. It rested on a rock or block foundation and had two legs on which the inside edge rested, and when it was lifted those legs stuck out eighteen to twenty-four inches toward the gin house. It was sometimes held in position by a wire wrapped around a nail or sometimes by a man. It weighed about two hundred and fifty pounds and was raised on the occasion in question by Jesse and the truck driver Jones. Instead of fastening it with the wire Jesse stood in the warehouse door and held it. It did not completely fill the open space, but a man could squeeze through it. Jesse was there to direct the backing of the truck. The truck had a fourteen foot tractor and a thirty foot trailer which was not housed in but had slat siding. The driver, who was an experienced truck driver, could not see the rear of the movement except on the left side as he backed the truck. He backed the truck and Jesse told him it was too close to the warehouse and he was to pull it out and make another start back. As he pulled it out the truck caught the upturned ramp, possibly the protruding legs, and pulled it forward toward the east, which closed the space between the ramp and the door "jamb" and caught Jesse's head in the opening and mashed it causing his death.
The suit was against appellant and Hagood. The court gave the general charge for Hagood, but refused it for appellant. The complaint ascribed to appellant the failure to exercise due care to provide a reasonably safe place in which Jesse as an invitee was expected to work for Hagood who was an independent contractor. The court gave to the jury, at the request of the appellant, the following charge E:
"I charge you, gentlemen, that the duty resting on Mr. Claybrooke to keep his premises safe for invitees applied to defects or conditions in the nature of hidden dangers, traps, snares, pitfalls and the like, such as would not be known to the invitee and would not be observed by him in the exercise of ordinary care. I charge you that an invitee assumes all normal or ordinary *414 risks attendant upon the use of the premises, and the defendant Claybrooke was under no duty to reconstruct or alter his premises so as to do away with known or obvious dangers, and he cannot be held liable for the death of plaintiff's intestate if the death resulted from a danger which was obvious or should have been observed in the exercise of reasonable care."
Appellant contends that the law was correctly stated in charge E, supra, and that the evidence, without dispute or conflicting inference, supported it, and that the court erroneously refused to give the affirmative charge. The charge (E, supra) was apparently copied from the opinion in Lamson & Sessions Bolt Co. v. McCarty, 234 Ala. 60, 173 So. 388, and the principle is well supported.65 C.J.S., Negligence, § 50, page 541, et seq.
Jesse had worked at the gin long enough to be familiar with the exact status of the locus in question. If it was not a reasonably safe place in which Jesse was employed, he knew it as well as anybody else. He had been working there about six months, and its condition was open to his view, and the ramp was raised and lowered by him, so that he could not claim to be ignorant of its danger if it was a danger.
Of course the operation of such a truck is dangerous and difficult. Jesse knew what it was doing and his business at the moment was to watch it and signal the driver of any condition which he should correct. He did signal him, and the truck was pulling out and came in contact with some part of the ramp which Jesse was holding. There was no hidden danger. It was a known and obvious danger, of which Jesse knew or should have known. Defendant could assume that he would observe it and guard against it. The affirmative charge requested by defendant should have been given, and its refusal was error to reverse.
The judgment should therefore be reversed and the cause remanded.
The foregoing opinion was prepared by Foster, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and remanded.
LIVINGSTON, C. J., and SIMPSON, GOODWYN and MERRILL, JJ., concur.
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221 F.2d 454
Clifton Charles CAMPBELL, Appellant,v.UNITED STATES of America, Appellee.
No. 6906.
United States Court of Appeals, Fourth Circuit.
Argued January 6, 1955.
Decided February 21, 1955.
Argued April 13, 1955.
On Rehearing April 14, 1955.
COPYRIGHT MATERIAL OMITTED Robert B. Myers, Rockville, Md., for appellant.
Beverly A. Davis, III, Asst. U. S. Atty., Rocky Mount, Va., and John Strickler, U. S. Atty., Roanoke, Va. (Thomas J. Wilson, Harrisonburg, Va., and Benjamin F. Sutherland, Asst. U. S. Attys., Clintwood, Va., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
1
This is an appeal in a criminal case in which appellant was convicted of failing to report for induction into the military service of the United States, in violation of the terms of the Universal Military Training and Service Act, 50 U.S.C.A.Appendix § 462. Appellant claims to be a conscientious objector. He admits that he was denied this classification by the draft board and that he failed to report for induction when ordered; but he contends that the order of the board classifying him was void because not based upon anything contained in his file and because the board did not reopen his classification when considering two letters referred to it by state headquarters for Selective Service. He contends, also, that the trial judge committed reversible error in not requiring the production at his trial of the F.B.I. report which was furnished the examining officer of the Department of Justice. We think that none of these contentions can be sustained.
2
Appellant registered under the Universal Military Training and Service Act in 1951. In July of 1952 he filled out and filed with the local draft board a questionnaire in which he made no claim to being a conscientious objector; and the evidence shows that at that time he was asked by the clerk of the board whether or not he was a conscientious objector and replied that he was not. In the following December he filed claim to this classification, which was denied by the board, and he was given classification 1-A. He then requested that he be allowed to appear personally before the board and present his claim, and this request was allowed, but after seeing and hearing him the board adhered to the 1-A classification. He then appealed to the State Appeal Board, which also classified him 1-A. At the time of registration, appellant was an employee of Luray Caverns in Virginia. At the time of claiming exemption as a conscientious objector he was an employee of an overall manufacturing company. Sometime later he left this work and accepted work as an orderly in a hospital in New Hampshire, in what is contended was an attempt to avoid military service. He gave up this work when he was given 1-A classification by the Appeal Board.
3
After the appeal to the Appeal Board, the procedure prescribed by 50 U.S.C.A. Appendix, § 456(j) was followed, i. e. an investigation was made by the F.B.I. and a hearing was accorded appellant by a hearing officer of the Department of Justice who had received the F.B.I. report and who had furnished him a summary thereof before the hearing. After the hearing, the officer made report to the Department of Justice, which, on the basis of his report, made recommendation to the Appeal Board, recommending against the exemption. Neither the report of the F.B.I. nor the summary thereof furnished appellant was seen by either the local board or the Appeal Board.
4
After the Appeal Board had acted upon the appeal, the state headquarters of selective service, at appellant's request, asked the local board to include two letters in appellant's file and review them and determine whether the information therein contained was sufficient to warrant a change of classification. The local board considered the letters but found in them no reason for disturbing appellant's classification or for reopening the matter.
5
Appellant contends that because there was nothing in his file contradicting his claim of being a conscientious objector the board could not lawfully do otherwise than so classify him, relying upon the decision of the Supreme Court in Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132. That case, however, involved the status of a minister of religion, a matter capable of objective proof, not, as here, a matter of subjective belief. Whether or not such belief is entertained in good faith is a matter for decision in the first instance by the local board, the members of which, coming from registrant's community and having seen him and heard his statement with regard to the matter, are presumably better qualified than anyone else could possibly be to pass upon the question of fact involved and decide whether he is telling the truth about being a conscientious objector or whether this is a mere pretense put forward to escape military service. The Appeal Board can and should give weight to the fact that the local board has had the advantage of seeing the registrant and hearing him testify. Neither board is bound to believe a registrant's statement as to his belief, especially when, as here, conscientious objection seems not to have been thought of until military service became imminent. The burden of proof rested upon appellant to prove that he was a conscientious objector. He could not shift the burden of that issue by his statement as to his belief. His contentions to that effect were conclusively answered, we think, by Judge Lindley, speaking for the Court of Appeals of the 7th Circuit in United States v. Simmons, 7 Cir., 213 F.2d 901, 903-904, where he said:
6
"Defendant contends, on authority of Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152 [98 L.Ed. 132], that the denial of a conscientious objection claim has a basis in fact only when the board has procured affirmative evidence which contradicts the representations made by a registrant in his application for exemption, — that the board must make a record to support its order. * * *
7
"* * * a distinction must be drawn, we believe, between a claim of ministerial status and a claim of conscientious objection status as to susceptibility of proof. Whether a registrant is a minister in the statutory sense, having as his principal vocation the leadership of and ministering to the followers of his creed, is a factual question susceptible of exact proof by evidence as to his status within the sect and his daily activities. No search of his conscience is required. Even though the only tenet of his cult be a belief in war and bloodshed, he still would be exempt from military service if he were, in fact, a minister of religion. Is he affiliated with a religious sect? Does he, as his vocation, represent that sect as a leader ministering to its followers? These questions are determinative and subject to exact proof or disproof.
8
"The conscientious objector claim admits of no such exact proof. Probing a man's conscience is, at best, a speculative venture. No one, not even his closest friends and associates, can testify to a certainty as to what he believes and feels. These, at most, can only express their opinions as to his sincerity. The best evidence on this question may well be, not the man's statements or those of other witnesses, but his credibility and demeanor in a personal appearance before the fact-finding agency. We cannot presume that a particular classification is based on the board's disbelief of the registrant, but, just as surely, the statutory scheme will not permit us to burden the board with the impossible task of rebutting a presumption of the validity of every claim based ofttimes on little more than the registrant's statement that he is conscientiously opposed to participation in war. When the record discloses any evidence of whatever nature which is incompatible with the claim of exemption we may not inquire further as to the correctness of the board's order."
9
The recent case of White v. United States, 9 Cir., 215 F.2d 782, 784-785, is directly in point; and the court there similarly distinguished the Dickinson case, saying:
10
"The argument appears to add up to the proposition that since the appellant stated in his questionnaire and in letters addressed to the boards that he was conscientiously opposed not only to combatant service but to noncombatant service as well, and since these statements were supported by letters from his mother and his minister, the selective service boards were obliged to make findings in accordance with his claims, in the absence of other affirmative evidence which contradicted his representations. This argument relies upon Dickinson v. United States, 346 U.S. 389, 74 S. Ct. 152 [98 L.Ed. 132], and appellant's position is that the rule of that case must be applied here.
11
"We think that the facts of this case do not call for any such conclusion. The question before the local board had to do not with what religious organization or sect the appellant adhered to, nor what the teachings of that sect or organization was, but what was the sincere belief of this particular registrant and what was the extent of his conscientious opposition to military service. In other words, the local board initially, and the appeal board subsequently, were called upon to evaluate a mental attitude and a belief. It is plain that when such matters are to be determined and passed upon, the attitude and demeanor of the person in question is likely to give the best clue as to the degree of conscientiousness and sincerity of the registrant, and as to the extent and quality of his beliefs. The local board, before whom the registrant appeared, had an opportunity surpassing that available to us or to the appeal board itself to determine and judge as to these matters."
12
We think it clear that the classification of the board cannot be held invalid as not supported by the record. We think it equally clear that it cannot be held invalid for failure to reopen and consider anew the classification of appellant under 1625.3 of the regulation, which provides in part:
13
"The local board shall reopen and consider anew the classification of a registrant upon the written request of the State Director of Selective Service or the Director of Selective Service and upon receipt of such request shall immediately cancel any Order to Report for Induction (SSS Form No. 252) which may have been issued to the registrant."
14
There was no request that the board reopen and consider anew the classification of appellant, but merely that it review the content of two letters and make a determination as to whether or not the information therein contained was sufficient to warrant a change in classification. This the board did and held the letters insufficient to warrant a change. This was a matter within the discretion of the board and there is nothing to indicate that the discretion was abused. Smith v. United States, 4 Cir., 157 F.2d 176, 181, certiorari denied 329 U.S. 776, 67 S.Ct. 189, 91 L.Ed. 666, rehearing denied 329 U.S. 831, 67 S.Ct. 367, 91 L.Ed. 704.
15
The District Court had no power to review the action of the draft board or to determine whether or not the appellant was a conscientious objector. This was a matter committed by the law exclusively to the board, and its action, if validly taken, was binding upon the court. The appellant having admitted his failure to comply with the order of induction, the only question before the court was the validity of the order of classification upon which the order of induction was based. As said by the Supreme Court in Estep v. United States, 327 U.S. 114, 122, 66 S.Ct. 423, 427, 90 L.Ed. 567:
16
"The provision making the decisions of the local board `final' means to us that Congress chose not to give administrative action under this Act the customary scope of judicial review which obtains under other statutes. It means that the courts are not to weigh the evidence to determine whether the classification made by the local boards was justified. The decisions of the local boards made in conformity with the regulations are final even though they may be erroneous. The question of jurisdiction of the local board is reached only if there is no basis in fact for the classification which it gave the registrant. See Goff v. United States, 4 Cir., 135 F.2d 610, 612."
17
The case of Goff v. United States cited by the Supreme Court in the passage quoted, was a decision of this court wherein we said [135 F.2d 612]:
18
"The courts are given no power to review proceedings of the Draft Boards, but the decisions of these boards are made final by express provision of the Selective Training and Service Act. 50 U.S.C.A.Appendix, § 310(a) (2). Some courts have held that even invalidity in the orders of the Board may not be shown by way of defense to a criminal action, but must be availed of by habeas corpus. United States v. Grieme, 3 Cir., 128 F.2d 811; Fletcher v. United States, 5 Cir., 129 F.2d 262. It would seem, however, that the total invalidity of an order which would be necessary to justify release on habeas corpus would constitute a defense to a criminal action based on disobedience of that order. But as we said in the case of Adrian Elwood Baxley v. United States, 4 Cir., 134 F.2d 998, this does not mean that the court in a criminal proceeding may review the action of the board. That action is to be taken as final, notwithstanding errors of fact or law, so long as the board's jurisdiction is not transcended and its action is not so arbitrary and unreasonable as to amount to a denial of constitutional right."
19
As there was no power in the District Court to review the action of the draft board, we think that the trial judge was clearly right in refusing to require the production of the F.B.I. report which was considered by the hearing officer of the Department of Justice, but which was not before either the local board or the Appeal Board, as was the case in Brewer v. United States, 4 Cir., 211 F.2d 864. If seeing the F.B.I. report could have been of any use to appellant, it would have been at the hearing before the examining officer of the Department of Justice or before the Appeal Board, when the recommendation of the Department of Justice was before that board for consideration; but appellant did not ask that it be produced on either of these occasions; and the Supreme Court has held that he was not entitled to have it produced for use on either of them. United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417. It would be absurd, we think to hold that a registrant is not entitled to have the benefit of the F.B.I. report at hearings where questions of fact are being determined and the report might be of use to him but that he is entitled to have it after the determinations of fact have been made and the only question is the validity of the action of the fact-determining body. Directly in point is the decision of the Court of Appeals of the 9th Circuit, in White v. United States, supra, 215 F.2d 782, 791. As said by that court, "We refuse to believe that the Court labored and brought forth a mouse of a decision that the hearing officer need not show the FBI report when the situation was such that the trial court must necessarily admit it." See also Tomlinson v. United States, 9 Cir., 216 F.2d 12. Cf. United States v. Evans, D.C., 115 F.Supp. 340; United States v. Edmiston, D.C., 118 F.Supp. 238.
20
As pointed out by the Supreme Court in the Nugent case, the inquiry conducted by the Department of Justice through the F.B.I. and through the hearing officer is merely for the purpose of enabling the Department of Justice to offer advice with respect to a registrant who has already been denied conscientious objector classification by the local board. This advice is not binding upon either the Appeal Board or the local board, these boards, notwithstanding the advice, still being charged with full responsibility for making the classification. It is argued that the F.B.I. report should be produced so that the court can determine whether or not the hearing officer has furnished the accused a fair summary thereof; but, if the courts may not correct errors of the draft boards, whether of law or of fact, they certainly may not require production of evidence to show the mere possibility of such error by reason of possibility of error on the part of the hearing officer, who can do no more than recommend action in any event.
21
It should be remembered that any exemption from military service on account of conscientious objection to war is granted as a matter of grace. Congress need not have granted any exemption at all, or it could have made the action of the local board final without appeal of any sort. In providing for an appeal and for investigation and recommendation by the Department of Justice, it has provided for no review of the action or recommendation of the hearing officer just as it has provided no review for the action of the Appeal Board. In the absence of such provision for review the courts may not exercise it. Regulation of the draft machinery is a matter for Congress, not the courts. In the absence of clear invasion of constitutional right, the courts may not interfere, where, as here, the procedure prescribed by Congress has been followed.
22
Affirmed.
23
On Rehearing.
24
PER CURIAM.
25
A rehearing has been granted in this case because of the decisions rendered by the Supreme Court on March 14, 1955 in Witmer v. United States, 75 S.Ct. 392; Simmons v. United States, 75 S.Ct. 397; Sicurella v. United States, 75 S.Ct. 403, and Gonzales v. United States, 75 S.Ct. 409; and reargument has been had in the light of these decisions. We find nothing in any of them, however, which calls for any modification of the decision heretofore rendered herein. The decision appealed from will accordingly be again affirmed.
26
Affirmed.
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893 F.2d 343
U.S.v.Lomax*
NO. 89-2490
United States Court of Appeals,Fifth Circuit.
DEC 26, 1989
1
Appeal From: S.D.Tex.
2
AFFIRMED.
*
Fed.R.App.P. 34(a); 5th Cir.R. 34.2
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0081n.06
Case No. 14-5475 FILED
Jan 27, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
DARRELL VARNER, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
)
OPINION
BEFORE: BOGGS and McKEAGUE, Circuit Judges; PEARSON, District Judge.*
McKEAGUE, Circuit Judge. Darrell Varner challenges his plea agreement, claiming
that it is invalid because he was not aware at the time of his plea of dashboard-camera footage
that was the basis for a six-level sentencing enhancement. He also brings an ineffective-
assistance-of-counsel claim. We affirm.
On the morning of March 13, 2013, Varner and his codefendant, Joseph Fuller,
unsuccessfully attempted to rob a T-Mobile store in Memphis. Later that same day, they
successfully robbed a different T-Mobile store before leading authorities on a multi-state, high-
*
The Honorable Benita Y. Pearson, United States District Judge for the Northern District of
Ohio, sitting by designation.
Case No. 14-5475
U.S. v. Varner
speed car chase. At some point during the chase, defendants abruptly changed lanes and drove
towards an officer who was deploying a spike strip on the side of the road. The officer moved to
avoid being hit. Varner and Fuller were detained soon after.
The two were charged with one count of aiding and abetting attempted robbery and one
count of aiding and abetting robbery, in violation of 18 U.S.C. §§ 2 and 1951; and two counts of
using and carrying a firearm during and in relation to a crime of violence, in violation of
18 U.S.C. § 924(c). Varner pleaded guilty to both robbery counts and to one of the two firearm
counts. The agreement set forth the minimum and maximum statutory penalties for each charge.
It also contained an appeal-waiver provision under which Varner agreed not to appeal a sentence
within the statutory range except for prosecutorial misconduct and ineffective assistance of
counsel.
The district court held a change of plea hearing where the government read the terms of
the plea agreement and provided a factual basis for the plea. Varner acknowledged that the facts
were true as read and admitted his guilt. Varner also acknowledged that he was aware of the
rights he was giving up and that he understood the appeal waiver. The court then explained the
sentencing Guidelines and advised Varner that he could be sentenced above or below the
advisory Guidelines range.
The Pre-Sentence Report (“PSR”) calculated an offense level of 34 and a Guidelines
range of 168 to 210 months, which included a six-level enhancement under U.S.S.G.
§ 3A1.2(c)(1) because the fleeing car almost hit a law enforcement officer. After receiving the
PSR, the government shared with Varner’s counsel the video documenting the relevant portion
of the car chase. The government had not been aware of this video until Fuller’s sentencing
-2-
Case No. 14-5475
U.S. v. Varner
hearing, three months after his change of plea. Varner objected to that enhancement because, he
argued, he did not know at the time of his plea that this video existed.
At the sentencing hearing, the district court overruled Varner’s objection and applied the
six-level enhancement, resulting in a Guidelines range of 121 to 151 months for the robbery
counts and a mandatory minimum of 60 months to be served consecutively for the firearms
count. Varner was sentenced to concurrent 121-month terms for the robbery charges and 60
months for the firearms charge, to run consecutively. Varner now argues that his counsel’s lack
of knowledge of this video constituted ineffective assistance. In addition, he claims that the plea
agreement was not entered into knowingly and intelligently because he could not understand the
full consequences of the guilty plea without knowledge of the video.
For the ineffective-assistance claim, Varner argues that his counsel could not properly
advise him of the consequences of pleading guilty without knowledge of the video. In general,
we do not review ineffective-assistance-of-counsel claims on direct appeal because “there has
not been an opportunity to develop and include in the record evidence bearing on the merits of
the allegations.” United States v. Franco, 484 F.3d 347, 354–55 (6th Cir. 2007) (internal
quotation marks and citations omitted). A well-developed factual record is vital to whether
prejudice can be shown. Id.; see also United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997).
Defendants may instead bring these claims collaterally under 28 U.S.C. § 2255, which the appeal
waiver in Varner’s plea agreement contemplates. There is no reason to depart from the general
rule here. Because the record before us has not been adequately developed to make a
determination, we abstain from ruling on this issue.
Varner also argues that his plea was not knowing and intelligent, as it must be to be valid.
United States v Dixon, 479 F.3d 431, 434 (6th Cir. 2007) (citing Brady v. United States, 397 U.S.
-3-
Case No. 14-5475
U.S. v. Varner
742, 748 (1970)). The district court must verify that the defendant understands the “‘applicable
constitutional rights, the nature of the crime charged, the consequences of the guilty plea, and the
factual basis for concluding that the defendant committed the crime charged.’” Id. at 434
(quoting United States v. Webb, 403 F.3d 373, 378–79 (6th Cir. 2005)); see also Fed. R. Crim. P.
11. We review de novo whether a guilty plea was knowing, voluntary, and intelligent. Dixon,
479 F.3d at 434. The factual bases relied upon by the court below are reviewed for clear error.
Id.
Varner’s plea meets these requirements. A defendant knowingly and intelligently enters
a plea when he understands, among other things, the maximum sentence he may receive at
sentencing. See United States v. Stephens, 906 F.2d 251, 253–54 (6th Cir. 1990); United States
v. Meeks, 290 F. App’x 896, 905 (6th Cir. 2008). The plea agreement correctly listed the
statutory range of penalties and there is no indication that Varner was not aware of the nature of
the charge to which he pleaded or of the consequences of his plea. See Brady, 397 U.S. at 448;
Pickens v. Howes, 549 F.3d 377, 380 (6th Cir. 2008). Varner explicitly acknowledged that he
was aware of that sentencing range, and there were no “‘affirmative misstatements of the
maximum possible sentence.’” Dixon, 479 F.3d at 435 (quoting Pitts v. United States, 763 F.2d
197, 201 (6th Cir. 1985)). It does not matter, therefore, that he may not have been aware of
certain evidence that would support a sentencing enhancement.
Because Varner knowingly and intelligently entered the plea, the plea agreement is valid
and he has waived his right to appeal this sentence, which is within the statutory range. We will
not consider his ineffective assistance claim on direct review. For these reasons, we affirm.
-4-
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NUMBER 13-17-00276-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ROBERTO MORALES GARZA, Appellant,
v.
BRYAN ROBINSON, Appellee.
On appeal from the 445th District Court
of Cameron County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Justice Longoria
Appellant Roberto Morales Garza failed to file a timely response to appellee Bryan
Robinson’s motion for summary judgment. The trial court granted summary judgment in
favor of Robinson. By one issue, Garza argues that the trial court erred by failing to grant
his motion for new trial. We affirm.
I. BACKGROUND
In September 2007, Garza executed and delivered a warranty deed to Robinson,
conveying property on South Padre Island, in exchange for $170,000. In August 2009,
Garza filed suit against Robinson, alleging that Robinson had fraudulently induced him
into selling the property. In October 2010, summary judgment was granted in favor of
Robinson. Garza appealed the trial court’s ruling to this Court. We concluded that
“Robinson established his entitlement to summary judgment based on his statute-of-
frauds affirmative defense.” Garza v. Robinson, No. 13-11-00015-CV, 2013 WL 3326465,
at *1 (Tex. App.—Corpus Christi–Edinburg June 27, 2013, no pet.) (mem. op.)
(concluding that the trial court did not err in granting summary judgment in favor of
Robinson because Garza’s evidence pertaining to whether the execution of the deed was
induced by fraud was barred by the statute of frauds).
Nevertheless, Robinson asserted that Garza refused to vacate the premises. In
2014, Robinson filed a forcible entry and detainer action in a justice of the peace court,
but the trial court denied Robinson’s request for possession. In March 2016, Robinson
filed the instant suit for injunctive relief, requesting that Garza be removed from the
property. Garza filed an answer, alleging that Robinson never appealed the justice court’s
dismissal of the forcible entry and detainer action. On August 3, 2016, Robinson filed a
combined motion for traditional and no-evidence summary judgment, arguing that he
affirmatively established that he is the record title owner of the property in question and
that Garza “has no evidence and can provide no evidence that he has any right, title, or
interest in the Property.” The trial court set a hearing for the motion on October 18, 2016.
Garza filed a response to the summary judgment motion on October 14, 2016. Robinson
2
objected to Garza’s untimely response and requested that it not be considered by the trial
court. See TEX. R. CIV. P. 166a(c).
After several continuances, the trial court issued an “Order Granting Continuance,
Setting Hearing, and Admonishing Defendant” on January 6, 2017, in which the trial court
ordered that Robinson’s motion for summary judgment would “be heard by submission”
on January 31, 2017. On January 30, 2017, Garza filed a supplemental response. On
January 31, 2017, Garza appeared but Robinson did not, believing that the motion was
being heard by submission. At Garza’s request, the trial court reset the hearing for
February 21, 2017. On February 14, 2017, Robinson filed a motion asking the trial court
to reconsider its decision to accept Garza’s untimely response, even though the trial court
had not ruled on the objections to Garza’s untimely response yet.
On February 21, 2017, Robinson appeared in person to argue his motion to
reconsider accepting Garza’s untimely response. Garza appeared by telephone at the
hearing. The trial court advised the parties that the hearing was set by mistake and the
motion for summary judgment would be heard by submission. On February 24, 2017, the
trial court issued an order granting Robinson’s motion for summary judgment. In the
order, the trial court found that Robinson’s motion for summary judgment was set for
hearing by submission on January 31, 2017 and that on that day, the hearing was
erroneously reset. The trial court’s order additionally granted Robinson’s objection to
Garza’s untimely response, declared that Garza’s response would not be considered, and
reiterated that Robinson’s motion for summary judgment was being heard by submission.
On March 22, 2017, Garza filed a motion for new trial, arguing that he should have
an opportunity to present oral argument because he possessed meritorious defenses and
3
his failure to appear at the February 21, 2017 hearing was caused by mistake. On April
27, 2017, the trial court denied Garza’s motion for new trial. This appeal ensued.
II. CRADDOCK
In his sole issue, Garza cites Craddock to argue that the trial court erred in denying
his motion for new trial. 1 See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124,
126 (Tex. 1939).
A. Standard of Review and Applicable Law
We review a trial court’s denial of a motion for new trial for an abuse of discretion.
See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006). A trial court abuses its discretion if “it
renders an arbitrary and unreasonable decision lacking support in the facts or
circumstances of the case.” Samlowski v. Wooten, 332 S.W.3d 404, 411 (Tex. 2011).
“Due process requires ‘notice reasonably calculated, under the circumstances, to
apprise interested parties of the pendency of the action and afford them an opportunity to
present their objections.’” Whiteside v. Ford Motor Credit Co., 220 S.W.3d 191, 194 (Tex.
App.—Dallas 2007, no pet.) (quoting Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84
(1988)). When a party files a motion for summary judgment, the nonmovant’s due
process rights are satisfied as long as he receives a reasonable opportunity to present a
response to the motion for summary judgment. See id. at 195; see also Franklin One
Partners II, LLC v. Rodriguez, No. 13-16-00196-CV, 2016 WL 5941844, at *2 (Tex.
App.—Corpus Christi–Edinburg Oct. 13, 2016, no pet.) (mem. op.).
1 In granting Robinson’s motion for summary judgment, the trial court concluded that Garza’s
response “was not timely filed and shall not be considered by this Court.” Garza never challenged this
finding below or on appeal. Garza’s appellate brief mirrors his motion for new trial in arguing that his motion
for new trial was timely filed; however, Garza has never asserted that his response to the motion for
summary judgment was timely.
4
The equitable Craddock factors are employed when a party files a motion for new
trial in an attempt to set aside default judgment. See Milestone Operating, Inc. v.
ExxonMobil Corp., 388 S.W.3d 307, 309 (Tex. 2012); Craddock, 133 S.W.2d at 126.
However, the Texas Supreme Court has concluded that
Craddock does not apply to a motion for new trial filed after summary
judgment is granted on a motion to which the nonmovant failed to timely
respond when the respondent had notice of the hearing and an opportunity
to employ the means our civil procedure rules make available to alter the
deadlines Rule 166a imposes.
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 683–84 (Tex. 2002). The
court in Carpenter also held that trial courts should generally grant motions for leave and
continuances related to summary judgment hearings upon showings of good cause and
lack of harm to the nonmovant. See id.
B. Discussion
Garza argues that the trial court should have granted his motion for new trial
because he satisfied the Craddock factors. However, Craddock is inapplicable to the
current case. Craddock generally applies when a party files a motion for new trial to set
aside a default judgment and the party failed to file a timely answer before the default
judgment was entered. See Dir., State Employees Workers’ Comp. Div. v. Evans, 889
S.W.2d 266, 268 (Tex. 1994) (noting that the Craddock factors apply when trying to set
aside either a no-answer or post-answer default judgment); Craddock, 133 S.W.2d at
126. In contrast, Garza is not attempting to set aside a default judgment; rather, he filed
a timely answer to Robinson’s original petition but then failed to file a timely response to
Robinson’s motion for summary judgment. 2 Therefore, we apply the rules set out in
2 Robinson filed his motion for summary judgment on August 3, 2016. A hearing for the motion
5
Carpenter. See Carpenter, 98 S.W.3d at 683–84; Ready v. Alpha Bldg. Corp., 467
S.W.3d 580, 583 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (noting that when the
Craddock factors do not apply, a party’s recourse under Carpenter is to “seek appellate
review of the trial court’s rulings under the usual abuse-of-discretion standard”).
Garza’s motion for new trial is based entirely on the premise that his failure to
appear in person at the February 21, 2017 hearing was a mistake and that he had valid
defenses to present. However, Garza appeared at the hearing by phone. Moreover, “an
oral hearing is not mandatory” for a motion for summary judgment. See Martin v. Martin,
Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). The trial court advised the
parties that the motion for summary judgment would be heard by submission, and Garza
does not allege that the trial court erred in deciding to hear the motion by submission. It
is undisputed that Garza was properly notified of the summary judgment hearing, and the
record reflects that Garza had a “reasonable opportunity” to present his response,
meaning his due process rights were satisfied. Whiteside, 220 S.W.3d at 195.
Furthermore, Garza does not allege that the trial court erred in declining to consider his
late response; Garza never even filed a motion for leave to file a late response to the
motion for summary judgment. See Carpenter, 98 S.W.3d at 683. Thus, even though
Garza argued that his failure to appear in person at the February 21, 2017 hearing was a
mistake, Garza failed to establish good cause for his failure to file a timely response to
the motion for summary judgment. See id. Therefore, we conclude that the trial court did
not abuse its discretion in denying Garza’s motion for new trial. See id.; West v. Maint.
was set for October 18, 2016, meaning Garza needed to file a response by October 11, 2016. See TEX. R.
CIV. P. 166a(c). However, Garza did not file a response until October 14, 2016. The trial court then reset
the hearing for January 31, 2017, meaning any responses by Garza needed to be filed by January 24,
2017. However, Garza filed a supplemental response on January 30, 2017.
6
Tool & Supply Co., 89 S.W.3d 96, 100 (Tex. App.—Corpus Christi–Edinburg 2002, no
pet.) (holding that the trial court did not abuse its discretion in denying a motion for new
trial after entry of summary judgment when the non-movant failed to establish good cause
for his failure to file a timely response after receiving notice of a summary judgment
hearing). We overrule Garza’s sole issue.
III. CONCLUSION
We affirm the judgment of the trial court.
NORA L. LONGORIA
Justice
Delivered and filed the
27th day of August, 2019.
7
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139 F.2d 946 (1944)
JUSINO et al.
v.
MORALES & TIO
No. 3942.
Circuit Court of Appeals, First Circuit.
January 18, 1944.
*947 Luisa Maria Capo, Yamil Galib Frangie, and Gilberto Lopez de Victoria, all of San German, Puerto Rico, for appellants.
Clemente Ruiz Nazario, of San Juan, Puerto Rico, for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAGRUDER, Circuit Judge.
Appellants brought their complaint in the court below against their employer for recovery of unpaid minimum wages under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq. The defendant, appellee herein, filed a motion to dismiss the action because the complaint failed to state a claim upon which relief could be granted. On February 23, 1943, the motion to dismiss was granted and judgment was entered dismissing the complaint. On March 24, 1943, the plaintiffs filed in the court below a motion, with accompanying brief, praying the court to reconsider and vacate the judgment dismissing the complaint. On April 2, 1943, the court heard argument of counsel on this motion for reconsideration, and on the same day denied the motion. On June 26, 1943, appellants filed their notice of appeal from the judgment of February 23, 1943, dismissing the complaint.
Appellee now moves to dismiss the appeal for lack of jurisdiction, on the ground that such appeal was not taken within the three months' period after the entry of the judgment. 28 U.S.C.A. § 230.
If the court below had by lapse of time lost the power to vacate its judgment of dismissal, the subsequent filing of a motion for reconsideration, and its entertainment by the court, would have been a nullity, and would not have tolled the statutory time within which an appeal could be taken. Appellee contends that such is the case here. It argues that the motion for reconsideration came under Rule 59(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, and that it could not be entertained by the court because it was not filed within ten days after the entry of the judgment, and under Rule 6(b) the court was powerless to enlarge the time for filing such a motion.
In the alternative, appellee contends that if the motion for reconsideration does not fall within Rule 59(b) it must be considered as a motion filed under Rule 60(b), and that a motion under Rule 60(b) does not extend the time for taking an appeal. Rule 60(b) relates to motions to relieve a party from a judgment "taken against him through his mistake, inadvertence, surprise, or excusable neglect." The motion for reconsideration here was not of that nature; it was not predicated upon the litigants' mistake or neglect but upon an asserted mistake of law by the court in ruling that the complaint did not state a cause of action. Rule 60(b) has no bearing on this case. See Safeway Stores, Inc., v. Coe, App. D.C.1943, 136 F.2d 771, 773.
On the other hand the argument in support of our jurisdiction is that the Federal Rules of Civil Procedure contain no rule prescribing a time limit within which the court may entertain a motion to reconsider a judgment dismissing a complaint for failure to state a cause of action; that the court below had power to entertain such a motion at least if made within the three months' period within which an appeal could be taken; that in the present case the motion for reconsideration was filed, and entertained by the court, well within the period allowed for taking an appeal, and was evidently regarded by the court as having been timely filed under its practice. From this it would follow, under the decided cases, that the statutory period for taking an appeal did not begin to run until the motion for reconsideration was disposed of, namely, on April 2, 1943. See Pfister v. Northern Illinois Finance Corp., 1942, 317 U.S. 144, 149, note 7, 63 S.Ct. 133, 137, and cases cited in Denholm & McKay Co. v. Commissioner, *948 1 Cir., 1942, 132 F.2d 243, 247. In this view, the notice of appeal, filed June 26, 1943, was timely and gave this court jurisdiction.
The case turns therefore on whether the motion for reconsideration falls within Rule 59(b). On a literal reading, it is not easy to bring such a motion within the rule. Rule 59(a) provides that a new trial may be granted (1) in an action in which there has been a trial by jury and (2) in an action tried without a jury; and Rule 59(b) provides that a motion for a new trial shall be served not later than ten days after the entry of the judgment. The Advisory Committee in its annotations states that Rule 59 "represents an amalgamation of the petition for rehearing of Equity Rule 69 (Petition for Rehearing) and the motion for new trial of U.S.C.A. Title 28, § 391 (New trials; harmless error), made in the light of the experience and provision of the Code states. Compare Calif.Code Civ.Proc. (Deering, 1937) §§ 656-663a." 28 U.S. C.A. § 391 refers only to motions for a new trial after a trial by jury. A motion under Equity Rule 69, 28 U.S.C.A. § 723 Appendix, was equivalent to a motion for a new trial in actions at law and was granted "only upon such grounds as would authorize a new trial in an action at law." Sheeler v. Alexander, D.C.N.D.Ohio 1913, 211 F. 544, 547; 3 Moore's Federal Practice, p. 3247. Section 656 of the California Code of Civil Procedure, above referred to, reads: "A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury, court or referee." It might be argued, therefore, that Rule 59 presupposes that there has been a trial on issues of fact. Cf. Riglesberger v. Bailey, 1898, 102 Ky. 608, 44 S.W. 118. In the present case there had been no trial, and hence no occasion for a new trial to correct trial errors, the complaint having been dismissed at the threshold on the ground that it did not state a cause of action. A similar question might arise as to whether Rule 59(b) covers a motion for reconsideration of a summary judgment entered under Rule 56.
In Safeway Stores, Inc., v. Coe, App. D.C.1943, 136 F.2d 771, a judgment had been entered on October 17, 1941, dismissing a complaint on the ground that the action could not proceed in the absence of a necessary party. On November 17, 1941, the plaintiff filed a "motion for rehearing", which was considered and denied on January 17, 1942. The plaintiff filed notice of appeal on February 14, 1942. The court held that the motion for rehearing fell within Rule 59(b); that since it was not filed within ten days after the judgment was entered, the district court had no power to entertain it; that the filing of the motion for rehearing and its entertainment by the court therefore did not enlarge the time for the taking of an appeal; and that the appeal must be dismissed for lack of jurisdiction since it was not taken within three months after the entry of the judgment of October 17, 1941. This case, we think, is indistinguishable from the case at bar, because in each case the complaint had been dismissed upon motion without any trial having been had. A ruling to the same effect was made by Judge Hincks in Nachod & United States Signal Co., Inc., v. Automatic Signal Corp., D.C.Conn.1939, 26 F. Supp. 418. The court in Safeway Stores, Inc., v. Coe was influenced by the consideration that if Rule 59(b) does not apply, then the Federal Rules of Civil Procedure contain no express time limit upon the filing of a motion for reconsideration of a judgment dismissing a complaint on a point of law prior to trial. Prior to the adoption of the new rules there was the general limitation that a court could not "set aside or alter its final judgment after the expiration of the term at which it was entered, unless the proceeding for that purpose was begun during that term." United States v. Mayer, 1914, 235 U.S. 55, 67, 35 S.Ct. 16, 19, 59 L.Ed. 129. But that limitation has been removed by Rule 6(c) which provides that the expiration of a term of court in no way affects the power of the court "to do any act or take any proceeding in any civil action which has been pending before it."[1]
It is unlikely that the draftsmen of the new rules could have intended to permit the filing of such a motion as is here involved without limit of time. Though the matter is not free from doubt, we feel constrained to follow the rulings in the cases above cited, and to hold that the motion for reconsideration in the case at bar was within the spirit and intendment of Rule 59(b). This interpretation, we *949 think, is justified by the general admonition of Rule 1 that the rules "shall be construed to secure the just, speedy, and inexpensive determination of every action."
The appeal is dismissed for lack of jurisdiction.
NOTES
[1] The critical dates in the present case in fact all occurred within the November 1942 term of the District Court. 48 U. S.C.A. § 864.
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516 F.2d 900
Herringv.Benton and Company, Inc.
74-3008
UNITED STATES COURT OF APPEALS Fifth Circuit
7/14/75
M.D.Fla., 514 F.2d 1070
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29 So.3d 355 (2010)
James FLEISHMAN, Appellant,
v.
Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
No. 1D10-0151.
District Court of Appeal of Florida, First District.
February 18, 2010.
James R. Fleishman, pro se, Appellant.
Bill McCollum, Attorney General, Tallahassee, for Appellee.
PER CURIAM.
DISMISSED. See Fla. R.App. P. 9.110(b).
KAHN, PADOVANO and WETHERELL, JJ., concur.
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In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 10-398V
Filed: June 30, 2013
*************************************
SHEA KYLIE SULLIVAN, * TO BE PUBLISHED
*
Petitioner, * Finding of Fact; Human Papillomavirus
* Vaccination (HPV); Joint Pain
v. * Inflammation; Rheumatoid
* Arthritis; Timing of Onset of Symptoms;
SECRETARY OF HEALTH * Contemporaneous Medical Records versus
AND HUMAN SERVICES, * Testimony
*
Respondent. *
*
*************************************
Sarah Reimers, LeClairRyan, Washington, DC, for Petitioner;
Alexis B. Babcock, United States Dep’t of Justice, Washington, DC, for Respondent.
RULING REGARDING FINDING OF FACT1
Zane, Special Master.
This matter is before the special master to resolve a factual dispute and make a finding of
fact as to the timing of the onset of medical symptoms of joint and muscular aches and pains,
that Petitioner, Ms. Shea Sullivan (“Petitioner”), allegedly experienced before, around or after
she received the Human Papillomavirus (“HPV”) vaccinations on June 27, 2007, August 29,
2007, and January 4, 2008. Petitioner filed her petition for compensation pursuant to the
1
Because this ruling contains a reasoned explanation for the special master's action in this case,
the special master intends to post it on the website of the United States Court of Federal Claims,
in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913
(Dec. 17, 2002). All decisions of the special masters will be made available to the public unless
they contain trade secret or commercial or financial information that is privileged and
confidential, or medical or similar information whose disclosure would clearly be an
unwarranted invasion of privacy. When such a decision or designated substantive order is filed,
a party has 14 days to identify and to move to redact such information before the document’s
disclosure. Absent a timely motion, the decision shall be made available to the public in its
entirety. Upon the filing of a timely motion to redact, along with a proposed redacted version of
the decision, if the special master, upon review, agrees that the identified material fits within the
categories listed above, the special master shall redact such material from the decision made
available to the public. 42 U.S.C. § 300aa–12(d)(4); Vaccine Rule 18(b).
1
National Childhood Vaccine Injury Act (“Vaccine Act”), 42 U.S.C. § 300aa-1, et seq.,2 claiming
that the HPV vaccines she received in 2007-08 caused her to suffer joint and body pain and joint
inflammation and eventually led to her being diagnosed with rheumatoid arthritis.3 Petition at 3-
4; Transcript of January 24, 2012 Fact Hearing (“Tr.”) at 176.
A fact issue arose regarding the timing of the onset of symptoms. Despite that the
medical records indicate it was more than three months after she received her third vaccine that
Petitioner visited the doctor complaining of joint pain, Petitioner asserted her symptoms began
earlier. Petitioner claimed that she began to experience pain in her shoulder and swelling in her
wrists and fingers in the latter half of 2007 after receiving her first and second vaccinations but
before receiving her third vaccination.
The timing of the onset of symptoms is a material fact because the medical experts’
conclusions regarding temporal relation could change if the onset of Petitioner’s symptoms
began earlier than stated in the medical records. To resolve this issue, a fact hearing was
conducted in January 2012, at which Petitioner and her parents, Dennis and Sandy Sullivan,
testified.
As explained herein, based on the record as a whole, the special master finds that, as set
forth in the medical records, Petitioner’s symptoms of joint and muscle aches and pains
following her receipt of the HPV vaccines began in late March or early April 2008 as stated in
the medical records. The medical records are clear, internally consistent, and complete.
In reaching her finding, the special master observed Petitioner and her parents as they
testified. Each had a detailed recollection of the onset of the knee pain in March-April 2008 that
was consistent with the medical records. But, other than the knee pain, the witnesses’ testimony
regarding the timing and onset of other post-vaccine joint pain was vague and confusing and,
thus, cannot be accepted. Furthermore, Petitioner’s failure to visit a doctor despite experiencing
such joint pain is inconsistent with her and her parents’ vigilance in addressing Petitioner’s
health issues, especially when those issues might affect her athletic performance. Finally, her
activities, in particular, her affirmatively seeking and beginning work at a fast food restaurant,
which required her to stand for long periods and the constant use her hands, is inconsistent with
her suffering the type of pain which she described.
I. PROCEDURAL BACKGROUND
Petitioner filed her claim on June 28, 2010, three years after she received her first HPV
vaccination. P’s Ex. 3 at 2. In February 2011, Petitioner filed her expert report and a one-page
2
Part 2 of the Vaccine Act established the National Vaccine Injury Compensation Program, 42
U.S.C. § 300aa-10 through § 300aa-34 (2006) (“Vaccine Program”).
3
“Rheumatoid arthritis” is defined as a chronic systemic disease primarily of the joints, usually
polyarticular, marked by inflammatory changes in the synovial membranes and articular
structures and by muscle atrophy and rarefaction of the bones. In late stages deformity and
ankylosis develop. The cause is unknown, but autoimmune mechanisms and virus infection have
been postulated. Dorland’s Medical Dictionary 157 (32d ed. 2012).
2
supplemental expert report. P’s Exs. 14 and 15. Petitioner’s expert concluded that there was a
strong possibility that her disease process resulted from her HPV vaccinations. P’s Ex. 14. But,
Petitioner’s expert acknowledged that there was still a possibility that Petitioner’s development
of rheumatoid arthritis was due to a random event. P’s Ex. 14. In a later-filed, supplemental
report Petitioner’s expert opined that he believed there was a probability that Petitioner’s disease
process resulted from her HPV vaccines. P’s Ex. 18.
On May 16, 2011, Respondent filed her expert report. R’s Ex. A. In that report,
Respondent’s expert opined, inter alia, that there was not a medically-appropriate temporal
relation because three months had lapsed between the last vaccination and the onset of joint pain
as reflected in the medical records. R’s Ex. A at 6. Petitioner disputed this, filing her third
affidavit, in which she asserted that her symptoms began with, inter alia, shoulder pain the latter
part of 2007 after she received her first, then second vaccinations. P’s Ex. 21. This prompted
the fact hearing held on January 24, 2012.
Although originally the issue was identified as relating to the timing of onset of
symptoms before, around and after the time of Petitioner’s receipt of HPV vaccines, at the
hearing, the focus was entirely on the timing of onset of symptoms after receipt of one or more
of the vaccines. As such, the finding of fact here is limited to that issue.4
After the hearing, to ensure that all reasonable and necessary records were filed,
Petitioner was ordered to file certain records based on the testimony at the hearing, i.e.,
Petitioner’s school records, Petitioner’s running journals and excerpts from her social media
pages. January 27, 2012 Order. Subsequently, some limited records were filed.
Having reviewed the records in April 2013, at a status conference, the special master
noted that it appeared some school records were missing. The special master inquired as to
whether there was any further documentary evidence would be submitted. Shortly thereafter,
Petitioner’s counsel indicated that no additional records were forthcoming.
Both parties have filed post-hearing briefs. This case is now ready for determination of a
finding of fact as to the timing of onset of symptoms Petitioner experienced following her receipt
of the HPV vaccinations.
4
The records do indicate that Petitioner had lower back and possibly shoulder pain prior to
receipt of the vaccine, from approximately March 2006 to April 2007, which does not appear to
be disputed. P’s Ex. 5 at 35, 36, 39, 42.
3
II. RECORD
A. The Documentary Record
The documentary record consists of Petitioner’s medical records and certain other
records.
1. Medical Records
The medical records provide Petitioner’s medical history. Prior to receipt of the HPV
vaccinations, Petitioner was generally healthy although she did consult regularly with her doctor
regarding various medical problems. P’s Ex. 5 at 8-25. Petitioner had annual bouts of upper
respiratory infections, pharyngitis, and otitis media.5 Id. In 2003, Petitioner was evaluated for a
three- to four-week persistent headache. P’s Ex. 5 at 26-27. Beginning in March 2006 through
at least April 2007, two months before receiving her first HPV vaccine, Petitioner complained to
her doctor about persistent, lower, left-sided back pain. P’s Ex. 5 at 35-36, 39, 42.
On June 27, 2007, Petitioner had her 16-year-old health maintenance visit with her
primary care physician. P’s Ex. 5 at 53. The doctor administered Petitioner’s first HPV vaccine
intramuscularly in her left arm. Id.
Following this visit, Petitioner did not visit her doctor until April 2008, except to receive
her second and third HPV vaccines on August 29, 2007 and January 4, 2008, respectively. P’s
Ex. 3 at 3. At these visits, Petitioner did not mention any aches or pains or reactions to the
vaccines. Id.
Petitioner’s mother did phone the doctor three times during this period when Petitioner
experienced other medical problems. First, on August 10, 2007, Petitioner’s mother called the
primary care physician’s clinic to report Petitioner was suffering from heart palpitations. P’s Ex.
5 at 54. She did not mention joint or muscle aches or pains. Id. Second, in November 2007,
Petitioner’s mother again called regarding coughing Petitioner was experiencing. P’s Ex. 5 at
54. Again, there was no mention of any joint or muscle aches or pains. Id. Third, on the day
Petitioner received her third HPV vaccine, January 4, 2008, Petitioner’s mother called the doctor
to report that Petitioner had a headache, a sore throat, and abdominal pain. P’s Ex. 5 at 55.
There was no mention of any joint or muscle aches or pains. Id.
Nearly a month after receiving her third HPV vaccination, in February 2008, the records
reflect that Petitioner’s mother again called Petitioner’s primary care physician to report that
Petitioner had a headache, sore throat, and abdominal pain. P’s Ex. 5 at 55. Again, there was no
mention of any muscle or joint aches or pains. Id.
5
Pharyngitis is defined as inflammation of the pharynx. Dorland’s Illustrated Medical
Dictionary 1426 (32d ed. 2012). Otitis media refers to the inflammation of the middle ear.
Dorland’s Illustrated Medical Dictionary 1351 (32d ed. 2012).
4
On April 18, 2008, three months after receiving her third HPV vaccination, Petitioner
returned to the doctor. P’s Ex. 5 at 56. Petitioner complained of left knee pain, which she
reported had been ongoing for one to two weeks. P’s Ex. 5 at 56. Petitioner was referred to an
orthopedic physician for an evaluation. Id.
Six months later, on October 21, 2008, Petitioner visited an orthopedist, Dr. Eric Lee.
P’s Ex. 7 at 1. Petitioner reported that the onset of her left knee pain was in April 2008 and that
it had started while running on the beach. P’s Ex. 7 at 7; P’s Ex. 8 at 6.
Petitioner returned to her primary care physician in October 2008 as well. P’s Ex. 5 at
56. Petitioner was to have an MRI of her knee the following date. Id. The notes indicate that
Petitioner’s parents had noticed swelling in Petitioner’s hands, feet and one arm in the mornings.
Id. The notes also refer to Petitioner’s menstrual cycle problems while on birth control pills and
note an inquiry regarding a possible relation between the pill and arthritis. Id. Laboratory
results, for the most part, were normal, including a normal rheumatoid factor. P’s Ex. 5 at 62.
Approximately two weeks later, on November 3, 2008, Petitioner sought a second
opinion from another orthopedist, Dr. Scott Graham. P’s Ex. 8 at 6-7. The medical history from
that visit describes Petitioner’s pain as beginning approximately seven months earlier, while
running on the beach, which would date it back to approximately April 2008. P’s Ex. 8 at 6-7;
11. The examination conducted at that time revealed that Petitioner had no other remarkable
symptoms besides her chief complaint, the left knee pain. Id. The results of the physical
examination at that time were similar to those of the previous exam by the other orthopedist, Dr.
Lee. Compare P’s Ex. 7 at 6-7 with P’s Ex. 8 at 6. Petitioner saw Dr. Graham again on
December 1, 2008. P’s Ex. 8 at 11. Petitioner continued to complain of knee pain despite
having received a cortisone injection. Id. Dr. Graham recommended and performed
arthroscopic knee surgery on Petitioner’s left knee on December 16, 2008. P’s Ex. 8 at 12-13.
Petitioner had a post-surgery follow-up with Dr. Graham on February 11, 2009, at which
Petitioner reported improvement of her knee pain. P’s Ex. 8 at 25. Dr. Graham’s notes indicate
that Petitioner complained of pain in multiple joints i.e., her hands, fingers and ankles. Id. Dr.
Graham referred Petitioner to a rheumatologist. Id.
While not seeing a rheumatologist, on April 6, 2009, Petitioner did return to her primary
care physician complaining of claw hands in the morning and pain in her joints—her hands,
knees and shoulders. P’s Ex. 5 at 63. Petitioner raised the issue of a possible causal association
between her pain and her HPV vaccine. Id. The doctor’s notes state that Petitioner explained
she was raising this “because another friend had a similar complaint” and that one of her
“parent[s] looked up on [the] internet 5 cases [and a] class action suit.”6 Id. The record contains
an asterisked notation stating that during the orthopedic evaluation in October 2008, Petitioner
had made “no comments re joint pain other than knee.” Id.
Approximately three months later, on July 13, 2009, Petitioner saw a rheumatologist, Dr.
6
During Petitioner’s testimony at the January 24, 2012 hearing, she denied having any friends
with issues and was unsure as to why that was noted in the medical record. Tr. at 93.
5
Thomas Powell. Dr. Powell’s notes reflect that Petitioner gave a one-year history of an
inflammatory polyarthritis. P’s Ex. 12, Ex. 10 at13.7 The lab values from Petitioner’s tests were,
nonetheless, apparently normal. P’s Ex. 10. Dr. Powell’s impression was that Petitioner likely
had seronegative rheumatoid arthritis. P’s Ex. 10 at 13, attached to P’s Ex. 12. A note in her
primary care physician’s records dated July 13, 2009, indicated that Petitioner advised her doctor
that she had been diagnosed with rheumatoid arthritis that day. P’s Ex. 5 at 64.
A phone record dated August 3, 2009 stated that Petitioner’s primary care physician,
apparently in response to an inquiry, informed Petitioner’s mother that “no scientific articles
link[ed] Gardasil as [a] cause of arthritis.” P’s Ex. 5 at 65. Petitioner’s mother apparently called
her primary care physician again on October 23, 2009, as a phone record for that date contains
the following entry: “joint pain – shoulder pain per mom Oct 08.” Id.
Petitioner had a second rheumatologic consult with Dr. William C. Shiel, Jr. on
September 9, 2009. P’s Ex. 11 at 1. Petitioner reported persistent joint pains worsening at night,
morning stiffness, difficulty getting out of bed, and an incomplete grip. Id. Dr. Shiel’s notes
reflect that the medical history given was that Petitioner’s pains began with left shoulder pain
two years earlier, which later involved the right shoulder, and then the wrists, knees, ankles, and
fingers. P’s Ex. 11 at 1. Dr. Shiel concluded that Petitioner’s conditions were suggestive of
rheumatoid arthritis, which, based on the medical history Petitioner provided, began two years
earlier. Id. at 4.
2. Other Documentary Materials
In addition to the medical records, Petitioner submitted certain other records. First,
Petitioner submitted a pain journal into the record. P’s Ex. 1, Attachment A. Petitioner began
keeping this journal in late 2009, over a year and a half following receipt of her last HPV
vaccination, the first entry dated November 7, 2009. P’s Ex. 1 at 4.
Second, Petitioner submitted certain school records. The school records submitted
consisted of her attendance records for three of her four high school years. P’s Ex. 25. The year
for which no record was submitted was 2007-08, her sophomore year, the period immediately
following receipt of her first and second vaccines and the period when Petitioner received the
third vaccine.8
7
Although Dr. Powell’s records were originally submitted as P’s Ex. 10, his consultation report
was not submitted with that exhibit. Rather, it was submitted subsequently as an attachment to
her second affidavit, P’s Ex. 12.
8
In April 2013, the special master inquired regarding the absence of records relating to
Petitioner’s sophomore year, 2007-08, and was advised that Petitioner did not have those records
because the school had switched reporting systems. However, the records for the 2006-2007
year, reflect a different reporting system than those for the school years 2008-09 and 2009-10.
Thus, it appears the records for 2006-07 were generated under the former system. The records
for the school years 2008-09 and 2009-10 reflect a different, presumably new system. Given that
apparently the records from both the old and new reporting systems have been provided, it is
uncertain as to why records from a single year, albeit the most relevant period for purposes of
6
Third, although Petitioner had indicated that her school trainer would testify and that
there were records and notes which reflected her history of injuries, the only record submitted
was a note from the high school trainer. P’s Ex. 26. In that note, Petitioner’s high school head
athletic trainer, Mr. Ian Sabala, stated that the school had no record of Petitioner having a
potential hand injury or hand swelling. P’s Ex. 26.
Fourth, Petitioner filed excerpts of screen shots from her Facebook page. P’s Ex. 27.
Although Petitioner apparently had some activity during the June 2007-April 2008 period, those
screenshots did not appear to include time line postings for that period. P’s Ex. 27 at pdf #20.9
Petitioner had been asked to produce a running journal that she testified she had
maintained during her sophomore year. Tr. at 83. Petitioner testified that, most likely, she had
discarded this journal. Id. Indeed, it was confirmed later after the April 2013 status conference
that she no longer had that journal.
B. Testimony
At the fact hearing held on January 24, 2012, Petitioner, her mother, Sandy Sullivan, and
her father, Dennis Sullivan, testified. Prior to the hearing, an affidavit was submitted for each of
Petitioner’s parents. Petitioner submitted three separate affidavits. A summary of the testimony
is as follows.
1. Petitioner, Shea Sullivan
Petitioner provided testimony through three affidavits as well as in person at the hearing.
See generally P’s Exs. 1, 12 and 21 and January 24, 2012 Transcript (“Tr.”) In her first affidavit,
dated June 22, 2010, Petitioner stated that prior to receiving the HPV vaccines she was a
“healthy and active teenager.” P’s Ex. 1 at 1. She described herself as an athlete “[who] played
competitive volleyball, softball, hockey . . . and basketball.” Id. Petitioner stated that she “was
captain of [her high school’s] cross country team, and an active participant of the track and field
team . . . .” Id. In this affidavit, Petitioner stated that as of June 27, 2007, she had been
diagnosed with rheumatoid arthritis. 10 Id. She stated that around September 2008, she was
forced to stop participating in all physical activity due to severe chronic body and joint pains. Id.
Petitioner’s second affidavit, dated November 11, 2010, was submitted in response to
Respondent’s Rule 4 Report. P’s Ex. 12. In that affidavit, Petitioner identified the time frame
when she saw Dr. Graham, the orthopedist who performed her knee surgery in December 2008,
for a post-surgical appointment as being in February 2009. P’s Ex. 12, ¶ 1. Petitioner attached
Dr. Powell’s consultation report, which had not been provided with his records, and stated that
this case, would be unavailable regardless of which system was in effect during that year.
9
The facebook excerpts indicate Petitioner had posted “likes” for the 2008 period.
10
As explained infra, Petitioner subsequently acknowledged in her second affidavit that she had
not been diagnosed until July 2009. P’s Ex. 12, ¶ 2.
7
she had been diagnosed with inflammatory arthritis in July 2009. P’s Ex. 12, ¶ 2.
Petitioner’s third affidavit, dated July 28, 2011, was filed after Respondent’s expert’s
report. P’s Ex. 21. In that affidavit, Petitioner stated that she had experienced pain in her left
shoulder shortly after June 2007. P’s Ex. 21, ¶ 2. She also averred that the index finger on her
right hand swelled in late 2007 and the beginning of 2008. P’s Ex. 21, ¶ 3. Petitioner stated that
she began to experience knee pain and her knee became swollen during her sophomore year and
that she went to the doctor in April 2008 regarding her knee. P’s Ex. 21, ¶ 4. Finally, Petitioner
also stated that she believed, at least at that time, that these pains were sports related injuries. P’s
Ex. 21, ¶ 6.
Finally, Petitioner testified at the January 2012 hearing. She described her dedication to
sports, in particular to running. Tr. at 14. She testified that she was on the varsity cross country
team but not on the varsity track team. Tr. at 138.
Petitioner testified about receiving her HPV vaccinations. Tr. at 14, 26, 79. She
explained that she experienced pain in her left shoulder in the summer of 2007 after she received
her first vaccine and after she had been involved in volleyball camp. Tr. at 17, 19-20. She
concluded that the pain was sports-related. Tr. at 19-20, 79. She said that this pain became
chronic and that it apparently affected her running stride. Tr. at 20-21. Petitioner stated that the
pain did not spread during that season, it did not cause her to stop running and she did not report
it to anyone. Tr. at 20-21, 79.
Petitioner testified in detail regarding her run on the beach in March-April 2008 with her
uncle and how she had been injured during that run. Tr. at 35. Petitioner explained how she had
to withdraw from competing in a race shortly thereafter due to her injury. Tr. at 36-38. It was at
this point that Petitioner saw the doctor regarding her knee pain. Tr. at 36-38. Petitioner
explained that after she injured her knee her running performance declined. Tr. at 34-38.
Petitioner’s chronology of doctor’s visits beginning with her visit in April 2008 regarding
her knee through her visits to rheumatologists in 2009 was, for the most part, consistent with the
medical records. She described going to her primary care physician regarding her knee pain.
Although she was referred to an orthopedist, Petitioner decided to take care of her symptoms
herself at that time. Tr. at 39. It was only after several months that she returned to her doctor, in
October 2008, and went to an orthopedist. Tr. at 42-43. Petitioner explained that the
orthopedist, Dr. Graham, performed arthroscopic knee surgery on Petitioner’s left knee in
December 2008. Tr. at 46-48. It was in her follow-up appointment with Dr. Graham that the
swelling of her joints was clearly evident. Tr. at 88-89. It was at that time that she mentioned
the pain in her other joints. Tr. at 48. It was another several months before Petitioner visited a
rheumatologist in July 2009. Tr. at 53-56. It was at that time that she was diagnosed with
rheumatoid arthritis. Tr. at 53-56.
Petitioner also discussed how the pain progressed. She testified in detail regarding her
joint pains for the period around her eighteenth birthday, in 2010. Tr. at 62. She especially
described how in her senior year of high school, she needed help getting ready for school and
had trouble walking. Tr. at 176.
8
2. Petitioner’s Mother, Sandy Sullivan
Mrs. Sandy Sullivan, Petitioner’s mother, also provided an affidavit and testified at the
hearing. P’s Ex. 23, Tr. at 179. In her affidavit, Mrs. Sullivan said that she recalled Petitioner
getting her first HPV vaccine in June 2007. P’s Ex. 23, ¶ 3. Shortly thereafter, Petitioner began
to experience shoulder pain while she was at volleyball camp. P’s Ex. 23, ¶ 5. Mrs. Sullivan
recalled Petitioner’s pain occurring during a trip to the desert in the winter of 2008. P’s Ex. 23, ¶
8. Without specificity as to dates, Mrs. Sullivan also remembered the pains becoming so severe
that Petitioner was eventually taken to a rheumatologist and diagnosed with rheumatoid arthritis.
P’s Ex. 23, ¶¶ 9-11.
In her testimony, Mrs. Sullivan acknowledged that at a younger age, Petitioner seemed to
have more illnesses than her other children. Tr. at 180-81. Mrs. Sullivan accompanied
Petitioner to her doctor’s appointment on June 27, 2007, when she received her first HPV
vaccination. Tr. at 185. Immediately after the vaccination, she noted that her daughter’s arm
was sore and red but this did not alarm her because the doctor had warned her about that. Tr. at
187. Mrs. Sullivan also testified that she did recall Petitioner having achy pains following
volleyball camp, especially in her shoulder, but she was not concerned because it seemed like
normal pain related to playing sports or due to her new mattress. Tr. at 188-89. Mrs. Sullivan
did not recall any pain in 2007 that was preventing Petitioner from performing normal activities,
and Petitioner did not ask her to contact the doctor regarding any such pains. Tr. at 189.
As with Petitioner, Mrs. Sullivan vividly remembered the first, real pain experienced by
Petitioner as being near the beginning of 2008, which she attributed to running on the beach with
Mrs. Sullivan’s brother. Tr. at 193. It was at that point that Mrs. Sullivan concluded Petitioner
had suffered a serious injury. Tr. at 221. Her husband took Petitioner to the doctor shortly
thereafter in April 2008. Tr. at 194. Although Mrs. Sullivan acknowledged that Petitioner at
some point complained about pain in her wrists, fingers and knees, she could not identify the
time frame in which this began. Tr. at 190. When Mrs. Sullivan brought Petitioner to her
primary care physician in October 2008, Mrs. Sullivan testified that she recalled advising the
doctor of Petitioner’s swollen fingers at that time. Tr. at 202-03. Mrs. Sullivan did believe that
in the fall of 2008, prior to Petitioner’s surgery in December, Petitioner was still running, but
was somewhat uncertain about this, admitting that she was unaware of the particular seasons for
specific sports. Tr. at 198. Mrs. Sullivan did attend her daughter’s subsequent visits to Dr. Lee
and Dr. Graham, the two orthopedists whose opinions they sought regarding her left knee pain in
October and November of 2008. Tr. at 194-95. Mrs. Sullivan did remember that at those visits
Petitioner told both doctors that she had other joint pains. Tr. at 195, 197.
3. Petitioner’s Father, Dennis Sullivan
Mr. Dennis Sullivan, Petitioner’s father, also provided an affidavit in January 2012 and
testified at the hearing. Tr. at 238. In his affidavit Mr. Sullivan recalled that his daughter began
to “regularly complain of severe shoulder pain” in the summer of 2007 while she was involved in
a volleyball summer camp. P’s Ex. 24, ¶ 4. Mr. Sullivan explained how the shoulder pain was
attributed to sports injuries and growing pains. P’s Ex. 24, ¶ 7. During her fall cross country
9
season, Mr. Sullivan worked with Petitioner to correct her form as she held her arms in an
awkward position, but he was ultimately unsuccessful. P’s Ex. 24, ¶ 5. Mr. Sullivan also stated
that Petitioner’s significant pain began in the spring of 2008, with her knee pain. P’s Ex. 24, ¶ 8.
Mr. Sullivan concluded the affidavit stating that over the months that followed Petitioner’s pain
worsened and after numerous visits to doctors it was revealed that Petitioner had rheumatoid
arthritis. P’s Ex. 24, ¶ 9.
At the hearing, Mr. Sullivan testified that Petitioner reported soreness in her shoulder and
that “she was having trouble raising it” during her volleyball practices. Tr. at 244. He also
stated that this pain continued during her cross country season in the fall of 2007, when he saw
her “holding her arms up in an awkward position.” Tr. at 248. Later in his testimony, he said he
was unsure whether the pain was causing her to hold her arms up or it was just an awkward
running style. Tr. at 271. At one point, he testified that he related Petitioner’s holding her hands
in an awkward position while running as being due to her obvious knee pain. Tr. at 253.
Mr. Sullivan further testified that Petitioner began complaining about knee pain after
running with her uncle on the beach. Tr. at 252. Petitioner told Mr. Sullivan that she felt that the
distance they had run and the fact that it was on the sand had contributed to the knee problem.
Tr. at 252. He also testified to attending a track meet subsequent to the beach run where
Petitioner had to withdraw from her second race due to her knee pain. Tr. at 253. It was
following this track meet that he took her to her pediatrician, who gave them a referral to an
orthopedist. Tr. at 254. They did not immediately see the orthopedist as her knee pain began to
subside. Id. Mr. Sullivan also testified that he recalled Petitioner’s difficulties performing daily
activities such as getting ready for school. He was uncertain as to when these began, at one point
saying he thought it could have been the end of 2007 but then also saying he thought it was
around the time of his brother-in-law’s death in March 2008. Tr. at 275.
III. APPLICABLE LEGAL STANDARDS
A petitioner must prove, by a preponderance of the evidence, the factual circumstances
surrounding her claim. 42 U.S.C. § 300aa-13(a)(1)(A). The special master must “believe that
the existence of a fact is more probable than its nonexistence before [she] may find in favor of
the party who has the burden to persuade the [special master] of the fact’s existence. In re
Winship, 397 U.S. 358, 371-72 (1970) (Harlan, J., concurring, quoting F. James, Civil Procedure
at 250-51 (1965)). Mere conjecture or speculation is insufficient to satisfy the preponderance
standard. Snowbank Enterprises v. United States, 6 Cl.Ct. 476, 486 (1984).
In determining whether a petitioner is entitled to compensation under the Vaccine Act, a
special master must consider the record as a whole. 42 U.S.C. § 300aa-13(a)(1). The special
master may not make a finding based on the claims of a petitioner that are not substantiated by
medical records or medical opinion. Id. The process for finding facts pursuant to the Vaccine
Act begins with analyzing the medical records, which are required to be filed with the petition.
42 U.S.C. § 300aa–11(c)(2). As set forth in 42 U.S.C. § 300aa-13(b)(1)(A), a special master
shall consider “all . . . relevant medical or scientific evidence contained in the record,” including
“any diagnosis, conclusion, medical judgment, or autopsy or coroner’s report . . . regarding the
nature, causation, and aggravation of the petitioner’s illness, disability, injury, condition, or
10
death . . . .”
In resolving factual issues, the special master must weigh the evidence presented, which
may include contemporaneous medical records and testimony. See Burns v. Sec’y of Health &
Human Servs., 3 F.3d 415, 417 (Fed. Cir. 1993)(A special master must decide whether to accord
greater evidentiary weight to contemporaneous medical records or other evidence, e.g., later-
given oral testimony, and such a decision must evince a rational determination). “Medical
records, in general, warrant consideration as trustworthy evidence.” Cucuras v. Sec'y of Health
& Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Indeed, records created
contemporaneously with the events that they describe are presumed to be accurate as it is
recognized that individuals seeking treatment will report the circumstances relating to their
symptoms and history accurately to ensure the doctors have all information necessary to treat
their ailments. Cucuras, 993 F.2d at 1527-28. Similarly, the doctors recording the histories are
paying particular attention to record such histories accurately so that they will be aware of all the
patient’s ailments and consider them in determining treatment. Id. As such, particular attention
should be paid to contemporaneous medical records and opinions of treating physicians.
Capizzano v. Sec’y of Health & Human Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006); see also
Lowrie v. Sec’y of Health & Human Servs., No. 03-1585, 2006 WL 3734216 at *7 (Fed. Cl.
Spec. Mstr. Nov. 29, 2006). With regard to medical histories it has been recognized that “careful
attention is paid to those contemporaneous histories, which are given prior to any thought of
litigation. . . .” Coffelt v. Sec’y of Health & Human Servs., No. 90-591, 1992 WL 158714 at *6
(Fed. Cl. Spec. Mstr. Feb. 24, 1992).
When considering the weight to be accorded oral testimony versus contemporaneous
records, “[i]t has generally been held that oral testimony which is in conflict with
contemporaneous documents is entitled to little evidentiary weight.” Murphy v. Sec’y of Health
& Human Servs., 23 Cl.Ct. 726, 733 (1991), aff'd, 968 F.2d 1226 (Fed. Cir.), cert. denied sub
nom. Murphy v. Sullivan, 506 US 974 (1992)](citing United States v. United States Gypsum Co.,
333 U.S. 364, 396 (1947)) (“Where such testimony is in conflict with contemporaneous
documents we can give it little weight, particularly when the crucial issues involve mixed
questions of law and fact.”); Montgomery Coca–Cola Bottling Co. v. United States, 615 F.2d
1318, 1327 (Ct.Cl. 1980) (“The subjective intent testimony of the plaintiff can only be seriously
considered to the extent it is consistent with the objective evidence.... We also believe that [the
testimony of a particular fact witness] is ‘infected with self-interest’ “ and that while his
testimony, of course, is admissible it cannot be given the weight accorded it by the trial judge;
nor can [that fact witness'] testimony prevail over the inferences unavoidably drawn from the
objective documentary evidence....”); 32A C.J.S. Evidence § 1033 (1964)). Records that are
clear, consistent and complete should be accorded substantial weight. Lowrie v. Sec’y of Health
& Human Servs., No. 03-1585, 2005 WL 6117475 at *20 (Fed. Cl. Spec. Mstr. Dec. 12, 2005).
In considering testimony, the special master must assess the demeanor of the witnesses when
testifying. Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009).
Moreover, to overcome the presumptive accuracy of the written medical records through
testimony, the testimony must be “consistent, clear, cogent, and compelling.” Sanchez v Sec’y of
Health & Human Servs., No 11-685, 2013 WL 1880825 at *3 (Fed. Cl. Spec. Mstr. Apr. 10,
2013) (citing Blutstein v. Sec’y of Health & Human Servs., No. 90-2808, 1998 WL 408611 at *5
(Fed. Cl. Spec. Mstr. June 30, 1998)).
11
IV. DISCUSSION
Petitioner seeks to supplement and, in some cases, supplant the medical records with her
and her parents’ affidavits and testimony offered four years after the pertinent events claiming
that her joint pains began much earlier than reflected in the records, during the summer and fall
of 2007. As explained below, the medical records are clear and consistent. In fact, the testimony
relating to the onset of the knee pain is also consistent with the medical records in establishing
the onset of such pain as occurring in March-April 2008.
On the other hand, the testimony regarding the alleged onset of pain earlier than March-
April 2008, unsubstantiated by the medical records, was vague, confusing and inconsistent.
Moreover, the testimony that Petitioner simply ignored these medical symptoms is inconsistent
with Petitioner’s and her parents’ practice of vigilantly reporting injuries to the doctor promptly.
Petitioner’s testimony of experiencing debilitating joint pain is also inconsistent with her actions
of getting a job which would require constant use of her hands during this very period. The
medical records, made contemporaneously when medical treatment was sought, are reliable and
accorded great weight. Petitioner’s testimony that she experienced earlier aches and pains is not
substantiated by the records. As such, the special master finds that this testimony cannot be used
to supplant the medical records and alter the date of onset of joint pain of March-April 2008
reflected in the records. Upon consideration of the record as a whole, the special master finds
that based on the medical records, the onset of Petitioner’s joint pains and aches following
receipt of the HPV vaccinations began in March or April 2008, when Petitioner first reported her
knee pain. Ex. 5 at 56; Tr. at 275.
A. The Medical Records Are Clear and Consistent That the Onset of Symptoms Occurred
in March-April 2008.
The special master finds that the medical records are clear and internally consistent. Those
records indicate that the first instance she complained of joint and muscle aches and pains
following the HPV vaccines occurred in late March or early April 2008, when Petitioner
complained of knee pain. P’s Ex. 5 at 56. At that time, she told the doctor that this knee pain
had been ongoing for the last one to two weeks. P’s Ex. 5 at 56.
The medical records do not reflect any mention of other joint pains until months after her
April 2008 visit regarding her knee pain. It was in October 2008 that her parents, not she,
mentioned to the doctor that they had observed some swelling in Petitioner’s hands in the
mornings. P’s Ex. 5 at 56. The records further indicate that it was not until 2009 following her
knee surgery, that Petitioner herself complained of joint pain in her hands, fingers, or ankles
when she visited an orthopedist following her knee surgery. P’s Ex. 8 at 25. At this time,
Petitioner referred to this as different pain than she had previously experienced with her knee.
P’s Ex. 5 at 63.
The medical histories provided during Petitioner’s medical consultations consistently
reflect that her pain began in March-April 2008. At her doctor’s visit in April 2008, she
identified the onset as having been one to two weeks before. P’s Ex. 5 at 56. At her next
12
doctor’s visit in October 2008, when she had a consultation with Dr. Lee, the orthopedist, she
reported that her pain had begun in April 2008. P’s Ex. 7 at 7.
At her next doctor’s visit in November 2008, to Dr. Graham, the second orthopedist she
visited, the history again noted that Petitioner’s symptoms began when she was running on the
beach approximately six or seven months earlier, dating to approximately April 2008. P’s Ex. 8
at 6-7; 11. Dr. Graham noted that she had no other remarkable symptoms besides her chief
complaint of left knee pain. P’s Ex. 8 at 7.
When she next saw her primary care physician in April 2009, for the first time,
Petitioner’s chief complaint was reported as having painful claw hands in the morning. P’s Ex. 5
at 63. In the records, Petitioner explained that her knee pain had resolved with the surgery but
that she now had different pain in her knees as well as her shoulders and hands. Id.
Significantly, at this visit, Petitioner identified the onset of this pain as beginning approximately
twelve months earlier, which would place it in April 2008, the same time as her knee pain. Id.
In July 2009, when Petitioner went to the first rheumatologist, Dr. Powell, the medical
history also reflects that she told him her pain began approximately one year earlier. P’s Ex. 12,
Ex. 10-13 attachment thereto. When Petitioner subsequently went back to her primary care
physician to report Dr. Powell’s diagnosis, the notes reflect that Petitioner’s mother noted that
the first indication of pain was shoulder pain in October 2008. P’s Ex. 5 at 65.
Admittedly, there is one notation in the medical records from the last doctor which whom
Petitioner consulted in September 2009, Dr. Shiel, a rheumatologist. P’s Ex. 11. Those records
indicate that Petitioner gave a history of having joint pain for two years beginning with her left
shoulder, which would place the onset at September 2007, much earlier than any of the other
medical records. See P’s Ex. 11. There are several reasons why this notation is not considered
reliable.
First, because the lapse between the onset of any pains was so far removed from this
visit, it is understandable that dates given in the medical history would not be as accurate.
Indeed, due to this lapse, Petitioner’s memory may not be as accurate in providing a history.
Petitioner herself acknowledged this as a possibility. When discussing her symptoms at the
hearing, Petitioner admitted to having some difficulty remembering specific times and dates. Tr.
at 60-61 (confusion about dates when speaking to Dr. Shiel).
Second, alternatively, this notation is likely a gross approximation by Dr. Shiel as to the
time frame. Given Dr. Shiel was not consulted until the fall of 2009, pain that began in March or
April 2008 would be close to two years old so an approximation of two years could be
understandable. In that Dr. Shiel’s notation and the timing of onset was not critical to his
diagnosis, such an approximation would be appropriate for him to make.
Third and finally, another factor in considering the date in the record was that Petitioner
had already begun to contemplate litigation. The medical records indicated that only shortly
before this visit, Petitioner told her physician that she associated her condition with the HPV
vaccines she received. P’s Ex. 5 at 63. She advised that a friend of hers had complained of
13
similar symptoms and an alleged causal relation with the HPV vaccines. Id. In April 2009,
Petitioner reported to her primary care physician that her parents had looked up cases and found
indications of a class action suit regarding HPV. P’s Ex. 5 at 63. In August 2009, after
consulting Dr. Powell, Petitioner advised her primary care physician that she wanted all her lab
results because of the scientific articles that she had read linking HPV to rheumatoid arthritis.
P’s Ex. 5 at 65. Petitioner had already begun to contemplate litigation by the time of this second
consultation with Dr. Shiel. As such, her statements regarding her medical history to Dr. Shiel
with whom she consulted subsequently must be viewed with this in mind as well. As such, they
carry less weight than the others. See generally Coffelt, 1992 WL 158714 at *6 (statements
given prior to any thought of litigation are reliable).
In light of these factors, the testimony and the other medical records, this notation of a
two-year onset appears to be an anomaly and not reliable. The other medical records
consistently date the pain back to March-April 2008. This includes the medical histories
Petitioner herself provided to various doctors until that point. These histories are provided to
ensure the proper diagnosis and treatment. Given this, the special master is persuaded that these
consistent records and statements made in these records for the purpose of accurate diagnosis and
treatment reflect the accurate date as to onset. Curcuras, 993 F.2d at 1527-28. These medical
records consistently refer to the onset of pain following the vaccines as starting in March-April
2008.
B. The Testimony Is Consistent with the Medical Records Regarding the Onset of Joint
Pain Occurring with Her Knee Pain in March-April 2008.
In considering and evaluating the testimony of Petitioner and her parents, it was evident
that Petitioner and her parents each recalled vividly the incident in March-April 2008 when
Petitioner ran on the beach with her uncle and that this was when Petitioner’s joint pain began.
Petitioner described how she had gone on a run with her uncle at the beach and that the run was
more difficult than usual. Tr. at 35. Despite her belief that she was in very good shape, running
ten miles without problems, her knee pain during that run became so severe that at one point she
had to stop. Id.
Mr. and Mrs. Sullivan’s testimony regarding the onset of the knee pain was consistent
with Petitioner’s testimony. Mrs. Sullivan recalled petitioner running on the beach with her
brother after which she concluded Petitioner suffered a serious injury that required her to go to
the doctor. Tr. at 193-94, 221. Mr. Sullivan also remembered Petitioner began complaining
about knee pain after running on the beach with her uncle. Tr. at 252. It was after the
subsequent track meet when Petitioner had to withdraw from her second race, that he took her to
the doctor. Tr. at 253-54. Mr. Sullivan also testified that Petitioner’s awkward hand positions
while running was due to her obvious knee pain. Tr. at 253.
The special master had an opportunity to observe the witnesses’ demeanors when
describing certain events regarding the onset of pain and, in particular, how accurate, vivid and
detailed they recalled the particular knee pain onset events. See Sanchez v. Sec’y of Health &
Human Servs., No. 11-685, 2013 WL 1880825 at *3 (Fed. Cl. Spec. Mstr. Apr. 10, 2013 (citing
Andreu v. Sec’y of Health & Human Servs., 569 F.3d 1367, 1379 (Fed. Cir. 2009)(an assessment
14
of a fact witness’s credibility may involve consideration of the person’s demeanor while
testifying). Petitioner and her parents’ testimony is clear and consistent regarding the onset of
pain as occurring when Petitioner ran on the beach in March-April 2008. Based on her
observations of the testimony, the special master accords the testimony regarding this onset of
knee pain, also consistent with the medical records, great weight.
C. The Testimony Regarding the Onset of Pain Earlier Than March-April 2008 Is
Unclear, Confusing and Inconsistent and Does Not Establish That It Is More Probable
That The Symptoms Began Earlier Than What Is Set Forth in the Medical Records.
In contrast to the clear testimony regarding the onset of knee pain in March or April
2008, the testimony regarding the onset of aches and pains claimed to have occurred earlier is
not reliable. Citing Lowrie v. Sec’y of Health & Human Servs., No. 03-1585, 2005 WL 6117475
(Fed. Cl. Spec. Mstr. Dec. 12, 2005), Petitioner argues that there are events not contained in the
medical records because she did not see the doctor despite having symptoms. Petitioner asserts
that this testimony should be used to establish the dates her symptoms began at an earlier time
despite no substantiation in the contemporaneous medical records and despite the events
occurred approximately four years earlier.
Having considered the witnesses and their testimony, and as explained below, the special
master finds that the testimony does not establish that it is more probable than not that the onset
of certain symptoms occurred earlier than March-April 2008. First, the testimony is unclear and
vague as to the timing of the onset of conditions and, thus, not reliable when compared with the
clear, consistent contemporaneous medical records. Thomas v. Sec’y of Health & Human Servs.,
No. 01-645, 2007 WL 470410 at *2 (Fed. Cl. Spec. Mstr, Jan. 23, 2007) (citing Blustein, 1998
WL 40866 at *5). Second, having considered the witnesses’ demeanors, their testimony that
they ignored what they themselves describe as significant medical symptoms is inconsistent with
their demeanor of vigilantly monitoring Petitioner’s medical condition and reporting any medical
symptoms to doctors promptly. Sanchez v. Sec’y of Health & Human Servs., 2013 WL 1880825
at *6. Third, Petitioner’s activities in 2008, in particular her starting a job during that period, is
inconsistent with her experiencing the severe medical symptoms described in the testimony.
1. The Testimony Regarding the Onset of Symptoms as Being Earlier Than March-April
2008 Was Vague, Confusing and Inconsistent.
The testimony regarding Petitioner’s alleged medical symptoms that were to have begun
earlier than reflected in the medical records was vague, confusing and inconsistent. For instance,
Petitioner’s testimony regarding the details of how and when the pain affected her running
during 2007-08 was confusing. At one point, Petitioner testified that in June 2008 she iced her
shoulder every day after practice. Tr. at 40. But, when asked to specify how often she
experienced pain in her shoulder that required her to ice it, she could not recall. Tr. at 141-42.
She later stated she would only ice it if it was sore. Tr. at 141-42.
The testimony regarding the timing of the severity of the shoulder pain was also
confusing and inconsistent. Petitioner testified that about two weeks after she got her first
vaccine she developed shoulder pain. Tr. at 17. At first, she testified that when she first began
15
to experience the pain in her sophomore year, 2007-08, it would only be in the morning and that
it would have dissipated by the afternoon and because she ran in the afternoon, it would not
necessarily affect her running at all. Tr. at 18, 88-89. But then at another point in her testimony,
in stark contrast, Petitioner testified that the pain was such that it caused her to alter her running
stride and, in particular, the positions of her arms. Tr. at 140.
And, much of the testimony regarding Petitioner’s aches and their effects relating to her
running track was also confusing and inconsistent. Mr. Sullivan recalled that after Petitioner
withdrew from the meet in the spring of 2008, she never ran again despite attempts to do so. Tr.
at 291. On the other hand, Petitioner said that she started to run again in June 2008 although not
to her potential. Tr. at 40. The school records indicate that Petitioner was still signed up and
received credit in her junior year, 2008-09, for a period for cross country in the fall and track in
the spring. P’s Ex. 25. Petitioner’s original affidavit stated she had been the captain of the cross
country team. P’s Ex. 1. But, in her testimony, she said she quit cross country in August 2008,
prior to her junior year and prior to being the captain of the team. Tr. at 38-40. On the other
hand, Petitioner’s mother seemed to believe that Petitioner was still running up to the time of her
surgery, which would have been in December 2008. Compare, e.g., P’s Ex. 24, ¶ 8 with Tr. at
248. And, the medical records from her visits to the two orthopedists, Dr. Lee and Dr. Graham,
both indicate that she was running cross country and track. P’s Exs. 8 and 9.
Mrs. Sullivan’s testimony regarding the onset and progression of Petitioner’s pains was
unclear. At one point, Mrs. Sullivan testified that she thought Petitioner’s pains started near the
end of 2007. Tr. at 212. But, upon further inquiry, Mrs. Sullivan said that she knew the
problems with Petitioner’s hands which interfered with her daily activities occurred in her junior
and senior years, 2008-09 and 2009-10. Tr. at 217-18. But, at another point in her testimony
when asked when she actually had begun to assist Petitioner with daily activities, Mrs. Sullivan
said she was very bad with dates and could not identify a particular time frame. Tr. at 212, 228,
231. Mr. Sullivan also said he believed that Petitioner had problems with her wrists at some time
around the end of the year in 2007. Tr. at 247-49; 305. At another point, he said he thought it
was around the same time as when the knee pain started, in March 2008, with the funeral of his
brother-in-law. Tr. at 305. But, he, too, admitted that he could not pinpoint a specific event
during that time. Tr. at 247-249.
Petitioner’s and her parents’ testimony regarding the onset and progression of symptoms
being earlier than reflected in the medical records was vague, confusing and inconsistent. Where
the details of testimony are not consistent, such testimony cannot be credited especially when it
is not substantiated by medical records. Murphy, 23 Cl.Ct at 733; Blustein v. Sec’y of Health &
Human Servs., 1998 WL 408611 at *5 (Fed. Cl. Spec. Mstr. June 30, 1998) (to overcome the
presumption that written records are accurate, testimony is required to be “consistent, clear,
cogent and compelling”). The testimony at the hearing, which is unclear and vague, is not
consistent with the history of onset as recorded in the medical records. As such, it does not
overcome the presumption that the written medical records are accurate. Parcells v. Sec’y of
Health & Human Servs., No. 03-1192, 2006 WL 2252749 at *10 (Fed. Cl. Spec. Mstr. July 18,
2006)(citing Blustein, 1998 WL 408611 at *5).
Finally, comparing the testimony regarding the onset of symptoms alleged to have
16
occurred earlier than reflected in the records with the witnesses’ recollections regarding the onset
in March-April 2008 and the nature of pain experienced far later leads the special master to find
that the testimony regarding early onset is not reliable and cannot be accorded much weight. As
already referenced supra, Discussion I.B., the witnesses testified with certainty regarding the
onset of Petitioner’s knee pain in March-April 2008. Tr. at 35 (Petitioner); Tr. at 193 (Mrs.
Sullivan); Tr. at 252 (Mr. Sullivan). They also testified vividly that during her junior and senior
years in high school, in 2008-09 and 2009-10, Petitioner had experienced consistent, multiple
pains. Tr. at 69 (Petitioner—in senior year every day woke up sick and struggling); Tr. at 152
(Mrs. Sullivan—recalls in the summer of 2009 had much pain in ankles, knees, wrists and
fingers); Tr. at 269 (Mr. Sullivan—as a senior trying to manage pain). These are the very events
that are clear in the medical records. This testimony was consistent with the medical records.
In contrast, in their testimony regarding the onset of symptoms that were alleged to have
occurred earlier than reflected in the medical records, i.e., the alleged onset of pain in the fall or
winter of 2007, they were uncertain and vague. The special master cannot rely on these vague
statements made with uncertainty and make findings based on them in the absence of records to
substantiate these statements.
2. The Testimony, Which Suggests Petitioner and Her Parents Did Not Promptly Seek
Medical Attention, Is Inconsistent With Their Practice of Vigilantly Reporting Ailments.
Second, the Petitioner’s and her parents’ testimony that during late 2007 and early 2008
they ignored Petitioner’s joint pains is inconsistent with their practice of promptly seeking
medical treatment for Petitioner’s ailments. The records indicate that Petitioner’s mother was
diligent about contacting doctors regarding Petitioner’s ailments. As the records indicate,
Petitioner’s mother called Petitioner’s primary care physician three times during the period she
was receiving vaccines, in August of 2007, November 2007 and January 2008 to report various
ailments from which Petitioner was suffering. P’s Ex. 5 at 54-55. Mrs. Sullivan reported at
various times, coughing and heart palpitations, a stomach ache and sore throat. Id. But, on none
of these occasions did Mrs. Sullivan mention any joint aches or pains despite that Petitioner was
to have been suffering from them. But, at the same time, the records reflect that Petitioner and
her parents were diligent in contacting the doctor regarding other ailments. It “strains reason”
that Petitioner and her parents would not also report the joint aches and pains she now claims
were occurring during the same times she was reporting other symptoms. Cucuras v. Sec’y of
Health & Human Servs., 26 Cl.Ct. 537, 543 (1992), aff’d., 993 F.2d 1525 (Fed. Cir. 1993).
Additionally, that Petitioner and her parents would not report these aches and pains when
they were occurring is also unreasonable given their past practices of promptly reporting similar
joint aches and pains. Petitioner repeatedly visited the doctor between March 2006 and April
2007 for Petitioner’s chronic, left-sided back pain. P’s Ex. 5 at 35, 39, 42. In August 2005,
Petitioner visited the doctor because she was reporting that her hands and soles of her feet were
sweating excessively. P’s Ex. 5 at 34. Petitioner was astute about reporting these pains. If she
had been experiencing such problems, Petitioner would have reported them and sought medical
advice.
Petitioner’s explanation for not reporting these symptoms was that she did not believe it
17
was important to do so. But, she also testified how they had affected her running position and
her running performance. When discussing running, Petitioner explained how dedicated to
running she was during that period. Tr. at 83. She described herself as completely involved in
running. Id. Given Petitioner’s passion for running, it is impossible to accept that she would
have allowed such pain to continue without consulting a doctor. Had Petitioner been
experiencing such physical problems that were stifling her running performance, she would
report them promptly to her doctor as she reported her other problems.11 Tr. at 113.
Petitioner’s alleged failure to consult her trainer or doctor promptly to have her medical
problems addressed so she could return to her peak running condition is simply inconsistent with
the care to which she paid to her physical condition. Had Petitioner experienced an ailment as
she described, she would have sought medical assistance so that she could maintain top running
performance.
Certainly, the special master believes that Petitioner and her parents sincerely and
earnestly testified regarding these matters. But, given their practice of reporting health issues to
doctors, that they did not report any symptoms to the doctor during this period indicates that
those aches and pains did not begin as early as the Petitioner now asserts. Based on this, the
special master finds it is more likely than not that these pains were not occurring during the latter
part of 2007 and early 2008 period, before March-April 2008. Doe/17 v. Sec’y of Health &
Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec’y of Health & Human Servs., 65 Fed.
Cl. 35, 41-42 (2005); Snyder v. Sec’y of Health & Human Servs., 36 Fed. Cl. 461, 465 (1996)
(stating that if Petitioner had suffered symptoms immediately following vaccination, it was more
likely than not that even his parents’ mention of it would be noted by at least one of medical
professionals and that the absence calls into question petitioner’s memory of events, not
sincerity), aff’d., 117 F.3d 545, 547-48 (Fed. Cir. 1997).
3. Petitioner’s Activities Following Receipt of the Vaccines Are Inconsistent with Her
Experiencing the Pain About Which She Testified as Occurring During the Same Period.
Third, Petitioner’s activities during 2008 were inconsistent with the debilitating pain in
her joints, especially her hands and shoulders, that Petitioner testified she experienced beginning
in late 2007. In her first affidavit Petitioner said she “was forced to stop participating in any and
all physical activity due to severe chronic body and joint pains.” P’s Ex. 1, ¶ 5. But, the
testimony was also that during this very period she applied for and began work at a fast food
restaurant. Tr. at 119-20. That job involved significant standing on her feet and continuous use
of hands as Petitioner cleaned the dining room, worked the cash register and filled orders at the
drive-thru at various times. Tr. at 28-29, 119-20. Given the physical requirements of the job, it
is inconceivable that Petitioner would have sought such work at a time when she was suffering to
the extent as described in the testimony.
11
She said she was running long distances and that, as a result, everything hurt. Id. She
explained that she had maintained a running journal so that she could track what she ate and each
of her runs. Id. However, when asked to produce it, Petitioner promptly stated she had
destroyed it.
18
In sum, there is no doubt that Petitioner has clearly suffered pain as she vividly described.
Both her parents verified this. But having endured such pain for at least a few years to the point
where she kept a “pain” journal, it is reasonable that Petitioner perceived that the pain began
much earlier and has been ongoing much longer than in actuality. Even Petitioner and her
parents inherently recognize this because they all testified that during the 2007 time period up
until the March-April 2008 time frame no pains were significant to them. Petitioner, who was
diligent and sensitive to aches and pains in her body, recognized when she experienced pain and
sought medical attention, that being in March-April 2008.
The special master does not credit Petitioner’s testimony regarding the timing of onset of
pains following receipt of the vaccine, as being earlier than March-April 2008. The
contemporaneous medical records are clear and consistent and, thus, should be and are accorded
great weight. Curacus, 993 F.2d at 1528. The special master’s assessment of the testimony and
demeanor leads the special master to find that the medical records are more reliable and credible
than the testimony regarding aches and pains not reflected in the records. See Andreu., 569 F.3d
at 1379 (an assessment of a fact witness’s credibility may involve consideration of the person’s
demeanor while testifying).
Based on the entire record, the special master finds that Petitioner’s first aches and pains
and swelling of joints following her receipt of the HPV vaccines were the pains and joint
swelling relating to her knee reported to have begun a few weeks before April 18, 2008.
V. FINDING OF FACT
Accordingly, the special master, in the exercise of her discretion, makes the following
finding of fact:
1. Petitioner’s onset of joint pain following her receipt of HPV vaccinations on June 27,
2007, August 26, 2007 and January 4, 2008, occurred somewhere between March and
April 2008, in the few weeks prior to April 18, 2008, when she first visited her doctor
complaining, inter alia, of pain to her left knee.
19
VI. CONCLUSION
The special master hereby enters this finding of fact. The special master makes no
conclusion as to the significance of this in the context of Petitioner’s claim.
IT IS SO ORDERED.
/s/ Daria J. Zane
Daria J. Zane
Special Master
/
20
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302 F.2d 381
REPUBLIC ARLOADING AND DISTRIBUTING CO., Appellant,v.MISSOURI PACIFIC RAILROAD COMPANY, Appellee.
No. 16698.
United States Court of Appeals Eighth Circuit.
May 3, 1962.
George F. Gunn, Jr., of La Tourette & Rebman, St. Louis, Mo., for appellant.
Robert W. Yost, St. Louis, Mo., and M M. Hennelly and A. D. Churchill, St. Louis, Mo., on the brief, for appellee.
Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.
BLACKMUN, Circuit Judge.
1
By this action, removed from a Missouri state court, Republic Carloading and Distributing Co. seeks to recover from Missouri Pacific Railroad Company the value of certain interstate less-than-carload freight lost in St. Louis between October 1955 and October 1958. Jurisdiction is established under 28 U.S.C.A. 1337.
2
Republic is a freight forwarder under Part IV of the Interstate Commerce Act and as defined by 402(a)(5) thereof, 49 U.S.C.A. 1002(a)(5).1 The Missouri Pacific is a common carrier by railroad under Part I of the Act and as defined by 1(3)(a) thereof, 49 U.S.C.A. 1(3)(a). Republic, pursuant to the responsibility imposed upon it as a freight forwarder by 413 and 20(11) of the Act, 49 U.S.C.A. 1013 and 20(11), has paid its shippers their claims for the freight lost. It now looks to the railroad, under 20(12), 49 U.S.C.A. 20(12), for reimbursement for those payments.
3
The case was tried to the court upon the pleadings, the railroad's request for admissions, Republic's answers thereto, and stipulated facts. Each side moved for summary judgment pursuant to Rule 56, F.R.Civ.P., 28 U.S.C.A. The railroad's motion was sustained and Republic's motion was overruled. Judgment was entered accordingly. Republic has appealed.
4
In its business as a freight forwarder Republic owns no transportation equipment. It utilizes instead the services of common carrier rail or truck lines. Its principal function as a forwarder is to consolidate smaller shipments into carload or truckload lots so as to obtain the benefit of carload or truckload rates. These rates are less per unit than less-tnah-carload rates and do not include a carrier's loading or unloading services.
5
The freight was lost while it was at a St. Louis freight depot. Portions of this depot had been leased by the Missouri Pacific, as owner, to Republic. The issue, at least as stated in a pre-trial order, is whether the railroad 'was a common carrier and therefore responsible for loss or disappearance of shipments' from the depot.
6
The Lease. The lease is one executed February 24, 1956, but made retroactive to September 1, 1952. It relates to an old freight depot area owned by the railroad at Main and Gratiot Streets, St. Louis. By it the railroad2 leased to Republic designated portions of a freighthouse building and also granted Republic 'the right to use, in common with Lessor or others, such additional space or area on' the platform portion of the freighthouse building and on a separate open freight platform on the other side of five loading tracks 'as may be necessary for temporary accommodation of freight actually or constructively in possession of Lessee under provisions of Section 8 of this agreement'. The two platform areas together were called the 'Lessor's Freight Platform.'
7
Paragraph 8 of the lease has particular pertinency. By it the parties agree (1) that freight on the Platform with respect to which the railroad does not receive a road haul by rail 'shall at all times be deemed to be in the possession of' Republic; (2) that 'loss of or damage to freight being handled from highway truck to highway truck shall, at all times, be the liability of the Lessee'; and (3) that, except with respect to such a truck-to-truck situation and other exceptions not here pertinent, 'loss of or damage to freight on Lessor's Freight Platform and Premises shall be the liability of the party having possession of the freight under the provisions of this agreement, at the time of the loss or damage'.
8
The portions of the depot occupied by Republic under the lease were used by it for the receipt, consolidation and forwarding of freight moving, or to be moved, on bills of lading issued by Republic, or, in other words, the depot's use by Republic was confined to the handling of Republic's freight forwarding traffic.
9
The shipments. The less-than-carload shipments in question had all moved, or were to be moved, interstate on through bills of lading issued by Republic. They either (1) had been transported to St. Louis and the depot by common carrier truck, or (2) had been transported to St. Louis by common carrier railroad, other than the Missouri Pacific, in which case the Missouri Pacific received tariffspecified switching charges for its services in switching the cars containing the shipments from its St. Louis connection to the depot, or (3) had originated in St. Louis and had been transported to the depot by local truckers hired by Republic or its shippers. The shipments had been consolidated, or were to be consolidated, with other less-than-carload shipments moving on bills of lading issued by Republic and had been transported, or were to be transported, as parts of carloads or truckloads on additional bills of lading issued to Republic by the common carrier rail or truck lines. The carriers' bills of lading for all carlods or truckloads into St. Louis showed Republic as both consignor and consignee and St. Louis as the destination. If an incoming shipment was to continue beyond St. Louis it would be included in a new carload or truckload for which a new bill of lading was issued by the outbound carrier naming Republic as the shipper and consignee.
10
Unloading and Loding. Shipments originating in St. Louis were unloaded at the depot by the local truck driver. All other shipments arriving at the depot were unloaded by Missouri Pacific employees from the car or truck. For this unloading service the railroad received rates set forth in a freight tariff it had filed and published as prescribed by 6 of the Interstate Commerce Act, 49 U.S.C.A. 6. This tariff related specifically to charges at this St. Louis depot for services in unloading or loading 'on request of shipper'. Upon unloading each shipment was moved by the railroad employees to the particular loading point on the Platform determined by the final destination specified on the bill of lading issued by Republic and Republic issued a receipt to the inbound carrier acknowledging delivery of the shipment. Some shipments were to be loaded by the railroad employees into cars for subsequent movement by rail. Others were to be loaded by those employees into common carrier trucks for further movement. For these loading services the railroad also received the rate set forth in the freight tariff. Shipments for delivery to St. Louis destinations were placed by the railroad employees on the Platform for loading by the local trucker into local trucks.
11
In summary, therefore, except for the unloading from local trucks of shipments originating in St. Louis and except for the loading into local trucks of shipments for St. Louis delivery, the railroad employees did the unloading and loading.
12
It was between the time the shipments in question were unloaded and placed on the Platform and the time they were to be finally loaded into a car or truck that the losses took place. Each shipment, thus, at the time of the loss had not been delivered to the consignee named in Republic's bill of lading and was still on the Platform. The car or truck into which it was to be loaded had not yet been completely loaded and Republic had not yet issued complete instructions to the outbound carrier.
13
The Missouri Pacific was not a line haul carrier of any shipment in controversy, did not receive a line haul or any division of the line haul charge from the line haul carrier, did not receive from Republic any instructions under which it was to receive a line haul, and did not issue any bill of lading or other document acknowledging receipt of the shipment as a common carrier.
14
Neither the Missouri Pacific nor Republic has any evidence as to the cause of the losses.
15
Republic contends that at the time of loss each shipment had not yet reached its final destination point; that it was still in transit in interstate commerce; that the unloading and loading services rendered by the Missouri Pacific at the depot were performed by it as a common carrier in an overall interstate transaction; that the loss took place while the railroad was acting in this capacity; that the freight, therefore, never came into Republic's possession; and that any provisions of the lease which might be taken to relieve the Missouri Pacific of responsibility were not effective because, the lease cannot abrogate the railroad's common carrier liability.
16
The Missouri Pacific contends that at the time of each loss transportation of the inbound car or truck had been completed or transportation of the outbound car or truck had not yet begun; that there was an interval between the transportation in and the transportation out; that the lease was effective and applicable to that interval; that by the lease the possession of the shipment, and hence liability therefor, was in Republic and not in the railroad; that the unloading service provided by the railroad had been rendered and had ceased; and that the presence of a bill of lading issued by Republic to its shipper and the fact Republic had not yet completed the transportation required by its bill of lading were matters between Republic and its shipper and have no bearing on the obligations of the railroad to Republic.
17
We observe, initially, and repeat for emphasis, that with respect to each shipment there were two bills of lading outstanding. One was issued, as to the less-than-carload item or items, by Republic to its customer-shipper. The other was issued, as to the consolidated carload or truckload, by the common carrier railroad or highway truck showing Republic as both consignor and consignee. The Missouri Pacific issued neither of these bills of lading and was not named therein in any capacity. Republic was thus a common carrier with respect to its customer-shipper but it was also a shipper-consignee with respect to the carriers whose carload or truckload services it utilized. Chicago, M., St. P. & P.R.R. v. Acme Fast Freight, 1949, 336 U.S. 465, 467-468, 69 S.Ct. 692, 93 L.Ed. 817. See National Carloading Corp. v. United States, 1955, 95 U.S.App.D.C. 208, 221 F.2d 81, 84 and 86. What this case concerns is not the first relationship but, rather, the second, that is, Republic's posture as a shipper-consignee, on the one hand, and Missouri Pacific, which Republic claims to be functioning as a common carrier with respect to the shipments, on the other. Furthermore, none of the carload or truckload shipments was made on a bill of lading through St. Louis. Although a particular inbound less-than-carload shipment might be headed for an ultimate destination beyond St. Louis, it arrived at St. Louis on a carrier's carload or truckload bill of lading with St. Louis as its destination and with Republic as the consignee, and it was to proceed from St. Louis on a new carload or truckload bill of lading issued by the outbound carrier with destination designated and Republic again as the consignee.
18
With these observations in mind, we move on, first, to the question of Missouri Pacific's status as a common carrier at the time of the losses and, then, to the question of the application of the parties' lease. The parties by their stipulation seem to have separated the shipments into four categories:
19
1. In by local truck; out by rail. The first category consists of those shipments which originated in St. Louis, were transported to the depot by local truck, were unloaded to the Platform by the driver of that local truck, were to have been loaded by Missouri Pacific employees into a car in consolidation with other shipments, and were to have departed from the depot and St. Louis by rail. The shipments were lost after unloading but before being loaded by the railroad employees into the railroad car.
20
In order that a railroad have the status and absolute liability of a common carrier with respect to a shipment, the shipper must have delivered the freight into its possession, the delivery must be for immediate transportation, and the shipper must give the carrier appropriate shipping instructions. Missouri Pac. Ry. v. McFadden, 1894, 154 U.S. 155, 160-161, 14 S.Ct. 990, 38 L.Ed. 944; National Union Fire Ins. Co. v. Atlantic & E.C. Ry., 4 Cir., 1952, 193 F.2d 943, 944; Harris, Cortner & Co. v. Louisville & N.R.R., 5 Cir., 1921, 276 F. 277, 280; Delta and Pine Land Co. v. Illinois C.R.R., 1957, 231 Miss. 487, 95 So.2d 572, 575, and cases cited.
21
It follows that the Missouri Pacific does not have common carrier liability with respect to losses of these first category shipments. These shipments were not even handled by the railroad. They were, instead, delivered by the local truck driver to Republic at the depot and were receipted for there by Republic's receiving clerk. There was no delivery to the railroad for immediate transportation; there was no bill of lading yet issued by the outbound carrier; and there were no complete shipping instructions yet issued by Republic as shipper.
22
2. In by rail; out by common carrier truck. The second category consists of those shipments which were transported to St. Louis by rail, other than Missouri Pacific, were switched to the depot by the Missouri Pacific from its yard connection, were unloaded by Missouri Pacific employees to the Platform, were to have been loaded by those employees into a truck in consolidation with other shipments, and were to have departed from the depot and St. Louis by common carrier truck. The shipments were lost after unloading from the car but before loading into the truck.
23
Common carrier liability ceases upon delivery of the shipment to the consignee. Delivery of a carload shipment, such as is involved in this category, is normally effected when the car is placed on a team track or spotted. Secretary of Agriculture of U.S. v. United States, 1954, 347 U.S. 645, 647, 74 S.Ct. 826, 98 L.Ed. 1015; Jones v. Thompson, 1950, 360 Mo. 285, 228 S.W.2d 673, 676. The case of Southern Advance Bag & Paper Co. v. Terminal R. Ass'n., Mo.App., 1943, 171 S.W.2d 107, 112, is to the same effect, appears to be parallel on its facts to the situation here (unloading by employees of Washington University in St. Louis of carload shipments for the University's tenants), and clearly points out the distinction between carload and less-than-carload shipments so far as delivery and termination of common carrier liability are concerned. See also Burton v. Wabash Ry., 1933, 332 Mo. 268, 58 S.W.2d 443.
24
It seems then inevitably to follow that the interstate transportation of any shipment in this category ceased when the car was placed at the Platform and Republic issued its receipt to the inbound carrier acknowledging delivery, and that the railroad's common carrier liability terminated at that point. The Missouri Pacific services thereafter, consisting of unloading the carload, were performed by it 'on request of shipper' as specified in the tariff. That shipper was Republic. It was not the line haul carrier.
25
3. In by rail; out for local delivery by truck. The third category is identical to the second except that the shipments were to be loaded from the Platform into a local truck for local delivery. That loading, however, was to be performed by the driver of the local truck and not by Missouri Pacific employees. Exactly the same result ensues as with second category shipments and what we have said there is applicable here.
26
4. In by common carrier truck; out by common carrier truck. The fourth category consists of those shipments which were transported to St. Louis and the depot by common carrier truck, were unloaded by Missouri Pacific employees to the Platform, were to have been loaded by those employees into another common carrier truck in consolidation with other shipments, and were to have departed from the depot and St. Louis by this second truck. The shipments were lost after unloading but before loading.
27
Here, again, the inbound carrier's truckload services did not include unloading. Its carriage for Republic was complete when its truck was placed at the depot. The Missouri Pacific's unloading services were performed for Republic as consignee.
28
This discussion as to the four categories embraces conclusions in each instance that the Missouri Pacific's unloading services were not performed while acting as a common carrier of the shipments in question. As a consequence, Republic's argument that common carrier liability applies wholly apart from any provisions of the lease and that the parties cannot, under 20(11) of the Act, by the lease, contract away this liability of the railroad, loses its entire foundation.
29
We may then turn to the lease to see what the parties themselves agreed with respect to losses. There is no question that the lease covered the period of these shipments and that it was valid. See General American Tr. Corp. v. Indiana Harbor Belt R.R., 7 Cir., 1951, 191 F.2d 865, 872, cert. den. 343 U.S. 905, 72 S.Ct. 636, 96 L.Ed. 1324. It provides specifically that loss of freight handled from highway truck to highway truck was at all times the liability of Republic. This covers the fourth category of shipments. The lease further states that freight loss shall be the liability of the party having possession of the freight, as described in the lease, at the time of the loss. It states that freight with respect to which the Missouri Pacific does not receive a road haul by rail or any instructions under which it was to receive a road haul by rail shall at all times be deemed to be in the possession of Republic. None of the shipments in the remaining three categories received or was to receive a Missouri Pacific road haul by rail. By the lease, therefore, (a) this freight at all times on the Platform was in Republic's possession and (b) its loss was the liability of Republic.
30
Republic appears to rest its argument primarily upon the case of Keystone Motor Freight Lines v. Brannon-Signaigo C. Co., 5 Cir., 1940, 115 F.2d 736. The facts of that case, however, are very different. There the truck carrier, when it arrived at the destination city behind schedule on a Aturday afternoon, tried to deliver the goods but found the consignee's place of business closed. By special contract it arranged to have the shipment stored at the dock of another carrier which regularly made local deliveries for the first carrier. The goods were stolen over the weekend. In affirming judgment for the first carrier against the second, the Fifth Circuit observed, p. 738, that 'mere arrival of goods at their destination does not reduce the liability of the carrier to that of a warehouseman where anything remains to be done by the carrier in order to effectuate a delivery' and held that the second carrier's pickup and delivery service arranged for by the special contract was a necessary link in the interstate transportation and that it was a connecting and delivering carrier in possession when the loss occurred. In the case before us, however, delivery to Republic as shipper-consignee had been effected, the interstate carriage had ceased, the goods were in the possession of Republic, and the losses thereafter took place.
31
Galveston Wharf Co. v. Galveston, H. & S.A. Ry., 1932, 285 U.S. 127, 52 S.Ct. 342, 76 L.Ed. 659, also cited by Republic, is similarly to be distinguished. There the Wharf Company, although performing only unloading and loading services, was a link in the uncompleted interstate carriage by a water carrier and a rail carrier. It was held liable for loss of goods while they were in its possession. The shipment was clearly in mid-state. In the case before us it has been completed.
32
Certain arguments made by Republic perhaps require passing comment;
33
(a) Republic suggests that because the Missouri Pacific's unloading and loading services were performed pursuant to a tariff filed and published in accord with 6 of the Act, because these services were obviously within the definition of 'transportation' in 1(3)(a), 49 U.S.C.A. 1(3)(a), and because the Interstate Commerce Commission has jurisdiction over charges for these services, citing Secretary of Agriculture v. United States, supra, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015, and Ex Parte 223, Increased Freight Rates (I.C.C. 1960) with its application to loading and unloading charges performed by class I railroads, the Missouri Pacific's unloading services were necessarily performed as a common carrier and these services were in the nature of common carriage. It also asserts that the railroad, by raising as a defense the limitation period specified in 20(11) of the Act and in the Uniform Bill of Lading, admits its common carrier capacity because this defense is available only to such a carrier.
34
The conclusion suggested does not follow from the premise. The Missouri Pacific is a railroad. It is subject, by 1 of the Act, to the Act's Part I. It must comply with 6 which requires the filing of schedules of rates for all its charges for transportation as defined in 1(3)(a). That definition is a wide one and includes 'all instrumentalities and facilities of shipment or carriage * * * and all services in connection with the receipt, delivery, * * * and handling of property transported'. As so defined the term is broader than the pure transportation service of which common carriage consists. It includes services which may occur before or after actual carriage. Examples of this are icing of cars, weighing, storage, and loading and unloading. The purpose of having the Commission supervise these extra-carriage services is apparent from Cleveland, C., C. & St. L. Ry. v. Dettlebach, 1916, 239 U.S. 588, 594, 36 S.Ct. 177, 180, 60 L.Ed. 453:
35
'* * * It is evident that Congress recognized that the duty of carriers to the public included the performance of a variety of services that, according to the theory of the common law, were separable from the carrier's service as carrier, and, in order to prevent overcharges and discriminations from being made under the pretext of performing such additional services, it enacted that so far as interstate carriers by rail were concerned the entire body of such services should be included together under the single term 'transportation' and subjected to the provisions of the Act respecting reasonable rates and the like.'
36
See Southern Ry. v. Prescott, 1916, 240 U.S. 632, 638, 36 S.Ct. 469, 60 L.Ed. 836. Thus, the mere publication of a tariff does not of itself make the publisher a common carrier or make every service which it performs a part of common carriage with consequent common carrier liability. Riegel Paper Corp. v. Branch Motor Express Co., Sup.Ct., 1960, 207 N.Y.S.2d 697, 698. Compare Ellis v. I.C.C., 1915, 237 U.S. 434, 443, 35 S.Ct. 645, 59 L.Ed. 1036, Lowden v. Simonds-Shields-Lonsdale Grain Co., 1939, 306 U.S. 516, 520-521, 59 S.Ct. 612, 83 L.Ed. 953. And the fixing of the point at which common carrier liability begins or ends is not dependent upon the requirement of filing the tariff but is a matter for the courts and the common law. Cincinnati, N.O. & T.P. Ry. v. Rankin, 1916, 241 U.S. 319, 326-327, 36 S.Ct. 555, 60 L.Ed. 1022.
37
The fact the limitations defense was raised is of no help to Republic and constitutes no admission. It is an alternative defense which would come into play only if Missouri Pacific's unloading services were determined to have been rendered in a common carrier capacity.
38
(b) Republic also suggests that under the lease only a small portion of the freight depot is available for its exclusive use; that the right given Republic under the lease to use the Platform had to do only with overflow shipments which could not be placed in the exclusive area; that the lease provisions relating to this user do not apply to freight floored on the Platform for the railroad's convenience while awaiting further loading; and that the freight tariff contemplates immediate reloading.
39
The freight tariff is by no means so restricted. It does refer to unloading and loading in one continuous operation but it does so only as one of several services described. It also relates directly to unloading alone and to loading alone.
40
Neither do we think the lease is restricted in the narrow manner suggested by Republic. It contains no language about overflow shipments, about the use of the Platform only after the exclusive area is occupied, about immediate loading, or about convenience use of the Platform by the Missouri Pacific. We also find nothing in the record to indicate that the shipments were on the Platform for the railroad's convenience. The record discloses no request for single operation unloading and loading. The shipments were on the Platform pending Republic's instructions to load or pending the availability of the outbound car or truck.
41
The legal principles mentioned above have been long established and long accepted. We think that Republic's claims here are founded, not upon a misconstruction of those principles, but upon a basic confusion between the kinds of shipments represented by the two bills of lading. So far as Republic's customer-shipper is concerned, the shipment was not completed and as between that shipper and Republic the interstate carriage was still in effect when the loss occurred. That is why Republic was liable to its shipper for the loss. But so far as Republic, as shipper-consignee, and the carrier which issued or was to issue to it the carload or truckload bill of lading are concerned, the interstate shipment had ceased, or had nbot yet begun, when the shipment was on the Platform and the loss occurred. By properly distinguishing between these two co-existing but separate arrangements resultant liability for the loss is readily ascertained.
42
Affirmed.
1
'The term 'freight forwarder' means any person which (otherwise than as a carrier subject to chapters 1, 8, or 12 of this title) holds itself out to the general public as a common carrier to transport or provide transportation of property, or any class or classes of property, for compensation, in interstate commerce, and which, in the ordinary and usual course of its undertaking, (A) assembles and consolidates or provides for assembling and consolidating shipments of such property, and performs or provides for the performance of break-bulk and distributing operations with respect to such consolidated shipments, and (B) assumes responsibility for the transportation of such property from point of receipt to point of destination, and (C) utilizes, for the whole or any part of the transportation of such shipments, the services of a carrier or carriers subject to chapters 1, 8, or 12 of this title.'
2
The lease was actually executed by the railroad's predecessor, its Trustee in reorganization, but the railroad succeeded to all the Trustee's rights and assumed all his obligations under the lease
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United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2631
___________
Laura M. Rivera, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Tim Reisch, Secretary of the *
Department of Corrections; Duane * [UNPUBLISHED]
Russell, Warden of the S.D. Women’s *
Prison, *
*
Appellants. *
___________
Submitted: October 30, 2009
Filed: November 9, 2009
___________
Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
___________
PER CURIAM.
Defendants appeal the district court’s denial of qualified immunity in this 42
U.S.C. § 1983 action brought by South Dakota inmate Laura Rivera, in which she
alleged that defendants were deliberately indifferent to her serious mental health needs
in violation of the Eighth Amendment by changing her medication and placing her in
segregation for behaviors caused by her mental illness. We will assume, as the district
court implicitly found, that the defendants were properly sued in their individual
capacities; otherwise, we would have no jurisdiction over this interlocutory appeal.
See Krout v. Goemmer, No. 08-2781, 2009 WL 3172180, at *4 (8th Cir. Oct. 6, 2009)
(this court generally has no jurisdiction to hear immediate appeal from denial of
summary judgment, but has limited authority to review denial of qualified immunity);
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (qualified
immunity is defense only to government employees sued in their individual capacity).
We deny Rivera’s motion to supplement the record, as the proffered material would
not affect the appeal’s outcome.
Putting aside the question whether Rivera alleged a violation of a constitutional
right, see Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (courts are permitted to
exercise their sound discretion in deciding which prong of qualified immunity analysis
should be addressed first in light of circumstances of particular case), we conclude
that any constitutional right she possessed to different treatment was not so clearly
established that a reasonable person in defendants’ position would have known that
his actions violated her constitutional right in this case, see Krout, 2009 WL 3172180,
at *4 (de novo review); Irving v. Dormire, 519 F.3d 441, 446 (8th Cir. 2008) (court
must determine whether facts, construed in light most favorable to plaintiff, establish
violation of constitutional right, and whether right was clearly established). Warden
Russell attested that he and Department of Corrections Secretary Reisch are not
involved in decisions regarding the treatment or referral of inmates and that all
inmates receive screenings by mental health professionals who are free to make
referrals as they deem appropriate. The record indicates that Rivera received
significant mental health care at the prison, and she did not present any evidence that
these defendants failed to follow any recommendations the mental health staff made
regarding medication or segregation. See Keeper v. King, 130 F.3d 1309, 1314 (8th
Cir. 1997) (prison superintendent who is not involved in treatment decisions and lacks
medical expertise is not liable for medical staff’s diagnostic decisions).
The order denying qualified immunity is reversed, and the case is remanded to
the district court with directions to grant defendants qualified immunity for any
damages claims against them in their individual capacities.
______________________________
-2-
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932 F.Supp. 212 (1996)
M.E. FIELDS and J.R. Fields, Plaintiffs,
v.
GENERAL MOTORS CORPORATION, a Delaware and Michigan corporation, Defendant.
No. 94 C 4066.
United States District Court, N.D. Illinois, Eastern Division.
July 3, 1996.
*213 William H. Kelly, Jr., Gerald Berton Mullin, Ira M. Levin, Rosenthal & Schanfield, P.C., Chicago, IL, for plaintiffs.
Richard Cartier Godfrey, Thomas E. Dutton, John Robert Robertson, Gabriela Isuani Monahan, Kirkland & Ellis, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
BUCKLO, District Judge.
Plaintiffs, Earl and John Fields, have brought suit against General Motors Corporation ("GM"), alleging that GM breached an oral contract it made with them. GM has moved for summary judgment on a variety of *214 different theories. For the reasons stated below, GM's motion is granted.
Background
From 1971 until 1985, the Fields operated an automobile dealership in Evanston, Illinois through a closely-held corporation known as Fields Cadillac, Inc. ("Fields Cadillac"). Fields Cadillac was appointed by GM's Cadillac Division as an independent Cadillac Dealer pursuant to several Dealer Sales and Service Agreements ("DSSA"). Under the DSSA, the Fields were the "Dealer Operators" and "Dealer Owners" of Fields Cadillac. They were also shareholders in Fields Cadillac.
In 1982, Fields Cadillac began experiencing a decline in sales. From 1982 to 1985, the Fields considered purchasing another Cadillac dealership, relocating Fields Cadillac to another location, or adding another major franchise to the Evanston facility. When none of these options came to fruition, the Fields considered selling the Evanston property to a third party and having Fields Cadillac terminate its DSSA. According to the Fields, GM had promised them that they would be granted a new Cadillac dealership in the future if Fields Cadillac voluntarily terminated its DSSA.
On March 25, 1985, GM wrote the Fields a letter in which it stated that
Cadillac [GM] will give consideration to the applications of Messrs. M.E. Fields and J.R. Fields as candidates for a Cadillac dealership that may become available in an area of mutual interest. Cadillac cannot guarantee that the very next available point would be granted to either party. However, Cadillac will consider both parties as being preferred candidates for available points which match their qualifications.
The Fields contend that this letter did not correctly express the agreement between them and GM. They claim that GM promised to grant them the next available Cadillac dealership.[1] The Fields say that in reliance on GM's promise, they caused Fields Cadillac to voluntarily terminate its DSSA in November, 1985.
Despite GM's alleged promise that the Fields would get the next available Cadillac dealership, in 1986 GM established a Cadillac dealership in Port Richey, Florida but did not give it to the Fields. Although the Fields believed that, by failing to give the Port Richey dealership to them, GM had broken its promise, the Fields took no action. According to the Fields, GM assuaged their protests by explaining that it needed to appoint a dealer operator pursuant to its minority recruitment program. GM allegedly promised the Fields again that they would get the next available Cadillac dealership.
In 1988, however, Earl Fields learned that GM had approved another Cadillac dealership in Jupiter, Florida. Again this dealership was not given to the Fields. Earl Fields testified that when he asked GM why the Fields had not been given the Jupiter dealership, "[t]hey said it was out of their hands." He further testified that because the Jupiter dealership was being given to someone else he "very definitely" believed that GM had broken its promise to give the Fields the next available Cadillac dealership. The Fields took no action, however, because they still believed that GM would give them a Cadillac dealership.
In June of 1992, the Fields wrote to GM and demanded that, because they had not been given a replacement Cadillac dealership, GM compensate them for the value of the Cadillac dealership given up by Fields Cadillac.[2] GM responded with a letter explaining that it did not agree that it had promised the Fields a Cadillac dealership in exchange for a voluntary termination of the Fields Cadillac DSSA. This suit followed on June 8, 1994.
*215 GM has moved for summary judgment, based on several defenses. Because I find that the Fields have not stated a claim for promissory estoppel and that their complaint is barred by the statute of limitations, GM's motion is granted.
Standing
GM first argues that the Fields do not have standing to pursue this claim because the damages they seek belong to Fields Cadillac, not to them individually. The Fields respond that they have standing to assert their claims because GM promised another Cadillac franchise to them as individuals. GM agrees that the alleged promise was to the Fields as individuals. GM argues that the Fields cannot succeed in this lawsuit, however, because the only damages they could recover are damages that were suffered by Fields Cadillac the value of the franchise agreement and the "goodwill" or "blue sky" value of Fields Cadillac. The Fields concede that these assets belonged to Fields Cadillac before they were given up in 1985, but dispute whether they are the only damages recoverable under the Fields' complaint.
The Seventh Circuit addressed the issue of when a shareholder in a corporation operating a car dealership may sue as an individual in Carney v. General Motors Corp., 23 F.3d 1154 (7th Cir.1994). In Carney, Mr. Carney sued GM when it terminated the franchise belonging to Carney Chevrolet, a closely held corporation in which Mr. Carney was the sole shareholder. Mr. Carney asserted that he had standing to make his claim because he was not suing for breach of contract, but rather "`independent tortious conduct' ... that `injured and damaged [him].'" Id. at 1157. The Seventh Circuit agreed with the district court that Mr. Carney was not a proper plaintiff and affirmed summary judgment for GM. The court explained that "Mr. Carney does not have an individual right to `operate' a GM dealership.... This right belongs to Carney Chevrolet, and not to an individual corporate shareholder, even if he is the sole shareholder and chief executive." Id. at 1157 (citations omitted).
The Fields distinguish Carney by noting that Mr. Carney was really suing over Carney Chevrolet's contract with GM, whereas here the Fields are suing over GM's promise to them. GM concedes that Carney does not directly preclude the Fields' cause of action, but argues that because the "corporate damages ... are a theory of recovery on their ... breach of contract claim," the Fields cannot proceed. GM cites no authority for this proposition. As an intended beneficiary of the alleged contract, the Fields are entitled to sue to enforce it. See RESTATEMENT (SECOND) OF CONTRACTS § 305 (1981).
Promissory Estoppel
In responding to GM's standing argument, the Fields have shown, however, that they cannot state a claim for promissory estoppel. In their surreply, the Fields concede that they did not have "title to the blue sky" that Fields Cadillac gave up in reliance on GM's promise to the Fields of another Cadillac dealership. Without detrimental reliance by the Fields, the Fields cannot recover.
The elements of promissory estoppel are (1) a promise unambiguous in terms, (2) reliance on such promise by the party to whom it was made, (3) which reliance was expected and foreseeable by the party making the promise, and (4) which reliance was to the detriment of the party to whom the promise was made.
Yardley v. Yardley, 137 Ill.App.3d 747, 484 N.E.2d 873, 878, 92 Ill.Dec. 142, 147 (2d Dist.1985) (emphasis added). See also Quake Construction, Inc. v. American Airlines, Inc., 141 Ill.2d 281, 565 N.E.2d 990, 1004, 152 Ill.Dec. 308, 322 (1990) (citing Yardley and requiring for promissory estoppel that "plaintiff relied on the promise to its detriment") (emphasis added). Here, the Fields contend that GM promised to give them another Cadillac dealership and that they caused Fields Cadillac to resign its Cadillac franchise in reliance on that promise. The Fields cannot show, however, that the alleged reliance, giving up the Evanston Cadillac dealership, was done to their detriment. It was Fields Cadillac which gave up its *216 Cadillac dealership, and therefore the Fields cannot state a claim for promissory estoppel.[3]
The Fields attempt to save their claim by maintaining that they, as individuals, did suffer a detriment in reliance on GM's promise because "they lost their right to control the disposition of the goodwill and any future right to benefit from it." But Carney teaches that these alleged harms are simply injuries to the corporation. They are not separate rights belonging to the Fields for which they can sue. Carney, 23 F.3d at 1157 (dismissing individual plaintiff's suit where his only injury resulted from his status as a shareholder). See also Kagan v. Edison Brothers Stores, Inc., 907 F.2d 690, 693 (7th Cir.1990) ("[Plaintiffs attempting to sue as individuals for harm to their corporation] seek the best of both worlds: limited liability for debts incurred in the corporate name, and direct compensation for its losses. That cushy position is not one the law affords. Investors who created the corporate form cannot rend the veil they wove."). Because the Fields did not suffer a personal detriment when Fields Cadillac terminated its DSSA, GM is entitled to summary judgment on the promissory estoppel claim.
The Statute of Limitations
The parties agree that the appropriate statute of limitations is either four years (Illinois UCC) or five years (Illinois Code of Civil Procedure). Thus this suit is time barred if GM breached its contract with the Fields before June 8, 1989.
The Fields contend that in the early 1980's GM promised them the next available Cadillac dealership. In 1986, GM established a Cadillac dealership in Port Richey, Florida but did not give it to the Fields. Consequently, GM breached the alleged contract in 1986.[4] Again in 1988, GM approved a Cadillac dealership in Jupiter, Florida, but did not give it to the Fields. Thus GM breached the alleged contract again in 1988.[5] Because GM breached the alleged contract in 1988 at the latest, this suit is time barred.
The Fields make two arguments why their suit should not be time barred. First, they contend that the statute of limitations did not begin to run until GM disavowed its alleged promise in the letter sent in June of 1992. The Fields cite no authority for the proposition that a cause of action for breach of contract does not arise until the contract is repudiated, however.[6] Because GM breached the alleged contract when it did not give the Fields the Jupiter dealership, the limitations period began to run in 1988, at the latest.
Second, the Fields argue that GM should be equitably estopped from raising the statute of limitations defense based on its conduct in reassuring the Fields that they would still get a Cadillac dealership. "In order for equitable estoppel to apply the conduct of the party against whom it is asserted must be such as `to cause the other party to change his position by lulling him into a false security, thereby causing him to delay or waive the assertion of his rights to his damage.'" Economy Fire & Casualty Co. v. GAB Business Services, Inc., 155 Ill. App.3d 197, 507 N.E.2d 896, 898, 107 Ill.Dec. 743, 745 (3rd Dist.1987) (quoting Dickirson v. Pacific Mutual Life Insurance Co., 319 Ill. 311, 150 N.E. 256, 259 (1925)). As the party seeking to avoid summary judgment by estopping GM from raising the statute of limitations defense, the Fields must come forward *217 with facts sufficient to create a jury question on the issue. See Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1070-71 (7th Cir.1978).
The Fields point to two pieces of evidence they say shows that GM should be estopped from raising the statute of limitations. They first point to an April 1990 letter from a GM executive telling the Fields that "[t]he encouragement [he] gave [them] in 1985 ... is still in effect ... [If a dealership became available, GM] would certainly be interested in [their] specific application and proposal." The Fields also point to the deposition testimony of Earl Fields in which he stated that he spoke to GM executives about the Port Richey dealership. He testified that they told him "that there was no change in the commitment ... and that this was a situation that [GM] was forced into by the corporate policy at that time." Earl Fields also testified that he received letters from GM executives after he expressed disappointment about the Jupiter dealership "where Cadillac continued to represent ... that they would encourage [the Fields] and make efforts toward appointing [them] to a new Cadillac [dealership]."
These two pieces of evidence do not create an issue of fact as to whether GM is estopped from raising the statute of limitations defense. In Illinois, the defendant must "under[take] affirmative acts that lulled the plaintiff into a false sense of security that the limitations defense would not be raised." Pack v. Santa Fe Park Enterprises, Inc., 209 Ill.App.3d 648, 568 N.E.2d 360, 363, 154 Ill. Dec. 360, 363 (1st Dist.1991). Various factors should be considered in determining whether the plaintiffs reasonably believed their claim would not be disputed:
(1) concession of liability by the [defendant]; (2) conduct or statements by the [defendant] encouraging delay; (3) payments by the [defendant] during the negotiating period; and (4) plaintiff's awareness of the statute of limitations and whether plaintiff has retained counsel.
Economy Fire & Casualty Co., 507 N.E.2d at 898, 107 Ill.Dec. at 745. Looking at these factors, it is clear that the Fields have not put forth sufficient evidence showing that they can prove estoppel.
First, GM's 1990 letter did not indicate (or even hint) that GM would not raise the statute of limitations defense. In fact, the language of the letter itself demonstrates that GM did not intend to compensate the Fields for its broken promise. The letter says merely that if another Cadillac dealership became available, GM "would certainly be interested in [the Fields'] specific application and proposal." GM's statement does not indicate that GM acknowledged its contract breach and intended to make reparations. Nor does the letter encourage the Fields not to assert their legal remedy.
The testimony of Earl Fields suffers from the same defect. He testified that after the Fields had been refused two separate Cadillac dealerships, GM executives "continued to represent ... that they would encourage [the Fields] and make efforts toward appointing [them] to a new Cadillac [dealership]." If the agreement were as the Fields allege, to grant them the next available Cadillac dealership, then these representations indicate that GM did not consider itself bound by such a promise. Earl Fields testified only that he had been "encourage[d]" and that GM would "make efforts" to get the Fields a dealership. Reading this testimony and GM's letter in the light most favorable to the Fields, I find as a matter of law that the Fields could not prove equitable estoppel. Consequently, this complaint is time barred.[7]
Conclusion
For the reasons stated above, GM's motion for summary judgment is granted.
NOTES
[1] The Fields were allegedly promised the next available dealership, except for one then being established in Austin, Texas. That dealership had already been promised to someone else when GM made its alleged promise to the Fields. Thus the Fields understood "next available" to mean the first one after Austin.
[2] The letter was actually from M.E. Fields, Inc., the successor corporation to Fields Cadillac, and signed by John Fields in his capacity as Vice-President.
[3] I note that the Fields' breach of contract claim does not fail for the same reason, however, because consideration given by a third party is adequate to bind the parties to a contract. Here, Fields Cadillac gave up its dealership rights as consideration for GM's contractual duty to give another franchise to the Fields. See RESTATEMENT (SECOND) OF CONTRACTS § 71 cmt. e (1981).
[4] The Fields testified that they knew that GM had given the Port Richey dealership to someone else and believed that by doing so GM had broken its promise to them.
[5] Again, the Fields knew about this decision and realized that GM was breaking its promise to them.
[6] The Fields do cite case law for the proposition that parties to a contract may waive delays in performance. Here, however, because the alleged contract was for the next available Cadillac dealership, GM's failure to grant the Port Richey and Jupiter dealerships to the Fields was a breach of the contract and not simply a delay in performance.
[7] The Fields do not assert that the statute of limitations for their promissory estoppel claim is longer than 5 years. Consequently, even if the Fields as individuals could state a claim for promissory estoppel, it would be time barred too.
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9 F.3d 1554
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.UNITED STATES of America, Plaintiff-Appellee,v.Carlos LOPEZ-REYES, Defendant-Appellant.
No. 92-30506.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 2, 1993.*Decided Nov. 10, 1993.
Before: WRIGHT, GOODWIN and HUG, Circuit Judges.
1
MEMORANDUM**
2
Carlos Lopez-Reyes appeals his conviction for possessing methamphetamine with intent to deliver, 21 U.S.C. § 841. He argues that the district court erred by denying his pretrial motion to suppress evidence seized during a search of his car. We have jurisdiction over his timely appeal under 28 U.S.C. § 1291, and we affirm.
3
A police officer may justifiably stop a car when he reasonably suspects the driver of a traffic violation. United States v. Brewer, 947 F.2d 404, 412 (9th Cir.1991). The arresting officer's motive determines whether the stop is merely an impermissible pretext for further investigation. United States v. Smith, 802 F.2d 1119, 1124 (9th Cir.1986). We review for clear error the district court's factual determinations about the officer's motives, United States v. Gutierrez-Mederos, 965 F.2d 800, 802 (9th Cir.1992), including findings of credibility, United States v. Ramos, 923 F.2d 1346, 1356 (9th Cir.1991).
4
The troopers had reason to suspect Lopez-Reyes of a traffic violation. He does not dispute that he was traveling 63 m.p.h. in a 55 zone. But he argues that the district court erred in finding the officers were motivated by neutral traffic-regulation enforcement. He presents statistical and other evidence to show that the troopers were motivated by an Oregon State Police policy of stopping Hispanic males in older American sedans for minor traffic violations in order to question them and obtain permission to search their cars.
5
But he does not point to any direct evidence, apart from his own testimony, disputing the district judge's findings that the troopers did not know that he was Hispanic or male when they decided to stop his speeding car. Trooper Mogle, who was driving, testified that he was also busy concentrating on the radar operation. Trooper Barker testified that he was busy writing reports when Mogle made a U-turn and pursued Lopez-Reyes. Both troopers also testified that they only knew the color, and not the make, of Lopez-Reyes' car while pursuing him with their overhead lights on. The district judge found the officers credible. From our review of the record, we cannot say that the judge clearly erred. See Gutierrez-Mederos, 965 F.2d at 802.
6
We need not address Lopez-Reyes' remaining contentions, as they are contingent upon the stop having been a pretext.
7
AFFIRMED.
*
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Ninth Circuit Rule 34-4. Appellant's request for oral argument has been considered and is denied
**
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
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619 P.2d 907 (1980)
49 Or.App. 231
Wendellyn JONES, Respondent,
v.
MONTGOMERY WARD & CO., INC., Appellant.
No. A7804-06226; CA 14545.
Court of Appeals of Oregon.
Argued and Submitted August 1, 1980.
Decided November 17, 1980.
*908 Ridgway K. Foley, Jr., Portland, argued the cause for appellant. With him on the briefs were Schwabe, Williamson, Wyatt, Moore & Roberts, and Gino G. Pieretti, Jr., Portland.
Chris P. Ledwidge, Portland, argued the cause for respondent. With him on the brief was Ledwidge & Ledwidge, Portland.
Before JOSEPH, P.J., and WARDEN and WARREN, JJ.
JOSEPH, Presiding Judge.
Plaintiff brought an action for false arrest and assault and battery as a result of an incident which took place in the parking lot of defendant's Jantzen Beach store. She sought both general and punitive damages on each cause of action.[1] Defendant appeals from the judgment entered on a verdict for plaintiff and makes two assignments of error. The first is that the court erred in denying defendant's motion in limine to exclude reference to, use or discussion of defendant's security manual, which contains its rules and instructions for dealing with shoplifters. Secondly, defendant contends that the court erred in not entering judgment for defendant on the original jury verdict and that there was jury misconduct.
Plaintiff was shopping with her mother in defendant's store. Both testified that they purchased a pantsuit in a clothing department and then went to the credit department to pay on an account. They then left the store and went to the parking lot, where they were stopped by one of defendant's security officers. A skirmish broke out between plaintiff and the security officer; eventually, other security personnel arrived and separated the two.
*909 The security officer testified that from an observation booth through one-way glass she observed plaintiff and her mother stuff a two-piece clothing outfit into a Montgomery Ward bag. The security officer then stepped away from the window for a few seconds and called to a clerk to request security assistance. She returned to the observation window and saw plaintiff and her mother leaving the store; she left the booth, losing sight of them again until she saw them in the parking lot. She approached the women, identified herself as a security officer and attempted to place plaintiff under arrest. She said that she actually saw the stolen merchandise in a bag which plaintiff was carrying, but that plaintiff tossed the bag into the back of a pickup truck and prevented the security officer from retrieving it. Shortly thereafter, a fight broke out, during which plaintiff's mother drove away in the truck. No bag with stolen merchandise in it was recovered.
Defendant made a motion in limine to exclude its security manual from the trial, arguing that the guidelines in the manual impose a more stringent legal standard on security personnel than does Oregon law. The security manual sets forth the guidelines which defendant's security personnel are supposed to follow when dealing with shoplifters, including a provision that they should not apprehend a shoplifter if constant observation was not maintained. Plaintiff contended that the manual guidelines were relevant on the issue of punitive damages and the reasonableness of defendant's conduct.
The court denied the motion and ruled that the parties were entitled to inquire of witnesses whether their actions conformed to the guidelines. The court stated:
"I would say that the rules themselves, I think, are not admissible in evidence * * *. Counsel is entitled to inquire of the witnesses whether or not they conformed to their company's policies, and to inquire what those rules and policies may be * * *. They have some relevance to the issue of whether or not the person is acting as a reasonable officer in that capacity, and I think that there should be no reference made or no offer of the-of the rules themselves as evidence because they are in some fashion inconsistent with the law, as I understand it, and it has been presented that they are more stringent than the law for the purpose of attempting to avoid any possible civil liability. The Court will, of course, instruct on what the law is, and I think it might be error to permit the introduction of any written rules which might be inconsistent with the law, but you may inquire as to whether or not any breach violates the practices and policies of the company.
"* * *
"* * * The same rule will apply to [defendant's counsel] as does for Counsel for plaintiff, that you may inquire of your witnesses whether or not these are the purposes or whether or not they are simply guidelines, and why they are more stringent than what the law requires and so forth."
During examination of defendant's security personnel, plaintiff established that no exception existed to the rule of constant observation and that it had been violated in this case.
Neither party cites us to cases discussing the specific question of the admissibility in a false arrest case of a defendant's own security rules or guidelines for dealing with shoplifters, but there are cases in other jurisdictions dealing with the question. See Annotation, 31 A.L.R.3d 705 and cases cited therein. In those cases the evidence was ruled admissible for the purpose of showing that the defendant's employee was or was not acting within his authority in causing the arrest; one case also admitted the evidence for the purpose of showing grounds for punitive damages. Peak v. W.T. Grant Co., 386 S.W.2d 685 (1964, Mo. App.).
ORS 131.655 authorizes police officers and merchants to detain persons on reasonable cause to believe that they have committed or attempted theft in a store. (See State v. Greene, 285 Or. 337, 354, n. 11, 591 P.2d 1362 (1979).) It provides:
*910 "(1) Notwithstanding any other provision of law, a peace officer, merchant or merchant's employe who has probable cause for believing that a person has committed theft of property of a store or other mercantile establishment may detain and interrogate the person in regard thereto in a reasonable manner and for a reasonable time.
"(2) If a peace officer, merchant or merchant's employe, with probable cause for believing that a person has committed theft of property of a store or other mercantile establishment, detains and interrogates the person in regard thereto, and the person thereafter brings against the peace officer, merchant or merchant's employe any civil or criminal action based upon the detention and interrogation, such probable cause shall be a defense to the action, if the detention and interrogation were done in a reasonable manner and for a reasonable time."
As an affirmative defense defendant alleged that it had probable cause to believe that merchandise was taken by plaintiff without it being paid for and that contact between plaintiff and its security employee was pursuant to the right to arrest.
The jury was instructed on probable cause as follows:
"* * * The defendants herein are not to be held liable for alleged false imprisonment [sic] if their employees had probable cause for believing that the plaintiff had committed a crime and, thereafter, detained the plaintiff in a reasonable manner and for a reasonable time.
"Probable cause means reasonable grounds supported by circumstances sufficiently strong in themselves to warrant a cautious person to believe that the accused committed the criminal offense with which he or she is charged. It is not necessary that the defendant prove that the plaintiff was guilty of a crime. The defendant must only prove that their agents had reasonable cause to believe that the plaintiff had committed a crime and that the subsequent detention was reasonable in the manner and time."
This instruction is not challenged.
Evidence that the security officer violated defendant's rule of constant observation and therefore, under its own rules, should not have arrested plaintiff injected a standard different from that of reasonable cause provided in the statute. Although evidence that the security officer took her eyes off plaintiff and her mother for a brief moment was relevant to whether the officer had reasonable cause to arrest, evidence that that act violated defendant's rules would tend to confuse the jury as to the applicable standard, even though the statutory standard was instructed on. In Jones v. Mitchell Bros., 266 Or. 513, 524, 511 P.2d 347, 514 P.2d 350 (1973), the court upheld the exclusion of defendant's safety manual for similar reasons:
"The trial court permitted the plaintiff wide latitude in proving Schamburger's expertise in highway safety, including questions about his attendance at safety seminars, his familiarity with truck safety literature, and his responsibilities in connection with the safety operations for a large fleet of trucks, and with accident salvage operations and investigations. Plaintiff was also allowed to show that Schamburger had written a safety manual. The court, however, properly excluded statements from the safety manual itself which might have created doubt in the minds of the jury as to which standard of care was applicable to Schamburger, the law, as explained to the jury by the court, or the instructions contained in the Drivers' Manual. We think there is no merit in this assignment of error."
We conclude that it was error to admit defendant's rules instructing its employees on how to deal with shoplifters. To warrant reversal, however, the ruling of the trial court must not only be erroneous, but prejudicial. Scanlon v. Hartman, 282 Or. 505, 579 P.2d 851 (1978). Ordinarily, error in the admission of evidence is deemed to be prejudicial, unless from examination of the record it appears that the contrary is affirmatively *911 shown. Elam v. Soares, 282 Or. 93, 577 P.2d 1336 (1978). We believe the admission of the evidence was not prejudicial here, because the jury assessed neither general nor punitive damages on the false arrest cause of action,[2] even though it found for plaintiff on that cause of action. That was the equivalent of a defense verdict. State ex rel. Amore v. Wilkinson, 212 Or. 236, 319 P.2d 893 (1957).
A verdict was returned for plaintiff on both causes of action, awarding no general damages and no punitive damages on the false arrest cause of action, and no general damages and $12,500 punitive damages for the assault and battery. Defendant asserted that that verdict amounted to a defense verdict because no general damages were awarded. The court concluded that the verdict was improper and declined to accept it. It reinstructed the jury regarding damages and advised them for the first time[3] that punitive damages may not be returned in the absence of some finding of general damages. Neither party objected to the terms of the reinstruction. After a short period of deliberation the jury returned a verdict in favor of plaintiff on both counts, again assessing no general or punitive damages on the false arrest cause of action, but awarding $12,000 general damages and $500 punitive damages on the assault and battery cause. That verdict was received by the court, and a judgment was entered on it. Defendants moved for a mistrial and again for entry of judgment on the original verdict. The motions were denied.
In Biegler v. Kirby, 281 Or. 423, 574 P.2d 1127 (1978), the jury returned a verdict for plaintiff but assessed no general and no special damages. The trial court declined to accept that verdict and after reinstruction sent the jury back for further deliberation. The jury then returned a verdict for defendant. In discussing, abstractly, whether the first verdict offered by the jury should have been accepted and a judgment entered for defendant,[4] the court stated:
"* * * State ex rel. Amore v. Wilkinson, 212 Or. 236, 319 P.2d 893 (1957), Fischer v. Howard, 201 Or. 426, 271 P.2d 1059, 49 A.L.R.2d 1301 (1954) and Snyder v. Portland Railway, L. & P. Co., 107 Or. 673, 215 P. 887 (1923), hold that verdicts for plaintiff with zero damages are in reality verdicts for the defendant. This results, not from the precise wording of the verdict, but from a construction of the verdict to determine the jury's intent. If, however, the verdict is not received by the court there is no necessity to construe it. See State ex rel. Amore v. Wilkinson, supra.
"When a verdict in this form is rejected there are two courses of action open to the court. It may declare a mistrial or reinstruct the jury and resubmit the case to them pursuant to ORS 17.355.[1] Lewis v. Devils Lake Rock Crushing Co., 274 Or. 293, 545 P.2d 1374 (1976); Moore v. Drennan, 269 Or. 189, 523 P.2d 1250 (1974); Hickman v. Haughton Elev. Co., 268 Or. 192, 519 P.2d 369 (1974). The court chose the latter course of action.
"[1] ORS 17.355(2) provides: `* * * If the verdict is informal or insufficient, it may be corrected by the jury under the advice of the court, or the jury may be again sent out.'" 281 Or. at 428-429, 574 P.2d 1127.
In this case, as in Biegler, the initial verdict was not received; the court properly resubmitted *912 it to the jury, as it had the discretion to do. Therefore, we need not construe it. See Davis v. Hinman, 288 Or. 505, 512, 605 P.2d 700 (1980).
Defendant claims that, even though the court was entitled to reinstruct the jury and resubmit the case, the second verdict shows the jury was guilty of misconduct, and so a mistrial should have been granted. We do not agree. The court recognized that the first verdict on the assault and battery cause was improper in that it awarded punitive damages without an award of general damages. The court also realized that it had inadvertently omitted to instruct the jury on the point. It exercised its discretion to reinstruct and send the jury back. When the jury brought back its second verdict, it did not evidence `a stubborn adherence to an invalid verdict' (Baden v. Sunset Fuel, 225 Or. 116, 120, 357 P.2d 410 (1960)). "Confusion or misunderstanding of instructions is not misconduct justifying a mistrial." Biegler v. Kirby, supra, 281 Or. at 429, 574 P.2d 1127. Giving a jury the opportunity to deliberate under adequate instructions is proper, and refusing to grant a mistrial when there is no indication of confusion or misunderstanding is not error. The jury here did precisely what it would have been lawful for it to do the first time under proper instructions.
Affirmed.
NOTES
[1] Plaintiff's claim for special damages was withdrawn during trial.
[2] Defendant argues that prejudice resulted from the admission of its company guidelines because plaintiff did not limit her interrogation concerning the security manual to the false arrest cause of action. It argues that its guidelines were discussed in terms of an "assault" or "altercation" with a customer. The record does not support that argument; it shows that plaintiff inquired whether it is a ground for dismissal if the employee wrongfully arrested a customer and an assault or altercation occurred. Evidence of a violation of the security guidelines was not referred to in the context of the assault and battery cause of action.
[3] In ruling against defendant's motion for entry of the verdict as a defense verdict, the court said: "I don't think that in my instructions I advised the jury that punitive damages may not be returned in the absence of some general damages. I probably overlooked that."
[4] Because the defendants in Biegler did not cross-appeal from the denial of their motion for directed verdict, it was not necessary for the court to decide this issue.
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State, 95 Nev. 433, 435, 596 P.2d 220, 221-22 (1979)); see also Harmelin v.
Michigan, 501 U.S. 957, 1000-01 (1991) (plurality opinion) (explaining
that the Eighth Amendment does not require strict proportionality
between crime and sentence; it forbids only an extreme sentence that is
grossly disproportionate to the crime). Brooks asserts that he expected to
receive a 10-year sentence, but acknowledged in his guilty plea agreement
that he had "not been promised or guaranteed any particular sentence by
anyone" and that the consequences of his guilty plea permitted the district
court to potentially impose a maximum sentence of 20 years. When basing
its decision to impose a longer sentence than that stipulated to by the
parties, the district court acknowledged Brooks' second psychological
evaluation, but chose to rely on Brooks' first psychological evaluation,
which determined that Brooks has a high-risk-to-reoffend. The district
court also noted Brooks' violent criminal past. Having considered the
sentence and the crime, we are not convinced that the sentence imposed is
so grossly disproportionate to the gravity of the offense and Brooks'
history of recidivism as to constitute cruel and unusual punishment.
Further, Brooks' sentence of 6 to 20 years falls within the parameters
provided by the relevant statutes, see NRS 193.330(1)(a)(1) (term of 2 to 20
years for attempt to commit sexual assault as defined in NRS 200.366(1),
(2)); Chavez v. State, 125 Nev. 328, 347-48, 213 P.3d 476, 489-90 (2009),
and Brooks does not allege that those statutes are unconstitutional. We
conclude that the district court did not abuse its discretion when
sentencing Brooks.
Brooks also contends that he signed the plea agreement based
on his counsel's false assurance that he would be sentenced to a term of
imprisonment of not more than 10 years, resulting in ineffective
SUPREME COURT
OF
NEVADA
2
(0) 1947A e
assistance of counsel As Brooks acknowledges, ineffective-assistance-of-
counsel claims generally may not be raised on direct appeal, see Feazell v.
State, 111 Nev. 1446, 1449, 906 P.2d 727, 729 (1995), and we decline to
consider it here.
We conclude Brooks is not entitled to relief and we
ORDER the judgment of conviction AFFIRMED.
PitlevAth, ,J
Pickering
_ falA J.
Parraguirre Saitta
cc: Hon. Douglas W. Herndon, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
3
<0) 1947A «ID40
| {
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368 So.2d 329 (1979)
Lovell JENKINS
v.
STATE.
6 Div. 952.
Court of Criminal Appeals of Alabama.
March 6, 1979.
Joel R. Chandler, Asst. Public Defender, Tuscaloosa, for appellant.
Charles A. Graddick, Atty. Gen. and David W. Clark, Asst. Atty. Gen., for appellee.
HARRIS, Presiding Judge.
This is an appeal from revocation of probation in three cases of burglary in the second degree, grand larceny, and buying, receiving, concealing or aiding in concealing; for which appellant, an indigent, received three two-year sentences to run consecutively. After entering pleas of guilty to the charges against him, appellant was placed on probation for five years on May 19, 1977.
*330 On May 15, 1978, the Circuit Court of Tuscaloosa County entered the following order:
"It being made to appear to the Court that the probationer herein is delinquent as such, has violated the terms and conditions of probation, has absconded, has failed to make reports to probation officer, is reputed to have violated the criminal laws, has been idle and not gainfully employed, has been drinking intoxicating liquors and consorting with associates of bad repute and that a hearing should be had to determine whether probation herein should be revoked or other action taken by the Court. It is, therefore, the order and judgment of the Court and it is ordered and adjudged by the Court that probationer herein is delinquent as such, and that probationer be, and hereby is, declared delinquent and that the running of probationer's probationary period be and hereby is tolled and stopped and that capias and warrant forthwith issue for arrest of probationer and that when apprehended probationer be brought before the court for hearing for the determination of the truth of the charges made against probationer herein and what action should be taken by the court and whether probation herein should be revoked and order suspending sentence herein set aside.
"Done and ordered this 15 day of May, 1978."
On August 11, 1978, appellant's probation was revoked in one of his cases, following a hearing, and the trial court placed him on a new probationary period of five years with a special condition of probation being confinement for twelve months in the drug and alcoholic treatment center at Bryce Hospital. Appellant was discharged from Bryce on September 8, 1978.
On September 21, 1978, appellant's probation was revoked in all three cases following an abbreviated hearing at which no evidence was presented. Those proceedings are set out below in their entirety.
"THE COURT: This is cases number 6441, 6442 and 6443. We have been working with Mr. Lovell Jenkins for some time now trying to get him to straighten out but our efforts have been to no avail. He was sent out to Bryce Hospital for the program out there and I have been advised by the authorities there that they couldn't do anything with him and that he has refused to co-operate and he has been given notice of this hearing, has he not?
"MR. CHANDLER: Judge, we are aware of the charges listed on the report dated May 10, 1978.
"THE COURT: Well, we are really at the end of the rope so to speak. I don't know of anything else to do other than go ahead and revoke him. Do you have anything to say?
"MR. CHANDLER: Judge, he stands before you today charged with six charges mainly involving where he lived, where he didn't work, failure to pay supervision fees, failure to pay court costs and two offenses of public drunkenness that he got five days apiece for in Birmingham and Lovell of course if you don't work it is kind of hard to pay your court costs and supervision fees.
"THE COURT: Well, we have been more than lenient with Lovell really. What do you say, Mr. D.A.?
"MR. HUDSON: He seems to be able to make enough money to drink off of, Your Honor. I am not in any sense supporting the sole reason of failure to pay supervision fees. That is really the least of them although it is a valid charge for revocation, Your Honor, but I think his history is unequivocally one of being unable to co-operate at all with any of the authorities who are trying to help him. We have tried to give him as much of a break as we can. He wouldn't work with the probation officer. We tried to work him into the Bryce program out there and he wouldn't co-operate with them. The State can't think of anything else to do in the matter but revoke him.
"THE COURT: I feel like I have no alternative rather than to revoke him, Mr. Chandler. Do you have anything to *331 say why your probation should not be revoked?
"MR. JENKINS: Yes, sir, I believe my peoples have been on my side one hundred percent since I have been locked up and they recognize how much the fee is. I talked to Matilda today and she wanted to know how much the fee is and I believe she would be willing to pay it for me.
"THE COURT: Well, this thing has been strung out long enough. It is the order, judgment and decree of the Court that the probation previously extended to you in case 6441-B, 6442-B, and 6443-B be and the same are hereby ordered revoked. I hope you go down and try to straighten up your life.
"MR. CHANDLER: Your Honor, we would like to state for the record we have denied these charges and we continue to deny these charges and we would like to give notice of appeal at this time.
"THE COURT: All right.
"MR. CHANDLER: And ask that he be allowed to appeal in forma pauperis because he is indigent and ask that we be allowed to represent him on that appeal.
"THE COURT: He has had notice of this hearing?
"MR. HUDSON: Yes, sir.
"THE COURT: We really don't have much of a choice. I went way out on a limb to send him out to Bryces. He wouldn't co-operate with the people out there. We don't like to revoke probation but sometimes you don't have much choice. Well, that will be it, thank you, gentlemen.
"MR. CHANDLER: Thank you, Judge."
The trial court thereupon entered the following order:
"September 21, 1978. The question of alleged misconduct of probationer Lovell Jenkins herein coming on to be heard in open Court on this date with probationer present at this hearing after the due notice thereof had been duly given to him and it being made to appear to the Court that said probationer has violated the terms and conditions of his probation herein since being placed on probation and is not being rehabilitated as hoped or contemplated by the law the Court is of the opinion that such probation should be revoked. It is therefore ordered and adjudged by the Court, and it is the order and judgment of the Court, that said probationer Lovell Jenkins has violated the terms and conditions of his probation and that the probation of probationer Lovell Jenkins herein be, and the same hereby is, revoked and that he serve his full sentence herein."
Appellant contends: (1) that there was no evidence to support the trial court's revocation of probation; (2) that no disclosure of the evidence against him was made to him; and (3) that the trial court failed to prepare a written statement as to the evidence relied on for revoking probation.
It well established that although a revocation of probation is not a criminal prosecution, the probationer must be afforded the minimum standards of due process. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
Our Supreme Court in Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975), set out its interpretation of Morrissey and Gagnon, supra. Those guidelines are:
"1. Written notice to the probationer of the claimed violations of probation.
"2. Disclosure to the probationer of evidence against him or her.
"3. Opportunity of probationer to be heard in person and to present witnesses and documentary evidence.
"4. The right to confront and cross-examine adverse witnesses (unless the judge specifically finds good cause for not allowing confrontation).
"5. A written statement by the judge as to the evidence relied on and reasons for revoking probation.
"6. The trial judge who granted probation may also conduct the revocation hearing. (We are not convinced that a detached and neutral judge should hold a *332 revocation hearing. Judges preside over retrials. There appears to be no sound reason why the judge who granted probation could not fairly and impartially preside over revocation of probation hearing.)
"7. We see no valid reason for having two hearings if the probationer has been given sufficient notice of the charges and the evidence to be relied on for revocation of probation. If the probationer has not had time to prepare to refute the charges and evidence against him, he can have a timely continuance.
"8. The judge conducting the probation hearing should decide on a case by case basis whether due process requires that an indigent probationer be represented by counsel.
"9. It is not to be understood that proof beyond a reasonable doubt or the preponderance of the evidence are the standards to be applied in determining whether the probation should be revoked. The trial judge must only be reasonably satisfied from the evidence that the probationer has violated the conditions of his probation. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875 (1960)." [Footnote omitted.]
A cursory glance at the record of the proceedings below is sufficient for a determination that they were wholly deficient under the aforementioned authorities. The State must submit enough substantive evidence to reasonably satisfy the trier of facts that a condition of probation was breached. Fiorella v. State, 40 Ala.App. 587, 121 So.2d 875, cert. denied, 270 Ala. 737, 121 So.2d 881 (1960); Hill v. State, Ala.Cr.App., 350 So.2d 716 (1977). Here there was no evidence at all except the probation officer's report. It necessarily follows that appellant was denied the right to confront and cross-examine adverse witnesses, guideline four of Armstrong, supra. Additionally, as appellant contends, the trial court failed to set forth in a written statement the evidence relied on and the reasons for revoking probation as provided in guideline five of Armstrong, supra.
The total failure of the trial court to follow the mandates of the above cited authorities leaves us no alternative but to reverse and remand this case for a new hearing.
REVERSED AND REMANDED.
All the Judges concur.
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Harris v Campbell (2017 NY Slip Op 08111)
Harris v Campbell
2017 NY Slip Op 08111
Decided on November 17, 2017
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on November 17, 2017
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
1053 CA 16-01523
[*1]MONICA HARRIS AND DEMAR HARRIS, PLAINTIFFS-APPELLANTS,
vEVAN CAMPBELL, DEFENDANT-RESPONDENT. (APPEAL NO. 2.)
RAMOS & RAMOS, BUFFALO (JOSHUA I. RAMOS OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AARON M. ADOFF OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered November 20, 2015. The order denied the motion of plaintiffs to preclude certain evidence at trial.
It is hereby ORDERED that said appeal is unanimously dismissed without costs (see Hughes v Nussbaumer, Clarke & Velzy , 140 AD2d 988, 988 [4th Dept 1988]; Chase Manhattan Bank, N.A. v Roberts & Roberts , 63 AD2d 566, 567 [1st Dept 1978]; see also CPLR 5501 [a] [1]).
Entered: November 17, 2017
Mark W. Bennett
Clerk of the Court
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